deported once it can remove them from the country Nevertheless, since September 11 the INS has continued to hold individuals ordered deported or granted voluntary departure with safeguards not due to difficulties in arranging for their removal, such as absence of travel documents or lack of a country that would acccpt them, but because the detainees had not been "cleared of links to or knowledge of terrorist activities. The process effectively reverses the presumption of innocence non-citizens detained for immigration law violations are kept jailed until the govemment concludes they have no links to criminal conduct. This "clearance" process has never been publicly described nor are there any laws or regulations authorizing it. Detainees who were never charged with terrorist offenses are nonetheless held until approval for their release or removal is authorized by several sections of the Department of Justice and the FBI This "clearance" process is not connected to the immigration charges against the detaincc

The number of non-citizens whose release was delayed pending "clearance" may never be known. According to a press report, eightyseven detainees with final orders of removal were waiting for clearance as of February 18, 2002. Some detainees who were granted voluntary departure with safeguards by an immigra tion judge waited in jail, ticket in hand, past the deadline set by the judge for departure until the FBI decided that they were of no use to the terrorism investigation. For instance, on October 15, 2001, an immigration judge granted voluntary departure with safeguards to Mohammed Munir Gondal, who had been charged with working without authorization, and ordered him removed from the country within a month. The deadline passed, however, and the INS did not

send Gondal or his counsel notification of any extension of the judge's deadline: it simply refused to allow his departure. Gondal's attorcy said that the INS officer in charge of the case told him that they could not let him go because "INS headquarters hasn't authorized it yet." The attorney was also told that the government continued to investigate his chent. The government never produced any evidence that linked Gondal to terronsm or to any crime. Gondal was finally allowed to leave the country on February 7, 2002, 115 days after be was granted depar

turc

224

Ibrahim Turkmen had a similar experience. A national of Turkey, he was charged with overstaying his visa and granted voluntary departure with safeguards on October 31, 2001. A friend of his bought a plane ticket to Turkey for him two days later and gave it to the INS. In January, an INS agent told Turkmen that he had been "cleared by the FBI but still needed additional INS "clearance." He was allowed to leave the country four months after the voluntary departure order. on February 25, 2002 During this time he was confined in Passaic County Jail. ***

Both Mohammed Riaz, a German citizen born in Pakistan. and Habib Soucidan. a Lebanese citizen, were charged with overstaying their visas and ordered deported at the end of October However, on February 6, 2002, when

224 Human Rights Watch interview with Mohammed Munir Gondal. INS's Elizabeth Detention Center, January 27, 2002. and with attorney Michael Levitt, New York, New York. February 28, 2002. 22 Ibrahim Tukmen v. John Ashcroft. "Class Action Complaint and Demand for Jury Trial" April 17,

2002

Human Rights Watch interviews with Habib Soueidan and Mohammed Riaz Passaic County Jail. Paterson, New Jersey, February 6, 2002 Mohammed Riaz was detained at his home by INS and FBI agents. He was interrogated twice by the FBI but never told by any law enforcement agent that he had the right to an attorney or to contact the consular office of Germany. He was ordered deported on Ociober 25, 2001 Habib Soucidan a Lebanese citizen, was arrested on October 11, 2001 by New York City police for selling on the street without a license and handed over to the INS. He was ordered deported on October 31.

Human Rights Watch spoke to them, they were still being held. For Riaz it was 104 days after his final order of deportation, for Soucidan, ninety-eight days. Neither of them had an attorney. Asif-ur-Rehman Saffi, a Pakistan-born French citizen, was charged with working without authorization and ordered deported, but he was removed from the United States only four and a half months after the final order of deportation. In the meantime, Saffi was housed in administrative segregation, where he was allegedly physically and verbally abused by correctional officers. It took the government almost three and a half months to deport Syed Amjad Ali Jaffri, a native of Pakistan, after an immigration judge ordered him removed from the country

227

He had been charged with working without authorization. Amjad Baig, a Pakistani citizen charged with attempting to use a false passport, remains in custody at the Metropolitan Detention Center in New York as of this writing, even though he was ordered deported on March 18, 2002.

In addition, at least six attorneys representing eight detainees have tried to force the Department of Justice to carry out immigration judges orders of removal by petitioning for writs of habeas corpus in which they argued that the INS was acting illegally. As a result of the petitions, six detainees have been sent home. The government charged one of the detainees with a crime, illegal re-entry, and kept him in detention after the habeas corpus petition was filed 23 The other case is still pending.22

While petitioning for writs of habeas corpus has provided relief in a number of cases, as a practical matter this approach is not available to every detaince. Lawyers expressed concem that filing a petition with federal court will prompt the govemment to bring minor immigrationrelated criminal charges against their clients, such as lying to a law enforcement agent, document fraud, or illegal re-entry, to keep them in detention. Moreover, it is very unlikely that noncitizens who lack counsel and in many cases have limited English language skills, would be able to file such petitions. The INS has refused to reveal how many "special interest" detainees have retained attorneys, but 80 percent of all INS detainees who appeared before immigration courts in 2001 lacked counsel.

