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Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions - Part 7

 

 

 

A Report by Human Rights Watch

July 21, 2014

Pre-trial Solitary Confinement and Other Conditions of Confinement

The US government frequently imposes solitary confinement on suspects in terrorism cases prior to trial.[495] Prolonged pre-trial solitary confinement not only raises concerns of cruel and inhumane treatment or punishment, but it also has an impact on defendants’ ability to assist in their own defence, and may compel them to waive their trial rights and accept plea deals.[496]

We documented the experiences of 24 men who were held in solitary confinement on terrorism charges prior to conviction, often for months or years on end.[497] In some of these cases, solitary confinement was imposed as “administrative segregation,” that is, not for a disciplinary infraction but purportedly for the security of the prison or the personal security of the detainee.[498]

For example, Syed Hashmi was held in solitary confinement for about three years, imposed as administrative segregation and pursuant to Special Administrative Measures (SAMs)—special restrictions imposed to protect national security or prevent disclosure of classified material (SAMs are discussed in detail in section VI)—for much of that time.[499] The UN special rapporteur on torture, Juan Mendez, who sought information from the US government about Hashmi, said its explanation of the case “made no mention of Mr. Hashmi’s behaviour in custody as a reason for any disciplinary sanction” but appeared based on “the seriousness of the charges he faced.”[500] He concluded that Hashmi’s prolonged pre-trial solitary confinement constituted a violation of his rights under the Convention against Torture “absent contrary evidence.”[501]

Barry Bujol was kept in isolation in his cell for 19 months prior to his sentencing, in the special housing unit of the federal detention centre in downtown Houston.[502] Bujol had only one hour of recreation out of his cell each day, during which he “occasionally, but rarely” had someone else in the recreation room with him.[503] Bujol expressed his suffering in a story he drafted prior to his sentencing, titled Dungeon in the Sky. He begins the piece:

Solitude can be many things. It can be a time for reflection, a healthy and therapeutic exercise that inspires creativity. It can be a sanctuary for spiritual growth and self-discovery…. Unless of course solitude is how you live daily—and you’re forced to. Then it becomes much more than that. Then it becomes what people in here call it—a hole. A hole that swallows the spirit like a black hole in space swallows all light and matter. Then it strips the hours of their significance and the days of their meaning[,] turning them instead into a perpetual void of timelessness. It becomes a living tomb constricting movements, thoughts, and everything else that makes us human [,] the way a boa constricts its prey. At least for the prey death is imminent.[504]

In at least some cases we reviewed, the government’s restrictions appear to have far exceeded what was necessary to address the stated security concerns. For example, in the cases of Adnan Mirza and Tarek Mehanna, who were ultimately convicted of non-violent crimes, each was held in pre-trial solitary confinement for more than two years. They then were told they were being held in solitary for their own security. Yet it is hard to justify the severe restrictions on their human contact on those grounds: it took three weeks for Mirza to receive mail from his family, even from those who lived in Texas, and he was allowed only a single 15-minute phone call to his family a month.[505] Jay Carney, Mehanna’s attorney, noted that, “You can protect an inmate and still allow him to have contact with other people on a regular basis, and not be put in that cell sometimes 24 hours a day.”[506]

Mohammed Warsame: Five Years in Pre-trial Detention

Mohammed Warsame, originally held as a material witness, was subjected to pretrial solitary confinement for five-and-a-half years. He was held in a 10 x 10-foot cell in a state prison alongside prisoners convicted of serious crimes. [507] He was permitted one hour of out-of-cell exercise and one shower a week. [508]

“He has not been outside nor been near an open window, let alone look out a closed window to the outside prison yard” for four years, his lawyer wrote in 2007, “except for the few times he has been transported to court.” [509]

District Judge John Tunheim grew so concerned about Warsame’s solitary confinement that at times he would hold status conference hearings simply to allow Warsame to leave the prison and go to court, he told us. [510] Warsame ultimately pled guilty to charges of conspiracy to provide material support for terrorism. Under the plea deal, he was sentenced to 92 months in prison, including time served, and immediately deported to his home country of Canada. As professors Laura Rovner and Jeanne Theoharis put it, “forcing Warsame to leave the country seems at odds with the immediate danger repeatedly asserted by the government of Warsame’s unmonitored communication.” [511]

Other Ill-Treatment in Pretrial “Special Housing Unit” Detention

More than half of all individuals being held pre-trial by the Bureau of Prisons who are charged with terrorism or terrorism-related offenses—30 out of 52—are held in Special Housing Units (SHUs).[512]

SHUs segregate these individuals from the general prison population, putting them in solitary confinement or other “restrictive conditions.”[513] Many individuals held in pretrial SHUs reported poor conditions and treatment that, particularly when considered cumulatively with conditions of physical and social isolation, could amount to ill-treatment in violation of international law (see section VI). Human Rights Watch has previously documented similarly abusive conditions of confinement in SHUs for individuals held as “special interest” detainees shortly after 9/11 and individuals held under the material witness statute.[514]

Among the poor conditions faced by many individuals held in solitary confinement was extreme cold, including for defendants at New York Metropolitan Correctional Center (MCC) “10-South,” and other defendants in metropolitan detention facilities, such as the Fort Dix Five defendants held at Philadelphia FDC.

Conditions at MCC 10-South

MCC 10-South is a SHU in New York City that includes six individual cells that have repeatedly housed individuals indicted on terrorism or terrorism-related charges, including those under Special Administrative Measures (SAMs) (discussed in section VI). Individuals are held in 23 or 24-hour solitary confinement. Public access to 10-South is severely limited and many prisoners there are under SAMs that bar them from speaking with the media or anyone other than their attorneys and family members (who are, in turn, barred from relaying any information). These restrictions limited our ability and the ability of other researchers to document conditions there. However, former detainees have described harsh conditions and harassment:

        Tarik Shah, a professional jazz bassist and martial arts instructor who was prosecuted after an elaborate sting operation that spanned four years and involved two informants, spent 33 months in solitary confinement at 10-South. In a letter to his sister, he described a “bright light on for twenty-four hours” a day.[515] He described his cell as “extremely cold throughout the year”: “[W]e could not purchase hats, gloves, extra sweats or extra thermals, so I wore an extra pillow case on my head, three pairs of socks on my feet, a pair of socks on my hands for gloves…just to be somewhat insulated.” [516]

        Uzair Paracha was held in pre-trial solitary confinement at 10-South for 23 months. “Some officers…came to the door and looked straight at me through the windows while I was sitting on the toilet,” he wrote. “Other times I overheard them talking to me or about me while I was on the toilet, talking about how we would clean ourselves afterwards.… I felt too embarrassed and humiliated to discuss or complain about it.”>[517] Paracha also described guards taking his blankets and clothes in wintertime, and blasting the radio while he and other Muslims prisoners were praying, turning it down when they finished. “They knew we couldn’t talk or do other things during our prayer,” Paracha wrote, and would purposefully deliver food or ask for food trays back while Paracha was praying.[518]

Some defendants or their families also reported harassment by particular correctional officers at pre-trial facilities. For example, all of the Duka brothers described prison officials at Philadelphia FDC ransacking their cells and throwing religious materials, including the Quran, on the floor while leaving non-religious materials untouched.[519]

Ahmed Bilal, one of the “Portland Seven” (see section II), said that harassment by guards in one facility was so severe that members of the white supremacist gang European Kindred, who were housed with him, began standing up for him against the guards.[520] Bilal said that attorney visits that took place through a glass wall did not require strip-searching so he would request that type of visit, but the guards would strip-search him anyway.[521]

Dr. Sami Al-Arian[522] was subject to frequent strip searches at the SHU at Coleman USP, a court order stopped them, even though he was denied any contact visits.[523] Al-Arian complained that he was shackled at his ankles and wrists whenever he left his cell. Prison guards refused to carry his legal documents to meetings with counsel, so Al-Arian had to bend over and balance a stack of files on his back while walking, “[l]ike an animal,” his attorney Linda Moreno said.[524]

Impact of Pre-trial Solitary Confinement on Pleas and Trial Preparation

In some cases, the emotional and psychological toll of solitary confinement may have impeded defendants’ abilities to prepare for their defense or impaired their judgment—even if the confinement was for days, rather than weeks or months.[525] A number of defendants, their relatives, or attorneys said the experience of solitary affected the defendants’ interactions with attorneys and willingness to plead guilty:

Case of Oussama Kassir:

Kassir, who has a documented history of mental illness, spent one-and-a-half years at MCC 10-South and was held continuously in a cell with no natural light.[526] Under SAMs, Kassir was barred from talking with other inmates or correctional staff. Denied phone calls to his family for seven months, Kassir’s only human contact was with his lawyers, consulate officials and prison staff.[527] His “only exercise facility was the provision of a cell identical to his own,” according to a statement his defence counsel provided to the European Court of Human Rights.[528] Kassir’s attorney, Marc DeMarco, told us that Kassir often spent the first hour of their meetings only able to speak about the horrible conditions of confinement.[529] Though Kassir was an intelligent person, his focus on his conditions made him seem like a “rambling lunatic” during their discussions.[530] Kassir’s counsel moved to lift the SAMs, arguing that they were restricting legal access, destroying Kassir’s mental well being, and harming his ability to prepare for trial.[531] The motion was denied.[532]

Case of Yassin Aref:

Aref, an imam convicted in October 2006 of providing material support for witnessing a loan agreement between an informant and mosque congregant, and who had no criminal record or history of violence (see section II), began having trouble communicating after he was in solitary confinement at Raybrook prison, his attorneys told us.[533] According to attorney Kathy Manley: “When he was at Raybrook, he was shaking and crying, he couldn’t put thoughts together, which was unusual for him. He couldn’t put together coherent sentences after being in solitary confinement. He was in shock.” An activist who visited Aref at Raybrook said: “I said something to him and he was trying to say something. He couldn’t get the words out, he was just trembling.”[534]

Case of Raja Khan:

Khan, who bragged to undercover FBI agents about a connection to Ilyas Kashmiri (a senior Pakistani leader of Harkat-ul-Jihad al-Islami) but who never actually made any such contact, was held in solitary confinement in the SHU at Chicago’s Metropolitan Detention Centre for about 16 months, from his arrest until he was released after taking a plea deal.[535] Khan’s presentence investigation report (a report that informs a court’s sentencing decision, and that is typically prepared by a probation officer) found that his 16 months of pre-conviction solitary confinement “had serious and permanent consequences on his physical and mental health.”[536]According to Khan’s son-in-law, Waseem Serwer, he developed arthritis and became unable to walk.[537] Khan lost up to 45 pounds and developed high blood pressure, high cholesterol, dry and itchy eyes, and sinus problems that he did not have prior to his detention.[538] Khan’s wife told the court that the 16 months of solitary confinement had “destroyed his health.”[539] Khan reported suffering “depression so severe…that he would have committed suicide had it not been for his religion.”[540] Serwer told us that when they talked on the phone, Khan appeared depressed and ready to give up hope: “He started talking about not making it, [asking us to] take care of his other kids… He was distressed to the point of not knowing what happened to himself.”[541] Khan’s family believes he took the plea deal rather than contest the charges at trial because he was traumatized and feared long-term solitary confinement. Serwer said: “He knew only what he had seen, and he based his decision on that.”[542]

Case of Uzair Paracha:

Paracha was put under SAMs nine months after his December 2003 arrest, at a time when he was refusing a plea deal (he was ultimately convicted at trial of providing material support for terrorism and other offenses and sentenced to 30 years). The SAMs initially barred him from talking to any other inmates, and he was only permitted to speak to prison guards. “You could spend days to weeks without uttering anything significant beyond ‘please cut my lights,’ ‘can I get a legal call/toilet paper/ a razor,’ etc., or just thanking them for shutting our lights,” Paracha wrote in an email to Human Rights Watch. Paracha developed claustrophobia and would eventually be diagnosed with depression that required medication: “Many times during the day I saw myself doing things that I saw people with psychological problems do. The way I sounded (my voice), my gestures,” he stated.[543] Paracha’s SAMs were purportedly based on the government’s belief in Paracha’s dangerousness and connections with Al Qaeda, yet that rationale evidently did not extend far: the government offered Paracha a plea bargain of only 22 months’ imprisonment, which he refused.[544] “I faced the harshest part of the SAMs while I was innocent in the eyes of American law,” Paracha wrote. After Paracha was convicted in December 2006, the SAMs were modified, permitting him to communicate with other inmates. “The fact that they became more lenient about a month after my conviction was counterintuitive and made the SAMs look more like a pressure tactic and less like any security measures,” Paracha wrote.[545]

 [327] U.S. Const. amend. VI.

[328] ICCPR, arts. 14(1), 14(3)(e), and 14(3)(g). The UN Human Rights Committee has said that the specific elements of article 14(3) are “minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing.” UN Human Rights Committee, General Comment 13, Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14) (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, Para. 5.

[329] UN Human Rights Committee, General Comment 32, Article 14: Right to Equality Before Courts and Tribunals and To A Fair Trial (Ninetieth session, 2007), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. CCPR/C/GC/32 (2007), para. 25. (“Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects.”).

[330]The ICCPR provides an individual with the right “not to be compelled to testify against himself or to confess guilt.” This right includes the right not to have confessions obtained by torture or other cruel, inhuman or degrading treatment introduced at trial. ICCPR, art. 14(3)(g). The committee also noted that sometimes torture or other forms of cruel, inhuman or degrading treatment or punishment (prohibited by article 7 of the ICCPR) are used to compel the accused to confess or testify against himself, and that “[t]he law should require the evidence provided by mean of such methods or any other form of compulsion is wholly unacceptable.” See UN Human Rights Committee, General Comment 13, para. 14.

[331] Miranda v. Arizona, 384 U.S. 436 (1966).

[332] Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).

[333]Bustamonte, 412 US 218, 225-26 (quoting Culombe v. Connecticut, 367 US 568, 602 (1961)).

[334] United States v. Marzook, 435 F. Supp. 2d 708 (N.D. Ill. 2006).

[335] He was eventually convicted in Israel for helping to funnel $650,000 to Hamas and sentenced to five years in an Israeli prison. Ibid.

[336] Affidavit of Muhammad Salah at 3, Marzook, 435 F. Supp. 2d 708 (No. 03 CR 978).

[337] Ibid.

[338] Ibid.

[339]Marzook, 462 F. Supp. 2d 708, 726 (N.D.Ill. 2006).

[340] Ibid., p. 718.

[341] Ibid., pp. 736-37.

[342] United States v. Salah, No. 1:03-cr-00978-2 (N.D. Ill. July 23, 2007). Salah had also been placed on a “specially designated terrorist” list by the Department of Treasury in 1995, pursuant to Israeli proceedings, and was kept on the list despite his acquittals of terrorism related charges in 2007. The designation, which as imposed by executive order and without a means to challenge it, restricted Salah’s ability to work and conduct basic transactions. Annie Sweeney,“Bridgeview man taken off terrorist list,” Chicago Tribune, November 7, 2012,¬_http://articles.chicagotribune.com/2012-11-07/news/chi-bridgeview-man-taken-off-terrorist-list-20121107_1_bridgeview-man-terrorist-list-support-hamas-extremists (accessed on June 25, 2014).

[343] Jerry Markon, “Doctors Find Signs Plot Suspect was Tortured, Lawyer Says,” Washington Post, May 20, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/05/19/AR2005051901737.html (accessed June 30, 2014) (discussing Psychiatrists Allen S. Keller and Lynne M. Gaby ‘s psychiatric evaluations of Ahmed Abu Ali, finding “historical, physical and psychological evidence supporting” Ali’s allegations of torture).

[344] United States v. Abu Ali, 395 F. Supp. 2d 338, 341 (E.D. Va. 2005).

[345] Brief for the United States in Opposition to Defendant’s Motion to Supress at 14, Abu Ali, 395 F. Supp. 2d 338 (E.D. Va. 2005) (No. 1:05-cr-00053).

[346]Abu Ali, 395 F. Supp. 2d 338, 343.

[347] Ibid.

[348] Ali v. Ashcroft, 350 F. Supp. 2d 28, 31 (D.D.C. 2004).

[349]Abu Ali, 395 F. Supp. 2d 338, 341.

[350] Columbia Law School’s Human Rights Institute interview with David Laufman, Washington, DC, September 20, 2012.

[351] Ibid.

[352] United States v. Abu Ali, 395 F. Supp. 2d 338,373-4 (E.D. Va. 2005). For example, the judge found that “Mr. Abu Ali’s claim about having been whipped to the point of having blood on his back seems implausible in light of certain behaviours that he exhibited in the time frame of June 11 through June 15, 2003—immediately after the alleged whipping—that do not coincide with how a recently beaten person would behave.” Ibid., p. 374.

