DaaaihLoong writes: "The following article from the Washington Post was forwarded to me by email:
Absolute secrecy surrounding detentions is causing concern
By Lois Romano and David S. Fallis
WASHINGTON, Oct. 15 — In a high-security wing of Manhattan’s
Metropolitan
Correctional Center, an unknown number of men with Middle Eastern names
are
being held in solitary confinement on the ninth floor, locked in 8- by
10-foot
cells with little more than cots, thin blankets and, if they request
it,
copies of the Koran. Every two hours, guards roust them to conduct a
head count.
THEY HAVE no contact with each other or their families and limited
access to
their lawyers. Their names appear on no federal jail log available to
the
public. No records can be found in any court docket in New York showing
why
they are detained, who represents them or the status of their cases.
The nearly absolute secrecy surrounding the detentions is a growing
concern to
civil libertarians and legal observers who fear basic rights are being
violated as authorities pursue the terrorist conspiracy responsible for
the
attacks in New York and Washington.
“How many are being held? On what basis? What kind of judicial review
is
available? All of those seem to be important questions to answer,” said
Steven
R. Shapiro, national legal director of the American Civil Liberties
Union.
A 23-year-old Saudi student who was released Tuesday night said he
missed
three weeks of school and was evicted from his San Diego apartment
during his
17-day detention as a material witness, which he described as a
humiliating
and terrifying experience.
“They don’t call you by name. . . . They call you [expletive]
terrorist,” said
Yazeed Al-Salmi of the guards at the Manhattan facility where he was
held for
nine days. Al-Salmi was released after he testified for two hours
before a
federal grand jury about his encounters with one of the hijackers in
the
Sept. 11 attacks.
AUTHORITIES SAY LITTLE
Authorities will say virtually nothing about the detainees in the
Metropolitan
Correctional Center or hundreds of others who have been held during the
investigation. The Justice Department has also refused to reveal the
names of
the lawyers representing them.
It is unknown whether the detainees are considered conspirators in the
worst
act of terrorism in U.S. history, valuable witnesses or merely people
who
might have information because they crossed paths with the terrorists
responsible for the deaths of nearly 5,000 people Sept. 11.
A senior federal law enforcement official involved in the
investigation,
speaking on condition of anonymity, said the detention of material
witnesses
and others is “pushing the envelope” of civil liberties. The source
said some
people are being detained based on circumstantial evidence and held for
a week
or longer without legal representation or permission to contact family
members. “Some of these people have done nothing more than give
someone a
ride in their car,” the official said.
GOVERNMENT ACTIONS ‘CONSISTENT’
Defenders of the government’s tactics say authorities are doing the
best they
can under the law as they investigate an emotionally charged and
complex case
that is without precedent. Attorney General John D. Ashcroft said on
ABC’s
“Nightline” Thursday that the government’s actions are “consistent with
the
framework of law that we operate under.”
Federal officials contend that the government has to adhere to secrecy
rules
imposed by the New York grand jury investigating the terrorist attack
and the
orders of federal judges that certain matters be filed under seal.
Michael B. Mukasey, chief federal judge of the Southern District of New
York,
declined to discuss anything related to the cases. “As far as he is
concerned,” his secretary offered, “theywill remain sealed, forever.”
The government is relying mainly on two legal methods to detain people
in the
terror investigation: immigration violations and the material witness
statute.
At least 165 of the 698 people detained have been held for violations
of
immigration law. Their detentions can be virtually indefinite if
deportation
proceedings are begun.
The material witness statute allows prosecutors to hold people who may
have
information pertinent to the case. They must demonstrate a witness’s
value to
a case and show that he or she may be otherwise unavailable to the
court if
released. Given the number of undocumented immigrants held in this
case, risk
of flight is a tangible basis for detention, experts said.
“There are a few people that we have detained on material witness
warrants,”
Ashcroft acknowledged on “Nightline.” “These are people that we go
before a
judge and we say that it’s important that . . . they be detained so
they can
go before a grand jury. That process is supervised by a court.”
There is limited case law directing how long a material witness may be
detained. In a 1996 case, a Massachusetts federal judge ordered a
group of
Chinese immigrants held because he deemed their testimony critical and
there
was no guarantee they would show up for trial if released. But the
judge also
ordered them moved to a minimum security residential facility because
he was
concerned they were being treated like criminals.
QUESTIONS ON POTENTIAL ABUSE
The lack of information about those who have been arrested raises
questions
about potential abuse of the material witness statute, experts said.
Although
the law says only that they may be held for a “reasonable period of
time,”
constitutional scholars say the law was not intended to allow
indefinite detentions.
“The purpose of the material witness law was to hold people so that you
can
get them before a grand jury, not to hold people indefinitely while the
government searches around for clues,” said David Cole, professor of
constitutional law at Georgetown University.
