Rights Caught in Dragnet

On the night of Sept. 11, Khalid S.S. Al Draibi was picked up here while driving on a flat tire. He was arrested not far from Dulles International Airport, the departure point that morning of American Airlines Flight 77, which was hijacked and then slammed into a side of the Pentagon.

Al Draibi told police he was a U.S. citizen, but in truth he is Saudi Arabian. He was a drifter, in this country for several years with no family or permanent address.

He once had taken pilot training, and law enforcement officials found a flight instruction manual inside his white well-worn Lincoln Town Car. To make matters worse for Al Draibi, his name and birth date closely match those of one of the 21 suspected terrorists whose financial assets are being investigated.

Al Draibi is still in custody. Is he a prime suspect?

His lawyer insists he is guilty of nothing and has been unjustly swept up in a law enforcement stampede following the terrorist attacks on America. He is not a terrorist, the attorney says, but he is terrified.

Al Draibi is among about 350 people who have been detained on immigration infractions or other violations, or as material witnesses in the terrorist attacks in New York and at the Pentagon, as well as the crash of a hijacked plane in Pennsylvania. Like Al Draibi, some have been in custody since the day of the attacks. Little is known about who they are and why they are being held. Authorities also are looking for nearly 400 others who they say may have information about the attacks.

Yet, thus far, there has been no public announcement of any criminal charges directly related to the conspiracy.

In fact, federal authorities announced Tuesday that one of their material witness detainees, a San Antonio radiologist, had been set free. Dr. Al-Badr Al-Hazmi’s release Monday came after numerous statements by some federal government sources describing him as a key player who had provided funds for the hijackers.

Because of the dramatic circumstances of Sept. 11, and the public clamor for justice, federal law enforcement officials are taking full advantage of a wide range of federal statutes in trying to determine who helped 19 hijackers kill as many as 6,900 people.

They are using immigration laws to hold suspects indefinitely and are detaining others as material witnesses by claiming they may have some knowledge of the conspiracy. Authorities can keep the detainees in jail simply by telling a judge that they might flee the country.

Because the case is so complex, law enforcement officials say it is crucial that no suspects be exonerated until there is a clearer picture of the scope of the conspiracy.

Indeed, the detention process that authorities are so vigorously invoking is legal. Authorities are able to hold these suspects without first establishing probable cause that they have committed a crime, an otherwise fundamental tenet of the American judicial system.

On Monday, Atty. Gen. John Ashcroft defended the process before the House Judiciary Committee.

“We are conducting this effort with a total commitment to protect the rights and privacy of all Americans and the constitutional protections we hold dear,” Ashcroft said.

But, he added, “we cannot wait for terrorists to strike to begin investigations and make arrests. The death tolls are too high, the consequences too great.”

The idea of using material witnesses is a relatively new tool for federal law enforcement. It began primarily to help authorities along the U.S.-Mexico border investigate crimes involving suspected criminals and witnesses who are illegal immigrants and who might want to flee the United States.

It also has been used effectively in pursuing organized crime figures and in the case of a man who killed two people eight years ago in front of CIA headquarters in Washington.

But recent history shows that federal agents racing to make arrests in high-profile crimes sometimes have ended up with the wrong person. In some instances, those suspects endured agonizing ordeals. Some have never recovered.

Wen Ho Lee, a nuclear weapon scientist, was held for 278 days on suspicion of espionage before his release last year from a New Mexico jail. An angry federal judge declared the government’s treatment of Lee had “embarrassed this entire nation and each of us who is a citizen of it.”

James Nichols, whose brother Terry was sentenced to life in prison for conspiracy in the 1995 Oklahoma City bombing, served 32 days before he was cleared of any criminal involvement. During his days and nights in custody, he was constantly watched by prison guards in the hope that he would break down and confess. Finally, a federal judge declared that “there is not an iota of evidence of dangerous acts” by the Michigan farmer.

Also in the aftermath of the Oklahoma City bombing, Palestinian American Abraham Ahmad was arrested, photographed, fingerprinted, strip-searched, handcuffed, paraded before the public and held for three days before he was set free. An angry mob surrounded his house, spat on his front door and threw trash on his lawn.

“The United States was always a dream for me and my family,” a tearful Ahmad said later. The arrest “was against everything I thought the United States was supposed to be.”

When radiologist Al-Hazmi was arrested, he was not allowed to contact his lawyers at first and was interviewed without their being present, one of his attorneys said. His wife, who does not speak English, worried for his safety as the case against him seemed to build.

