Many Americans
have been lulled into a false sense of security by the end of the George
W. Bush administration. In reality, the government continues to pose
grave perils to people's rights and liberties. And it could take only
one shocking incident for the government to once again show its
heavy-handed ways.
Prior to the September 11, 2001, attacks, the dark side of the Bush
administration was barely evident. But within days after those attacks,
the government seized almost any conceivable excuse to lock up anyone it
chose to target. At a time when many people are lowering their guard
against Leviathan, we should recall how quickly the government razed
restraints on its power.
The
Bush administration brought the same mentality to locking up suspects
after 9/11 that the Soviet Union used for the potato harvest from
collective farms. It didn't matter how many bushels of potatoes were
rotten, or how many bushels were lost or pilfered along the way, or how
many bushels never really existed except in the minds of the commissars
who burnished the official reports. All that mattered was the total
number. In the same way, the success of the immediate federal response
to 9/11 was gauged largely by the number of people rounded up,
regardless of their guilt or innocence.
Less
than three months before the 9/11 attacks, the Supreme Court ruled that
immigrants within the United States are protected by the Constitution
“whether their presence here is lawful, unlawful, temporary or
permanent.” Justice Steven Breyer, who wrote the majority opinion,
specified that “terrorism” might be one of the “special circumstances
where special arguments might be made for forms of preventive detention
and for heightened deference to the judgments of the political branches
with respect to matters of national security.”
The
Bush administration responded to the Supreme Court decision by presuming
that practically any alien could automatically be considered a
terrorist suspect. After 9/11 the Bush administration quickly requested
that Congress pass legislation to formally suspend all habeas corpus
rights for aliens.
A
petition for a writ of habeas corpus — Latin for “produce the body” —
seeks to end unlawful detention of a person by requiring the government
to bring the detained person before a judge to be either formally
charged or released. Thomas Macaulay, in his History of England,
proclaimed the Habeas Corpus Act of 1679 “the most stringent curb that
ever legislation imposed on tyranny” and hailed it as a law that adds to
“the security and happiness of every inhabitant of the realm.” The
British legislation was part of the common-law heritage incorporated
into American law at the time of the nation's founding. The Supreme
Court declared in 1969 that the writ of habeas corpus is “the
fundamental instrument for safeguarding individual freedom against
arbitrary and lawless state action.”
Rule by decree
Attorney General John Ashcroft did not wait for a green light from Congress before making himself Czar of All Aliens. The INS, at Ashcroft's behest, issued a new emergency regulation on September 17 expanding the time from 24 hours to 48 hours that the agency was allowed to detain aliens while deciding whether to formally charge or deport them. The edict also provided for “an exception to the 48-hour general rule for any case arising during or in connection with an emergency or other extraordinary circumstance, in which case the Service must make the determinations as to custody or release ... within an additional reasonable period of time.” The official announcement of the new regulation repeatedly stressed that “this 24-hour period is not mandated by constitutional requirements.”
Attorney General John Ashcroft did not wait for a green light from Congress before making himself Czar of All Aliens. The INS, at Ashcroft's behest, issued a new emergency regulation on September 17 expanding the time from 24 hours to 48 hours that the agency was allowed to detain aliens while deciding whether to formally charge or deport them. The edict also provided for “an exception to the 48-hour general rule for any case arising during or in connection with an emergency or other extraordinary circumstance, in which case the Service must make the determinations as to custody or release ... within an additional reasonable period of time.” The official announcement of the new regulation repeatedly stressed that “this 24-hour period is not mandated by constitutional requirements.”
And
since a 24-hour period is not mandated by the Constitution, the Justice
Department was entitled to suspend habeas corpus for any immigrant it
labeled a terrorist suspect — or a potential material witness — or who
was caught with box-cutters.
