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uly 3/4, 2004
Pre-emptive War, Pre-emptive Arrests
Bush's Police State and Independence Day
By ELAINE CASSEL
As a criminal defense attorney, I am often in the unenviable position
of telling a first-time offender that the rights they thought they had
under the Constitution don't mean what they think they do. Recently, a
well-educated, professional woman engaged me to defend her in charges
of obstruction of justice. Her crime? She had tried to talk to a
police officer (big mistake, there) about the circumstances that led
to her friend, about to be arrested, walking on highway (absolutely
nothing wrong with that, but that is beside the point).
She was arrested for obstruction of justice, but not until backup
officers and dogs had been called. Her companion, who had exited her
car over an argument they were having, was "arrested" for jaywalking.
He was not "jaywalking," and, if he were, he would have been issued a
"summons," not arrested and cuffed and taken to jail.
My client was arrested, cuffed, taken to jail, finger-printed,
charged, released on bail, and faces trial. Depending on the judge and
prosecutor, they may be little I can do. For technically, she violated
the law. She "interfered" with an officer in the line of duty--which,
now, the Supreme Court has recently told us, includes stopping any of
us and inquiring about our identity, even if we are doing nothing
wrong. Even though the charges against her friend were summarily
dismissed by the judge, the charge against her stands. For the case
against her does not depend on the valid arrest of her friend--but on
the fact that she attempted, so the officer has charged, to impede him
while he was making an arrest. Under the law, that arrest can have
been illegal, and my client still found guilty.
The point of this story is, that any one of you may be at the wrong
end of the criminal justice system even though you did nothing
"wrong." The same can be said in the "war on terror." Even though you
are not a "terrorist," you may be detained, imprisoned, charged,
arrested, and tried as one.
That's why you better care about the Ashcroft and Bush's agenda. It
has trickled down to your local and state police, many of whom are
recipients of federal dollars to look for "suspicious" people and
"detain" them until the feds are called.
The New York Times today, July 4, has what I think is an extraordinary
editorial. I share it with you today, Independence Day, with the hope
that you will make yourselves aware of how, under the Bush regime, we
are far less free than we were when he took office. Supreme Court
decisions notwithstanding (see my article on this on this page), you
have much more to fear from the Bush doctrine of preemptive and
unlawful arrests than you think.
About Independence
People too often get the impression that the only people who use the
nation's civil liberties protections are lawbreakers who were not
quite guilty of the exact felony they were charged with. Perhaps we
should thank the Bush administration for providing so many situations
that demonstrate how an unfettered law enforcement system, even one
pursuing worthy ends, can destroy the lives of the innocent out of
hubris or carelessness.
There was, for instance, Purna Raj Bajracharya, who was videotaping
the sights of New York City for his family back in Nepal when he
inadvertently included an office of the Federal Bureau of
Investigation. He was taken into custody, where officials found he had
overstayed his tourist visa, a violation punishable by deportation.
Instead, Mr. Bajracharya wound up in solitary confinement in a federal
detention center for three months, weeping constantly, in a 6-by-9
cell where the lights were never turned off. As a recent article by
Nina Bernstein in The Times recounted, Mr. Bajracharya, who speaks
little English, might have been in there much longer if an <F.B.I>.
agent had not finally taken it upon himself to summon legal help.
Mr. Bajracharya ran afoul of a Justice Department ruling after the
2001 terrorist attacks that ordered immigration judges to hold secret
hearings in closed courtrooms for immigration cases of "special
interest." The subjects of these hearings could be kept in custody
until the <F.B.I>. made sure they were not terrorists. That rule might
have seemed prudent after the horror of 9/11. But since it is almost
always impossible to prove a negative, any decision to let a person
once suspected of terrorism free constitutes at least a political
risk. If officials have no particular prod for action, they will
generally prefer to play it safe and do nothing. The unfortunate
Nepalese was finally released only because of James Wynne, the
<F.B.I>. agent who originally sent him to detention. Mr. Wynne's
investigation quickly cleared Mr. Bajracharya of suspicion, but no one
approved the paperwork necessary to get him out of prison. Eventually,
Mr. Wynne called Legal Aid, which otherwise would have had no way of
knowing he was even in custody.
