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54 Stan. L. Rev. 953, * Copyright (c) 2002 The Board of Trustees of Leland Stanford Junior University Stanford Law Review May, 2002 54 Stan. L. Rev. 953 LENGTH: 27074 words ARTICLE: Enemy Aliens David Cole*

* Professor, Georgetown University Law Center. I benefited from comments of many colleagues in connection with presentations of this paper at workshops and forums at Amherst College, Georgetown University Law Center, Howard Law School, University of Pittsburgh Law School, Stanford Law School, the Supreme Court Historical Society, Wayne State University, Wellesley College, and the University of Washington. Matthew Kilby and Jihee Suh provided invaluable research assistance. SUMMARY: ... While there has been much talk about the need to sacrifice liberty for a greater sense of security, practice we have selectively sacrificed noncitizens' liberties while retaining basic protections for Eitizens. ... But while an allegation of an immigration violation, if proven, may justify deportation (if the alien does not qualify for some form of relief permitting him to remain, such as political asylum), the allegation of a violation does not in itself justify detention. ... Thus, while a decision to deny entry to an alien might not trigger due process, a decision to detain an entering alien would trigger due process limitations, because to do so is to deprive the person of physical liberty, and "freedom from imprisonment ... lies at the heart of the liberty that [the Due Process] Clause protects. ... In this regard, one of the leading spokespersons for the Arab community, James Zogby, director the Arab-American Institute, recently found himself in rare agreement with the former counterterrorism chief of the FBI, both of whom predicted that the Justice Department's plan to interview 5,000 Arab immigrant men would likely backfire because of the division it would create between law enforcement and the Arab community. ... The Enemy Alien Act is a precursor to the internment of 110,000 persons of Japanese ancestry during World War II. ...

Come on, let us deal wisely with them; lest they multiply, and it come to pass, that, when there falleth out any war, they join also unto our enemies, and fight against us, and so get them up out of the land. Exodus 1:10 To those who pit Americans against immigrants and citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to merica's enemies, and pause to America's friends. Attorney General John Ashcroft Dec. 6, 2001 1

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7/16/2003

Page 11 of 17 8) ACLU holds convention as post-Sept. 11 interest in group surges By Dick Polman Philadelphia Inquirer WASHINGTON _ Even in the best of times, it's never easy to be a card-carrying member of the American Civil Liberties Union. The group is often reviled for defending the constitutional rights of pornographers, Klansmen, native-born Nazis, common criminals _ all kinds of undesirables. So you can guess what it's like for the ACLU these days, defending immigrants in the post-Sept. 11 era, and contending that Attorney General John Ashcroft has invaded Americans' privacy rather than making citizens safer. Sure enough, critics contend that the ACLU is undercutting the war against terrorism. But as ACLU members from across the nation met here Wednesday for the first grass-roots convention in the group's 83-year history, its leaders stressed the upside. As ACLU president Nadine Strossen remarked, "The halfempty glass is also half full." Translation: In what the ACLU views as a dark hour for civil liberties, when Americans may be tempted to trade some of their rights for personal safety, it nevertheless is experiencing a historic surge in membership _ topping 400,000, a record high. The ranks have swelled by more than 25 percent since the autumn of 2001, when Ashcroft made his first pitch for the new surveillance tools that are now codified in the USA Patriot Act. Backed by a $50 million budget, the ACLU is juggling 33 lawsuits on the terrorism front. It also starts production Monday on a national TV ad that will target Ashcroft's current push for expanded powers beyond the Patriot Act. He wants more authority to jail suspects without bond before trial, and he wants a looser definition of "material support" for terrorism _ a move, the ACLU claims, that would allow federal agents to go after political protesters. "Basically," said Stephen Schulhofer, an ACLU member and a former board officer in Illinois, "the ACLU has never been stronger _ yet it has never been weaker, and on the defensive, than it is now. It has a very tough job in the current environment because its issues touch a raw emotional nerve. What should be embarrassing about trying to defend the Bill of Rights? But for a lot of Americans, it probably looks like it's 'in league with Osama bin Laden.1" Its critics would not totally dispute that. Paul Kamenar, chief counsel with the conservative Washington Legal Foundation, which has jousted in court with the ACLU, said Wednesday: "We're in dangerous times that call for increased law-enforcement powers. We can't be such sticklers with the Constitution that we allow our enemies to do us in. The ACLU is being dragged kicking and screaming into the 21st century. They're going after this administration for political reasons." Actually, the ACLU is going after both parties. Anthony Romero, the executive director, triggered a roar of approval Wednesday when, in a speech, he skewered "the timidity, the reticence, the complicity of the Democrats" who helped pass the Patriot Act with scant scrutiny _ thereby demonstrating that Democrats would "rather stick their heads in the sand than stick their necks out for the Bill of Rights." The ACLU is not without allies, however. The group that was used as a political football by presidential candidate George H.W. Bush in 1988 (he said the ACLU's "card-carrying members" were "out in left field"), is now attracting some high-profile conservatives, such as Phyllis Schlafly, former Rep. Bob Barr, and key Capitol Hill Republicans, who fear that expanded federal surveillance is intruding on citizen privacy. That still won't help the ACLU win a popularity contest, not when it continues to assail the FBI for targeting Middle Eastern immigrants, arresting hundreds in secret, hiding their identities, and detaining them for months without charges. In polls, most Americans don't seem concerned about these moves. But for the ACLU _ founded in 1920 when a Democratic administration swept up nearly 6,000 immigrants during the Red Scare, and the sole group to defend the interned Japanese Americans during World War II _ the targeting of immigrants since Sept. 11 is merely the leading indicator of a new national-security regime. Thanks to the Patriot Act, for example, it's a lot easier for the feds to scrutinize a citizen's Internet habits and library books. ACLU president Strossen, in an interview on the eve of the gathering, acknowledged the ACLU's image problem: "When the government invokes security and safety, that appeals to the gut. There's an instinctive wish, an understandable human desire, to trust the government, to believe that if it's doing something, then it must be for a

6/12/2003

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"I'm afraid it's going to leave a big hole," Mr. Rogers said. Representative Frank R. Wolf, the Virginia Republican who led the hearing, said he shared that concern. Mr. Wolf said he believed that there were important areas like public corruption that the F.B.I, was not aggressively investigating. Congress may need to authorize money for more agents to fill the gap, he said. Mr. Mueller acknowledged that "we are stretched" because of the bureau's expanded counterterrorism duties. "We have to pick and choose," he said. But he said the bureau remained committed to investigating major public corruption and white-collar crime. Another area of concern cited by several lawmakers centered on the new Terrorism Threat Integration Center, which the Bush administration created earlier this year. Mr. Wolf said that while he supported the idea of an independent center to filter terrorist intelligence across the government, he was bothered because the center was run by the Central Intelligence Agency. "You are not an equal partner there," he told Mr. Mueller, but "more an arm of the C.I.A." Several lawmakers said they feared that the C.I.A., because of a history of turf wars, would be unwilling to share crucial intelligence with other agencies. But Mr. Mueller said he believed that the setup was working well. He said that the new center's mission was limited to analyzing intelligence, rather than operational activities, and that it represented an important effort "to drop down the walls" between agencies.

11) False Terrorism Tips to F.B.I. Uproot the Lives of Suspects By MICHAEL MOSS New York Times One evening in late April, the F.B.I, chief in Indiana, Thomas V. Fuentes, went to a crowded basement in an Evansville mosque to ask for help in the fight against terrorism. Some 100 Muslims listened politely. Then the wife of a local restaurateur spoke up to tell him what had happened the last time agents came calling, shortly after the Sept. 11 terrorist attacks. On a tip, her husband, Tarek Albasti, and eight other men were rounded up, shackled, paraded in front of a newspaper photographer and jailed for a week. The tip turned out to be false. But four of the men were then listed in a national crime registry as having been accused of terrorism, even though they were never charged, as the F.B.I, later conceded. The branding prevented them from flying, renting apartments and landing jobs. "People were crying as she describes this," Mr. Fuentes recalled. "And at the end, she says, 'My husband was released, and in 19 months nobody has ever said, I'm sorry about what happened.1" Mr. Fuentes did more than apologize. Last week, at his behest, a federal judge ordered that the men's names be erased from all federal crime records. The unusual public move to clear the Evansville men of suspicion comes after several terrorism cases collapsed because they were based on tips that proved wrong. Federal agents, facing intense pressure to avoid another terrorist attack, have acted on information from tipsters with questionable backgrounds and motives, touching off needless scares and upending the lives of innocent suspects. After a wave of criticism, Bush administration officials have been revising their policies for handling terrorist suspects. On Tuesday, President Bush issued guidelines restricting racial profiling in investigations to "narrow" circumstances linked to stopping potential attacks.

6/19/2003

5) Secrecy Is Backed on 9/11 Detainees By NEIL A. LEWIS New York Times WASHINGTON, June 17 — A sharply divided appeals court ruled today that the Justice Department was within its rights when it refused to release the names of more than 700 people arrested for immigration violations in connection with the Sept. 11 terrorist attacks. The 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit upheld the government's contention that disclosing the names of people arrested on immigration charges after the September 2001 attacks could help Al Qaeda figure out how lawenforcement officials were conducting the nation's antiterrorist campaign. The opinion extends a string of significant legal victories, against some setbacks of lesser importance, for the White House from federal judges as they begin to rule on challenges to the administration's actions in response to the terrorist attacks. An appeals court in Philadelphia has already upheld the right of the administration to hold hearings in secret on possible immigration violations in connection with the attacks. Another panel of the District of Columbia Circuit has ruled that the detainees at the naval base at Guantanamo Bay in Cuba are outside the reach of American constitutional law. And in January, the appeals court based in Richmond, Va., gave the administration a major victory in ruling that a wartime president like Mr. Bush could indefinitely detain a United States citizen captured as an enemy combatant on the battlefield and deny that person access to a lawyer. Today's case pitted two fundamental values against each other — the right of the public to know details of how its government operates versus the government's need to keep some information secret to protect national security. The majority opinion, written by Judge David B. Sentelle, said that courts had always shown deference to executive branch officials in the field of national security. "The need for deference in this case is just as strong as in earlier cases," Judge Sentelle wrote in the opinion that was joined by Judge Karen LeCraft Henderson. "America faces an enemy just as real as its former cold war foes." Judge Sentelle said that when government officials tell the court that disclosing the names of the detainees will produce harm, "it is abundantly clear that the government's top counterterrorism officials are well suited to make this predictive judgment. Conversely, the judiciary is in an extremely poor position to second-guess" government views in the field of national security. Judge David S. Tatel offered a blistering dissent, saying that the majority of the court was just agreeing with what he said is the Bush administration's demand to "simply trust its judgment." Judge Tatel wrote that "by accepting the government's vague, poorly explained allegations, and by filling in the gaps in the government's case with its own assumptions about facts absent from the record, this court has converted deference into acquiescence." The opinion also demonstrated again the ideological divide on the nation's appeals courts and especially the District of Columbia Circuit, which is widely viewed as second in importance only to the Supreme Court. Judges Sentelle and Henderson are Republican appointees while Judge Tatel is a Democratic appointee.

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that much in terms of substantive security," he said. He noted that reinforced cockpit doors and more explosive-detecting machines have helped. But Slepian said Congress and the rest of the federal government are focusing too much on preventing another 9/11 instead of concentrating on other tactics that terrorists have used, such as planting bombs on aircraft. "When a terrorist sees that the front of the airport has some semblance of security, he's just going to go through the back of airport," Slepian said.

8) Ashcroft Calls on News Media to Help Explain Antiterrorism Laws By ADAM CLYMER New York Times QUEENSTOWN, Md., June 19 — Attorney General John Ashcroft called on the press and television today to dispel fears about the sweeping antiterrorism law known as the U.S.A. Patriot Act, which was enacted after the attacks at the World Trade Center and the Pentagon. Addressing two dozen editors, publishers, television executives and others, Mr. Ashcroft said, "We need the help of the news industry, the fourth estate, to inform citizens about the constitutional tools and methods being used in the war against terror. We need the media's help, for instance, in portraying accurately the U.S.A. Patriot Act." He told a conference on "Journalism and Homeland Security," convened by the Aspen Institute, a nonpartisan policy research group, that complaints and misunderstandings about the act were so widespread that "I heard a fellow said his car wouldn't start the other day, and he blamed the Patriot Act." In fact, he said, "Over the past 20 months the Patriot Act has become a critical reason for our success in the war against terrorists, stopping further attacks in the United States." In particular, Mr. Ashcroft sought to quiet concern about the government's access to library records and its use of so-called roving wiretaps on terrorism suspects. He said that critics of the law had "charged that under the Patriot Act the F.B.I, has arbitrarily visited local libraries to check out reading records of ordinary citizens." "The fact is simply not that," he said. "The Patriot Act simply does not allow federal law enforcement free or unfettered access to local libraries, bookstores or other businesses." Mr. Ashcroft said that warrants issued under the Patriot Act had to be approved by a judge. In contrast, when records, including library data, were sought by ordinary grand jury subpoena, no judge was involved. The number of such warrants issued has been classified, despite objections by some in the Justice Department who argue that the low number of warrants actually served would help the department show it was not rummaging in library records. Representative F. James Sensenbrenner Jr., the Wisconsin Republican who heads the Judiciary Committee, said in an interview on Wednesday that he had seen the classified figures and that only "a few" such warrants had been issued to libraries. Mr. Ashcroft also asked the news media to explain more clearly the use of the roving wiretap, which allows the authorities to listen in on conversations no matter what telephone an individual may be using. Mr. Ashcroft told the conference that such wiretaps had been used against drug crimes, health care fraud and racketeering for many years. "Now I think it's important for the public to understand that this isn't something new, this isn't something different,

