Post-9/11 federal cases tend to command the worst of the American media, resulting in the vast majority of Americans knowing about these cases simply by the gimicky names the media has attached to them–“the dirty bomber” or “the underwear bomber”–in the first days after indictments. When faces are attached to the names in these cases, they are inevitably grim mug shots beneath blazing newspaper headlines. Media coverage then follows a typical pattern: sensationalized front-page coverage at the time of initial arrest–often with lurid allegations of the given suspect’s alleged “radicalization” and terrifying “plot”–then months if not years of media silence; and, finally, coverage during trials themselves usually limited to general courtroom observation with little critical analysis.
In the end, what is seared into the national consciousness is the image of a “dirty bomber” who was never even indicted with, much less convicted of, having a dirty bomb; a “Herald Square bomber” who actually told his government handler days before the alleged plot that he would need to check with his mother before doing anything; and “The Liberty City Seven” supposedly dead-set on bombing the Sears Tower who in reality were so poor that far from being able to finance a trip to Chicago or weapons of any kind, they couldn’t even afford to buy camera to take photos of Florida “targets” and so used the FBI-provided camera to do so.
The reality of how these cases move forward in the US judicial system is far more complicated than our media explains–and far more shocking.
Conditions of Confinement
The use of prolonged solitary confinement pretrial has become regularized, a form of torture used not to gain information but to gain cooperation and convictions by effectively breaking down detainees’ mental capacity to participate in their own defense in anti-terrorism cases. The use of Special Administrative Measures and sustained solitary confinement, which violate international human rights standards, have continued apace in the Obama Administration as pre-trial and post-trial prisoners are held in draconian and inhumane conditions of indefinite solitary confinement, with virtually no human contact, little or no access to fresh air or natural light, and compromised lawyer-client access. The disproportionate incarceration of Muslims convicted of terrorism charges at the federal Supermax ADX (where every prisoner is kept in solitary confinement) and in specially created units called Communication Management Units (which prisoner’s contact and communication with the outside world is restricted and monitored) raise further issues of concern.
Fair Trial and Due Process Concerns
The evisceration of due process that has taken place in a series of terrorism trials domestically includes the classifying of evidence under the Classified Information Procedures Act (CIPA)—originally enacted in 1981 to prevent graymail by US intelligence officers—that amounts to a violation of basic fair trial rights as detainees are not allowed to review the evidence being used against them. Additional fair trial concerns involve inhumane conditions of detention that seriously threatened detainees’ ability to participate in their own defense and the shredding of the presumption of innocence through measures like anonymous juries.
First Amendment and Material Support Charges
There has been an ongoing abrogation of civil rights in terrorism cases as courts attempt to wage “preemptive prosecution” by allowing political activity or expression (including through electronic media) to be used as evidence of a given detainee’s “state of mind” and “intent” in direct violation of detainees’ First Amendment rights which protect political and religious beliefs, speech, and associations. The US’ material support statute has been criticized by lawyers and human rights advocates for both its vagueness and for the expansive power it gives to the government to criminalize speech and association.
Surveillance and Entrapment
The aggressive use of police, FBI and CIA surveillance of Muslim communities has skyrocketed since 9/11. In its Pulitzer Prize-winning series, the Associated Press uncovered the extensive mapping and surveillance of Muslim communities—including Muslim Student Associations—across the eastern seaboard of the United States, restaurants, cafes, bookstores, and mosques. In addition to surveillance, the US government has increasingly come to rely more and more heavily on the use of informants—almost always former criminals themselves or men arrested for terror crimes who bargain their way out of jail time in return for working undercover—to infiltrate Muslim communities and entrap suspects into fake plots.
We have been here before in this country. The current legalized rights evisceration happening today echoes the period of Japanese internment during World War II, the McCarthy era and the surveillance of the civil rights movement of the 1950s and 1960s, and the gross overreach of COINTELLPRO against Black, Latino and Native American movements in the 1970s, as just a few recent examples. The United States has often turned to “national security” as the necessity behind its abridgement of rights and the Courts have followed suit. Though justified as essential for “national security” and not because of “racial prejudice,” these government-sanctioned rights violations are now seen as regrettable moments in our history, scars on our national landscape.
Yet we find ourselves, once again, living in one of these moments, right here on American soil. If we hope to stem this grave injustice and begin to heal the scars it has caused, the first step must be for human rights and civil liberties groups, scholars, and organizers, to come together with families of those accused and convicted under this grossly compromised system. We must start to educate the public about the reality of what is happening in these federal post-9/11 cases; to draw attention to the actual pattern of rights abuses that has emerged over the past twelve years; and to push for change in U.S. surveillance operations, prosecutions, and conditions of detention.