Secrecy makes status of detainees difficult to track

From the Winter 2003 issue of The News Media & The Law, page 13.

By Sara Thacker

In the wake of September 11, the secrecy surrounding immigration, enemy combatant and material witness cases connected to the war on terrorism makes it difficult to follow how these cases are proceeding.

The most recent information provided by the Justice Department reveals that the government detained 765 individuals after September 11. Of those, 478 individuals were deported in secret proceedings, 281 individuals were released without charges, and 6 remain in INS custody.

In criminal proceedings, 134 individuals have been charged, 99 have been found guilty through trials or plea agreements, 78 individuals have been deported or incarcerated, and 56 individuals are in custody awaiting sentencing, removal or trial. The Justice Department refuses to disclose how many material witnesses it holds.

Following is a summary of recent activity in some of the most notable cases:

Mohamed el-Atriss

El-Atriss pleaded guilty in open court to one felony count of selling simulated identification documents on Feb. 4. The case was brought by local prosecutors in Passaic County, N.J.

When el-Atriss sold documents perceived to be international driver’s licenses to two of the September 11 terrorists, he did not know these customers or that they had connections to terrorism, said defense attorney Miles Feinstein. After spending six months in jail, el-Atriss was released on $50,000 bond, but paid $5,000 offered as a cash alternative that will be recovered when he appears at his sentencing hearing in March, Feinstein said. According to Senior Assistant Prosecuting Attorney Steven Brizek, prosecutors will seek a five-year probation term.

In secret hearings presided over by New Jersey Superior Court Judge Marilyn Clark, cash bail previously was set as high as $500,000. Not only did Clark deny the press and public access to these bail hearings, but she prohibited el-Atriss and his attorney from attending.

In January, an appellate court sent the case back to the trial court requiring that it explain in writing how it arrived at its decision. The appellate court also found that any evaluation of national security by the trial court must be conducted with notice and invitation to the federal government to participate.

Rabih Haddad

The co-founder of the Global Relief Foundation, an Islamic charity, was arrested when federal agents raided the organization and his home in December 2001. The government accused the charity of providing money to al-Qaida, which Haddad denies. The government has held Haddad for more than a year.

Haddad’s case sparked national attention when the Detroit Free Press, The Ann Arbor News, The Detroit News, the Metro Times and Rep. John Conyers (D-Mich.) sought access to Haddad’s immigration hearings that the court held in secret. The case went to the U.S. Court of Appeals in Cincinnati (6th Cir.) where a three-judge panel ruled that such “special interest” immigration hearings must be open and that the government’s interests did not justify closure.

In January, the Sixth Circuit denied the Justice Department’s request that the entire court review the decision made by the three-judge panel that provided public access to Haddad’s immigration hearings. This decision conflicts with a ruling by the U.S. Court of Appeals in Philadelphia (3rd Cir.) denying access to immigration hearings in “special interest” cases after September 11. Because of the conflict between the Sixth and Third Circuit decisions, these cases may be appealed to the U.S. Supreme Court this spring.

Currently, Haddad, his wife and three children are appealing a decision by the Immigration and Naturalization Service to deport the family to Lebanon for overstaying tourist visas. Haddad’s fourth child was born in the United States and is a U.S. citizen.

Yaser Esam Hamdi

Hamdi has not been charged with a crime, but is being held as an “enemy combatant.” The government detained Hamdi in Fall 2001 in an Afghanistan combat zone and held him in Guantanamo Bay. In April 2002, Hamdi was transferred to a naval brig in Norfolk, Va.

Acting on his behalf, Hamdi’s father challenged the constitutionality of his son’s detention.

In January, the U.S. Court of Appeals in Richmond (4th Cir.) ruled that Hamdi is not entitled to challenge the facts presented by the government’s declaration that he is an “enemy combatant.” The court found that the government could detain Hamdi during the conflict without access to an attorney and that the executive branch was in the best position to determine when the hostilities would end that could lead to his release.

Zacarias Moussaoui

Moussaoui is charged criminally for his alleged involvement in the September 11 attacks. The Justice Department is prosecuting this case in federal court in Virginia. The court docket for Moussaoui’s case is filled with black holes reflecting secret motions, secret hearings and secret orders. After a secret hearing Jan. 30, The Washington Post reported that U.S. District Judge Leonie M. Brinkema ordered that in preparation of the defense, Moussaoui’s attorneys must have access to Ramzi bin al-Shibh, who allegedly coordinated the September 11 attacks. The Justice Department notified the court Feb. 7 that it will appeal the decision. Defense attorneys agreed to a Justice Department request to a stay pending appeal. If the appeal is unsuccessful, the case may move to a military tribunal.

Jose Padilla

Padilla is a U.S. citizen whom the government detained in May 2002 for allegedly planning to plant a radioactive bomb in the United States. While the government has brought no formal criminal charges against Padilla, the government labeled him an “enemy combatant” subject to detention in a naval brig in South Carolina.

Unlike Hamdi’s case, New York federal judge Michael Mukasey ordered that Padilla could have access to an attorney to discuss his petition challenging his detention. The government requested that Mukasey reconsider his order.

James Ujaama

Ujaama faces criminal charges for allegedly setting up training facilities in Oregon and providing computers to al-Qaida. After examining a federal court hearing transcript before it was sealed, The Seattle Times reported that the Defense Department refuses to allow federal prosecutors access to three men held in Guantanamo Bay who allegedly have information about Ujaama.