Has post-9/11 dragnet gone too far?
As White House pushes to expand domestic terror laws, critics worry limits on civil liberties will become permanent.
MIAMI AND WASHINGTON — When they came for Adham Hassoun, America's counterterrorism forces took no chances. Federal agents and sheriff's deputies circled his car in a quiet residential area not far from his home in Sunrise, Fla., and whisked him into custody.
"It was like a movie, with helicopters above me," Mr. Hassoun recalls in a telephone interview from Miami's Krome Detention Center. "They thought I was somebody important.... They thought they hit the jackpot."
Now, 15 months later, Hassoun has yet to be charged with a violation of any US law. Nonetheless, he remains behind bars - and fears he is about to lose everything he has ever loved and worked for during 13 years in America.
Hassoun's experience is not unlike that of other immigrants of Middle Eastern or Islamic heritage swept up in a post-Sept. 11 dragnet aimed at disabling terrorists before they strike again. It is a nationwide antiterror campaign with
tactics including preventive detention, coercive interrogation, and secret deportation hearings, targeting a community of noncitizens in America now living in silent dread of a knock at the door.
"By my count, based on government-released figures, they've detained over 5,000 foreign nationals in antiterrorism-related initiatives," says David Cole, a Georgetown University law professor and author of the forthcoming book "Enemy Aliens." "The government has treated thousands of people as suspected terrorists who turned out to have nothing to do with terrorism."
The vast majority of Americans have never experienced such tough tactics firsthand. That may explain why there has been relatively little outcry, analysts say. Yet increasingly, some members of Congress - and a vocal minority of the public - are questioning the full range of Bush administration strategies in the war on terror. On Wednesday, President Bush proposed new measures giving federal law enforcement even more power to go after suspected terrorists (see sidebar).
The stakes, say the White House and supporters, are too high to risk another attack. In an era of nuclear, chemical, and biological weapons of mass destruction, they say, it is too costly to permit even a single Al Qaeda operative to strike again.
Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif., who supports the administration's approach, says that one can't draw a firm correlation between steps the US has taken and the lack of a second attack. But, he continues, "one thing we can say is if we failed to take meaningful steps and were attacked again, the recriminations for failure to engage in serious law-enforcement and counterintelligence activities would be even greater."
The US has faced severe threats to its national security throughout history, with leaders wielding extraordinary powers to counter those threats - sometimes at great cost to civil liberties. But always when the threats subsided, earlier levels of legal protections were restored.
Two years after the terror attacks on the World Trade Center and Pentagon, civil-liberties advocates warn that, given the open-ended nature of the war on terror, the current counterterrorism provisions could become a permanent feature of the legal landscape. Their list includes:
• The indefinite imprisonment without charge of three "enemy combatants" - Jose Padilla, Yasser Hamdi, and Ali Saleh al-Marri.
• The planned use of military commissions - with relaxed evidentiary rules and diminished defendant rights - to try terror suspects. It would be the first time since World War II that military tribunals, not federal courts, are used in the US for such cases.
• The holding in indefinite detention of material witnesses as a means of coercing testimony or confessions from anyone who might possess intelligence information federal agents deem useful.
• The detention and interrogation of 660 Al Qaeda and Taliban suspects as war criminals facing possible death sentences at a new US terrorism prison camp at Guantanamo Bay, Cuba.
• The open-ended detention of thousands of Muslim noncitizens as suspected terrorists or terrorist sympathizers as a means of extracting information from them or preventing future terrorism by keeping them locked up.
"In the days and weeks after the September 11 attacks, understandably the country was in a traumatized state and there was a lot of overreaction," says Michael Posner, executive director of the Lawyers Committee for Human Rights. "We are now at the point, two years out, where there needs to be a recalibration of some of those measures to restore the balance between liberty and security."
Bush administration officials and supporters disagree. They defend the new provisions as having played an important part in disrupting Al Qaeda and other terror-group operations: America is still at war against a ruthless enemy that measures victory by the number of innocent lives destroyed.
Most Americans appear comfortable with this strategy. Sixty-two percent of respondents in a recent Christian Science Monitor/TIPP poll said President Bush was doing an "excellent" or "good" job in fighting terrorism, while only 18 percent characterized the president's antiterror efforts as "poor" or "unacceptable."
But there are signs of growing opposition. In July, Congress voted 309-118 to eliminate funding for a key portion of the USA Patriot Act, the post-9/11 law that expanded the government's ability to monitor and investigate anyone in the US. At the grass-roots level, 157 communities and three states have passed resolutions opposing the Patriot Act.
And alarm is growing over government proposals to use technology and electronic eavesdropping to compile detailed profiles not only of suspected terrorists, but potentially of every American adult. Although the Pentagon's Terrorism Information Awareness program is in question, there are efforts to use similar technology to screen all airline passengers.
