July 21, 2014

IV. Unfair Trials

Terrorism suspects, like all criminal defendants, have the right to a fair trial, guaranteed under both the US Constitution[327] and international human rights law.[328] A fair trial requires that defendants have access to competent counsel and adequate time and resources to prepare their defense. In a fair trial, if prosecutors seek to introduce evidence that would unfairly prejudice the jury, the judge will exclude the evidence. Defendants also have the right to challenge the basis for any warrant and to test whether law enforcement complied with the law during the investigation.

Terrorism cases in the US since September 11, 2001 have raised serious fair trial concerns. This is largely due to investigative and detention tactics that occur prior to trial including prolonged solitary confinement during pretrial detention, as well as procedural impediments imposed by the US Congress or courts; use of prejudicial evidence such as evidence obtained through coercion; classified evidence obtained by warrantless wiretaps that cannot be fairly contested; and inflammatory evidence, including evidence about terrorism in non-terrorism cases that unfairly plays on jurors’ fears.

Prejudicial Evidence

Terrorism is by definition terrifying. While most crimes have specific victims, a major purpose of terrorism is to instill in the general population a fear that they themselves at any time could be victims of a terrorist attack. This means that jurors in terrorism trials may already be frightened or anxious about the crimes in question and the defendant’s role; these fears may be heightened by the introduction of certain forms of evidence at trial.

In a number of terrorism-related cases we examined, federal prosecutors have introduced, and federal judges have accepted, various types of evidence that should have been considered overly prejudicial—that is, evidence that might unfairly influence the jury. Such evidence may taint the jurors’ ability to judge objectively and deprive the defendant of a fair trial, which includes the absence of any influence on the judge or jury, regardless of motivation.[329]

Evidence that has been admitted in terrorism cases and that raises concerns includes statements obtained from the defendant by coercion, references to terrorism unrelated to the charges, and evidence that might be more prejudicial than probative. With the specter of terrorism looming largely over the case, some judges allowed witnesses to testify anonymously (including by shielding their true identity from the defense), making it difficult for the defendant to challenge the veracity of witness testimony, and permitted other witnesses to testify when their personal circumstances suggested they were biased or unreliable.

Evidence Obtained by Coercion

Under international law, evidence obtained from defendants by coercion cannot be admitted against them.[330] Similarly, US law, following the 1966 Supreme Court ruling in Miranda v. Arizona,[331] requires law enforcement to give the defendant a series of advisories about his rights before the defendant’s confession can be admitted as evidence against him.

The Miranda requirements do not apply to evidence taken by foreign agents. Accordingly, US courts have adopted a separate “voluntariness” standard, which provides that for a confession obtained by foreign agents to be admitted in a US court, it must be the product of the defendant’s “essentially free and unconstrained choice.”[332] If the defendant’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”[333]

However, in terrorism cases in the US, prosecutors have repeatedly introduced evidence that appears to have been the product of coercion, and courts have accepted it. For example:

Case of Muhammad Salah

In 1993, Israeli authorities arrested Salah at a checkpoint between Israel and Gaza.[334] The Israeli Security Agency interrogated him for about 50 days.[335] In federal court proceedings in 2006, Salah alleged that, while in interrogation, an Israeli interrogator stripped Salah naked and threatened that his family would be harmed or killed if he did not cooperate.[336]  Salah said the interrogater deprived him of sleep for 48 hours, and forced him to sit shackled on a slanted child-size chair while he interrogated Salah.[337] He then moved Salah to a 2 X 3 foot “refrigerator cell” with his hands handcuffed behind his back to a metal bar, all while wearing a hood reeking of vomit and urine.[338] Salah said he was subjected to loud music and the sound of people screaming in pain. Under these conditions, Salah signed two documents written in Hebrew—a language he did not speak or read. He wrote a third statement after being transferred to a cell where he was threatened by other inmates.[339]

When Salah challenged the admission of these statements against him at trial in the US, the judge found the testimony of his Israeli interrogators—who testified that they did not mistreat him, and in fact treated him “specially” because he was an American[340]—to be credible, despite Salah’s own testimony and that of two other Palestinians who had been interrogated by the same Israeli interrogator and described similar forms of abuse.[341] Much of the evidence from Israeli intelligence, including information about the security agencies’ typical interrogation procedures, was classified and withheld from the defense pursuant to the Classified Information Procedures Act (CIPA) (see discussion below). Salah was ultimately acquitted of terrorism charges in the federal case, though convicted of obstruction of justice and sentenced to 21 months in prison.[342]

Case of Ahmed Abu Ali

In September 2002, Abu Ali, a US citizen, traveled to Saudi Arabia to study at the Islamic University in Medina. In May 2003, three compounds primarily occupied by Westerners in the Saudi capital of Riyadh, were bombed. The Saudi authorities engaged in mass arrests in Riyadh, Mecca, Medina, and elsewhere. In June 2003 the Saudi security service, the Mabahith al-Amma (General Investigations), detained Abu Ali, holding him for 20 months without charge. Abu Ali later said Saudi agents subjected him to physical abuse, including slapping, whipping, and scarring; threatened him with amputation; and denied him food and access to a lawyer.[343] Abu Ali made statements that he later claimed were involuntary and the product of torture.[344] He alleged that after about one month in detention, a captain of the Mabahith had him copy in his own handwriting a “confession” that his Saudi interrogators had summarized.[345] While Abu Ali was in Saudi custody, FBI officials traveled to Saudi Arabia and watched from behind a two-way mirror while the Saudis interrogated him, including questions based on inquiries the FBI had provided.[346] The FBI also interrogated Abu Ali directly, with and without the presence of Saudi officials, though Abu Ali did not allege the FBI mistreated him.[347]

