Justice Dept. Uses Arrest Powers Fully
Scope of Jailings Stirs Questions on Detainees' Rights to Representation and Bail

By Peter Slevin and Mary Beth Sheridan
Washington Post Staff Writers
Wednesday, September 26, 2001; Page A10

In its vast investigation of the terrorist attacks on the Pentagon and New York, the Justice Department is making extraordinary use of its power to arrest and detain individuals, taking the unusual step of jailing hundreds of people on minor traffic and immigration violations and arresting more than a dozen "material witnesses" not charged with any crime.

Law enforcement officials have exercised such authority before, but never on such a broad scale, according to former prosecutors, immigration lawyers and legal scholars.

While some said the scope of the activity is not surprising in light of the enormity of the crime being investigated, others questioned whether those detained have had adequate access to lawyers or been unfairly denied bail. Information about the detentions is difficult to obtain because the proceedings have been held in secret or with no public notice from authorities.

"It's really just a question of degree. You're talking about the largest criminal investigation in the history of the United States," said former deputy attorney general Eric H. Holder Jr. "They're using tactics that have been used in other cases, but on a much smaller scale."

As the FBI announced its search for another 400 people for questioning, leaders of the American Civil Liberties Union met yesterday with FBI Director Robert S. Mueller III to express concerns about possible governmental overreaching. ACLU spokesman Phil Gutis said the group wanted to air "our concerns that the ongoing investigation into the terrorist attacks is being conducted with full due process and consistent with the . . . Constitution."

The FBI yesterday released one of those detained as a material witness, San Antonio radiologist Albader Al-Hazmi. His lawyer, Gerald H. Goldstein, said his client was held incommunicado after his arrest as a material witness shortly after the terrorist assault. At one point it took six days for lawyers to win access to him, Goldstein said.

"This is a good lesson about how frail our processes are," Goldstein said. "It's how we treat people in difficult times like these that is the true test of the democracy and civil liberties that we brag so much about throughout the world."

After consulting a number of colleagues yesterday, Jeanne Butterfield, director of the American Immigration Lawyers Association, expressed concern that attorneys and legal aid organizations have not heard of many people seeking counsel.

"That leads me to believe they have not been allowed to contact lawyers, or they don't know what lawyer to contact," she said.

Justice Department spokeswoman Susan Dryden said yesterday that everyone arrested on a criminal charge or as a material witness is told of their right to a lawyer and to appointed counsel if they are indigent.

Immigration and Naturalization Service spokesman Russ Bergeron said every detainee is given a list of attorneys and support organizations. He noted that people held for administrative violations are not entitled to free counsel.

Attorney General John D. Ashcroft reported Monday that 352 people were being held as part of the investigation. Of that number, 98 were being detained on suspicion of violating immigration laws, while 254 were held on other charges, including traffic offenses, misdemeanors and identification fraud.

Lawyers and legal scholars contacted yesterday said they could not recall a time when so many people had been arrested and held without bond on charges -- particularly minor charges -- unrelated to the case at hand. They noted that the Supreme Court permits such detentions when authorities believe an individual has information important to another case.

"It is not inappropriate to detain people for legitimate violations," said Beth Wilkinson, who prosecuted Oklahoma City bomber Timothy McVeigh. "The Supreme Court in prior cases has allowed law enforcement to arrest people for relatively minor violations when they were investigating larger crimes."

The Justice Department is using a separate section of the criminal code to arrest material witnesses -- individuals who may have significant information about the attack. Even if not a suspect in a crime, the person may be held without bond if a court rules that nothing else will guarantee that the witness will be available to supply essential testimony.

The detention of material witnesses was considered startling in 1995, when prosecutors in the Oklahoma City case used the tactic. It has been used since, lawyers say, but until now typically involved the arrest of very small numbers of people.

Attorneys for people detained in the sweeps report that investigators and courts have been strict when asked for relief. Hani Khoury, an immigration attorney in Hackensack, N.J., represents two neighbors of men detained in the case. Both were detained without bond because they overstayed their visas.

"In the nine years I've been practicing, I've never seen them hold a non-criminal overstay for 10 days," Khoury said. "You know, they generally just hold them, if they hold them, a day, two at most."

In Jersey City, Sousan Achou's husband, Abdoul Salam Achou, was detained after authorities raided the apartment next door. She said her spouse, whose visa expired Sept. 1, was being held at the local jail.

Since the raid on Sept. 15, Sousan Achou said, she has been able to visit with her husband once, but she has no idea when or if he will be released. She said it took more than a week for her to find out where he was being held.

In Oklahoma City, immigration lawyer Mitchell Gray had difficulty meeting with Hussein al-Attas, a 23-year-old Saudi detained for alleged visa problems. Al-Attas, a student at the University of Oklahoma until May, reportedly is a former roommate of Zacarias Moussaoui, a suspected terrorist.

Gray was asked to represent al-Attas by a friend, but he said the INS barred him from contact because he could not produce a form signed by al-Attas to authorize the representation. The problem, said Gray, was that the INS refused to let him see al-Attas in order to show him the form.

"I talked to the INS several times, and nobody would tell me where he was," said Gray. "They said, 'Do you have a G-28 signed by this man? We can't let you see him with without a G-28.' Well, how can I get a G-28 signed unless I see him?"

In Orlando, a man who runs companies that cash checks and arrange international money transfers was arrested on a material witness warrant. Asserting a need for secrecy, authorities did not confirm the man's identity and his name was was removed from county jail records.

Following a brief closed hearing before a federal magistrate, the man was held for three days in the Seminole County Jail. Then, amid extraordinary security -- including a 4 a.m. ride from the jail to the federal courthouse in Orlando -- he attended another closed hearing. The man was later flown to New York, where he reportedly testified before the grand jury, and was then released.

"We have every reason to believe he is not guilty of a crime," said Joe Palmer, chief investigator for the Federal Public Defender's Office, which represented the Orlando man. "This is an innocent citizen the government believes has some information critical to the investigation."

Staff writers Michael A. Fletcher, Serge F. Kovaleski, Bill Miller and Lois Romano contributed to this report.