An important new article by Laura Rovner and Jeanne Theoharis appears in the current issue of American University Law Review. Both Rovner and Theoharis have been deeply involved in the issue of solitary confinement: As director of the Civil Rights Clinic and the University of Denver’s Sturm College of Law, Rovner has overseen several challenges in the federal courts to the use of long-term solitary confinement, both at the federal supermax known as ADX Florence and at the Colorado State Penitentiary. Theoharis, a professor of political science at the City University of New York, is co-founder of Educators for Civil Liberties and has written and advocated on behalf of her former student Syed Fahad Hashmi. Arrested in 2006, Hashmi was held in pre-trial solitary confinement under “Special Administrative Measures” (SAMs) in Manhattan’s Metropolitan Detention Center for nearly three years before pleading guilty to conspiring to supply material support to a terrorist organization (largely in the form of clothing), after which he was again placed in extreme solitary confinement, at ADX Florence.
The Hashmi case forms the core of the new article, titled “Preferring Order to Justice.” Rovner and Theoharis point out that “In the decade since 9/11, much has been written about the ‘War on Terror’ and the rights violations of people detained at Guantanamo, in naval brigs, or subjected to rendition and torture in CIA black sites.” They continue:
In challenging these detentions, advocates for the detainees focused their efforts on federal court habeas review, and more recently, as prosecutions of Guantanamo detainees have resumed, many commentators have invoked the federal courts as exemplars of justice, contrasting them to military commissions. Because of the prioritization of advocacy around Guantanamo detainees, many human rights groups and advocates have been reluctant to scrutinize and to speak out against the practices used in those courts for fear of giving ammunition to conservatives and contradicting their own message to bring the Guantanamo detainees into the system. The federal courts are thus often referenced as the “gold standard” of American justice and held up to show what due process looks like when it is done right.
But todays federal courts are far from being “exemplars of justice,” the authors argue, especially when it comes to trying terrorism-related cases. Instead, while the attention of advocates has been focused on rights violations at “such places as Guantanamo, Abu Ghraib, and Baghram,” the federal system here at home has been “similarly infected”–to such an extent that it now provides little real justice.
[T]he deference to assertions of national security that degraded protections for detainees at Guantanamo has similarly degraded the protections for defendants within the federal system. Guantanamo (without the accent) is more than a prison in Cuba; it represents a particular way of seeing the Constitution, of constructing the landscape as a murky terrain of lurking enemies where rights must have substantial limits and the courts must be steadfast against such dangers.
While many scholars and human rights advocates have elegantly demonstrated the dangers of these paradigms at work in the justification and maintenance of Guantanamo and the continued detention of 169 men there, this Essay argues that the federal system is similarly infected by such paradigms…
This Essay’s thesis is that the preponderance of attention to places such as Guantanamo, Abu Ghraib, and Baghram and policies such as rendition, military commission trials, and indefinite detention overshadow the rights violations endemic to the federal system, with particularly severe impact over the past decade on Muslims facing terrorism-related charges. The lack of public attention to these issues stems in part from a post-civil rights paradigm that assumes the legal system in the United States is now relatively incorruptible, making it necessary to go outside of U.S. legal jurisdiction to circumvent the conundrum of the rights of terrorism suspects.
Accordingly, much of the focus on post-9/11 justice issues has framed the problem and solution around Guantanamo: the prison must be closed and the people either tried or released. While certainly a crucial part of the solution, this view of Guantanamo as a discrete space and process—not just offshore, not just outside the rule of law, but contained—is extraordinarily. Many civil libertarians fear that raising questions about the fairness of the federal system will only embolden conservative pressure for military commissions.
However inadvertent, this has obscured the devolution of rights protection for people accused of terrorism-related charges here at home, the schisms of race and class that have long riven the criminal justice system and the disparate justice it produces, and the ways that the prison at Guantanamo Bay is not an aberration but part of a larger way of thinking about rights and security.
An examination of the Hashmi case, Rovner and Theoharis contend, “reveals a series of rights deprivations by government officials that not only undermine the idea of fairness of the federal system, but are all the more insidious because they are sanctioned—indeed at times created—by the law itself…Fahad Hashmi’s case demonstrates that having a legal process in a terrorism case is not the same as having a just process; indeed, it shows that the fact of a legal process can be a mechanism for enabling injustice.”
The lengthy article tracks the case in detail, pointing out that at every stage, violations of Hashmi’s rights “happened in daylight, were justified by the government’s assertion of national security, and were upheld by the court.” What’s more, these things took place “in New York, just a dozen miles from where Hashmi grew up, and not in a place like Guantanamo, where individuals were held and abused in a zone that was believed to be outside the reach of U.S. law.” The case, they conclude, “reveals that this was not an unfortunate or aberrational occurrence. Rather, it demonstrates how the rights protections of Muslims accused of terrorism-related crimes in post-9/11 America can be and have been treated as expendable.”
Of particular interest to opponent of solitary confinement are sections on the long-term isolation Hashmi endured pre-trial, and how it functioned as an instrument of coercion, undermining due process rights:
What is especially troubling about the use of pretrial isolation is its potential as a coercive tool. Although public debate has circled around the efficacy of using torture for gathering intelligence, inhumane treatment—particularly the use of prolonged solitary confinement—can be an effective means to secure convictions. These methods can psychologically break down the accused, making it difficult for them to participate effectively in their own defense. It does so by severely impairing detainees’ mental health, compromising their ability to focus, and making them more willing to fire their lawyers or interrupt their own trials with impromptu harangues. In turn, authorities can use behavior problems caused by prolonged isolation to justify imposing further draconian conditions. And the conditions make it more likely that people will take a plea rather than risk a lifetime in such isolation.
Hashmi did indeed take a plea–and was promptly shipped off to ADX to serve out his 15 years under similar conditions of isolation–conditions which are, the authors point out, more likely to be imposed on Muslims than on non-Muslims convicted of terrorism-related charges. And once again, the courts offer no recourse, since they have largely failed to find any Constitutional violations in the imposition of virtually indefinite solitary confinement.
At the end of this sobering article, the authors warn that “as such rights violations occur as part of the federal process and are sanctioned by the courts, they become woven into the fabric of the justice system. And as they become more ingrained in the fabric itself, the violations are not only harder to see, they are also harder to remove, affecting not only those charged with and convicted of terrorist-related crimes in the [federal] courts, but also the Constitution itself.”