Nearly a year later, in May 2004, the FBI told a family friend of Abu Ali that the FBI had no further interest in his detention. Also that month, the US Embassy informed the Saudi government that there were no pending US legal proceedings against Abu Ali and that his detention should not continue at the behest of the US. Nevertheless, the Saudi authorities continued to hold Abu Ali. His parents filed a petition for his release in federal court in Washington, DC, arguing that he was in constructive US custody. In December 2004, District Judge John Bates ordered the US government to provide information regarding Abu Ali’s arrest and detention.[348] Instead, a federal grand jury issued an indictment against him in the Eastern District of Virginia. In February 2005, Abu Ali was handed over to US authorities and flown to Virginia. The indictment charged him with providing material support to and conspiring to provide material support to terrorists and designated terrorist groups.[349]

During the trial, the defense moved to suppress videotaped “confessions” of Abu Ali made while in Saudi custody on the grounds that they were involuntary and the product of torture. The government conducted an “investigation within an investigation,” to determine if his claims were credible.[350] Former prosecutor David Laufman told us that the prosecutors were aware of reports that Saudi Arabia had a record of torturing prisoners, including an annual US State Department country report on human rights.[351] Saudi officials testified via live video-feed that Abu Ali had not been tortured in Saudi custody, and other witnesses testified that Abu Ali’s behavior in the period after his arrest was not consistent with someone who had recently been tortured.[352] District Judge Gerald Bruce Lee found the testimony of Saudi intelligence officials that Abu Ali was not tortured to be credible, expressed doubts about Abu Ali’s own credibility during his cross-examination, denied the defendant’s motion to suppress his confessions, and permitted the prosecution to introduce at trial the inculpatory statements obtained from Abu Ali while in Saudi custody.[353] The case was highly politically charged. In opposing Abu Ali’s motion to suppress his statements, the prosecution brief began: “The defendant in this case represents one of the most dangerous terrorist threats that America faces in the perilous world after September 11, 2001: an Al-Qaeda operative born and raised in the United States, trained and committed to carry out deadly attacks on American soil.”[354] The government deemed Abu Ali’s allegations of torture “a fabrication” designed to “thwart justice” and relied heavily on the testimony of Saudi officials that they had treated Abu Ali humanely.[355] The judge did not allow the defense to introduce as evidence at trial the many reports by the US State Department and organizations like Amnesty International and Human Rights Watch that have documented torture in Saudi Arabia—including evidence of torture of two UK nationals in prison at the same time as Abu Ali.[356] The judge concluded that evidence of other individuals’ torture was not relevant to whether Abu Ali had been tortured.[357]

Abu Ali was convicted of conspiracy and providing material support to terrorists, as well as conspiracy to assassinate former President George W. Bush. He was sentenced to 30 years in prison, which was later revised to a life sentence.[358]

Inflammatory or Improper Evidence

Particularly in cases that are the result of an FBI “sting” operation, prosecutors wish to show the defendants’ state of mind and pre-existing interest in terrorism. To do so, prosecutors frequently display videos or show websites found on defendants’ computers. They seek to introduce evidence about the defendants’ views of Islam and certain religious words or phrases. In a number of cases, prosecutors have introduced as evidence statements that were mistranslated, and as a result were much more inflammatory than they would have been if correctly translated. And in some cases where the charges have nothing to do with terrorism, prosecutors seek—and judges have permitted—the introduction of inflammatory evidence of terrorist violence unrelated to the case that is highly prejudicial.

Inaccurate Translations

In many terrorism cases we reviewed, the prosecution’s expert asserted a singular, extreme and contested meaning of an Arabic word, which failed to accurately represent the subtleties of language. These translations often resulted in highly inflammatory—and inaccurate—evidence being presented against the defendant. For example:

Case of Adnan Mirza:

In this case, the judge allowed an FBI undercover employee involved in the sting operation who had no demonstrated expertise in Islam or Arabic to testify about the Arabic word “Shaheed,” which the undercover claimed Mirza had said he hoped he would get. According to the undercover employee, “‘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.”[359] The undercover employee did not explain—and probably did not have the expertise to even know—that the term has a broad meaning, which includes not only dying while fighting to defend Islam, but also dying because of religious persecution, or for the well-being of others. It was also problematic that, over the defense’s objection, the judge allowed the undercover employee, with no demonstrated expertise in Islam, to define for the jury an Islamic concept.[360] As with the repeated references to “jihad” in Mirza’s trial and many other terrorism trials, the prosecution presented a definition that was the most extreme, ignoring other interpretations of key words like Shaheed.[361]

Case of Barry Bujol:

Evidence introduced against Barry Bujol also raised concerns about language. When the informant talked to Bujol about traveling to Yemen and fighting with the “holy warriors,” Bujol often responded, “Inshallah”—an Arabic term that literally means “God willing.” The prosecution presented this as demonstrating Bujol’s clear determination to fight with Al-Qaeda in the Arabian Peninsula (AQAP). But, Bujol was a recent convert to Islam, and the word inshallah may be used in many different ways—such as simply to signal “okay”—particularly by those who have recently acquired an Islamic vocabulary.[362] The government’s definition of other Arabic terms, including hijrah, or emigration, was likewise controversial.[363] In Bujol’s case, because he chose to represent himself at trial, the government’s use of inaccurate or disputed phrases went largely uncontested until the sentencing phase.

In some cases, mistranslation of recorded conversations between the defendants and the informants, or misidentification by the government of the speaker, may have distorted their meaning in ways that had a negative impact on the defense. For example:

Case of Matin Siraj (see section II):

one part of the transcription of a conversation between the informant and Siraj, which was conducted in Urdu (a Pakistani language), refers to “SUB #1” who described concern for people’s lives. The speaker was Siraj, yet was not labeled as such.[364] Siraj described in a letter from prison that later in the transcript “I clearly state ‘We have to drop it!’ which the transcriber identifies with a (?) mark, as if I were asking a question, as I was clearly declaring dropping the 34th Street station scheme.”[365] Siraj felt that the transcription failed to present that he was attempting to back out of the plot.

