Copyright 2002 The New York Times Company
The New York Times
August 4, 2002, Sunday, Late Edition - Final
Section 1; Page 1; Column 1; National Desk
After Sept. 11, a
On the Limits of
This article was reported and written by Adam Liptak, Neil A. Lewis and
In the fearful aftermath of Sept. 11, Attorney General John Ashcroft vowed to
use the full might of the federal government and
"every available statute" to hunt down and punish
"the terrorists among us."
The roundup that followed the attacks, conducted with wartime urgency and
uncommon secrecy, led to the detentions of more than 1,200 people suspected of
violating immigration laws, being material witnesses to terrorism or fighting
for the enemy.
The government's effort has produced few if any law enforcement coups. Most of
the detainees have since been released or deported, with fewer than 200 still
But it has provoked a sprawling legal battle, now being waged in federal
courthouses around the country, that experts say has begun to redefine the
delicate balance between individual liberties and national security.
The main combatants are the attorney general and federal prosecutors on one
side and a network of public defenders, immigration and criminal defense
lawyers, civil libertarians and some constitutional scholars on the other, with
federal judges in between.
The government's record has so far been decidedly mixed. As it has pushed civil
liberties protections to their limits, the courts, particularly at the trial
level, have pushed back, stopping well short of endorsing Mr. Ashcroft's
tactics or the rationales he has offered to justify them. Federal judges have,
however, allowed the government to hold two American citizens without charges
in military brigs, indefinitely, incommunicado and without a road map for how
they might even challenge their detentions.
In the nation's history, the greatest battles over the reach of government
power have occurred against the backdrop of wartime. Some scholars say the
current restrictions on civil liberties are relatively minor by historical
standards and in light of the risks the nation faces.
The current struggle centers on three sets of issues. People held simply for
immigration violations have objected to new rules requiring that their cases be
heard in secret, and they have leveraged those challenges into an attack on
what they call unconstitutional preventive detentions.
People brought in and jailed as material witnesses, those thought to have
information about terrorist plots, have argued that they should not be held to
give testimony in grand jury investigations.
Finally, Yasser Esam Hamdi and Jose Padilla, the two Americans labeled
"enemy combatants" for what the government contends is more direct involvement with terrorist
groups, are seeking rights once thought to be fundamental to American citizens,
like a lawyer's representation and a chance to challenge their detentions
before a civilian judge.
So far, federal judges in Newark and Detroit have ordered secret deportation
proceedings opened to public scrutiny, and on Friday a federal district judge
in Washington ordered that the identities of most of the detainees be made
public under the Freedom of Information Act.
"Secret arrests," Judge Gladys Kessler wrote in the decision on Friday,
"are a concept odious to a democratic society."
A senior Justice Department official said the detentions had been lawful and
effective. He said it was hard to
"prove a negative" and cite specific terrorist acts that had been disrupted. But he said that
department officials believed that the detentions had
"incapacitated and disrupted some ongoing terrorist plans."
Two federal judges in New York have differed sharply on whether the government
may jail material witnesses while they wait to testify in grand jury
investigations. In Virginia, a federal judge ordered the government to allow
Mr. Hamdi to consult a lawyer.
"I look at the federal district court judges and just cheer them on, because
they are doing exactly what an independent judiciary should be doing," said Jane E. Kirtley, a professor at the University of Minnesota and former
executive director for the Reporters Committee for Freedom of the Press.
"It's not hostile or adversarial; it's simply skeptical."
These lower-court decisions have for the most part not yet been tested on
appeal, and there is reason to think that appeals courts and the Supreme Court
will prove more sympathetic to the government's tactics and arguments.
The federal appeals court in Richmond, Va., for instance, reversed the decision
to allow Mr. Hamdi to talk to a lawyer and ordered the lower court judge to
consider additional evidence and arguments.
But even the appeals court seemed torn, and it rejected the government's
sweeping argument that the courts have no role in reviewing the government's
designation of an American citizen as an enemy combatant.
The detention issues also carry an emotional punch. Many of the Arabs and
Muslims caught in the government dragnet were cabdrivers, construction workers
or other types of laborers, and some spent up to seven months in jail before
being cleared of terrorism ties and deported or released.