211

213

The detainee was Shakir Baloch and he was still in detention at this writing. Human Rights Watch interview with attorney Bill Goodman, New York, New York, March 25, 2002.

232 Human Rights Watch telephone interview with attorney Justin Meehan and the following press reports: "Immigration Detainee Takes Fight for Freedom to Court," Herald News, January 9, 2002, “INS Detaince Hits, US Strikes Back." Village Voice. Fcbruary 5, 2002: and Drew and Miller. "Though Not Linked to Terrorism, Many Detainees Cannot Go Home."

233 Sec note 152 above.

Misuse of Material Witness Warrants

To the trinocent even a momentary deprivation of liberty is intolerable. Confinement of the plaintiff [as a material witness/ among criminals and forcing him to wear prison garb added the grossest insult to injury.

Quince v. State, Rhode Island
Supreme Court, 1962.4

Most of the persons placed in federal custody in connection with the government`s investigation of the September 11 attacks have been arrested on immigration or federal criminal charges. The US govemment has also detained a number of people as material witnesses. The Department of Justice has refused to say how many material witnesses have been arrested in connection with the September 11 investigation or to release their names and places of detention. On August 2, a district judge declared: "The Government's treatment of material wit

235

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ness information is deeply troubling. The public has no idea whether there are 40, 400, or possibly more people in detention on material witness warrants. Human Rights Watch has been able to identify thirty-five individuals, two of them US citizens, who have been held as material witnesses. The judge ordered the Department of Justice to release the identitics of all matenal witnesses, except for those in whosc cases a sealing order bars the disclosure. The judge asked the government to submit any such orders for in camera (in judge`s chambers) review The Department of Justice is expected to appeal the decision and seek a stay of the order

237

18 USC § 3144. The federal material witness statute provides.

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person.... No material witness may be detained because of inability to comply with any condition of release if the lestimony of such witness can adequately be sccured by deposition, and if further detention is not necessary to prevent a failure of justice ReIcase of a material witness may be delayed for a reasonable penod of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure

* The government has used material witness warrants in the past to keep suspects in detention for long periods of time. Examples include Wen Ho Lee, a muclear weapon scientist suspected of but never charged with leaking national security documents, James Nichols, the brother of Terry Nichols who was comicted in connection with the 1995 Oklahoma City bombing and Abraham Ahmad, a Palestinian American arrested in the aftermath of the Oklahoma City bombing but never charged Richard Serrano, "After the Attack." Los Angeles Times, September 26, 2001

239

pacitating" terrorists For instance, the only person, to our knowledge, who has been charged with a crime connected to the terrorist attacks. Zacarias Moussaoui, the alleged twentieth hijacker, was originally held as a material witness. He was subsequently indicted with six conspiracy counts alleging that he conspired with Osama bin Laden and al-Qaeda to carry out the September 11 attacks. His trial began in July in Virginia Another man described as a suspect who was initially held as a material witness is José Padilla, who was accused of participating in a plot to explode a radioactive bomb in the United States, but never charged with any crime. He is currently being held as an "enemy combatant" and has been denied access to the courts and an attorney

The warrants were obtained to secure the presence of the witnesses before the grand juries investigating crimes connected to September 11. All of the material witnesses we interviewed, or whose cases have been described to us by their attomeys, were interrogated extensively about possible criminal conduct or connections to terrorism A district court declared that at least cight and possible more material witnesses were never brought before a grand jury to testify, although that was the ostensible purpose of the warrants They were all confined in jail, treated no better than accused or convicted criminals; indeed, some were subjected to punitive conditions, held in solitary confinement, and

240

239 Vict Dinh, assistant attorney general, Office of Legal Counsel Department of Justice, wrote:

Each of the detainees has been charged with a violation of either immigration law or criminal law or is the subject of a material witness warrant issued by a court. The aim of the strategy is to reduce the risk of terrorist attacks on American soil, and the Department's detention policy already may have paid dividends. These detentions may have incapacitated an Al Qaeda sleeper cell that was planning to strike a target in Washington, DC-perhaps the Capitol building soon after September 11

Vict Dinh, "Freedom and Security after September 11. 25 Harvard Journal of Law and Public Policy 399. Spring 2002.

Center for National Security Studies v. U.S. Department of Justice, p. 30

subjected to security measures typically reserved for dangerous persons. Most were let out of their cells only one hour per day. Although material witnesses have a right to counsel. including court-appointed counsel if necessary, some in fact did not have access to counsel.

