Every two weeks outside the Metropolitan Correctional Center in Manhattan, friends and supporters gather to hold a vigil for New Yorker Syed "Fahad" Hashmi, an American citizen who has been held in solitary confinement for nearly three years.
The 29-year-old - the first U.S. citizen ever to be extradited from the United Kingdom to the U.S. - stands accused by federal prosecutors on four counts of providing material support to al-Qaida.
Fahad's brother Faisal attends every vigil together with their parents, Arifa, a housewife and Anwar, a retired city accountant.
"My brother is charged with material support to terrorism, basically saying that he knowingly allowed someone to stay that had ponchos and socks in their luggage which were to be used for terrorism," Faisal Hashmi said in an interview.
In 2004, an acquaintance from New York, Junaid Babar, stayed with Fahad Hashmi during a two-week visit to London, where Hashmi was a graduate student in international relations. "This person showed up in London and didn't have a place to stay, and basically called my brother to ask to stay with my brother," said Faisal Hashmi.
According to court filings, Babar brought with him a suitcase containing raincoats, ponchos and waterproof socks that he later delivered to an al-Qaida leader in South Waziristan, a region in Pakistan. He also used Hashmi's cell phone to contact another al-Qaida member.
Babar pleaded guilty in 2004, and became a cooperating witness, testifying in terrorism cases in Britain and Canada in exchange for favorable treatment. He's expected to be the main witness against Hashmi, whose trial opens April 28.
"This case is a fabrication," Faisal Hashmi said. "There is no evidence that my brother had any knowledge of the sort. No charges were ever brought against my brother in 2004 by the British, in 2005. Not until 2006 were charges brought up to say that my brother had knowledge of socks in somebody else's luggage," he said.
Hashmi was arrested at London's Heathrow Airport in 2006 as he was preparing to board a plane to Pakistan. He was extradited to the U.S. in 2007, after being held for months in the general population in a British prison.
His case has become a cause célèbre among liberal justice groups who object as much to the extreme conditions of Hashmi's pretrial confinement in the U.S. as to the charges. Hashmi is alone 24 hours a day, under constant video monitoring. He has no access to sunlight and may not communicate with anyone other than his lawyers and immediate family.
Biweekly visits are restricted to his mother, father or brother, but even those have been denied in the last few months, according to Faisal Hashmi. He says his brother's isolation amounts to "torture," noting that Senator John McCain said solitary confinement was the worst cruelty he experienced as a prisoner of the North Vietnamese.
Political science professor Jeanne Theoharis taught Hashmi at Brooklyn College and helped to organize the campaign to publicize his case, including a recent fundraiser in Manhattan. She says the conditions of his jailing are tantamount to a Guantanamo being permitted in downtown New York, even as President Obama has vowed to close the prison in Cuba.
"These kinds of conditions are inhumane, they violate international standards, they compromise people's ability and Mr. Hashmi's ability, to participate in his own defense," she said. "And frankly, they are un-American."
Tony Barkow, a former U.S. attorney in the Southern District of New York, which is prosecuting the case, disagrees. He noted that courts have consistently found that such conditions do not constitute "cruel and unusual punishment" in American law. "Whatever the psychological literature or opinion might be, the law is that those conditions don't violate the Constitution and don't violate the law and don't violate his rights," he said.
The prosecution has argued in court that Hashmi's total isolation is necessary to protect the public, by cutting off any chance that he could communicate violent plans to the outside. Barkow says that is the correct thing to do.
"Here is someone who provided assistance and resources to Al Qaida and who combines that with a belief that western governments should be overthrown," he said. "So, on its face that is a dangerous person who, if you accept those allegations to be true, is someone the law enforcement community has to do something about."
As for whether the charges against Hashmi represent a prosecutorial overreach, Barkow said, "They'll have to show one way or another that he knew what the items were and where they were going: Either that he knew the ultimate recipient was Al-Qaida, or that he knew the person staying in his apartment was affiliated with Al Qaida."
He added, "I recognize that the material support statues are very broad. And that's deliberate. Congress wanted the statute to sweep as broadly as possible, consistent with individual rights, in order to choke off the provision of resources to these organizations."
But according to Emily Berman, counsel in the Liberty and National Security Project at the Brennan Center for Justice, "The prosecution and everything [Hashmi's] been subjected to seem wildly out of proportion with the allegations against him."
"Much of the evidence is classified and there may be something we don't know," she said, "but certainly this man was not a linchpin in the Al Quaida organization. By all accounts, he was a good student and a leader in his community. And the guy whose allegations are serving as the foundation of the government's case has made a deal with the government to testify in order to have a reduced sentence himself."
Hashmi is not charged with helping al-Qaida or any terrorist organization directly, but prosecutors have noted that he belonged to al-Muhajiroun, a now-banned British group that they say promotes the violent overthrow of Western society. They also allege that Hashmi threatened the lives of U.S. and British soldiers and officials when he was arrested.
Hashmi's family and friends say he is a believer in debate, not violence, however. They contend that he is being prosecuted for his beliefs and opinions rather than for criminal acts. They say he was not the kind of man who would have supported violence.
"My fear is they're going to use his politics to say that proves intent," says Jeanne Theoharis. She remembers her former student as "respectful," a fierce critic of U.S. foreign policy, who listened to those who did not agree with him. She said his pretrial isolation makes no sense. "Babar was arrested in 2004, but Fahad did not get arrested for two years. If he's this dangerous person, why did [the British] let him stay out there for two years?"
Some studies have found severe psychological deterioration after only two weeks in solitary confinement. Hashmi's supporters say that his three years in solitary confinement could make him unable to participate in his own defense. He could be sentenced to 60 years in prison if convicted on all four counts of conspiracy and material support to terrorism.
