Transcript

229:

Secret Government
Transcript

Originally aired 01.10.2003

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Prologue.

Ira Glass

John Podesta used to see a lot of classified documents in his old job as White House Chief of Staff under President Clinton.

John Podesta

You go from the range of, you slap your head and say, holy cow, I can't believe we know this, and you absolutely know why it's classified, all the way down the stream to-- I've seen, literally, newspaper reports classified. AP wire copy classified.

Ira Glass

Wait, wait. Literally, the report from the paper?

John Podesta

Yeah. Yeah, that's then been classified and forwarded on to the president, for example.

Ira Glass

Even back then, during an administration that declassified 800 million documents, that tried to release any government document possible under the Freedom of Information Act, even back then a lot of stuff that stayed secret just did not really need to be secret. It's just the way government works. And so, under the current administration, the Bush administration, there's probably also stuff that does not really need to be classified.

In putting together today's radio program, I've tried to compile a list of all the new things the government is keeping secret. And there are so many of them, I do not even know if I've got them all. Are you ready? There is the vice president in a lawsuit over whether he has to release the names of people that he met with in forming his energy policy. There's the executive order that lets former presidents keep more of their old documents secret. There's the official Bush administration policy not to release any document under the Freedom of Information Act if there is any legal way to avoid it. Committee chairmen in Congress-- these are Republicans, mind you, Republicans-- are complaining publicly that they cannot get information out of the administration, out of the agencies that they are supposed to be overseeing.

And all this stuff is before you get the stuff that has to do with the War on Terror. Add that, and you've got the federal government pulling information from its own websites and removing its documents from public libraries. There are the secret trials and deportations of suspected terrorists. To people being held without any charges at all in military brigs, as many as 400 people being held as material witnesses because the government wants to get information out of them. The new kinds of wiretaps that have been authorized. There is the Total Information Awareness Program, in its pilot stage, which will be able to monitor all of our credit card and bank transactions, our phone calls, our email, our medical records. The part of government that is secret is growing.

And so we thought today we would step back, take a look at exactly how far it's gone. From WBEZ Chicago, it's This American Life, distributed by Public Radio International. Today on our program, The Secret Government, A Beginner's Guide. Our program today in three acts. Act One is about disappeared persons, American citizens held without charges. Act Two is about people thrown out of the country after secret trials. Act Three is about a secret court made of conservative judges that got so upset about what the current Justice Department was doing in secret that for the first time in the court's history it broke its veil of secrecy and went public. Stay with us.

Act One. Until The End Of The War.

Ira Glass

Act One, Until the End of the War. There are at least two American citizens being held without charges, unable to see lawyers, in military jails in the United States. There could actually be more. Jack Hitt tried to find out everything he could about one of these guys, who you may remember from the news a while back, Jose Padilla.

Jack Hitt

Here's the way most of us remember it, if we remember it at all. A Monday morning last June, all the major networks broke from their programming to go to a live satellite broadcast by Attorney General John Ashcroft, from Moscow of all places. Here's CNN.

Reporter

Ethan, I'm sorry. I need to interrupt you there. We do have some breaking news and we need to go to Moscow. This is Attorney General John Ashcroft talking about a terrorist capture.

John Ashcroft

--United States in his capacity as commander-in-chief determined that Abdullah al-Mujahir, born Jose Padilla, is an enemy combatant. In apprehending al-Mujahir as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb.

Jack Hitt

And then, an hour after that press conference, the administration launched a series of other press conferences. Right away, they were backing off Ashcroft's spine-tingling sense of alarm. Paul Wolfowitz from the Pentagon said it probably wasn't a plot, just some, quote, "loose talk." And here's what FBI director Robert Mueller had to say about it.

Robert Mueller

It had not gone, as far as we know, much past the discussion stage. But there were substantial discussions undertaken.

Jack Hitt

The timing of all this was curious, because they'd actually nabbed Padilla a month before, but chose to announce it on a day when Washington was reeling over FBI whistleblower Colleen Rowley. It pushed her off the front pages. You remember Rowley. She was testifying in Congress about all the FBI bungling and miscommunication that made us miss the clues pointing to 9/11. More than a few people noticed that the Padilla announcement applied a certain emphasis on bureaucratic efficiency and inter-agency cooperation.

John Ashcroft

Because of the close cooperation among the FBI, the CIA, the Defense Department, and other federal agencies--

Robert Mueller

--was a result of the close cooperative work of FBI agents and CIA agents here and--

Paul Wolfowitz

--demonstrates the successful sharing of information and close cooperation among US government agencies that will be key to winning the war against terrorism.

Jack Hitt

The administration was furious with anyone who noticed these coincidences. Here's a White House press conference just after the Padilla story broke.

Reporter

How do you now respond to critics who are trying to draw a link, fair or unfair, between the announcement of that arrest to the intelligence [UNINTELLIGIBLE]?

Ari Fleischer

Look, these very few people who want to make such an outlandish political accusation represent the most cynical among the most partisan. And they're not to be taken seriously.

Jack Hitt

In the days afterwards, we learned a little of Padilla's life. His rap sheet as a gang member in Chicago. His involvement in a murder-- it was a gun charge in Florida. He worked at a Fort Lauderdale Taco Bell, where he converted to Islam. Later he traveled to Pakistan and Afghanistan. There, according to two Al-Qaeda informants, he met with terrorist leaders and learned about dirty bombs.

In one court filing, the government admitted that their prime source on Padilla, Al-Qaeda leader Abu Zubaydah, had frequently fooled them with false information. The other informant, the government said, had recanted part of his testimony. With that hovering in the air, the story disappeared, and with it Padilla-- literally. The government did something to him it has never done to anyone. They transferred him from a civilian jail to a military brig outside Charleston, South Carolina. They refused to let him see a lawyer and they never charged him with anything. His own mother can't visit him. He will stay in his cell with the lights burning 24 hours a day, according to Ari Fleischer, quote, "for the duration of the war."

