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Locked Up

November 8, 2001 at 12:00 AM EDT


RAY SUAREZ: Now, we pick up on the fine line between protecting civil liberties and investigating terrorists cells that may be operating in the United States.

Victoria Toensing is a former federal prosecutor and was Assistant Attorney General in the criminal division during the Reagan Administration. Randall Hamud is a civil rights attorney. He represents two people who are presently in custody.

Victoria Toensing, did anything that you just heard Neil Lewis say give you pause about the way the system is operating right now?

VICTORIA TOENSING: Well, no, Ray, it wouldn’t give me pause because having been in the Justice Department, and having created the terrorism section, I have been very familiar with these laws and the processes and the dilemmas and the problems that we have. And having to make some of those decisions, I understand what Neil is talking about probably just as well as Neil does. He’s a fine reporter.

I think one thing is that we have to understand is that we cannot talk about this issue unless we do separate them in the way that Neil did. The rules are different for a material witness, as they are different for an immigration violation, as they are different for a criminal law violation. And they all are treated separately by the Justice Department.

RAY SUAREZ: Well, the material witnesses have gotten particular attention. What does that mean in law?

VICTORIA TOENSING: Yes. There is a statute– and it’s an old statute– that says that if somebody has testimony that could be material and there is a basis that would be impractical to ensure that person’s presence through a subpoena, then he may be arrested in order to get the testimony that’s needed.

RAY SUAREZ: Well, Randall Hamud, a lot of those cases, local prosecutors are saying the people are flight risks, they have proven connections to people who were on those jets on Sept. 11, that maybe… we have no crime to hold them with now but we believe that they have testimony that’s valuable. Is it legitimate to hold them?

RANDALL HAMUD: I don’t believe so because I believe the constitution requires that we have probable cause to arrest anybody. The problem with what’s been said so far about material witnesses is that the statute was never intended for such a wide dragnet.

What’s happening now is people are presumptively being presumed to be flight risks when they’re Arab or Arab Americans or Muslims and in fact they never manifested any intent whatsoever to flee or to refuse service of process. It’s a whole new ballgame. It’s like nothing that anyone previously has ever attempted with a material witness statute.

There’s also no distinction between the material witness arrestees and any other arrestees. They’ve all been arrested, held in secret in high security prisons, and treated like common criminals. None of them is charged with any crime.

RAY SUAREZ: Does that hold true in your view for the people arrested under the other categories: immigration and various other kinds of crimes?

RANDALL HAMUD: Yes, because what’s fascinating here is we’re getting so much inconsistency from the administration. Ari Fleischer a couple days ago said the majority of arrestees had been processed and released. And, in fact, what he meant was some charged with criminal violations.

Later on the administration clarified that, no, there’s just a very few people who were actually arrested on criminal charges. They’ve been processed. Then we hear there’s only 120 to 180 INS holds on this universe of 1,147 people.

My view that it is most of them are being held by the offices of the material witness statute, and that’s been totally bent and broken in order to put these people into secret incommunicado incarceration in violation of fundamental constitutional rights.

VICTORIA TOENSING: Let’s talk about the things being bent or broken. There is a judicial system, and the courts oversee the material witness statute. Courts differ across this country about how long is reasonable to keep somebody until they give their testimony, so it’s not the same. Some places it’s maybe a week, ten days and other places it’s as long as 60 days.

RAY SUAREZ: And when you say courts oversee that — a prosecutor has to go into court and say to a judge, here’s why I want to hold this person?

VICTORIA TOENSING: That’s right. There has to be an affidavit. Here’s why the person needs to be kept in custody. As I understand it, there’s only a handful of the material witnesses. None of us know, but we’re told that that’s one of the smaller categories.

It makes sense to me as a former prosecutor because if there really are charges against somebody, that’s where you want to put them: So you can hold these people for seven days and you have to bring charges against them within those seven days because with a material witness, the court could just let them go like that and so you wouldn’t have anything. You would be much better off if you think somebody is guilty of something or connected with terrorism to pursue the avenue of the immigration offense. But let me explain something about the totally unrelated charges.

I do take issue with Neil on that characterization because if you tell me that somebody is questioned who has been… is here illegally, doesn’t have papers for being here legally and has false identification, as was the case in Detroit, has false visa papers, has drawings of an airport, while you may not as a prosecutor be able to link him directly to September 11th, that certainly is evidence of something illegal that I want my government to keep those people in custody until there’s a determination of whether they should be deported.

Bond is a very specific issue in the criminal law, and the major factor in setting bond for all of us, for the rest of us, is whether we have ties to the community. Do we have a family? Do we have a job? Do we have children? Is there something that would keep us here?