The
following day, Ashcroft characterized the new rules as “an
administrative revision to the current INS regulations regarding the
detention of aliens,” adding that “this rule change will apply to these
75 individuals who are currently detained by the INS on immigration
violations that may also have information related to this
investigation.” As immigration lawyer Michael Boyle later testified to
Congress,
This exceptionally vague and open-ended provision allows detention without reason for virtually any period of time that the jailer chooses, with no recourse or explanation. It, in effect, allows an individual to be held for long periods for no better reason than that someone in government thinks they [sic] look suspicious.
The
“reasonable period” edict illustrates how an innocuous phrase can create
a gaping legal sinkhole that threatens to swallow the rights of 10
million people — the number of legal immigrants in the United States.
On
September 21, Michael Creppy, the chief immigration judge of the INS,
acting on Ashcroft's command, ordered immigration judges to close all
hearings of “special interest” detainees rounded up after 9/11 and to
refuse to confirm or deny to anyone outside the courts whether such
hearings were scheduled. That made it very difficult, if not impossible,
for relatives to keep track of locked-up husbands, sons, or brothers
and also thwarted lawyers' efforts to keep in touch with clients.
In
the days after the attacks, Attorney General Ashcroft told FBI Director
Robert Mueller “that any male from eighteen to forty years old from
Middle Eastern or North African countries who [sic] the FBI simply
learned about was to be questioned and questioned hard. And anyone from
those countries whose immigration papers were out of order — anyone —
was to be turned over to the INS,” Newsweek columnist Steven Brill reported in his book After: How America Confronted the September 12 Era.
Brill noted that Ashcroft told FBI and INS agents that the goal “was to
prevent more attacks, not prosecute anyone. And the best way to do that
was to round up, question, and hold as many people as possible.”
Detaining the
innocent
While detainees were portrayed as would-be terrorists, most of the actual cases mocked the Bush administration's ominous overtones:
While detainees were portrayed as would-be terrorists, most of the actual cases mocked the Bush administration's ominous overtones:
- A Moroccan teenager in Virginia was turned in
to the feds by a high-school guidance counselor who discovered the
boy's tourist visa had expired. (The teenager registered for high
school near the time of the terrorist attacks.) The New York Times
noted on February 3, 2002, “The youngster has been detained for
four months.” No evidence was found linking the boy to terrorist
groups.
- Nacer Fathi Mustafa, a 29-year-old American
citizen, was traveling back to the United States with his
Palestinian father on September 15 after purchasing leather jackets
in Mexico for a Florida truck stop he manages. The Mustafas were
arrested after a federal official claimed that their passports had
“obviously been altered with the introduction of an additional clear
sheet on top of the genuine laminate.” The Mustafas' lawyer,
Dan Gerson, later noted, “The agent attempted to cast the Mustafas
in the worst light, stating that, when questioned, ‘The Mustafas
declined to offer any explanation,' when in fact they denied
knowledge of any alterations.” The elderly father was jailed briefly
and then released on condition that he wear an electronic ankle
bracelet. The son was held for 67 days before a government
laboratory concluded the passport had not been altered. The Mustafas
sued the government to get reimbursement of their legal fees (more
than $15,000), asserting that the feds had acted in bad faith.
Assistant U.S. Attorney Andrew A. Bobb scorned their lawsuit: “Both
defendants' passports revealed they had traveled to the Middle East,
a factor that could be considered in light of the fact the
terrorists who caused the Sept. 11 devastation had traveled from the
Middle East into the United States.”
- On September 19 the FBI nabbed Mohammed Butt, a
55-year-old Pakistani living in a house with other aliens in
Queens, New York. A priest had called the FBI to report local
suspicions about the house's residents: they did not cut the grass
and failed to say hello. And as one 63-year-old neighbor astutely
noted, “They hang their laundry — even their underwear — on the
fence. Who does that?” Butt had entered the United States a year
earlier and had overstayed a six-month visa. The FBI quickly decided
it had no use for Butt and turned him over to the INS. He was being
held in the Hudson County jail when he died of a heart attack. Butt
repeatedly filled out forms requesting medical assistance in the
days before his death but was scorned by the jailers. Human Rights
Watch filed a Freedom of Information Act request to get information
on Butt and his death but the INS refused to provide any information
unless Human Rights Watch could provide Butt's “written
consent” and “written signature” permitting the INS to release the
information.