Case of Yassin Aref (see section II):

During the trial, Aref became extremely agitated and the defense proposed that another translator double-check the accuracy of the translations.[366] Aref said the government distorted almost all the recordings they had, particularly when he spoke in Kurdish.[367] Aref alleges the government also manipulated his statements to make him sound dangerous, for example by playing over and over recordings of terms like “jihad that he or the Islamic Movement of Kurdistan (IMK) used in the 1990s, to make it look like the IMK was calling for jihad against the West or that he was praising mujahideen. “They knew very well that the jury took these words as though they were a call for using violence against civilians in the west, while they knew it was all about Kurdish peshmerga and their struggle for freedom. They had nothing to do with any ‘global jihad’ activity.”[368]

Evidence of Unrelated Terrorism or Violence

The most frequent terrorism-related offenses—charges of providing material support to terrorism or terrorist organizations, or conspiracy—are extremely broad. A conspiracy charge in particular opens the door for the prosecution to introduce a range of disturbing evidence, including graphic images of terrorist attacks, about which the defendant may know nothing. Prosecutors in US terrorism cases have sought to establish knowing participation in a conspiracy by showing videos or websites found on defendants’ computers. Yet, often the videos have little relevance to the charges.

In the trial of Tarek Mehanna (see section III), the government presented a variety of inflammatory pictures to the jury: 28 different images of New York’s World Trade Center in flames, 33 video clips and 95 thumbnail photos, many of which were only found as cache files on Mehanna’s computer.[369] The prosecutors mentioned Osama Bin Laden 18 times before the close of the trial, even though there was no evidence presented of any relationship between Mehanna and Bin Laden.[370]

This tactic was particularly troubling in the case against the Fort Dix Five, where the prosecution showed numerous violent videos found on the defendants’ computers, alleging that defendants possessed and viewed the videos, without even attempting to show that the defendants intended to commit acts similar to those in the videos. A journalist observing the trial described the videos as follows:

The [sniper] video opens with several scenes of American troops in Iraq, moments before a sniper’s bullet cuts them down. Next comes a blaring air-raid siren, followed by still images of US troops lying on the ground or being dragged from the street, presumably dead or gravely wounded. Then Arabic singing fills the soundtrack as a montage of world leaders, including President Bush, former Secretary of Defense Donald Rumsfeld, and former British Prime Minister Tony Blair, appears on the screen. Crosshairs move across their faces, until gunshots are heard and a red dot appears on the forehead of each.[371]

The videos also depicted beheadings. In response to a defense motion, the judge ordered that the actual decapitations not be shown to jurors, for fear of unduly prejudicing them against the defendants.

Shain Duka, one of the defendants, described one juror reacting to a lengthy video of US soldiers being killed in battle by insurgent snipers. The juror “got up from her seat before exiting for the break, gave us all a stare of death, turned around and slammed the binder of transcripts… Her mind has shut down and she can’t judge correctly.”[372] Indeed, Juror No. 3 told the Philadelphia Inquirer that while she was watching the video of the sniper, “I thought I was seeing my son getting hit,” though she said jurors did not let their emotions affect their judgment.[373]

Selective Use of Informant Evidence

While most of the disturbing evidence introduced in the Fort Dix case came in through expert testimony, discussed below, another troubling aspect of the evidence adduced in the case involved the selective use of informant recordings. Informant Besnik Bakalli testified that after Dritan Duka watched a video of Anwar Al-Awlaki, the US-born Yemeni cleric who was killed by a US drone strike in September 2011, Dritan said he was “going to start something,” and that “we have enough people … you can do a lot [of damage] with seven people.”[374] But in later recordings, Dritan essentially retracted his statement, telling Bakalli that people are not allowed to train with terrorists, and that to him jihad meant not fighting, but spreading Islam. Dritan discussed the same Awlaki video mentioned above, and said “you listen to one [imam] and then you listen to another. You don’t know what to believe.”[375] The court refused to allow the additional recordings into evidence, reasoning that Dritan himself could testify if he wanted to rebut the initial recording. The ruling meant that if Dritan wanted to rebut the recording he would have to give up his right not to testify and expose himself to wide-ranging questioning from the government.[376]

Evidence Suggestive of Terrorism in Non-Terrorism Cases

Some of the most troubling evidence we examined was adduced in non-terrorism cases, where the government nevertheless sought to draw connections between the defendant and known terrorists or terrorist activities. The issue is closely tied to the government’s use of the Foreign Intelligence Surveillance Act (FISA) (see discussion below). For example:

Case of Pete Seda

In February 2005 the government charged Pete Seda (born Pirouz Sedaghaty) with conspiracy to defraud the US government and filing a false tax return, in connection with an investigation into Al-Haramain Islamic Foundation, a charity based in Saudi Arabia; in 2000, Seda had founded the Ashland, Oregon branch of Al-Haramain. Seda was living overseas at the time he was indicted 2005; he voluntarily returned to the US to face charges in August 2005. At the outset of the trial, the federal prosecutor stressed that the government was not seeking to hold Seda to account for any terrorism offenses.[377]

Yet the specter of terrorism permeated Seda’s trial. The government used as a demonstrative exhibit (it was never admitted into evidence) a 3 x 4 foot chart with photographs of Seda, his co-defendant Soliman al-Buthe, an Al-Haramain accountant from Saudi Arabia who was in Saudi Arabia at the time, and the Chechen mujahideen commander Ibn al Khattab, whom Seda had never met. [378] The government also elicited testimony about terrorism through the use of expert witness Evan Kohlmann (see below). The government’s theory was that Seda falsified his tax returns in order to funnel money to the Chechen mujahideen.

