Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Even in Pakistan, the FBI was not finished with Mani. Two months after her deportation in 2004, IARA was listed by the Treasury Department as a “specially designated global terrorist,”39 and as the case developed, Mani started receiving requests from Pakistan’s security agency to sit down with FBI agents at the U.S. embassy. “I thought, OK, if I don’t go, this is a country, they can pick me up,” she told me by phone from Islamabad. “In this country anything could happen. I’m tired of being scared.”

  The American agents asked her politely if she would return to testify before a grand jury. They played on her pain of separation, promising that she could see her children. Mani struggled for weeks. “I just can’t forget my children. I am a mother. I have lost everything,” she said to me. Yet “the way I am hurt,” she added, “I can’t hurt anyone. I don’t want to be a part of that.”

  Besides, her professional life had been restored. Pakistan’s National Engineering and Scientific Commission had hired her to create a poison control center, she said, and to establish radiation limits to protect workers in the nuclear field. She would be managing hundreds of employees. It would be a sensitive position, however, and her travel would be restricted. “If you are in that job, your passport is in the hands of government,” she explained. “Even going out of the country is with their permission.”

  As she longed for her children, the FBI kept calling, kept promising or at least implying that she could return to the United States and receive an S visa, known in the trade as a “snitch visa,” which might lead to a green card once again. Pakistani officials told her that she had to make a choice: Pakistan or America. She could not keep her job if she went to testify in the United States.

  Finally, she agreed to go in 2007 and was flown at U.S. government expense to Kansas City, where she was put up in a hotel while she testified for only a few minutes before a grand jury. “They asked questions about the orphanage, very specific questions,” she said. “They asked me all the financial details.”

  But her Justice Department handlers would not let her fly to Washington, D.C., to see her children, and her children did not have the money to fly to see her. She returned to Pakistan with two empty hands—without having embraced her son and daughters and without a job.

  Mani is a slight woman with a white shawl across her right shoulder, a small gold stud in her nose, and an endless weariness in a face that seems not to have been graced by a smile for a very long time. She was born in 1957 and worries that she looks much older, but I think she looks much younger than her voice sounds. It is thin, exhausted.

  She has put out a bowl of nuts and a plate of cookies and has brought mugs of green tea. In the town house she can barely afford to rent, indistinguishable from all the others in a colorless Virginia suburb near Dulles International Airport, she has hung a picture of her mother, looking strong and kind, who died several years earlier.

  A gangly teenage boy comes in. He is one of four orphans of Pakistan’s 2008 earthquake whom Mani adopted, as if her need to give and care were insatiable, a way to fill the emptiness. “I believe I was doing very, very similar to Mother Teresa, what she was doing,” Mani says, not as if it were a boast or a delusion, just a plain explanation.

  She has been here since April 2009, when the U.S. government flew her and her adopted children from Pakistan so that she could be a witness in a trial of IARA’s director, Mubarak Hamed. Officials did a few things for her. Because adoption in Pakistan was like guardianship, the FBI got her an attorney pro bono to complete the adoptions here to comport with U.S. law. The Justice Department gave her a stipend for living expenses at first, she says, and obtained a work permit for her. But her naturalization fraud has so far prevented her from getting hired as a toxicologist. With her Ph.D., she has been cleaning houses, visiting food banks, and begging for money from friends and churches. She has worked recently summarizing news stories for the Pakistani embassy.

  After her grand jury testimony but surely not because of it, Hamed and others at IARA were indicted. Among the charges was their transfer of $130,000 to renovate buildings owned by Hekmatyar—namely, the orphanage—an accusation still left unproven. Indeed, prosecutors dropped the count as they accepted a guilty plea to something entirely different. Hamed admitted funneling money to unspecified people or organizations in Iraq without a license, violating the sanctions imposed on Iraq after the 1991 Gulf War. His lawyer insists that the funding went to charitable ends, including an orphanage and a program to slaughter cattle for distribution to the poor,40 the kind of humanitarian aid that might have been granted a license by the Treasury Department, had Hamed applied. It may be, then, that Hamed’s guilt was the equivalent of driving safely without a license, not driving so as to endanger others. There is a difference.

