Justice Kept In the Dark


 Evan Thomas and Michael Isikoff


 Newsweek -MSNBC


 Wednesday, 5 December 2001 (DEC 10 Issue)


Since Sept. 11, federal prosecutors and FBI agents have questioned thousands of Middle Easterners living in the United States
Closed military tribunals. A dragnet that’s swept up 1,200 men. As America fights terror, where will we strike the balance between liberty and security?

Mohammed Irshaid has lived in the United States for 22 years. Now a civil engineer in New York, the Jordanian-born Irshaid, 41, went to college in Ohio at the University of Toledo; his three children are American citizens, and he was close, he thought, to obtaining his long-cherished green card. As he was sitting in his office on the morning of Nov. 6, he was arrested by federal agents who told him his visa had expired and implied that they had information linking him to a terrorist plot. Irshaid was ashamed to be led away in handcuffs in front of his co-workers. “It was absolutely the most humiliating thing to happen to me in my life,” he says.

MORE HUMILIATION was to follow. He was thrown into a cell in Passaic, N.J., with nearly three dozen other men. The men, all Muslims, asked to hold on to their food trays so they could observe the Ramadan fast and eat after sundown. The guard wasn’t having any of it. “I don’t care about f—king Ramadan,” the turnkey said. The U.S. government never filed any charges against Irshaid. After three weeks, he was finally released. Irshaid says he was so happy he would have jumped for joy, had he not still been shackled and chained in leg irons. “This doesn’t change my love of America,” he told NEWSWEEK. “But with all due respect to Mr. Ashcroft, if somebody wants to accuse you of something, they should tell you what it is.” 

Such stories are becoming uncomfortably commonplace. As innocent Muslim men swept up in the post-September 11 dragnet begin to emerge after being held in custody, often in secret, for weeks and months, they are telling embarrassing and sometimes horrifying tales of official indifference and, occasionally, abuse. Civil libertarians and a growing chorus of oped-page Cassandras are warning of a new McCarthyism and accusing Attorney General John Ashcroft of playing a modern-day Torquemada. 

Ashcroft is not exactly shying from the role of Grand Inquisitor: “People have to make a choice,” the attorney general told NEWSWEEK, “whether they’re going to help us prevent additional terrorist acts or remain silent in the face of evil.”

Secret military tribunals. A manhunt that has swept up 1,200 men, mostly in secret. Orders to question every young male emigrating from the Middle East for the past two years. Plans to loosen up rules that restrict the FBI from spying on churches and political organizations. In the past few weeks, Ashcroft has led such an aggressive campaign to stamp out subversion that even old-time G-men are wondering whether the attorney general is trying too hard to fill the shoes of the late J. Edgar Hoover.

Are America’s civil liberties at risk? The Bush administration’s first line of defense—”trust us”—won’t wash. The government, John Adams wrote two centuries ago, is supposed to be made up “of laws and not men.” Nonetheless, it is far too soon to declare that the attorney general is undermining basic freedoms or tearing holes in the Constitution. Ashcroft is not a rogue operator: President George W. Bush strongly backs his words and deeds, if not always the attorney general’s dark and blustery tone. And Bush has plenty of historical precedent on his side. Some of America’s greatest presidents, including Lincoln, FDR—and John Adams—cut back on civil liberties during wartime. The Supreme Court has consistently upheld the chief executive’s extraordinary powers to protect the national security. “The Constitution is not a suicide pact,” wrote Justice Robert Jackson 50 years ago.

Civil liberties are not absolute rights. They must be balanced against the public safety. At a time when suicidal mass murderers are trying to infiltrate the United States, the balance has shifted. That’s fine with most Americans: according to the latest NEWSWEEK Poll, 86 percent think the administration has not gone too far in restricting civil liberties in its response to terrorism. White House officials say that every time the “liberal media” fret about Ash-croft’s assaulting civil liberties, the president’s approval ratings go up. “Attack us some more,” quips one aide.

And yet a closer look at the NEWSWEEK Poll shows some public ambivalence about the details. Secrecy does not sit well; a majority (58 percent) want trials to be open all or most of the time. Less than half believe that foreigners who are recent immigrants should be subjected to military tribunals. Support for giving more power to the government to fight terrorism has waned since September 11, from 54 percent to 35 percent. And NEWSWEEK has learned that some senior officials in the criminal division of the Justice Department as well as at the FBI have also privately expressed concerns about going too far.

The true test is still to come: will the military tribunals turn into kangaroo courts? That seems doubtful: under the scrutiny of a critical and watchful press and Congress, the administration is likely to use the tribunals sparingly and make sure that suspects receive some basic guarantees of a fair trial. The greater risk may be that the heavy-handed tactics could backfire. By rounding up young Muslim men for questioning, or holding them indefinitely on minor immigration charges, the Justice Department may alienate precisely the people they need to blow the whistle on suspicious activity.

