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Held 8 months { June 12 2002 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A34822-2002Jun11.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A34822-2002Jun11.html
Suspect Held 8 Months Without Seeing Judge
Civil Liberties Advocates Decry Treatment; U.S. Says Man Forfeited Rights
By Steve Fainaru
Washington Post Staff Writer
Wednesday, June 12, 2002; Page A01
NEW YORK -- A former Boston cab driver once identified by authorities as a major terrorism suspect was kept in solitary confinement for more than eight months here without seeing a judge or being assigned a lawyer, according to court records, lawyers and advocates familiar with the case.
Nabil Almarabh, 35, was taken into custody Sept. 18. After routine detention proceedings, court records show, he was not brought before a federal magistrate to face charges until May 22, two weeks after he was interviewed by the Justice Department's Office of Inspector General, which is examining allegations of civil rights violations against detainees in New York and New Jersey jails.
Last week, authorities transferred Almarabh from the Metropolitan Detention Center in Brooklyn to a Buffalo courtroom, where he was arraigned on charges stemming from an attempt to illegally enter the country last June. If he pleads guilty, Almarabh faces a sentence shorter than the term he has already spent in jail, according to the U.S. attorney for New York's Western District.
Almarabh's case has provoked outrage among civil liberties advocates and criminal defense attorneys, who argue that it is one of the more extreme examples of how the government has violated the due process rights of hundreds of people swept up in the nationwide terrorism investigation. His eight months in custody represent possibly the longest period of time that any person detained after the Sept. 11 attacks has been denied access to a judicial proceeding.
However, the Justice Department contends just as vigorously that Almarabh forfeited his right to see an immigration judge when he violated a previous deportation order by returning to the United States. Legal sources, who declined to be identified, also said that Almarabh was held as a material witness, meaning he was technically under court supervision during his detention stay.
"He had no right to see a judge because he had been previously deported, and when he came back into the country and was apprehended, his deportation order was reinstated," said Mark Corallo, a Justice Department spokesman.
The Justice Department also noted that Almarabh was brought before a judge at least three times -- twice immediately after he was detained and again at a hearing last month.
Civil liberties advocates say that even if all those circumstances are true, a detainee should never be held that long without being assigned a lawyer or brought before a magistrate.
"If you read about something like this happening to a United States citizen in China, or in Cuba -- that they had held an American citizen for eight months without bringing him before a judge -- the State Department would go crazy," said Mark Kriger, a Detroit defense lawyer who met with Almarabh at the Metropolitan Detention Center but did not represent him.
Almarabh has not been made available for interviews; details of his circumstances come from court records, lawyers and advocates who have spoken with him on several occasions. Corallo declined to discuss whether Almarabh was assigned an attorney.
Almarabh's case crystallizes the growing tension between the government's efforts to protect national security and advocates' attempts to preserve detainees' civil liberties, particularly in cases in which authorities are exhausting legal means to keep a suspect in custody and fear he or she could cause great harm if released.
U.S. officials declined to say whether Almarabh is still a suspect in the terrorism probe. In the days after Almarabh was apprehended near Chicago, news reports said authorities might have linked him to two of the Sept. 11 hijackers and a third man who had been sentenced to death in Jordan for a millennium bombing plot sponsored by al Qaeda.
Almarabh, a Syrian citizen born in Kuwait, became the focus of a multi-state manhunt immediately after Sept. 11. On Sept. 17, authorities raided his last known address, an apartment in southwest Detroit, detaining three men who were living there. They seized fake identification papers, audiotapes and a day planner containing sketches of the U.S. Air Base in Incirlik, Turkey.
The following day, the FBI detained Almarabh at gunpoint at the 7 Days market and liquor store in Burbank, Ill., where he was working. According to numerous reports, authorities had been led to Almarabh by Raed Hijazi, a former California business student, who, like Almarabh, had worked as a Boston cabbie.
In October 2000, Hijazi was arrested in Syria for his alleged role in a foiled plot to blow up the Radisson Hotel in Jordan on the millennium eve. Hijazi, according to the reports, had identified Almarabh as an agent for Osama bin Laden.
The government appears to have used two legal provisions to detain Almarabh while investigating him further. The first was to reinstate a deporation order issued after Almarabh was caught trying to sneak across the U.S.-Canadian border. The Immigation and Nationality Act allows the attorney general to reinstate a previous deportation order without review by an immigration judge for any alien who reenters the country illegally.
Under federal statute, authorities ordinarily must carry out deportations within 90 days. But the USA Patriot Act, enacted in the aftermath of the Sept. 11 attacks, stipulates that an alien whose removal is unlikely to occur in the "reasonably foreseeable future" can be detained for additional periods of as long as six months if release "will threaten the national security of the United States or the safety of the community or any person."
Legal sources have also said that Almarabh was held as a material witness, a person believed to hold information critical to a criminal proceeding. The Justice Department's use of the material witness statute to hold terrorism suspects has been controversial. In April, a federal judge in Manhattan ruled that the practice was illegal. The government has appealed the decision.
Defense attorneys and civil liberties advocates said they were troubled by several aspects of Almarabh's detention. Most notably, they said, court records show that an arrest warrant was issued Dec. 6 for Almarabh to be brought "forthwith" before a federal magistrate to answer an indictment in New York's Western District.
The indictment charged him with evading inspection by an immigration officer, making a false statement about his citizenship and using a false document when he tried to enter the country.
Court records show that Almarabh, who was in custody in Brooklyn, was not officially placed under arrest until May 22. Criminal defense lawyers argued that the delay of more than five months appeared to violate Almarabh's constitutional right to appear before a federal magistrate within 48 hours and be provided counsel.
"If they sat on an outstanding indictment and an arrest warrant for six months, they are seriously in default on the basic rules of federal criminal procedure," said Irwin Schwartz, president of the National Association of Criminal Defense Lawyers.
Corallo declined to comment on this aspect of Almarabh's case.
In addition, if Almarabh was being held as a material witness, he should have been assigned a lawyer to represent him, criminal defense experts said. Instead, according to Kriger, the Center for Constitutional Rights, the Islamic Circle of North America and the federal public defender in Buffalo, Almarabh went unrepresented for months while human rights advocates tried unsuccessfully to find him an attorney.
Five months after his detention, Almarabh was given a list of lawyers that he could call, according to Adem Carroll, the Sept. 11 relief coordinator for the Islamic Circle of North America, who met three times with Almarabh and has spoken with him over the phone.
Almarabh was incarcerated in the Special Housing Unit on the ninth floor of MDC, along with an unknown number of detainees designated for especially restrictive confinement. Like others in that unit, Almarabh was allowed out of his cell for a half-hour a day and was moved in leg irons and handcuffs attached to heavy waist chains. He was questioned four times by the FBI, according to Carroll.
Almarabh went on a hunger strike on more than one occasion to protest the conditions, Carroll said. On May 9, Carroll said he sat in on Almarabh's interview with the Office of Inspector General, which, according to Carroll, wanted Almarabh to have a lawyer present but, since he did not have one, allowed the advocate to represent him. The OIG is reviewing allegations of civil rights violations at MDC and the Passaic County Jail, a New Jersey facility where hundreds of detainees have been held.
Staff researcher Margot Williams contributed to this report.
© 2002 The Washington Post Company
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