7/7: Civil Liberties Update from NIF
- Civil Liberties Update from National Immigrantion Forum
Fr: Shoba Sivaprasad
July 7, 2004
National Immigrant Solidarity Network
No Immigrant Bashing! Support Immigrant Rights!
August 27 Immigrant Workers Day of Action and Speak Out!
Part of the week-long Counter RNC Mobilization in New York City
Friday, August 27 4:00 PM - 10:00 PM
New York City, NY
Information Hotline: (212)330-8172
Sponsered by National Immigrant Solidarity Network
Briefing on Immigration (BICE/INS) Detention Abuses & Proposals for Reform on
PAL-C Rising Leaders National Conference on July 19th
*Statements and Articles of Interest
· House of Representatives Passes a Private Bill for Hasan Family,
Victims of 9/11
· Heroes of 9/11: How a Pakistani Muslim and an Indian Hindu formed
the Council of Pakistan Organization
· New York Times: In F.B.I., Innocent Detainee Found Unlikely Ally
· New York Times: Lawyers Sue Over Tapes With Detainees
· National Journal: The War on Terrorism - What's Next for Enemy
If you are receiving this e-mail through a forward, please e-mail me
(ssivaprasad@...) to receive these updates.
Shoba Sivaprasad, Esq.
Senior Policy Associate
National Immigration Forum
50 F. Street, NW, Suite 300
Washington, D.C. 20001
Briefing on Immigration (BICE/INS) Detention Abuses & Proposals for Reform
By: Mark Dow, Author of American Gulag: Inside U.S. Immigration Prisons
Date: Friday July 9, 2004, 2:00- 3:00 pm
Location: Dirksen Senate Office Building, Room 226
The NEW YORKER (6/28/04) writes: "Long before Abu Ghraib, and even before
September 11th, detainees in America's immigration prisons were being stripped,
beaten, and sexually abused. Dow has spent years interviewing inmates, guards,
and officials, and he gives a jarring account of a dangerously arbitrary
system. Alien inmates -- from political refugees who present themselves at
airports to permanent residents convicted of misdemeanors -- can be locked up for
years, in harsh conditions, with no real recourse. Dow argues that the practices
of the I.N.S. (which was folded into the Department of Homeland Security in
2003) laid the groundwork for the indefinite detentions and the muting of civil
liberties after September 11th. By 'blurring the distinction between alien,
criminal, and terrorist,' detention takes on its own brutal logic. After a
Somali man is left to bake in the sun in a sealed car to discourage others from
applying for asylum, an immigration official explains, 'I'm not trying to
prosecute them. I just want them to quit coming here.'"
"Sounds an alarm for us all." -- Anthony Lewis
"A clarion call for justice." --David Cole
(More on the book -- including a chapter called "The Art of Jailing" -- at
Mark Dow is a Brooklyn-based freelance writer whose work has appeared in the
Miami Herald, Los Angeles Times, Prison Legal News, Boston Review, New
Politics, and elsewhere. In the early 1990's he was a teacher at Miami's notorious
INS Krome detention center, whose leadership was later investigated by the OIG
for "hoodwinking" a visiting congressional delegation. Dow and another
teacher were fired in retaliation for expressing concern about the mistreatment of
Krome prisoners. He went to work for Miami's Haitian Refugee Center and began
investigating INS detention practices around the country. He is also the
co-editor (with David R. Dow) of Machinery of Death: The Reality of America's
Death Penalty Regime (2002). Dow has appeared recently on CBS News Up to the
Minute, WNYC's Leonard Lopate Show, and Radio America. On Saturday, July 3, he
will discuss the indefinite detention of Mariel Cubans (an issue the Supreme
Court will address in its October 2004 term) on Public Radio Weekend/Marketplace.
PAL-C Rising Leaders National Conference on July 19th
For immediate release
“WASHINGTON: The Pakistani-American Liaison Center (PAL-C) has created its
youth arm, PAL-C Rising Leaders. The Rising Leaders' theme is “Young Americans
of Pakistani Heritage Working to Build a Better America.”
PAL-C Rising Leaders has been created in recognition of the fact that
Americans of Pakistani heritage are significantly underrepresented in the American
political system. It seeks to cultivate a generation of Pakistani-Americans who
will be actively involved in U.S. domestic and international politics.
Rising Leaders is intended for young Americans of Pakistani heritage who are
pursuing or have established careers in public service, civil service,
academia, and journalism.
INVITATION TO ATTEND THE CONFERENCE:
PAL-C Rising Leaders invites you to attend their first nationwide leadership
conference “Young Americans of Pakistani Heritage Working to Build a Better
America” on July 19, 2004 at 6 pm at the Embassy of Pakistan, 3517 International
Court, Washington DC, 20008
Hon. Ashraf Jehangir Qazi, Ambassador of Pakistan to the United States
Hon. Dr. Nasim Ashraf, Minister of State and Chairman of Pakistan’s National
Commission for Human Development
Congressman Charlie Wilson, Former Congressman Wilson served on the
Appropriations Committee of the U.S. Congress during the Soviet invasion of
Afghanistan. Congressman Charlie Wilson will speak to the audience on “Running for Office.