[353] Ibid., pp. 343-346.

[354] Brief for the United States in Opposition to Defendant’s Motion to Supress at 1, Abu Ali, 395 F. Supp. 2d 338 (E.D. Va. 2005) (No. 1:05-cr-00053).

[355] Ibid., p. 2.

[356] US State Department, Bureau of Democracy, Human Rights, and Labor, “2004 Country Reports on Human Rights Practices: Saudi Arabia, Human Rights in Saudi Arabia: A Deafening Silence,” February 28, 2005, http://www.state.gov/j/drl/rls/hrrpt/2004/41731.htm(accessed on June 25, 2014); Human Rights Watch, Human Rights Watch Backgrounder, December 2001: Human rights in Saudi Arabia: A Deafening Silence, December 2001, http://www.hrw.org/legacy/backgrounder/mena/saudi/saudi.pdf, p.12: Amnesty International, “The Trial of Ahmed Abu Ali – Findings of Amnesty International’s Trial Observations,” December 14, 2005, http://www.amnesty.org/en/library/asset/AMR51/192/2005/en/902af71c-d480-11dd-8743-d305bea2b2c7/amr511922005en.pdf (accessed on June 25, 2014), p. 5.

[357] Amnesty International, “USA: The Trial of Ahmed Abu Ali – Findings of Amnesty International’s trial observations,” December 14, 2005, http://www.amnesty.org/en/library/asset/AMR51/192/2005/en/902af71c-d480-11dd-8743-d305bea2b2c7/amr511922005en.pdf (accessed June 30, 2014), p.5.

[358] Jerry Markon, “Va. Man’s Sentence Increased to Life in Terror Plot,” Washington Post, July 28, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/27/AR2009072701384.html (accessed June 25, 2014).

[359] The following exchange was between the prosecutor and the FBI employee: “Q. And what kind of travel were y’all talking about? A. Going over to the Pakistan/Afghanistan/Iraq region. Q. And then Mr. Mirza says in reference to that conversation, ‘I hope that I get’ —I’m pronouncing it wrong, I’m sure— ‘Shaheed’? A. Yes. … Q. Can you describe from your experience, working as an undercover and working within the Muslim community, what this term meant? A. In my experience, ‘Shaheed’ was, basically, the blessings that you would get if you lived a proper Muslim life and went out as a martyr, died as a martyr.” Trial Transcript, vol. 2, pp. 265-67, United States v. Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010), aff’d, No. 10-2075 (5th Cir. Oct. 25, 2011), cert. denied, 132 S.Ct. 1725 (2012) (No. H-06-421, 2010 Term; renumbered No. 10-2075, 2011 Term; renumbered No. 11-8595, 2012 Term).Also problematic in this case is the fact that the terrorism-related conspiracy charge against Mirza related to sending money to the Taliban, not travelling directly to fight with the Taliban; this conversation does not appear particularly probative of the conspiracy charge of sending money.

[360] Ibid.

[361]The word “Shaheed” comes from the root word “Shahadat,” which means testimony or witness. A core tenet of Islam is the Shahada, in which Muslims bear witness to the oneness of God and the finality of Muhammed’s prophecy. A Shaheed is any individual who dies as a witness to his or her faith. While it does apply to someone who dies fighting defending Islam, the term Shaheed can also refer to someone who dies as a sacrifice for the well-being of others, or someone persecuted for religious reasons.

[362] See, e.g., Human Rights Watch interview with Ali Sadiqi, Falls Church, Virginia, July 18, 2012 (“Americans often use it as ‘okay, okay.’ They’ve just learned an Arabic word, so they use it a lot, but it doesn’t necessarily mean anything.”) Sadiqi filed an expert report in Bujol’s sentencing case. Report of Expert Witness Mawhabahullah Ali Sadiqi, Esq., United States v. Bujol, No. 4:10-cr-00368 (S.D.Tex. June 1, 2012),aff’d per curiam, No. 12-20393 (5th Cir. June 12, 2013) (No. 4:10-CR-368-1, 2012 Term; renumbered No. 12-20393, 2013 Term).

[363] Ibid., p. 10 (fn 8), 23.

[364] Matin Siraj, “Accounting for Many Wrongs,” p. 6.

[365] Ibid.

[366] Shamshad Ahmad, Rounded Up: Artificial Terrorists and Muslim Entrapment After 9/11, (New York: Troy Book Makers), p. 137. “It was in this information where the government had previously mistakenly translated a word (‘kak’) which meant ‘brother’ as ‘commander,’ and tried to use the mistranslation to justify jailing Mr. Aref until trial.” Reply Brief for Appellant Yassin Aref at 20, United States v. Aref, 285 Fed.Appx. 784 (2d. Cir. 2008), aff’g No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[367] Columbia Law School’s Human Rights Institute email correspondence with Yassin Aref, July 3, 2012.

[368] Columbia Law School’s Human Rights Institute email correspondence with Yassin Aref, June 27, 2012.

[369] Audio Recording of Oral Argument, July 30, 2013, United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) (No. 12-1461), petition for cert. filed, No. 13-1125 (U.S. Mar. 17, 2014), available at http://media.ca1.uscourts.gov/files/audio/12-1461.mp3.

[370] Ibid.

[371] Tony Graham, “Jurors see videos taken from defendants, some appear to be pained,” Philadelphia Inquirer, October 23, 2008, http://articles.philly.com/2008-10-23/news/25264414_1_video-fort-dix-shain-duke (accessed June 25, 2014). A more graphic description followed:

Much of the content played like a jihadist version of MTV or Grand Theft Auto, with fast-cut action, screeching soundtracks, and heavy use of cartoonish graphics to accompany fetishistic violence. In addition to the surreptitiously shot sniper footage, prosecutors played a video tribute to Osama bin Laden, made with the same aesthetics. There also was video of roadside bomb attacks on US military Humvees and other vehicles in Iraq. In one, off-camera bombers shout, "Alla Akbar," which means "God is great," as they detonate the explosives. Another lengthy video depicted jihadist fighters setting up mortars and engaging in a nighttime fire fight.

[372] Letter from Shain Duka to Columbia Law School’s Human Rights Institute, August 17, 2012 (on file with Columbia Law School’s Human Rights Institute).

[373] Troy Graham, “Fort Dix Juror: ‘They were going to do it,’” Philadelphia Inquirer, January 25, 2009, http://articles.philly.com/2009-01-25/news/25280685_1_juror-fort-dix-split-verdict (accessed June 25, 2014). (“Juror No. 3 has a son who served two tours with the Marines in Iraq, where he was wounded by shrapnel and received the Purple Heart and Bronze Star. One video in particular, called Baghdad Sniper, was difficult for her to watch, she said. In one scene, a sniper shoots an American serviceman in the back, the same place her son was wounded. "I thought I was seeing my son getting hit," she said. Despite the gruesome footage, she said, the jurors kept their emotions from affecting their judgment. "These men on trial did not do these things," she said. "They exposed themselves to that material.”).

[374] David Kocieniewski, “6 Men Arrested in Terror Plot Against Fort Dix,” New York Times, June 6, 2013, http://www.nytimes.com/2007/05/09/us/09plot.html?pagewanted=printand_r=0 (accessed July 6, 2013).

[375] Appellants’ Joint Opening Brief and Joint Appendix Vol. I (Pages 1 -26) at 72, United States v. Duka, 671 F.3d 329, (3rd Circ. 2011) (nos. 09-2282, 09-2299, 09-2300, 09-2301, 092302), cert denied, 132 S.Ct. 2754 (2012).

[376] Under ICCPR, art. 14(3)(g), a defendant has the right not to be compelled to testify against himself.

[377]“The government is not accusing Mr. Sedaghaty for being a terrorist,” prosecutor Christopher Cardani said in his opening statement to the jury. “No terrorism charges. Tax count and a conspiracy count. There will be lots of evidence related to the whole atmosphere of violent events overseas but there are no terrorism charges.” Transcript of Aug. 30, 2010 Trial Proceedings at 6, United States v. Sedaghty, No. 05-60008-HO, 2011 WL 356315 (D. Or. Aug. 10, 2011), aff’d in part, rev’d in part, 728 F.3d 885 (9th Cir. 2013).

[378]Ibid., pp. 8-9, 25, 29, 32.