6/23/2003

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14) Government's own report now bolsters abuse claims by Arab detainees By TOM HAYS Associated Press Yasser Ebrahim says his introduction to the federal prison system came from guards slamming his head into a wall while calling him a "terrorist." Shakir Baloch says guards at the same lockup warned him: "You will be here the rest of your life." Those allegations and others - including random beatings - made by Muslim men held on immigration charges after the Sept. 11 attacks had been routinely dismissed by federal officials. Earlier this month, however, the Justice Department's Office of the Inspector General issued a report saying it found "significant problems" with the treatment of nearly 800 detainees nationwide, including abusive conditions at the Metropolitan Detention Center in Brooklyn where Ebrahim and Baloch were held. The report cast a critical light on the little-known federal lockup on the waterfront, and breathed life into a pending civil rights lawsuit filed by Ebrahim, Baloch and five others against Attorney General John Ashcroft, prison personnel, FBI supervisors and other officials. The plaintiffs are seeking class action status. "What we said about all the suffering was true," Ebrahim, 31, said in a phone interview from his native Egypt. "The government was doing its best to deny it." Both Ebrahim and Baloch were held for eight months without being charged with a crime, then were deported. "I'm owed an apology," said Baloch, 41, a Pakistani-born doctor with Canadian citizenship. Their lawyers have amended the lawsuit, filed last year, to incorporate the inspector general's findings. The suit, which seeks unspecified damages, claims federal officials violated their rights by imprisoning them on the basis of their race and religion. More than 80 men designated "of high interest" in the FBI investigation of the Sept. 11 attacks were jailed at the facility in Brooklyn between Sept. 14, 2001, and Aug. 27, 2002. The nine-story facility usually houses men and women charged with federal crimes, not immigration violations. Inmates like Ebrahim and Baloch were classified "suspected terrorists" and put in high-security cell blocks normally reserved for dangerous inmates. The men say they were denied access to phones and lawyers for weeks at a time, locked in tiny cells where lights burned all night, kept awake by guards pounding on their doors, put in handcuffs and shackles whenever outside their cells, and beaten at random. "I was being hated by everyone around me wanting revenge for Sept. 11," Ebrahim said. He acknowledged staying past his visa's expiration but said he did nothing else illegal. The abuse allegedly subsided once guards were ordered to videotape detainees outside their cells - a policy that prison officials said was designed simply to deter accusations of mistreatment. The officials cited an al-Qaida training manual that instructed terrorists to accuse their captors of abuse. Ebrahim says one guard whispered: "The camera is your best friend. If not for the camera, I would have smashed your face." In interviews with the Inspector General's investigators, most guards denied any wrongdoing. But one said he witnessed guards slam inmates against walls, and "stated this was a common practice before the MDC began videotaping the detainees," the report said. The guard said a supervisor told him "it was all part of being in jail and not to worry about it."

6/23/2003

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July 21, 2003

Report on USA Patriot Act Alleges Civil Rights Violations By PHILIP SHENON

W

ASHINGTON, July 20 — A report by internal investigators at the Justice Department has identified dozens of recent cases in which department employees have been accused of serious civil rights and civil liberties violations involving enforcement of the sweeping federal antiterrorism law Tknown as the USA Patriot Act. The inspector general's report, which was presented to Congress last week and is awaiting public release, is likely to raise new concern among lawmakers about whether the Justice Department can police itself when its employees are accused of violating the rights of Muslim and Arab immigrants and others swept up in terrorism investigations under the 2001 law. The report said that in the six-month period that ended on June 15, the inspector general's office had received 34 complaints of civil rights and civil liberties violations by department employees that it considered credible, including accusations that Muslim and Arab immigrants in federal detention centers had been beaten. The accused workers are employed in several of the agencies that make up the Justice Department, with most of them assigned to the Bureau of Prisons, which oversees federal penitentiaries and detention centers. The report said that credible accusations were also made against employees of the F.B.I., the Drug Enforcement Administration and the Immigration and Naturalization Service; most of the immigration agency was consolidated earlier this year into the Department of Homeland Security. A spokeswoman for the Justice Department, Barbara Comstock, said tonight that the department "takes its obligations very seriously to protect civil rights and civil liberties, and the small number of credible .^*TS^ allegations will be thoroughly investigated." Ms. Comstock noted that the department was continuing to review accusations made last month in a

7/21/2003

Independence Day 2003 Main Street America Fights the Federal Government^ Insatiable Appetite for New Powers in the Post 9/11 Era

A Special Report

by The American Civil Liberties Union Thursday, July 3, 2003

ACLU AMERICAN CIVIL LIBERTIES UNION

www.aclu.org

25289 Part 4 6/20/03 10:15 AM Page 211

U. THE BILL OF RIGHTS AS HUMAN RIGHTS

And if a stranger sojourn with thee in your land, ye shall not vex him. But the stranger that dwelleth with you shall be unto you as one born among you, and thou shall love him as thyself. LEVITICUS 19:33-34 KING JAMES

Anyone who lives inside the United States can never be considered an outsider anywhere in this country. DR. MARTIN LUTHER KING, JR., J.ETJER-RROM THE BlRMWJGHAMjAII.

One of the most common responses to criticism of the way foreign nationals have been treated in the war on terrorism is to assert, as Vice President Cheney did about the military tribunal order, that foreign nationals do not deserve the same rights as American citizens. That response strikes a chord with the widely shared assumption that citizenship makes a difference, and that the difference warrants the distinct treatment that foreign nationals receive. But are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are "persons" within the meaning of the Constitution, and are protected by all those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens appears to be the constitutional rule. On the other hand, the Court has stated that with respect to immi-

125289 Notes S/20/03 1:58 PM Page i8S

c NOTESl- 285

A

14. Die Bill of Rights as Human Rights

1. Mathews v. Diaz, 426 U.S. 67,80 (1976). >

2. The Japanese Immigrant Case (Yamatayn v. Fisher), 189 US. 861 (1903); The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 US, 581 (1889).

3. Galvan v. Press, 347 U.S. 522 (1954). 4. Ponerfeld v. Webb, 263 U.S. 225 (1923) (upholding Washington's alien land law); Terrace v. T&owpson, 263 US, 197 (3923) (upholding California's alien land law). In 1948, the Court invalidated California's law as applied to a U.S. citizen child of a Japanese national. Oyama v. California, 332 U.S. 633 (1948). And in Takahashi v. Fish d- Game Comm'n, 334 US. 410 (1948), the Court invalidated a California law barring issuance of commercial fishing licenses to Japanese resident aliens, but expressly distinguished the alien land laws. 334 US. at 422. Thus, "the U.S. Supreme Court technically never found the [alien land) laws unconstitutional" Brant T. Lee, "A Racial Trust: The Japanese YWCA and the Alien Land Law," 7Atian Pacific American Law fournal 1,28 (2001). 5. Shaughnessy v. United State; ex re). Mezei, 345 U.S. 206 (1953). 6. Foley v. Connelie, 435 U.S. 291 (1978) (permitting states to require citizenship in hiring start troopers); Ambach v. Nonvick, 44] U.S. 68 (1979) (permitting states tn require citizenship in hiring public school teachers); Cabeil v. ChavuSaluh, 454 U.S. 432 (1982) (permitting states to require citizenship in hiring of deputy probation officers). 7. A November 2001 poll conducted by National Public Radio, Harvard University's John P. Kennedy School of Government, and the Kaiser Family Foundation found that 56 percent of those surveyed said that noncitizens visiting or living legally in the United States should have different rights than US. citizens. The question specifically accepted the right to vote or hold public office. Deborah L Acomb, "Poll Tjrack for December 15. 2001" National Journal, December 15, 2001. 8. U.S. Constitution, AIL I, §§2,3; Art. II. §1. Amend. 15. The Constitution's limitation to citizens of the right agai nst discriminatory dcaial of the vow does not mean that noncitizem cannot vote. If a state or locality chooses to enfranchise its nontitizen residents, it may do so. Indeed, until the early twentieth century, noncitizcns routinely enjoyed the right to vote as a matter of state and local law. By contrast, the Constitution expressly restricts to citizens the right to hold federal elective office. 9. KwongHai Otewv. CoMing, 344 US. 590,596n.5 (1953) (construing immigration regulation permitting exclusion of alien* based on secret evidence not to apply to a returning permanent resident alien because of the substantial constitutional concerns that such an application would present).

, /

to stop sending some information. LASTING LESSONS the disagreements over whether SEVIS is necessary or appropriate, one doubts the system is here to stay. "It's a fait accompli ," says Qvfieto, the University of Wisconsin teaching assistant. His sentiment is echoed by a number of school administrators and their associations, who agree that, in the midst of the war on terrorism, few people in government would take the political risk of opposing SEVIS. But the lasting lesson for government may have less to do with politics than with process. The Homeland Security Department has committed to creating a number of ambitious programs that, like SEVIS, are heavily dependent on technology and the involvement of nongovernmental players . The department's difficulties in managing SEVIS thus far, have raised questions about its ability to handle future programs, many of which will be vastly broader in scope. School officials want the government to do a better job communicating with them. The foreign student advisers associations have done the lion's share of public relations work about SEVIS. Schools have little to no interaction with Homeland Security officials. And some schools haven't been aware of major SEVIS developments. Gotten says representatives of at least 50 small colleges that attended a March meeting in North Carolina didn't even know about the August deadline for complying with SEVIS. The technical failings of SEVIS and the difficulty the government has had in implementing it undermine its security potential, Gotten says. "If the American people feel safer because of SEVIS, then they are severely misled," she says. Yet the greatest irony of SEVIS may be that the program has forced the very """^hoo! officials most leery of efforts to monitor students to take on that le on the government's behalf. Schools can be punished for not reporting even seemingly innocuous details, such as a student's mid-semester course adjustment. Advisers who've long seen themselves as advocates now feel like informants. "We're supposed to be the ones helping the students, and yet at the same time now we're having to be the policing force," says Toni Liston, the international student adviser at Southern Illinois University in Edwardsville . Despite the vocal protests at schools such as the University of Wisconsin, SEVIS has had a chilling effect on student dissent. During recent demonstrations against the U.S. -led war in Iraq, Gotten says, foreign students asked her if they could be deported for attending the rallies. "I told them, you absolutely have the right to participate in any free speech activity on our campus or anywhere else," she says. Then she leveled with them. "If things look like they're getting out of hand, be someplace else." Being watched closely is nothing new for foreign students, who've always had to report their whereabouts to authorities. But, after SEVIS, says Quieto, things are different. "It just wasn't so scary before." ******** ********

11 IG probes Patriot Act charges Six complaints allege Muslims' civil rights violated ^~N Susan Schmidt i Washington Post, July 22, 2003; Pg. A15 The Justice Department's inspector general is investigating six complaints from Muslims who have alleged that federal employees pursuing enforcement 38

CHICAGO TRIBUNE: Suit contests anti-terror Patriot Act ACLU alleges FBI violating privacy of Arab-Americans Thursday, July 31, 2003 By Dan Mihalopoulos, Tribune staff reporter. Tribune news services contributed to this report WASHINGTON - In the first direct legal challenge to the government's enforcement of the USA Patriot Act, the post-Sept. 11 law enhancing the government's surveillance power, civil rights advocates sued the Justice Department and the FBI on Wednesday for allegedly violating the privacy rights of Arab-Americans and Muslims. The American Civil Liberties Union filed suit in federal court in Detroit on behalf of six ArabAmerican and Muslim groups, challenging the constitutionality of a Patriot Act provision expanding the government's power to conduct secret searches of personal belongings and records, such as Internet logs from public library computers. The ACLU argues that the practice violates the Constitution's prohibition against unreasonable search and seizure, as well as the free speech and due process rights of those targeted under the Patriot Act. "Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers or forcing charities and advocacy.groups to divulge membership lists," said ACLU lawyer Ann Beeson. The case is a legal expression of arguments that conservatives and liberals have made against the anti-terrorism law since it was passed six weeks after the 2001 attacks. The Bush administration steadfastly defends the Patriot Act as an indispensable weapon in the fight against terrorism. The law helps the government prevent "savage attacks such as those which occurred on Sept. 11, 2001," and the expanded powers have not been exercised in violation of constitutional rights, Justice Department spokeswoman Barbara Comstock said in a statement. A Justice Department official said the ACLU lawsuit marks the first time the government has been sued for its enforcement of the Patriot Act. The House struck the first major blow against the Patriot Act last week, voting to curtail the "sneak and peak" surveillance powers it grants under a key provision that lets officials search private property without notifying suspects until later. The ACLU and other rights groups have complained that the Patriot Act is being used indiscriminately against innocent people with no ties to terrorism. Some libraries erasing data: Libraries across the country, including in Arlington Heights, 111., now

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23) Enemy Combatant Vanishes Into a 'Legal Black Hole'