  Mani knows nothing about the Iraq connection, and the guilty plea obviates the need for a trial. So the entire reason for her tribulation has evaporated. Her “assistance” is not required. It probably never was, not even to get the indictment, which relied on records of bank transfers and wiretaps. She has received her promised S visa, and hopes that the authorities will deign to permit her to remain with her children in the United States. She cannot look to any due process in such a case, for there is no transparency and no set of rights, just the whim of the powerful.

  She is orphaned again, this time by both her adopted country and even her native land. “In Pakistan now I am defamed,” she says, because she was deported and then returned to the United States and because of her slight cooperation with the FBI. She is afraid of going back to a country where people vanish without explanation.

  Around her, people have disappeared in another way. Her arrest in 2004 frightened away almost all her friends and colleagues, especially fellow Muslims who may have imagined themselves suffering guilt by association. In the region below the law, people do not welcome the magnifying glass of governmental authority, no matter how innocent they may be. “Nobody calls me. I don’t get a ring,” she says. The words “isolation” and “seclusion” appear in her conversation. “You are not in jail, but you are in a jail.”

  Losing what she had gained has been a constant theme of her grief. “Imagine an orphan child coming to this level of life,” she told me in 2006, from Pakistan. “And having seventeen years of accomplishment snatched away for what? Some small error? Every single night I cry profusely. I can’t sleep.… I was so self-confident and independent.”

  And in 2011, sitting in her Virginia living room: “I don’t know what to do. I don’t know where to go. Everything is gone. I am living, but I’m a dead person. You have no idea how difficult it is for an orphan child to reach this position and get a Ph.D. I stand nowhere.”

  Was it worth crushing Dr. Waheeda Mani Tehseen for the lie on her form, for the charity work that led her to IARA, for her slimmest testimony, which produced only an unproven charge? The man largely responsible, Assistant U.S. Attorney Morton, was a low-level official of thirty-eight at the time, but he then rose meteorically through the ranks of law enforcement until President Obama made him director of ICE, the agency that seizes and deports immigrants. Looking back, did Morton think his retribution on Mani was proportional to her crime? How did he reckon the gains and losses on the balance of justice? He wouldn’t say. Requests for his assessment went unanswered.

  Who is guilty and who is innocent in this affair? Mani? Morton? Hamed? Agents of the FBI? Or was tragedy produced by various strains of guilt and innocence intertwined in each of them?

  THE ASHCROFT SWEEPS

  On September 15, 2001, a car carrying three Middle Eastern men was stopped in Manhattan for a routine traffic violation. Their appearance, their accents, and their names invited a closer look by jittery police officers, who searched the vehicle and found plans to a public school. All three were arrested. Their employer, who was contacted the next day, confirmed that the men were merely construction workers who needed the plans for a job. Nevertheless, they were classified by the FBI as bei
ng “of interest to the September 11 investigation” and were held by the Immigration and Naturalization Service as part of a broad, two-month sweep that caught about 1,200 people in its net.

  They were thrown into a legal limbo devoid of due process. Held for immigration violations, they were presumed guilty of terrorism, abused in prison, and released or deported only after being cleared by the FBI and the CIA, which took months in many cases. Not a single “terrorist” was found among them—no surprise, given the randomness of the arrests.

  Driven by President Bush’s admonition “Don’t let this happen again,” Attorney General John Ashcroft sent immigration and FBI agents scurrying to check every tip, no matter how absurd or venal, about foreigners (particularly Muslims) possibly living in the country illegally, possibly plotting, possibly harboring attitudes toward America that were less than adoring. FBI offices were flooded with calls and e-mails from landlords, neighbors, spurned lovers, ex-spouses, disgruntled co-workers, and others to the point where some FBI agents felt queasy taking them seriously.