Faiz Rehman, Executive Director, the Pakistani American Liaison Center
(PAL-C) President and Founder of the National Council of Pakistani Americans
Pakistani-American Congressional Staffers will hold a panel discussion on “
Working on Capitol Hill.”
RSVP by July 15, 2004: email PALCRisingLeaders@...”
Statements and Articles of Interest
House of Representatives Passes a Private Bill for Hasan Family, Victims of
9/11 (Press Release from Rep. Rush Holt’s Office)
“Washington, DC – Nearly three years after the murder of Waqar Hasan in a
post-9/11 hate crime, his wife and four daughters have taken a giant step closer
to their dream of staying in America. Today, the U.S. House of
Representatives passed a private relief bill, H.R. 867, introduced by Rep. Rush Holt on
behalf of the family (Duri, Asna, Anum, Iqra, and Nida), who live in Milltown,
New Jersey. The bill, which would grant the family permanent residency, is their
last chance to stay in the U.S. The bill will now go to the U.S. Senate for
consideration at a date to be determined, and then to the President’s desk for
his signature before becoming law.
"Nearly three years after the murder of their husband and father, Duri,
Asna, Anum, Nida, and Iqra received welcome and overdue news from the House of
Representatives," said Rep. Rush Holt (NJ-12). "Today, Congress has helped them
take a huge step towards putting the tragedy of September 15th, 2001 behind
them and restoring the dream of a better life that brought them to America. I
hope that the Senate will move quickly to pass this bill and that the President
will sign it into law as soon as possible. The Hasans should not have to
wait any longer to return onto the road to citizenship."
“I am very thankful to my colleagues on both sides of the aisle for their
support of this bill, and to the scores of citizens, activists, and religious
leaders from New Jersey and throughout the country who have supported this effort,
” said Rep. Rush Holt. “The Hasans are the type of industrious,
freedom-loving people we want in this country and they deserve to stay here.”
Mark Anthony Stroman walked into Waqar Hasan’s convenience store in Dallas,
Texas on the night of September 15, 2001, four days after 9/11, and shot the
46-year-old father of four in the face. When asked by police why he shot Waqar,
Stroman expressed no remorse. “I did it to retaliate on local Arab Americans
or whatever you want to call them,” he said. “I did what every American
wanted to do but didn’t.” Stroman is now on death row.
Waqar Hasan came to the United States in 1993 in search of a better life for
his family. A year later, he brought his wife Durreshahwar (Duri) and his
four daughters Anum, Iqra, Nida, and Asna. The family settled in Milltown, New
Jersey where they had relatives nearby. Waqar worked to support his family by
running some gas stations in the area. In the Fall of 2001, he was in Dallas
trying to establish a convenience store. He planned to move his family after
the business got off the ground. He died before that could happen.
Before his death, Waqar had taken steps to become an American citizen. He
was in the United States on an immigrant visa, but he had filed a petition with
the INS for green cards for himself and his family so that they might stay and
eventually become full-fledged Americans. When Waqar was brutally killed,
however, his family’s American future was placed in jeopardy. Their visas and
green card applications were both dependent upon his visa. When he died, their
visas and hope of American citizenship died with him. The Hasan family had
lost their husband, father, and breadwinner, and now they were also facing the
threat of deportation.
For the last two and a half years, Rep. Holt has been working with government
agencies to keep the Hasan family in this country. He has pursued and
exhausted every possible legal remedy to help the Hasan family stay in this country.
Holt’s private relief bill is the Hasan family’s last hope of attaining
legal permanent residency. It is their last chance to fulfill the dream of Waqar
“I believe that there is no more crucial time to demonstrate to Muslims in
America and around the world that we are a tolerant and sympathetic people,”
said Rep. Holt. “We must seize opportunities to showcase America’s commitment
to the democratic values that we are making great sacrifices to promote
Heroes of 9/11: How a Pakistani Muslim and an Indian Hindu formed the Council
of Pakistan Organization
Border crossings in Brooklyn
The post-9/11 sweeps left many immigrant families without friends or money. A
Pakistani Muslim and an Indian Hindu worked together to help them.
By Michelle Goldberg
June 22, 2004 | When fathers and sons started disappearing in Brooklyn,
N.Y.'s Little Pakistan after Sept. 11, their distraught relatives, not knowing
where else to go, appealed to local businessmen. Until then, Mohammed Razvi, a
business developer in his early 30s with four children, a trim beard and a
Brooklyn accent, hadn't thought much about social work. He wanted to make money,
not change lives. But he also couldn't turn away the immigrants, many of them
poor, illegal and unable to speak English, who were searching for the men who'd
been caught in the FBI's frantic and indiscriminate roundup.
The neighborhood's Business Merchants Association arranged a meeting with the
FBI and local politicians, but they were told that if they wanted to find the
men who'd been detained, they'd have to fill out Freedom of Information Act
requests. Razvi knew the detainees' relatives would never be able to do that
alone, so he decided to take time off work to help. He never returned.
While Muslims were vanishing in Brooklyn, Jagajit Singh, a Hindu who'd been a
prominent youth organizer in India's Congress Party, was beginning his
master's degree in nonprofit management at New York University. He'd arrived in
America on Sept. 2, and, as a political person, immediately wanted to get involved
in the city's response to Sept. 11, though he had no idea what to do. Then
his roommate told him that a fledgling Pakistani civil rights organization
needed help setting itself up. Soon, he and Razvi were partners.
