As many of the Arabs and South Asians detained in connection with the terrorism investigation now approach a sixth month in jail, developments last week in the case of one Pakistani Canadian reflect growing concerns among advocates for other detainees.
Held since September 20 at the Metropolitan Detention Center, a federal prison in Brooklyn, Shakir Baloch last week pled guilty in federal court to charges that he entered the country illegally and used a false Social Security card to obtain working papers. Though he was never charged in relation to terrorism or labeled a material witness in the September 11 investigation, and was ordered deported on September 22, he was held in solitary confinement for almost five months. On December 20, 2001, his lawyers filed a habeas corpus petition in an attempt to win his release, which was followed on January 4 with a filing of criminal charges by the U.S. attorney in New York's Southern District.
"To fight the case would have taken several months," says Martin Stolar, Baloch's lawyer. "And those months he would have remained in jail. He wanted to go home, and I advised him that the best way to get back to Canada was to plead [guilty]."
"When the feds no longer have any justification to keep the detainees on immigration issues, they resort to criminal charges to keep them," says Regis Fernandez, a Newark immigration lawyer representing several detainees. And a number of their advocates say they are seeing more cases like his, with the same result: guilty pleas in exchange for an end to detention.
Since the government has been reluctant to divulge data or policy on the September 11-related detentions, some advocates are now looking to these guilty-plea cases for insight into the fate of others imprisoned. According to lawyers familiar with dozens of cases, most detainees were rounded up, like Baloch, in the weeks right after the attacks. Some have been released, although no one is sure how many. Their advocates have been trying to arrive at their own counts, skeptical of the Justice Department numbers, which maintain only 327 people are still detained on immigration violations, down from 460 in December. The official numbers, however, don't include men like Baloch, who are charged with crimes.
In past months the government has justified the detentions in the interests of constructing "a mosaic," presumably illuminating the reach of the terrorists. But Stolar and others take a different view.
"I believe they are filing these low-level, minor violations to justify the unconstitutional sweep that occurred after September 11," says Stolar. "It provides political cover for the roundup." Stolar says he has been told by prosecutors that another of his clients, Anser Mehmood, will also be charged with improperly using a Social Security card to obtain work.
"Ashcroft is interested in defending his dragnetthe higher the number that he can charge with crimes, the greater his ability to say, 'See? We told you they were criminals,' " says Claudia Slovinsky of the National Lawyers Guild.
But by far the most alarming suggestion raised is that the Justice Department is punishing those detainees that question its policies with the threat of criminal charges. Stolar believes Shakir Baloch was prosecuted as an example. And Fernandez suggests that the same might be true of Usama Salem Basiouny, an Egyptian held in Passaic County, New Jersey. Last week Basiouny was charged with misuse of entry documents only weeks after he spoke to the human rights group Amnesty International about the conditions of his imprisonment. Amnesty's Jillian Kong-Sivert confirmed their visit with him, saying he showed them abrasions on his wrists and ankles from being constantly shackled.
"I actually had two clients who were supposed to speak to Amnesty International," says Fernandez. "One was transferred to another prison two days before Amnesty's visit. And Usama is being prosecuted."
The Justice Department maintains it is simply doing its job. "There's greater scrutiny of all immigration law violations," says spokesman Dan Nelson. "No stone is left unturned. Immigration laws are violated, so immigration offenders are prosecuted."
Cesar Munoz of Human Rights Watch admits the government can make these charges, "But before September 11, they never went after these cases," he said.
In the meantime, Baloch remains in a prison that rights groups estimate houses at least 40 September 11 detainees. Activists say they have been unable to visit those held there or assess conditions at the prison. MDC warden Dennis Hasty has also refused such visits to journalists.
Stolar hopes that on April 2 Shakir Baloch will be sentenced to time served and deported to Canada. But even then, the INS can, as it has in other cases, take months before it actually makes arrangements to send Baloch home. And then there is the possibility, but one that Stolar considers remote, that Kevin Duffy, the judge hearing the case, may decide that Baloch should receive the maximum penalty for his crimesfive years and a $500,000 fine (Judge Duffy made a name for himself recommending that Ramzi Yousef, convicted in the 1993 WTC bombing, spend the rest of his life in "quarantine" from other prisoners).
And surely others will be tempted just to take the plea option. "It's just so easy for them to do," says Claudia Slovinsky. "They're so desperate that they're willing to plead guilty. They're thinking, 'Just get me out of here.' "
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