Well, by the very nature of being an illegal alien, these people have no ties to anything whatsoever. Talk about disappearing into the ether. Nobody disappears more faster into the ether than those people who are brought in for either questioning or for some kind of immigration offense and guess what? The government says come back in two weeks for your hearing and they’re never seen again.

RAY SUAREZ: Randall Hamud.

RANDALL HAMUD: Not so. Not so. She’s depicting these people as being illegal immigrants, being held because they’re illegal aliens. Not so.

There are American citizens being held. There are people with green cards, resident aliens entitled to all the rights, privileges and immunities of American citizens. There are people who are being held in invalid immigration status. The vast majority of them as a matter of fact because of the government’s own representation that only 180 I think or 182 actually on INS holds.

My situation, my clients were arrested as material witnesses and all of them were, “in status” relative to their immigration status. They were arrested without charge. They’ve been held as material witnesses with this other universe or population of 1,147, and these people have been held 30, 40, days now.

And one of them I would like to point out died in custody after 30 days and was depicted after his death, his tragic death, as having had no knowledge whatsoever about the tragic events of the World Trade Center bombings of Sept. 11. We are not a secret society.

Now we’re operating as a secret society with these detainees. Furthermore, the courts don’t have jurisdiction. All of these people are being scooped up and taken to the southern district of New York and only that court has jurisdiction over the, quote, sealed proceedings, close quote, relative to all these people.

That’s why it’s as though they disappeared into a black hole, and in that court…I’ve been in the southern district of New York, I’ve been in the prisons where they’re held. I want to tell you something it’s not a summer camp in the Catskills. They’re treated harshly, inhumanly. This is not the American way.

VICTORIA TOENSING: Well, that’s the prison system in New York. I’ve been there too. I’ve been on both sides, as a prosecutor and a defense attorney in that prison system. It’s not the best place in the world. I don’t think that we can say any prison is a vacation in the Catskills.

RAY SUAREZ: But might there be in the broad 1,147 people cases that plot out along a broad continuum from the ones that you talk about with people found with drawings of airports and that sort of thing to people who just were picked up and —

VICTORIA TOENSING: There can be people who were picked up and questioned. We’re told that a group of people have been released, a certain number have been released. Randall doesn’t know. I don’t know. Nobody knows how many people have been released. Maybe the Justice Department can get a better handle on the number, that number for us.

But I want my government to question somebody if that person has made a phone call to one of the 19 hijackers. I think there are certain amounts of indicia of information of being linked with terrorism or the people who were involved in the hijacking that we want our government to question these people. Not that we have… That we could have a criminal case against them for the Sept. 11 hijacking but certainly our government is entitled to the information so that we can either prosecute a case against other people or prevent a future attack.

RAY SUAREZ: Randall Hamud, is it reasonable to assume that given the crime that the federal government is trying to investigate in this case that it had to act quickly and not always with the greatest discretion because you have to try to find a large number of people, variables, across a large country who can quickly move out of the town that they’ve been living in, out of the country altogether and so there was some solid reason for moving quickly and acting with a scoop instead of with a tweezer when it came to arrests?

RANDALL HAMUD: I disagree. I think it’s a vast waste of resources and a delusion of investigative personnel and resources.

You’re engaging in a witch-hunt. You’re racially profiling an ethnic group and a religion and you’re chasing lots of rabbits instead of the bears. Good, hard investigative techniques require you go out and speak to people. People will talk to you.

For example, my clients were all cooperating with the FBI and giving statements before they were arrested. All that information was in the FBI’s possession. There was no need to arrest them and take them to New York. And the problem is I believe this is being done in order to allow the American people to believe falsely though it is that the FBI and the enforcement people are actually doing something by racking up numbers of arrestees and detainees in New York.

VICTORIA TOENSING: I think it’s important to qualify that statement.

RANDALL HAMUD: What bothers me– may I finish, please? What bothers me is the number continues to grow. It was first 200 and then 400 and 600 and 900. Now it’s over 1,100. I think it’s going to expand almost exponentially.


RAY SUAREZ: Ms. Toensing, very quickly.

VICTORIA TOENSING: Prior to anyone being picked up the attorney general has to certify that there is some basis for a belief that these people are connected to terrorism. And so it’s not just a wide scoop. There is a focus on whether the person… there’s reason to believe that the person has been involved in terrorism.

RAY SUAREZ: Victoria Toensing, Randall Hamud, thank you both very much.

RANDALL HAMUD: You’re welcome.