Singh was untroubled by the tradition of fierce mutual antipathy between
India and Pakistan. "We are all human beings in an alien land," he says.
The outfit Razvi and Singh created, the Council of Pakistan Organization,
operates out of a nondescript storefront on a rundown stretch of Coney Island
Avenue, in a part of Brooklyn rarely visited by outsiders. Yet COPO is also a
kind of symbol of New York's greatness -- its ability, most of the time, to defy
and transcend the sectarian manias ravaging much of the world. At a time when
Muslim immigrants felt themselves under siege and their neighbors were
suffused with a new sense of suspicion and alarm, Singh and Razvi moved quickly to
protect their constituents' civil rights while creating ties between Brooklyn's
hitherto isolated ethnic enclaves.
Their first priority was to help the neighborhood people who were arrested
without charges, and the families struggling after their breadwinners were
deported. But Singh and Razvi also built a special only-in-New York bond between
the Muslims of Little Pakistan and the Orthodox Jews of nearby Midwood. They've
opened up their free legal clinics and English classes to other immigrants,
inviting Bangladeshis, Russians and Mexicans. In fact, next month they're
changing COPO's name, but not its acronym: It will become the Council of Peoples
For Singh, a short, mustachioed 43-year-old with gold-rimmed glasses, working
with Pakistanis is a kind of tribute to India's spiritual father, Mohandas
Gandhi, who was heartbroken by the subcontinent's partition. "Whatever work
Gandhi did, he called it 'My experiments with truth,'" says Singh. "All programs
which I try to create, I also call them experiments. The first experiment was
me and Moe working together." In 2002, he thought India and Pakistan were about
to go to war, and he recalls proudly, "At that time, me and Moe were sitting
here trying to create COPO, while our armies were facing each other."
His life in New York has elements of Gandhian austerity. In New Delhi, where
Singh formerly served as the treasurer of the youth and student wing of the
Congress Party, he and his family had servants and a house with a garden; now
they live in a nondescript box of an apartment with little adornment, save a
small altar covered with yellow cloth and small statues of the Hindu god Ganesh.
It's 45 minutes by bus from his office. For the first few months of COPO's
existence, he worked as a volunteer. He remembers being thrilled when the group
received its first grant in November 2002 -- a check for $400. Razvi worked
without pay for COPO's first two years, and has sold his business to relatives so
that he can devote himself to the organization full-time.
Through COPO, Razvi says that Little Pakistan, an insular community dominated
by day laborers and taxi drivers, is getting a lesson in New York's
diversity. In addition to Singh, he's hired Pinky Vincent, a Christian from Calcutta,
to handle COPO's public relations, and Marc Fallon, a Jew, as the
organization's youth coordinator.
Getting to know Singh, Vincent and Fallon, says Razvi, has "opened up the
community's horizons, that there are good people everywhere."
First, though, COPO had to struggle to keep the community together. Before
Sept. 11, Midwood was home to as many as a quarter of the approximately 120,000
Pakistanis in New York. After the attack, when the Justice Department ordered
agents to arrest as many Muslim immigrants as possible in the hope of netting
terrorism suspects or informants, FBI agents descended on the neighborhood.
More than 1,200 immigrants were swept up after Sept. 11, and 762 were
imprisoned. Agents came knocking in the middle of the night. If the person they were
looking for wasn't there, they'd take any illegal immigrants who were. As an
April 2003 report by the Justice Department's Office of the Inspector General
makes clear, the vast majority had no connection to terrorism.
The Pakistani community was hit particularly hard -- 33 percent of Sept. 11
detainees came from Pakistan. Far worse, though, was special registration, a
program instituted in November 2002, which required men from most Muslim
countries to report to authorities to be fingerprinted, photographed and interviewed.
Of the roughly 85,000 who came forward, over 13,000 were put into deportation
proceedings, often leaving their wives and American-born children behind.
Razvi estimates that COPO has helped about 100 families who were split up by
post 9/11 deportations. Because Little Pakistan is a traditional neighborhood
full of first-generation immigrants, women often don't work, and are thus left
without income when their husbands are thrown out of the country. Razvi often
visits them himself to see what they need. If the families have children who
are American citizens, COPO helps the women get food stamps; if they're
ineligible, Razvi gives them grocery money. For some, donations from COPO are their
The families of deportees aren't the only ones facing hardship. Singh says
that many in the neighborhood were so shaken by the deportations that about
20,000 left, either returning to Pakistan or seeking asylum in Canada. The sudden
decrease in population sank the local economy, leading around 30 local shops
The pressure on the community has made learning English and understanding
America's immigration laws all the more crucial. During special registration,
COPO held 51 legal clinics, providing free legal help to 617 people. It also
offers free English-as-a-second-language classes, free computer classes and free
citizenship test preparation classes.