Some of the persons held on material witness warrants were ultimately released once the warrants were dismissed while others were charged with federal crimes or immigration violations unearthed during the investigation.

The following cases illustrate the misuse of material witness warrants to keep possible suspects in detention and the mistreatment of the matenal witnesses while they were confined

Jean-Tony Oulai was arrested by eleven FBI, INS, and airport security personnel at a Florida airport on September 14, 2001 after a random search of his luggage turned up a stun gun, flight manuals, and documents with notes in a language that airline workers mistook for Arabic. Oulai, who is a citizen of the Ivory Coast and is black and Roman Catholic, told Human Rights Watch that he was a licensed pilot and that he did not spcak Arabic. Stun guns are permitted in checked luggage but have to be reported to the airline. Oulai said that the employee at the airline counter saw the stun gun but did not ask him to fill out any form.

Oulai was charged with entering the country illegally. Even though he said he entered with a legal student visa, he acknowledged he overstayed his visa and decided to accept deportation instead of spending a long pe riod of time incarcerated while pursuing his case He was ordered deported on November 15. His embassy allegedly issued him a travel permit and wrote a letter guaranteeing that the Ivorian government would make sure Oulai would cooperate with US law enforcement if his testimony were required in any proceeding in the United States.

Instead of deporting him, the US government kept him in detention as a material witncss for three months On February 14,

2002, a judge dismissed the material witness warrant, reportedly after prosecutors admitted that they had no evidence that linked OuLai to terrorism. Still, Oulai was not released. U.S. attorneys in Florida accused him of lying to federal agents about whether he was living legally in the United States the day he was arrested, a crime that is rarely prosecuted. A magistrate set a $100,000 bond on the charge. which was paid by Oulai's brother, who is a physician. Oular was still not released. The govemment contended that he was in INS custody because he was waiting to be deported His attorneys argued that it was illegal for the INS to hold him because the statutory ninety-day deadline for removal after a final order of deportation had passed

Prosecutors then told the attorneys that Oulai was in the custody of the Marshals Service and was being taken from Virginia to Florida Reportedly, four federal officials repeatedly contradicted cach other over whether the INS or the Marshals Service had custody of Oulai In the meantime, for seven days neither Oulai's family nor his attorneys could find out where he was held. It turned out that he was being shifted through several states and detention facilities.

As of this writing. Oular has been in detention for eight months, some of the time in solitary confinement He alleged he was beaten by law enforcement agents at Baker 24(For County Detention Center in Florida. more details see the section, Physical and Verbal Abuse, in this report)

21 Human Rights Watch interviews with Tony Oulai. Alexandria City Jail. Virginia February 9, 2002. telephone interviews with his sister Looncicd Quayouro. Fairfax, Virginia, February 1, 2002, and March 25, 2002, and with his attorney David Sontan, Virginia, February 1. 2002. See also. Am Goldstein. "I Want to Go Home Detainee Tony Oulai Awaus End of 4-Month Legal Limbo." Washington Post, January 26. 2002; Amy Goldstein, No Longer Makenal Witness, West African Still Detained" Washington Post. February 15, 2002, and Amy Goldstein, "No Longer a Suspect. But Still a Detainee," Bashington Post, May 27, 2002

· When Human Rights Watch interviewed Eyad Mustafa Alrababah, a Palestinian with a Jordanian passport, he had difficulty remembering what had happened to him since his arrest on a material witness warrant, and said he could not see well. He had a bloodshot cyc, appeared tired, and said he was depressed, but he had not seen a doctor He had been held in solitary confinement for more than four months, the first two of them with the lights on twenty-four hours a day, during which time he said he could not sleep.

On September 29, 2001, Alrababah went to the FBI office in Bridgeport, Connecticut because he had recognized four of the alleged hijackers whose pictures were shown on television. He told Human Rights Watch that he met them at a mosque in March 2001, hosted them at his home, and in June 2001 drove them from Virginia to Connecticut and after that he did not see them again Alrababah was questioned by two FBI agents and then taken to the Hartford Correctional Center, where he was held for about twenty days. Alrababah was placed in isolation. He was strip and cavity-scarched at least once a week. He was not allowed to make any phone calls from the detention center but did telephone his fiancée, a US citizen, a few times from the FBI office where he was taken for interrogations

When he asked why he was detained, he was reportedly told you're a protected witness." but he said he was not given any document that detailed any charges against him or that stated that he was a material witness

In mid-October, six or seven FBI agents interrogated Alrababah for four or five hours. He said he was informed of his right to have an attomey present but he waived his right telling agents. I'm innocent I am sure about what I say Alrababah said one of them, an agent named "Burkowski” threatened him "He was yelling and screaming He said 'disgusting Arabs. and told me I'm going to throw you out of the window like