This was achieved by redefining Padilla with a new term that everyone heard for the first time that Monday morning.

Larry Thompson

He is being detained under the laws of war as an enemy combatant.

Jack Hitt

Enemy combatant. The rules of war talk about "unlawful combatants," but that term applies to soldiers caught on the field of battle. Enemy combatants can be American citizens seized in America and held without a lawyer or charges, or without much explanation from the government itself. If you try to get the Justice Department to talk about Padilla, here's what they say.

Woman

We're not doing any on-the-record interviews in connection with Padilla.

Jack Hitt

They wouldn't do an off-the-record interview about him either, and on the rare occasions when officials have had to talk about it in public, here's the sort of thing you get. This question was asked at the joint press conference, of Larry Thompson from the Justice Department.

Larry Thompson

Beverly?

Reporter

Does he have legal representation at the moment?

Larry Thompson

He was being held under the authority of a federal judge. And he had legal representation in connection with that, yes.

Reporter

Does he now? Does he now?

Reporter

Larry, how far did they get--

Jack Hitt

Does he now, she's asking. Does he have legal representation now? Thompson ignores her, takes one more question, and then ends the press conference. The answer to the question, of course, is no. Padilla lost his lawyer only a few hours before this press conference, when he was redefined as an enemy combatant.

A word now about that lawyer. For the month prior to the Ashcroft press conference, Padilla had been held in jail as a possible material witness for some kind of crime. We don't know what it was. For the indigent, though, there's a round robin of good working lawyers who donate their time. For Padilla, the wheel spun and turned up a defense lawyer who hangs her shingle across the street from the courthouse in Jersey City, New Jersey. Located just above a bail bondsman office, it's a two-woman shop-- a secretary named Angela and a lawyer, Donna Newman.

Newman works the standard criminal defense beat-- fraud, money laundering, mobsters, drugs. Not the sort of lawyer who usually ends up suing the Attorney General, Secretary of Defense, and the President of the United States.

Donna Newman

I don't think so. I don't know. They'd be surprised. I did well in law school, a good student, but I certainly would not have been the one they would have chosen. I'm certainly not a radical. And it's a joke to think I am, because that's how unradical I am. I'm very conservative in my lifestyle, in my children. I'm older. I have grown children. I didn't even picket in the '60s.

Jack Hitt

When Newman first got the case, it was like dozens she'd seen. File a bunch of papers contesting the warrant, seeking bail-- routine stuff. And the judge sets a hearing date, in this case June 11. June 11 was also the day John Ashcroft broke into regular television programming around 10:00 AM with his Moscow conference about Padilla. Not everybody was in front of a TV to hear, people like Padilla's lawyer, Donna Newman.

Donna Newman

I'm in my car and I'm going to court. I hadn't had the radio on. And I receive a call on my cellphone from the assistant United States attorney. And he advised me that my client was taken by the military to a naval brig. I thought he was kidding. Needless to say, if you're hearing this and you hadn't listened to the radio, you would also think that this was a joke. Ashcroft-- I mean, giving this statement, it's just like, what are you talking about?

Jack Hitt

To explain what happens next, I have to talk about something so basic, a principle that's so ingrained in what this country is, that most of us don't even know it exists-- habeas corpus. We've all heard that phrase, although let's be honest, we don't quite know what it means.

Actually, it's the most fundamental routine of all Western law. It's 700 years old. Its meaning in Latin, "you hold the body," sounds like a challenge, and it is. At every criminal arrest, it orders the government to show the body-- in other words, show me the guy you're holding, so I can see he's OK, and second, tell us the charge against him. Known as "the great writ of liberty," its suspension was, along with unfair taxation, the primary reason for the American Revolution.

The founding fathers enshrined habeas in Article I of our Constitution, declaring it could be suspended only during, quote, "rebellion or invasion." When a government starts tossing out things as foundational as habeas, the proceedings quickly grow strange. Soon after the Ashcroft press conference, Newman went to court to find out what happened to her client. She was told she no longer had a client, because her client no longer had a lawyer. But Newman wouldn't hear it. She kept on filing motions as if the old routines of the law were still in place. That said, she was in uncharted terrain, and the problems she encountered were often surreal.

Donna Newman

For habeas to be filed, the petitioner-- in this case, Mr. Padilla-- has to sign it. They have the audacity to complain that he can't sign it. So it's not a valid petition because he can't sign it. Well, of course, you're the one who took him away. So that's mind-boggling, that they make that argument.

They said, in the beginning of one of their briefs, that we did not dispute his enemy combatant status or the facts leading up to the government's declaration. Well, that's another Catch-22. How can I dispute it? Can I meet with my client? So you're saying I concede this because you've made it so that I can't meet with him.

And I wonder, who is writing the brief? Aren't they embarrassed to write that? I mean, I couldn't write that. I would be going, what is the judge going think of me by my writing that? Because it's so clear. Well, of course she can't hand in an affidavit. He's not around, remember? You're the one who took him away.

Jack Hitt

The government did cite legal precedent for its right to hold Padilla, specifically two cases.

Larry Thompson

There's clear Supreme Court and circuit court authority for such a detention.

Reporter

What is the Supreme Court precedent?

Larry Thompson

It's a 1942 case, Ex parte Quirin. And there's a 9th Circuit case, and I forgot the name of it. It's In re Territo. It's a 1946 case.

Jack Hitt

Let's talk about those cases. The Territo case involved a man who was born an American citizen but who grew up in Italy. He was captured on the battlefield in World War II, fighting on the side of fascist Italy. Unlike Padilla, he was charged, given a lawyer and a trial. The Quirin case involved eight Nazis, including one American citizen, who actually landed on Long Island in 1942 with plans to blow up US factories. They were all given lawyers and had trials, even though the war was on.

