By Kathryn Heffron
My brother, Ahmed Abu Ali, has spent the past five
years in solitary confinement, under 23-hour
lockdown, in a 7×12 cell. He has one recreational
hour in which he must get strip-searched if he
wishes to leave his cell. He gets one unscheduled
telephone call a month to his family, and receives
the newspaper by the time news becomes history. If
I send him a letter wishing him a happy birthday, he
gets it 60 days later. When I visit him, once a year,
I speak to him from behind a glass window. He is
literally in a dungeon, over 20 meters beneath the
Mariam Abu Ali, describing the special administrative measures imposed on her brother at a super maximum security prison in Florence, Colorado.
About a year ago, a group of CUNY School of Law students joined up with activists around New York to show their support for Syed Fahad Hashmi, who was facing a trial in federal court in April 2010, for material support to terrorism charges. Fahad’s case resonated with CUNY students for several reasons. Fahad was born in Pakistan and moved to the United States when he was three-years old. He grew up in Flushing, Queens. Fahad is a CUNY alumnus, graduating from Brooklyn College, where he often stood with others at his campus to speak out against American domestic and foreign policy in the wake of September 11th. Jeanne Theoharis, Fahad’s political science professor at Brooklyn College, remembers that Fahad was “[a] critic of U.S. foreign policy and its treatment of Muslims, he held the rather optimistic view that you could change people’s minds by talking and arguing with them.”
When CUNY students first learned of the case, Fahad was facing a seventy-year sentence in federal court for material support to terrorism and other terrorist charges. In frightening absurdity, Fahad was accused of allowing an acquaintance, Junaid Babar, to store ponchos, waterproof socks, and sleeping bags in his apartment for a few weeks in 2004. Fahad was also accused of allowing Babar to use his cell phone and lending Babar three hundred dollars for a plane ticket. Babar allegedly gave the socks and ponchos to a leading member of al-Qaeda and later entered an agreement with the government as a cooperating witness. In 2006, Fahad was arrested in Heathrow Airport on material support charges. He was extradited from England and was placed in pretrial detention for three years under Special Administrative Measures (the “S.A.M.s”) at the Metropolitan Correctional Center, located in downtown Manhattan adjacent to the federal courts.
S.A.M.s are specific conditions of detentions imposed on federal prisoners when the Attorney General determines that communication could be disclosed that would threaten national security or that prisoner’s interactions could result in serious injury or death of others through acts of violence or terrorism. The regulations promulgating S.A.M.s never use the words “solitary confinement” but the restrictions imposed on housing, restrictions on access to visitations, strict restrictions on to other prisoners or religious officials, restrictions on telephone, or news media amount to conditions of solitary confinement for extremely prolonged periods of time. S.A.M.s were introduced by Congress in 1996 and initially could only be used 120 days at a time, but after September 11, 2001, this time period was lengthened to a year with the opportunity for extensions annually.The revised rules allow for the Government to monitor communications between an inmate and his attorney where “reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism.” The Department of Justice’s justification maintains that S.A.M.s serve a “legitimate penological objective” of the corrections system and deter crime and maintain internal security within the corrections facilities. In 2009, the Department of Justice revealed that 44 federal prison inmates, including defendants awaiting trial, were being held under S.A.M.s in prisons across the United States. S.A.M.s by and large affect Muslim defendants.
Under SAMs, Fahad endured inhumane conditions, prohibited under international law. Fahad spent 23 hours a day in solitary confinement lockdown. For several month-long intervals, Fahad was not allowed visitation from his family. When he was allowed visitations, they were confined to oneperson visits for one hour and a half, every other week. Fahad was permitted to write one letter a week to his family but could not use more than three pieces of paper per letter. He was forbidden any contact directly or through attorneys with news media. Fahad could read only news articles approved by the prisons and not until thirty days after publication. The S.A.M.s include 24-hour electronic monitoring and a prohibition of communication with other inmates. He was allowed one hour of recreation every day—inside a cage. All these measures were imposed on Fahad before his guilt had ever been proved in any court of law.