•\y Paula Span Second of two articles NEW YORK - It was the luck of the draw. Some other spring morning, Donna Newman would have encountered a different client in a prison jumpsuit, someone accused of fraud or drug trafficking. Instead, arriving at the federal courthouse in downtown Manhattan in May 2002, she met Jose Padilla. Newman serves on a panel of private practice attorneys who occasionally take on indigent clients facing federal charges. She accepts new cases two days a year. "I believe in defending indigents," she said. "You gotta give back." At the time, though, she had no inkling how much she was about to give. Padilla, arrested by the FBI at Chicago's O'Hare International Airport on May 8, had been flown east to appear before a grand jury as a material witness. The subject he supposedly had knowledge of ~ an al Qaeda plan to detonate a "dirty bomb" in the United States - sounded scarier than most. Another alarming sign was that every time Newman set her pen down on the courtroom table during that first appearance, federal marshals handed it back to her, evidently so that Padilla couldn't seize it as a weapon. Still, for Newman, the procedures seemed largely routine - until June 9, when President Bush declared her client an enemy combatant and Padilla was hauled off to a brig in South Carolina. At that point, the Padilla case detonated, largely consuming Newman's practice, her leisure, her life for the coming year and plunging her into an extraordinary constitutional debate. The pivotal question: Can an American citizen, arrested on U.S. soil, be held incommunicado in a military prison indefinitely -- without being charged with a crime, without access to a lawyer? The issue has ignited a fierce debate over civil liberties. It has been argued on the Senate floor and on op-ed pages, and Amnesty International has condemned Padilla's treatment as "an unprecedented suspension of fundamental rights of U.S. citizens in U.S. custody." Newman and her co-counsel, however, are grappling with a more pragmatic question: How do you represent a client you can't talk to? The Client The man was on the short side, clean-shaven; he looked younger than his 31 years, Newman recalled. And he was wearing what is known around the courthouse as "a three-piece suit" - wrist irons, leg irons and a connecting metal belt. Newman, like many defense attorneys, had represented clients in other terrorism witness cases since Sept. 11, 2001. "There were a whole slew of them," she said. "Initially, you don't recognize that this one is huge." Without much trepidation, therefore, she went about meeting with her client for more than 20 hours, she estimates. At the Metropolitan Correctional Center, she had to speak to him through a screen, another signal that the government considered him particularly dangerous. But otherwise, "he didn't impress me as any different from my other clients in personality or demeanor." Padilla, who, like Newman, was born in Brooklyn, was "quiet, concerned about his predicament." Newman struggled to explain that he had been arrested but, as a potential witness, not charged

PRESS CLIPS FOR JULY 30, 2003

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car and passenger screening on ferries. Ferry operators will develop their own anti-terrorist measures to meet government standards. Before proposing the improvements, the Coast Guard studied maritime security risks in a novel way that evaluated not just the consequences of an attack but the likelihood it would be attempted and the probability of success. Under that analysis, the risk of terrorists detonating weapons of mass destruction in a shipping container - a scenario of great concern in Washington because of its potential lethality - got a moderate rating because the containers are tracked. Cruise ships also were considered less risky than large ferries because they have extensive passenger and baggage screening. And smaller ferries, such as those operating on Long Island, were not as risky as large ferries simply because they have fewer people, said Myers, the Coast Guard engineer. The Cross Sound Ferry, running between Orient Point and New London, Conn., has seven ferryboats, the largest with a capacity of 1 ,000 passengers and 120 cars. The Bridgeport-Port Jefferson Ferry runs three boats this time of year carrying up to 1 ,000 passengers and 90-1 20 cars. But the Staten Island Ferry is unique. "These things are very large and you've got a lot of people in a confined area," Myers said. "They're on a scheduled route, you know where they're going to be and that they're going to be there. It increases the risk greatly."

1 5) Today We Face Another 'Watergate1 By Samuel Dash

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Samuel Dash is professor of law and director of the Institute of Criminal Law and Procedure at Georgetown University Law Center. He served as chief counsel to the Senate Watergate Committee. Thirty years ago the Senate of the United States prevented President Richard Nixon from destroying constitutional democracy in our country. Watergate was a wrenching turning point in our history and its lessons must be learned and re-learned. Now our lives as a free people are also being threatened by an administration bent on grabbing unprecedented power, a timid Congress and an uninformed electorate. That is why the Watergate experience remains so relevant to our republic today. Watergate was much more than a bungled burglary of the Democratic National Committee headquarters in the Watergate office building by agents of President Nixon to obtain information that would help Nixon get re-elected in the presidential election of 1972. It was the culmination of a series of criminal acts authorized by Nixon and carried out by his inhouse secret espionage team to maintain his power, smother dissent and punish his enemies. Former Attorney General John Mitchell, who headed Nixon's re-election campaign and authorized the Watergate burglary and wiretaps, called these criminal acts by the president and his aides "the White House horrors," which had to be covered up if the president was to be re-elected. The most serious horror was that Nixon and his aides believed that Nixon as president had the absolute power and right to order these crimes to be committed. Nixon told an interviewer, "When the president does it, it can't be wrong." Mitchell testified before the Senate Watergate Committee that he would have "done anything" to get Richard Nixon re-elected. "Anything?" asked a senator. "Would that include murder?" Mitchell

PRESS CLIPS FOR AUGUST 9-11,2003

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WASHINGTON POST: Enemy Combatant Vanishes Into a 'Legal Black Hole1 Wednesday, July 30, 2003 By Paula Span Second of two articles NEW YORK - It was the luck of the draw. Some other spring morning, Donna Newman would have encountered a different client in a prison jumpsuit, someone accused of fraud or drug trafficking. Instead, arriving at the federal courthouse in downtown Manhattan in May 2002, she met Jose Padilla. Newman serves on a panel of private practice attorneys who occasionally take on indigent clients facing federal charges. She accepts new cases two days a year. "I believe in defending indigents," she said. "You gotta give back." At the time, though, she had no inkling how much she was about to give. Padilla, arrested by the FBI at Chicago's O'Hare International Airport on May 8, had been flown east to appear before a grand jury as a material witness. The subject he supposedly had knowledge of — an al Qaeda pkn to detonate a "dirty bomb" in the United States — sounded scarier than most. Another alarming sign was that every time Newman set her pen down on the courtroom table during that first appearance, federal marshals handed it back to her, evidently so that Padilla couldn't seize it as a weapon. Still, for Newman, the procedures seemed largely routine — until June 9, when President Bush declared her client an enemy combatant and Padilla was hauled off to a brig in South Carolina. At that point, the Padilla case detonated, largely consuming Newman's practice, her leisure, her life for the coming year and plunging her into an extraordinary constitutional debate. The pivotal question: Can an American citizen, arrested on U.S. soil, be held incommunicado in a military prison indefinitely — without being charged with a crime, without access to a lawyer? The issue has ignited a fierce debate over civil liberties. It has been argued on the Senate floor and on op-ed pages, and Amnesty International has condemned Padilla's treatment as "an unprecedented suspension of fundamental rights of U.S. citizens in U.S. custody." Newman and her co-counsel, however, are grappling with a more pragmatic question: How do you represent a client you can't talk to? The Client The man was on the short side, clean-shaven; he looked younger than his 31 years, Newman recalled. And he was wearing what is known around the courthouse as "a three-piece suit" — wrist irons, leg irons and a connecting metal belt.

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ASSOCIATED PRESS: ACLU, Arab Groups Challenge Patriot Act Thursday, July 31,2003 By ANDREW KRAMER, Associated Press Writer PORTLAND, Ore. - The American Civil Liberties Union and several Islamic groups filed a lawsuit Wednesday against the federal government over a section of the USA Patriot Act that lets FBI agents monitor the books people read. The ACLU called the lawsuit the first direct challenge to the provision of the act that allows the FBI to secretly order librarians and others to disclose reading lists or other information as part of terrorism investigations. Librarians could not tell the patrons that the library had turned over records to the government and would be legally bound to secrecy forever under the part of the law targeted in the suit. The provision gives the federal government wide latitude to seize records, books and papers in investigations of terrorism, but the ACLU said it could also apply to innocent religious leaders, charity directors or doctors. "It's unnecessary, dangerous and un-American," said David Fidanque, director of the Oregon Chapter of the ACLU. The Justice Department defends the act as a crucial weapon in the war on terrorism. Spokeswoman Barbara Comstock said the section targeted by the lawsuit goes to great lengths to protect First Amendment rights and requires court approval to obtain records. "The Patriot Act was a long overdue measure to close gaping holes in the government's ability, responsibly and lawfully, to collect vital intelligence information on criminal terrorists to protect our citizens from savage attacks," Comstock said. The lawsuit targets section 215 in the anti-terror legislation, passed by Congress soon after the Sept. 11 attacks at the urging of the U.S. Justice Department. It waives the usual requirement of probable cause if the investigation involves terrorism, and allows federal officials sweeping authority to search the records of people not suspected of any crime. The FBI must prove to a court that the records have bearing on an investigation. The lawsuit was filed in Detroit, but includes a Portland mosque that has been at the center of a terrorist investigation. Mosque President Alaa Abunijem said investigators have already used traditional subpoenas to gather mosque records on the suspects and their families. Secret, so-called 215 orders "almost certainly" were part of the FBI's probe into the mosque's activities, said Ann Beelan, the ACLU's lead attorney in the case.

10

ASSOCIATED PRESS: Officials defend Patriot Act at public forum Wednesday, July 30, 2003 DETROIT — Federal officials defended the USA Patriot Act on Wednesday, the same day the American Civil Liberties Union announced a lawsuit challenging a provision of the act giving the FBI wider latitude to seize records, books and papers in investigations of terrorism. "I cannot think of a law that has generated more discussion and more debate than the Patriot Act," U.S. Attorney Jeffrey Collins said in opening remarks. "So I want you to understand the balance that is being done with regard to protecting civil liberties and protecting national security," he told the audience at the Wayne State University Law School auditorium. Collins and representatives from the FBI and the Bureau of Immigration and Customs Enforcement spoke to about 100 members of the public. Officials emphasized that many provisions of the Patriot Act have long been available to them in the investigation of criminal cases, and said the act expanded those provisions to terrorism investigations. They said the principles of due process and judicial oversight have not been diluted in that process. The ACLU called the lawsuit filed in Detroit the first direct challenge to a provision of the act allowing FBI agents secretly to order librarians, religious leaders, charity directors or doctors and others to disclose information from an individual's record. The suit, which names Attorney General John Ashcroft and FBI Director Robert Mueller as defendants, targets section 215 in the anti-terror legislation, passed by Congress soon after the Sept. 11, 2001 attacks at the urging of the U.S. Justice Department. Officials at Wednesday's forum said section 215 allows the government to obtain "business records," which they said could include library records, though the act makes no mention of libraries. It does not allow the government to create a "watch list" based on the books people check out from public libraries, they said. They also noted that section 215 may not be used against U.S. citizens or permanent residents when they are taking part in activities protected by the Fkst Amendment. Barbara McQuade, an assistant U.S. attorney in the counter-terrorism unit of Collins' office, said controversy over issues such as closed immigration hearings, war tribunals and immigrant detentions has been incorrectly attributed to the Patriot Act. "The Patriot (Act) has kind of become this lightning rod, a shorthand way of (criticizing) all that is wrong in the government post 9-11," McQuade said.

12

LOS ANGELES TIMES: Planned Sequel to Patriot Act Losing Audience

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As congressional critics of 'sneak-and-peek' searches gain ground, the Justice Department may shelve requests for expanded powers. Tuesday, July 29, 2003 By Richard B. Schmitt WASHINGTON — Six weeks after the Sept. 11 attacks, Rep. C.L. "Butch" Otter of Idaho was a lone wolf — arguing that Atty. Gen. John Ashcroft didn't need more power to fight home-grown terrorists. Otter was the only member of Congress to argue against the USA Patriot Act when the terrorismfighting kw was debated on the House floor. But these days, the Republican has plenty of company. And the Justice Department, which in recent months has drafted a measure that would expand its powers, may be on the retreat. Last week, the House overwhelmingly passed a measure that would repeal a portion of the Patriot Act, which had been passed while the rubble at the Pentagon and World Trade Center still smoldered. The so-called Otter amendment would take away federal investigators' power to conduct "sneak-and-peek" searches — unannounced searches of homes and businesses. The measure would be a small adjustment to the Patriot Act, but it indicates a growing belief among kwmakers that some investigators have abused their new powers and need to be held more strictly accountable. Those concerns may diminish any prospects for a sequel to the Patriot Act. Whatever the final fate of the Otter amendment, the Justice Department has voiced strong objections to the measure, declaring it the "Terrorist Tip-Off Amendment" in a letter to House Speaker J. Dennis Hastert (R-H1.) last week. No comparable measure has been introduced in the Senate, although proponents hope to find a sponsor soon. In a speech earlier this month, however, Otter was generally optimistic, telling business and community leaders in Boise, "Things are looking up." When Congress approved the Patriot Act about 21 months ago, the measure amounted to the legislative equivalent of a blank check. It was formally known as the "Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001." The sequel — dubbed Patriot Act II by critics but never officially proposed by the department — would have made it easier to hold suspects and deny them bail and included provisions that would set up a DNA database for people associated with terrorist groups and lift court orders barring police from spying on dissidents, among other features. But the recent release of a joint congressional report investigating the Sept. 11 attacks — and the nearly 900-page document's portrayal of the intelligence community as stunningly inept in tracking

22

A.B.A. Urges Wider Rights in Cases Tried by Tribunals

Page 1 of 3

-N'rtu jjork Suites

August 13, 2003

A.B.A. Urges Wider Rights in Cases Tried by Tribunals By JONATHAN D. SLATER

AN FRANCISCO, Aug. 12 - The American Bar Association called on Congress and the White House today to ensure that all defendants before military tribunals have adequate access to civilian lawyers. The resolution, approved by the group's policy-setting House of Delegates, criticized restrictions on lawyers representing accused enemy combatants before the tribunals. The association cited government monitoring of conversations between lawyers and their clients, not providing defense lawyers with evidence that might help their cases as is required in ordinary criminal cases, and preventing civilian lawyers from consulting with others to build their cases. The military tribunals were the Bush administration's proposal to handle prosecutions of accused terrorists. Defendants before the tribunals would be provided with a military lawyer, but civilian defense lawyers have voiced strong misgivings about the difficulties they would face in representing such clients. The resolution was approved with no debate by delegates at the

http://www.nytimes.com/2003/08/13/national/13TR...

