Sitting in jail in upstate New York, Rafil Dhafir is living testimony to the legal climate two years after the 9/11 attacks. Until February, Dhafir was a pillar of his community in Rome, N.Y. He was a practicing oncologist, an imam in his local mosque, and for most of a decade he had run a charity called Help the Needy. This February, the FBI came knocking and Dhafir — a U.S. citizen born in Iraq — has been held without bail ever since. Is this a triumph of the new U.S. homeland security strategy or a sign that it is running amok?
Since the 2001 attacks on the United States, the quest for better security has driven the passage of new security laws, most notably the USA Patriot Act, which greatly loosens restrictions on the use of surveillance, secret evidence, and information sharing between intelligence and domestic law enforcement.
Less noticed, but arguably as profound, are the changes that have taken place in regulations and procedures of law enforcement — changes that pass under the radar of Congress. Finally, there has been a tectonic shift in the political climate that surrounds the courts.
In the case of Dhafir, the investigation started with a whiff of terrorism. It focused on his charity, which was sending millions in aid to Iraq, earmarked for women and children. Like some other U.S. charities, it was doing so without a license required by the U.S. government amid an embargo of the country.
The investigation got under way in 1999, but it was February this year, when the war in Iraq was under debate, that the arrest took place. FBI investigators cast a wide net, interviewing some 150 people in the community about Dhafir’s activities and religious beliefs. In Idaho, agents arrested a Saudi computer science graduate student in connection with the case.
In the course of the probe, with access to Dhafir’s files, investigators came up with another charge: Medicare fraud. Previous charges of violating the Iraq embargo also stand, as well as tax-evasion charges related to the charity. At present there are no charges related to terrorism, and it is unclear whether the ongoing investigation is pursuing terrorism-related activities.
Devereaux Cannick, legal counsel for Dhafir, believes that the post 9/11 political climate is to blame for the severity of the court, and accounts for why this case is heading to trial. And he believes it accounts for a judge denying bail for Dhafir three times in the past seven months.
“If the events of 9/11 had not happened, he would never find himself in this situation,” Cannick says. “And given his standing in the community and reputation, given the nature of these charges, it’s shocking that he hasn’t been able to get bail.”
Assistant U.S. Attorney Michael Olmsted, who is working on the prosecution, says the timing of the arrests have nothing to do with the national political climate, and that the arrests were made in February simply because the investigation had advanced to the point where the timing was right.
In arguing that Dhafir should be denied bail, he says, “We are relying entirely on risk of flight.”
Dhafir’s case, like most, is far from black and white. But it highlights one of the biggest criticisms of the USA Patriot Act, which has lowered the bar for acquiring search warrants from the court, and shrouds the decisions by judges in secrecy.
Dhafir’s supporters question whether the case could have ever taken place without the passage of the act. “We don’t know the basis of the warrants, or what they told the courts as probable cause,” says Dhafir’s general counsel, Khurrum Wahid.
Ashcroft hits the road
Attorney General John Ashcroft, the architect of the revamped security strategy, is adamant that the new anti-terrorism powers have paid off. He’s on a road trip across the nation this month to convince Americans of it. “Make no mistake: Our strategies and tactics are working,” he told a crowd in Boise, Idaho, at the start of his tour. “Our tools are effective. We are winning the war on terror.”
The Justice Department points to success stories under the Patriot Act, such as the indictment of Florida university professor Sami al-Arian for acting as the U.S. head of the Palestinian Islamic Jihad, accused of raising money to finance terrorist attacks. It helped net seven people in Portland, Ore., who are charged with conspiring to aid the Taliban and al-Qaida terrorist network.
Although by law, the government will not reveal what provisions of the Patriot Act were used in any given case, Justice Department spokesman Mark Corallo says the provision that tore down the longstanding barrier between the FBI and intelligence agencies has been one of the most important changes.
“Once that barrier came down, it clears the way for this kind of information to be shared and for these kinds of prosecutions to be brought to court successfully,” he says.
He also argues that certain provisions of the Patriot Act existed previously, such as secret searches, and after-the-fact search warrants. But these tools, which had been used to investigate crime rings, for instance, can now be applied to terrorism cases.
“Our laws are very specific so they can’t be abused, to protect civil liberties,” he says. “They’re very narrowly (defined) to meet a current need. So the Patriot Act is another example of that.”
A Justice Department Web site dedicated to the law (www.lifeandliberty.gov) goes much further in its claims: “The government’s success in preventing another catastrophic attack on the American homeland since September 11, 2001, would have been much more difficult, if not impossible, without the USA Patriot Act.”
Immigrant rights in decline
Civil liberties watchdogs argue that this claim is difficult, if not impossible to prove, especially given the silence surrounding the use of the Patriot Act. And they say the cost to fundamental American principles is too high to justify its few clear successes — spawning secrecy and eroding privacy. In particular, they argue that the new regime has vilified non-citizens, ensnaring thousands of innocent people with no connection to terrorism.
“Where we are? It’s a different country than it was two years ago. There’s a lack of transparency in the law, there’s an unpredictability, and hostility towards immigrant community,” says Kush Bambrah, a lawyer at the Hate Free Zone Campaign of Washington, an organization set up to defend the rights of immigrants since 9/11.