One of Al-Haramain’s activities in the US was the distribution of Qurans and other religious material to US prisons. One version of the Quran that Al-Haramain distributed was called the Noble Quran and included a controversial appendix describing forms of jihad. The prosecutors argued that Seda shared the mindset of the authors of the index, which, the prosecutors claimed, called on prisoners to “Perform jihad against polytheists by wealth, body, and tongue.”[379] The judge did not permit Seda to introduce a volume of letters, articles, emails, and a book he had written about Islam that the defense argued would have countered the government’s portrayal of him “as a fundamentalist supporter of terrorism.”[380]

The Department of Justice touted Seda’s conviction as a success in the fight against terrorism. [381] In contrast, prominent local attorney and Muslim convert Tom Nelson described Seda’s trial as “Islamophobia on parade.” [382]

In August 2013, the Ninth Circuit Court of Appeals affirmed in part and reversed in part Seda’s conviction, ordering a new trial. [383] The opinion noted that Seda’s “tax fraud trial was transformed into a trial on terrorism.” [384] The court went on to note: “The appeal illustrates the fine line between the government’s use of relevant evidence to document motive for a cover up and its use of inflammatory, unrelated evidence about Osama Bin-Laden and terrorist activity that prejudices the jury.” [385]

Case of Mehrdad Yasrebi

Dr. Mehrdad Yasrebi, founder of Child Foundation, was charged with conspiring to defraud the Office of Foreign Assets Control (OFAC), the entity that enforces US economic and trade sanctions against other countries, including Iran. Yasrebi was initially charged with violations of the sanctions regime, as well as tax fraud and money laundering, though the indictment and superseding indictment remain sealed.[386] Though he was not charged with terrorism-related offenses, prosecutors attempted to draw connections between his charitable work and terrorism throughout the proceedings against him.

Child Foundation, based in Portland, Oregon, provided education and assistance to impoverished children in Iran, and Yasrebi accordingly had significant communication with individuals in Iran. In September 2000, Yasrebi contacted OFAC to inform it of his work and request a determination that his work did not violate the sanctions regime. Yasrebi was aware of a similar charitable organization that received information from OFAC that its charitable donations to Iran did not violate OFAC regulations and was represented by the same attorney that had represented that organization.[387]

OFAC responded to Yasrebi’s correspondence by noting that filing a license application or requesting information—as Child Foundation had—did not excuse noncompliance, but did not tell Yasrebi or Child Foundation that a license was required. OFAC then transferred Child Foundation’s request to its Enforcement Division. While noting that the ordinary procedure would be to issue a demand letter, internal OFAC documents indicate that “[b]ecause of the criminal investigative interest by the US Attorney’s Office and US Customs Service in this matter, OFAC Enforcement will not proceed with the issuance of a demand letter.”[388] OFAC also found relevant that Child Foundation had submitted another request in October 2001. The government initiated surveillance of Yasrebi shortly after September 11—it is not clear whether his second letter triggered the surveillance.[389]

For eight years, US authorities amassed a mountain of evidence, none of which appears to have shown any support for terrorism. Yet the case was investigated by the Joint Terrorism Task Force and FISA was utilized (see below). Yasrebi ultimately pleaded guilty to conspiring to defraud OFAC and the Internal Revenue Service. Prosecutors repeatedly made reference to terrorism even though Yasrebi was never charged with any terrorism-related offense. The sentencing judge, District Judge Garr King, noted that even though the money Child Foundation sent to Iran was for humanitarian purposes, it “did violate the embargo in effect at that time.”[390] The prosecution sought a sentence of 30 months’ imprisonment in part because of the “national security” and “terrorism” implications of the case,[391] which the judge apparently rejected in imposing one year of home detention in which Yasrebi could go out in consultation with his probation officer.[392]

Yasrebi’s defense attorney, David Angeli, told us that he felt that once the government suspected terrorism it was unable to let go of the idea. Recognizing that the volume of money transferred to Iran ($10 million over several years) might reasonably arouse suspicion, he nevertheless felt that the government was unable to see the facts clearly:

[W]hen you commit to something like that, maybe it’s human nature that, even years later when [all the evidence shows otherwise,] that you just can’t back off, that you think, “We’ve got to get a return on our investment.” I really think that’s a lot of what’s going on here…. And the result is that these people’s lives are just being destroyed.[393]

Holy Land Foundation Case

In this case (see section III) the defendants were never accused of directly funding terrorist organizations or terrorist attacks, nor were the Palestinian charities they funded accused of doing so. Nonetheless, they were prosecuted on the notion that the social programs they financed help win the “hearts and minds” of Palestinian people for Hamas.

Former US Consul-General in Jerusalem Ed Abington told us that the United States Agency for International Development (USAID) had funded the same zakat committees that the Holy Land Foundation (HLF) provided funding to, and that clearly the US government did not consider them fronts for Hamas. [394] Abington testified at both HLF trials. He testified about personally visiting zakat committees, and noted that while some committees had members who were also members of Hamas, he did not believe the committees were controlled by Hamas. [395] Abington also testified that the Central Intelligence Agency (CIA) had assisted in the development of Palestinian security forces, and that Israel’s intelligence—on which much of the case was based—was not reliable. [396]

After the trial, the CIA sent Abington a letter saying he had spoken contrary to his obligation to keep information confidential, and that he could be prosecuted.[397] During the second trial, the CIA sent a lawyer to observe Abington’s testimony, and the judge provided less latitude, limiting the scope of his testimony about CIA involvement in Israel.[398]

Because the defendants were accused of ultimately supporting a structure that permitted Hamas’ military wing to engage in terrorist acts, the court admitted evidence pertaining to bombings committed by Hamas. It also admitted images of Palestinian school skits of suicide attacks with no relationship to the defendants, and images that were pulled from the defendants’ computers even though they were images that automatically download onto a user’s computer when viewing particular websites.[399]

Many US terrorism cases involve allegations that the defendant was either in contact with known terrorist groups (or believed he was when in fact he was communicating with an undercover agent or informant), or aspired to be associated with those groups. In order to prove a charge of providing material support for terrorism (discussed in section III), the prosecutors can introduce evidence of terrorist activities about which the defendant himself may have no knowledge.

They generally do so through the use of expert witnesses. Unlike eyewitnesses, expert witnesses have wide latitude to testify on matters about which they do not have firsthand knowledge. In particular with informant cases—in which the defendant may have believed he was in contact with a member of a terrorist group but actually was not—expert witnesses have provided evidence about terrorist groups about which the defendants themselves may have been entirely unaware.