8/13/2003

Palmer Raids Redux

The Pursuit of Immigrants in America After Sept. 11 By ADAM LIPTAK

T

ERRORISM, for America, may be a new threat, but according to a Justice Department report last week, Attorney General John Ashcroft has employed some old, discredited, means to fight it. The report, on the detention of 762 people on Immigration charges in the wake of the Sept 11, 2001, attacks, was issued by Glenn A. Fine, the department's inspector general It found that immigration laws were misused to establish a system to hold people, sometimes in exceptionally harsh settings, rather than charge them. The detentions were often supported by flimsy evidence and inconsistent criteria. Those detained were mostly Arab and Muslim men. Mr. Ashcroft has consistently defended what he has called "aggressive arrest and detention tactics in the war on terror" as needed to protect Americans. And the government didn't approach the scale of the abases in the last century, when large numbers of people were detained solely because of their politics or ancestry. In the Palmer raids of 1920, for instance, thousands of people, mostly immigrants, were rounded up in cities across America on suspicion of holding radical views. Many,

were beaten, held in intolerable conditions and forced to sign confessions. During World War II, about 110,000 people of Japanese ancestry, many of them American citizens, were held in internment camps. "We're probably much more sensitive to civil liberties than the country has ever been," said Cass R. Sunstein, a law prof^ssor at the University of Chicago. But if the number of people detained after the Sept. 11 attacks was relatively small, the Justice Department's tactics were surprisingly similar to earlier discredited practices. David Cole, a law professor at Georgetown and the author of a forthcoming book, "Enemy Aliens," said that the Justice Department rounded up people on mere suspicion. "Many of the people were locked up without any actual evidence of involvement in terrorism," he said. The problem, said Eric L. Muller, a law professor at the University of North Carolina and the author of "Free to Die forJTheir Country: The Story of the Japanese American Draft Resisters of World War II" (University of Chicago, 2001), is that thoughtful and measured analysis of the available data, particularly in the aftermath of a national emergency, is too much to ask of the government. £ There is a place, he said, for taking ac-

count of information about race or ethnicity, along with all of the other data available in modern law enforcement, in making judgments about an individual. But using race or ethnicity as the whole of the analysis is unacceptable, he said. Professor Muller has concluded, however, that the people charged with implementing

Ashcroft defended aggressive tactics against terror. these more subtle judgments may not be up to the job. ' "It's not the case that after 9/11 national origin had nothing to do with a personalized suspicion,"_he said. "But we're not good yet in confining our uses of race and ethnicity to very moderated, limited intrusions. We just don't do it very well. We can't trust ourselves to do a little bit of racial profiling." Nor does having a large modern intelligence apparatus necessarily mean having good intelligence or analysis to guide law

enforcement. "One of the things this report reveals," Professor Cole said, "is that Ashcroft was shooting in the dark and virtually every one of his shots missed." None of the detainees discussed in the report were charged with engaging in or aiding terrorism, though nearly all were guilty of overstaying visas, entering the country illegally or other immigration violations. Most have been deported, some after long periods of unwarranted detention. Public outcry over such restrictions on liberty has been substantial. But much of it has been focused on the few American citizens who have been detained, including Yasser Esara Hamdi and Jose Padilla, the two Americans labeled "enemy combatants" and held incommunicado for involvement with terrorist groups. Far less attention has been given the roughly 600 prisoners captured during the war in Afghanistan and held at Guantanamo Bay, Cuba. Eric M. Freedman, a law professor at Hof stra University, hopes the inspector general's report will start to change that He said that the problems revealed in the immigration detentions cast "renewed doubt on the soundness of the reasons for holding the Guantanamo people, who were picked up just as randomly but lack any sort of process whatsoever to check on the mistakes."

A mixed verdict on Tuesday in Deti where two Arab immigrants were convic of supporting a terrorist plot against potts, military bases and landmarks, w two others were cleared, also raised qt tions about the role the mfn's backgrou and political views played in the jui decision. The prosecution relied in pan what looked like a tourist's videotape t included prominent sites like Disneylan "At the very least," said Peter Margul a law professor at Roger Williams Unive ty, "in this climate, evidence like the vi that might be harmless in other contf may, as a practical matter, shift the bur of proof from the government to the deft ant It is also possible that a jury i consider the video in conjunction with ethnicity or nationality of the defends and draw inferences that are both compl ly impermissible and virtually impossibl combat" It is surely unfair to judge the gov ment's conduct only in hindsight A nati< security threat naturally elicits a rapid possibly risky response from the execu branch. At the same time, Professor Suns said, the historical record is pretty clt "In retrospect generally it seems we gage in civil liberties violations that tl was insufficient reason to engage in."

Un-American Activities Anthony Lewis Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism by David Cole. New Press, 315 pp., $24.95 The Times of London last May published a letter to the editor from Tony Willoughby of Willoughby & Partners, a firm of solicitors. "The head of IT [information technology] at our law firm," he wrote, is a Muslim. He is a gentleman in every sense of the word. His fanaticism, if he has any, is restricted to cricket. Last Sunday he went on a business trip to California. On arrival at Los Angeles he was detained and interrogated on suspicion of being a terrorist— For the first 12 hours he was refused access to a telephone. After 16 hours, not having been given any food, he asked if he could have some. He was given ham sandwiches and, when he explained that he could not eat pork, was told: "You eat what you are given." He did not eat. He was eventually escorted back to the airport in handcuffs and deported. Mr. Willoughby wrote to American officials seeking an explanation. He got back what he calls "a fobbing-off letter"—and his firm's laptop computer, which had been confiscated at the airport. Its data had been wiped out. That is a mild example, very mild, of what has happened to the US government's treatment of aliens since September 11, 2001. Mr. Willoughby's colleague was evidently picked out, treated with contempt, and denied entry to this country because of his religion and, possibly, his ethnic antecedents; his family came to Britain, decades ago, from Pakistan. But in a sense he was lucky. He was not detained for months in secret, prevented from calling a lawyer, humiliated and beaten by prison guards. All those things have happened to aliens swept off American streets at the order of Attorney General John Ashcroft. 1 he harsh treatment of aliens since September 11 has had little political attention. Relatively few Americans know or care much about it. In this powerful book, Enemy Aliens, David Cole shows why we should care, as a matter not only of humanity but of self-interest. He lays out the Bush administration's policies in the way they can best be understood, in their impact on individual aliens. His tone is measured, his legal hand sure. He lets the facts speak, and the result is gripping. Cole gives the most convincing view that I have read of the legal and bureaucratic threats that now face immigrants and visitors to America. But then he goes on to make an even more important point. The repressive measures that President Bush and Attorney General Ashcroft first took against aliens are now being applied to citizens. For the last two years more than 650 men and boys have been held in an American prison camp in Guantanamo Bay, Cuba. They were seized in 16

Afghanistan and are described by the US as "illegal combatants" attached to the Taliban or al-Qaeda. The Third Geneva Convention, to which the United States is a signatory, provides that their status must be determined by a "competent tribunal." But the Bush administration has declined to apply the convention or provide any independent process to check whether the prisoners were in fact fighting in Afghanistan or, as has been claimed for a number of them, were ordinary people just caught up in the fighting. Vice President Cheney said the prisoners were "devoted to killing millions of Americans." But officials now concede that no leading figures in the Taliban or al-Qaeda are in Guantanamo. The prisoners have included boys as young as thirteen. The Guantanamo detainees have not been allowed to consult lawyers. Efforts to bring habeas corpus actions on their behalf have been turned down by US courts on the ground that Guantanamo is not US territory. When an action was brought in British courts on behalf of a British citizen in Guantanamo, the Master of the Rolls, Lord Phillips, said, "We find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the US government on territory that the United States holds...under a longterm treaty." He called it "objectionable" that a prisoner had no chance to challenge the legitimacy of his detention "before a court or tribunal." Donald Rumsfeld, the secretary of defense, said recently that the Guanta-

namo prisoners would be held until the war on terrorism is over—which may be years or decades from now. Some may be tried before military tribunals, he said, but "our interest is in not trying them and letting them out. Our interest is in—during this global war on terror—keeping them off the streets, and so that's what's taking place." 1 he treatment of the Guantanamo prisoners may be regarded as an extreme in US policy toward noncitizens: they are held in indefinite detention, kept incommunicado and without access to counsel, with no hearing to determine whether they were in fact enemy combatants. But exactly the same is being done now to two American citizens, Yasser Hamdi and Jose Padilla. Padilla was born in Brooklyn, was brought up in Chicago, became a gang member, and was convicted several times. In prison he converted to Islam. After travel abroad he was arrested at O'Hare Airport, Chicago, on May 8, 2002. He was flown to New York by Justice Department agents, who served him with a warrant as a material witness before a grand jury investigating the terrorist attack on the World Trade Center. A federal judge set a hearing on the warrant and appointed a lawyer for him. Donna Newman. But two days before the hearing, Padilla was flown to a Navy brig in South Carolina and held as an "enemy combatant." There hefemains. For the last sixteen months Ms. Newman has been trying to speak with

Padilla, her client. A federal trial judge decided that she should be able to do so for the limited purpose of getting any facts casting doubt on his designation as an enemy combatant. But the Justice Department objected even to that, saying that any contact with a lawyer might hurt the effort to extract information from Padilla by destroying the desired "atmosphere of dependency and trust between the subject and interrogator." The case is now before the US Court of Appeals for the Second Circuit, in New York. A lawyer involved, not Donna Newman, told me it was "still hard to accept that we are having to argue that an American citizen, picked up at O'Hare Airport, has a right to see his lawyer." The Padilla case illustrates, Cole says, that "what we do "o foreign nationals today often paves the way for what will be done to American citizens tomorrow." In Padilla's case and Hamdi's, the transition came unusually fast. But it is virtually inevitable at some point, Cole argues: "The rights of all of us are in the balance when the government selectively sacrifices foreign nationals' liberties." What citizens have to lose was made dramatically clear when, last February, a private organization, the Center for Public Integrity, published a leaked draft of Justice Department legislation called the Domestic Security Enhancement Act. The legislation would provide that any American who supports the activities (even peaceful ones) of an organization the government designates as terrorist presumptively loses his or her citizenship. The citizen would become an alien. The attorney general could order all such unfortunate souls —and all lawful resident aliens—deported if their presence in the country was inconsistent with our "national defense, foreign policy or economic interests." It would be the most sweeping grant of unreviewable power to deport people since the ill-starred Alien Act of 1798, passed in a time of hysteria over French Jacobin terrorism, which authorized the President to deport "all such aliens as he shall judge dangerous." That statute expired after two years. The Domestic Security Enhancement Act, so-called, has never emerged as an official Bush administration proposal. But the fact that it reached the stage of a full draft says much about the state of mind of the Bush administration's lawyers—and about the folly of believing that we citizens can remain safe while rights are systematically assaulted. 1 thought I followed these things fairly closely, but I did not really appreciate the scope of what the Bush administration has done to noncitizens until I read this book. Ooon after September 11, Attorney General Ashcroft began a program of mass detention of assertedly suspect aliens in the country, targeting mainly Muslims and Arabs. At first the Justice Department issued a weekly running total of the number detained. But when it reached 1,182, on November 5, 2001, the department went silent, refusing to disclose any numbers. The New York Review

THE WASHINGTON POST

NATIONAL NEWS

DC MD VA M2

SATURDAY, MAY 24., 20o3" A3

FBI Apology Fails To Dissipate Cloud 8 Terrorism Suspects Confined on Bogus Tip By ROBERT E. PIERRE Washington Post Staff Writer