The only question in both cases was what kind of proceeding, in a civilian court or a military tribunal? There was no question that they'd get lawyers and trials.

Michael Chertoff

We do have Mr. Padilla, or Mr. al-Mujahir as he called himself more recently, in military custody.

Jack Hitt

Even though the Justice Department won't speak on the record to journalists, there have been rare occasions where certain officials have tried to explain what has happened. Here's assistant Attorney General Michael Chertoff at a public forum at the New York University law school. He says the question raised by the Padilla case is this one.

Michael Chertoff

--the issue of, what do you do when you apprehend people in the field of battle? Let me go back to World War II. We captured a lot of Germans and Japanese and Italians in the battlefield in the course of the war. Those people didn't get lawyers. Do we really think, in the battlefield, that we should lawyer up everybody who's captured?

Jack Hitt

Chertoff takes for granted the assumption that since planes flew into buildings on 9/11, everywhere in America is now a battlefield. And on some level, we all know there's some truth in this. But still, there are distinctions. No one is talking about providing lawyers to the Al-Qaeda terrorists in Guantanamo. They're prisoners of war captured in Afghanistan. Padilla is an American citizen seized in Chicago. And then there's that phrase he used, "lawyer up," as if this involves someone who spilled hot coffee on her lap at McDonald's, and not the suspension of habeas corpus that dates back 700 years and is one of the core principles of our Constitution.

America was founded on the proposition that when we get in trouble, we get lawyered up. And part of what's so confusing about Padilla is that so many other defendants have been lawyered up. Remember John Walker Lindh, the so-called American Taliban? He was actually captured on the field of battle in Afghanistan. Now that's an enemy combatant. He got lawyered up. The Buffalo Six, those young Muslims who slipped into Afghanistan and then came back to America? Arrested and lawyered up. How about Zacarias Moussaoui? He's not even an American. He's a French Moroccan, and was allegedly the 20th guy on September 11. Lawyered up. In the end, it may be that the real reason Padilla has been refused a lawyer is not the alarming evidence against him, but the opposite.

Donna Newman

They have less evidence against Mr. Padilla, so they can't bring charges. See, they don't have probable cause to bring a charge. They certainly couldn't prove a charge. So their solution, which is really frightening, is if we can't prove a case, we simply get rid of the individual. We simply lock them up. And that just turns our criminal justice system upside-down.

Jack Hitt

Warning. Restricted area. Keep out. Authorized personnel only. Man, this thing is huge.

Over the Christmas holiday, I was in Charleston, South Carolina, visiting my mom. One morning, my nephew and I drove over to the Navy facility where the government's holding Padilla. I got turned away, of course, told that the closest I could get was the fence, so I pulled over. Behind the barbed wire was, strangely, nothing more than acres and acres of low-country pine forest, the kind I grew up in. Deep in it, somewhere, was the brig and Jose Padilla.

Just before this, the New York Judge who was hearing Donna Newman's motions, Michael Mukasey, issued his ruling. It was a Solomonic one. He said Padilla could finally meet with his lawyer to challenge his status as an enemy combatant. But he also said President Bush had the power to declare American citizens on home soil to be enemy combatants. Finally, he also said the court should oversee it all.

The tone of Mukasey's opinion is nervous. He's nervous. At one point he opines about the kind of case, quote, "a judge is unqualified for but must decide." And if you read all those old opinions, like the World War II cases, all the judges write in the same nervous tone. They don't toss off habeas very easily. Supreme Court Justice Felix Frankfurter, who supported the Quirin decision when it came down, groaned later, "It's not a happy precedent."

In comparison, the Bush administration is not agonizing about suspending this basic right, at least not publicly. While in the Persian Gulf, Secretary of Defense Donald Rumsfeld complained about folks who are concerned with Padilla's right to see a lawyer. Quote, "Our normal procedure is that if somebody does something unlawful, that the first thing we want to do is apprehend them, then try them in a court, and then punish them. In this case, that is not our first interest. Our interest, really, in this case is not law enforcement. It's not punishment. Our interest at the moment is to try to find out everything he knows."

Maybe Donald Rumsfeld is right, that the War on Terror is so important that we do need to lock people up without charges for the duration of the war just to find out what they know. Maybe it's true that the new battlefield is not just in Afghanistan but extends everywhere and anywhere on our own soil. Maybe it's true that even though in every previous war the courts have permitted some kind of trial, this war is different.

And maybe it's true that we have to trust the government when it says, the secret evidence against these Americans can't be revealed in a court of law. Maybe we need to be rethinking our basic Constitutional rights. But if so, it's not to be done lightly, not to be done off the record. We should, as a people, talk about all this and agree on it first.

This week, The Wall Street Journal reported that the government is preparing to declare some more American citizens here at home to be enemy combatants and remove them to military bases. So start talking.

Ira Glass

Jack Hitt in New Haven.

One quick footnote to that story, before you start talking. Late this week, the government went to the judge in Jose Padilla's case and asked the judge to consider changing his recent decision about Padilla, specifically his decision to let Donna Newman meet and confer with Padilla as lawyer and client. The reason the government gives for this? They're interrogating him, they say. And the government says that if he sees a lawyer and has any hope of getting out any time soon, he won't give any information in the interrogation.

OK. You have one minute to start talking. Coming up, a sneaky way to get some answers about secret deportations. That's in one Chicago minute from Chicago Public Radio and Public Radio International, when our program continues.

Act Two. Secret Trials And Secret Deportations.

Ira Glass

It's This American Life. I'm Ira Glass. Each week on our program, of course, we choose some theme, and bring you a variety of different kinds of stories on that theme. Today's show, The Secret Government, a beginner's guide to all the new secrecy in our country. We've arrived at Act Two of our program. Act Two, Secret Trials and Secret Deportations.