Throughout the three years of pretrial detention, Fahad’s attorneys insisted to the court that such conditions of confinement would have “lasting psychological, emotional, and physical damage” to their client and that the conditions would affect their client’s ability to assist in his own defense. Their motions were denied. Fahad’s family and attorneys spoke of Fahad’s mental and physical deterioration throughout the length of the pretrial period. Joshua Dratel, an attorney familiar with similar cases in federal court, writes of defendants subjected to S.A.M.s:
The mental and physical deterioration of the
client is palpable after only a short period of
time. The complete isolation, lack of exercise
and emotional and mental stimulation, all
manifest themselves clearly, steadily, and
increasingly over time. The client has difficulty
concentrating, becomes irritable, listless,
demanding, and uncooperative, progressively
loses appetite, which further impairs his health,
and frequently develops physical and somatic
symptoms of the pervasive stress under which
In the months preceding Fahad’s trial, CUNY students attended vigils outside the Metropolitan Correctional Center, wrote editorials to press, held strategy sessions with other advocates, and made plans to pack the courthouse for the trial. On April 26, 2010 the Judge granted the Attorney General’s motion for an anonymous jury with extra security measures two days prior to the start of trial. The government’s motion requesting an anonymous jury specifically referred to the growing activism around the case, which included community groups, professors, artists, attorneys, civil rights organizations, and students. On the eve of trial, Fahad, unable to view classified information pertaining to his case and likely sensing the impossibility of a fair trial under an anonymous jury, accepted a plea bargain and was sentenced to fifteen years. He was moved to a high security prison in Florence, Colorado, where he remained under S.A.M.s conditions. Today, one year after the plea bargain, Fahad’s situation remains unchanged. The torture of Fahad now continues into its fourth year. On October 29, 2010, the S.A.M.s were extended against Fahad.
Human Rights Law on S.A.M.s
The use of prolonged solitary confinement such as that which is imposed under S.A.M.s has been addressed in international law. International treaty bodies have found that prolonged solitary confinement can amount to inhumane and degrading treatment. The Special Rapporteur noted that solitary confinement, including the holding of a person in physical isolation for 22 to 24 hours a day and being allowed outside for only one hour a day, may amount to cruel, inhumane, and degrading punishment or torture.The Special Rapporteur has also referenced the Human Rights Committee statement that prolonged solitary confinement may violate Article 7 of the International Covenant on Civil and Political Rights. Additionally, The Committee Against Torture has recognized the harmful, physical, and mental effects of prolonged solitary confinement and has expressed concern about its use, including preventative measures during pre-trial detention as well as a disciplinary measure. Several treaty UN bodies have reviewed the practice of prolonged solitary confinement in United States prisons. In 1995, the U.N. Human Rights Committee stated that isolation conditions in certain U.S. maximum security prisons were incompatible with international standards. In 1996, the U.N. special rapporteur on torture reported on cruel, inhuman, and degrading treatment in U.S. supermax prisons. In 2000, the U.N. Committee on Torture explicitly condemned the United States for its treatment of prisoners, citing supermax prisons. In May 2006, the same committee concluded that the United States should review the regimen imposed on detainees in super maximum security prisons, in particular, the practice of prolonged isolation.
Most recently, the European Court of Human Rights, citing potential inhumane U.S Federal prison conditions, has stayed the extradition of four terrorist suspects to the United States. The applicants argued extradition to the United States for trial in federal court included “a substantial risk that [they] would be subjected to administrative measures whilst in pre-trial detention in a federal prison . . . these measures could involve solitary confinement and restrictions on communication with his legal representatives in violation of Article 3 and 6 of the Convention.” Article 3 of the Convention on Human Rights prohibits “torture or inhuman or degrading treatment or punishment.” Article 6 of the Convention guarantees a fair, public trial within a reasonable amount of time, the presumption of innocence, and protections for defendants in preparing for their defense.
The European court is considering five separate statements from attorneys who have worked on federal cases and are familiar with use of SAMs. The court is reviewing information from the Department of Justice on speedy trial statutes under federal law and the reasons for delay in federal court. Additionally, the court considered the similar conditions, which would be imposed on defendants after they are convicted in supermax prisons, such as the prison where Fahad is currently located in Colorado. Information considered by the Court includes a statement from ADX warden Ron Wiley, letters and reports from Human Rights Watch, an article by Time Magazine on U.S supermax prisons, and a report from psychiatrist, Dr. Terry Kupers, documenting the Effects of the conditions imposed at the supermax facility. The Court is reviewing treaty reports including statements on prolonged solitary confinement from the UN Committee Against Torture and the UN Human Rights Committee. The Court also considered a copy of the Istanbul statement on the use and effects of solitary confinement, adopted at the International Psychological Trauma Symposium in December 2007. Additionally, the Court is also reviewing a report from the Civil Rights Clinic at the University of Denver, which emphasizes the increased risks to prisoners such as Fahad, who are placed in supermax and, additionally, subjected to SAMs restrictions.
Some civil rights activists have been reticent to criticize conditions in United States federal prisons, with the fear that such activism might compromise the campaigns to close Guantánamo Bay and Bagram. Yet, torture is torture and it is unacceptable regardless of whether it occurs IN Guantánamo, Bagram, Colorado, or downtown Manhattan. There is hope that the European Court of Human Rights pending decision will make a strong statement against the use of SAMs in the United States. Regardless of that decision, a year has passed, and Fahad still remains under the same deplorable treatment that he endured for three years prior to trial. It is perhaps time for us all to reflect on how his situation has remained unchanged and what it is we can do to respond.