EVANSVILLE, Ind.—The food's the same at the Crazy Tomato. So are the prices and service. But what was a popular place for pasta 18 months ago now attracts a fraction of its regular clientele. Business plummeted after the restaurant's owner, Tarek Albasti, was arrested by the FBI with seven other Egyptian men as alleged terrorists plotting attacks against the United States. Pictured in prison stripes, the men were splashed across the front pages, ridiculed and shunned even after their release by people who assumed their guilt. Whispers about flying lessons and money trails from Evansville to Egypt spread rapidly. But the FBI said it had all been a mistake. And at a meeting last month with more than 100 people in the Muslim community here, the FBI offered a rare apology because suspicion about the arrests— which resulted from a bogus tip—hung over the men's heads for so long and disrupted their lives. "The situation that happened to you was horrible," Thomas V. Fuentes, the FBI's agent in charge in Indiana, said during a meeting at the Islamic Center of Evansville. "On behalf of the FBI, I will apologize " The gesture clears their names in a town they have struggled to make their permanent home. But it doesn't mend a once-thriving business or restore the community's trust. The men acknowledge the FBI was understandably wary and cautious after Sept. 11, 2001- But their understanding has its limits. As part of a national roundup in the weeks after the terrorist attacks, the "Evansville 8" were among 50 people held as material witnesses in maximum security jails without being charged with a crime. Thousands of more men from Middle Eastern countries were questioned, some arrested and detained, allegedly for links to terrorism, only to be let go or deported on immigration violations. Civil liberties groups protested that the arrests amounted to racial stereotyping. ^It didn't make any difference if I was a citizen or not as long as you fit the profile of an Arab or Muslim who has taken flying lessons," said Albasti, 31, surveying his near-empty restaurant Albasti was arrested along with his uncle and six friends and

co-workers on Oct. 11,2001. "It was quite a stunning development," Evansville Mayor Russ Lloyd Jr. said. It was a complete shock. People were saying, TVly gosh, this is Evansville.'" The city of 120,000 is predominantly white, and the Muslim community of 300 members at the city's only mosque is tiny. "These weren't some folks that juat happened to live in the same city with us," said the Rev. Daniel Schroeder, pastor of SL Matthew's United Church of Christ, a local pastor for 15 years. "We knew these people." All the men who had been detained knew each other in Cairo and had come to the United States seeking jobs that would allow them to send money home to their families. Albasti was the first to arrive in Evansville in 1994, a year after marrying native Carolyn Baugh, whom he met in Egypt while she was studying there. At first he was a busboy, then manager at the Crazy Tomato before he and his wife purchased the restaurant in 1997. An uncle came over to help them run it Then one friend after another, most former rowing PHOTOS BY TERMNCE JWTONIOIAMES-CMCA60 TR partners on his country's national team. Albasti hired three of the men. Tarek Albasti, one of the Egyptians held by the U.S. government, is embraced by his mother-in-law, Mary Frances Baugh. Albasti, who owns the Crazy Tomato restaurant in Evansville, has seen business declined. The men have been trailed by suspicion since the arrests. Their lives were simple: working as cooks and waiters, playing soccer in the morning, praying on Fridays at the and beatings he saw in the HBO series So when the meeting at the mosque was "Oz" would be visited on them during their announced, they attended, hoping to get mosque and socializing among themselves. For the men, Evansville, a sleepy stay at the federal detention center in Chi- answers. Albasti's in-laws (one a lawyer city on the Kentucky border, had been a cago. His uncle, Abdel Khalfl, who keeps and the other a writer) had argued all culture shock after life in a bustling methe restaurant's books, feared they would along that the material witness statute debe executed. None could understand ex- signed to compel testimony from frighttropolis of more than 10 million. "We knew America by the towers [in actly why they were being held, having on- ened or uncooperative witnesses had been ly been told they were material witnesses. misused to hold people indefinitely. The New York] and all that," said Mohamed Youssef, a waiter at the Crazy Tomato who "Witnesses for who? Witnesses for meeting was a way to get answers. "I expected nothing but heightened arrived four years ago. This was a quiet what?" Albasti said he thought to himself. city." They learned later that a lover's quarrel blood pressure," said Carolyn Baugh, Alhad done them in. The wife of fellow de- basti's wife. Potitics was never a hot topic. But the Khaled Nassr, one of the "Evansville 8" But they got an apology. 9/11 attacks changed everything. Four arrested in Indiana on the basis of a fake tainee Fathy Saleh Abdelkalek, apparently in anger, told the FBI that her husband was They were wrongly accused," FBI days after the attacks, Albasti was visited tip in Indiana after Sept. 11,2001, attacks. suicidal and had planned to die in a crash. Agent Fuentes said in a later interview. by the FBI, who wanted to know about flyin, though, they assumed things would Authorities took it seriously. They have almost lost their business. ing lessons he had taken. They had been a gift from his father-in-law, a local attorney. pass away in a few hours. It turned out not to be true, and when This is something that has affected them in "I thought they would ask us some gen- the man was released, he returned to every possible way. Anybody being acBut the agents wanted to know more, about what he knew about terrorism and eral questions and it would be over with," Egypt along with one of the other men. cused falsely of something that serious is Osama bin Ladea He answered They said Khaled Nassr, 27, who has been in the The six who remained tried to put the in- like a teacher being accused of molesting a United States for three years. cident behind them. But it kept dogging child. It's hard to come back from that You went away. Hours turned into overnight and then a them. Returning from a recent trip to can see... months later, the tears are still Less than a month later, the FBI was back. This time, Albasti and his uncle were week in custody. They were paraded be- Egypt, one man was held in the airport for ready to flow." Even so, Fuentes said the FBI had no arrested as they cooked pasta at the restau- fore cameras, flown to Chicago escorted five hours because his name came up in the rant The other men were picked up at by armed U.S. marshals. Tears flowed. computer as being under federal investiga- choice. "Action had to be taken," he said. "I work or at home. One had been waiting for Their wives and girlfriends—unable to tion. One was turned down for an apart- did not apologize that the FBI was forced the lawmen, having heard about the oth- talk to them—also were left in the dark. Al- ment for the same reason. All have had a to take them into custody. That was someers' arrests. Aware of Albasti's earlier run- basti imagined that the horrors of rapes cloud over their heads. thing that had to be done."

LEXINGTON HERALD-LEADER WWW.KENTUCKY.GOM

KENTUCKY VOICES

MONDAY

APRIL 28, 2003

Don't treat immi^knts as enemies By Kevin O'Neil The administration announced the registraThe United States has a long and complex re- tion program with minimal notice, inaccurate translations of registration procedures and underlationship with immigration. During times of peace and prosperity, we tout immigration as one staffed offices that gave inconsistent information about the documents needed when registering of the cornerstones of our economy and national and,the right to legal representation. The pro- identity. Conversely, in times of strife and congram evoked fresh memories of the post-9/11 deflict, immigrants become the target of some of tentions, in which 1,200 or more people were deour most shameful and discriminatory acts. tained and held for immigration violations withWe have learned,; however. There is wideout being charged with a terrorism-related crime. spread acknowledgement .that the internment of Fear increased when registrants living in this Japanese-Americans during World War II was a cruel overreaction to an imaginary threat. To see country legally were detained because of errors by immigration officials. As a result, America the dedication most immigrants have to their has, for the nist time in its history, become a new country, we need look no further than the first U.S. soldier killed in combat during the cur- place1 from which people flee. Hundreds of people from Muslim countries, some of whom have rent war in Iraq. Lance Cpl. Jos£ Gutierrez was born in Guatemala, granted asylum in the United legal permission to live here, fled to Canada. .They think that a country which once welStates and died defending his adopted country. comed them now targets them because of their At the time of his death, he was one of 31,000 religion or nationality. Some are terrified of non-U.S. citizens serving in our military. A trusting a poorly managed program that has deIn fact, immigrants are making exceptional contributions to U.S. war efforts and national se- tained and deported many. Others, too scared to register,but determined not to leave their new , curity. The FBI and Bureau of Immigration and Customs Enforcement recently began conducting home, now live in fear of deportation. It is unlikely that the registration will help voluntary interviews of about 11,000 Iraqi immicapture terrorists. As a short-term security stratgrants in the United States. Just as they did in ; egy, it is equivalent to,asking terrorists to turn the 1991 Gulf War, thousands of Iraqi immithemselves in. The administration's poorly grants have provided information that may proplanned efforts have only intimidated immitect Americans at home and in Iraq. grants, discouraging them from turning to law At its best, the program is an example of enforcement authorities. This, in turn, makes it strong cooperation between immigrants arid the harder to improve national security. Had the adgovernment: FBI and immigration officials have ministration worked in advance with immigrant met with immigrant groups to explain the need communities, applied the Special Registration for interviews, invited interviewees to have program to all visitors from all countries, and lawyers or advocates present and pledged to investigate hate crimes,, committed against the Iraqi made the registration and detention procedures orderly and transparent, it could have added to community. tJnforttifiately, other efforts by the intelligence information, verified the legatstatus Bush administration have treated immigrants and visitors as enemie^irather than allies. As a result, of ipost temporary visitors and made immigrants think their civil liberties'were being protected. the government has alienated large groups while sfThe Bush administration needs to regard imdoing little/to improve national security. migrants as allies. Security programs based on The administration's "Special Registration*** outreach and integration instead of suspicion are program is one such; example. The program' renot only more consistent with our national valquires male foreign visitors, from predominantly ues, they are more likely to make us safer. Arab and Muslim countries to register with the government. Those who do not register are subject to deportation, even if they are in the United Kevin O'Neil, a native of Lexington and a graduate of States legally. The vast majority is eligible to beDunbar High School, is a research associate at Migration Policy Institute in Washington, D.C. come permanent residents and citizens.

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CDT Cyber Security: Response to September 11, 2001 Terrorist Attacks

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CENTER FOR DEMOCRACY & TECHNOLOGY lOiir Mission / (k.'t Involved / Stall' / Publications / Links / Search CDF / Jobs / Action!

August 31, 2003

Security & Privacy

ACTON

Response to September 11, 2001 Terrorist Attacks

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Wiretap Overview k Overview Government Surveillance of Telephones and the Internet

Search & Seizure The Dept. of Justice has written a manual on the rules for seizing evidence stored in computers. "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal investigations^

Carnivore Carnivore is a computer program designed ^•vby the FBI to intercept Internet communications.

CDT joins the nation in grief and anger over the devastating loss of life resulting from the terrorist hijackings and attacks against the World Trade Center and the Pentagon. Responding to these attacks and the threat of future ones is testing our collective resolve to maintain the freedom, openness and diversity that defines and enriches our society. CDT believes that surrendering freedom will not purchase security, that democratic values are strengths not weaknesses, and that open communications networks are a positive force in the fight against violence and intolerance, more PATRIOT 11

• ACLU. "How Patriot Act 2 Would Further Erode the Basic Checks on Government Flower That Keep America Safe and Free." [pdf] March 20, 2003 • Letter to Speaker of the House from civil rights/civil liberties coalition, March 2003 • Letter from civil rights/civil liberties coalition [pdf], March 17, 2003 • Analysis of PATRIOTJI by ACLU, Feb. 14,2003

OMB to know [pdf], Feb. 13, 2003 Analysis of PATRIOT II by Prof- David Cole [pdf], February 10,2003 Text of the PATRIOT II Act: [html] [pdf- 13MB] USA PATRIOT Act

ct [pdf] Oct. 26, 2001 Redlines prepared by the Electronic Commerce & Privacy Practice Group of the Washington, DC law firm of Piper Marbury Rudnick & Wolfe LLP, and others showing how existing law was modified by the USA PATRIOT Act o Changes to the posse comitatus law and to IEEPA, made by Title I of the USA PATRIOT Act [pdf] o Changes to the electronic surveillance laws (ECPA, FISA,

http://www.cdt.org/security/010911response.shtml

8/31/2003

7

SYMPOSIUM

Irving R. Segal Lecture in Trial Advocacy

ABRAMS SAYS WAR ON TERRORISM SUPERCEDES CIVIL LIBERTIES War, when President Lincoln waived the writ of habeas corpus; and World War II, when Japanese citizens living in America were interned in detention camps. Although Abrams recognized these acts as misguided, he nevertheless*, defended current treatment of "enemy combatants" as necessary, given the attacks on September 11.

Celebrated Constitutional lawyer Floyd Abrams launched a direct hit across the bow of civil liberties when he defended the U.S. government in its efforts to detain suspected terrorists. Abrams said the current situation poses a delicate assessment of national and personal security versus principles of civil liberties. In this year's Irving R. Segal Lecture in Trial Advocacy, Abrams said he believes the imminent danger from al-Qaeda justifies holding "enemy combatants" without a right to counsel, even though no criminal charges have been filed against them. Abrams, a partner at Cahill, Gordon & Reindell in New York, also said he supports increased surveillance and monitoring of suspected terrorists, including photographing and fingerprinting students or businesspeople from Arab countries. That monitoring may also mean the FBI has to attend religious or political meetings, if remarks or activities in a mosque, for instance, present a potential danger to Americans, Abrams said. Speaking on "The First Amendment and the War Against ^rrorism," Abrams noted precedents for suspension of .ivil rights: The Sedition Act of 1789, which permitted the arrest of citizens who defame the government; the Civil

"If I thought the al-Qaeda threat was a passive one or equivalent to the Barbary pirates... I certainly would not at all be ready to make some of the painful compromises that I think must be made between the claims of security and freedom," Abrams said. On the other hand, the man who represented The New York Times in the famous Pentagon Papers case argued that the United States should maintain freedom of the press and access to information. "The more power we give the government, the more important it is for the press to be utterly free to criticize the manner in which the government has behaved and ... to be knowledgeable about what the government has done." Consequently, Abrams said he believes the media must be allowed to inform the public on who is being detained and for how long, without restrictions or fear of reprisal, as has been the case thus far. Abrams current position on civil liberties, however, represents a departure for him. In 1994, Abrams served on a Civil Liberties Advisory Committee created after the first attacks on the World Trade Center. Then, he insisted that an automated profiling system not include race, religion or the national origin of U.S. citizens. Post 9/11, he calls for accommodations in the rule of law, based on the level of threat to public safety. We must assess risk and draw balances accordingly, Abrams said. "As our security risks have risen there will be no easy answer about how to reconcile the two claims (security and civil liberties), and I think we had better keep our minds open as we attend to the painful task of determining how to do so," Abrams concluded.