  An Arab shop clerk told a customer that he’d like to learn to fly, and he was locked up. A grocery store that seemed to be operated by “numerous Middle East men … too many people to run a small store,” as a caller suggested, was raided, and a worker there was jailed. When one person was targeted, all those with him who lacked valid visas were detained as people “of interest.”

  Because the government wanted to recruit informants and deny terrorists a mosaic of its “investigation,” the prisoners’ names were not released, and their eventual deportation hearings were held in secret, where the men were condemned by classified “evidence.” This prompted Judge Damon Keith of the Sixth Circuit to write a line that instantly became a catchphrase: “Democracies die behind closed doors.” He led a unanimous panel in ordering the hearings opened. In reality, there was no investigation, only a scattered array of capricious arrests that added up to nothing. But the Supreme Court later accepted the fiction, bought the government’s rationalization, and let stand two other appeals court rulings endorsing the secrecy of the detentions and hearings.41

  Many were held without access to counsel. A phone call to a lawyer was counted as complete when an answering machine was reached. When a guard would ask, “Are you OK?” and an inmate replied, “Yes,” that was taken to mean that the prisoner did not want to contact an attorney. Lawyers arriving at jails were told wrongly that their clients were not there. In the hard prison culture, all presumption of innocence disappeared, and “correction officers” exacted their own punishments. They “slammed and bounced detainees into the walls … twisted and bent detainees’ arms, hands, wrists, and fingers,” according to a report by the Justice Department’s inspector general. Prison guards called them “bin Laden Junior,” “fucking Muslims,” and other epithets accompanied by threats: “You’re never going to leave here”; “You’re going to die here just like the people in the World Trade Center died”; “Don’t ask any questions, otherwise you will be dead.”

  During a medical examination, a physician employed by the Justice Department’s Bureau of Prisons told an inmate, “If I was in charge, I would execute every one of you … because of the crimes you all did,” which, of course, they had not done. The doctor’s “cruel and unprofessional” treatment of other prisoners, the inspector general reported, earned “a verbal reprimand.”42

  What happened in county jails and federal prisons, for which eleven federal guards were later indicted, was something of a preview of the abuses later committed in Guantánamo. Islam was mocked, and copies of the Koran were thrown on the floor, according to Mohammed Maddy and Ashraf Ibrahim, Egyptians who wrote separate, detailed accounts after they were deported. During most of their six to seven months in jail, they had been in the federal Metropolitan Detention Center in Brooklyn.

  Both men described being smashed repeatedly face-first against walls while shackled, told they would never see their families again, and subjected to a range of insults and deprivations. Guards stepped on their ankle chains while they walked, making them trip, then dragged them by clothes or handcuffs. Maddy’s glasses were taken away when he was arrested, yet he was made to sign blurry legal documents, and when he was finally able to contact his wife, a new pair she sent was returned to her twice by prison authorities. Ibrahim said he was also forced to “sign a document that I did not read.”

  Little indignities loomed large. In Maddy’s cell, he reported, no cups were allowed except during meals, and the water was often cut off, so he could drink only from the shower—often a cold shower, with no hot water. Minimal toilet paper was provided—just two feet a day—and the air-conditioning was turned on full blast in the winter. “We was freezen,” he wrote. The bad food came in child-sized portions, and he lost forty pounds. During four months he got no haircut, he said, and had no way to clip his nails except to bite them.

  Ibrahim made similar complaints: no soap, no toilet paper, no toothbrush or toothpaste, inadequate food, lights left on twenty-four hours a day, and guards “shouting and banging the cells doors all the time and for no reason just to prevent us from sleeping.… There were no radios, television, newspapers, or even information about anything. The officers refused even to tell us the time!!!” he wrote.