[379]Transcript of Trial Proceedings at 38-40, Sedaughty, No. 05-60008-HO, 2011 WL 356315.

[380] Many of the documents were excluded because they had been in Seda’s possession or found on computers used by one of his employees. District Court Judge Michael Hogan concluded that Seda would have to testify and lay a foundation demonstrating he had knowledge of the documents in order for them to be admitted. Appellant’s Opening Brief at 45, Sedaughty, No. 05-60008-HO, 2011 WL 356315. Transcript of Pretrial Proceedings at 93, Sedaghty, No. 05-60008-HO, 2011 WL 356315.

[381]The US Attorney for Oregon said in a press release, “The jury’s verdict demonstrates once again the critical role—and effectiveness—of civilian criminal courts in the battle against terrorism.” “Defendant Convicted of Lying About Funds Bound for Religious Extremist Militants Federal Jury Convicts Leader of Al-Haramain Islamic Foundation of Two Felonies,” US Department of Justice, Federal Bureau of Investigation press release, September 10, 2010, http://www.fbi.gov/portland/press-releases/2010/pd091010.htm (accessed June 25, 2014).

[382] Human Rights Watch interview with Tom Nelson, Portland, Oregon, August 13, 2012.

[383] United States v. Sedaghty, 728 F.3d 885 (9th Cir. 2013), aff’g in part and rev’g in part No. 05-60008-HO, 2011 WL 356315 (D. Or. Aug. 10, 2011).

[384] Ibid., p. 891.

[385] Ibid. At time of writing a new trial date has not been set.

[386] Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 15, United States v. Yasrebi, No. 05-CR-004130-KI (D. Or. Mar. 6, 2012).

[387] Ibid., pp. 6-7.

[388] Office of Foreign Assets Control License Determination, Referral #02-102-08, June 17, 2002 (on file with Human Rights Watch).

[389] Yasrebi’s defence memorandum explains: “[T]he government used FISA wiretaps to listen in on a voluminous number of telephone calls involving Dr. Yasrebi and others. On multiple occasions, the government also intercepted mail, faxes, and other communications to or from CF [Child Foundation], Dr. Yasrebi, and others. And in the middle of the night on December 10, 2006, government agents covertly entered CF’s offices, copied seven computer hard drives, rifled through CF’s files, photographed numerous documents, and left without leaving a trace that they had ever been there.” Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 12, Yasrebi, No. 05-CR-004130-KI.

[390] Ibid., pp. 81-82.

[391] Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 15, United States v. Yasrebi, No. 05-CR-004130-KI (D. Or. Mar. 6, 2012).

[392] Ibid., p. 97.

[393] Human Rights Watch telephone interview with David Angeli, December 18, 2012.

[394] Ibid.

[395] Ibid.; Defendants’ Amended Joint Motion to Compel Discovery, United States v. Holy Land Found., 722 F.3d 677 (5th Cir. 2013) (No. 3:04-CR-0240-P) (“At trial, defense witness Edward Abington, the former United States Consul General in Jerusalem, testified that he received regular briefings from CIA briefers with access to a wide range of intelligence and that he was never told that the zakat committees were part of, or controlled by, Hamas.”) (citing Transcript of Record vol. 25 at 93-98, Holy Land Found., 722 F.3d 677 (No. 3:04-CR-0240-P)).

[396] “Defense’s Turn in Muslim Charity’s Terror Trial: Ex-State Department official questions reliability of Israeli intelligence,” Associated Press, September 5, 2007, http://www.nbcnews.com/id/20606489/ns/us_news-giving/t/defenses-turn-muslim-charitys-terror-trial/ (accessed June 25, 2014); Jordan Hirsch, “Deception and Discord in Dallas: The Undoing of a Flagship Anti-Terrorism Case,” Current, Spring 2008, http://www.columbia.edu/cu/current/articles/spring2008a/deception-discord.html (accessed June 25, 2014).

[397] Human Rights Watch interview with Ed Abington, Ottawa, Canada, August 22, 2012.

[398] Ibid.

[399] Brief for Petitioner-Appellant Ghassan Elashi (with Common Issues) at 61-71, United States v. El-Mezain, 664 F.3d 467 (5th Cir. Dec. 7, 2011, revised Dec. 27, 2011) (Nos. 09-10560, 08-10664, 08-10774, 10-10590 and 10-10586), cert. denied, 133 S.Ct. 525 (2012).

[400] Flashpoint Partners, “Court Testimony – United States”, undated, http://69-195-107-79.unifiedlayer.com/consulting.php (accessed June 25, 2014).

[401] Transcript of Proceedings, Dec. 6, 2011, at 28-7, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2011) (No. 1:09-cr-10017-GAO). (Testimony of Evan Kohlmann: Q. “And you indicated earlier that you’ve never been to Yemen and you also don’t speak Arabic, correct? A. I don’t speak Arabic fluently.”). But see, Transcript of Daubert Proceedings, Aug. 16, 2011, at 54, United States v. Sherifi, 793 F. Supp. 2d 751 (D.N.C. 2011) (No. 5:09-CR-216-FL). (Testimony of Evan Kohlmann: “Q: You, yourself, which languages do you speak? A: I speak fluently English and French, and I also speak some Arabic.”)

[402] Transcript of Proceedings, Dec. 6, 2011 at 28-59, 60, Mehanna, 669 F. Supp. 2d 160 (No. 1:09-10017-GAO). (Testimony of Evan Kohlmann: “Q. And you’ve indicated that you’ve never done field work in your career in a country where the native language is Arabic. A. That’s correct. Yeah; that’s correct.”)

[403] Transcript of Proceedings, Sept. 27, 2006, at 1166-67, United States v. Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007), aff’d, 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[404] United States v. Aref, 285 Fed.Appx. 784, 792 (2d Cir. 2008), aff’g No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[405] Transcript of Proceedings at 169, United States v. Sedaghty, No. 05-60008-HO, 2011 WL 356315 (D. Or. Aug. 10, 2011), aff’d in part, rev’d in part, 728 F.3d 885 (9th Cir. 2013).

[406] Ibid.

[407] Transcript of Daubert Hearing at 28, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[408] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Evan Kohlmann, New York, December 7, 2012.

[409] Human Rights Watch phone interview with Daphne Silverman, June 6, 2012.

[410] Ibid.

[411] The Confrontation Clause of the Sixth Amendment to the US Constitution requires that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." SeeCrawford v. Washington, 541 US 36 (2005). International law provides for the right to a fair and public hearing, and that the accused has the right “[t]o examine, or have examined, the witnesses against him.” ICCPR, art. 14(3)(e). The UN Human Rights Committee considers the defendant’s right to confront witnesses in the same manner as the prosecution a necessary component of equal access and equality of arms. Equality of arms—equal rights for both the defense and prosecution—“is a key element of human rights protection and serves as a procedural means to safeguard the rule of law.” UN Human Rights Committee, General Comment No. 32, para. 2. The defendant is entitled to examine witnesses in the same manner as the prosecutors. The Human Rights Committee has interpreted this right “to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.” UN Human Rights Committee, General Comment 13, para. 12. While international law requires that trials be public, the ICCPR does permit closure of portions of trial to the public and media for national security reasons (the ICCPR also permits closure of trials for reasons of morals or public order). See ICCPR, art. 14(1). But the provision is about publicity, not the defendant’s right to be informed of all evidence against him.

[412] ICCPR, art. 14(3)(e).

[413]See UN Human Rights Committee, “Consideration of Reports Submitted by State Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Netherlands,” CCPR/CO/72/NET, August 27, 2001, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/443/74/PDF/G0144374.pdf?OpenElement (accessed June 28, 2014), para. 12. The UN Office of the High Commissioner for Human Rights, in its training materials on fair trials states: “Testimony of anonymous victims and witnesses during trial is unlawful, but can in exceptional cases be used in the course of criminal investigations. The identity of anonymous victims and witnesses must be disclosed in sufficient time prior to the beginning of the court proceedings to ensure a fair trial.” United Nations, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, E.02.XIV.3 (New York and Geneva: United Nations Publications, 2003), http://www.ohchr.org/Documents/Publications/training9chapter7en.pdf (accessed June 28, 2014), p. 291. The international criminal tribunals and the European Court of Human Rights have not completely ruled out the use of anonymous witnesses. See, e.g., Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 68(5) (anonymity of a witness where necessary for that witness’s protection may be permitted so long as “[s]uch measures are exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial”); European Court of Human Rights, Krasniki v. the Czech Republic, no. 51277/99, 28 February 2006; European Court of Human Rights, Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996-II.