9-11 COMMISSION DAILY PRESS CLIPS 11.16 months behind bars - and counting - for 9-11 detainee By TOM HAYS Associated Press Writer Sadek Awaed says he remembers weeping only twice in his life: once when his father died, the other when terrorists destroyed the World Trade Center. "Whatever hurts this country, hurts me," he says. The 31-year-old cab driver from Egypt claims that he tried to help the FBI identify terror threats before authorities jailed him in New Jersey for immigration violations. Sixteen months later, he is still behind bars. Awaed is among a small number of Arab and Muslim men detained in the six months after the Sept. 11 attacks who remain in custody. The exact number of such cases from that tense period is difficult to determine. Officials have refused to discuss the detainees, citing confidentiality rules and national security. An audit by the Justice Department's inspector general put the tally of Middle Eastern men detained in the FBI dragnet at 762, with most of them now deported. Immigration lawyers say many were victims of a new brand of police profiling. The inspector general's report also found "significant problems" with the detentions, including allegations of physical abuse. Civil liberties groups have noted that only one of those detained, Zacarias Moussaoui, has been charged with any terrorism-related crime. He is charged as a conspirator in the Sept. 11 attacks. Awaed's lawyer, Sin Yen Ling, said he may be in a category of his own: a "quasiinformant" who was cast aside by the FBI, jailed without committing a serious offense and ordered deported to Egypt. There, he faces repercussions for his past affiliation with the outlawed fundamentalist group the Muslim Brotherhood, she said. "He's dealing with the same type of persecution here that he would there," Ling said. "There's no reason he's been in jail for the past 16 months, except for his national origin and religion." PRESS CLIPS FOR SEPTEMBER 17, 2003

AILA BACKGROUNDER Social Security and Immigration The Social Security Administration (SSA) has several programs and policies that directly impact our immigrant population. Several of these programs underscore the fact that numerous American businesses depend on foreign workers, many of whom are unable to obtain proper documentation, and these workers are paying taxes and contributing to Social Security. Without comprehensive immigration reform that would enable these workers to regularize their status and obtain proper documentation, the SSA will never be able to achieve important policy objectives such as reducing the earnings suspense fund or correcting its databases and records. Furthermore without this reform, American businesses will be denied the legitimate workers they need, and the undocumented communities that need to be brought out of the shadows in order to separate contributing individuals from those that may be here to do us harm could be driven farther underground. No-Match Letters: The SSA annually reviews W-2 forms and credits social security earnings to workers. If a name or a Social Security Number (SSN) on a W-2 form does not match SSA records, the Social Security earnings go into a suspense file while the SSA works to resolve discrepancies. In recent years, the SSA has been unable to match employee information with SSA records for 6-7 million workers a year. SSA has deposited $280 billion dollars in the earnings suspense file as a result of the cumulative effect of these no-matches. The no-match letters are an annual attempt by the agency to reduce the earning suspense file and clean up its database to prepare for the release of its new Internet based Social Security Number Verification System (which is discussed later in this backgrounder). Previously, the SSA would send no-match letters to employers when information submitted for at least 10% of their employees did not match SSA records. Until 2000, that system resulted in about 40,000 letters sent annually to employers. In 2001, that number jumped to 110,000 letters, with 1 in 60 employers receiving no-match letters. In 2002, the SSA sent a letter to every employer who had at least one employee whose information did not match the SSA's records. This change in practice resulted in the SSA issuing roughly 900,000 letters, the equivalent of 1 in 8 employers receiving these letters. Approximately 7 million workers were included on these letters. The sheer volume of no-match letters sent out last year, combined with language in the no-match letter indicating that the Internal Revenue Service (IRS) could fine an employer for each incorrectly reported social security number, resulted in panic and uncertainty among both employers and employees. Despite language indicating otherwise, the letters were confused with notification of immigration violations. Even savvy employers were very confused as to how to respond to the letters and at the same time obey the immigrant worker protection laws. Some employers immediately fired individuals appearing on the list. Others gave employees a limited timeframe to correct the inconsistent information. In some cases, employees resigned immediately after being notified of their no-match status. Reports indicate that U.S. employers lost thousands of workers due to the effects of the no-match letter. For 2003, the SSA has made significant changes to the number of no-match letters it will issue. Letters will only be sent to those employers with more than 10 employees with mismatched information or for whom mismatched employees represented !/2 of 1% of the W-2 forms filed with SSA. In total, the SSA is expecting to send out approximately 130,000 letters, roughly AMERICAN IMMIGRATION LAWYERS ASSOCIATION 918 F Street, NW Washington, DC 20004 Phone: (202)216-2400 Fax: (202)783-7853

13,000 Muslims face deportation; Registration drive finds few threats New York Times June 7, 2003 By Rachel L. Swarns, More than 13,000 of the Arab and Muslim men who came forward earlier this year to register with immigration authorities-roughly 16 percent of the total-may now face deportation, government officials say. Only a handful of the men have been linked to terrorism. But of the 82,000 who registered, more than 13,000 have been found to be living in this country illegally, officials say. Many had hoped to win leniency by registering and demonstrating their willingness to cooperate with the government's campaign against terror. The men were not promised special treatment, however, and officials believe most of them will be expelled in what is likely to be the largest wave of deportations in the wake of the Sept. 11 terrorist attacks. The government has initiated deportation proceedings, and in immigrant communities across the nation, an exodus has already begun. Still, the effect of the registrations is being felt more broadly, and with far more nuance, than that stark statistic—13,000 men over the age of 16~can express. Quietly, the fabric of their neighborhoods is thinning. Families are packing up, and some are splitting up. Rather than come forward and risk deportation, some immigrants have burrowed deeper underground. Others have simply left—for Canada or for home. The deportations are a striking example of how the Bush administration is increasingly using the nation's immigration system as a weapon in the battle against terrorism. For decades, illegal immigrants have often flourished in plain view because officials lacked the staff, resources and political will to deport them. But since the attacks on the World Trade Center and the Pentagon, the government has been aggressively detaining and deporting illegal immigrants from countries considered breeding grounds for terrorism. "There has been a major shift in our priorities," said Jim Chaparro, acting director for interior enforcement at the Homeland Security Department, the agency that has subsumed the old immigration service. "We need to focus our enforcement efforts on the biggest threats," he added. "People may not like that strategy, but that is what we need to do. If a loophole can be exploited by an immigrant, it can also be exploited by a terrorist." Advocates for immigrants warn that that strategy—indeed, the administration's sweeping reorientation of law enforcement toward terrorism prevention—can be abused by overzealous government officials. The advocates also have accused officials of practicing selective enforcement by targeting illegal immigrants from Arab and Muslim countries.

Message

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Joanne Accolla ——* .From: Jent: To:

Betty Swope [[email protected]] Wednesday, September 03, 2003 7:50 AM [email protected]

Subject: Emailing: 03AIR.htm this (the part about using fis personnel for air marshals) certainly raises some issues especially about deployment of existing border inspection resources, we'll have to wait and see if it's just for emergencies or what, the cross training of others is comparable to what has been done on the landborders. enjoy.

September 3, 2003

Border Inspectors to Be Trained for Several Jobs By MATTHEW L. WALD

ASHINGTON, Sept. 2 — The Department of Homeland Security plans to train thousands of inspectors at airports, seaports and highway border crossings so that each can conduct immigration, customs and ^riculture checks, functions now performed by three different people, the department secretary said today. The secretary, Tom Ridge, also said that 5,000 law enforcement officers who work at immigration and customs would be trained to work as federal air marshals so they could be shifted to airliner duty when the department believed that the hijacking threat was high. The cross-training will help the department respond better to intelligence tips, Mr. Ridge said. "You've got to be as adroit and flexible as the enemy," Mr. Ridge said in a speech at the American Enterprise Institute, a conservative think tank here. He said he was trying to wring full advantage out of moving the various agencies into a single department and rationalizing their work. Some inspectors at Dulles International Airport outside Washington, Los Angeles International, Kennedy International in New York and Houston Intercontinental have already been trained in all three functions, said Gordon Johndroe, a spokesman for the department. All inspectors will be retrained within a year. The other cross-training, taking law enforcement officers from the Bureau of Immigration and Customs Enforcement and teaching them to operate in an airliner cabin, will more than double the number of people available to work as air marshals, people familiar with the program said. (The exact number of air marshals is secret.) It was not clear what effect this would have on the number of marshals on duty in airliner cabins at any *en time. "In the past, if we wanted to cover a certain array of flights, that potentially could mean a federal air marshal would have to be moved from one flight he was covering to another, leaving the original flight uncovered," Mr. 9/3/2003

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Jim Hoagland

George F. Will

Doing Democracy Right...

. . . Or Maybe Not atAll

Arab rulers have created great cities and citadels throughout their realm. But they have not produced a successfully functioning modern state. It is audacious of President Bush and his national security adviser, Condoleezza Rice, to think that Americans can achieve this outcome in Iraq. • Audacious—but not impossible. To succeed, they must develop and communicate a clear vision that fills in details omitted in Rice's recent statements on America's "generational commitment" to Iraq. Here are some thoughts on what that vision should contain: It should be based on developing a self-governing administration that will initially be involved in and then quickly become wholly responsible for decisions that shape the medium- and long-term future of Iraq. An embryonic national political process is in fact underway in Baghdad. It urgently needs to be encouraged, accelerated and elevated. From privatizing industry to determining the national standard for a cellular phone system, Iraqis must be visibly and effectively involved now in decisions that they will have to live with long after occupation ends. That unfortunately is not the case nearly four months after major combat ended. In particular, U.S. involvement in economic decisions in a country conquered by American arms must do more than diminish over time: It must be totally transparent and above reproach. U.S. honor, as well as the effectiveness of the political and cultural transformation effort in Iraq, depend on U.S. officials, politicians and business leaders not misusing positions or influence to create uneven playing fields for themselves, their friends or their clients, or for favored Iraqis.

There must be no giving in to the temptation to play empire or to seek unfair advantage in Iraq. Throughout the 20th century, the United States helped rid the world of colonialism, even though it did not do all it could all the time. It is neither in America's interest nor in its nature to try in the 21st century to establish a neocolonial economic dependency in Iraq. The administration has already been taken to task for favoring Vice President Cheney's old firm, Halliburton, and giant Bechtel Corp. in initial reconstruction contracts. U.S. and corporate officials deny any favoritism. And strong pressure for political intervention is likely to be exerted in Congress as constituents press their elected representatives for help in acquiring lucrative pieces of the Iraqi pie. This lobbying, which is much more difficult for critics and the press to follow, is already underway, as shown by a recent, misguided and unsuccessful attempt to restrict a new wireless phone network in Iraq to U.S. standards. Congressional delegations visiting Baghdad this summer and autumn will find a familiar face on hand to greet them—Tom Korologos, who recently retired as one of Washington's most effective corporate lobbyists. Korologos was dispatched to Iraq by the Pentagon to help establish and run the beleaguered occupation authority. He will also acquire an unrivaled view of future business opportunities there. Other countries should be free to share in Iraq's economic opportunities and its burdens. An international conference in October to generate aid pledges for Iraq will usefully illuminate which countries are prepared for both.

But it is illusory to allocate contracts to other countries to lure them into joining a peacekeeping force sponsored by the United Nations or to expect that such a force would be created or effective if American and British troops left, as Bush's critics advocate. The United Nations enforced economic sanctions against Saddam Hussein's regime for a dozen years. Neither Baathist dead-enders nor the lunatic followers of Osama bin Laden and his murdering kind will respect U.N. "blue helmets." Nor is the Iraqi population likely to be as sympathetic to a U.N. command as many of those urging that approach on Bush assume. Ensuring equal economic opportunity for Iraqis and foreigners alike performs a more fundamental political task: It will reduce or help eliminate the resentments and anxieties against exploitative foreign domination that fed Arab nationalism at its creation at the beginning of the last century. Political commitment in the Muslim Middle East historically runs first to tribes or to cities, not to nation-states whose boundaries were drawn by colonial fiat. But a feeling of being exploited or cheated would amplify and embitter Iraqi nationalism and make it an enduring counterforce to U.S. objectives in the region, just as Arab nationalism was born out of World War I and colonial occupation. Bush and Rice see great opportunities. They deserve credit for their idealism and ambition. But they must also keep their eyes on the great dangers in the Middle East that rise not from American weakness but from America's strength and ability to force its will on others.

jimhoagland^washpost. com

U.S. warships carrying 2,300 Marines are off Liberia's coast, U.S. forces still are in harm's way in Afghanistan, and the number of U.S. military deaths in Iraq since May 1, when President Bush declared major combat operations over, is drawing closer to the total military deaths before May 1. But some people think America is underengaged abroad. For example, the presidents of Oxfam America and Refugees International, writing in The Post in support of intervention in Liberia, urge the Bush administration to confront "head-on" many crises: "Central Asia, the Balkans and Western Africa are areas of the world that provide too many examples of what happens when U.S. power is not used proactively." Such incitements to foreign policy hyperkinesis can draw upon the messianic triumphalism voiced by British Prime Minister Tony Blair in last month's address to a rapturous Congress: "There is a myth that though we love freedom, others don't; that our attachment to freedom is a product of our culture; that freedom, democracy, human rights, the rule of law are American values, or Western values; that Afghan women were content under the lash of the Taliban; that Saddam was somehow beloved by his people; that Milosevic was Serbia's savior. ... "Ours are not Western values, they are the universal values of the human spirit. And anywhere, anytime ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the secret police." Neoconservatives seem more susceptible than plain conserva-

tives are to such dodgy rhetoric and false assertions. Disregard Blair's straw men: No one says Afghan women were "content," Saddam was "beloved" and Milosevic was a "savior." But Blair suggests that unless you believe such preposterous things, you surely believe that "freedom, democracy> human rights, the rule of law" are not exclusively Western values. But what does that mean? Certainly not only Westerners value, or can come to value, those things. But certainly not everyone everywhere shares "our attachment to freedom." Freedom is not even understood the same way everywhere, let alone valued the same way relative to other political goods (equality, security, piety, -etc.). Does Blair believe that our attachment to freedom is not the product of complex and protracted acculturation by institutions and social mores that have evolved over centuries that prepared the social ground for. seeds of democracy? When Blair says freedom as we understand it and democracy and the rule of law as we administer, them are "the universal values of the human spirit," he is not speaking as America's Founders spoke of "selfevident" truths. They meant truths obvious to all minds unclouded by superstition and other ignorance. Blair seems to think: Boston, Baghdad, Manchester, Monrovia— what's the difference? Such thinking is dangerous. Blair's argument is true only, if it is trivial: "Ordinary" people choose freedom, democracy and the rule of law because those who do not so choose prove thereby that they are not ordinary. But there are a lot of them in the world. Some of them are waging

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guerrilla war against American forces in Iraq. Blair's thinking is Bush's, too. "There is a value system that cannot be compromised, and that is the values we praise," the president says. "And if the values are good enough for our people, they ought to be good enough for others." , But one must compromise in the face of facts, those stubborn things. It is a fact that not everyone is inclined to praise "the values we praise." And not every society has the prerequisites—of institutions (political parties, media) and manners (civility, acceptance of pluralism)—of a free society. Bush and Blair and many people called neoconservatives believe that moral objectives in politics are universally applicable imperatives. If so, then either national cultures do not significantly differ, or they do not matter or they are infinitely malleable under the touch of en lightened reformers. But all three propositions are false and antithetical to all that conservatism teaches about the importance of cultural inertia and historical circumstances. Blair followed the passage quoted above with these words of Lincoln's: "Those that deny freedom to others deserve it not for themselves." Lincoln's subject was Americans' complicity in American slavery. But Blair's muddled implication is that a nation that refuses to use force on behalf of all unfree people is denying them freedom. The premise—that terrorism thrives where democracy does not —may seem to generate a duty to universalize democracy. But it is axiomatic that one cannot have a duty to do Something that cannot be done. .

