Letter to AG Mukasey Regarding Special Administrative Measures on Syed Fahad Hashmi
Sayed
Fahad Hashmi, a 28 year-old American of Pakistani decent who was raised in
Queens, a borough of
Download a copy of the letter here.
Attorney
General Michael B. Mukasey
US
Department of Justice
950
Re:
Reimposition of Special Administrative Measures on Syed Fahad Hashmi, #60011-054
Dear
Attorney General Mukasey,
The
Brennan Center for Justice, an organization committed to both individual rights
and a safe and free America, is gravely concerned about the Special
Administrative Measures (“SAMs”) imposed on Syed Fahad Hashmi and the prospect
of their renewal for another calendar year.
We ask that you decline to extend the SAMs beyond their current
expiration date of October 29, 2008, or, at a minimum, that you decline to
extend their most extreme elements, and mitigate them to account for their
effect on Mr. Hashmi.
Mr.
Hashmi was arrested on June 6, 2006, in the United Kingdom, and extradited to
the United States on May 25, 2007, based
on allegations of material support of terrorism. He has been in pre-trial detention now for 28
months. His trial is not scheduled until
the spring of 2009.
During
the last twelve months of his pretrial confinement, Mr. Hashmi has been subject
to a highly restrictive and de facto punitive regime of SAMs.[1] We are concerned that the cumulative
psychological impact of the regulations is so great as to pose a threat to the
mental health of any person.
Mr.
Hashmi, we understand, has been in solitary confinement for the entirety of his
time at the Metropolitan Correctional Center, isolation that the SAMs regime
has both continued and intensified. The
SAMs preclude contact with any visitor except for his attorneys and his
immediate family. Permitted contact is
severely circumscribed and subject to constant surveillance. His interaction with the outside world is
severely limited in other ways. He may
not interact with the media either directly or through a third party, nor may
he listen to television or radio news programs.
Even his newspapers are delivered on a 30-day delay when he is permitted
to receive them at all. In addition to
the restrictions on contact with the world beyond the detention center walls,
Mr. Hashmi is forbidden from communicating, sharing a cell, or worshipping with
fellow inmates. Indeed, the SAMs provide
that he “shall be kept separated from other inmates as much as possible.”
The
net effect of these measures has been to condemn Mr. Hashmi to a year of
solitary confinement. The troubling
consequence of the SAMs is thus extreme isolation with predictable
psychological damage and inappropriately coercive effects.
Experts
and courts alike repeatedly have recognized the devastating effects on an
inmate’s mental health wreaked by extended solitary confinement. Indeed, the evidence that prolonged isolation
can cause severe and irreversible mental harm is overwhelming.[2] Absent a lifting of or mitigation of the
SAMs, Mr. Hashmi’s near-absolute isolation will likely continue for some time
as he continues to await trial for many months yet.
Furthermore,
we are concerned that the harsh measures thus far imposed on Mr. Hashmi’s
pretrial detention may, whether intentionally or inadvertently, have the
practical effect of pressuring him into accepting a plea-bargain to which he
otherwise might not agree. SAMs are
intended to address particularized safety-related concerns. It is highly inappropriate for SAMs to
become, either intentionally or collaterally, a bargaining chip in plea
negotiations because they provide the government with leverage unrelated to the
scope of criminal liability that might be imposed at trial. Further, the SAMs may have the additional
consequence of creating an incentive to plead guilty so as to secure a
post-conviction imprisonment regime that does not include SAMs.[3]
Pursuant
to existing regulations, a renewal of SAMs requires a finding that there
continues to “be a substantial risk that [Mr. Hashmi’s] communications or
contact with others could result in death or serious bodily injury to persons,
or substantial damage to property that would entail the risk of death or
serious bodily injury to persons.”[4] The mere fact a defendant is alleged to have
committed a crime that has terrorism connections, of course, is not and should
not be the basis for such a finding. And
there is a substantial question whether the facts of the offenses of which Mr.
Hashmi alleges bespeak such a risk at all.
It
is vital to recall that our Constitution compels the conclusion that Mr. Hashmi
remains innocent of the allegations leveled against him until proven otherwise,
and must be treated as such. Yet the
SAMs create conditions of confinement that appear nothing if not punitive. Because of the severe nature of the SAMs
imposed on Mr. Hashmi and their likely detrimental effect on his mental health
we encourage you to consider carefully the decision whether their renewal is
truly necessary.
Thank
you for your consideration of our views.
Sincerely,
Aziz Huq
Director, Liberty and National Security
Project
[1] SAMs are imposed pursuant to 28 C.F.R. § 501.3.
[2] See, e.g., Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988) (“[T]he record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year after year or even month after month can cause substantial psychological damage, even if the isolation is not total.”); Madrid v. Gomez, 889 F. Supp. 1146, 1230 (N.D. Cal. 1995) (“Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances.”); Ruiz v. Johnson, 37 F. Supp. 2d 855, 913 (S.D. Tex. 1999) (finding “actual psychological harm” among prisoners deprived of human contact); Koch v. Lewis, 216 F. Supp. 2d 994, 1001 (D. Ariz. 2001) (noting that even the government’s expert “agreed that extended isolation… subjects the inmate to heightened psychological stressors and creates a risk for mental deterioration”). This conclusion finds support in the psychological literature. See also Craig Haney, Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, 49 (1) Crime & Delinquency 124, 132 (2003) (finding that “there is not a single published study of solitary or supermax-like confinement . . . that failed to result in negative psychological effects”).
[3] Sam A. Schmidt & Joshua L. Dratel, Turning the Tables: Using the Government’s Secrecy and Security Arsenal for the Benefit of the client in Terrorism Prosecutions, 48 N.Y.L. Sch. L. Rev. 69, 76 n.14 (2003).
[4] 28 C.F.R. § 501.3(c).