A report published in June by the Justice Department’s own inspector general said it found “significant problems” with the handling of Muslim immigrants rounded up in the first months after the Sept. 11 attacks.
Looking at more than half of the approximately 1,200 detainees held in two centers in New York, the report said the FBI in the state often did not distinguish between detainees suspected of terrorism and those encountered coincidentally in making an arrest. It charges that the Immigration and Naturalization Service, then under the jurisdiction of the Justice Department, often failed to serve timely charges and kept detainees under unnecessarily restrictive conditions — using leg irons, handcuffs and heavy chains. It documented a pattern of verbal and physical abuse by some correctional officers.
In late 2002, the INS — now part of the Department of Homeland Security — initiated a new strategy, calling on some 80,000 to 100,000 immigrants, nearly all from Muslim countries, to register with the government. Though the program was hotly contested for a number of reasons, and later discontinued, some 13,000 people who showed up to register found that some part of their immigration papers were not in order. They are slated for deportation.
Even people who were on track for political asylum — fleeing from the world’s most oppressive regimes -- have found themselves on the track to deportation. A group of five Somalis have won an initial battle against deportation, not only because they are likely targets for persecution back home, but because there is not a government recognized by the United States to take them back.
The judge, so far, is not convinced that the Somalis pose a threat to national security. Nonetheless, the Justice Department is appealing the case, which is expected to be decided in October or November.
Only the Department of Homeland Security knows how many have been deported and detained. But the number of immigrant detentions appears to be rising, along with the grounds for doing so, says Crystal Williams, director of liaison and information with the Immigration Lawyers Association. She points to a long list of new regulations that curtail the process of review by immigration courts and an atmosphere in which immigration officials feel pressure to decline applications.
“What we have is an enormous game of gotcha,” she contends. “The point seems to be to remove as many Muslims as possible.”
The Department of Justice and Department of Homeland Security continue to seek greater authority for anti-terror investigations.
“Making the death penalty available for cases involving terrorist acts in which people could be killed…” is one provision that is under consideration, says Justice Department spokesman Corallo. “We think the Congress will look at this and be receptive.”
Meanwhile, the Transportation Security Administration is seeking authority to implement CAPPS II — a program that would conduct automatic background checks on all airline ticket holders.
President Bush threw his weight behind new security measures on Wednesday, calling for Congress to pass legislation to deny bail to terror suspects and expand those eligible for the death penalty in terror cases.
“The House and the Senate have a responsibility to act quickly on these matters. Untie the hands of our law enforcement officials so they can fight and win the war against terror,” Bush said at an FBI laboratory outside Washington.
Bush hailed the Patriot Act but said there remained “unreasonable obstacles to investigating and prosecuting terrorism” that must be urgently addressed for the sake of national security.
A draft proposal leaked from the Justice Department to the press that came to be dubbed Patriot Act II proposed sweeping new powers that included a further broadening of the definition of terrorism and the power to revoke citizenship for people convicted of terrorism. That proposal was so controversial that it died on the vine, with clear disapproval from leading Democratic and Republican legislators.
Bush’s speech on Wednesday suggested that the administration was now pursuing parts of Patriot II (formally the Domestic Security Enhancement Act) rather than submitting a large new package of legislation.
But even less-sweeping efforts are meeting far greater opposition now than in the days after the Sept. 11 attacks.
In reaction to the USA Patriot Act, governments in three states and 159 cities, towns, and counties, representing some 19 million people, have passed resolutions and one ordinance to declaring that they will protect the civil rights of their citizens.
Democrats find an issue
Democrats, including the frontrunner for the party’s presidential nomination, Howard Dean, have seized on the issue in the campaign.
Left-leaning Democrats have been joined by a growing number of Republicans in expressing these concerns.
While the Patriot Act was overwhelmingly passed by the House and Senate just six weeks after the Sept. 11 attacks, second thoughts are rife now as constituents weigh in with concerns about civil liberties.
Signaling this new mood, in July the House of Representatives voted 309-118 to halt funding for a key search-and-seizure section of the law. The overhwhelming and bipartisan move focused on Section 213 of the Patriot Act, called the “sneak-and-peek” provision, which gives federal law enforcement agencies the power to enter a home or office while the occupant is elsewhere. A warrant is still required but easier to acquire than before the Patriot Act was passed. Critics argued that the procedure did not give people a fair chance to defend themselves.
Not only is there rising opposition to expansion of the USA Patriot Act, but there is growing movement to ensure that surveillance provisions in the existing law that are due to expire on Dec. 31, 2005, under a “sunset” clause actually do retire punctually. C.L. Otter, a conservative republican from Idaho is working on a move to repeal the those provisions a year early.
“I think things have calmed down now that we’re two years away,” says Bambrah of the Hate Free Zone. “People are more sober about how to protect our shores — it’s not such a knee-jerk reaction.” But even as the pendulum swings, he is concerned that the landscape could change again, radically. “We haven’t had a serious terrorist attack in two years. My fear is that if there is another one, it would give the government carte blanche to do whatever it wants.”
Reuters contributed to this story.