Case study: Mahdi Hashi
In a 2015 case before the federal district court in New York,37 the validity of a plea
deal entered into by Mahdi Hashi was considered. Hashi had previously been
stripped of his British citizenship, apprehended in Djibouti and tortured there in
incommunicado detention for three months.38 He was then rendered without
legal process to the US where he was held in solitary confinement for three years
facing charges of material support to a terrorist organisation, which carried a
potential sentence of 30 years to life. He finally accepted a plea deal to a charge
of conspiracy to provide material support for terror.39
In 2014, the year before the deal was made, then
United Nations (U.N.) Special Rapporteur on Torture and
Other Cruel, Inhuman and Degrading Treatment, Juan
Mendez, gave an interview about Hashi’s solitary
confinement touching on the relationships between
pre-trial detention, solitary confinement, torture and
trial waiver systems, saying:
hile prosecutors requested a sentence of 15 years,41
W
Judge John Gleeson sentenced Hashi to a term of nine
years, saying at sentencing that the case was
“complicated” and accepted that Hashi had sought to
join al Shabaab not to engage in violent attacks but
because he thought the group could restore peace to
war-torn Somalia.
“
[Solitary confinement] in pre-trial detention is
particularly objectionable because the pain and
suffering of a mental or psychological nature that the
person suffers prepares him psychologically to either
confess or make statements against his interests, or
even plead guilty…It seems to me that in terrorism
cases, at least, that’s a very deliberate policy of the
United States. I’ve seen cases in which people are
held in solitary confinement for three or four years,
and then they either go to trial or they plead [guilty]
— mostly, they plead...And it seems to me that’s a
coercive practice; it violates not only the right to be
free from cruel, inhuman, and degrading treatment,
but also due-process rights in trial.” 40
There are a number of troubling aspects of this case that
deserved deeper judicial scrutiny than was possible absent
a trial. The procedural history raised serious questions
about the lawfulness of the assertion by US officials of
jurisdiction over a foreign national who had no intent to
carry out any criminal activity in relation to the US;42 the
allegations of US involvement in kidnap, torture and
rendition; the constitutionality of Hashi’s extended
incommunicado solitary confinement pre-trial; and the
extent of Hashi’s involvement in the conspiracy.
Unfortunately, the plea deal foreclosed the possibility of
judicial scrutiny of these troubling pre-trial rights abuses.
37. See the case background described in detail here: https://theintercept.com/2016/02/05/mahdi-hashi-metropolitan-correctional-center-manhattan-guantanamopretrial-solitary-confinement/; http://www.nydailynews.com/new-york/nyc-crime/terrorist-sympathizers-sentenced-11-years-prison-article-1.2498473; https://news.
vice.com/article/this-four-year-saga-shows-how-the-us-became-the-global-cops-in-the-war-on-terror; and https://www.thebureauinvestigates.com/2014/04/19/
stripped-of-his-uk-citizenship-now-mahdi-hashi-is-in-solitary-confinement-in-new-york/.
38. Although prosecuting authorities asserted that ‘local authorities’ in Djibouti arrested Hashi, there was speculation of US and UK complicity in his apprehension. See,
e.g., Stahl, A., “How a British Citizen was Stripped of His Citizenship, Then Sent to a Manhattan Prison”, The Nation (Feb. 28, 2014). Available at: https://www.
thenation.com/article/how-british-citizen-was-stripped-his-citizenship-then-sent-manhattan-prison/. See also Judd, T., “UK accused of role in rendition as missing
‘Briton’ faces US charges”,
The Independent (Dec. 23, 2012). Available at: http://www.independent.co.uk/news/uk/home-news/uk-accused-of-role-in-rendition-as-missing-briton-faces-uscharges-8430600.html.
39. See defendants’ joint sentencing memorandum, United States v. Ahmed, Hashi, and Yusuf, Eastern District of New York, No. 12 Cr. 661 (JG). Available at: https://
assets.documentcloud.org/documents/2704809/334-Defendants-Joint-Sentencing-Memorandum.pdf.
40. Ross, A. K., “Stripped of his UK citizenship, now Mahdi Hashi is in solitary confinement in New York”, The Bureau of Investigative Journalism (Apr. 19, 2014). Available
at: https://www.thebureauinvestigates.com/2014/04/19/stripped-of-his-uk-citizenship-now-mahdi-hashi-is-in-solitary-confinement-in-new-york/.
41. Government’s sentencing letter. Available at: https://www.documentcloud.org/documents/2704916-Mahdi-Hashi-339-Government-Sentencing-Letter.html
42. For a comprehensive discussion of the question of the extra-territorial reach of US jurisdiction in this case see Kelly, B. M., “Due Process, Choice of Law, and the
Prosecution of Foreign Nationals for Providing Material Support to Terrorist Organizations in Conflicts Abroad”, Harvard Law School Addison Brown Student
Winning Prize (May 2015). Available at: https://dash.harvard.edu/bitstream/handle/1/16645037/Due%20Process,%20Choice%20of%20Law,%20and%20the%20
Prosecution%20of%20Foreign%20Nationals%20for%20Providing%20Material%20Support%20to%20Terrorist%20Organizations%20in%20Conflicts%20Abroad.
pdf?sequence=1.
14.
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