Last month, at a conference held by a federal appeals court, Warren
Christopher, the secretary of state in the Clinton administration, snapped at
Viet Dinh, an assistant attorney general under President Bush, saying that the
administration's refusal to identify the people it had detained reminded him of
"disappeareds" in Argentina.
"I'll never forget going to Argentina and seeing the mothers marching in the
streets asking for the names of those being held by the government," Mr. Christopher said.
"We must be very careful in this country about taking people into custody
without revealing their names."
Mr. Dinh, who came to the United States as a refugee from Vietnam, recalled his
family's anguish when his father was taken away in 1975 for
"re-education." In contrast, he said, those detained by the United States were not being
secretly held but were allowed to go to the press and seek lawyers.
"These are not incognito detentions," he said.
"The only thing we will not do is provide a road map for the investigations."
According to the Justice Department, 752 of the more than 1,200 people detained
since Sept. 11 were held on immigration charges. Officials said recently that
81 remained in detention. Court papers indicate there were about two dozen
material witnesses, while most of the other detainees were held on various
state and federal criminal charges.
President Bush also has announced plans to try suspected foreign terrorists
before military tribunals, though no such charges have been brought yet.
Last month, William G. Young, the federal judge presiding in Boston over the
criminal case against Richard C. Reid, a British citizen accused of trying to
detonate a bomb in his shoe on a trans-Atlantic flight, noted that the very
establishment of those tribunals
"has the effect of diminishing the American jury, once the central feature of
Judge Young, who was appointed by President Ronald Reagan, added:
"This is the most profound shift in our legal institutions in my lifetime and --
most remarkable of all -- it has taken place without engaging any broad public
Jack Goldsmith and Cass R. Sunstein, professors at the University of Chicago
Law School, have written that the Bush administration's policies are a minimal
challenge to civil liberties especially compared with changes during the times
of Abraham Lincoln and Franklin D. Roosevelt. What has changed, they say, is a
greater sensitivity to civil liberties and a vast increase in mistrust of
U.S. Says Hearings Are Not Trials
Ten days after last September's attacks, Michael J. Creppy, the nation's chief
immigration judge, quietly issued sweeping instructions to hundreds of judges
for what would turn out to be more than 600
"special interest" immigration cases.
"Each of these cases is to be heard separately from all other cases on the
docket," Judge Creppy wrote.
"The courtroom must be closed for these cases -- no visitors, no family, and no
"This restriction," he continued,
"includes confirming or denying whether such a case is on the docket."
The government has never formally explained how it decided which visa violators
would be singled out for this extraordinary process, and it has insisted that
the designations could not be reviewed by the courts.
But as it turns out, most of these cases involved Arab and Muslim men who were
detained in fairly haphazard ways, for example at traffic stops or through tips
from suspicious neighbors. Law enforcement officials have acknowledged that
only a few of these detainees had any significant information about possible
As the ruling on Friday in Washington suggests, a series of legal challenges to
this secrecy has resulted in striking legal setbacks for the administration.
Several courts have ordered the proceedings opened and have voiced considerable
skepticism about the government's justifications for its detention policies
Lee Gelernt, a lawyer at the American Civil Liberties Union, said the secrecy
of the proceedings exacerbated the hardships faced by people who disappeared
from sight on violations that in the past would not have resulted in
"Preventive detention," he said,
"is such a radical departure from constitutional traditions that we certainly
shouldn't be undertaking it solely on the Justice Department's say-so."
Malek Zeidan's detention would have been unexceptional had it not given rise to
one of the legal challenges that threatens to end the secret proceedings.
Mr. Zeidan, 42, is a Syrian citizen who overstayed his visa 14 years ago and
has lived in Paterson, N.J., for more than a decade. Over the years, he has
delivered pizzas, driven an ice cream truck and pumped gas. When the
Immigration and Naturalization Service came around last Jan. 31 to ask him
about a former roommate suspected of marriage fraud, Mr. Zeidan was working at
Dunkin' Donuts, and his expired visa soon cost him 40 days in custody.
When a hearing was finally held three weeks after his detention, the judge
closed the courtroom, excluding Mr. Zeidan's cousin and reporters.
The closing of proceedings prompted lawsuits in federal court, from both Mr.