The actual impact of the administration’s antiterror program turns on the way it is put into practice. In the beginning, White House officials insisted it would be too dangerous and cumbersome to give terrorists normal criminal trials. Judges, lawyers and jurors would be at risk of reprisal; the government would not be able to introduce classified evidence without compromising secret “sources and methods” of gaining intelligence; highly publicized trials could drag on and become circuses. All true. But the president’s decree calling for military tribunals was so vague and overly broad that it seemed to sweep aside any semblance of constitutional safeguards. It applies not just to terrorists but those who “harbor them.” Does that include landlords and cabdrivers? Only noncitizens could be tried before the tribunals, but some 20 million noncitizens live in the United States. On its face the president’s decree would invite the military to secretly whisk off suspects to a ship or to a distant military base and summarily execute them.

In fact, the precise rules for the tribunals are still being written by the Pentagon. It is more than likely that by the time these rules are put into use, Congress and the career lawyers at Justice will have some moderating input. Pentagon lawyers will be under pressure to build in basic safeguards, like the presumption of innocence, proof beyond a reasonable doubt, public proceedings (with narrow exceptions to avert real security breaches), a unanimous verdict to impose a death sentence, a defendant’s right to choose his own counsel and a right of appeal to the highest military court. Indeed, all these protections are already required by the Uniform Code of Military Justice for ordinary courts-martial, notes NEWSWEEK legal analyst Stuart Taylor Jr. The judges may also include not just military officers—who are beholden to their commander in chief—but retired federal judges or prominent citizens whose stature and independence are beyond question.

And what if the rules do not offer such safeguards? A terror suspect captured abroad, it is true, will have no real recourse. In international law, terrorists, like spies, are “unlawful combatants.” They don’t even enjoy the basic rights of prisoners of war, who are entitled by the Geneva Convention to be properly fed and housed and not subjected to torture. But terror suspects living in the United States will be able to go to a federal court to file a writ of habeas corpus, the ancient protection against arbitrary imprisonment by the state. The federal courts are likely to throw out any military tribunals that do not offer the “fair and full trial” promised by the Bush administration. So far, according to senior officials, only a small number of suspects now in federal custody are likely to be considered to be tried in a military tribunal—and only then if a strong connection to the Qaeda network can be firmly established.

The United States aims to capture and try as many Qaeda leaders as it can dig out of the caves of Afghanistan, at least those who don’t die there first. Secretary of Defense Donald Rumsfeld, whose swagger sometimes outdoes even Ashcroft’s, made clear that the Pentagon wants the Northern Alliance and other Afghan tribesmen to hand over Taliban or Qaeda leaders who fall into their grasp. But the United States may have more difficulty persuading its European allies to turn over Qaeda operatives arrested abroad. The laws of the European Union and many European countries prevent the extradition of criminal suspects to countries where they could face the death penalty.

This restriction could be a serious hindrance in the administration’s push to wipe out Al Qaeda’s global network. Already, partly at the prodding of the United States after September 11, some 50 countries have rounded up about 360 terror suspects. On Nov. 18, Spain charged eight suspected members of a Qaeda cell that, investigators believe, aided the September 11 hijackers. But Spanish officials said they would be reluctant to allow the suspects to be tried before a U.S. military tribunal.

At the very least, there would be months if not years of legal wrangling before terror suspects could be delivered to U.S. prosecutors. This is not to say, however, that there are not other ways to deal with terrorists. Under a new law, Britain will be able to hold suspected terrorists indefinitely—without any trial. A judge would have to approve the detentions at six-month intervals, but few jurists would be likely to set a suspected terrorist free. The CIA sometimes prefers that a terror suspect be extradited not to the due process of the American court system, but to a country with less-forgiving methods of extracting confessions and other useful information. In the little Arab emirate of Qatar a few weeks ago, police arrested a suspect named Ahmed Shakir. The CIA and FBI are very interested in Shakir. For one thing, he comes from Iraq and thus offers a potential connection to Saddam Hussein. For another, he was spotted by Malaysian intelligence at a terrorist gathering in Kuala Lumpur in January 2000 to discuss the suicide bombing plot on the U.S. destroyer Cole. Also at that summit meeting were two of the men who later hijacked the plane that flew into the Pentagon on September 11. According to a senior Arab intelligence official, the Qataris “asked the Americans, ‘Where should we send this guy?’ ” The answer was, not the United States. The man was sent to Jordan instead. The Jordanians have been good about sharing intelligence with the United States. The CIA prefers not to ask how the Jordanians obtain that intelligence.

