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Trampling Aliens in the Name of Anti-Terrorism

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Americans are still learning the details of some of the abuses that were committed against those rounded up as suspected terrorists after 9/11. The Justice Department inspector general issued superb reports in June and December 2003 detailing violation of rights, denial of due process, and, in some cases, physical brutality.

Perhaps the best way to capture the flavor of the abuses of the post–9/11 era is to consider a few case examples.

Nacer Fathi Mustafa, a 29-year-old American citizen, was traveling back to the United States with his Palestinian father on September 15, 2001, after purchasing leather jackets in Mexico for a Florida truck stop he manages. The Mustafas were arrested after a federal official claimed that their passports had “obviously been altered with the introduction of an additional clear sheet on top of the genuine laminate.” The Mustafas’ lawyer, Dan Gerson, later noted, “The agent attempted to cast the Mustafas in the worst light, stating that, when questioned, ‘The Mustafas declined to offer any explanation,’ when in fact they denied knowledge of any alterations.” Mustafa’s elderly father was jailed briefly and then released on condition that he wear an electronic ankle bracelet. The son was held for 67 days before a government laboratory concluded the passport had not been altered.

The Mustafas sued the government to get reimbursement of their legal fees (more than $15,000), asserting that the feds had acted in bad faith. Assistant U.S. Attorney Andrew A. Bobb scorned their lawsuit: “Both defendants’ passports revealed they had traveled to the Middle East, a factor that could be considered in light of the fact the terrorists who caused the Sept. 11 devastation had traveled from the Middle East into the United States.” The Mustafas’ lawsuit for compensation was heard and dismissed by the same judge who originally threw them in the slammer; the judge declared that all of the government officials involved had acted “in the utmost good faith.”

Raza Nasir Khan, a pizza cook, got swept up after he asked a state fish and wildlife agent for a map while he was hunting with his bow and arrow in Delaware on the morning of September 19. The agent suspected the Pakistani, who possessed a global-positioning-satellite device (as do many hunters) and who was within a few miles of a nuclear power plant, and alerted the FBI. FBI agents descended upon Khan’s apartment the next night and discovered three firearms. Khan, an avid hunter, had applied to have his visa extended but because it had not yet been renewed, he was guilty of a felony. (Illegal aliens are prohibited from possessing firearms.)

A few days later, federal ATF (Alcohol, Tobacco, and Firearms) agents captured Khan on his way to the pizzeria. He was jailed and held without bond. Federal magistrate Mary Pat Thynge conceded,

There is nothing here to suggest [and] there were no indications that this individual was a terrorist…. There is no indication to me that there is a terrorism circumstance here.

Richard Andrews, a federal prosecutor in Wilmington, observed, “Mr. Khan was arrested because of Sept. 11 in the sense that they would not have gone out to interview him but for Sept. 11.” Khan was deported shortly thereafter.
The prize catch that got away

Abdallah Higazy, a 30-year-old Egyptian student, arrived in New York City to study engineering at the Polytechnic University in Brooklyn on August 27, 2001. Since he could not find student housing, the Institute of International Education — the U.S. government foreign aid program that was paying his bills — put him up at the Millennium Hilton Hotel, next to the World Trade Center. After the first plane crashed into the World Trade Center, Higazy hot-footed it out of the hotel. After the terrorist attack, the hotel was sealed.

Three months later, guests were allowed to retrieve their belongings. When Higazy went to the hotel on December 17, he was arrested and accused of possessing an aviation radio. (A hotel security guard reported finding the radio in a safe in Higazy’s room.) Higazy denied owning the radio. He was arrested as a material witness and locked up in solitary confinement.

Higazy wanted to clear his name so he agreed to take a polygraph test. An FBI agent wired him up for the test but then proceeded to browbeat him for three hours until he finally admitted owning the radio. Higazy said the FBI agent warned him, “If you don’t cooperate with us, the FBI will … make sure Egyptian security gives your family hell.” The FBI refused to permit Higazy’s attorney, Robert Dunn, to be in the room while he was given the polygraph. After the interrogation, Higazy was “trembling and sobbing uncontrollably,” according to his lawyer. Dunn observed that Higazy “insisted that he had no connection to the device but felt he had no choice but to make some kind of admission relative to the radio in an effort to remove his family from harm’s way.” Newsday noted, “Prosecutors initially denied any threats were made, but now decline to comment on what happened and on the permissibility of using such threats as an interrogation technique.”

On January 11, 2002, Higazy was indicted for perjury. U.S. Attorney Dan Himmelfarb declaimed that “the crime that was being investigated when the false statements [about the radio] were made is perhaps the most serious in the country’s history. A radio that can be used for air-to-air and air-to-ground communication is a significant part of that investigation.” Higazy was accused of interfering with the 9/11 investigation in “a profound and fundamental way.”

The Washington Post noted that “federal officials paraded [Higazy] before the media as a terrorist.” The feds never bothered contacting the Institute for International Education to check out Higazy’s story about why he was staying at the hotel next to the World Trade Center.

The prosecutorial celebration wilted three days later when an American pilot showed up at the Millennium Hilton Hotel and asked for the aviation radio he had left in his room when the hotel was evacuated on 9/11. It soon became apparent that the hotel security guard (a former cop who had been fired by the Newark Police Department and who admitted a drug problem) lied about finding the radio in Higazy’s room. The case collapsed and, a few days later, Higazy was awarded three dollars for subway fare and released from jail. The hotel security guard stated that he had lied during a “time of patriotism.” After the guard pled guilty to making false statements to the FBI, he received a slap on the wrist: jail time on weekends for six months.

Newsday columnist Ellis Henican noted that the hotel security guard “was aided and abetted in his recklessness by FBI agents and federal prosecutors — sloppy at best, incompetent or uncaring at worst. And just plain wrong…. They were so eager to make a high-profile terror arrest, they didn’t only accept the lie of a hotel security guard. They embellished it. They confirmed it. They carried it into court.” After Higazy’s interrogation, “federal agents were whispering to reporters that Higazy had confessed. At first, they’d said, he’d tried to weasel. He’d contradicted himself, the way that criminals often do. But then, thanks to the brilliant interrogation tactics of the FBI, the radio man had come clean,” Henican noted.

Federal judge Jed Rakoff demanded that the Justice Department explain how the false confession had been generated. After foot-dragging by the Justice Department, Rakoff summoned the U.S. attorney to his court and groused, “The victim we are here concerned with is not the witness, but the court, which was materially misled.” Rakoff ordered the U.S. Attorney’s office to investigate the FBI’s actions. Dunn (Higazy’s lawyer) was disappointed that the judge permitted the Justice Department to investigate its own misconduct.

Justice Department officials fought to prevent the investigation report from becoming public — until they knew the report exonerated the government. When the report was released, U.S. Attorney James Comey announced that he was “very proud of the way our office and the FBI conducted itself in the Higazy case.” Dunn denounced the report as “a craftily woven cloth of deceit and deception that was essentially a whitewash.”

There are many similar cases of abuses that have occurred in the years after 9/11. Unfortunately, few people are paying attention to the verbal and procedural shenanigans the government is practicing. It is to be hoped that federal judges, the media, and concerned Americans will help expose and stop the spread of such abuses.

This article was originally published in the March 2004 edition of Freedom Daily.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.