[Hpn] Fwd: [PRISONACT] secrecy surrounding detentions

Graeme Bacque gbacque@netzero.net
Mon, 15 Oct 2001 18:37:33 -0400

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From: Kobutsu <kobutsu@engaged-zen.org>
To: Prison Activist List <prisonact-list@prisonactivist.org>,
Subject: [PRISONACT] secrecy surrounding detentions
Date: Mon, 15 Oct 2001 14:20:31 -0400

Absolute secrecy surrounding detentions is causing concern

By Lois Romano and David S. Fallis

WASHINGTON, Oct. 15 =97  In a high-security wing of Manhattan=92s=
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=
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=20

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=
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.

=93How many are being held? On what basis? What kind of judicial review is
available? All of those seem to be important questions to answer,=94 said=
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=
17-day detention as a material witness, which he described as a humiliating
and terrifying experience.

=93They don=92t call you by name. . . . They call you [expletive]=
 terrorist,=94 said
Yazeed Al-Salmi of the guards at the Manhattan facility where he was held=
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 will say virtually nothing about the detainees in the=
Correctional Center or hundreds of others who have been held during the
investigation. The Justice Department  has also refused to reveal the names=
the lawyers representing them.

It is unknown whether the detainees are considered  conspirators in the=
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 =93pushing the  envelope=94 of civil liberties. The source=
 said some
people are being detained based on circumstantial evidence and held for a=
or longer without legal representation or permission to contact family
members.  =93Some of these people have done nothing more than give someone a
ride in their car,=94 the official said.


Defenders of the government=92s tactics say authorities are doing the best=
can under the law as they investigate an emotionally charged and complex=
that is without precedent. Attorney General John D. Ashcroft said on ABC=92s
=93Nightline=94 Thursday that the government=92s actions are =93consistent=
 with the
framework of law that we operate under.=94

  Federal officials contend that the government has to adhere to secrecy=
imposed by the New York grand jury investigating the terrorist attack and=
orders of federal judges that certain matters be filed under seal.

Michael B. Mukasey, chief federal judge of the Southern District of New=
declined to discuss anything related to the cases. =93As far as he is
concerned,=94 his secretary offered, =93theywill remain sealed, forever.=94

The government is relying mainly on two legal methods to detain people in=
terror investigation: immigration violations and the material witness=
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=92s value=
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,=
of flight is a tangible basis for detention, experts said.

=93There are a few people that we have detained on  material witness=
Ashcroft acknowledged on =93Nightline.=94 =93These are people that we go=
 before a
judge and we say that it=92s important that . . . they be  detained so they=
go before a grand jury. That process is supervised by a court.=94

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=
ordered them moved to a minimum security residential facility because he was
concerned they were being treated like criminals.

The lack of information about those who have been arrested raises questions
about potential abuse of the material witness statute, experts said.=
the law says only that they may be held for a =93reasonable period of time,=
constitutional scholars say the law was not intended to allow indefinite=20

=93The purpose of the material witness law was to hold people so that you=
get them before a grand jury, not to hold people indefinitely while the
government searches around for clues,=94 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,=
was quizzed by FBI agents and federal prosecutors before he was questioned=
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=92t 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. =93One of the agents threw me up against=
wall. The only thing I heard was =91material witness,=92 =94 Al-Salmi said.=
was it. They took me away.=94

He said he cooperated with authorities, who =93asked me if I  helped him or
supported him financially. I told them no, you can check the bank.=94

Al-Salmi said they questioned him repeatedly about the few times he had=
with Alhazmi, including a lunch at a pizza  place.


  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=
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 =93changed my life. . . . I was counting every single minute=
every single day. I was praying to get out soon.=94

Use of the material witness law in the terrorism investigation, some lawyers
said, must be examined closely in light of the Justice Department=92s=
 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=
or charged with criminal or immigration violations.

Some legal experts are concerned that secrecy can affect aclient=92s

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=
records. At least one attorney said he would not talk publicly for fear of
angering federal prosecutors.

   =93It becomes an ugly hardball game if a defense attorney thinks opening=
mouth runs the risk of cutting off negotiations. That=92s a powerful,=
club,=94 said Irwin Schwartz, president of the National Association of=
Defense Lawyers.

Hamud, who represents two other material witnesses, and another lawyer who
also represents a material witness said they have grown frustrated that=
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=
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.

=93He=92s got nothing =97 no telephone calls, nothing to watch, nothing to=
nobody to talk to,=94 the attorney said.

Daniel Dunne, a spokesman for the Bureau of Prisons, said the federal prison
system tries to accommodate prisoners=92 special needs, including dietary
requests. He noted, however, that the10-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=
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=
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 =97 but not land =97 a jumbo jet. Another detainee drove Moussaoui to
Minnesota, but denies involvement in the plot.

The Justice Department and the U.S. attorney=92s office in New York have
declined to reveal the name of Moussaoui=92sattorney.

=93When a defendant is presented in a case, when we provide a complaint and
present an indictment, the files are unsealed and information is made=
said a spokesman for U.S. Attorney Mary Jo White of the Southern District of
New York. =93Those conditions do not prevail here.=94

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 =97 Al-Salmi, Osama Awadallah and =
Abdallah =97 were arrested because they were acquainted with three of the
hijackers who were briefly associated with San  Diego=92s 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=
in federal custody but that the requests were  denied.

They =93had asked time and again to call me and they were not allowed to do=
Hamud said. =93Law school doesn=92t prepare you for this.=94
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