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Has post-9/11 dragnet gone too far?
Preemptive detention's fallout
But what about those Muslim noncitizens who were detained, interrogated, and later released?
Mr. Cole, of the Georgetown Law Center, estimates that of the 5,000 foreign nationals that he's counted as detained in the post-9/11 sweeps, only four were charged with any crime related to terrorism. And two of those four, he says, were acquitted.
"Thousands were detained in this blind search for terrorists without any real evidence of terrorism, and ultimately without netting virtually any terrorists of any kind," Cole says. "We are seeking, as [US Attorney General] John Ashcroft repeatedly says, to prevent the next atrocity from occurring. So we lock people up not for what they have done, but for what we suspect they might do."
The most frequently cited example of an important terrorism case resulting from the administration's new antiterrorism powers is the February indictment of former University of South Florida computer science professor Sami al-Arian. He was charged with being a key operative providing funding and organizational help to the Palestinian terror group Islamic Jihad.
According to Bush administration officials, the Arian case is a prime example of how the Patriot Act has helped connect the dots between domestic intelligence and courtroom evidence.
Mr. Arian has long denied allegations that he was involved in Palestinian terrorism. He says he is being harassed because of his political views critical of Israel and favoring Palestinian rights.
Arian was under federal surveillance throughout most of the '90s, but prosecutors were unable to use data obtained in domestic spying to build a solid case against him until passage of the Patriot Act, administration officials say. The indictment relies largely on 20,000 hours of intelligence intercepts that had been classified as secret.
The case is being closely watched by American Muslims who worry that some of their rights have all but disappeared in the post-9/11 climate. "This has been an effective tool to silence anti-Israeli views in the country," says Ahmed Bedier of the Florida office of the Council on American Islamic Relations. "People are afraid to speak up because they don't want to get into trouble."
The sense of being watched
Nazih Hassan would agree. A Lebanese-born permanent resident of the US, Mr. Hassan is a Muslim activist in Ann Arbor, Mich. - a profile, he believes, that may make him an FBI target.
If the FBI is searching files on him, he wouldn't know. And if he, as president of the local Muslim Community Association, were approached by the FBI with a special order requesting access to the association's records, he'd be barred from revealing that fact for the rest of his life. Such is the secrecy that surrounds Section 215 of the Patriot Act, the provision that allows the FBI to obtain records or "tangible things" about a person without showing "probable cause" that the person has done anything wrong.
Hassan's community association, along with five other Muslim and Arab groups, is party to a lawsuit filed by the American Civil Liberties Union charging Section 215 violates its privacy, due process, and free-speech rights.
The obvious rejoinder: How do the groups know their rights are being violated? The answer is, they
can't know - because of Section 215's secrecy requirements - but from experience, such as visits by FBI informants and subpoenas requesting information, they believe they may be under surveillance. That's had a chilling effect on the group, Hassan says.
"Some people are afraid to cite verses of the Koran that include the word 'jihad' when leading prayers, because they think the government is listening," Hassan says, noting that most of the time, "jihad" simply means "struggle."
Hassoun: 'I just want to go home'
Like Hassan in Michigan, Adham Hassoun was an outspoken member of the Muslim community in south Florida. But he has no doubt about where he stands with federal investigators.
For 15 months he's been detained at Miami's Krome Detention Center and has been ordered deported to Lebanon because of alleged links to terrorism.
The computer programmer and father of three sons ages 3, 9, and 11, has lived in south Florida for 13 years. Unlike virtually everyone else ordered deported after 9/11, he has never been charged with violating US law.
When taken into custody in June 2002, he had a valid work permit and a pending application to become a permanent resident. Despite months of FBI questioning, federal authorities declined to file criminal charges against him. Instead, the FBI turned over a three-page affidavit to immigration officials outlining suspicions that Hassoun was involved in terrorist activities. Immigration officials used the document to urge Hassoun be deported.
It is unclear why the FBI would seek to have someone it says is a terrorist released from US custody and sent to the volatile Middle East. Government officials decline to discuss the case.
Hassoun says he suspects his troubles began when someone in south Florida made false accusations against him of cutting a deal or currying favor with counterterr-orism agents. He says the agents were routinely threatening to prosecute or deport anyone who did not fully cooperate with investigators.
Despite his legal status in the US, the lack of criminal charges, his family ties, and his steady job, an immigration judge ordered Hassoun deported. The sole reason: the three-page FBI affidavit.
During the secret deportation hearing, the judge denied requests by Hassoun and his lawyer to learn the identity of and cross-examine the unnamed individual or individuals who made the terrorism accusations, as well as a request to cross-examine the FBI agent who wrote the affidavit.
The affidavit itself is a secret document. Both Hassoun and his lawyer, Aktar Hussain, say they cannot reveal any details from it.
In a court of law, such a document is usually considered inadmissible as hearsay evidence. That's because the Sixth Amendment guarantees a right to confront those making serious accusations. But there is no way to cross-examine a document to ascertain whether the information it contains is accurate or mere speculation.
Legal experts say an immigration hearing is a civil proceeding with lower legal standards than a criminal proceeding. But it is unclear whether Hassoun has the constitutional right to confront his accusers in such a hearing.
Hassoun appealed his deportation order and lost. The Board of Immigration Appeals wrote: "While respondent denies any involvement in terrorism, he has not provided any evidence demonstrating that he was not involved in terrorist activity."
In effect, the appeals board is requiring Hassoun to prove his innocence - without being able to confront those who accuse him of being a terrorist. "When you don't allow anyone to subpoena any witnesses, how can someone prove their innocence?" asks Mr. Hussain. "We even said, 'You don't have to give us the name, just bring him in court so we can question where this information is coming from.' "
Hussain, an immigrant from Pakistan specializing in immigration law, says he'd never seen such a hearing. "I got very scared myself sitting in there," he says.
Hassoun says he answered all the questions as best he could during his repeated FBI interrogations. But he believes he's being punished because he refused to speculate about anyone in the south Florida Muslim community who might be involved in terrorism.
"When they are trying to pinpoint people who are a danger to the country, they were rounding up people right and left including drug dealers and others who wanted to save their necks," Hassoun says. "Some of them pointed at me. When they detained me, they said, 'Help us and we will help you.' " Hassoun refused. "I am willing to do anything that will take me out of here and send me back home to my family, but I will never make up stories or put people's lives in jeopardy because I want to look good with the feds," he says.
He adds, "The people I might see in the mosque, you never know what they might have inside. But the people I know personally, none are a threat to the country."
Hassoun is asking a federal judge to look into his case and has appealed his deportation to the federal appeals court in Atlanta. Immigration-law experts say that in cases mentioning terrorism, the chances of success on appeal are slim.
"I just want to go home," he says. "Enough is enough."
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