Some of the 1,200 men swept up in the FBI’s dragnet since September 11 feel as though they might as well have been sent to a Third World dungeon. On Sept. 18, Hasnain Javed, 20, a Pakistani national who lives with his aunt in Houston, was on his way back to Queensborough College in New York to study computer information systems. In Alabama, he was pulled off the bus by the federal Border Patrol, who discovered that Javed was carrying an expired visa. They sent him to a county jail in Wiggins, Miss., where he was put in a cell with 10 other inmates. What happened next was out of a bad movie.

One inmate, perhaps kindly, perhaps coldly, suggested that he better ring for the guard. Javed rang the bell, but it went unanswered for more than 20 minutes. During that time, several inmates beat him severely, breaking one of his teeth, fracturing a couple of ribs and rupturing his eardrum. As they kicked and pummeled the Pakistani youth, they jeeringly called him “bin Laden.” Then they stripped him naked and beat him some more. “I was crying and telling them I had nothing to do with it,” said Javed. “They were kicking me and punching me and pinned my head to the floor.” Finally, four guards arrived—and watched. Struggling to his feet, Javed begged for help, and at last the officers stopped the beating. Javed was put into solitary confinement and eventually released on $5,000 bail. He is now so traumatized he is afraid to appear in public. “I’ve never felt this way,” he told NEWSWEEK. “I go out and worry if someone is looking at me funny. If I see a police officer, I wonder if he is going to say something to me, question me.”

The two-week ordeal of Dr. Al-Badr Al-Hazmi, a quiet family man and radiologist in San Antonio, Texas, was not as violent but just as chilling. Al-Hazmi had wept on September 11 when he saw the terrorist attacks. “My eyes filled with tears. It was absolutely evil,” he says. He went to the mosque and prayed for the victims. The next morning at 5 he was rising for his dawn prayer when he heard a knock on his door. He opened it to find a half-dozen federal investigators with guns. Frightened, Al-Hazmi let them search his house, but he refused to answer questions without a lawyer present. This seemed to surprise and antagonize his interrogators. “I thought you were going to cooperate with us and help us,” one said. Al-Hazmi asked, “Help you with what?” One of the gumshoes said, “You know what happened.”

The investigators began quizzing him about the Holy Land Foundation. Al-Hazmi says he gave money to the group because it runs health clinics in Palestine. The investigators told him that they had just raided the Dallas office of the Holy Land Foundation because, they said, it funnels money to Hamas, the Palestinian terrorist group (an allegation the foundation vehemently denies). The tone of the questioning grew sharper. The G-men began asking Al-Hazmi if he knew the names of several of the hijackers. He said he did not, but he could see that his troubles were only beginning.

Taken to the FBI office in San Antonio, he was allowed to call his lawyer and his wife. It was the last time he would speak to her for 11 days. In shackles, he was led to a small room with no bed, just a mattress on the floor, and a gown that did not protect him from the chill. The extremely near-sighted Al-Hazmi was deprived of his eyeglasses so he could not read and was denied antibiotics that he was taking for his bronchitis, which steadily worsened. When the guard closed the door that evening, he told Al-Hazmi, “Merry Christmas.”

Still unsure why he was being held, Al-Hazmi was put on a plane for New York, where he was greeted by U.S. marshals holding automatic weapons. At the Metropolitan Correction Center, Al-Hazmi claims that he became the target of physical abuse (a charge the FBI denies). Al-Hazmi says that agents routinely kicked him in the small of his back while shouting at him and demanding his name. Finally, on Sept. 19, he was allowed to have a court-appointed lawyer and was told why he had been arrested: he shared the same family name as two of the hijackers, Salem Alhazmi and Nawaf Alhazmi, and in 1999 he had contacted Abdullah Binladen, one of Osama’s 50-odd siblings, about his organization, World Assembly of Muslim Youth, an Islamic group. He had also booked flights on Travelocity, the same Web service used by the hijackers. Al-Hazmi is a common name in Saudi Arabia. “It’s a big tribe. It’s like John Smith in the U.S.,” said Dr. Al-Hazmi.

On Monday, Sept. 24, he was released, without his glasses or clothes, in blue jail pants and a black top. He went home to San Antonio. He is thinking about quitting his job at University Hospital, where he is now treated with suspicion by some colleagues, and moving back to Saudi Arabia. He says he is not angry at the U.S. government. “Forgiveness is one of the principles of Islam,” he told NEWSWEEK. But he worries about his children. His son, 8, cried all time while he was in custody and still does not seem quite right. His daughter, 6, said to him, “You were in jail.” His eyes filling with tears, Al-Hazmi says, “How can you explain to innocent kids what happened? I’m embarrassed, ashamed to explain.”

