New Jersey Law Journal
May 20, 2003
Individuals in the U.S. with links to terrorism were deported to their home countries even though investigators believed they posed a danger to national security and could be prosecuted, according to a Department of Justice brief.
The policy, which affected "many cases" after Sept. 11, was disclosed in a footnote to the brief, filed in opposition to U.S. Supreme Court certification, in North Jersey Media Group v. Ashcroft, 02-1289.
Under the policy, terrorism charges would be "withheld" in instances where prosecution might show other terrorists how the government’s investigation worked. "[T]he Department of Justice determined that the best course of action to protect national security was to remove potentially dangerous individuals from the country and ensure they cannot return," the footnote says in the April 25 brief. "Such charges would have been withheld, for example, if their assertion could have compromised ongoing investigations or sensitive intelligence matters."
The brief does not say how many people were allowed to leave the country while prosecutors sat on charges.
The Justice Department has long maintained that many of the hundreds of Muslims arrested after Sept. 11 were linked to the terrorist incidents. Those links have previously turned out to be relatively minor, such as having a passing acquaintance with the hijackers, worshiping at the same mosque as al-Qaida members or unwittingly providing the terrorists with false identification.
The footnote, therefore, appears to admit that the government knowingly allowed actual terrorists, or their supporters, to leave the country rather than face prosecution, military tribunal or detention as "enemy combatants."
The authors of the brief are Solicitor General Theodore Olson, Assistant Attorney General Robert McCallum and Justice Department attorneys Robert Loeb and Sharon Swingle. Their office referred calls to Justice Department media spokespeople. Swingle declined comment and said her colleagues would as well. Messages left for them were not returned.
Justice Department spokesman Charles Miller said the footnote was based on a Dec. 10, 2002, fact sheet published by the department. The fact sheet, "An Update on Detentions Conducted by the Justice Department Following 9-11," received little attention at the time it was published, coming as it did more than a year after the bulk of the mass arrests.
It mentions in abstract terms that some of the 766 Muslims detained could have faced terrorism prosecutions in addition to immigration charges. The Supreme Court brief goes a step further, however, by calling the terror-linked detainees "potentially dangerous" and describing the decision not to prosecute them in concrete, past-tense terms.
The Justice Department’s position has always been that the integrity of the probe could only be maintained by a cloak of secrecy over its operations. Those operations included hundreds of arrests, lengthy detentions and secret hearings in U.S. immigration courts, most of which occurred in Newark, N.J.
Disclosing the workings of the probe would give al-Qaida a mosaic of clues about the Justice Department’s conduct of its war on terror, argued Dale Watson, an executive assistant director of the FBI, in a statement filed in one of many cases spawned by the "special-interest" mass deportation process, Detroit Free Press v. Department of Justice, No. 02-70339.
The new brief raises issues about those priorities, as it appears to give the integrity of the investigation at least as high a priority as the purpose of the probe — arresting terrorists.
It also leaves unanswered questions about the relative success or failure of the probe: In how many cases did this scenario occur? Were the dangerous deportees handed over to foreign security forces in their homelands or allowed to go free? Were they monitored by U.S. foreign intelligence services after their return? Have any of them since rejoined terrorist groups? Is the United States able to track these people’s activities?
Miller declined to comment beyond the Dec. 10 fact sheet, citing the ongoing nature of the case. The Supreme Court has a conference on Thursday in which it will decide whether to hear the matter.
Lee Gelernt, the senior staff counsel for the American Civil Liberties Union, which filed the petition for writ of certiorari that prompted the government’s brief, also declined comment, for substantially the same reason. Gelernt’s petition seeks access for two newspaper organizations, the New Jersey Law Journal and the North Jersey Media News Group, to the secret immigration hearings of the detainees. The 3rd U.S. Circuit Court of Appeals found no First Amendment right of access to the hearings.
Veterans of foreign intelligence and national security have mixed feelings about the policy. It makes sense, they say, but it also carries grave risks because of its dependency on a number of variables outside the control of the United States.
Robert McNamara Jr., general counsel to the Central Intelligence Agency until November 2001, says he is not surprised at the existence of the policy. Avoiding prosecutions in order to protect intelligence sources is a common way of dealing with such cases, he says. Although there is a risk in sending a bad actor home, detainees tend not to be given a free pass. "There’s got to be some level of certainty that the individual is not going to be just cut loose in the country of return or, on the other hand, turned into some kind of martyr," he says.
That risk, however, is very real, according to Wayne Madsen, a former National Security Administration analyst during the Reagan administration. "They go home, they get lost in the general population, they evade the local intelligence agencies or they go to Saudi Arabia, where the local agencies may be sympathizers and look the other way when they disappear," he says.
On the other hand, that might be a good thing. "Maybe it’s because they want to turn them and use them as double agents," Madsen says. "If you keep them in jail here, they’re of no further intelligence use."
And there are factors beyond the mere calculation of whether a deportee is more useful on the inside or the outside. Charges can be withheld for political reasons, too. "Sometimes they get a lot of pressure from the home governments of these individuals to return them," says Earl Tomlinson, a 25-year CIA veteran who has served clandestinely in Pakistan and Afghanistan. He is now a senior director at Citigate Global Intelligence & Security in Dallas.
"For diplomatic considerations, it may be worth our interests to send them back and the receiving government would make a ‘parole’ promise and say, ‘We’ll see to it they don’t get back into terrorism,’" says Tomlinson. That scenario occurred with hundreds of Pakistani detainees who were deported en masse in June 2002 in a series of secret nighttime airlifts on airliners specially chartered out of Louisiana.
Deportation may also be a function of stretched budgets, according to Stewart Baker, former general counsel to the National Security Agency and now a partner at Steptoe & Johnson in Washington. "In the immediate aftermath of Sept. 11, they may have thought, ‘Look, we just don’t have the resources to follow everyone around or find other sleeper cells.’ In a lot of cases you’re deporting them to countries that have no more enthusiasm for al-Qaida than we do," he says. "You can let the local governments watch them very carefully."
There are not many special interest hearings left, the solicitor general’s brief indicates in its accounting of the fate of the Muslims arrested after the attacks. There were 766 arrested under the special interest rubric, 611 of whom had hearings that were closed to the public, witnesses or the detainee’s family. About 505 of the men have been deported. There are four detainees left who still carry the special interest label, and only one of those has a likelihood of future closed hearings.
Whether the Justice Department’s policy was a successful one is something that may never be known. "The answer will be when one of them shows up in a terrorist operation or a jihad group," says Tomlinson. "They’ll go back to terrorism. It’s like going back to drinking."