In the current war, the War on Terror, the government has been rounding up foreigners, checking their immigration status, and then sometimes deporting them. David Kestenbaum tried to find out everything that can be found out about who they are and what happened to them once they were arrested and put on trial in secret.

David Kestenbaum

In the months after September 11, the US government rounded up over 700 immigrants, 700 people, and refused to talk about them, even in court. Civil rights groups sued to get the names, and as part of the filings, here's how far things have gone. The government submitted a 118-page list of people who had been detained, their names, one by one, inked out with a black marker.

Woman

[DIAL TONE] Good morning. Public Affairs.

David Kestenbaum

Today, the Department of Justice will only talk round numbers. You're about to hear just about everything the government has to say on the subject. I talked with Jorge Martinez, a spokesperson for the DOJ.

David Kestenbaum

Can you tell me how many people were detained on immigration charges in the sweep after September 11?

Jorge Martinez

765.

David Kestenbaum

How many people ended up being deported?

Jorge Martinez

478 people have been deported to date.

David Kestenbaum

Do you have any sense for how many of them had ties to terrorism?

Jorge Martinez

We don't, and because it is classified and sensitive information, I am precluded by our regulations from talking about it.

David Kestenbaum

What if I have the names of some of the people? Can you then discuss their cases with me?

Jorge Martinez

No, unfortunately, I can't, again, because it is part of an ongoing investigation. And I am precluded from talking about it.

David Kestenbaum

And there are six people still in custody?

Jorge Martinez

Yes.

David Kestenbaum

Can you tell me anything about them?

Jorge Martinez

No, unfortunately, I can't.

David Kestenbaum

What is the government hiding? If you want to know who was deported, why they were fingered in the investigation, how long they were held, did they get a fair trial, did they get to make a phone call, you have to try somewhere besides Washington, D.C.

Man

Good evening, ladies and gentlemen, and a warm welcome on board our Swiss flight bound for Karachi.

David Kestenbaum

Swissair Flight 246 to Pakistan. Coach class, unwatchable movie starring Robin Williams. Our mission: to meet some of the 400 people who got kicked out and find out what happened. Let me say up front that the people you're going to hear were tracked down by the American Civil Liberties Union, which thinks the government behaved very badly here. Emily Whitfield from the ACLU is also on the plane. She's sitting up in business class.

When the feds wouldn't release the names, the ACLU did something clever. It did an end-run around our government and wrote letters to foreign embassies requesting the names of deportees, letters to the countries where the people had been sent back to.

Emily Whitfield

United Arab Emirates, Pakistan, India, et cetera. And we heard back from some of them, just a polite "thanks for getting in touch." But the Pakistan consulate called us back. And they said, oh, yeah, we have a list. And we said, do you, now? Can we see it? And they said, sure. And that was extraordinary, because another country was giving us something our own government would not give to us.

David Kestenbaum

The plane takes a weird turn to fly around Iraq, and lands in Karachi, Pakistan. This is where Daniel Pearl was kidnapped and decapitated. Bin Laden himself may be hiding in Pakistan. I think about this, getting off the plane. To find out what the Justice Department is hiding, I've gone somewhere the State Department warns not to. Non-emergency personnel at the embassy here have been ordered to leave.

Over the course of a week, I visit a handful of people who have been deported from the United States. Here's the deal. The Pakistani embassy's list had over 100 people on it. The ACLU, with the help of a Pakistani civil rights group, tracked down about 35 of those. 19 were willing to talk to the press. Of these, the ACLU people set up interviews with five whose cases they thought were compelling. And yes, in some instances, the US government seems to have behaved in ways I think many Americans would think was pretty unfair. But I have to say, other times things didn't seem so bad, even in these hand-picked cases. But you can judge for yourself. Also there was one nagging question every deportee had. I'll get to that later.

Man

[SPEAKING URDU]

David Kestenbaum

The cab driver on the first day has a long white beard and says he was a big fan of the Taliban, but he seems perfectly nice. He stops to ask directions a few times and pulls into a dusty street where a man named Ansar Mahmood lives. Until recently, Ansar and his family lived 7,000 miles west of here in New Jersey.

Ansar's story begins like this. One morning, three weeks after the attacks on the World Trade Center, his doorbell rang. Ansar looked out the window and saw 25 or 30 FBI agents. He says he knew they were FBI because they had FBI on their jackets just like on TV. The FBI arrested him. His wife, Uzma, says that for 25 days, she had no idea at all where he was.

Uzma

He just vanished, like that. They didn't give me any hint, where is he and where they take him and when he will come back, and this and that. He was just gone away from our life.

David Kestenbaum

What about the kids?

Uzma

Yes, they were very upset. They were very aggressive at the time, after some times that they were out of control. I cannot control them after four, five months. They wanted to kill everybody. They hit me twice.

David Kestenbaum

Here's what Ansar says happened to him. When the FBI came by, the agents asked if he knew anything about Osama Bin Laden. They also asked about Ansar's brother-in-law, who they suspected was involved in credit card fraud. Ansar says the FBI eventually took him into custody for a different reason, because he had overstayed his visa. This, he admits, is true. He was working in the country illegally, using a fake Social Security card.

They put him in a jail near the Brooklyn-Queens Expressway. He says he was told not to ask any questions or he would be killed, and he was placed in solitary confinement for four months.

Ansar Mahmood

The size of the cell is six feet wide and about 12 feet long. What I can see from the window-- I can see the sky. I can see the traffic. I can see the BQE. Or sometimes, they transfer us to a different cell-- I can see the Statue of Liberty too. In cells 19 to 25, you can see the Statue of Liberty from there.

David Kestenbaum

Those are sort of the good rooms.

Ansar Mahmood

Yeah, they are good rooms. Because at least you can see the sea. You can see the river and you can see the Statue of Liberty in front of you, which is the symbol of liberty of the United States.