Al-Salmi said that during his detention in San Diego and then in New
York, he
was quizzed by FBI agents and federal prosecutors before he was
questioned by
the grand jury Tuesday. He was repeatedly asked about his relationship
with
hijacker Nawaf Alhazmi, who was a housemate of Al-Salmi for six weeks.
Al-Salmi said he hadn’t seen Alhazmi for 10 months.
He said his ordeal began Sept. 23, when FBI agents banged on his door
as he
slept in his San Diego apartment. “One of the agents threw me up
against the
wall. The only thing I heard was ‘material witness,’ ” Al-Salmi said.
“That
was it. They took me away.”
He said he cooperated with authorities, who “asked me if I helped him
or
supported him financially. I told them no, you can check the bank.”
Al-Salmi said they questioned him repeatedly about the few times he had
spent
with Alhazmi, including a lunch at a pizza place.
DEPRIVED OF TOOTHBRUSH, SHOWER
During his arrest, Al-Salmi was denied contact with family and had a
few,
brief visits from his attorney, Randall B. Hamud. Despite being told
early on
that he was not a suspect, Al-Salmi said he was confined to a dirty,
high-security cell in New York, where he was deprived of a shower and
toothbrush for the duration.
Al-Salmi, a full-time accounting student at Grossmont College, said
his
incarceration “changed my life. . . . I was counting every single
minute of
every single day. I was praying to get out soon.”
Use of the material witness law in the terrorism investigation, some
lawyers
said, must be examined closely in light of the Justice Department’s
efforts to
win approval of new legislation that would broaden its power to detain
suspected terrorists. In House and Senate versions of the bill,
suspected
terrorists could be held for seven days before they would have to be
released
or charged with criminal or immigration violations.
LAWYERS KEEP SILENT
Some legal experts are concerned that secrecy can affect aclient’s
representation.
Some of the lawyers in the case have been cautioned not to talk about
their
clients and are routinely prohibited from keeping copies of
confidential court
records. At least one attorney said he would not talk publicly for fear
of
angering federal prosecutors.
“It becomes an ugly hardball game if a defense attorney thinks
opening his
mouth runs the risk of cutting off negotiations. That’s a powerful,
powerful
club,” said Irwin Schwartz, president of the National Association of
Criminal
Defense Lawyers.
Hamud, who represents two other material witnesses, and another lawyer
who
also represents a material witness said they have grown frustrated that
their
clients are kept incommunicado, denied exercise and provided limited
opportunity to shower. Both lawyers maintain that their clients were
not
involved in the attack.
The lawyers said that the prison is not providing their clients with a
basic
Muslim diet and that guards unnecessarily bang on steel cell doors
every two
hours to conduct head counts. One lawyer, who asked that his name not
be used,
said that the ninth floor wing is uncomfortably cold and that it took
him a
week to get the prisoner a long-sleeve T-shirt.
“He’s got nothing — no telephone calls, nothing to watch, nothing to
read,
nobody to talk to,” the attorney said.
JAIL NOT DESIGNED FOR LONG-TERM STAY
Daniel Dunne, a spokesman for the Bureau of Prisons, said the federal
prison
system tries to accommodate prisoners’ special needs, including dietary
requests. He noted, however, that the 10-story Manhattan jail, located a
few
blocks from the World Trade Center, was not designed for long-term
incarceration. It functions largely as a pretrial detention facility,
he said,
and does not have special programs other federal prisons might provide.
At least 10 men detained as material witnesses are being held at the
MCC while
a grand jury hears evidence. One detainee is believed to be Zacarias
Moussaoui, who was arrested in Minnesota in August after arousing
suspicions
when he told instructors at a flight school that he wanted to learn how
to
steer — but not land — a jumbo jet. Another detainee drove Moussaoui to
Minnesota, but denies involvement in the plot.
The Justice Department and the U.S. attorney’s office in New York have
declined to reveal the name of Moussaoui’sattorney.
“When a defendant is presented in a case, when we provide a complaint
and
present an indictment, the files are unsealed and information is made
public,”
said a spokesman for U.S. Attorney Mary Jo White of the Southern
District of
New York. “Those conditions do not prevail here.”
LAWYER FRUSTRATED
Hamud, who agreed to discuss only matters involving his three clients
that
were public before their cases were sealed, said he also has been
frustrated
by his inability to obtain information about the case usually available
to
defense lawyers. He said his clients — Al-Salmi, Osama Awadallah and
Mohdar
Abdallah — were arrested because they were acquainted with three of the
hijackers who were briefly associated with San Diego’s Islamic
community.
The prisoners cannot use the telephone. On a typical visit to one of
his
clients, Hamud said, he is searched and locked inside a room, where the
two
speak through a wire screen. The prisoners are brought to the meeting
in
shackles, escorted by as many as six guards.
Hamud said that his clients repeatedly asked to contact him during
their time
in federal custody but that the requests were denied.
They “had asked time and again to call me and they were not allowed to
do so,”
Hamud said. “Law school doesn’t prepareyou for this.”"