[email protected]

U.S. Backs Florida's New Counterterrorism Database i

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'Matrix' Offers Law Agencies Faster Access to Americans'Personal Records < By ROBEHT O'HAXBOV JH. Washington Post Staff Writer

Police in Florida are creating a counterterrorism database designed to give law enforcement agencies around the country a powerful new tool to analyze billions of records about both criminals and ordinary Americans. Organizers said the system, dubbed Matrix, enables investigators to find patterns and links among people and events faster than ever before, combining police records with commer-

cially available collections of personal inThe Florida system is another example of formation about most American adults. It would let authorities, for instance, instantly the ongoing post-Sept. 11 debate about die find the name and: address of every brown- proper balance between national security and haired owner of a red Ford pickup truck in a individual privacy. Yesterday the District and tiie Department of 'Homeland Security 20-mile radius of a suspicious event The staterlevel program, aided by federal * announced plans to launch a pflot law enforcefunding, is poised to expand across the nation ment data-sharing network that will include at a time when Congress has been sharply crit- Virginia, Maryland, Pennsylvania and New < :'.. . • - . . ' . . . - :<;/., ical of similar data-driven systems on the fed- York. Paul S. Cameron, president of Seisint Inc., eral level, such as a Pentagon plan for global surveillance and an air-passenger-screening the Boca Raton, Fla., company that developed

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CNN.com - Post 9/11 detainees await freedom - Sep. 17, 2003

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Post 9/11 detainees await freedom

martindale.com

Wednesday, September 17, 2003 Posted: 11:38 AM EOT (1538 GMT)

LAST NAME: FIRST NAME:

NEW YORK (AP)--Sadek Awaed says he remembers weeping only twice in his life: once when his father died, the other when terrorists destroyed the World Trade Center.

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"Whatever hurts this country, hurts me," he says. The 31-year-old cab driver from Egypt claims that he tried to help the FBI identify terror threats before authorities jailed him in New Jersey for immigration violations.

Attorney Sin Yen Ling represents an Egyptian-born man who was detained after 2001 terror attacks.

Story Tools Sixteen months later, he is still behind SAVE THIS ffr^l EMAIL THIS bars. Awaed is among a small number of Arab and Muslim men detained in fifQi PRINT THIS P -ft* MOST POPULAR the six months after the September 11 attacks who remain in custody. The '"""""""'"' ——~ •--— ——. . exact number of such cases from that tense period is difficult to determine. Officials have refused to discuss the detainees, citing confidentiality rules and national security. An audit by the Justice Department's inspector general put the tally of Middle Eastern men detained in the FBI dragnet at 762, with most of them now deported. Immigration lawyers say many were victims of a new brand of police profiling. The inspector general's report also found "significant problems" with the detentions, including allegations of physical abuse. Civil liberties groups have noted that only one of those detained, Zacarias Moussaoui, has been charged with any terrorismrelated crime. He is charged as a conspirator in the September 11 attacks.

44 There's no reason he's been in jail for the past 16 months, except for his national origin and religion. 99 -- Sin Yen Ling, attorney for Arabborn detainee

Awaed's lawyer, Sin Yen Ling, said he may be in a category of his own: a "quasi-informant" who was cast aside by the FBI, jailed without committing a serious offense and ordered deported to Egypt. There, he faces repercussions for his past affiliation with the outlawed fundamentalist group the Muslim Brotherhood, she said.

"He's dealing with the same type of persecution here that he would there," Ling said. "There's no reason he's been in jail for the past 16 months, except for his national origin and religion." Federal officials declined to discuss Awaed's case.

http://www.cnn.com/2003/LAW/09/17/attacks.detained.ap/index.html

9/17/2003

THE NEW YORK TIMES NATIONAL TUESDAY, SEPTEMBER 9, 2003

TWO YEARS LATER: Tracking Immigrants THE DETAINEES

for Terror Inquiries jtill Fall Short, Report Says By ERIC LICHTBLAU

WASHINGTON, Sept. 8 — The Justice Department, criticized for its treatment of hundreds of illegal im\migranls jailed after the terrorist ^attacks of Sept. 11, 2001, has not done enough to avoid a repeat by spelling out clear criteria for determining who is considered a terrorist suspect, an internal report concluded today. In Us report, the Justice Department inspector general's office said federal authorities had not developed adequate plans for classifying illegal immigrants arrested in (error investigations to ensure that those with no ties to terrorism would be cleared quickly and adequate F.B.I, resources would be devoted to such investigations. The inspector general's report offered a mixed verdict on the progress the authorities had made in avoiding the pitfalls surrounding the arrests of more than 700 illegal immigrants after the 9/11 attacks. Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said the inspector general had "properly given both the Justice Department and the Department of Homeland Security an 'incomplete' " in meeting their pledges to fix the systematic problems surrounding the Sept. 11 detentions. "Both agencies need to address M—^constructive recommendations

Procedures for determining suspects are faulted. without further delay," Mr. Leahy said. "They need to develop policies and practices that will prevent a recurrence of the haphazard way in which the 9/11 detainees were treated." An earlier investigation by the inspector general into the handling of 9/11 detainees, concluded in June, triggered outrage and calls for changes from members of Congress and civil rights groups. That investigation found that hundreds of illegal immigrants with no clear ties to terrorism were allowed to languish in custody after the 9/11 attacks because the Federal Bureau of Investigation and other federal officials did little to establish whether they had legitimate links to terrorism. Investigators found that some of the illegal immigrants jailed in Brooklyn faced a pattern of physical and verbal abuse from their jailers and were confined in unduly harsh conditions. Attorney General John Ashcroft and other Justice Department officials have said they made "no apologies" for using every legaf means in their arsenal to protect Americans from another terrorist attack. Nonetheless, officials have pledged to find w-""^ working out kinks in the 1 ncluding the establishment i jriteria for determining who shoL.u be considered a possible suspect in a terrorism investigation.

The inspector general's assessment released today found that officials at the Justice Department and the Department of Homeland Security had indeed taken steps to try to correct the problems identified in the June investigation. "I'm pleased that both departments appear to be taking these problems seriously," Glenn A. Fine, the inspector general, said in an interview. "I don't think this is just lip service." But the report found that those changes had often been too slow and loo ill defined to ensure that abuses were not repeated. For instance, Homeland Security officials told the inspector general that they had developed "a cleatchain of command" in the past several months to allow field offices to review cases in which inmates were held more than 90 days past their scheduled release date. The new system is intended to avoid problems that arose after the 9/11 attacks when many illegal immigrants were field long past their release dates while immigration officials waited for the F.B.I, to determine whether they had terrorist ties, officials said. But the inspector general said that the new plan was too vague to ensure the policy was consistently followed, and requested that Homeland Security officials provide a detailed plan by October. Similarly, the inspector general said the Justice Department had not specifically addressed problems that slowed previous investigations of illegal immigrants, including F.B.I, delays in sending requests to the Central Intelligence Agency for information, computer problems and other communication breakdowns. Barbara Comstock, a spokeswoman for the Justice Department, said, "We've been aggressively responding to the inspector general's recommendations, and we're pleased that the inspector general recognized that we're taking this issue seriously." As for charges that those steps have been slow and ill defined, she said, "It's an ongoing process, and this is a priority for us." But the Justice Department took issue with some of the inspector general's recommendations. It rejected the idea, for instance, that it needed to develop a process for reassessing policy decisions made in crisis situations, like the one that gave the F.B.I, the power in 2001 to hold illegal immigrants in indefinite custody until they had been cleared of any possible terrorist ties. Justice Department officials said that "there are already ample processes in place for the department to reassess its practices and policies." Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, said he was encouraged to learn that officials appeared to be taking serious steps to eliminate I abuses. "I would hope that we've learned from the past and we realize that a wholesale roundup of individuals based largely on their race, religion or national origin is counterproductive to national security and goes against our basic values of due process," Mr. Hooper said.

Page 1 of 1

The Globe and Mail

gisbeandmail.com Ottawa compensates man after terrorism accusation Friday, Oct. 3, 2003

UPDATED AT 11:56 AM EOT Ottawa - The federal government has quietly compensated an Ottawa man it falsely accused of financing terrorism, had arrested and destroyed financially.

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Liban Hussein ran a money-transfer business in Dorchester, Mass., that United States officials said was linked to al-Qaeda. U.S. officials asked he be extradited. Ottawa seized his assets, jailed him and moved to have him deported to the U.S. to face charges. But in June, 2002, the Justice Department announced it was stopping proceedings against the Somali-born citizen. CP

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» Local News » Business & Technology » Sports News » Around Town Listings: • Entertainment & Events 11 • Sports Events • Live Music • Movies • Restaurants & Bars » Accommodations » Contests » Sound Off! POLL

Which campaign promise do you think the incoming Liberals should fulfil first? f"~\l back corporate tax cuts and the private-school tax credit. Reduce class size in the junior grades. ) Spend more money on health care. r'•, Dismiss the Toryappointed supervisors running school boards in Ottawa, Toronto and Hamilton.

Tuesday STORY

Ottawa man freed after Syrian ordeal Arrested by U.S., Arar was deported, held for year without charge Dave Rogers and Janice Tibbetts The Ottawa Citizen Monday, October 06, 2003 Maher Arar, the Ottawa man who has spent more than a year in a Syrian prison because U.S. immigration officials suspected he was an al-Qaeda terrorist, has been released and will return to Canada today a free man.

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Office Adn Foreign Affairs Minister Bill Graham, who made the announcement last night, said Mr. Arar, a dual citizen of CREDIT: Bruno Schlumberger, The Canada and Syria, was released Ottawa Citizen to a consular official and was en route to his home in Ottawa. Monia Mazigh is thrilled that her He was expected to arrive late husband has been freed, but she is this afternoon on board an Air determined to learn why and how he was arrested, sent to his former France flight. homeland and held for more than a year. Mr. Graham said Mr. Arar would not be detained once he landed on Canadian soil.

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Mr. Arar, 32, was returning, via Zurich, from a family vacation in Tunisia, when he was detained during a stopover in New York on Sept. 26, 2002. U.S. officials then deported him to Syria where he was detained without trial. U.S. immigration authorities accused him of

http://www.canada.com/ottawa/story.asp?id=81791442-CC32-42F3-9C3A-lAA64A7C8972 10/7/2003

A14

.THE NEW YORK TIMES, TUESDAY, JUNE 3, 2003

THREATS AND RESPONSES: Detentions After Sept. 11 GOVERNMENT REPORT

U.S. Faults Roundup of Illegal Immigrants After 9/11 Continued From Page Al reports on internal matters. A total of 762 illegal immigrants were jailed in the weeks and months after the attacks on the World Trade Center and the Pentagon, as the authorities traced tens of thousands of leads and sought to prevent another attack. Most of the 762 immigrants have now been deported, and none have been charged as terrorists. The Justice Department has sought to maintain the secrecy of the arrests, fighting news organizations' efforts to gain access to deportation proceedings and for disclosure of more information about the detainees. Public information about the arrests has been fragmented; the report offers the most detailed portrait to date of who was held, the delays many faced in being charged or gaining access to a lawyer, and the abuse that some faced in jail. The report showed, for instance, that nearly three of every four jailed immigrants were from New York City or New Jersey, many were Pakistanis, and most were arrested within three months of Sept. 11. The report also found that immigrants arrested in New York and housed at the Metropolitan Detention Center in Brooklyn faced "a pattern of physical and verbal abuse" from some guards as well as "unduly harsh" detention policies. A total of 84 inmates who were held in Brooklyn in terrorism investigations were subjected to highly restrictive, 23-hour "lockdown," the report found. They were limited to one phone call a week, and they were put in handcuffs, leg irons and heavy chains any time they moved outside their cells, according to the report. And because of a "communication blackout" in the weeks after Sept. 11, families of some inmates in the Brooklyn facility were told their relatives were not housed there. The highly restrictive conditions and long delays in processing cases and giving suspects access to lawyers appeared to differ markedly from policies before Sept. 11, according to government officials and advocates for immigrants. Prior to Sept. 11, the Immigration and Naturalization Service had 24 hours to decide about charging an illegal immigrant, but six days after the attacks, the Justice Department gave itself an indefinite time period because of the "extraordinary circumstances." Immigration officials sometimes did not notify prisoners of the charges against them for more than