The English classes function as a subtle kind of female empowerment. Razvi
says that Pakistani men are often wary of letting their wives and daughters take
classes with strangers, but because he's well known in the community, women
from strict families are allowed to go to COPO. "I know women who've lived 14
years within these two blocks, that's all they know," says Razvi. "So many
ladies here used to take their kids with them to the hospital for translation. Can
you imagine going to a gynecologist and bringing a child with you to
translate?" Learning English frees them, he says. "Now women feel like they're back in
COPO's Marc Fallon also runs an all-girl photography club that exposes some
of the area's sheltered young women to the riches of their city. Its 20 members
get free cameras, film and developing, and are encouraged to photograph every
corner of New York. "We tell them, before listening to the dogma and
orthodoxies of others, try and experiment on your own," Singh says. "We take them to
different neighborhoods -- Chinatown, Jackson Heights, Harlem. I say, 'Know
your city. Know your neighborhood. Know where you are and try to find a space for
For boys, Singh has organized a basketball league -- with Midwood's Orthodox
So far, there are about 50 kids who play together. Thus even while Muslims
and Jews are shooting at each other in the Middle East, they're shooting hoops
in Brooklyn. "There's a large Jewish community right next to us, and we've
never had even one incident," Razvi says.
Even as they work to open minds in Midwood, Singh sees a growing religious
radicalism in the neighborhood. "On Coney Island Avenue, the kids are dressing
more traditionally. They're more inclined toward orthodoxy," he says.
Conservative Islam has become a kind of rebellion against a society that marginalizes
them. "They think, 'People are negating it, I'm going to do it more,'" Singh
He's not naive about people's potential for sectarian brutality. After all,
he comes from India, where communities that had been intertwined for centuries
slaughtered each other during the partition riots that followed Indian
independence. Still, he maintains a defiant optimism that kids who play basketball
together will have a harder time hating each other as they grow older. He
believes that even though ethnic and religious nationalism seems to be ascendant
worldwide, liberalism can prevail among the next generation.
"Young people, they want results that are positive and fast," he says. "They
are truthful and they are radical. They want change for the better."
In F.B.I., Innocent Detainee Found Unlikely Ally,
By Nina Bernstein, June 30, 2004
New York Times
It took no more than a week for James P. Wynne, a veteran F.B.I.
investigator, to confirm the harmless truth that only now, more than two years later, he
is ready to talk about. The small foreign man he helped arrest for videotaping
outside an office building in Queens on Oct. 25, 2001, was no terrorist.
He was a Buddhist from Nepal planning to return there after five years of odd
jobs at places like a Queens pizzeria and a Manhattan flower shop. He was
taping New York street scenes to take back to his wife and sons in Katmandu. And
he had no clue that the tall building that had drifted into his viewfinder
happened to include an office of the Federal Bureau of Investigation.
Yet by the time Mr. Wynne filed his F.B.I. report a few days later, the
Nepalese man, who spoke almost no English, had been placed in solitary confinement
at a federal detention center in Brooklyn just because of his videotaping. He
was swallowed up in the government's new maximum security system of secret
detention and secret hearings, and his only friend was the same F.B.I. agent who
had helped decide to put him there.
Except for the videotape - "a tourist kind of thing," in Mr. Wynne's
estimation - no shred of suspicion attached to the man, Purna Raj Bajracharya, 47, who
came from Nepal in 1996. His one offense - staying to work on a long-expired
tourist visa - was an immigration violation punishable by deportation, not
jail. But he wound up spending three months in solitary confinement before he was
sent back to Katmandu in January 2002, and to release him from his shackles,
even Mr. Wynne needed help.
The clearance process had become so byzantine that the officer who had set
the procedure in motion could not hasten it. Unable to procure a release that
officially required signatures from top antiterrorism officials in Washington,
Mr. Wynne took an uncommon step for an F.B.I. agent: he called the Legal Aid
Society for a lawyer to help the jailed man.
Now, for the first time, the F.B.I. agent and the Legal Aid lawyer, Olivia
Cassin, have agreed to talk about the case and their unlikely alliance. Their
documented accounts offer a rare, first-hand window into the workings of a
Within 10 days of the Sept. 11 attacks, the Justice Department instructed
immigration judges that all cases designated as "special interest" were to be
handled in separate closed courtrooms, without visitors, family or reporters, and
without confirming whether a case was on the docket. The secrecy left
detainees with little access to lawyers.
Visa violators would be held indefinitely, until the F.B.I. was sure the
person was not involved in terrorism. As a visa violator under suspicion, Mr.
Bajracharya was among hundreds placed in the special interest category, and his
case was wiped from the public record.
Mark Corallo, a spokesman for the Justice Department, said that though he was
unfamiliar with the case, the system of secrecy Mr. Bajracharya encountered
is lawful and necessary. "The idea that someone who has violated our
immigration laws may be of interest on a national security level as well is an
unfortunate reality, post-9/11," he said. Closed hearings are legal as long as due
process is provided, he said, and all abuses will be dealt with.
But Ms. Cassin, of Legal Aid, argues that under this secret practice, there
is no way to know whether other noncitizens are even now being unfairly
detained. "By its very nature," she said, "it can happen again without our knowing
Mr. Bajracharya was finally returned to Nepal on Jan. 13, 2002. By then he
had spent almost three months in a 6-by-9-foot cell kept lighted 24 hours a day.
