Concerns rise of civil rights being ignored

In law enforcement’s zeal to find those responsible for the Sept. 11 terrorist attacks, some legal experts fear, the basic rights of some innocent people are being trampled.

About 700 people -- most apparently Muslims or of Middle Eastern extraction -- have been detained as a result of the federal investigation into the suicide hijackings that killed more than 5,000 people last month. Some are being held as material witnesses, others for violating immigration rules, and still others on suspicion of a variety of offenses such as possessing false documents.

An unknown number of detainees are in the Metropolitan Correctional Center in Manhattan, among other facilities. According to civil liberties attorneys, many of the detainees have had no contact with their families and only limited contact with their lawyers. There are no public records indicating what charges they are being held on or who represents them.

U.S. Attorney General John Ashcroft has said the government’s actions are “consistent with the framework of the law that we operate under.” But civil rights advocates contend the lack of information about many of those being held opens the door to abuse.

“Who’s being detained?” asked Harvey Grossman of the American Civil Liberties Union. “Why are they being detained? Where? Under what conditions? Do they have access to counsel? When will they be released?”

That information normally would be a matter of public record. “Incommunicado holding of persons in the U.S. is not a standard way of doing business,” said Ronald Allen, a Northwestern University law professor.

Grossman said that in many of these cases, the records have been sealed and lawyers have been barred from talking.

“The court has the authority to gag lawyers if there’s a threat to the administration of justice,” Grossman said. “But that’s an extraordinary step to take before indictment. There’s been nothing as massive as this since the day after Pearl Harbor, when they rounded up 700 Japanese immigrants and held them incommunicado and without charges for a protracted period.

`Antithesis of due process’

“The government ought not to lock up first and find cause for detention later,” he said. “That’s the antithesis of due process.”

The Justice Department has said 165 of those detained as a result of the terrorism investigation were picked up under the Immigration and Naturalization Act. Jeanne Butterfield, executive director of the American Immigration Lawyers Association in Washington, said most of those people were suspected of minor violations, such as overstaying their visa. But she added that no one knows how many of the detainees still are being held, where they are and what the status of their cases is.

“It’s virtually impossible to get any meaningful information from the Justice Department,” she said. “And, believe me, we’ve been asking.”

Butterfield said no one would argue that there is an important investigation going on.

However, she said, “people who are being held on suspicion of simple immigration violations should have the right to counsel and the right to notify their families. And they should not be detained indefinitely without knowing what the charges are. We have people who have been held a month without being charged, in some cases without access to a lawyer.”

A San Diego student, Yazeed Al-Salmi of Yemen, who was detained first in California and later in New York, said he was denied contact with his family and allowed only a few brief visits with his attorney. Al-Salmi, who was questioned as a material witness and subsequently released, said he was confined to a dirty, high-security cell in New York and deprived of a shower and a toothbrush for nine days.

In Mississippi, a 20-year-old student from Pakistan said he was stripped and beaten in his cell by other inmates while jail guards did nothing, according to news accounts.

“The man was thrown in with criminal detainees, and emotions are running high right now,” Butterfield said. “If you’re detaining innocent people, you’d better be darned sure you provide for their safety.”

The 700 people arrested as a result of the terrorism investigation fall into three categories, legal experts said.

The first group -- reportedly just a handful -- are those held as material witnesses, which means they are thought to have pertinent information and prosecutors want to depose them or get them to testify before a grand jury.

A material witness has a right to a hearing but can be held without bail if he is considered a flight risk.

How long a material witness may be detained is unclear. “It’s supposed to be a `reasonable period,’” Grossman said. But courts have differed on how long is “reasonable.”

Immigration detainees

A larger group of detainees are those held on immigration charges. Those people can be held virtually indefinitely once deportation proceedings have begun. But the time between the detention and the notice of deportation proceedings also is undefined.

Butterfield said that interval is governed not by law but by regulation.

“The regulation used to say, `Generally, you shall be charged within 24 hours.’ But two weeks ago Ashcroft changed it. Now it says 48 hours except in emergencies or extraordinary circumstances, where you can be detained for any reasonable time,” Butterfield said.

“We’d all be willing to concede they might need more than 48 hours, but when does detention exceed reasonableness? Is two weeks enough time? Is four weeks enough time? We’re four weeks out from many of these arrests.”

The third group of detainees are those suspected of assorted offenses not necessarily linked to the terrorist attacks.

Such detainees normally must be brought within 48 hours before a magistrate, who decides whether there is probable cause to hold them. They may be denied bail if they are considered a flight risk or a danger to the public. However, some of them may be turned over to immigration authorities and never get a hearing before a magistrate, Grossman said.

Chicago Tribune reporter Sam Roe and Tribune news services contributed to this report.