Zeidan and two New Jersey newspapers. In March, the government dropped the
"special interest" designation, Mr. Zeiden was released after posting a bond, and the case he
filed was dismissed. The immigration charges against him will be considered in
"You're one of the lucky ones," his lawyer, Regis Fernandez, recalls telling Mr. Zeidan, given that other visa
violators were held as long as six or seven months before being deported or
Mr. Zeidan's lawyers believe that their legal strategy, which focused on
openness, forced the government's hand.
"The government was somehow linking secrecy to guilt," Mr. Fernandez said.
"We figured if the public had access to these hearings they would see that
nothing went on except multiple adjournments and delay."
Through a spokeswoman, Judge Creppy declined to comment. An I.N.S. official,
who spoke on the condition that he not be named, said the agency had acted
properly in Mr. Zeidan's case and in similar cases.
He said the immigration service had always detained people without bond who
were linked to criminal investigations. He added that the agency had no choice
now but to detain a visa violator until the Federal Bureau of Investigation was
sure the person was not involved in terrorism.
"Consider the flip side -- that you held him for two days and then deported him,
and 30 days later you found out he was a terrorist," the official said.
The newspapers' lawsuit has continued. It has already once reached the Supreme
Court, and the government's papers contain one of the fullest accounts of its
position on secrecy and executive power.
Its main argument is that the courts have no role because immigration hearings
are not really trials, but are merely administrative hearings that can be
closed at will.
Bennet Zurofsky, who also represented Mr. Zeidan, said he was flabbergasted by
"A trial is a trial," he said.
"A person's liberty is at stake. A person is being held in jail. A person is
being told where to live."
But in a sworn statement submitted in several court cases, Dale L. Watson, the
executive assistant director for counterterrorism and counterintelligence at
the F.B.I., outlined the reasoning behind the government demand for total
"Bits and pieces of information that may appear innocuous in isolation can be
fit into a bigger picture by terrorist groups," he said.
This rationale for withholding information, sometimes called the mosaic theory,
"It's impossible to refute," Professor Kirtley said,
"because who can say with certainty that it's not true?"
In May, John W. Bissell, the chief judge of the federal district court in
Newark, appointed by President Reagan, ruled for the newspapers and ordered all
deportation hearings nationwide to be opened, unless the government is able to
show a need for a closed hearing on a case-by-case basis. His ruling followed a
similar one in Detroit the month before, though that case involved only a
The government appealed to the Court of Appeals for the Third Circuit, in
Philadelphia, and asked it to block Judge Bissell's order until the appeal was
decided. The court, which will hear arguments in September, declined to do
that. A number of news organizations, including The New York Times, filed a
brief as a friend of the court in support of the newspapers.
The government then asked the United States Supreme Court to stay Judge
Bissell's order. The court, in a relatively unusual move given that the case
was not before it for any other purpose, blocked Judge Bissell's order,
suggesting that it might have more sympathy for the government's arguments.
Rights Violated, Lawyers Contend
Late on Sept. 12, federal agents pulled two nervous Indian men, Mohammed Jaweed
Azmath and Syed Gul Mohammed Shah, off an Amtrak train near Fort Worth. They
were carrying box cutters, black hair dye and about $5,000 in cash and had also
shaved their body hair.
The agents' suspicions were obvious. The hijackers had used box cutters and
knives to take control of the aircraft and had received letters instructing
"shave excess hair from the body." An F.B.I. affidavit dated Sept. 15 said there was probable cause to believe
that both of the Indian men were involved in, or
"were associated" with, those responsible for the Sept. 11 attacks.
But even though government officials told reporters that the men had been
detained as material witnesses, their lawyers now say that they were held last
fall only on immigration violations.
The distinction is important because a material witness warrant brings the
automatic appointment of a government-paid lawyer, while the government does
not have to supply a visa violator with counsel.
As a result, the authorities were able to question each of the men repeatedly
about terrorism without a lawyer present, their current lawyers say.
Like some of the people who were picked up as material witnesses, the Indian
men were held in isolation in jails in New York for extended periods. It was 91
days before Mr. Azmath received a lawyer and 57 days before Mr. Shah did, their
"It's wrong to keep a man in jail for 57 days and never bring him before a
magistrate to advise him of his rights," Mr. Shah's lawyer, Lawrence K. Feitell, said in an interview.