The unit of the Metropolitan Detention Center in Brooklyn where he was kept
has become notorious for the abuses documented there by the Justice
Department's own inspector general, who found a pattern of physical and mental
mistreatment of post-9/11 detainees. Videotapes showed officers slamming detainees into
walls, mocking them during unnecessary strip-searches, and secretly taping
their conversations with lawyers.
Mr. Wynne would not comment on detention policies, and said that he should
not be "held out as the one lone person who did the right thing." But during an
extended interview approved by his F.B.I. superiors, he read aloud from phone
logs documenting desperate messages from the man's family in Katmandu, his
efforts to reassure the weeping detainee, and his own dawning recognition that no
resolution was in sight.
"I told Purna that I would try to help him, that I wouldn't forget about
him," Mr. Wynne explained. "I felt some - not responsibility, but I felt that
there was no one else."
By telephone from Katmandu, Mr. Bajracharya recalled the fear, humiliation
and despair he had experienced in prison. "I had nothing but tears in my eyes,"
he said through a translator. "The only thing I knew, I was innocent, but I
didn't know what was happening."
He said he was stripped naked in the federal jail. "I was manhandled and
treated badly," he said, becoming agitated. "I was very, very embarrassed even to
look around, because I was naked."
The ordeal began when his videotaping aroused the suspicions of two
detectives from the Queens district attorney's office, which has space in the same
12-story building where the F.B.I. occupies three floors. After taking him inside
for questioning, they called upstairs to the F.B.I., and Mr. Wynne was
dispatched to take over the interrogation. With no translator, Mr. Bajracharya tried
to explain himself to half a dozen law enforcement officers, including two
federal agents from the Immigration and Naturalization Service who verified his
illegal immigration status.
It was Mr. Wynne, as the lead F.B.I. agent, who sent him to the federal
detention center in Brooklyn pending a thorough investigation. The F.B.I. agent,
now 50, describes himself as a lifelong New Yorker who does not take illegal
immigration lightly. His specialty is international art fraud, not terrorism. But
at a time of heightened anxiety about another terrorist attack, he
maintained, it was reasonable to suspect the worst until he could check the man's
history, discrepancies in his identity documents and questions about money wired to
The questions were resolved within days. The Nepalese man did not show up in
any terrorist databanks, and Mr. Wynne soon confirmed his explanation for a
$37,000 wire transfer to Nepal. The money was from a recent legal settlement for
injuries suffered when he was hit by a car in 1999. His records, roommates
and former employees all vouched for the detainee's honesty.
On Nov. 1, 2001, the day Mr. Wynne wrote his report clearing Mr. Bajracharya,
he told him through a translator that it would take about a week to get the
Over the weekend, pleading messages arrived from the detainee's sons in
Katmandu: "Please help his father; he's not that kind of person - meaning a
terrorist, I suppose," the F.B.I. agent said. On Nov. 5, he discussed the case with
the head of counterterrorism in the United States attorney's office, and on
Nov. 7 and 8, with a lawyer at the immigration agency.
"Because he was willing to leave - he wanted to leave - it didn't seem to me
that it was a big hurdle to move him out of there," Mr. Wynne said.
But the weeks dragged on. Learning that a secret immigration hearing was
scheduled for Nov. 19, Mr. Wynne thought a resolution was at hand. Instead, in a
second conference call to the detainee after the hearing, he found him confused
and distraught. It turned out that official F.B.I. clearance from Washington
had not yet come through, and the matter had been adjourned to another secret
hearing on Dec. 6.
At this point, the agent said, he realized he had been too optimistic. "You
have to understand one thing: I'm in the Queens office; in Manhattan they were
running this whole initiative, and there was a whole procedure set up for the
clearances," he said.
"I wasn't aware that there were so many levels that needed to sign off on
this thing, frankly, when I filed my report."
The Monday after Thanksgiving, the F.B.I. agent called in Legal Aid. "This
guy needed some help - it's as simple as that," Mr. Wynne said, insisting that
anyone would have done the same thing. Ms. Cassin says she knows of no other
F.B.I. investigator who has.
But by the time she spoke with the detainee, through a thick plexiglass
barrier and under the eye of a prison video camera, she said, he was weeping all
On Dec. 6, in a secret hearing room in the prison, she said, she watched him
carried in by three burly officers of the Federal Bureau of Prisons, shackled
so completely that he could not move. "He's tiny," she said. "His feet didn't
even touch the floor."
She said government immigration lawyers agreed that since her client had been
cleared by the F.B.I., he would be permitted a "voluntary departure." She was
instructed to buy him an airplane ticket to Katmandu through a deportation
She did, but the first departure date was canceled without explanation.
Meanwhile, like other "high interest" detainees, Mr. Bajracharya was still in
solitary 23 hours a day. "After a month or two, I started to scream that I
was going to die if I didn't talk to anybody," he later recalled.
Ms. Cassin said she pleaded with the prison doctor to put him in the general
prison population, but the doctor said he was crying so much he would cause a
Instead, on Dec. 11, a Muslim detainee was sent to share his tiny cell.
Expecting his imminent departure, Ms. Cassin and Mr. Wynne tried to fulfill
the detainee's most insistent request: to go home looking like a respectable
person, not a criminal. An assistant warden agreed to accept a box labeled
"release clothing," containing the good suit he had worn when he came to America.