- Two Moroccan men in their 20s living in
Richmond, Virginia, were arrested by police during a September 13
traffic stop and handed over to the INS. The INS locked them up
because they were working part-time at a pizza joint, in violation
of their student visas. Their lawyer, Syed Hyder, declared, “I've
been told no one has any evidence against these boys. But since
the FBI had at one time expressed an interest in them, the INS had
to hold them.”
- Raza Nasir Khan, a pizza cook, got swept up
after he asked a state Fish and Wildlife agent for a map while he
was hunting with his bow and arrows in Delaware on the morning of
September 19. The agent suspected the Pakistani — who possessed a
global-positioning-satellite device (as do many hunters) and was
within a few miles of a nuclear power plant — and alerted the FBI.
FBI agents descended upon his apartment the next night and
discovered three firearms. Khan, an avid hunter, had applied to have
his visa extended but because it had not yet been renewed, he was
guilty of a felony. (Illegal aliens are prohibited from possessing
firearms.) A few days later, federal Alcohol, Tobacco, and Firearms
agents captured Khan on his way to the pizzeria. He was jailed and
held without bond. Federal magistrate Mary Pat Thynge conceded,
“There is nothing here to suggest [and] there were no indications
that this individual was a terrorist.... There is no indication to
me that there is a terrorism circumstance here.” Richard Andrews, a
federal prosecutor in Wilmington, observed, “Mr. Khan was arrested
because of Sept. 11 in the sense that [federal agents] would not
have gone out to interview him but for Sept. 11.”
Attempting to help the government investigate the terrorists landed at least two people in jail:
- Mustafa
Abujdai, a Palestinian living in Texas, was locked up after he
voluntarily contacted the FBI after 9/11 to inform them “he had met
with two men in Saudi pilot's uniforms at a restaurant in Dallas,
Texas, and that they had attempted to recruit him for
flight-training school,” according to his lawyer, Karen Pennington.
One of the Saudis was one of the 9/11 suicide pilots. Abujdai, who
was married to an American, was interrogated for 15 hours, and then
was jailed for more than two months for overstaying his visa.
Abujdai claimed other jail inmates heavily abused him.
- Eyad
Mustafa Alrababah, a Palestinian living in Connecticut, was
also locked up after he voluntarily went to the FBI office in
Bridgeport to tell them that he recognized pictures of four of the
hijackers and had driven them to Virginia in June. He was locked up
as a material witness, held in solitary confinement for more than
120 days, and kept incommunicado for much of the time.
In
the weeks after the 9/11 attacks, the Bush administration constantly
misrepresented how much power it was seeking over aliens. In a September
25 speech to FBI agents, Bush declared, “We're asking Congress for the
authority to hold suspected terrorists who are in the process of being
deported until they're deported.... We believe it's a necessary tool to
make America a safe place. This would, of course, be closely supervised
by an immigration judge.” But everything that Bush and Ashcroft
subsequently did sought to minimize, if not obliterate, judicial
supervision of their roundup.
On September 30,
Attorney General John Ashcroft announced on CNN, “We've
arrested and detained almost 500 people since the September 11 terrorist
attacks.... We seek to hold them as suspected terrorists, while
their cases are being processed on other grounds.”
But
early on, it was obvious that many of the people being nabbed were
innocuous. Human Rights Watch reported the following cases:
-
“Upon
arriving at the Newark, New Jersey, train station on October
11, 2001, Osama Sewilam asked a policeman for directions to his
immigration attorney's office. The policeman asked him where he was
from, and he replied, ‘Egypt.' The policeman asked him if he had a
visa. He said it had expired and that was why he was going to see
his lawyer. The policeman took him to the police station and called
the FBI. Sewilam was deported on March 15, 2002.”