[414] In the Holy Land Foundation case, defendants claimed they had difficulty adequately challenging a fact witness and an expert witness who testified anonymously. Defendants found it particularly challenging to test the expert’s credentials. See United States v. El-Mezain, 664 F.3d 467 (5th Cir. Dec. 7, 2011, revised Dec. 27, 2011), cert. denied, 133 S.Ct. 525 (2012).

[415] “Oregon Resident Convicted in Plot to Bomb Christmas Tree Lighting Ceremony,” US Department of Justice, Federal Bureau of Investigation press release, January 31, 2013, http://www.fbi.gov/portland/press-releases/2013/oregon-resident-convicted-in-plot-to-bomb-christmas-tree-lighting-ceremony (accessed June 25, 2014).

[416] Helen Jung, “Mohamed Mohamud: Lawyers Seek Documents, Say Warrantless Wiretaps Tainted Trial,”Oregonian, January 13, 2014, http://www.oregonlive.com/portland/index.ssf/2014/01/mohamed_mohamud_lawyers_seek_d.html (accessed June 15, 2014).

[417]In its 2012 annual report to Congress regarding FISA, the Justice Department noted that in that year the FISC reviewed 1,856 government applications “for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.” None of the requests for electronic surveillance were denied (although 40 were subject to unspecified modifications). The annual report to Congress does not make clear whether any requests for physical searches were denied or modified. US Department of Justice, FISA Annual Reports to Congress: 1979 - 2012, http://www.fas.org/irp/agency/doj/fisa/index.html#rept (accessed June 26, 2014).

[418] FISA Amendments Act of 2008, 154 Cong. Rec. H 1707, Title VII Sec. 703(a). Under the statute a US person is defined by the statue as a US citizen, lawful permanent resident, a US corporation, or an unincorporated association with a substantial number of US citizen or permanent resident members. 50 U.S.C. § 1801(i).

[419] See Jennifer Granick, “Reforming The Section 702 Dragnet (Part 1),”  Just Security, January 30, 2014,http://justsecurity.org/2014/01/30/reforming-section-702-dragnet-1/ (accessed June 26, 2014); Jennifer Granick, “Reforming 702: Does NSA Minimize Cloud Files?” Just Security, January 31, 2014,http://justsecurity.org/2014/01/31/reforming-702-nsa-minimize-cloud-files/http://www.emptywheel.net/2013/10/13/the-nsa-refuses-to-reveal-all-the-domestic-content-it-refuses-to-count/

[420] Nicholas J. Whilt, “The Foreign Intelligence Surveillance Act: Protecting the Civil Liberties that Make Defense of Our Nation Worthwhile,” South-western University Law Review, vol. 35 (2006), p. 385.

[421] See generally, Anthony M. Shults, “The ‘Surveil or Kill’ Dilemma: Separation of Powers and the FISA Amendments Act’s Warrant Requirement for Surveillance of U.S. Citizens Abroad,” New York University Law Review, vol. 86, no. 5 (November 2011), pp. 1593-98; Edward C. Liu, “The Reauthorization of the FISA Amendments Act,” Congressional Research Service, http://www.fas.org/sgp/crs/intel/R42725.pdf (accessed June 16, 2014), pp. 1-2.

[422] US Constitution, amendment IV.

[423]Mapp v. Ohio, 367 U.S. 643 (1961).

[424] See generally, Shults, “The ‘Surveil or Kill’ Dilemma,”  New York University Law Review, pp. 1593-98; Liu, “The Reauthorization of the FISA Amendments Act,” Congressional Research Service, http://www.fas.org/sgp/crs/intel/R42725.pdf, pp.1-2.

[425] Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881b(c)(1)(b(ii).

[426] FISA originally required that the collection of foreign intelligence information be “the purpose” of the surveillance, but many courts interpreted that to mean it must be a “primary” purpose. Scott Glick, “FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security,” Harvard National Security Journal, vol. 1 (May 2010), http://harvardnsj.org/wp-content/uploads/2010/05/Vol.1_Glick_Final.pdf(accessed June 26, 2014), p. 104.

[427] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).

[428]See, e.g.,Mayfield v. US, 599 F.3d 964, 968 n.4 (9th Cir. 2010) “Prior to 2001, several federal courts construed FISA to authorize searches and electronic surveillance only when the government’s primary purpose was to collect foreign intelligence information”; In re Sealed Case, 310 F.3d 717 (FISCR 2002) (discussing pre-2001 cases). Following the September 11 attacks, Congress enacted the USA PATRIOT Act, which changed the original statutory language of “the purpose” to “a significant purpose.” Pub. L. No. 107-56, § 218, 115 Stat. 291 (2001) (amending 50 U.S.C. §§ 1804(a)(6)(B) and 1823(a)(6)(B))); Glick, “FISA’s Significant Purpose Requirement,” Harvard National Security Journal, pp. 87, 89-90.

[429]Glick, “FISA’s Significant Purpose Requirement,” Harvard National Security Journal, p. 101; In re Sealed Case, 310 F.3d 717, 735 (FISACR 2002) (“If the certification of the application’s purpose articulates a broader objective than criminal prosecution—such as stopping an ongoing conspiracy—and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct—even foreign intelligence crimes—to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.”).

[430] 50 U.S.C. § 1803 (2006).

[431] James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, December 16, 2005, http://www.nytimes.com/2005/12/16/politics/16program.html (accessed June 26, 2014); see also, Glenn Greenwald, “Obama’s New FBI Chief Approved Bush’s NSA Warrantless Wiretapping Scheme,”Guardian, May 30, 2013, http://www.theguardian.com/commentisfree/2013/may/30/james-comey-fbi-bush-nsa (accessed June 16, 2014).

[432] FISA Amendments Act of 2008, 154 Cong. Rec. H 1707, Title VII Sec. 703(a).

[433] 50 U.S.C. § 1801(e). (“Foreign intelligence information” means--(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against-- (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--(A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States.”)

[434] 50 U.S.C. §1881a(d) and (e) and 50 U.S.C. §1801(h).

[435] Glenn Greenwald and James Ball, “Top Secret Rules That Allow NSA To Use US Data Without a Warrant,”Guardian, June 20, 2013, http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant (accessed June 26, 2014).

[436] Letter from Human Rights Watch to the Privacy and Civil Liberties Oversight Board, “Comments of Human Rights Watch to the Privacy and Civil Liberties Oversight Board (PCLOB),” August 1, 2013, http://www.hrw.org/sites/default/files/related_material/Comment%20HRW%20PCLOB%20Final%208-1-13_0.pdf, p. 5; “Strengthening Privacy Rights and National Security Oversight of FISA Surveillance Programs,” testimony of Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union, and Lara W. Murphy, Director, Washington Legislative Office, American Civil Liberties Union, before the Senate Judiciary Committee, Washington, DC, July 31, 2013, pp. 8-15, https://www.aclu.org/files/assets/testimony.sjc_.073113.final_.pdf (accessed June 26, 2014); Charlie Savage, “N.S.A. Said to Search Content of Messages to and From U.S.,”New York Times, August 8, 2013, http://www.nytimes.com/2013/08/08/us/broader-sifting-of-data-abroad-is-seen-by-nsa.html?hpand_r=0 (accessed June 26, 2014).

[437] See generally, 50 U.S.C. § 1881a.

[438] Specifically, this applies when the government plans to use the information against an “aggrieved person” —defined as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k).

[439] 50 U.S.C. § 1806(c).

[440] Ibid.