David Kestenbaum

After a month, jail personnel painted over the window, possibly for security reasons, possibly to avoid quotes like the one you just heard. Ansar says the cell became like a grave. Seven months after he was taken into custody, the INS took him out of jail and deported him to Pakistan.

A word of caution here. If you feel like you've heard stories like Ansar's before, you may have actually heard his. His family has become a poster child for groups who oppose the government's secret deportations.

Uzer

I've been on ABC. I've been on CNN, BBC, PBS, UPN-9.

David Kestenbaum

Ansar's son, Uzer, who's 14.

Uzer

We've been on an Italian TV show. We've been in a Spanish newspaper. All the newspapers you can imagine, we've been in them.

David Kestenbaum

So does that make you maybe think that your father's case was unusual?

Uzer

Yes, it was unusual.

David Kestenbaum

His dad's case was unusual. Ansar was detained for seven months. The average time seems to be about two months. And the fact that his family didn't know where he was for weeks-- that seems to be very unusual.

Uzer's dad did get his time before a judge. He was convicted of a felony for using an altered Social Security card and deported for overstaying his visa. It's worth mentioning that these are pretty common offenses. By the government's own estimates, there are over a quarter million people in the United States who have overstayed their visas and have been told to leave. So what brought 25 FBI agents to Ansar's door and not others? That's a mystery. But still, an overstayed visa is a deportable offense. As for all the secrecy, Uzer thinks it's because the government is embarrassed. It doesn't want to be seen picking on families like his.

Uzer

The government don't want to show its face. It doesn't want to get screamed at. It doesn't want to say sorry. Like people, when they hit somebody, somebody's going to say, say sorry to that guy. And they say, oh, I'm sorry. Even if they hate the person. They say, I'm sorry. Why can't you just say sorry? That's my question to the Bush administration right now. If they listen to this, I want to ask them to say sorry and give my house back and give my life back. It's not hard for them. They have a lot of money.

David Kestenbaum

Uzer says life in Pakistan sucks. Neither he nor his brothers really speak the language. Kids at school have thrown rocks at them, calling them Americans, though of course they weren't real Americans, American citizens. Uzer and his brothers played basketball when they lived in New Jersey. I ask if they need a new ball. I can send them one. Uzer looks at me and says, man, what we need is a court.

This is the part of the story where you would typically hear the US government's side of things, the government's take on what happened to Ansar and why they were investigating him in the first place. But of course, it refuses to discuss any of these cases. As a lousy second choice, I've brought along a tape recording of someone from the Department of Justice who spoke at a debate a while back. I'll play some of it for you in a little bit.

The next deportee on the list is Huram Alta. I meet him at his parents' house in Islamabad. We sit on a couch and look over some family photos.

Huram Alta

There's a few photos they sent me after-- that's my wife. That's my middle daughter and this is my son, the youngest one.

David Kestenbaum

They're all sitting in a toy race car at a Chuck E. Cheese restaurant. While Huram and I talk, a guy named Wassim walks in. He's big and adorable. You could put him on a teen pinup poster. Wassim and Huram met in jail. Wassim is also on the ACLU list of appealing, mediagenic people kicked out of the United States. And he also has an ironic looking-out-the-jail-window story.

Wassim

And especially, I remember those little ducks. I saw six or seven little-- ducklings, right? Ducklings, and their mother duck. And I was like, aha, they are better than me right now.

David Kestenbaum

But here's the thing. Talking to these guys, it seems like what they went through is no worse than the sorts of hassles immigrants in America have gone through with the INS for decades. Their stories don't explain the secrecy. In some ways, the two were treated well. Their families knew where they were. They got to make phone calls. Huram says the people in jail weren't mean or abusive. In the end, he was detained for two months, Wassim for one.

And did they get a fair hearing? Here, things get a little fuzzy. The Justice Department will tell you how all detainees are given lists of lawyers who will take their cases pro bono. And they all have access to law libraries and courts. And that's all true, except in practice, both men-- and a lot of these guys-- never got to see a judge. Huram and Wassim are what the INS calls absconders, people who according to its records had been sent letters ordering them to leave the country. The thing is, Wassim and Huram say they never got those letters.

Wassim's lawyer later told me that these are the sort of cases that can go either way. To prevent deportation, a lawyer has to convince an immigration judge to issue a stay and reopen the case. Wassim had some things in his favor. He's married to an American citizen and was working toward a green card, but since September 11, judges seem to be increasingly strict.

I think it's fair to summarize the current US policy like this: if we can deport you, we will, just to be safe. Another guy I met in Pakistan says the INS told him his papers weren't in order and give him a choice-- go to jail, maybe for a year, and fight it, or get on a plane right now. He chose the plane.

Huram pulls out another picture of his family. He and his wife have been lying to his kids, telling them that he's away working, that he had to go overseas.

Huram Alta

For the first two months when I was in jail, we never told our kids that's where I was. But this thing is going to go in a bad impression on our kids. Now they know I'm in Pakistan, and they ask me, Papa, when are you coming home? Papa, when are you coming home? And I told them I'll be coming home soon.

David Kestenbaum

Huram has been keeping up the lie for eight months now.

I get Wassim and Huram to pose for a picture, ask them to make their best sad-immigrant, please-let-me-back-in-the-United-States faces. They try, but can't stop laughing.

When I try to imagine the government's point of view, I think about the plane that carried these guys back to Pakistan. Maybe most of the seats were filled with people like them. But what if, on the last seat in the back row, there was a terrorist. Was it worth it? After all, three of the September 11 hijackers were in this country illegally.

On one of the last days, I go to meet Asma Jahangir, who works with the Pakistan Commission on Human Rights in the United Nations. It was some of her people who helped track down the deportees. She's a small woman who doesn't joke around much. This is a country where two women a day are killed, some burned alive, for dishonoring their families. Where it's illegal to speak ill of Islam. Where posters have been put up in phone booths, calling for Asma's death. 1/5 of Asma's employees are security guards, all carry big guns. I pull out a second tape recorder and play her part of the debate I've brought.