  Unlike the tortures inflicted by the CIA, these measures seemed motivated by sadism more than intelligence gathering. Periodic interrogation by FBI and immigration agents struck the prisoners as pointless. “They asked me very silly questions,” Ibrahim reported, “such as, ‘Do you go to any mosque in the U.S.?’ ‘Do you pray regularly?’ ‘Why aren’t you married?’ ” At one point, “they threatened me that if I did not give them some information about 9/11, I would be detained in jail for a long time!!” But he did not have any information to give, which the FBI eventually came to realize. After having been arrested in September 2001, he was sent to Egypt in March 2002, with a final humiliation: “I was strip searched and given a very bad and large shirt and an xxx large jeans without a belt and a pair of boots size 13 without shoe laces! … In Cairo, the Egyptian state security investigation officials kept me in custody in one of the worst jails for 4 days. Now I am seeing a psychiatric regularly.”

  His New York landlord told him that the FBI had taken everything from his apartment, including cash, clothes, watches, cameras, books, documents, and credit cards. The agency—or the agents—kept the loot. He was unable to get anything back.

  In an eight-page handwritten statement from Cairo, Maddy characterized the Metropolitan Detention Center: “It is another country inside U.S.A., no roules, no laws.” During his ten years in America, he had come to love the United States as “my second nation,” and he concluded with this lament: “No go back to U.S.A., they killed my life, no job.”

  The criminal justice system provided retribution, but the civil side of the system did not. The indicted guards at the Metropolitan Detention Center were convicted or pleaded guilty. Among them were Captain Salvatore Lopresti, who got fifty-one months for conspiring to violate the civil rights of an inmate, obstructing justice, and making three false statements regarding the beating of a prisoner, and Lieutenant Elizabeth Torres, sentenced to fifteen months for obstructing justice by covering up a beating.43 That was the result of a criminal prosecution.

  Civil action failed, however, and in so doing left a damaging legal legacy far broader and more durable than the abuse of detainees. When deported prisoners sued Ashcroft, FBI director Robert Mueller, and various prison personnel for violating their rights, they were thwarted by a 5–4 Supreme Court finding that they could not even proceed without providing more detail in advance showing that the high officials had intentionally engaged in ethnic or racial discrimination. This is a hard point to prove without getting inside people’s minds—or without seeing memos and other concealed evidence that could be pried loose in the process of discovery after a lawsuit is filed. Until this case, Ashcroft v. Iqbal, traditional rules allowed civil suits to go to di
scovery unless laced with obviously absurd and fanciful claims. But under the ruling now, judges are licensed to dismiss suits at the outset, before any fact-finding, if they don’t find the claim “plausible.” How they would know without giving the plaintiffs opportunity to force evidence into the sunlight the justices did not explain. Instead, they set up a new Catch-22 under which the courts won’t allow you to gather the facts unless you already have them in hand. Depending on various judges’ predilections, this could be a boon for government and corporate secrecy, whose protectors on the bench moved quickly in hundreds of cases to slam the courthouse door in the face of aggrieved detainees, employees, and others confronting powerful institutions.44

  In the Ashcroft Sweeps, the government used administrative measures outside the courts to conduct a campaign of preventive detention, although the authorities didn’t really know whom they were detaining or what they were preventing. They would have done even more under a proposal floated when senior officials gathered in a secure room at FBI headquarters on September 11. “What was originally contemplated was far more draconian than what happened,” recalled James Ziglar, head of the Immigration and Naturalization Service. They discussed doing “some big sweeps” in “any community where there was a large concentration of Arabs, to basically do a door-to-door,” he said. “We ended up doing something sort of semi-that, but it wasn’t quite that.”

  Ziglar thought of himself as “quite a Bill-of-Rights kind of guy,” a Goldwater Republican with a libertarian streak. “I was the only guy in the room who raised his hand and said, ‘Wait a minute. We’ve got something called the Fourth Amendment here. We don’t do sweeps in this country. We had a revolution over warrantless searches.’ ” The comment may have broken the momentum, but the reaction from some was hostile. “You’ve got to understand, this was September 11, and the level of hysteria was huge,” he said. “Once you raise an idea, anybody who says that’s a stupid idea is somehow unpatriotic or soft on terrorism.” Yet “some people after the fact came to me and said, ‘I’m really glad you did that, ’cause it calmed down the situation.’ ”45