[441] The US also collects foreign intelligence information under Executive Order No. 12333, which defines foreign intelligence information even more broadly to allow for the collection of information merely about the “capabilities, intentions, or activities of … foreign persons.” Executive Order No. 12333, sec. 3.5(e), “United States Intelligence Activities,” signed December 4, 1981; See also, “Presidential Policy Directive – Signals Intelligence Activities,” White House press release, January 17, 2014, http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities (accessed June 26, 2014). Little is known about how information collected under that order is used in criminal cases. The scope and scale of surveillance taking place under Executive Order 12333 is at the discretion of the president and thus subject to even less oversight than that taking place under traditional FISA or the FAA. Ali Watkins, “Most of NSA’s Data Collection Authorized by Order Ronald Reagan Issued,” McClatchy, November 21, 2013, http://www.mcclatchydc.com/2013/11/21/209167/most-of-nsas-data-collection-authorized.html (accessed June 26, 2014); See also, Mark M. Jaycox, “Three Leaks, Three Weeks, and What We’ve Learned About the US Government’s Other Spying Authority: Executive Order 12333,” post to “Deeplinks Blog” (blog), Electronic Fronteir Foundation, November 5, 2013, https://www.eff.org/deeplinks/2013/10/three-leaks-three-weeks-and-what-weve-learned-about-governments-other-spying (accessed June 26, 2014). In July 2014, The Intercept reported that documents obtained by Snowden indicated previous FISA surveillance of at least five US-persons, who were never prosecuted. All five were prominent American Muslims, including the co-founder of the Council on American-Islamic Relations, Nihad Awad. Gleen Greenwald and Murtaza Hussain, “Meet the Muslim-American Leaders the FBI and NSA Have Been Spying On,” Intercept, July 9, 2014, https://firstlook.org/theintercept/ (accessed July 11, 2014)

[442] The use restrictions announced pertained only to continued “bulk” collection.

[443] “Transcript of President Obama’s January 17 Speech on NSA Reforms,” Washington Post, January 17, 2014, http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html (accessed June 26, 2014); “Presidential Policy Directive – Signals Intelligence Activities,” White House press release, January 17, 2014, http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities (accessed June 30, 2014).

[444] Ibid., section II, note 5. The “use restrictions” are themselves quite general, namely, that use should be for a permissible general purpose such as countering various types of security threats, rather than for an obviously impermissible purpose, such as discrimination.

[445] 50 U.S.C. § 1806(e).

[446] 50 U.S.C. § 1806(c).

[447] 50 U.S.C. § 1806(f).

[448] Ibid.

[449] The attorney general is required to provide the same notice of intent to use information obtained pursuant to the FAA as for information obtained pursuant to FISA. 50 U.S.C. § 1881(e).

[450] In July 2013, FBI Deputy Director Sean Joyce publicly described warrantless surveillance of Basaaly Moalin, five months after he and his co-defendants had been convicted of conspiracy and material support for terrorism, among other offenses. Moalin’s defense attorney had sought information about warrantless surveillance, but his motions had been denied. After Joyce’s statement, the defense filed a motion for a new trial, raising, among other things, the constitutionality of warrantless surveillance. The defense motion for a new trial was denied. See United States v. Moalin, No. 10-cr-4246 JM, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013), amending and superseding No. 10-cr-4246 JM, 2013 WL 6055330 (S.D. Cal. Nov. 14, 2012).

[451] Charlie Savage, “Door May Open For Challenge To Secret Wiretaps,” New York Times, October 16, 2013, http://mobile.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-wiretaps.html (accessed June 26, 2014).

[452] Government’s Response to Defendant’s Motion for Full Discovery Regarding Surveillance, United States v. Mohamud, No. 3:10-CR-00475-KI, 2012 WL 5208173 (D. Or. Oct. 22, 2012); see also, Government’s Response to Defendants’ Motion for Reconsideration of the Court’s Order Granting In Camera, Ex Parte Hearing, United States v. Qazi, No. 12-60298-CR-Sc01a, 2012 WL 7050588 (S.D. Fla. Dec. 19, 2012). In providing supplemental notice following Mohamud’s conviction, the government noted that it had determined “that information obtained or derived from Title I FISA collection may, in particular cases, also be derived from prior Title VII FISA collection.” Government’s Supplemental FISA Notification, Mohamud, No. 3:10-CR-00375-KI, 2012 WL 5208173.

[453] It is not clear how many of these cases may also have relied on information obtained pursuant to the FAA.John Shiffman, Kristina Cooke and Mark Hosenball, “Insight: FBI relies on secret US surveillance law, records show,” Reuters, June 18, 2013, http://www.reuters.com/article/2013/06/18/us-usa-security-fisa-insight-idUSBRE95H03220130618 (accessed June 28, 2014).

[454] John Shiffman, Kristina Cooke, and Mark Hosenball, “FBI Secrets: Feds Reportedly Used Secret Evidence Obtained Under Secret Surveillance Law to Prosecute Accused Terrorists,” Huffington Post, June 18, 2013, http://www.huffingtonpost.com/2013/06/18/fbi-secrets_n_3457258.html (accessed June 28, 2013).

[455] “Fourteen Charged with Providing Material Support to Somalia-Based Terrorist Organization Al-Shabaab: Two Arrested in Minnesota in Connection with the Charges,” US Department of Justice press release, August 10, 2010, http://www.justice.gov/opa/pr/2010/August/10-ag-898.html

[456] Human Rights Watch interview with Dan Scott, Minneapolis, Minnesota, July 24, 2012.

[457] Government’s Redacted Memorandum in Opposition to Defendants’ Motions to Suppress FISA-Derived Evidence and Motions for Disclosure of FISA Applications and Orders, United States v. Ali, 822 F. Supp. 2d 916 (D. Minn. 2011) (No. 10-CR-187 MJD/JSM), aff’d in part, vacated in part, 682 F.3d 705 (8th Cir. 2012).

[458] Human Rights Watch interview with Jeanne Cooney, Minneapolis, Minnesota, July 26, 2012; Human Rights Watch interview with members of the Somali-American community, Minneapolis, Minnesota, July 26, 2012.

[459] Human Rights Watch interview with David Angeli, Portland, Oregon, August 16, 2012. See also, Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 12, fn 6, United States v. Yasrebi, No. 05-cr-00413-KI (D. Or. Mar. 6, 2012) (“Defense counsel has not been permitted to see the FISA application materials, but given that the FISA order was issued, the government apparently claimed to a FISA court that the requirements for such an order—including, for example, that ‘the target of the electronic surveillance [was] a foreign power or an agent of a foreign power,’ and that ‘a significant purpose of the surveillance [was] to obtain foreign intelligence information’ that ‘[could not] reasonably be obtained by normal investigative techniques,’ 50 U.S.C. § 1804(a)(3)(A), (6)(B)- (C)—were satisfied. Generally speaking, an ‘agent of a foreign power’ is defined as a person who engages in intelligence-gathering or acts of terrorism on behalf of a foreign power. See  18 U.S.C. § 1801(b). Defense counsel is unaware of any evidence even suggesting that Dr. Yasrebi ever engaged in either of those activities.”)

[460]“FBI investigations and federal grand jury probes focusing on Hamas financing began to proliferate around the country; all were directly related to Salah’s statements made to the Shin Bet under torture. Indeed, the tentacles of almost every known Hamas-related investigation or prosecution in the United States, including the case against the Holy Land Foundation (the largest Muslim charity in the United States), lead back to Salah’s coerced confession.” Michael E. Deutsch and Erica Thompson, “Secrets and Lies: The Persecution of Muhammad Salah (Part I),” Journal of Palestine Studies, vol. 37, no. 4 (Summer 2008), p. 15.

[461] The initial electronic surveillance was authorized before amendments to FISA permitting physical searches as well; the FBI did search Ashqar’s house in December 1993, though they did so pursuant to Executive Order 12,333, which permitted certain intelligence activities in accordance with Attorney General guidelines. United States v. Marzook, 435 F. Supp. 2d 778, 787 (N.D. Ill. 2006).

[462] Defendant Ashqar’s Motion to Suppress the December 26, 2003 Warrantless Break-In and Search of His Residence at 7 Rubin Dr., Oxford, Mississippi at 2, Marzook, 435 F. Supp. 2d 778 (No. 03 CR 0978).

[463] See, e.g., Transcript of Oral Argument, vol. 35 at 47, United States v. Holy Land Found., 722 F.3d 677 (5th Cir. 2013) (No. 3:04-CR-0240-P).

[464] United States v. El-Mezain, 664 F.3d 467 (5th Cir. Dec. 7, 2011, revised Dec. 27, 2011), cert. denied, 133 S.Ct. 525 (2012).

[465] Protected Order for Classified Materials at 2-9, United States v. Shnewer, No. 1:07-cr-00459 -RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302). Federal Judicial Center, “National Security Case Studies:Special Case-Management Challenges,” June 25, 2013, http://www.fjc.gov/public/pdf.nsf/lookup/TS130625.pdf/$file/TS130625.pdf (accessed June 29, 2014), pp. 223-224, (citing Robert T. Reagan interview with Hon. Robert B. Kugler, December 15, 2009).