Aaron Lee Flneman for The New York Times

Some immigrants were held at this federal detention center in Brooklyn. the goal in the Sept. 11 investigation was to notify prisoners within three days. The average wait for those arrested in New York City and housed in Brooklyn was 15 days, the report said. Early arrests after Sept. 11 included some "glaring errors" in how illegal immigrants were charged, leading immigration officials to route all charges through Washington for months in the fall of 2001, investigators found, which caused delays. A "disconnect" in communication between officials in New York' and New Jersey added to those delays, the report said. In addition, investigators found that the Federal Bureau of Investigation moved very slowly to determine whether a suspect rounded up as part of the Sept. 11 investigation was linked to terrorism. It took the bureau an average of 80 days to clear prisoners for removal or release because of understaffing and because the process was "not given sufficient priority," the report said. Mr. Fine traced the problem to an

Sept. 11 giving the F.B.I, the final say over when and whether illegal immigrants detained in connection with the attacks could be released. The policy shift — moving authority away from immigration officials — represented "uncharted territory," an unnamed department lawyer told investigators, because it assumed that a person in detention could have a link to terrorism unless and until the F.B.I, said otherwise. Though this policy was apparently never written down, it was cleared "at the highest levels" of the Justice Department, the report found. The report found that some lawyers at the naturalization service "argued vehemently" against giving the F.B.I, final authority to clear people in New York City because the process was moving so slowly. Some Justice Department lawyers raised concerns as well. In New York City, anyone who was picked up as a result of a lead in the Sept. 11 investigation was held under this policy, "regardless of the strength of the evidence or the origin nf

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Had it not been for the attacks, "most if not all" of the arrests would probably have never been pursued, the report said. Some illegal immigrants were picked up at random traffic stops, others because of anonymous tips that they were Muslims with erratic schedules, officials said. Department officials acknowledged to the inspector general's office that they realized soon after the roundups began "that many in the group of Sept. 11 detainees were not connected to the attacks or terrorism," the report said. The report did not name any detainees, but it did give numerous examples of questionable treatment. It did not single out for criticism Attorney General John Ashcroft or specific senior department advisers, prosecutors or F.B.I, agents. The report spotlighted cases of unfair treatment. A Muslim man, for instance, was arrested when an acquaintance wrote to officials that the man had made "anti-American statements." The statements "were very general and did not involve threats of violence or suggest any direct connection to terrorism," the report found, but the man had overstayed his visa and was held. Though the bureau's New York office and the Central Intelligence Agency cleared the man of any terrorist connections by mid-November 2001, F.B.I, headquarters did not clear him for release from incarceration until more than three months later because of an "administrative oversight," the report said. Law enforcement officials todaj defended their handling of the arrests, noting that the policy was ir keeping with guidance from the de partment's Office of Legal Counse about detaining illegal immigrants. Moreover, Deputy Attorney Gen eral Larry Thompson, whose aide: handled some of the key policy deci sions, was quoted in the report a saying that it was "unfair to criticizi the conduct of members of my staff' during such an extraordinary perioc Critics of the Justice Departmem however, said that the findings bo: stered their concerns about the go\s an The findings "confirm our lon£ held view that civil liberties and th rights of immigrants were trample in the aftermath of 9/11," said Anth< ny D. Romero, executive director < the American Civil Liberties Unior William F. Schulz, executive direi tor of Amnesty International VSi said that the inspector general's o fice "should be applauded for relea ing a report that isn't just a whit wash of the aovernment's actions.'

THE DETROIT TRIAL

Man Acquitted in Terror Case Says Co-defendants Will Be Cleared By DANNY HAKIM

DETROIT, June 5 — A man acquitted on Tuesday in a terror case here said that he was grateful to the American justice system and that he was confident his co-defendants would eventually be cleared as well. ~"~ The man, Farouk Ali-Haimoud, 22, had 'en accused of being part of a four-man jrror cell in the Detroit suburb of Dearborn. He was the only one of the men, all Arab immigrants, to be acquitted on Tuesday. Two defendants were found guilty on terrorrelated charges, and a third was acquitted of a terror-related charge but found guilty of a conspiracy related to document fraud. On Wednesday, after 14 months in jail, mostly in isolation, Mr. Ali-Haimoud said in an interview that he was shocked that any of them had been found guilty. "None of us had links with terrorists in any way," he said. "I'm just a regular Muslim. I'm not an extremist." He said he believed that the other defendants would be vindicated in appeals. "The justice system is the best in the world," he said. "That's why a lot of people want to come to the United States." Tall and lanky, Mr. Ali-Haimoud could pass for a teenager. But he was described by the government's main witness, Youssef Hmimssa, as the most radical of the group. The four were charged with providing material support for terrorism. Prosecutors described the cell as having myriad ambitions, from checking airports here and in Chicago for security breaches to acquiring Stinger missiles to shoot down commercial airplanes. But officials said cases involving terror cells would never be easy to prosecute, given the difficulty in linking suspects to the evidence collected. "If you look at the case, and look at the overall structure of the cell and how they operate, they're very fluid," said Richard Convertino, the lead federal prosecutor on the case here. "The fluidity itself almost makes it impenetrable to prosecution. It's a hard thing to take a static look at." Defense lawyers said the government .J—-*was being manipulated by an opportunistic Itness and was reading too much into the lysical evidence. Mr. Ali-Haimoud came to this country from Algeria in 1999 to join his mother, Meriem Ladjadj, a naturalized citizen. He was first detained after the apartment he lived in with two other defendants was raided shortly after Sept. 11, 2001. He said that he had known the other men a couple months and that they had moved in together to save money. Federal agents had been looking for a previous resident of the apartment but found items that would become crucial pieces of evidence. The government said more than 100 audiotapes belonging to Mr. Ali-Haimoud preached radical views, though a defense

Jeffeiy Sauger for The New York Tin

Farouk Ali-Haimoud, the only one of four defendants acquitted in a Detroit terrorism case, with his mother, Meriem Ladjadj.

'None of us had links with terrorism in any way.' expert at the trial differed about the contents. Mr. Ali-Haimoud said the tapes "were just regular lectures." There was also a day planner with crude sketches that the government said included diagrams of an American Air Force base in Turkey used to patrol the no-fly zone in Iraq and a military hospital in Jordan. Mr. Ali-Haimoud echoed the arguments of the defense lawyer, who presented evidence that the planner had belonged to a man who was mentally ill and believed he was a general. "I know they were looking for the truth," Mr. Ali-Haimoud said of the govern-

ment. "They were wrong." Mr. Ali-Haimoud was released a few months after his initial detention and got a job selling ice cream at Detroit Metropolitan Airport. Then he was arrested again in April 2002. Initially, he and the other defendants were put in the general prison population. But they began being harassed after appearing on television, and they were moved to small isolation cells where, Mr. Ali-Haimoud said, he spent 23 hours a day reading and sleeping. Mr. Hmimssa described Mr. Ali-Haimoud as a supporter of an extremist group, Takfir wal Hijira. He testified that Mr. AliHaimoud had said that there was a war zone "anywhere in the world where there is no Sharia," referring to Islamic holy law, and that Jews, Christians and even Muslims who did not espouse extremist views were infidels. "It's not true," Mr. Ali-Haimoud said of the description. "Anyone who's got a beard, anyone who prays five times a day, you can call him whatever you want. But you can't

change the truth." During the trial Mrs. Ladjadj, the former head of the computer sciences department at the Lewis College of Business in Detroit, became a fixture in the courtroom. On many days during the nine-week trial, it was only her and a few journalists watching in a courtroom without air-conditioning and listening to testimony that had some jurors fighting to keep their eyes open. She sold some of her furniture to help pay legal fees and had to leave her job. "I was overwhelmed and lost track," she said. "I missed three classes and one meeting and they asked me to take a leave. I was dysfunctional." When the verdict was read, both Mr. AliHaimoud and his mother began to cry. Mr. Ali-Haimoud said he was crying for the other defendants. They never spoke to him about terror plots, he said. "I'm not happy, so much, because I feel so bad for them," he said. "I'm praying to God to help them get an appeal or get another trial."

A14

THE NEW YORK TIMES, FRIDAY, JUNE 6, 2003

THREATS AND RESPONSES: Investigations and Warnings

D

STICE DEPARTMENT

Ashcroft, Defending Detentions, Asks More Power to Pursue Suspects Continued From Page Al with a designated terrorist organization can be charged under the material support statutes," he said, Mr. Ashcroft's lengthy and impassioned defense of the Justice Department's counterterrorism campaign and his push for greater authority met with strong endorsement from many, but not all, of the Republicans on the judiciary panel. Representative F. James Sensenbrenner Jr., the Republican chairman of the panel, said that while the Justice Department had made impressive strides in fighting terrorism, he remained concerned about the potential threat to civil liberties posed by the long reach of counterterrorism efforts. "To my mind," Mr. Sensenbrenner said, "the purpose of the Patriot Act is to secure our liberties and not to undermine them." Just last month, the Senate rebuffed efforts by senior Republicans to make permanent some critical provisions of the Patriot Act that are to expire in 2005. The concerns raised by Mr. Sensenbrenner, and echoed in even stronger terms by virtually all the Democrats on the panel, signaled that Mr. Ashcroft may face a tough sell in seeking to broaden the Justice Department's authority to pursue irists. >me of us find that the collateral .age may be greater than it needs to be in the conduct of this war," said Representative Howard L. Herman, Democrat of California. Democrats said they were particularly concerned about the report released on Monday by Glenn A. Fine, the Justice Department's inspector general. The report found "significant problems" in the way the authorities arrested and treated hundreds of illegal immigrants as part of the Sept. 11 investigation. The report found that the authorities had made little effort to distinguish real terrorist suspects from those who became ensnared by chance in the investigation. Many suspects were jailed for months, often without being formally charged or given access to lawyers, and some inmates in Brooklyn were physically and verbally abused before they were cleared of any terrorist ties, the report said. While the report drew no conclusions about the legality of the Justice Department's actions, Representative Robert C. Scott, Democrat of

Doug Mills/Tile New York Times

Attorney General John Ashcroft testified yesterday before the House Judiciary Committee, asking that the Patriot Act be strengthened.

Responding to a report criticizing the Justice Department on detentions. Virginia, suggested that the denial of the detainees' civil rights and evidence of physical assaults by Justice Department employees might have risen to the level of criminal conduct. The congressman asked Mr. Ashcroft whether he planned to appoint an outside counsel to investigate the

accusations further, but the attorney general responded that "I have no plan at this time to employ a special counsel in this matter." Mr. Ashcroft said the department's civil rights division had investigated 18 complaints of abuse by guards against immigrant prisoners and had found in 14 cases that there was not enough evidence to bring criminal charges. Four investigations are pending. "We do not stand for abuse," he said. Mr. Ashcroft said he also wished that the department could have resolved cases against many of the 762

illegal immigrants more quickly. "God forbid, if we ever have to do this again, we hope that we can clear people more quickly," he said. "We'd like to clear people as quickly as possible. There's no interest whatsoever that the United States of America has in holding innocent people, absolutely none. It's costly. It takes up resources that makes it difficult for us to do what we need to do with other people who are threats." But Mr. Ashcroft stressed repeatedly that he believed the policy of detaining people for as long as it took to clear them of terrorist ties was the right one, and he said that several illegal immigrants did have terrorist

connections that are still considered suspicious. One suspect was the roommate of one of the Sept. 11 hijackers, and another was found with "jihad material" and more than 30 pictures of the World Trade Center, Mr. Ashcroft said. Mr. Ashcroft said past data showed that people who were facing deportation and were released from custody on bond fled about 85 percent of the time, and he said he was not willing to take that risk with the suspects apprehended after the Sept. 11 attacks. "We had had to balance the risk," Mr. Ashcroft said. And in doing so, he added, "we did not violate the law."

Foreigners' Rights In the Post-9/11 Era: A Matter of Justice By DAPHNE EVIATAR

More than 5,000 citizens of foreign countries have been detained by the government since 9/11 in connection with anti-terrorism measures. Only a handful have been charged with a terror-related crime. Many were held initially without charges, denied access to lawyers, judged in secret and locked up for months without any showing that they had committed crimes or otherwise posed any danger. More than 500 were deported for immigration violations. The Bush administration's anti-terrorism campaign has set off a fierce legal and philosophical debate over what rights foreigners have compared with Americans. When is it permissible to treat noncitizens differently? Are there some rights — whether to a speedy trial or a formal charge — that transcend nationality, and should be accorded to every human being? Treating foreigners differently, of course, is nothing new for the United States government. Debates over everything from federal benefits and public school education to identification cards have bubbled up at various times. But since Sept. 11, 2001, the consequences for some foreigners have become much more severe. Prof. John Yoo of the law school at the University of California at Berkeley points out that while the Bill of Rights applies to "persons" rather than citizens, it's not unconstitutional to treat aliens differently in certain contexts. The Supreme Court has said in many decisions: "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied

When anti-terrorism steps include detention and secret trials. to citizens." The Fifth Amendment may guarantee everyone a right to due process, but it does not say what process is due. So while a criminal defendant, for example, has a right to a lawyer and a public trial before a jury, immigration cases are decided by administrative judges, may be held behind closed doors and can occur without legal counsel. The gap is even wider for the more than 650 foreign citizens at the United States military base in Guantanamo Bay, Cuba. Suspected of having ties to terrorists, most were picked up during the Afghanistan war, none has had a hearing, and most will never get a day in a regular court. Although the administration has said it will soon start military tribunals, the American Bar Association, among others, has declared the proposed procedures unfair, objecting to restrictions on defense lawyers' access to evidence, government monitoring of attorney-client communications, and limitations on appeals. In a letter published in The New York Times last month, Paul W. Cobb Jr., deputy general counsel at the Department of Defense, wrote that the Guantanamo prisoners have been designated "enemy combatants Continued on Page 17