-
“Ansar
Mahmood, a twenty-four-year-old Pakistani who was a legal permanent
resident in the United States, decided to have his picture taken
on October 9, 2001, to send to his family, according to a newspaper
report. After work, he drove to the highest point in Hudson, New
York, a hilltop overlooking the Catskills Mountains, but the view
also included the main water treatment plant for the town. Two
guards had been posted there that day because of the anthrax scare.
While one of the guards took Mahmood's picture, the other called the
police. The FBI's investigation of Mahmood uncovered that he had
helped an undocumented friend from Pakistan find an apartment and he
was charged with harboring an illegal immigrant.”
Allegations
began popping up that post—9/11 detainees were being beaten or
prevented from contacting a lawyer. Ashcroft announced on October 16, “I
would be happy to hear from individuals if there are any alleged abuses
of individuals, because that is not the way we do business.” He
promised that “we will respect the constitutional rights and we will
respect the dignity of individuals.” But the fact that many detainees
were held incommunicado made it tricky for them to personally contact
the attorney general.
The
FBI had a form affidavit it presented to judges to justify indefinite
secret confinement of targeted aliens. In scores, if not hundreds, of
cases, the FBI warned,
At the present stage of this vast investigation, the FBI is gathering and culling information that may corroborate or diminish our current suspicions of the individuals that have been detained.... In the meantime, the FBI has been unable to rule out the possibility that [the detainee] is somehow linked to, or possesses knowledge of the terrorist attacks on the World Trade Center and the Pentagon. To protect the public, the FBI must exhaust all avenues of investigation while ensuring that critical information does not evaporate pending further investigation.
The
FBI declared that “the business of counter-terrorism intelligence
gathering in the United States is akin to the construction of a mosaic....
The FBI is gathering and processing thousands of bits and pieces of
information, however, to see if it can be fit into a picture that will
reveal how the unseen whole operates.”
The
FBI implied that mere mortals could not even hope to grasp the meaning
of the details agents were sniffing out: “What may seem trivial to some
may appear of great moment to those within the FBI or the intelligence
community.” The “mosaic” form affidavit pushed the hottest button to
intimidate judges — the same tactic Ashcroft successfully used on
Congress to railroad through the USA PATRIOT Act. The FBI's constant
invocation of the need to build “mosaics” is ironic in light of a 2002
joint congressional investigation's conclusions about the FBI's
analytical incompetence.
National security and power
Ashcroft portrayed arbitrary power as the key to national survival. On October 25, he told the U.S. Conference of Mayors,
Today's terrorists enjoy the benefits of our free society even as they commit themselves to our destruction.... If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.
In
Ashcroft's view, any breach of any law or regulation automatically
entitles the government to absolute power over the suspected violator.
This “maximum prosecution mentality” is far more dangerous now than it
was in earlier decades. There are far more levers for government to use
against those it seeks to destroy.
The
following day, Bush signed the PATRIOT Act, which gave Bush and Ashcroft
almost everything they wanted — except for formally suspending habeas
corpus. The law increased the length of time that an alien could be
locked up without charges to seven days. If the attorney general
certifies that he has “reasonable grounds to believe that the alien is
engaged in any activity that endangers the national security of the
United States,” the detention can be extended almost indefinitely. No
evidence is required: the attorney general's rote assertion is
sufficient.
Shortly
after the president signed the USA PATRIOT Act the Justice Department
announced that it could henceforth eavesdrop on telephone calls and
meetings between anyone detained in a terrorist investigation and his
lawyers. A Federal Register notice stated that the monitoring would be
carried out whenever the attorney general certified “that reasonable
suspicion exists to believe that an inmate may use communications with
attorneys or their agents to facilitate acts of terrorism.” Since it
required no evidence for the feds to label someone a terrorist threat,
it would presumably require scant suspicion to justify pervasive
eavesdropping. Sen. Patrick Leahy, chairman of the Senate Judiciary
Committee, complained in a letter to Ashcroft that there are “few
safeguards to liberty that are more fundamental than the Sixth
Amendment. When the detainee's legal adversary — the government that
seeks to deprive him of his liberty — listens in on his communications
with his attorney, that fundamental right and the adversary process that
depends upon it are profoundly compromised.”