[466] Federal Judicial Center, “National Security Case Studies,” http://www.fjc.gov/public/pdf.nsf/lookup/TS130625.pdf/$file/TS130625.pdf, p. 224, (citing Robert T. Reagan interview with Hon. Robert B. Kugler, December 15, 2009).

[467] United States v. Duka, 671 F.3d 329, 337-38 (3d Cir. 2011), cert denied, 132 S.Ct. 2754 (2012).

[468] Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1192 (9th Cir. 2007), rev’g 451 F. Supp. 2d 1215 (D. Or. 2006).

[469]In re Nat’l Sec. Agency Telecommc’n Records Litig. v. Obama, 700 F. Supp. 2d 1182 (N.D. Cal. 2010).

[470] Order, In re Nat’l Sec. Agency Telecommc’n Records Litig., 700 F. Supp. 2d 1182 (No. 3:07-cv-109).

[471]Al-Haramain Islamic Found., Inc., 705 F.3d 845, 848.

[472] Jon Eisenberg, “Finding Success in the Absence of Victory,” Islam Daily, January 6, 2013, http://www.islamdaily.org/en/charities/11518.article.htm (accessed June 24, 2014).

[473] Robert T. Reagan, National Security Case Management: An Annotated Guide (Washington, DC: Federal Judicial Center, 2011), http://www.fjc.gov/public/pdf.nsf/lookup/TSGuid01.pdf/$file/TSGuid01.pdf (accessed June 29, 2014), p.3.

[474] Richard P. Salgado, “Government Secrets Fair Trials, and the Classified Information Procedures Act,”Yale Law Journal, vol. 98 (December 1988), p.427.

[475] Ibid., p. 4.

[476] 18 U.S.C. app. 3 §§ 5(a)(6)(b).

[477] 18 U.S.C app. 3 § 4.

[478] Ibid.

[479] 18 U.S.C app. 3 § 3.

[480] 18 U.S.C app. 3 § 6(c).

[481] 18 U.S.C app. 3 § 6(e).

[482] 18 U.S.C app. 3 § 6(c)(1). Classified evidence may not be shown to the jury but withheld from the defendant. “The district court’s admission of the classified versions of the documents as evidence for consideration by the jury without disclosing the same versions to Abu Ali . . . was clearly contrary to the rights guaranteed to Abu Ali by the Confrontation Clause.” US v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008).

[483] See, for example, Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New Global Detention System (New York: NYU Press, 2011), p. 224. “To help facilitate this review, courts have ordered disclosure only to members of the defense team with a security clearance and barred the defendant himself from seeing the information. This ‘cleared counsel’ solution, however, presents a problem from a defense perspective. It prevents a defendant from helping his lawyer assess the relevance of materials, thus impairing a defendant’s constitutional right to the effective assistance of counsel. It also can jeopardize a defendant’s constitutional right to self-representation, since defendants typically lack the security clearance necessary to review classified information themselves. Furthermore, judges can evaluate the relevance of materials requested in discovery ex parte, considering arguments by the government but excluding the defendant and his counsel from participating.” See also, Ellen Yaroshefsky, “Secret Evidence Is Slowly Eroding the Adversary System: CIPA and FISA in the Courts,” Hofstra Law Review, vol. 34 (2006), p. 1067.

[484] Human Rights Watch interview with District Judge John Tunheim, Minneapolis, Minnesota, July 23, 2012. Judge Tunheim previously had significant exposure to classified information, as he served as the chair of the US Assassination Records Review Board, an independent federal agency in charge of declassifying the government records on the assassination of John F. Kennedy, from 1994-98. Tunheim is the current chair of the US Judicial Conference Committee on Court Administration and Case Management. His experience presiding over cases involving CIPA prompted him to consider proposing revisions; in particular, he believes judges should be able to review classified material electronically.

[485] Federal Judicial Center, “National Security Case Studies,” http://www.fjc.gov/public/pdf.nsf/lookup/TS130625.pdf/$file/TS130625.pdf, p. 254.

[486] The government denied one of the defense attorneys security clearance, while the other attorney did not apply. Columbia Law School’s Human Rights Institute phone interview with Nina Ginsbert, September 27, 2012.

[487] Ibid.

[488] In September 2006, then-president Bush announced that Khalid Sheikh Mohammed and 13 other “high-value” detainees had been transferred to Guantanamo Bay from overseas detention facilities run by the CIA. Khan and al Baluchi were among them. “President Bush’s Speech on Terrorism,” New York Times, September 6, 2006, http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=alland_r=0 (accessed June 26, 2014).

[489] Opinion at 22, United States v. Paracha, No. 1:03-cr-01197-SHS (S.D.N.Y. Jan. 3, 2006), aff’d, 313 Fed.Appx. 347 (2d Cir. 2008).

[490] Ibid., p. 27.

[491] See, e.g., International Committee of the Red Cross, “ICRC Report on the treatment of Fourteen ‘High Value’ Detainees in CIA Custody,” February 2007, http://assets.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (accessed July 12, 2014).

[492] United States v. Sedaghty, 728 F.3d 885, 905 (9th Cir. 2013), aff’g in part and rev’g in part No. 05-60008-HO, 2011 WL 356315 (D. Or. Aug. 10, 2011).

[493] Ibid., p. 906.

[494] Human Rights Watch interview with Richard Anderson, Dallas, Texas, June 26, 2012. The 86-question survey included categories of questions covering “Knowledge, Experience, and Beliefs about Arabic, the Middle East, and Islam” in additional to the usual biographical questions, and questions about military experience. United States S v. Smadi, Jury Questionnaire, on file with Human Rights Watch. It also asked, “What three people do you admire the most? The least?”

[495] We discuss post-conviction solitary confinement in section VI.

[496] The European Committee on the Prevention of Torture has emphasized that pretrial solitary should only be imposed “where there is direct evidence in an individual case that there is a serious risk to the administration of justice if the prisoner concerned associates with particular inmates or others in general” and that it should be subject to judicial review on a “frequent” basis. See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “The CPT Standards, Substantive Sections of the CPT’s General Reports,” CPT/Inf/E (2002) 1-Rev. 2004, http://www.cpt.coe.int/en/documents/eng-standards-prn.pdf (accessed June 29, 2014), para. 57(a).

[497] For a list, see charts in Appendix.

[498] Solitary confinement in US prisons is imposed for different reasons, but most commonly it is used as punishment for breaches of discipline (“disciplinary segregation”) or to manage prisoners considered to be particularly difficult or dangerous (“administrative segregation”). Corrections officials prefer to use terms such as “segregation” rather than solitary confinement. We consider the terms interchangeable since both refer to 22 to 24 hours a day in cell confinement.

[499] Hashmi was held at MCC 10-South from May 25, 2007 to on or around April 27, 2010 when he pleaded guilty to one count of material support of terrorism—t hat is, for at least three years, ten months, and 20 days. United States v. Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010); Letter in Response to Defendant’s Motion to Modify Pretrial Confinement Conditions, Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[500] Email from Juan Mendez to Jeanne Theoharris, January 2014.

[501] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Mendez, Observations or communications transmitted to Governments and replies received, A/HRC/22/53/Add.4, March 4, 2013, http://unispal.un.org/UNISPAL.NSF/0/D16F0D0004E40FD985257B33005CD747 (accessed June 29, 2014), para. 179.

[502] Bujol was held in pretrial solitary confinement at the Federal Detention Center FDC Houston between an October 2010 court hearing and his sentencing in May 2012. Human Rights Watch phone interview with lawyer involved in the Bujol case (name withheld), June 21, 2012.

[503] Human Rights Watch phone interview with Daphne Silverman, Bujol’s defense attorney at sentencing, June 6, 2012.

[504] Barry W. Bujol, Jr., Dungeon in the Sky, unpublished document on file with Human Rights Watch, p. 1, 2012,

[505] Human Rights Watch email correspondence with Adnan Mirza, February 25, 2013.

[506] Columbia Law School’s Human Rights Institute phone interview with Jay Carney, October 18, 2012.

[507] Warsame was originally held as a material witness but, after he refused to cooperate with the government, he was indicted on material support charges. Position of Defendant with Respect to Sentencing at 1, 7, United States v. Warsame, No. 0:04-cr-00029-JRT-FLM, 2009 WL 2173047 (D. Minn. filed July 2, 2009).