"It's wrong not to provide him with an attorney at the threshold. It's wrong to
depict this as an I.N.S. investigation, when in truth and in fact, it's the
main inquiry into the World Trade Center debacle."
Anthony L. Ricco, the lawyer for Mr. Azmath, said his client was interrogated
"often times for several hours a day, with multiple interviewers, getting
rapid-fire questions from three or four different people."
Eventually, the F.B.I. and the prosecutors cleared the men of any involvement
in terrorism, and both pleaded guilty in June in a credit-card fraud scheme and
are awaiting sentencing.
Federal prosecutors said in court papers that both men consented to
"was read and waived his Miranda rights before each interview," prosecutors wrote, adding that each man confessed to the credit card offenses.
The United States attorney in Manhattan, James B. Comey, would not comment on
the specific cases, but said generally of the government's tactics:
"I don't see any violation of any rule, regulation, or law.
"I can understand defense lawyers not being happy," he said.
"But I know our position after 9/11 was to use every available tool, to stay
within the rules but play the whole field and recognize the boundaries, but
cover the whole field.
"We need to do whatever we can that's legal to investigate and disrupt," he added.
Today, it is believed that only a handful of the two dozen material witnesses,
perhaps as few as two, are still being detained.
But the process of detaining the witnesses has stirred intense criticism.
Last April, Judge Shira A. Scheindlin of Federal District Court in Manhattan
ruled that the use of the law
"to detain people who are presumed innocent under our Constitution in order to
prevent potential crimes is an illegitimate use of the statute."
Judge Scheindlin said the material witness law applied when witnesses were held
to give testimony at trials, not for grand jury investigations.
"Since 1789," Judge Scheindlin said,
"no Congress has granted the government the authority to imprison an innocent
person in order to guarantee that he will testify before a grand jury
conducting a criminal investigation."
Then last month, Chief Judge Michael B. Mukasey, also of Federal District Court
in Manhattan, upheld the government's use of the material witness statute in
grand jury investigations, criticizing Judge Scheindlin's reasoning.
Judge Mukasey, citing the assertion in 1807 by Chief Justice John Marshall that
"the public has a right to every man's evidence," held that detentions of material witnesses during investigations are proper.
The War Captives
No Lawyers Allowed Under U.S. Label
Yasser Esam Hamdi, a Saudi national who was captured in Afghanistan, is
probably an American citizen by virtue of having been born in Louisiana. His
case represents the core issue of what kind of role the nation's courts should
have, if any, in reviewing the government's imprisonment of someone charged
with something akin to a war crime.
Prosecutors will be back in Federal District Court in Norfolk, Va., next
Thursday to confront one of the federal judges who has shown resistance to the
government's approach that once someone is declared an
"enemy combatant" by the president, all judicial review ceases.
Judge Robert G. Doumar, an appointee of President Reagan, has twice ruled that
Mr. Hamdi is entitled to a lawyer and ordered the government to allow Frank
Dunham, the federal public defender, to be allowed to visit him without
government officials or listening devices. Judge Doumar said that
"fair play and fundamental justice" require it. He said the government
"could not cite one case where a prisoner of any variety within the jurisdiction
of a United States District Court, who was held incommunicado and indefinitely."
But the three-judge panel of the appeals court stayed Judge Doumar's order,
saying he had not fully considered the government's needs to keep Mr. Hamdi
incommunicado and, more important, the executive branch's primacy in areas of
foreign and military affairs.
"The authority to capture those who take up arms against America belongs to the
commander in chief," Chief Judge J. Harvie Wilkinson 3rd wrote for the appeals panel.
But even Judge Wilkinson seemed to evince some surprise at the breadth of what
the government was asserting when he asked the Justice Department's lawyer,
"You are saying that the judiciary has no right to inquire at all into someone's
stature as an enemy combatant?"
The government has relented slightly, agreeing to provide the court with a
sealed declaration of the criteria by which they have judged Mr. Hamdi to be an
enemy combatant. But the government has argued that judges cannot argue with
Judge Doumar has indicated that he will question the government closely on
The case of Jose Padilla, which has not progressed as far as that of Mr. Hamdi,
may present an even greater challenge to normal judicial procedures.