"Government acquisition of lots of information about citizens for use in making security-risk determinations is moving forward," says David Sobel, general counsel of the Electronic Privacy Information Center. But he expects a backlash. Mr. Sobel says that sometimes the best solution to threats is to go low-tech. With planes, for instance, "there's nothing that will beat secure cockpit doors and more air marshals. There's no privacy downside and no civil-liberties downside."
But how do you protect a nation without affecting civil liberties and privacy? How do you gauge whether the tough tactics were necessary and effective? Administration officials cite a mountain of statistics to justify their policies.
Six alleged terrorist cells have been broken up in Buffalo, Detroit, Seattle, Portland, Tampa, and North Carolina; 260 individuals have been charged; and 515 "linked" to the 9/11 investigation have been deported.
What the government doesn't reveal is that the vast majority of the 260 charged and 515 deported were involved in relatively minor crimes or immigration infractions and had nothing to do with Al Qaeda or terrorism.
Indeed, many of the highest-profile terror suspects - including Zacarias Moussaoui, Richard Reid, and John Walker Lindh - were caught without any reliance on the new hard-nosed tactics.
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."
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."
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."
Sometimes, it is said, the best defense is a good offense. That's what the Bush administration appears to be doing as it pushes for additional powers to fight the war on terrorism - even as it fights criticism that some of the power it gained after Sept. 11 threatens civil liberties.
On the eve of Thursday's 9/11 anniversary, President Bush called on Congress to expand the government's ability to go after terror suspects. His most controversial proposal would allow federal law-enforcement agencies to issue their own subpoenas in terror-suspect cases, bypassing the check of going to a judge or grand jury. Bush also proposed allowing judges to deny bail for terror suspects and called for expansion of the death penalty in terror-related crimes.
The bold initiative comes after months of debate over whether some provisions in the USA Patriot Act, the sweeping antiterrorism law enacted Oct. 26, 2001, already intrude too heavily into individuals' rights. Early this year, the draft of a bill dubbed "Patriot II" - including some of the items Bush just proposed - leaked from Congress, but was shelved after sharp criticism.
Another slap at the administration came on July 22, when the House of Representatives voted to defund Section 213 of the Patriot Act - the provision for so-called "sneak and peak" searches, in which warrants are granted in secret and the target is notified after an indefinite delay. Perhaps most troubling to the Bush administration, the measure was sponsored by a conservative Republican, Rep. C.L. Otter of Idaho; in all, 111 Republicans voted for the repeal. When Congress first approved the 342-page Patriot Act, few from either party dissented. Beyond the Otter amendment, House members have introduced bills to repeal other portions of the Patriot Act.
Still, on balance, polls show the public remains satisfied that the Bush administration is honoring civil liberties. In a new Monitor/TIPP poll, 38 percent said the Patriot Act was just right, 28 percent said it gave the government too much power, and 12 percent said it gave the government too little power. But Attorney General John Ashcroft hasn't taken chances. Since Aug. 19, he's been on a road show, defending the Patriot Act before invitation-only audiences, mainly of law-enforcement and military personnel.
"It is a little paradoxical in some ways," says David Rudovsky, a law professor at the University of Pennsylvania. "But I think what he's trying to do is shore up his defense and turn that a little bit into offense, to say, 'Not only has [the Patriot Act] worked, but we don't have enough yet. We need even more powers, and you'll be even safer.' "
On Capitol Hill, some Republican aides expressed skepticism that Bush will win the new law enforcement powers easily. Not long ago, key Republican members in both judiciary committees warned the White House to hold off on new legislation. But even if Bush loses on the Hill, he still wins with the public, says a Senate GOP staffer. "It gives the administration the ability to make the argument that 'we've kept you safe, we've tried, we've done our best,'" says the aide.
• Expands the range of crimes trackable by electronic surveillance.
• Allows police to use 'roving wiretaps' to track any phone a terrorism suspect might use.
• Permits law enforcement to conduct searches with delayed notification - the so-called "sneak and peak" provision.
• Allows FBI agents, with secret court orders, to search personal records (business, medical, library, etc.) without probably cause in national-security terrorism cases.
• Lowers legal barriers in information-sharing between criminal investigators and intelligence officials.
• Provides new tools for fighting international money laundering.
• Makes it a crime to harbor terrorists.
• Increases penalties for conspiracy - such as plotting arson, killing in federal facilities, attacking communications systems, supporting terrorists, or interfering with flight crews.
• Makes it easier for law-enforcement agents to obtain search warrants any place where "terrorist-related" activities occur; allows nationwide search warrants (including the monitoring of Internet use, e-mail, and computer bills) in terrorism investigations.
• Allows the attorney general to detain foreign terrorism suspects - but charges, deportation proceedings, or release must come within a week.
• Sends more federal agents to patrol the US-Canada border.
• Ends surveillance and wiretap measures in 2005.
Sources: Wire services and The Department of Homeland Security