[508] Human Rights Watch interview with Dan Scott, Minneapolis, Minnesota, July 24, 2012.

[509] Response to Government’s Motion to Vacate Order Re: Conditions of Detention and Request For Stay,Warsame,No. 0:04-cr-00029, 2007 WL 5827586.

[510] Human Rights Watch interview with District Judge John R. Tunheim, July 24, 2012.

[511] Laura Rovner and Jeanne Theoharis, “Preferring Order to Justice,” American University Law Review, vol. 61 (2012), http://www.aulawreview.org/pdfs/61/61-5/Rovner-Theoharis.website.pdf (accessed June 26, 2014).

[512] Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch).

[513] See Bureau of Prisons Program Statement, “Special Housing Units,” no. 5270.10, July 29, 2011, http://www.bop.gov/policy/progstat/5270_010.pdf (accessed June 26, 2014).

[514] Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September,11 Detainees, vol. 14, no. 4(G), August 2002, http://www.hrw.org/reports/2002/us911/USA0802.pdf, pp. 67-84; Human Rights Watch, Witness to Abuse, pp. 41-44.

[515] Letter from Tarik Shah to Kalimah Jenkins (undated).

[516] Ibid.

[517] Letter from Uzair Paracha to Human Rights Watch, December 26, 2012.

[518] Ibid. Attorneys for Fahad Hashmi and Oussama Kassir also described mistreatment at MCC 10-South, including denial of access to out-of-cell exercise and denial of phone calls to family for fabricated or exaggerated infractions. See Columbia Law School’s Human Rights Institute interview with Pardiss Kebriaei, appellate attorney for Fahad Hashmi, January 28, 2012; Amnesty International, “USA: Open Letter to Eric H. Holder, Attorney General: Special Housing Unit in the Metropolitan Correctional Center, New York,” February 11, 2011, http://www.amnesty.org/en/library/asset/AMR51/029/2011/en/90d2f93d-4e88-46cc-b4c3-f84da8e0e681/amr510292011en.html (accessed June 27, 2014). They and other MCC 10-South prisoners have challenged their conditions of confinement, including those related to SAMs: United States v. Basciano, 763 F. Supp. 2d 303 (E.D.N.Y. 2011) (ordering defendant’s release from administrative detention in 10 South); United States v. Bout, 860 F. Supp. 2d 303 (E.D.N.Y. 2012) (granting defendant’s request to be transferred to general population after 15 months in 10 South); United States v. Ghailani, 751 F. Supp. 2d 502 (S.D.N.Y. 2010) (considering defendant’s request to stop body cavity searches at 10 South as a prerequisite to his attendance at court appearances); Motion for Modification of Pre-trial Conditions, United States v. Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010); United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000), aff’g No. 1:98-cr-01023-LAK (S.D.N.Y. Jan. 13, 2000) (affirming denial of El Hajj’s application for substantial modification of his SAMs on the basis of conditions of confinement).

[519] Human Rights Watch interview with Shain Duka, Florence, Colorado, July 18, 2012

[520] Human Rights Watch interview with Ahmed Bilal, Portland, Oregon August 15, 2012.

[521] Ibid. Individuals held in SHUs as “special interest” detainees or under the material witness statute have reported similar physical and verbal abuse by guards. Human Rights Watch, Presumption of Guilt, pp. 73-75; Human Rights Watch, Witness to Abuse, pp. 43-44.

[522] Al-Arian was a professor of computer engineering at the University of Southern Florida who was indicted in February 2003 on charges of supporting Palestinian Islamic Jihad (PIJ), designated as a foreign terrorist organization, through an elaborate network of front organizations including schools and charitable organizations across the United States. Al-Arian was acquitted of several charges but prosecuted later for criminal contempt. In June 2014, the Justice Department dropped the contempt charge.

[523] Columbia Law School’s Human Rights Institute interview with (name withheld), September 20, 2012; Amnesty International, “Amnesty International raises concern about prison conditions of Dr Sami Al-Arian,” July 30, 2003, http://www.amnesty.org/fr/library/asset/AMR51/110/2003/en/64d81573-d6aa-11dd-ab95-a13b602c0642/amr511102003en.pdf (accessed June 27, 2014).

[524] Robyn E. Blumner, “For some defendants, an American gulag,” St. Petersburg Times, March 14, 2003, http://www.sptimes.com/2004/03/14/Columns/For_some_defendants__.shtml (accessed June 27, 2014).

[525]See Joshua L. Dratel, “Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case,” Cardozo Public Law, Policy and Ethics Journal, vol. 2, iss. 1 (Fall 2003), pp. 81, 84-85.

[526] See European Court of Human Rights, Babar Ahmad and Others v. the U.K. (dec.), nos. 24027/07, 11949/08 and 36742/08, § 85, 6 July 2010.

[527] See Letter from Susan Lee, Programs Director, Americas Regional Program, Amnesty International, to Eric Holder, Attorney General, US Department of Justice, “RE: Special Housing Unit in the Metropolitan Correctional Centre,” February 16, 2011, http://www.amnesty.org/en/library/asset/AMR51/028/2011/en/c175ece2-d33a-4db9-a577-039ed17c5fb4/amr510292011en.pdf (accessed June 28, 2014).

[528] See ECHR, Babar Ahmad and Others v. the U.K. (dec.), nos. 24027/07, 11949/08 and 36742/08, § 85, 6 July 2010.

[529] For a description of his conditions, see section IV.

[530] Human Rights Watch phone interview with Marc DeMarco, May 17, 2012.

[531] United States v. Kassir, No. 1:04-cr-00356-JFK, 2008 WL 2695307 (S.D.N.Y. July 8, 2009).

[532] Ibid.

[533] Aref was detained at Raybrook pretrial in solitary confinement for nearly a month. After conviction but before his sentencing, he was held in solitary confinement for 17 months, according to his attorneys. Columbia Law School’s Human Rights Institute email correspondence with Kathy Manley, October 18, 2012.

[534] See Columbia Law School’s Human Rights Institute group interview with Kathy Manley, Stephen Downs and Lynne Jackson, Albany, New York, June 20, 2012.

[535] His lengthy time in the SHU was imposed as administrative segregation, and was not for disciplinary reasons. Defendant’s Objections to the Presentence Investigation Report, Position Paper, Commentary on Sentencing Factors, and Response to the Government’s Sentencing Memorandum, United States v. Khan, No. 1:10-cr-00240-1 (N.D. Ill. June 8, 2012) (copy on file with Columbia Law School’s Human Rights Institute).

[536] Ibid.

[537] Columbia Law School’s Human Rights Institute interview with Waseem Sarwar, Chicago, Illinois, October 8, 2012.

[538] Defendant’s Objections to the Presentence Investigation Report, Position Paper, Commentary on Sentencing Factors, and Response to the Government’s Sentencing Memorandum, Khan, No. 1:10-cr-00240-1 (N.D. Ill. June 8, 2012) (copy on file with Columbia Law School’s Human Rights Institute).

[539] Presentence Investigation Report at 13, Khan, No. 1:10-cr-00240-1 (N.D. Ill. June 8, 2012).

[540] Ibid., p. 16.

[541] Columbia Law School’s Human Rights Institute interview with Fatima Sarwar, Chicago, Illinois, October 8, 2012.

[542] Ibid.

[543] Letter from Uzair Paracha to Human Rights Watch, December 26, 2012.

[544] While Paracha has sought SAMs memos concerning this period of confinement through Freedom of Information Act requests, he has not received them. However, his SAMs extension memo describes the origin of his SAMs and ongoing justifications. See Memorandum from Matthew W. Friedrich, Acting Assistant Attorney General, to Harley G. Lappin, director, Bureau of Prisons, “Extension of Special Administrative Measures (SAM) Pursuant to 28C.F.R. § 501.3 for Federal Prisoner Uzair Paracha” (SAMs extension memo), November 24, 2008; Letter from Uzair Paracha to Human Rights Watch, June 26, 2013.

[545] Human Rights Watch email correspondence with Uzair Paracha, August 29, 2012.

URL of Part 6: http://www.newageislam.com/books-and-documents/human-rights-watch/illusion-of-justice--human-rights-abuses-in-us-terrorism-prosecutions---part-6/d/98510

URL: http://www.newageislam.com/books-and-documents/human-rights-watch/illusion-of-justice--human-rights-abuses-in-us-terrorism-prosecutions---part-7/d/98528

 

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