The War Comes Back Home

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THE ENFORCER: The Attorney General insists the government's new powers against terror are applied with care

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Three weeks ago, Ashcroft made an even more sweeping decision in a case involving David Joseph, 18, a Haitian who arrived in the U.S. illegally last October. He and 215 other undocumented immigrants from Haiti and the Dominican Republic scrambled ashore in Biscayne Bay, Fla. On arrival, Joseph petitioned for asylum as a political refugee. An immigration judge okayed his request, and an appeals board supported the judge, ruling that Joseph was neither a danger to the community nor a flight risk. But Ashcroft, who has the final say in all immigration cases, stepped in to demand that Joseph be kept in prison until his immigration status is settled, a process that can take months or years.

Ashcroft did not argue that Joseph was in any way linked to terrorism. Instead, Ashcroft insisted that granting Joseph bond "would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland-security resources." In other words, patrolling the U.S. coastline to keep out illegal aliens diverts Coast Guard and immigration officials from other duties. Ashcroft also argued that Haiti was a route through which Pakistanis and Palestinians might try to enter the U.S. illegally.

--WHO DESERVES A LAWYER? Time and again, people rounded up after 9/11 have not been permitted to talk to lawyers. Civil libertarians are especially uneasy about the legal no man's land at the U.S. naval base at Guantanamo Bay, Cuba, where more than 600 captives from the war in Afghanistan are still being held and have not been accorded prisoner-of-war status. The government justifies this on the grounds that it needs to question them, but most of the interrogations are over. And it recently emerged that among the detainees are three boys from ages 13 to 15. The rules governing military tribunals allow the detainees at Guantanamo to have a free military lawyer or a civilian lawyer as long as the government doesn't have to pay for representation. But civilian lawyers willing to work for the detainees for free complain that the Pentagon has not allowed them to contact potential clients.

Detainees in the U.S. who were rounded up shortly after 9/11 on immigration charges also have no right to court-appointed counsel, but they are allowed to hire their own. In their case, one problem has been that some of the detainees were transferred from place to place, making representation difficult. "We had attorneys trying to track their clients all over the country as they were moved around," said Marshall Fitz of the American Immigration Lawyers Association. "Access to attorneys was extremely limited."

Government prosecutors say they are worried that lawyers could become intermediaries who help communicate messages from their clients to other terrorists. Yale University law professor Akhil Amar says concern is understandable, "but the government should come up with its own honors list of lawyers who could meet security clearances." The military model, by which lawyers are picked from a slate of officers, "could be easily adapted to all these situations," Amar says.

--WHAT IF THE ACCUSER IS HIDDEN? In the vast majority of terrorism cases, judges have sided with the government against the objections of prisoners or their counsel. But there are some notable exceptions, including one case that could undercut some of the government's central legal aims. In March two men, Irfan Kamran, 32, and Sajjad Nasser, 28, were held in prison, charged with harboring an illegal immigrant, while the FBI tried to determine whether they had links to al-Qaeda. Kamran, a naturalized American citizen, and Nasser, a Pakistani, are cousins who had been living legally in the U.S. for years but returned occasionally to their native country. The government contends that in the summer of 2001 Nasser attended a training camp in Pakistan run by the Army of Muhammad, a group the U.S. believes is linked to al-Qaeda. Nasser's lawyer admits that he spent several days there but says he left after he realized it was too strenuous. He also insists that the Army of Muhammad is not aimed at the U.S. but is a militia devoted to ousting India from Kashmir, territory that Pakistan also claims.

As for Kamran, prosecutors say he told a "confidential source" that he planned to join al-Qaeda and fight the U.S. Kamran's lawyer denies that, saying the FBI claim rests upon a witness it refuses to identify. On April 8, Federal Judge Lewis T. Babcock ordered Kamran's and Nasser's release, ruling that the government had failed to show that they were dangerous. At that point, prosecutors successfully moved to detain Nasser again by hitting him with another immigration charge.

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