For the first two months of the dragnet, the Justice Department refused to say much about the growing list of Middle Eastern men who were disappearing into jails all across the country. Under normal circumstances, outrage in the press and legal community would have forced a more complete accounting, if not an end to the roundup. But with dissent muted since September 11, it wasn’t until mid-November that the criticism rose to a level that forced Ashcroft and Bush to provide more answers.

Last week Ashcroft revealed that 603 people, none of them U.S. citizens, remain in custody. Perhaps a dozen are being held as “material witnesses” because they have been somehow linked to the attacks. An additional 55 have been charged with crimes, like lying to federal investigators. The rest are being held for immigration violations. Normally, immigration proceedings are public. But Ashcroft ordered the Justice Department to go to considerable lengths to keep them secret requiring hearings to be conducted behind closed doors. He has even refused to release the names of the detainees. The attorney general has offered different rationales. First, he said he wanted to protect the privacy of the detainees. Then he said it would be irresponsible in a time of war “to advertise to the other side that we have Al Qaeda membership in custody.” Justice Department officials acknowledged privately last week that the government has no evidence that any of the immigration detainees are members of Al Qaeda.

By sweeping with a wide broom—arresting potential terrorists before they strike—the government hopes to disrupt future terrorist attacks. But some former FBI officials, most prominently former director William Webster, have openly questioned the dragnet approach. More typically in terror investigations, the FBI has preferred to watch silently and wait, collecting evidence with wiretaps and other tools, until it was sure it could roll up the entire plot. Webster claims that the bureau prevented 131 terrorist attacks between 1981 and 2000. Of course, it missed the September 11 bombing, and Justice Department officials insist that the new threat calls for different and more urgent tactics.

Old FBI hands are also skeptical about the Justice Department’s decision to question some 5,000 new arrivals to the United States. (The order applies to all men between the ages of 18 and 33 who have arrived in the United States from Middle Eastern and other countries on non-immigrant visas since Jan. 1, 2000.) An official describes the effort as “a national neighborhood watch.” Participation is voluntary. As an incentive to cooperate, the administration is even offering to help noncitizens get green cards if they offer up useful information. The prize is a coveted “S Visa” (some joke that the “S” stands for “snitch”). Speaking last week to a gathering of U.S. attorneys, President Bush said, “We’re saying, ‘Welcome to America. You have come to our country; why don’t you help make us safe?’ ” According to a Justice Department memo, the questioning is supposed to occur in homes rather than police stations, with interpreters present, and avoid questions about religious belief.

But civil libertarians and Arab groups, as well as some veteran investigators, say that young Middle Eastern men will be wary. They’re afraid that if they come forward, they’ll end up in detention for an immigration violation. If they don’t, they’ll be suspected of hiding something. The fear in Middle Eastern communities that their rights are being trampled by the Bush administration is ironic, says James Zogby, president of the Arab American Institute. In a play for Arab-American votes during the 2000 campaign, Bush vowed to end the Clinton administration’s practice of using “secret evidence” against suspected terrorists in deportation proceedings. “They promised to do away with secret evidence—and they did,” says Zogby. “The only thing is, they’ve replaced it with no evidence.” 

Political leaders worry that the hard line will roil ethnic communities. Detroit, which has large African-American and Arab-American populations, has worked hard to calm sometimes tense relations between police, who are often black, and Arab-Americans in the shops and streets. When his already stretched-thin department was approached about the voluntary interview process a few weeks ago, Detroit Police Chief Charles Wilson says he replied, “No, we’re not going to do it.” He later changed his mind and assigned 10 “experienced and savvy” officers who are, he says, sensitive to civil rights. In Portland, Ore., a traditionally liberal community, Police Chief Mark Kroeker refused to lend his officers to the task. He was immediately bombarded with e-mails and chastised in the press for being unpatriotic. “I’m surprised by the reaction,” says Kroeker, “and to some extent, I feel I’ve been vilified. I’ve never experienced anything like this.”

Public fear is behind much of the aggressive stance taken by law enforcement at all levels. One Justice Department official suggested to NEWSWEEK that the administration chose to get tough now to head off a public cry for even more draconian measures in the event of a second major terror attack. If the terrorists do hit again—a high probability, federal officials still warn—panicked Americans might call for even more drastic steps. Privacy safeguards would likely come under assault from government eavesdroppers. And Americans really would have to start worrying about their freedoms as well as their safety.


Daniel Klaidman, Mark Hosenball, Tamara Lipper, Martha Brant and Lynette Clemetson in Washington, Christopher Dickey in Amman, Stryker McGuire and Tara Pepper in London, Mar Roman in Madrid, Keith Naughton and Joan Raymond in Detroit, Lynn Waddell in Tampa, Ellise Pierce in Dallas, Anne Pelli Gesalman in Houston, Karen Breslau in San Francisco and Sarah Downey in Chicago


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