October 15, 2001
Questions Swirl Around Men Held in Terror Probe
By Lois Romano and David S. Fallis
In a high-security wing of Manhattan's Metropolitan 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 10-foot 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 count.
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 to 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.
"How many are being held? On what basis? What kind of judicial review is available? All of those seem to be important questions to answer," said Steven 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 his 17-daydetention as a material witness, which he described as a humiliating and terrifying experience. "They don't call you by name. . . . They call you [expletive] terrorist," said Yazeed Al-Salmi of the guards at the Manhattan facility where he was held for 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 Metropolitan Correctional Center or hundreds of others who have been held during the investigation. The Justice Department has also refused to reveal the names of the lawyers representing them.
It is unknown whether the detainees are considered conspirators in the worst 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 "pushing the envelope" of civil liberties. The source said some people are being detained based on circumstantial evidence and held for a week or longer without legal representation or permission to contact family members. "Some of these people have done nothing more than give someone a ride in their car," the official said.
Defenders of the government's tactics say authorities are doing the best they can under the law as they investigate an emotionally charged and complex case that is without precedent. Attorney General John D. Ashcroft said on ABC's "Nightline" Thursday that the government's actions are "consistent with the framework of law that we operate under."
Federal officials contend that the government has to adhere to secrecy rules imposed by the New York grand jury investigating the terrorist attack and the orders of federal judges that certain matters be filed under seal.
Michael B. Mukasey, chief federal judge of the Southern District of New York, declined to discuss anything related to the cases. "As far as he is concerned," his secretary offered, "they will remain sealed, forever."
The government is relying mainly on two legal methods to detain people in the terror investigation: immigration violations and the material witness statute. 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's value to 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, risk of flight is a tangible basis for detention, experts said.
"There are a few people that we have detained on material witness warrants," Ashcroft acknowledged on "Nightline." "These are people that we go before a judge and we say that it's important that . . . they be detained so they can go before a grand jury. That process is supervised by a court."
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 also 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. Although the law says only that they may be held for a "reasonable period of time," constitutional scholars say the law was not intended to allow indefinite detentions.
"The purpose of the material witness law was to hold people so that you can get them before a grand jury, not to hold people indefinitely while the government searches around for clues," 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, he was quizzed by FBI agents and federal prosecutors before he was questioned by 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't 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. "One of the agents threw me up against the wall. The only thing I heard was 'material witness,' " Al-Salmi said. "That was it. They took me away."
He said he cooperated with authorities, who "asked me if I helped him or supported him financially. I told them no, you can check the bank."
Al-Salmi said they questioned him repeatedly about the few times he had spent 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 on 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 "changed my life. . . . I was counting every single minute of every single day. I was praying to get out soon."
Use of the material witness law in the terrorism investigation, some lawyers said, must be examined closely in light of the Justice Department's 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 released or charged with criminal or immigration violations.
Some legal experts are concerned that secrecy can affect a client's representation. 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 court records. At least one attorney said he would not talk publicly for fear of angering federal prosecutors.
"It becomes an ugly hardball game if a defense attorney thinks opening his mouth runs the risk of cutting off negotiations. That's a powerful, powerful club," said Irwin Schwartz, president of the National Association of Criminal Defense Lawyers.
Hamud, who represents two other material witnesses, and another lawyer who also represents a material witness said they have grown frustrated that their 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 used, 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.
"He's got nothing -- no telephone calls, nothing to watch, nothing to read, nobody to talk to," the attorney said.
Daniel Dunne, a spokesman for the Bureau of Prisons, said the federal prison system tries to accommodate prisoners' special needs, including dietary requests. He noted, however, that the 10-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 said, 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 while 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 -- but not land -- a jumbo jet. Another detainee drove Moussaoui to Minnesota, but denies involvement in the plot.
The Justice Department and the U.S. attorney's office in New York have declined to reveal the name of Moussaoui's attorney.
"When a defendant is presented in a case, when we provide a complaint and present an indictment, the files are unsealed and information is made public," said a spokesman for U.S. Attorney Mary Jo White of the Southern District of New York. "Those conditions do not prevail here."
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 -- Al-Salmi, Osama Awadallah and Mohdar Abdallah -- were arrested because they were acquainted with three of the hijackers who were briefly associated with San Diego's 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 time in federal custody but that the requests were denied.
They "had asked time and again to call me and they were not allowed to do so," Hamud said. "Law school doesn't prepare you for this."
Staff writers Scott Higham and Marcia Slacum Greene contributed to this report
Copyright © 2001, Washington Post Company. All rights reserved.
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