Shortly before Christmas, Mr. Wynne made a special trip to deliver it.
But when Mr. Bajracharya was finally taken to the plane on Jan. 13, he was in
shackles and an orange prison jumpsuit. "I wanted to wait for my clothes, at
least the shoes and the jacket," he said, "but they took me by force."
Mr. Bajracharya's accounts of mistreatment fit the pattern reported by the
inspector general. A spokesman for the United States attorney's office in
Brooklyn, Robert Nardoza, said the office recently declined to prosecute abuses
detailed in the reports "mainly because all of the witnesses had been deported and
were unavailable to be interviewed."
Back in Nepal, which is riven by civil war, Mr. Bajracharya said he would be
willing to testify against those who mistreated him if he were asked, though
he fears what the government would do to him if he did so. Nonetheless, he
remains grateful that he experienced America.
"What happened to me could have been an isolated incident," he said. "I still
believe the American government is the best in the world."
Weeks after Mr. Bajracharya returned to Nepal, Mr. Wynne and Ms. Cassin
managed to arrange delivery of his possessions by mail, including his camcorder.
But when he tried to show his wife his travelogue of New York, all that
remained on the tape was the pizzeria and the flower shop.
Mr. Wynne, sounding a bit sheepish, allowed that he had "probably erased" the
rest, thinking it might fall in the wrong hands.
"Just an abundance of caution," he murmured.
Lawyers Sue Over Tapes With Detainees,
By Nina Bernstein, July 2, 2004
New York Times
When lawyers from the Legal Aid Society made their way into the federal
detention center in Brooklyn in the fall of 2001 to meet with detainees, they said,
they were alarmed to see video cameras on the walls.
Concerned about the confidentiality of their conversations with their
shackled clients - immigrant detainees who were rounded up after the Sept. 11 attacks
- the lawyers asked whether they were being taped. Prison officials assured
them, they say, that the cameras were turned off. But the cameras were running.
The federal prison was intentionally recording the lawyer-client
conversations in violation of federal law and prison policy, according to a December
report by the inspector general of the Justice Department, Glenn A. Fine.
Now, in a lawsuit filed in Federal District Court in Brooklyn yesterday
against the retired warden of the detention center and other prison officers, six
of the lawyers are seeking thousands of dollars in damages for the secret
videotaping of their conversations at the Metropolitan Detention Center in Brooklyn.
"Surreptitiously taping attorney-client communications is a direct attack on
the role of counsel and on these Legal Aid attorneys' well-established
constitutional rights," said Nelson A. Boxer, a partner of the Dechert law firm, who
is representing the lawyers without fee.
The plaintiffs are seeking damages under a federal statute that prohibits
electronic eavesdropping without court approval and sets $10,000 for each
violation. They have agreed to donate any money award to the Legal Aid Society, they
Traci Billingsley, a spokeswoman for the Federal Bureau of Prisons, said she
could not comment on the lawsuit, which cites the former warden, Dennis W.
Hasty, and unknown prison officers as defendants. Mr. Hasty did not return calls,
and Michael Martinez, a lawyer who represents Mr. Hasty as a defendant in
another lawsuit, said he could not speak to the charges because he had not seen
the lawsuit yet.
Ms. Billingsley said the bureau is still conducting its own administrative
investigation, begun about three months ago when the Justice Department decided
not to prosecute any of its employees for their actions.
One plaintiff in the new suit, Olivia Cassin, noticed a video camera at her
meetings in December 2001 with Purna Raj Bajracharya, a Nepalese citizen who
had been held in solitary confinement at the center since Oct. 25. Except for a
visa violation, the only reason for his detention was that he had videotaped a
building in Queens that, unknown to him, had an F.B.I. office on 3 of 12
floors. The F.B.I. officer who had helped arrest him had already cleared him of
all suspicion. The lawyers said their suit in part reflects frustration with the
Justice Department's failure to hold anyone accountable for violations
documented by its own inspector general in reports issued last year. The December
report cited more than 40 examples in which lawyers' conversations with clients
had been recorded, and concluded that the taping violated the law and
interfered with the detainees' access to legal counsel.
The tapes of confidential conversations between lawyers and clients were
among more than 300 recovered by the inspector general's investigators only after
one prison official had ordered them destroyed and others had denied their
existence for months. Many tapes, the report said, showed federal officers
physically mistreating detainees. But except for a handful of pictures used in the
December report, no videotapes have been made public, and no one has been
punished. "If the Justice Department is not going to defend the Constitution, then
we will," said Bryan Lonegan, one of the plaintiffs.
In explaining a decision not to prosecute anyone, a spokesman for the United
States attorney's office in Brooklyn, Robert Nardoza, has said, "There was not
sufficient evidence, mainly because all the witnesses had been deported and
Mr. Lonegan said that explanation amazed him. "Here is an officer of the
Department of Justice, who has declined to prosecute another officer of the
Department of Justice, who has committed crimes documented by another officer of the
Department of Justice, because yet another officer of the Department of
Justice has deported the witnesses," he said. "And you have to ask, where is the
justice in that?"