1 Mariam Abu Ali, My Brother Faces a Lifetime of Solitary Confinement on a Spurious Terror Conviction, ALTERNET, May 12, 2010, http://www.alternet.org/ (search “My brother”; then follow “My Brother Faces a Lifetime of Solitary Confinement on a Spurious. . . .” hyperlink).
2 “Guantanamo at Home”: Muslim American Syed Fahad Hashmi Held in 23-Hour Solitary Pretrial Confinement for over Two Years in Case Resting on Plea-Bargaining Government Informant, DEMOCRACY NOW, June 5, 2009, http://www.democracynow.org/2009/6/5/hashmi.
3 Jeanne Theoharis, The Legal Black Hole in Lower Manhattan, SLATE (Apr. 27, 2010, 11:05 AM), http://www.slate.com/id/2252117/.
5 After 3 Years in Pre Trial Solitary Confinement Fahad Hashmi Pleads Guilty on the Eve of a Terror Trial, DEMOCRACY NOW, Apr. 28, 2010, http://www.democracynow.org/2010/4/28/after_3_years_in_pretrial_solitary.
7 Id. See also DEMOCRACY NOW, supra note 2.
8 28 C.F.R. §§ 501.2(a), 501.3(a) (2010).
9 See id.
10 National Security; Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55,062, 55,063–64 (proposed Oct. 31, 2001) (to be codified at C.F.R. pts. 500–01).
11 Id. at 55,066. See also NYU School of Law, The Center of Law and Security, Terrorist Trial Report Card, September 11, 2001-September 11, 2011, 21 (2010), available at http://files.e2ma.net/36219/assets/docs/ttrcseptember15th2010.pdf.
12 National Security; Prevention of Acts of Violence and Terrorism, 72 Fed. Reg. 16,271, 16,274 (Apr. 4, 2007) (to be codified at 28 C.F.R. pts. 500–01).
13 The Center on Law and Security, supra note 10, at 21.
14 Sally Eberhardt & Jeanne Theoharis, Guantánamos Here at Home, THE NATION, Feb. 7, 2011, available at http://www.thenation.com/article/157896/guant%C3%A1namos-here-home.
15 Nat Hentoff, A Brooklyn College Grad Experiences the Constitution in a Cage, VILLAGE VOICE, Nov. 5, 2008, available at http://www.villagevoice.com/2008-11-05/columns/a-brooklyn-college-grad-experiences-theconstitution-in-a-cage/.
18 Joshua L. Dratel, Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case, 2 CARDOZO PUB. L. POL’Y & ETHICS J. 81, 84-85 (2003).
19 Memorandum from Dep’t of Justice, Assistant Att’y Gen. Lanny A Breuer for Fed. Bureau of Prisons, Dir. Harley G. Lappin (Oct. 28, 2010) (on file with author).
20 See Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.115, 122–23 (2008); U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: New Zealand, 5, U.N. Doc. CAT/C/CR/32/4 (May 19, 2004); U.N. Human Rights Comm., General Comment No. 20, 6, U.N. Doc. CCPR/A/47/40/1992, Annex VI (1994).
21 U.N. General Assembly, Note by the Secretary General, Torture or Other Cruel, Inhumane or Degrading Treatment, U.N. Doc. A/63/175 (July 28, 2008). 36th Session, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention:
22 Bill Quigley, Not Just Guantanomo: US Torturing Muslim Pre-Trial Detainee in NYC, HUFFINGTON POST, Apr. 3, 2010, http://www.huffingtonpost.com/bill-quigley/not-justguantanamo-us-to_b_524226.html. See also Lobes, supra note 20, at 123–24 (citing U.N. Comm. Against Torture, Conclusions and Recommendations of the Committee Against Torture: United States of America, ¶ 36, U.N. Doc. CAT/C/USA/CO/2 (May 18, 2006), available at http://www.aclu.org/images/torture/asset_upload_file807_25607.pdf.
24 Eberhardt & Theoharis, supra note 14.
26 Council of Europe, European Convention of Human Rights, HELLENIC RESOURCES NETWORK, http://www.hri.org/docs/ECHR50.html#C.Art6 (last visited Apr. 24, 2011).
27 European Court of Human Rights, Partial Decision as to Admissibility of Application nos. 24027/07, 11949/08, 36742/08, by Babar Ahmad, Haroon Rashid Aswat, Syed Talah Ashan and Mustafa Kamal Mustafa (Abu Hamza) against the United Kingdom, 32–33 (2010) available at http://www.unhcr.org/refworld/country,,,CASELAW,EGY,,4c3718882,0.html.
28 Id. at 35.
30 Eberhardt & Theoharis, supra note 14.