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August 30, 2002
Full Court Press
Judges lambast Justice Dept., but 9/11 detainees still sit in jail, or worse.

Protesters rally in support of Rabih Haddad in Michigan hours before a judge ruled against secret deportation hearings.
An August 26 federal appeals court ruling in Cincinnati signaled the latest strong rebuke of the Bush administration’s handling of civil liberties and public disclosure in the cases of September 11 detainees. But while a series of cases on Justice Department and INS policies wend their way through the courts, scores of detainees remain in legal limbo, imprisoned, often isolated, and facing deportation.

The Cincinnati ruling, issued unanimously by a three-judge panel for the Sixth District Court of Appeals, applied only to a single case—that of Rabih Haddad, a Muslim clergyman who had overstayed his tourist visa. Four Michigan newspapers and Democratic Rep. John Conyers Jr. had filed suit challenging a September 21, 2001, order by Chief Immigration Judge Michael J. Creppy, issued at the request of Attorney General John Ashcroft, that closed immigration hearings deemed by the INS to threaten national security.

This month in Philadelphia, a federal appeals court will hear a government appeal of a broader case on the same issues, in which a lower court judge in Newark ordered the government to open all such hearings to the public unless it could offer case-by-case proof of the need for secrecy.

The Sixth District case, the Newark decision and an August 2 ruling by U.S. District Judge Gladys Kessler ordering the release of the names of all people detained in post-9/11 investigations—an order Kessler later stayed pending government appeal—all directed unusually harsh language toward the Bush administration policies.

Citing an opinion used as precedent, Kessler wrote, “Secret arrests are ‘a concept odious to a democratic society’ and profoundly antithetical to the bedrock values that characterize a free and open one such as ours.” Judge Damon J. Keith, in the Cincinnati ruling, wrote that “democracies die behind closed doors.”

An August 16 ruling in the case of Yaser Esam Hamdi, a Muslim captured in Afghanistan who (along with alleged “dirty bomber” Jose Padilla) is one of two U.S. citizens known to be imprisoned indefinitely and without charges, drew even harsher language from U.S. District Judge Robert Doumar. Ordering the government to provide more information on why Hamdi should be considered an “enemy combatant” without the rights generally accorded citizens, the judge noted that the case “appears to be the first in American jurisprudence where an American citizen has been held incommunicado and subjected to indefinite detention without charges, without any finding by a military tribunal, and without access to a lawyer.”

But despite these widely reported condemnations, Hamdi remains in prison. So do Rabih Haddad and at least 80 other men. In the most recent public estimate, the Justice Department said in a July 3 letter to Sen. Carl Levin (D-Michigan) that 81 individuals were still in custody. The same letter reported that as of May 29, 611 INS detainees had at least one closed hearing, out of a total of 752 detained overall in connection with 9/11 investigations. Those numbers are substantially at odds with earlier Justice Department statements that up to 1,200 people had been detained.

Levin has yet to get answers to additional questions—such as why so many individuals were detained, whether any of them actually have links to terror organizations (let alone to the 9/11 attack), or the present status of the more than 600 men brought before secret INS courts since 9/11. Many are believed to have been deported to their native countries, mostly in the Middle East and South Asia.

For the scores still remaining—most facing deportation to authoritarian countries—time is not on their side. As with the “enemy combatants” being held in Guantanamo Bay, the INS detainees continue to be held, and tried, in secret, often without access to either legal counsel or the evidence against them, and often on the pretext of minor visa violations.

Still another setback to Ashcroft’s post-9/11 policies came August 22 in Washington, when the secretive federal court that oversees approval of government spying on terror suspects published—for the first time in two decades—an opinion rejecting proposed new procedures by the attorney general.

The court, which oversees the Foreign Intelligence Surveillance Act (FISA), found that Department of Justice and FBI officials had supplied erroneous information to the court in more than 75 previous applications for search warrants and wiretaps in the past two years, many of them predating 9/11. The opinion explicitly expressed a fear that Ashcroft’s policies could engender further abuses. Both the ruling and its public announcement were widely seen as a stinging rebuke to Bush administration policies regarding civil liberties and increased cooperation between intelligence and law enforcement agencies.

At press time, the government was awaiting the Philadelphia ruling before deciding whether to appeal the Sixth District decision overturning Judge Creppy’s September 2001 order. Outside the district’s four states his order remains in effect, essentially closing INS administrative hearings to anyone without national security clearance—which judges and INS prosecutors generally have, and which reporters, defense attorneys and defendants generally do not.

Meanwhile, no court rulings have yet challenged the indefinite detention of U.S. citizens such as Hamdi, and the only way for the public to know how many more such prisoners might exist is through information from the Justice Department itself.

Without exception, Ashcroft’s department has condemned the negative court rulings. In its appeal of Judge Kessler’s public disclosure ruling, for example, Justice lawyers argued that releasing the names of detainees “would give unfair advantage to terrorists.”


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