“This is exactly the wave of nationalism and pride and fear of ‘them against us’ in which Hitler rose to power,” said Cynthia Orr, one of Al-Hazmi’s lawyers.

“It’s in that zeal of responding to such a horrible atrocity that we are allowing atrocities to occur at our own hands.”

Defense Lawyers Worry About Abuse of System

Other defense lawyers and constitutional law experts worry where the hunt for suspects will lead--whether to actual criminal charges or to abuse.

Mark Tushnet, a law professor at Georgetown University, noted the irony involved in being a material witness. Many of those detained in the last two weeks, unlike defendants already charged with crimes, do not automatically have a right to bail and other legal protections. “There’s something troubling about doing things to people you cannot even show have probably committed a crime,” he said.

Stanley Cohen, a New York attorney who has represented many in the country’s Islamic community, said what is taking place “proves the judiciary is being bullied by the FBI in all this hysteria. They are operating a chamber of horrors.”

Added Daniel Dodson, a spokesman for the National Assn. of Criminal Defense Lawyers in Washington: “I get a sense there’s been a de facto suspension of habeas corpus, which I guess is allowed during a declaration of war.”

Many Picked Up on Immigration Violations

It is unclear how many of those arrested are being held as material witnesses. The overwhelming majority were swooped up on immigration violations. Some others have been snared for identification fraud and other offenses. Many appear to have been brought to the New York area, where they are being held in detention centers.

William M. Baker, former chief of the FBI’s criminal investigative division, said in an interview that agents must proceed slowly and weigh each clue and arrest as the complex case develops. It is helpful, he said, to keep suspects in jail while everything is being sorted out, and that may mean holding people longer, whether they are ultimately charged in the case or released.

“You need to use whatever legal remedies you have, and this is one of them,” Baker said. The added bonus of holding people, he said, is that it tends to “sweat” some of them out. “You are applying pressure,” he acknowledged.

When James Nichols was released after 32 days, he was near tears, but he never gave authorities information that tied him along with his brother and Timothy J. McVeigh to the Oklahoma City bombing.

Nichols recalled being taken from his farm in the thumb of Michigan and placed in a federal prison facility near Ann Arbor. There he lingered, first as a material witness and later, to keep him longer, on a much less serious charge of detonating small explosives on his farm.

“They didn’t have one shred of evidence,” he said in a recent interview. “It was just a big game.”

His cell was 6 by 8 feet, he said. It was in a special housing unit far from other prisoners. He was deprived of a radio, he said, and not given access to a TV until he complained.

Two guards watched him at the same time, all the time, taking notes on every word he said, on his mood, his attitude.

“They hoped that I would break down,” Nichols said. “It’s all part of their psychological warfare. . . . They wanted me to say whatever they wanted, like I was some terrorist mad dog.”

How the cases of those now being held will end is not known.

Al Draibi, the 32-year-old sometime cabdriver, tried to pass himself off as a U.S. citizen because he was frightened about being stopped on the day of the attacks, said his lawyer, Drewry Hutcheson Jr.

He first was noticed because he was driving on the wheel rim of a flat tire, but then authorities quickly spotted some warning signs.

He appeared to be deceptive. He seemed to be rootless, without a real home, and told officers he was trying to get both to Richmond, Va., and to Washington. He also said he wanted to get a ticket from the Saudi Embassy to fly to Saudi Arabia.

The flight manual found in his car was another red flag. FBI agents later learned Al Draibi had taken flight lessons several years ago in Bessemer, Ala., and that he always paid in cash.

But he never earned his wings, said Shawn Patterson, director of marketing for the Bessemer Aviation School. “He wanted to cut corners and not really follow procedures,” Patterson said. “He just seemed to be a lazy pilot. He did things that jeopardized safety, and his instructors wouldn’t fly with him anymore.”

Then, on Labor Day, just eight days before the terrorist hijackings, Al Draibi was stopped by the police chief in tiny Guin, Ala., for running a red light and driving without proof of insurance.

Chief Bryan McCraw said Al Draibi seemed to be in a hurry. He complained that he had already gotten a traffic ticket that day in Mississippi and did not need another one.

“He was belligerent; he just kept running his mouth,” McCraw said. “I looked inside his car and he had papers scattered all about. I looked a little further in and saw a blanket and a pillow in the back seat.”

Were these signs of someone anxious and hot-headed? Of someone determined about something, someone on the move? Hutcheson, his lawyer, insists Al Draibi has done nothing to deserve being jailed and treated as a terrorist.

“He said to me, ‘This was not my lucky day. I’ve been arrested for what some other people did,’ ” Hutcheson said.