This is Michael Chertoff, an assistant Attorney General of the United States. You heard him briefly in Jack Hitt's story. He makes a pretty powerful argument. She stares at the tape while it plays.

Michael Chertoff

There's the old expression in the context of the traditional criminal law that it's better that 10 guilty people go free than one innocent person should be imprisoned. And that's simply maybe an aphoristic way of making the point that we want to have the risk of error fall in favor of the one innocent person, even if it means that by mistake 10 guilty people don't get punished. But what do you do when the question is different? Is it worth having 1,000 innocent people killed to avoid having one innocent person suffer?

Suppose you have Mohamed Atta, and you have some information about him. And you're sitting there and you decide, well, we don't have proof beyond a reasonable doubt yet, so we're going to let him out on bail until we collect it. And then he drives a plane into the World Trade Center. Would you really be willing to say it is worth the lives of 1,000 innocent people to keep one person from being detained for three or four months?

David Kestenbaum

Asma taps a pack of Benson and Hedges on her desk. Mr. Chertoff, I can send you a tape, but here's her rebuttal.

Asma Jahangir

Your assistant Attorney General is very much sounding like our assistant Attorney Generals. He is giving an emotional example, which is not necessarily correct. It's like our Attorney General telling us all the time, we don't know who did it. We just have an idea that it is this place, so you round up 300 people and detain them and don't tell anybody about it. And we find that obnoxious. And I'm surprised that that kind of logic is being given to the people in the US and they are taking it.

David Kestenbaum

Then Asma says something that catches me off-guard. She says this bothers her for another reason. When the US starts having secret trials and secret deportations, when human rights erode in the United States, it becomes harder for her to make the case for human rights here. If democracies don't respect human rights, she says, why should dictatorships?

The one central question all the deportees had while I was in Pakistan, the one thing that drove everyone crazy, was the question, why investigate me? Why was Wassim pulled over at 7:00 AM? Why did 25 FBI agents appear at Ansar's door? Most of the deportees felt the US government had singled them out, but this doesn't seem to be quite true. When I got back, I spoke with Muzaffar Chishti, director of the Immigration Policy Institute at NYU's law school. His group has been scouring the newspapers, talking to lawyers, to gather data on as many of these secret detentions as possible. They've now got information on some 400 people, about half the number picked up.

David Kestenbaum

You know what a lot of them want to know? A lot of them want to know, why me? Why was I rounded up? Do you have an answer for them? I mean, you've looked at a bunch of cases. Do you know how it was the INS got onto most of these people?

Muzaffar Chishti

One would have to say that the bulk of these people were arrested on the basis of tips.

David Kestenbaum

Wow.

Muzaffar Chishti

Which is, frankly, very unfortunate. I think what that shows is that people are called on people. Frequently neighbors called on neighbors. Frequently people who had business disputes with people called on people. People who had competitive business situations with people called on people.

David Kestenbaum

So it wasn't like the police were running around, and the INS were running around, picking up anyone who looked like they might be a Muslim.

Muzaffar Chishti

I can't say that was the dominant story. I think the dominant story was people were calling in with tips.

David Kestenbaum

So it was us.

Muzaffar Chishti

I think it frequently was us. And that obviously is another unfortunate tale about how we behave in a crisis and in an emergency like this.

David Kestenbaum

Why do you think the government was so secretive about this, if what they were doing is not something maybe they're terribly embarrassed about?

Muzaffar Chishti

I really don't know. I mean, I think we--

David Kestenbaum

I have to say that I felt like what they were hiding was not as bad as it might have been.

Muzaffar Chishti

Exactly, which is all the more reason to say that there was probably no reason to hide, except government agencies' arrogance that they don't have to reveal things.

David Kestenbaum

Here's what I've been thinking. Secrecy is like a shot of Novocaine. It keeps you from having to feel anything. It blurs the chain of responsibility. We all want to believe our government is doing a fair job, that it's balancing the needs of security and fairness. We want to believe that someone from another country who's determined enough can make a life here, that those words engraved by the Statue of Liberty actually mean something. The secrecy saves us from having to think about it. It keeps the names and stories inked out.

Ira Glass

David Kestenbaum is filling in as a producer on our show for a few months.

Act Three. Secret Wiretaps From A Secret Court.

Ira Glass

Act Three, Secret Wiretaps From a Secret Court. We've had a secret court here in the United States since way before 9/11. It's called a FISA court. FISA stands for Foreign Intelligence Surveillance Act. It's a whole court system designed to do one thing: authorize wiretaps on people who may be foreign spies or foreign agents of some sort. And for 24 years since the court's creation, it has never said no to the government on any wiretap request, as best as anyone can figure out.

Then this past year, the court finally did say no, for the first time ever possibly, with an opinion that said that Attorney General John Ashcroft and the Bush Justice Department were going way too far. Note that the judges who said this were all conservatives, appointed to their positions by Chief Justice Rehnquist of the Supreme Court. The judges said that the Justice Department was trying to squeak its way around rules on wiretapping citizens that have been in place for decades now. They cited scores of abuses all done in the name of the War on Terror. The Justice Department, as you might expect, disagreed. A legal fight broke out. Blue Chevigny tells the whole story.

Blue Chevigny

Perhaps the most remarkable thing about this fight is that for the first time, it gives us a glimpse inside the FISA court. Up until now, we've known next to nothing. We didn't know where the secret court met. We didn't know when. We didn't know which government agencies were responding to wiretaps, or what they did with the information they got from the tapes. We didn't know who was getting tapped or exactly why. We did know, because it was part of the original law creating the court, that there were seven judges on the court at any time. They served a seven-year term and they were regular district court judges from around the country.

This is Ann Beeson, a lawyer at the ACLU and one of the people who's tried over the years to figure out what's going on inside FISA.