Roundups and detentions
The
Bush administration sought to allay rumors of mass roundups of Muslim
men. On November 5, 2001, White House spokesman Ari Fleischer announced,
“Most of the people, the overwhelming number of the people, were
detained, they were questioned, and then they've been released.”
Fleischer added that President Bush “is fully satisfied that anybody who
is continuing to be held is being held for a wise reason.” But a
Justice Department spokesman contradicted the White House, declaring on
the same day that most of the people rounded up after 9/11 were still
held by the government.
The
Justice Department responded to the imbroglio by announcing it would
cease disclosing the total number of people locked up in the 9/11
investigation. As Time noted, “Ashcroft spokeswoman Mindy Tucker
said the department would no longer issue daily or even weekly updates
[of the number of detainees], because the task of making and
synchronizing lists was too labor intensive.” Assistant Attorney General
Michael Chertoff later said that the feds ceased giving out updated
totals of detainees because it “loses meaning.” The media widely
reported statements by senior federal officials that 1,200 suspects had
been detained in the 9/11 investigations.
At a
November 27 Washington press conference Ashcroft announced, “We're
removing suspected terrorists ... from our streets to prevent further
terrorist attacks.” He declared that, thanks in part to “arrests and
detentions, we have avoided further major terrorist attacks, and we've
avoided these further major terrorist attacks despite threats and
videotape tauntings.” Videotape tauntings were, in Ashcroft's mind,
almost as dangerous as a hijacked jetliner.
Ashcroft derided suggestions to release the names of detainees: “I am
not interested in providing, when we are at war, a list to Osama bin
Laden, the al-Qaeda network, of the people that we have detained that
would make in any way easier their effort to kill American citizens —
innocent Americans.” He denied that any of detainees' rights had been
violated: “The Justice Department will not sacrifice the ultimate good
to fight the immediate evil.”
Ashcroft
proclaimed that it is “simply not true” that “detainees are not able to
be represented by an attorney or to contact their families.” He sounded
deeply hurt by the scurrilous attacks on the Justice Department: “I
would hope that those who make allegations about something as serious as
a violation of an individual's civil rights would not do so lightly or
without specificity or without facts. This does a disservice to our
entire justice system.”
Ashcroft bragged at the press conference that 104 people had been
charged with crimes as a result of the post—9/11 investigation. One of
those honorees was François Guagani, a French citizen who was caught as
he was crossing the border on a bus into Maine on September 12. Guagani
was arrested because he was entering the United States after having been
deported for previously violating his immigration status. Because he
had box-cutters in his luggage (he worked as a carpenter), he was
included on the list of people formally charged by the Justice
Department in the terrorism investigation. (He was sentenced to 20
months in prison.)
None
of the other criminal charges that Ashcroft invoked had any link to the
9/11 attacks. The charges were a smorgasbord of credit-card fraud,
false statements to federal officials, immigration violations, theft,
and so on.
On
December 6, 2001, Ashcroft testified under oath to the Senate Judiciary
Committee regarding his policies on people arrested in the United
States as “suspected terrorists.” He denounced his critics:
Charges of “kangaroo courts” and “shredding the Constitution” give new meaning to the term “the fog of war.” Since lives and liberties depend upon clarity, not obfuscation, and reason, not hyperbole, let me take this opportunity today to be clear: Each action taken by the Department of Justice ... is carefully drawn to target a narrow class of individuals — terrorists. Our legal powers are targeted at terrorists. Our investigation is focused on terrorists.
But
the mass roundup within the United States after 9/11 never apprehended
anyone subsequently officially linked to the 9/11 attacks. An Inspector
General report later revealed that many of the detainees had indeed been
blocked from contacting attorneys and that some of them had been beaten
or otherwise physically abused by guards in federal prisons.
Unfortunately, the follies of the post—9/11 crackdown have been largely
forgotten. Thus, there is little chance that “lessons learned” will
prevent similar abuses if there is another significant terrorist attack
within the United States.
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