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Steven Brill,, 3/31/03
(Access to this story is available on the site with a one-day
free pass.)

In an excerpt from a riveting new book about post-9/11 America, GOP
strongman Tom DeLay and corporate lobbyists toast their legislative clout,
while John Ashcroft's men get rough with Muslim immigrants...

The perspective the group started with was simple. The 19 men who had
hijacked the planes could not be the only ones who were living in America
quietly waiting to attack. There could be hundreds, even thousands, of
others, and their job was to find them. The obvious target was young Muslim
men, plain and simple. But they had no informants, really no contact at
all, in those communities. So they had to use what they had to check as
many of the target population as they could, as fast as they could. Again,
the first goal wasn't to prosecute them but to prevent them, which meant
that violating the kinds of rules pertaining to searches and interrogation
that would get evidence thrown out of court wasn't that important.

There were three ways Muslim men could be identified and checked out:
First, if a Muslim name popped up in any context associated with the
hijackers, they were immediately sought out. For example, if an Arab name
was found in a list of students at one of the hijacker's flight training
schools, he would be tracked down. Even having gone to the same state motor
vehicle office to obtain a license was connection enough.

The second category of people was those who came to the FBI's attention
because citizens (such as Jaffri's landlord in the Bronx), or state or
local police officials, notified the bureau about them. For example, a
Missouri man with a Muslim name who had been arrested for outstanding
traffic violations was turned over to the FBI in Kansas City when the
police noticed that he had a lot of checks in his wallet. Their
investigation produced an arrest for writing checks with insufficient funds
in his account, a federal crime but one not typically resulting in arrests,
let alone prolonged detention.

The third category was just plain names. FBI offices, aided initially by
INS and sometimes even local police, who were not busy questioning people
in the first two categories, were told to check names in their areas from
among the hundreds of thousands provided by the INS of Muslims who had come
into the country in the last few years. When these proved mostly useless
because INS records are almost always inaccurate or incomplete, they were
even told to look in the phone book.

How these people were treated depended on who was questioning them (some
FBI offices had more polite agents than others, though the FBI was
generally more respectful than the INS agents), and, more so, on how
tenuous or direct their connection to the terrorists might have seemed. A
professor at a college in Indiana, who thinks his name was simply picked
from the phone book, says the agents who questioned him four times were
polite and respectful and even seemed embarrassed at the job they'd been

People like the professor who seemed to check out after being questioned
would be left alone; there was little the feds could do to hold them
anyway. But Ashcroft and his small group of deputies carefully mapped out
how they could exert maximum pressure on everyone else -- which meant all
noncitizens and any citizens who seemed the least bit suspicious.

If they were not citizens, the FBI and INS would look for something that
they had done wrong in terms of their immigration status. Had they taken
jobs, even though they had tourist visas? Had they overstayed their visas?
Such violations usually were easy to find, especially since INS's
enforcement of these conditions over the years had been almost nonexistent.

They would then be detained for immigration violations, if one could be
found, and questioned repeatedly. It didn't matter if the violations were
minor transgressions for which immigrants of other nationalities are
rarely, if ever, held. Ostensibly, they were being held pending a hearing
in which the government would move to deport them for the visa violation.
But Chertoff had figured out that these hearings could not only be done in
secret, but could also be delayed, and that even after the hearings were
held and they were ordered deported, there was nothing in the law that said
they absolutely had to be deported immediately. They could be held still
longer, until the FBI decided they were of no use.

Better yet, because immigration detentions are civil, not criminal
proceedings, these people were not entitled to free lawyers. They could
hire one if they could afford it, which was not often. Under INS rules,
they were entitled to call a lawyer from jail, but the lists the INS
provided of available lawyers invariably had phone numbers that were not in

This was discussed at one of the Ashcroft meetings, and, according to one
person who says he was there, someone in the room remarked that the
government should not try too hard to make sure these people could get
lawyers on the phone. "Let's not make it so they can get Johnnie Cochran on
the phone," another lawyer added, according to one of the participants,
referring to O. J. Simpson's famed defense lawyer. (Ashcroft says he does
not remember this conversation or any reference to Johnnie Cochran, and
that he had directed that all detainees be made aware of lawyers who could
assist them.) The Justice officials were sure to a certainty that at least
some of the men they were holding or were about to hold were people bent on
killing more Americans if allowed to, or at least knew of people who were
planning to do that.

According to two people who attended these meetings, and to INS
Commissioner James Ziglar, Chertoff was put in charge of all INS
detentions. He and his deputies would make all decisions on who was
released and even who was held in solitary. This was unprecedented;
Chertoff is the head of the Justice Department's Criminal Division and INS
detention proceedings were civil, not criminal, tribunals, held in front of
INS judges. As for the detention conditions, no one at INS would be ordered
in so many words to treat the inmates harshly. But the word would go out
that these were suspected terrorists, or people who knew who the terrorists
were -- and they needed to be encouraged in any way possible to cooperate.

If the targets were citizens, or their immigration papers were in order,
they would be held for minor crimes, such as lying to a federal agent or
having fraudulent identification documents. The feds would then offer
leniency, or threaten to throw the book at them, depending on how much
information about terrorists they provided. In other cases, where not even
minor crimes could be established, or where the government was worried that
these people were so important that they did not want them to get lawyers
quickly (as they would be entitled to if charged with any crime), the
targets were held as material witnesses.

The government can hold someone as a material witness if prosecutors claim
to a judge that the person might have vital evidence in an investigation
but might flee before being put before a jury or a grand jury to testify.
The new twist Ashcroft's team now decided to add was that they would
control when, if ever, that person might be asked to testify -- meaning
they would seek to hold the person indefinitely so as to coerce him to talk.

Chertoff reasoned that while they were being held they would be discouraged
from calling lawyers, and could be questioned without lawyers present
because they were not being charged with any crime. The advantage of using
this newly expanded material witness classification was that the feds
didn't have to prove anything criminal about the person being held, but
only that he might have material information about an investigation. And as
a practical matter it, too, could be done in secret because these material
witnesses were meant to testify before grand juries, and all grand jury
proceedings, including any hearings involving the status of a witness, are,
by law, required to be secret. With a grand jury in New York empaneled for
the foreseeable future to investigate the attacks and any plots for new
attacks, these material witnesses could be held indefinitely, Ashcroft and
his small team reasoned.

The FBI, though, was another issue. FBI Director Robert Mueller was not
comfortable with a dragnet that simply held people on the hope that some
might know something simply because they were Muslim men. He didn't quite
put it that way to Ashcroft, but he did say on several occasions that his
agents were not used to going after people about whom they had no real
evidence of criminal conduct. To which Ashcroft replied that that was
precisely the point he had been making about how the world had changed --
how their job now was to prevent new crimes more than solve old ones. And
the way to do that, Ashcroft literally said during one meeting at the FBI
operations center, was to round up anyone who fit the profile.

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