October 9, 2012
The decision by the European Court of Human Rights last week to refuse to block the extradition of the radical Muslim cleric Abu Hamza al-Masri and four others to the United States on terrorism charges removes one of the last external checks on our emerging gulag state.
Masri and the four others, all held in British jails, will soon join hundreds of other Muslims tried in Article III federal courts in the United States over the last decade. Fair trials are unlikely. A disturbing pattern of gross infringements on basic civil liberties, put in place in the name of national security, has poisoned our legal system. These infringements include intrusive surveillance, vague material support charges, the use of prolonged pretrial solitary confinement, classified evidence that the accused cannot review, and the use of political activities, normally protected under the First Amendment, to demonstrate mind-set and intent. Muslims caught up in the Article III courts are denied the opportunity to confront their accusers and to have their religious and political associations protected, and they rarely find a judge courageous enough to protect their rights. These violations of fundamental civil liberties will not, in the end, be reserved exclusively for Muslims once the corporate state feels under siege. What is happening to them will happen to the rest of us.
“One of the misapprehensions of the last decade is that the government had to go outside the law to places like Guantanamo or Bagram to abridge the rights of suspects in the name of national security,” said Jeanne Theoharis, a professor of political science at Brooklyn College who has been an outspoken critic of the rights abridgement occurring in Article III courts. “But this is not the case. A similar degradation of rights that has characterized the prison at Guantanamo has also affected the judicial system within the United States. The right to dissent, the right to see the evidence against you, the right to due process, the right to fair and speedy trial, the right to have a judge who will be impartial, the right to fair and not disproportionate punishment, and the right not to be punished before you are convicted have been taken from us in the name of national security. It is not just in special secret prisons that this occurs, but also—dismayingly—within the U.S. federal courts.”