Mr. Padilla, also known as Abdullah al-Muhajir, is, like Mr. Hamdi, an American
citizen, imprisoned in a naval brig after having been declared an enemy
combatant. But unlike Mr. Hamdi, Mr. Padilla was not arrested on the
battlefield by the military but on United States soil by civil law enforcement
authorities, on May 8 in Chicago.
After his detention as a material witness based on suspicions that he was
seeking to obtain material and information to build a radioactive bomb, he was
transferred to military custody.
"This is the model we all fear or should fear," said Mr. Dunham, the public defender.
"The executive branch can arrest an American citizen here and then declare him
an enemy combatant and put him outside the reach of the courts. They can keep
him indefinitely without charging him or giving him access to a lawyer or
presenting any evidence."
Photos: MALEK ZEIDAN Syrian citizen (Jon Sweeney/ MSNBC.com); MOHAMMED JAWEED
AZMATH Indian citizen; SYED GUL MOHAMMED SHAH Indian citizen; JOSE PADILLA
American citizen; YASSER HAMDI American citizen; Attorney General John
Ashcroft, testifying before the Senate Judiciary Committee on July 25, has
tried to defend the government's tactics in the fight against terrorism.
"Civil Liberties in a Time of Terror"
The governments aggressive push to find terrorists has led to legal battles in
the federal courts. Following is a sampling of people detained by the
government and the broader civil liberties issues their cases present.
SECRECY IN THE COURTS
Detainees held on immigration violations have objected to their cases being
heard in secret, and have accused the government of violating the Constitution
with what they call
Mr. Zeidan, of Paterson, N.J., overstayed his visa by 14 years. Mr. Zeidan has
driven an ice cream truck, delivered pizza, pumped gas and was working at
Dunkin Donuts at the time of his detention, after an Immigration and
Naturalization Service agent questioned him about a former roommate. He
admitted his visa violation and was detained for 40 days.
He was released on bond after he and two New Jersey newspapers filed lawsuits
challenging the secrecy surrounding his detention. A federal judge ordered that
deportation proceedings be opened. The Supreme Court has stayed that order
while the case is on appeal.
People brought in as material witnesses, those thought to have information
about terrorist plots, have argued that they should not be jailed to give
testimony in grand jury investigations.
Mr. Azmath and Mr. Shah were arrested Sept. 12 during a search of an Amtrak
train in Texas. Investigators said they flew out of Newark on the day of the
attack, and were found to be carrying about $5,000 in cash and box cutters like
those used in the hijackings.
Both were initially held on immigration violations, and interrogated by the
authorities. Their lawyers complain that Mr. Azmath was held for 91 days
without a lawyer, and Mr. Shah for 57 days. The government has said that they
consented to the questioning.
Mr. Azmath and Mr. Shah were later charged in a credit card fraud scheme, and
pleaded guilty in June to conspiracy.
Citizens imprisoned on charges of fighting on the side of Al Qaeda and the
Taliban are seeking the right to have a lawyer and to challenge their
detentions before a civilian judge.
A former member of a Chicago street gang, Mr. Padilla served prison sentences
in Illinois and Florida. He converted to Islam while working at a Taco Bell.
He was detained when he left a plane in Chicago after a flight from Zurich.
American authorities said Mr. Padilla had met with Al Qaeda officials in
Pakistan and was part of a plot to detonate a radioactive bomb in the United
Mr. Padilla has not been charged with a crime. He was initially held as a
material witness in Chicago. He was later moved to New York and taken into
military custody. He is currently being held as an
"enemy combatant" in a Navy brig in Charleston, S.C.
Born in Baton Rouge, Mr. Hamdi moved when he was a toddler with his parents to
Saudi Arabia, where he was raised.
He was detained by Northern Alliance forces in Afghanistan while fighting
alongside the Taliban. Mr. Hamdis family contends that he went to Afghanistan
for humanitarian reasons and got caught up in the fighting.
Mr. Hamdi has not been charged with a crime. He was initially held in
Guantanamo Bay, Cuba. But on learning of his American citizenship, U.S.
military officials moved him to the naval brig in Norfolk, Va., where he is
being held as an
August 4, 2002