When law enforcement officials make mistakes, there is an
all-too-human temptation to press on rather than admit an error.
Brandon Mayfield, a lawyer in Oregon, was arrested in connection with
the bombing of commuter trains in Madrid, even though he had never
been to Spain. Spanish authorities had taken a fingerprint from a
plastic bag discovered at the scene and <F.B.I>. officials thought it
matched Mr. Mayfield's prints, which were among the many from
discharged soldiers in the enormous federal database.
The American investigators must have felt they hit pay dirt when they
discovered that Mr. Mayfield was a convert to Islam, that his wife had
been born in Egypt and that he had once represented a terrorism
defendant in a child custody case. The fact that there was no
indication he had been out of the country in a decade did not sway
them. Neither did the fact that Spanish authorities were telling them
that the fingerprints did not actually match. Mr. Mayfield was held
for two weeks, even though the only other connections between him and
terrorism were things like the fact, as the <F.B.I>. pointed out, that
his law firm advertised in a "Muslim yellow page directory" whose
publisher had once had a business relationship with Osama bin Laden's
former personal secretary.
When the Spaniards linked the fingerprint to an Algerian man in May,
Mr. Mayfield's case was dismissed and the <F.B.I>. did apologize. But
the ordeal could have dragged on much longer if the investigation had
not involved another nation, whose police were not invested in the
idea that the Oregon lawyer was the culprit. And it could have been
endless if Mr. Mayfield had been an undocumented worker being held in
post-9/11 secrecy, or if he had been picked up in Afghanistan as a
suspected Taliban fighter and held incommunicado at Guantanamo.
For more than two years now, about 600 me
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She was arrested for obstruction of justice, but not until backup
officers and dogs had been called.
So, for example, if I rob a bank, don't get arrested during the actual hold
up, I shoud not be arrested later when the police have the resources to
place me under arrest?
The point of this story is, that any one of you may be at the wrong
end of the criminal justice system even though you did nothing
"wrong."
The point is that if you interfere with a police offer you might get
arrested.
There was, for instance, Purna Raj Bajracharya, who was videotaping
the sights of New York City for his family back in Nepal when he
inadvertently included an office of the Federal Bureau of
Investigation. He was taken into custody, where officials found he had
overstayed his tourist visa, a violation punishable by deportation.
Instead, Mr. Bajracharya wound up in solitary confinement in a federal
detention center for three months, weeping constantly, in a 6-by-9
cell where the lights were never turned off.
I take this to mean you are warning people who have overstayed their tourist
visa to get it renewed or return to their country of origin?
When law enforcement officials make mistakes, there is an
all-too-human temptation to press on rather than admit an error.
Brandon Mayfield, a lawyer in Oregon, was arrested in connection with
the bombing of commuter trains in Madrid, even though he had never
been to Spain. Spanish authorities had taken a fingerprint from a
plastic bag discovered at the scene and <F.B.I>. officials thought it
matched Mr. Mayfield's prints, which were among the many from
discharged soldiers in the enormous federal database.
Well, never having been to Spain has nothing to do with finding ones
fingerprints on a plastic bag. He was released after the investigation
proved he had no involvement in the bombing. Lucky we didn't behead him
before the investigation ended.
Anyone who needs another demonstration of how difficult it is for law
enforcement authorities to acknowledge error can always look to the
case of Capt. James Yee. A Muslim convert, Captain Yee was a chaplain
at Guantanamo until he was taken into custody on suspicion of
espionage. He was held in solitary confinement for nearly three
months, during which time authorities realized that the case against
him was nonexistent. Rather than simply let him go, they charged him
with mishandling classified material. The charges seemed to have much
less to do with security concerns than official face-saving. And to
repay Captain Yee for its self-inflicted embarrassment, the military
went at great lengths in court to prove he was having an affair with a
female officer. While that had nothing to do with security either, it
did humiliate the defendant in public, as well as his wife and child,
who were present at the trial.
The military has different rules and regulations that civilians. I
understand your not concerned he was mishandling classified material, which
one could interpreted as suspicion of espionage. Adultery is a punishable
offense in the military.
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