One such expert witness who testified in nearly all the cases discussed in this report that went to trial is Evan Kohlmann. Kohlmann has testified as an expert in at least 24 federal cases and 2 military commissions. [400] While he wrote a thesis on Arab Afghans, Kohlmann does not speak fluent Arabic or any other language relevant to his research, meaning that his online research focuses on English-language material. [401] Nor does Kohlmann have an extensive history of travel to or field work in regions where Islamist armed groups operate. [402]

Yet Kohlmann’s testimony has been relatively wide-ranging, arguably far outside his areas of expertise. For example, while Kohlmann more typically testifies about Al-Qaeda, the district judge in Yassin Aref’s trial allowed him to testify about Jamaat-e-Islami (JEI) of Bangladesh, the Islamic Movement of Kurdistan, and other Kurdish groups. Kohlmann had 36 to 48 hours in which to prepare his written report, and during a deposition indicated that he did not know anything about the political situation in Bangladesh or the JEI of Bangladesh, including who its leaders were. [403] The Second Circuit Court of Appeals upheld the prosecution’s use of Kohlmann’s expert testimony, citing a “liberal standard for the admissibility of expert testimony.” [404] The appeals court reviewed the trial judge’s decision on an abuse of discretion standard, so Kohlmann’s testimony on JEI Bangladesh was admissible even despite his professed lack of knowledge about it.

Often, Kohlmann’s testimony reaches dramatic conclusions, suggesting that activities or materials linked to the defendants are characteristic of terrorism. When Kohlmann testified in the Seda case, which was later overturned and remanded for a new trial, he claimed that the former director of a Saudi charity had been an “old friend” of Osama Bin Laden’s in the 1980s. [405] The Ninth Circuit Court of Appeals noted that Kohlmann had no direct knowledge of the facts of the case. [406] In testifying at the Raleigh 7 case (discussed in section III), Kohlmann testified about the nature of homegrown terrorism without citation to any academic work or any known fieldwork analyzing the criteria for the development of homegrown terrorism. Nevertheless, he concluded that the defendants likely “fit the classic profile of contemporary violent extremists and that there is a high probability of the existence of a home-grown terrorist network.” [407]

Kohlmann believes that people overestimate the impact of his testimony and that his testimony is often useful to the defense as well as the prosecution. [408] Defense attorneys see it differently. Daphne Silverman, Barry Bujol’s attorney at sentencing, told Human Rights Watch:

Kohlmann is an expert in how to use the Internet, like my 12-year-old. He has found all the bad [stuff] about Islam, and testifies as if what he is reading on the Internet is fact. He was paid around $30,000 to look at websites, documents, and testify. [409]

She contrasted that with a judge’s denial of Bujol’s request to call a religious expert at trial, concluding, “The [imbalance] in expert testimony is an injustice that is really coloring these trials—you end up with just a government show.” [410]

Anonymous Witnesses

Trials in US courts are considered public, and virtually all witnesses testify using their true names. US and international law protect the right of defendants to confront witnesses against them.[411]

However, in some terrorism cases, US courts have allowed the government to hide the identity of witnesses—including foreign agents and US officials—either for their own protection, or because the witness works in a sensitive position. At times the witness’ identity is hidden even from defense counsel, making it nearly impossible for the defense to investigate the person’s background.

The use of anonymous witnesses raises concerns about adequate protections of the right to a fair trial. International human rights law requires that everyone charged with a criminal offense be able to examine the witnesses against them.[412] The use of anonymous witnesses violates fair trial rights because it deprives the accused of the necessary information to challenge the witness’ reliability. The Human Rights Committee has said that anonymous testimony should not form the primary basis for conviction.[413] While the cases we documented did not rely exclusively or primarily on anonymous testimony, the use of such testimony for critical components of the case, including expert testimony, raises fair trial concerns.

Anonymous witnesses were used in the Holy Land Foundation case[414] and the case of Muhammad Salah. They were also used in the case of Mohamed Mohamud, who was convicted in January 2013 of attempting to use a weapon of mass destruction following a sting operation.[415] Mohamud twice thought he was detonating a bomb via his cell phone at a Christmas-tree lighting ceremony in Portland, Oregon. At trial, the FBI agents who had been involved in the sting operation testified using pseudonyms and in light disguise. In January 2013, Mohamud was convicted of attempting to use a weapon of mass destruction; in June 2014, the district court denied his motion for a new trial. At time of writing, Mohamud has not been sentenced.[416]

Evidence from Warrantless Wiretaps under the Foreign Intelligence Surveillance Act

In dozens of terrorism cases, prosecutors have used as evidence information obtained by wiretaps or physical searches not subject to the standard probable cause requirements in criminal cases. In these cases, the government obtained information pursuant to either the Foreign Intelligence Surveillance Act (FISA), or the FISA Amendments Act (FAA)—two statutes that permit surveillance without a traditional warrant. Applications under FISA are reviewed by the specially created Foreign Intelligence Surveillance Court (FISC), which sits in secret and does not have any structures in place that would offer meaningful opposition to government requests. The FISC issues warrants based only upon a showing of probable cause that the target of surveillance is a foreign power or an agent of a foreign power, not that there is probable cause that the target is suspected of criminal activity.

The FISC has rarely rejected a government request for a surveillance warrant. Since its inception, the FISC has received more than 30,000 applications for authority to conduct electronic surveillance or physical searches. Of those, it has denied nine, and partially denied another three.[417] Under the FAA, the government does not need any kind of warrant at all. Rather, it obtains year-long authorizations from the FISC to collect “foreign intelligence information,” defined broadly (see below) so long as one end of the communication is “reasonably believed” to be outside the US and the government follows certain procedures it submits to the FISC for approval, intended to minimize the amount of information collected on “US persons.”[418] In practice however, an enormous number of US-person communications are still swept up in the surveillance.[419]

Background: Broadening of the Foreign Intelligence Surveillance Act since 9/11

The US Congress enacted FISA in 1978 in the wake of the Watergate scandal and other concerns about warrantless wiretapping.[420] FISA was intended to rein in government surveillance excesses by requiring judicial authorization to conduct surveillance to collect “foreign intelligence information” inside the US.[421]