So far the Legal Aid Society has been stymied in its efforts to obtain the
tapes of its own lawyers' conferences with detainees under the Freedom of
Information Act, Mr. Lonegan added. It first requested the tapes last January from
the office of the inspector general, but was directed to the Bureau of Prisons
Originals or copies of all the tapes cited in the reports have been kept by
the office of the inspector general, Paul K. Martin, the deputy inspector
general, said yesterday. But according to department regulations, he added, the
Bureau of Prisons can determine whether to release them.
In a letter this week, the bureau told Legal Aid, which is struggling
financially, that it would first have to pay $70,500 for research costs. "There is no
evidence that releasing the information to you will contribute significantly
to the understanding of the general public at large of how the Federal Bureau
of Prisons operates," the bureau said in refusing to waive a fee.
The War on Terrorism-What's Next for Enemy Combatants?
By Siobhan Gorman
National Journal Group, July 3, 2004
When eight Supreme Court justices ruled on June 28 that "enemy combatants"
have a right to due process, Washington officialdom pounced on the ruling as a
sweeping and definitive response to one of the war on terrorism's murkiest
Equally clear, however, was the Court's affirmation that the president does
indeed have the authority to designate people as enemy combatants. Yet despite
these important rulings, the Court raised as many questions as it answered, if
not more. The justices offered a sketchy road map with a few constitutional
signposts on how to handle these combatants, but they recommended no precise
route to follow.
What is an enemy combatant? At what point must a suspected enemy combatant
have a chance to refute that status? How does an enemy combatant attempt to
clear his name? These are just a few of the questions that the Supreme Court left
unanswered. And some members of Congress, as well as some former Bush
administration officials, say that it's up to Congress -- in consultation with the
administration -- to take the wheel and steer toward a solution.
"Congress has really failed to address this issue," said Rep. Adam Schiff,
D-Calif., a member of the House Judiciary Committee whose two-year-old
enemy-combatant bill hasn't even been granted a hearing. "We have an institutional and
historical responsibility to act in this area. These are tough questions, and
we shouldn't abdicate to the judicial branch to answer them." The Court's
decision, he said, has now created an opportunity for Congress to step up. "The
fact that [the Court] hasn't fleshed out the contours of what kind of review [of
enemy-combatant status] will be permitted is certainly an invitation to the
Congress to act," he said.
Schiff's sentiment was echoed by several of his Democratic colleagues, such
as Sen. Patrick Leahy of Vermont, ranking member of the Senate Judiciary
Committee, and Rep. Jane Harman of California, ranking member of the House Select
Committee on Intelligence. Schiff added that some Republican members of Congress
have privately voiced their "queasiness" to him about the administration's
enemy-combatant policies, but they won't speak up, because they feel pressure to
publicly support President Bush.
These members have company among some Bush administration alums, including
former Assistant Attorney General Viet Dinh. "It is an open invitation for
Congress to act," he says. "When our country is navigating uncharted waters in this
war against terror, it would be nice for Congress not just to complain but to
actually contribute." Among the issues on which Congress could weigh in, he
says, are defining what constitutes an enemy combatant and outlining what
burdens of proof are necessary to convict an enemy combatant. Michael Chertoff, a
former Justice Department Criminal Division chief, has also said that current
enemy-combatant rules highlight the need "to debate a long-term and
The Supreme Court ruled this week on three cases involving enemy combatants,
all of whom argued that they have the right to file a writ of habeas corpus
allowing them to contest in court their detentions. In Hamdi v. Rumsfeld, Yaser
Esam Hamdi, an American citizen who the government says fought with the
Taliban in Afghanistan against the United States, maintained that he has been
mislabeled and should have the opportunity to prove it. In Rumsfeld v. Padilla, Jose
Padilla, an American whom the government apprehended at Chicago's O'Hare
Airport on suspicions that he was an operative for Al Qaeda, also contested his
status. The third case, Rasul et al. v. Bush, addressed the question of whether
the 595 foreign detainees at the American naval base in Guantanamo Bay, Cuba,
could challenge the legality of their detentions in U.S. courts.
In Hamdi, the Court found in an 8-1 vote that Hamdi must at some point be
allowed to contest the government's basis for his designation as an enemy
combatant. But those same justices fervently differed over the president's power to
designate U.S. citizens as enemy combatants. The odd alliances forged --
stalwart conservative Justice Antonin Scalia paired up with reliably liberal Justice
John Paul Stevens -- highlight the confusion over Congress's thinking on
detainees and the way in which these issues traverse ideological lines.
Writing for the plurality in the Hamdi ruling, Justice Sandra Day O'Connor
said, "Due process demands that a citizen held in the United States as an enemy
combatant be given a meaningful opportunity to contest the factual basis for
that detention before a neutral decision maker." But she gave the government
wiggle room by saying that opportunity need not be when the person was first
labeled an enemy combatant, but "when the determination is made to continue to
hold those who have been seized." And O'Connor left open the possibility that
the neutral decision maker could take the form of a military tribunal.
(President Bush's executive order establishing military tribunals does not apply to
The points of contention in the Hamdi case among the eight justices who
concluded that he should receive some form of due process centered on two
questions: On what basis does the president have the authority to designate enemy
combatants? And what is the judicial process by which combatants should be handled?
