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Ashcroft’s big con (continued)

More articles by Harvey A. Silverglate

Freedom Watch archive

SO IT SHOULD come as no surprise that, half a year later, Faris’s name has popped up as a co-conspirator in yet another plot, this time with another alleged member of Al Qaeda, Nuradin M. Abdi. Thanks to the extreme secrecy surrounding these cases, we cannot be certain that Abdi was indicted based on whatever it was that Faris, under continued pressure by the feds, told his interrogators. And, after all, the pressure on Faris was not the usual one applied to "turned" witnesses, in which the defendant is sentenced, and then sings and composes to get a reduction; instead, the pressure was on him to sing and compose merely to be allowed to plead guilty and get the 20 years, rather than fall into the "enemy combatant" mire.

A hint of the relationship between Faris’s Kafkaesque dilemma and Abdi’s indictment is provided by the Washington Post’s June 15 report that "prosecutors have spent the past six months building a criminal case against [Abdi]," according to unnamed "officials." Faris was sentenced on October 29, and it is quite possible that he told a tale about Abdi just around the time he was desperately seeking to avoid designation as an enemy combatant. And, of course, we have no idea what other harsh methods federal interrogators may have used to win Faris’s cooperation, now that, in the aftermath of Abu Ghraib, we understand the repertoire of persuasive techniques in their arsenal (see "Advice of Counsel: Torture Is Okay," This Just In, June 18).

Let’s be very clear about why the Justice Department has developed this ruse for circumventing the courts: a trial jury, once aware of these circumstances, would never believe a word of Faris’s testimony against Abdi, but if the pattern established in the Faris case is any guide — and it almost certainly is — the Abdi case will never go to trial. Given that there’s no sign of substantial corroborating evidence from reliable sources other than Faris, even a novice lawyer could probably get Abdi acquitted by any moderately fair-minded jury — but without a trial, that won’t make any difference.

Abdi almost certainly will face the same Hobson’s choice earlier presented to Faris: he can either plead guilty or, if he insists on going to trial, President Bush will prevent such a trial by designating him an enemy combatant, meaning he will be turned over to indefinite military custody and held incommunicado. Then, of course, he will get no visits from relatives, friends, or lawyers. I’d wager that Abdi’s case will follow this pattern and end just as Faris’s did, with a Soviet-style show-trial plea of guilty. And then the cycle can begin over again.

See the emerging picture? It’s an endless series of faux prosecutions in which defendants are threatened to "cooperate" and plead guilty, or face indefinite incommunicado imprisonment, with all the physical and psychological terrors that accompany finding oneself in a bottomless legal pit. Like a Ponzi scheme, the structure of these prosecutions resembles a pyramid: defendants are pressured to testify against other friends, associates, and cohorts, who are then indicted regardless of whether the testimony, given under enormous pressure, would ever stand up in a real trial — and, in fact, it never will have to stand up at a real trial. Those new defendants are then, in turn, subjected to the same pressures. None of the "evidence" ever gets to be heard and evaluated by a jury of honest Americans, but the march of prosecutions and guilty pleas rolls onward, and the Bush administration’s war on terror is palmed off on the public as a huge success.

This is one helluva way to run a war on terror. After all, Ashcroft was certainly right when he warned, as he did at the June 14 press conference announcing the Abdi indictment, that "we know our enemies will go to great lengths to lie in wait and to achieve the death and destruction they desire." But what’s really scary is that if these kinds of show trials — the law-enforcement and judicial equivalents of Ponzi schemes — are what Ashcroft & Company are doing to protect the nation, then we are likely in worse trouble than even the pessimists among us imagine, for we have no reasonable assurance that we are capturing and imprisoning the right people. It’s all a great public-relations front for the FBI and the Departments of Justice and Defense. In the end the testimony and the intelligence they’ve gathered by such means add up to little more than, in Macbeth’s words, "a tale told by an idiot, full of sound and fury, signifying nothing."

Harvey A. Silverglate can be reached at has@harveysilverglate.com. Carl Takei and Dan Poulson assisted with this piece.

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Issue Date: June 25 - July 1, 2004
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