Ordinarily, electronic searches and physical evidence-collection are governed by the Fourth Amendment to the US Constitution, which protects against “unreasonable searches and seizures.”[422] This generally requires that evidence used against a defendant be obtained through a warrant based on probable cause of criminal activity.[423] FISA does away with the traditional warrant requirement in certain circumstances, on the theory that the government has the inherent authority to conduct foreign intelligence surveillance, even inside the US, without a traditional warrant.[424] Instead, the government can obtain an order from the FISC in an ex parte (only one party) proceeding upon a showing of probable cause that the intended target of the surveillance is a foreign power or an agent of a foreign power.[425] FISA originally required that the collection of foreign intelligence information be a primary purpose of the surveillance, leading to what was colloquially referred to as the FISA “wall,” in which law enforcement could not be involved directly in coordinating surveillance with the intelligence community under FISA.[426]

However, after 9/11, Congress amended FISA in 2001, substantially broadening its scope. The amendments took down the wall, permitting law enforcement to become more directly involved in coordinating surveillance under FISA.[427] And Congress changed the requirement that foreign intelligence collection be “a primary purpose” to merely “a significant purpose.”[428]

As a result of the amendments, the government has contended that not only can the information from a FISA order be used in criminal prosecution, but intended criminal prosecution can be a reason for obtaining the FISA order in the first place, so long as it is not the sole purpose.[429] Surveillance that might previously have required a traditional warrant can now be authorized by the FISC ex parte and in secret.[430]

Additionally, beginning at least as of 2002 if not before, then-US President George W. Bush authorized warrantless surveillance—surveillance without either a traditional warrant or an order from the FISC—inside the US.[431] It is not clear to what extent information obtained pursuant to that program was used in criminal prosecutions.

In 2008, Congress broadened FISA even further, by passing the FISA Amendments Act (FAA), which permits the attorney general and director of national intelligence to issue one-year blanket authorizations for surveillance of non-US persons “reasonably believed” to be outside the United States in order to acquire “foreign intelligence information” without a warrant.[432] “Foreign intelligence information” is defined very broadly, to include not just information important to national security, such as information about weapons of mass destruction or terrorism, but also information that merely “relates to” the “security” or “foreign affairs” of the US.[433]

Acquisitions under the FAA are subject to “minimization” and “targeting” procedures approved annually. These procedures are purportedly intended to minimize the acquisition of US-person communications as well as apply limits to the use and dissemination of the information obtained.[434] These procedures are classified, though the US has declassified some minimization procedures in response to certain Freedom of Information Act (FOIA) requests. It is not clear if these procedures will be made available to the public going forward. As for targeting procedures, the only ones made available to the public thus far are a 2009 version that was leaked to the media[435] by former National Security Agency contractor Edward Snowden.[436] Both the one-year authorizations as well as the targeting and minimization procedures must be approved by the FISC, but once approved, there is no requirement that the court monitor how the rules are applied or conduct oversight.[437]

When the government plans to use the FISA-obtained evidence in a criminal prosecution against a defendant who was under surveillance,[438]the attorney general must give advance notice.[439] However, if the evidence was obtained through FISA but not directed at the defendant—for example, if a co-defendant or witness was subject to surveillance or physical searches pursuant to a FISA order—FISA does not require the government to notify the defendant in advance of its plans to use the evidence.[440] Because FISA orders are issued in secret, the subjects of the orders generally only learn of them if they are prosecuted; if criminal charges are never brought, the existence of the FISA order remains secret.[441]

In January 2014, President Obama announced a presidential policy directive establishing new measures intended to restrict the use,[442] retention and dissemination of information obtained by intelligence agencies—though it left open the possibility of continued bulk collection.[443] It is not clear from the directive how the new restrictions will relate to information collected under the FAA because the directive specifically exempts data “temporarily acquired to facilitate targeted collection” from the use restrictions placed on continued bulk data collection[444] and does not define “targeted collection.”

Use of FISA-derived Evidence at Trial

Defendants have the right to challenge the prosecution’s use of information obtained pursuant FISA or FAA authorities by moving to suppress the evidence, either on the basis that it was obtained illegally, or that the surveillance exceeded the bounds of what was authorized.[445]

In practice, however, it is extremely difficult for the defense to exercise this right due to the secrecy that pervades the collection of evidence pursuant to FISA and the FAA. If the prosecution intends to use evidence obtained from electronic surveillance under FISA, the attorney general must disclose in advance intent to use that information.[446] However, if the defendant challenges that information, the attorney general may file an affidavit indicating that disclosing the information pertaining to the order would harm national security; if he does so, the court must consider the application and any order in camera, and the defense cannot participate.[447] The court can disclose certain information to the defense to help determine if the surveillance was lawful, but “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”[448] This means that the defense must operate blindly, challenging the legality of the order (or surveillance absent a FISC order), or law enforcement’s compliance with it, without being able to see the materials that initially supported the surveillance.

The statute requires that similar notice be provided if information obtained pursuant to the FAA is to be used.[449] Yet until recently, the government refused to provide such notice by instead using FAA-obtained information to support a FISA application. Defendants were provided notice that information was obtained under FISA, but the fact that the basis for the investigation originated from warrantless surveillance under the FAA was not disclosed. If the defendants had been aware that they were subject to warrantless surveillance, they might have filed constitutional or other challenges.[450] Following an internal Justice Department debate about whether to disclose the fact that warrantless surveillance formed part of the chain of information that led to a FISA order,[451] in 2013 the government began providing such notice.[452]

Since 2007, the FBI has used secret evidence obtained under FISA to prosecute at least 27 accused terrorists.[453] These include the following:

Case of Amina Ali and Hawa Hassan:

Amina Ali and Hawa Hassan were arrested in August 2010 as part of a country-wide investigation into support for the Islamist armed group Al-Shabaab in Somalia.[454] They were convicted of providing material support for terrorism for sending clothing and money to Al-Shabaab. On the same day they were arrested, the Department of Justice unsealed indictments against 12 other individuals in two other states.[455] Only during the trial did the public learn that Ali’s and Hassan’s phones had been tapped for months. Ali’s attorney said the order authorizing the surveillance was pursuant to FISA but that he never saw the order or the underlying facts cited in support for its acquisition. He said he did not know when the surveillance began or ended.[456] Although he filed motions to suppress evidence obtained pursuant to a FISA order, the application was reviewed ex parte and in camera. The government filed a lengthy memorandum in opposition to the defense motion to suppress, yet the public version contains almost no information about the case and instead includes only standard legal arguments.[457] The secrecy connected to FISA warrants prompted others in the American-Somali community in Minneapolis to fear that they were also under surveillance.[458]

Case of Mehrdad Yasrebi (see above):

A FISA warrant was also used in the case against Mehrdad Yasrebi, prosecuted for violating OFAC sanctions against Iran. David Angeli, Yasrebi’s defense attorney, told Human Rights Watch that he considered the process behind obtaining FISA orders to be fraught with problems and prone to abuse:

In every other case, I get to see the basis for a search warrant. Here, no one gets to see if the government lied or if it didn’t present certain evidence.… If [a defense attorney] has secret clearance, just like the prosecutors do, we should have the same access. When you remove the defense counsel from the process and don’t have that check, it creates very real possibilities for abuse.… And when the government thinks there might be something related to terrorism involved, the incentive for them to step over the line is even greater.[459]

Case of Abdelhaleem Ashqar:

In 1993, likely in response to information obtained from Muhammad Salah while under interrogation in Israel, the FBI obtained a FISA order for electronic surveillance of Abdelhaleem Ashqar, a former business administration professor at Howard University.[460] The FBI also searched Ashqar’s house in December 1993.[461] Ashqar first learned of the surveillance in court in August 2004 when documents from that search were entered into evidence against him on charges of criminal enterprise in violation of federal racketeering laws.[462] Documents seized from Ashqar’s home were also used as evidence in the Holy Land Foundation case. The FBI first learned about conference in Philadelphia, which was a key element of the case, through the wiretap of Asqhar’s communications.[463]

Holy Land Foundation Case:

The case against the Holy Land Foundation involved significant information obtained pursuant to FISA orders. In both trials, the defendants moved to compel production of the underlying applications for the FISA orders, and to suppress the evidence acquired pursuant to them. The district judges reviewed the information ex parte and in camera and denied the defense requests.[464]

Case of the Fort Dix Five:

Some of the evidence in the Fort Dix Five case came from a FISA order. While the government declassified much of the evidence, the underlying affidavits supporting the orders were not declassified.[465] Although the judge reviewed the underlying FISA application materials, including for relevance to discovery, his ability to assess discoverability was hindered by not knowing early on what defenses would be asserted.[466] Although the defendants challenged the constitutionality of FISA on appeal, their challenge was denied.[467]

Al-Haramain’s Challenge to FISA Surveillance

In a parallel proceeding to the prosecution of Pete Seda, the charity Al-Haramain came to believe that it was subject to warrantless electronic surveillance in violation of FISA in 2004; in 2006, it filed suit. In 2007, the Ninth Circuit Court of Appeals ruled that the suit was not barred by the state secrets privilege. [468] On remand, the district court found that Al-Haramain had established it had been surveilled and the government had presented no evidence that established it had a warrant. [469]

The judge granted summary judgment to the plaintiffs, and awarded $20,400 each to two Al-Haramain attorneys in liquidated damages for the FISA violation, and $2.5 million in attorneys’ fees and costs. [470] On appeal, however, the Ninth Circuit ruled that the suit was barred by sovereign immunity, “effectively bring[ing] to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.” [471] The plaintiffs elected not to appeal to the Supreme Court. [472] The Ninth Circuit’s ruling means that even if a plaintiff can establish violation of FISA, as Al-Haramain did, it has no recourse in court. If other circuits follow that reasoning, the government will remain immune from liability for violating FISA.

Classified Evidence

Another challenge for the defense in terrorism cases involves the frequent introduction of classified evidence, which often causes delays and obstacles to discovery that may affect the fairness of the trial.

The Classified Information Procedures Act (CIPA), enacted in 1980, provides procedures for prosecuting federal criminal cases involving classified information, including at both the discovery and trial stages.[473] CIPA was originally passed in 1980 to address cases of “graymail,” or “the tactic of a defendant who threatens to disclose classified information in the course of a prosecution,” particularly in cases of espionage.[474] Today, CIPA and CIPA-inspired procedures (in civil cases) are frequently used in terrorism cases where classified information is in play, usually in the form of classified evidence provided by the government against the defendant.[475]

CIPA requires both parties to provide notice when classified information is at issue, initially at a pretrial conference.[476] Courts applying CIPA procedures are called on to determine whether discoverable classified information can be “(1) omitted, (2) summarized, or (3) substituted with an admission.”[477] While this usually occurs ex parte, the record is preserved for appeal.[478] Upon the government’s request, the court can issue a protective order preventing defense from disclosing classified information to a defendant.[479] Where a court authorizes disclosure of specific classified information, the government may request that in lieu of disclosure the information be substituted with a summary or an admission.[480] Finally, where fair trial necessitates the disclosure of classified information that the government is unwilling to disclose, remedies include dismissal of the indictment or of certain counts.[481] Throughout this process, the defendant must retain “substantially the same ability to make his defense as would disclosure of the specific classified information.”[482]

CIPA causes significant delays, both because counsel must obtain security clearances, and because the process of substitutions and summaries can add months or even years to discovery and pretrial proceedings. Several lawyers involved in the Barry Bujol case (see section II) said that key evidence against Bujol was classified, and they faced delays in getting access to that evidence while waiting for clearance.

CIPA presents particular challenges when it comes to discovery. Defense counsel may have trouble identifying what information they believe the prosecution has that would be helpful to the defense. Defense counsel must do so without consulting their client, affecting the client’s ability to have effective assistance of counsel. And even if defense attorneys do identify relevant material, CIPA permits the court to provide summaries or make substitutions, meaning the defense will never have access to the original evidence.[483]

Evidence obtained by foreign governments is frequently classified. In the earlier post-September 11 cases, this tended to involve evidence obtained when Americans were picked up in foreign countries and interrogated by foreign agents, often at the behest of the United States.

