By Laura Rovner & Jeanne Theoharis | 61 Am. U. L. Rev. 1331 (2012)
In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantánamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantánamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts.
This Essay provides a close examination of one of those cases—that of Syed Fahad Hashmi—and reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, the use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent). The federal courts have permitted such rights abridgements, largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.