Ann Beeson

Our understanding is that one judge would randomly get assigned to review an application for a surveillance warrant. And that judge would just look at the warrant-- I don't know whether he changed his robe, probably not-- and decide whether or not it was justified, under the standards in the FISA law.

Blue Chevigny

Some quick background. The FISA statute itself was a compromise that came out of the last big battle between privacy and national security in the 1960s and '70s. In the aftermath of Watergate and other scandals, a Senate investigation known as the Church Committee found that intelligence agents were routinely spying on and wiretapping people they shouldn't be-- like, famously, Martin Luther King, Jr.-- all in the name of national security.

Congress set up the FISA court to make sure that the people that were spied on were actually agents of a foreign power, but in a compromise with the Justice Department, the court was allowed to meet in secret. And also, the standard to get a wiretap through FISA was much lower than in a regular court. Specifically, the Fourth Amendment did not apply. You didn't need to show probable cause that a crime was being committed before you could do FISA surveillance.

The USA PATRIOT Act, which was passed quickly and mostly without opposition through Congress after September 11, changed everything. It altered the language in the FISA act by just one word, a familiar little word we use every day-- the. Before, FISA had stated that foreign intelligence gathering had to be the purpose of the surveillance. And now, it only had to be a significant purpose of it. What this wording change meant varied depending on who you talked to, but a lot of people feared that it gave the government too much spying power.

Bobby Scott

Because of the the USA PATRIOT Act, they can listen in. If they really want you, they can just wiretap you without any probable cause that a crime has been committed.

Blue Chevigny

This is Congressman Bobby Scott, a Democrat from Virginia. He sits on the House Judiciary Committee and opposed the passage of the USA PATRIOT Act.

Bobby Scott

Now, I had an amendment, when it was being considered, that simply said that when the target stops using the phone, you have to stop listening. So if somebody else is using the phone, you can't just listen in on that conversation. My amendment was defeated, which means that if they know you're volunteering in the Democratic National Headquarters, they can drop a bug there and keep listening. But law-abiding citizens don't expect their meetings to be infiltrated. They don't expect their phone calls to be wiretapped. The fact that the amendment was defeated should alert people that there's more to this than fighting terrorism. Because the bill in the USA PATRIOT Act is not limited to terrorism.

Blue Chevigny

Congressman Scott and others were afraid that the Justice Department would use the FISA court to get these easier secret FISA wiretaps and use them to spy on people who aren't terrorists or spies. But because none of their proceedings were public, nobody was sure how the FISA court was reading the word change. In August, a few members of Congress, most vocally Senator Patrick Leahy of Vermont, Chairman of the Senate's Committee on the Judiciary, decided to try to find out. He and other members of Congress wrote a letter to the FISA court, asking them for their take on the word change. And they got a reply. Ann Beeson of the ACLU tells the story.

Ann Beeson

The court said, oh, we're so glad you asked. It turns out that we issued a very important decision on precisely this point, of what the meaning of the PATRIOT Act is back in May. And now we've decided, now that you've asked us, that we should probably made that public, because it is really quite an important decision. And in fact, we denied the government's request for very broad new powers based on new PATRIOT Act language.

Blue Chevigny

What the senators had uncovered was the biggest courtroom drama you never heard of. It went like this. Attorney General John Ashcroft had interpreted the USA PATRIOT Act language as broadly as possible. That is, he said that now, under the new wording, the FISA court should authorize wiretaps in cases where criminal investigation was the main purpose, not national security. But the FISA court judges disagreed with his interpretation of the PATRIOT Act, and for the first time in history issued an opinion which said no.

Ann Beeson

And the opinion itself is a remarkable document. Never before has there been a public opinion of the FISA court, ever. And the opinion documents a whole series of events leading up to it, which nobody knew anything about. They said, we think it's quite relevant to recite a history of abuses even before the government got new powers. In other words, even before it got this new power, it was doing things improperly. And we have documented that, and we have reprimanded some FBI officers, and in some cases even refused to let an FBI officer ever appear before the FISA court again because they were so distressed at this abuse of the power.

Blue Chevigny

The court cites 75 cases of abuse of the system. And to understand those abuses, remember that the original purpose of the FISA court was to prevent scenarios like this one. Let's say a criminal investigator thinks a guy is involved in drug activity, and he wants to do a wiretap on the guy, but he doesn't have enough evidence under the fourth amendment to do it through the criminal courts. So the criminal division guy calls up a friend, somebody in intelligence-- in the FBI for example-- and says, this guy is up to something and he might have ties to a foreign country anyway. Do me a favor and go to the FISA court and get them to authorize a wiretap.

To guard against that scenario, for 20 years the FISA court had put up what they called a wall. Regular criminal investigators and prosecutors couldn't go to foreign intelligence investigators and tell them who to tap. The 75 cases of abuse that the FISA court cited in its ruling were all instances where government officials had tried to breach that wall.

So the FISA court ruled against the Justice Department, and on the same day in August that they made their ruling public, they revealed something else. John Ashcroft and the Justice Department had not accepted the FISA court's ruling. There was an appeals process in the FISA statute, written in, in case of a major disagreement like this. But remember, there had never been a major disagreement before. The FISA court had never turned down a Justice Department request before. And so, for the first time ever, the FISA appeals court met. It's made up of three judges also convening in secret. Here's Ann Beeson.

Ann Beeson

Again, a remarkable situation. Because here we have a decision that's on appeal to a secret court that, whether it does so directly or not, clearly involves the constitutionality of a major federal statute, giving the government new powers to spy on people all over the United States. And there's no one representing the side of the Constitution, because the only actual party in the proceeding and in the case is the federal government. For that reason, of course, the ACLU and a number of other groups immediately got together and knew we had to file some kind of brief.

Blue Chevigny

Sounds simple enough. But consider for a second, this is a court whose operations are completely secret as a matter of national security, a court that no outside lawyer has ever filed a brief with.

