Last week, the European Court of Human Rights (ECHR) refused to accept the appeal of their ruling allowing for the extradition of Babar Ahmad and four others to the United States. This decision, from a court whose very purpose is to ensure human rights are upheld, has been widely condemned by human rights groups and advocates, who are convinced the decision will do just the opposite. The appeal was largely based on the fact that if the men are extradited to the US, they will face years of torturous solitary confinement in America’s notorious maximum security prisons.
There is another disturbing aspect of the ruling, however, that is less discussed, but equally worrisome: that these men’s chances of getting a fair trial will also be compromised by the pre-trial conditions in which they are likely to be held.
Because Ahmad and the others fall under the category of terror suspects, there is a strong likelihood that if their extradition proceeds, they will be held in pre-trial detention facilities with special administrative measures (Sams) in place. Sams were established by the federal government in 1996 to deal with certain gang leaders who had demonstrated substantial risk that their “communication or contact with persons could result in the death or serious bodily injury to persons.” Since 9/11, the need for an inmate to have “demonstrated” their reach was relaxed, and the department of justice began to use Sams, pre-trial, for terrorism suspects.
So what this means for pre-trial defendants is that they are not only held in the kind of extreme isolation that is routine in facilities like ADX Florence – the federal super-max prison where inmates spend 22 to 23 hours per day in a completely sealed and soundproof cell, and maybe an hour or so in an outdoor cage for solitary exercise – but they are also subjected to extra measures of isolation. This ensures both that they completely cut off from the outside world and that the outside world is cut off from them.
A defendant placed under Sams is usually only allowed to communicate with his immediate family (parents, siblings, spouse and children) and his attorney. Letters to and from his approved family members can take up to six months to be cleared. Such prisoners cannot write to or receive visits from anyone else: friends, extended family or supporters; and they can have absolutely no contact with the media. In addition to the gag that is placed on these defendants, the small number of people with whom they are allowed to have contact are also gagged, as they, too, are bound to abide by the Sams.
So, for instance, an attorney who goes to see her client in solitary somewhere like ADX Florence may notice that her client is deteriorating under the conditions of his confinement. But she cannot discuss those conditions with anyone – not the media, not even the prisoner’s family.
Sams are thus a pretty effective way of keeping a prisoner out of sight and out of mind, and preventing the public from knowing exactly what is going on inside America’s federal prisons. The further consequence of this is a scenario that Franz Kafka himself would have had a hard time dreaming up: these conditions are imposed on defendants who have not yet been tried or convicted of anything – which rather throws the concept of being innocent until proven guilty out the window. In other words, it makes it next to impossible for a defendant, if they are, in fact, innocent, to actually prove his innocence.
By the same token, it makes it impossible for an attorney to mount an effective defense. Gareth Pierce, the lawyer representing Babar Ahmad et al, has described the effect of Sams on any lawyer’s ability to do his or her job as follows:
“It makes it much harder for lawyers to do a proper investigative job, interview witnesses and so on, if they are not allowed to share the evidence against the defendant and explore it. The other shocking aspect and a compelling reason why prison conditions under Sams seem so relatively unexplored is because lawyers aren’t allowed to tell half of this story. Sams are crippling in every way, not just in terms of ability to prepare a trial.”
There’s another, even more chilling reason for lawyers to be concerned about defending clients placed under Sams. Attorneys risk prosecution if they violate any of the terms of the Sams, and precedent has it that the sanction for any violations will be much more severe than the proverbial slap on the wrist. This past June, a ten-year prison sentence was upheld in federal court for Lynne Stewart, a 73-year-old attorney who was convicted in 2005 of “providing aid to terrorism” for sharing statements from her client, Sheik Omar Abdel Rahman, with the media.
The prosecution originally sought a 30-year sentence. Stewart, who has been treated for breast cancer, fears she will die in prison.
The challenges for defendants under Sams is all too graphically illustrated by the story of Syed Fahad Hashmi, a political science student from Queens, New York, who, while completing his masters degree in London, was arrested for “providing material support to terrorists”. This material support involved allowing an acquaintance to stay in his apartment for two weeks – an acquaintance who later delivered raincoats and waterproof socks to al-Qaida. Hashmi was extradited back to America, held in total isolation under Sams for three years at the notorious Metropolitan Correctional Center in lower Manhattan as he awaited trial. One day before his trial, to the dismay of his many supporters, Hashmi, who was facing 70 years if convicted, agreed to a plea bargain of one count of conspiring to provide material support. He was sentenced to 15 years, which he is now serving, in total isolation, at ADX.
You can see why Babar Ahmad and others who are charged with anything to do with alleged terrorism would fight extradition to the US at every avenue available to them. You can also see why their lawyers fear that justice will not be served if they are. It is we the people, however, who by being denied information, the opportunity to protect our civil liberties and to keep our government in check, who are the ultimate losers.