The following cases illustrate how the introduction of classified evidence can create serious difficulties for the defense and undermine the fairness of the trial:

Case of Mohamed Warsame:

Warsame was held in solitary confinement while awaiting trial for five-and-a-half years, the longest recorded period of time for any pretrial detainee in the federal system (see below). In an interview, District Judge John Tunheim attributed part of that delay to the length of time involved in processing classified material under CIPA.[484] The district judge had personally compared all of the unclassified substitutions proposed by the government with the classified source material.[485] The slow process contributed to Warsame’s lengthy pretrial detention under abusive conditions.

Case of Ahmed Abu Ali:

In this case, the court appointed private attorney Nina Ginsberg well into the proceedings to review classified evidence for the defense, although she was not otherwise part of Abu Ali’s defense team. Abu Ali’s main defense lawyers, who did not have security clearances,[486] were not allowed access to any classified information or permitted to be present at hearings determining the admissibility of classified evidence and the sufficiency of evidence meant to substitute for the classified evidence. This situation hampered Abu Ali’s defense overall, with Abu Ali’s long-standing defense attorneys completely in the dark about the defenses Ginsberg had raised in the classified hearings. “Part of how you develop your defense is people talking to each other and developing strategies,” Ginsberg explained. “I wasn’t allowed to tell them anything that was classified, and I thought there were substantial issues that ought to have been part of the defense that were excluded by the judge.…There were entire other defenses that were the subject of classified hearings which we lost.”[487] Yet Ginsberg was never able to share these with the main defense team.

Classified Statements by Persons Subjected to Torture

The difficulties the defense can face when seeking access to classified information were dramatically evident in the case against Uzair Paracha. Paracha sought the testimony of Majid Khan, Ammar al Baluchi, and Khalid Sheikh Mohammed, who at the time were believed to be in secret custody of the US government. [488]

While not conceding that they were in US government custody, the prosecution argued that for the purposes of the motion, if they were in government custody, producing them would damage national security by allowing “Al-Qaeda operatives [to] use the US legal system to interfere with the military’s prosecution of the war on terrorism.” [489]

The judge determined that Mohammed’s testimony was not material, but that both Khan and al Baluchi likely had material and favorable evidence to present. Saying that he was balancing the government’s concerns of national security against Paracha’s right to present such evidence, Judge Stein ordered that unclassified summaries of statements provided by the two men could be admitted, along with instructions to the jury detailing the circumstances in which the statements were obtained.

The jury instruction included that “[t]he witnesses’ statements were obtained under circumstances that were designed to elicit truthful and accurate information from witnesses because the statements are relied upon by United States officials responsible for making national security decisions.” [490] As we now know, the men were held in secret CIA custody for years and subjected to incommunicado detention and torture, calling into question the veracity of their statements. [491] The government—and the judge—willingly vouched for the truthfulness of statements obtained by people subjected to torture by the same government, highlighting the problems that can ensue when a defendant is denied full access to information because it is purportedly classified.

Paracha’s case is somewhat unusual because it was the defendant, not the government, who had an interest in establishing the veracity of witness statements that may have been taken under duress. Judge Stein did not permit the government to use the statements affirmatively, perhaps in acknowledgment of that fact.

Because the defense does not have the ability to review the classified information, it operates blindly when challenging the adequacy of a summary or substitution. While the system relies on prosecutors and district court judges to protect the rights of the defendant, the system can fail, either through bad faith or because structurally the absence of the defense means the trial judge will not have the benefit of hearing all sides of an issue (though the defense can present its theory of the case to the judge in order for him or her to take it into consideration when reviewing the classified material).

In Pete Seda’s case, the Ninth Circuit found the government’s failure to make an appropriate substitution—and the district judge’s acceptance of the inadequate substitution—an additional basis for ordering a new trial for Seda. The appeals court concluded “that the substitution’s language unfairly colored presentation of the information and, even more problematic, that the substitution omitted facts helpful to Seda’s defense.”[492] Although the court did not find bad faith on the part of the prosecutors, it found that “the government appears to have looked with tunnel vision at limited issues that it believed were relevant.”[493]

Anonymous and Biased Juries

While the majority of terrorism cases (like most criminal cases) do not go to trial, those that do face challenges obtaining unbiased juries, as well as the use of anonymous jurors—a practice rare in criminal cases though used in high-profile, organized crime trials.

Anonymous juries—that is, juries whose names and identities are shielded from the public, and sometimes even from the parties and judge, in order to protect their safety—were used in several of the cases we examined, including the cases of Fort Dix Five, Abdelhaleem Ashqar and Mohammed Salah. If a judge declares the jury “anonymous,” usually for security reasons, defense lawyers may be hampered from examining prospective jurors for bias.

Moreover, identifying unbiased jurors, whether anonymous or not, is particularly challenging in terrorism cases, especially those involving Muslims. In federal terrorism prosecutions, some judges have elected to use written jury questionnaires, which allow them ask a broad range of questions that may root out more prospective jurors who may have bias towards the defendant. In the case of Hossam Smadi (who pleaded guilty shortly before he was scheduled to go to trial) the judge provided a questionnaire to the approximately 175 members of the jury pool. One of Smadi’s defense attorneys, Richard Anderson, described the judge as “outstanding” and felt that the questionnaire was appropriately crafted to identify bias.[494] But many judges do not use questionnaires, which can make it harder to identify biases.

Pretrial Solitary Confinement and Other Conditions of Confinement

The US government frequently imposes solitary confinement on suspects in terrorism cases prior to trial.[495] Prolonged pretrial 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 defense, 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 behavior 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 pretrial 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 center 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 every thing 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 pretrial 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 Pretrial 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 pretrial 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 pretrial 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 pretrial 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 Pretrial 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 defense 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 Center 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 behaviors 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 traveling 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 firefight.

[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 defense 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." See Crawford 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,” Southwestern 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 languageof “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.