Ann Beeson

Normally, in any other case, there are actually rules and very specific deadlines for when you can file this kind of a brief. The court's address and the clerk's name and everything is right there on the internet. In this case, nobody knows where it physically exists, even. Nobody knew. And therefore we had to go take this radical step of actually calling one of the judges directly, which is normally not even really proper, for lawyers to talk to judges directly.

So we called. And it wasn't myself, actually, it was another colleague here at the ACLU. And he said, we're the ACLU and we know you're one of these FISA judges, and we want to file a brief. What do we do? And the judge said, I can't talk to you about this at all. He was sympathetic to the fact that we needed to communicate with someone. But he couldn't do it himself, and so he basically just got off the phone.

About a week into this process, we learn that the court had set a secret hearing to hear the government's argument in the case. And we learned of it-- I think I remember it being on a Monday.

Blue Chevigny

The hearing was done, and the only oral argument the court heard was from the government. No one on the other side. Then the day after the secret hearing, Ann got a call from a woman identifying herself as a designated clerk of the FISA court, telling her the case wasn't over, giving her permission to submit the ACLU brief, and giving her an address for the court in a Justice Department building. Ann sent in their brief, and the court sent back an official letter, an order, saying they'd accepted it. She fished the order out of a stack of papers on her desk and showed it to me.

Ann Beeson

So here's the order. And off to the left, it says, Number 02-001, showing that this is the first case that the FISA court of review has ever heard before. And I had this image of this court having never really issued public orders before, and of the judges directing their secretary to create a new template for the United States Foreign Intelligence Surveillance Court of Review, for the first time ever, because they'd never issued an order.

And it bears some resemblance to normal court orders. Normally, at the very top of a court order it would say the name of the court, and have their address and phone number and contact information. This order just says at the top, United States Foreign Intelligence Surveillance Court of Review.

Blue Chevigny

She pointed to the top of the page.

Ann Beeson

And I was really amused, because whoever produced this order put the name of the court in this very gothic font. So it just looks like a parody of a secret court to me.

Blue Chevigny

Two months went by. Then in November, on the 18th, the Court of Appeals issued its decision. It overturned the lower court and sided with the Justice Department's interpretation of the USA PATRIOT Act. The ACLU had, in essence, lost the case.

Ann Beeson

The court at least engaged in an analysis about whether or not the law was unconstitutional. But they did so in really quite a cursory way. And they only dealt really superficially with the argument that we made in our brief.

The most remarkable thing about the decision is, after they engage in this superficial analysis of how, oh, it's really not a problem that this doesn't meet the requirements of the fourth amendment, the decision actually says at the very end, that they realize the question is really hard and that it's probably true that FISA doesn't meet the standards of the fourth amendment. But it comes close enough, the court says. And it's just remarkable, this notion that it's OK for the government to just be close enough to the Constitution, but they don't actually have to comply with it.

Blue Chevigny

Do you have that right in front of you?

Ann Beeson

Yeah, I do.

Blue Chevigny

Can you actually read it?

Ann Beeson

Yeah. It says, "We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close." And that's all they say.

John Ashcroft

The court of review's action revolutionizes our ability to investigate terrorists and prosecute terrorist acts.

Blue Chevigny

Attorney General John Ashcroft, of course, sees things differently. This is from a press conference on the day of the appeals court decision.

John Ashcroft

This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward.

Blue Chevigny

In his press conference, he didn't say much about the Constitutional questions raised by the decision, though he was asked. We wanted to hear more of the Justice Department's reasoning, so we decided to give them a call.

Woman

Obviously, you want to do this to put on the radio, right?

Blue Chevigny

Well, yeah.

Woman

OK. Let me check to see if I might--

Blue Chevigny

This proved a lot more difficult than you'd think.

Woman

--and I'm sorry, I should have done this for you before, but I might be better off--

Blue Chevigny

It took two months of continuous phone calls. Finally an interview was set up with David Kris, a lawyer who worked on the Justice Department's brief before the FISA appeals court. We asked about the possibility that criminal investigators will start to label everyday Americans as threats to national security just to get a wiretap. And here's how he explained that it shouldn't be a big concern.

David Kris

This appeal does not change who may be a target of FISA searches or surveillance. That is the same now as it was before, and if you are not a foreign power or an agent of a foreign power, you may not be targeted under FISA.

Blue Chevigny

David Kris made this point several times. He slowed down when he said it. What has changed, he said, is something different, that the intelligence side and the criminal side can share information about cases and potential targets more freely. In other words, the wall is down. Which is fine if you trust the government will do the right thing with this power, or dangerous if you don't.

The ACLU has tried to figure out if there's any way to appeal the decision, to the Supreme Court, for example. It's a constitutional question at stake, after all But they can only bring a case if they find someone who thinks they were unfairly wiretapped under FISA, and there's not much chance of that, since virtually everyone tapped under FISA will never know they were.

Ira Glass

Blue Chevigny, from New York City.

Credits.

Ira Glass

Well, our program was produced today by Alex Blumberg and myself with Diane Cook, Wendy Dorr, Dave Kestenbaum, and Starlee Kine. Elizabeth Meister runs our website. Production help from Todd Bachmann and Jane Golombisky.

[ACKNOWLEDGEMENTS]

Music help from consigliere Sarah Vowell. If you'd like to buy a cassette of this or any of our programs, visit our website, where you can get tapes or you can also listen to our programs for free, www.thisamericanlife.org.

This American Life is distributed by Public Radio International. Funding for our show comes from the listeners of WBEZ Chicago. WBEZ management oversight by Torey Malatia, who keeps calling me at 3:00 in the morning to say:

Ann Beeson

We're the ACLU and we know you're one of these FISA judges, and we want to file a brief. What do we do?

Ira Glass

I'm Ira Glass, back next week with more stories of This American Life.

Announcer

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