O'Connor said that the president's authority derived from the joint
resolution Congress passed a week after the 9/11 attacks, authorizing the use of
military force against entities that participated in or aided the terrorist attacks.
But Justices David Souter and Ruth Bader Ginsberg argued that the
congressional resolution did not authorize Hamdi's detention. They said, however, that
they agreed with O'Connor's recipe for weighing Hamdi's rights versus national
security needs. Meanwhile, Scalia and Stevens repudiated both O'Connor's
rationale for detention and her solution, and they declared that Hamdi ought to be
charged with treason or be released, absent clear congressional direction.
Largely punting on the hard questions presented in the Padilla case, the
Court found in a 5-4 vote that Padilla's attorneys had filed their petition in the
wrong district court against the wrong Pentagon official. And in Rasul, the
Court ruled in a 6-3 decision that the Guantanamo detainees can challenge the
legality of their detention in federal district court. But it did not specify
how that would happen. Legal scholars point out the apparent inconsistency
between the finding in Padilla that an American citizen captured on American soil
could file claims only in the jurisdiction where he was held, while foreigners
held outside the United States could file wherever they choose.
"I'm struck by what's not answered," said Robert Litt, who was a senior
Justice Department official in the Clinton administration. "There's a clear need
for Congress to step in here."
The most basic question revolves around the issue the justices debated in
Hamdi: What is the basis for the president's authority to designate an enemy
combatant? Congress could clear this up by revisiting its post-9/11 joint
resolution to specify whether the law authorizes the detention of U.S. citizens.
In addition, the Court, in passing on any substantive findings in the Padilla
case, did not address the definition of an enemy combatant or the limits of
executive power, Litt said. Although it's clear in Hamdi that the president can
detain someone who took up arms against the United States on an overseas
battlefield, what about detaining someone caught at O'Hare Airport? Indeed, in her
Hamdi opinion, O'Connor notes, "The government has never provided any court
with the full criteria that it uses in classifying individuals" as enemy
For enemy combatants who are granted access to the courts, Litt noted a host
of unanswered questions about what happens next: Would they have access to a
lawyer? What is a "neutral decision maker"? What would be the standard of
evidence required? What does it mean that the burden of proof lies with the accused
and not the accuser, as O'Connor's opinion suggests?
There's ample room for Congress to act in the Guantanamo cases, too, said
Doug Kmiec, a professor at the Pepperdine University School of Law in California
and a senior Justice official in the first Bush administration. He said that
one route Congress could take would be to establish military tribunals to give
these noncitizen detainees a clear venue for making their case, rather than
allowing them to haphazardly flood federal courts.
Without congressional action, enemy-combatant law will be written in fits and
starts through a series of possibly conflicting decisions sprinkled
throughout the nation's courts. "The court should not be writing these rules; Congress
should," said one Leahy aide. "It's thorny and cumbersome to do this on a
case-by-case basis, and it takes years for these cases to work their way up
through the Supreme Court. Congress should be setting these rules."
Democrats such as Schiff and Leahy complain that they have tried to set some
rules of the road but have run into Republican roadblocks. Early on, Leahy
proposed a military tribunals bill and tried to engage the Pentagon. "The
administration gave him exactly what the vice president told Senator Leahy last week,
which was a big 'fuck you,' " said Beryl Howell, a former chief counsel to
Leahy. "When you have a unified government under one party, you can't get them
to pay attention to you."
Schiff relayed a less colorful exchange he had with Attorney General John
Ashcroft. When Ashcroft testified before the House Judiciary Committee last year,
Schiff asked about the criteria used to classify someone as an enemy
combatant. Ashcroft responded that designating enemy combatants is "not what the
Justice Department does." It's the Pentagon that to date has done the designating.
So far, Schiff is the only member of Congress to offer an enemy-combatant
bill. He would require the Defense Department to define the criteria for
designating an enemy combatant and the legal procedures for handling that person.
Those criteria and procedures would then be subject to congressional review. "It's
a pretty deferential standard," Schiff said. Schiff's bill on military
tribunals would follow a similar process. Several Democratic senators, such as
Delaware's Joseph Biden, Illinois's Richard Durbin, and Wisconsin's Russell
Feingold, have discussed the need to spell out enemy-combatant rules but have yet to
The Republican leadership's response has been, at best, tepid. Schiff
complains that his bill has not even been able to get a subcommittee hearing. Dealing
with enemy combatants has not been a front-burner issue for House Judiciary
Chairman Jim Sensenbrenner of Wisconsin. Asked whether Sensenbrenner was likely
to take up enemy-combatant legislation, his spokesman said, "I haven't heard
much discussion on that issue."
Senate Judiciary Committee Chairman Orrin Hatch of Utah has also been
lukewarm to the idea. "He has indicated that he's interested in this issue, but
beyond that, I don't know how much more we're going to say," says his spokeswoman.
Leahy grumbles that Hatch long ago promised to hold a hearing on enemy
combatants, but it has never materialized.
While Schiff is not sanguine about the near-term prospects of a bill like
his, he says that next year, when the election is over, may be different. "I
think there will be a much greater willingness to confront these issues head-on,"
he says. "At a certain point, these issues are just going to have to be
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