X. Haste, Incompetence, Prejudice: The Arrest of Witnesses Who Have No Information

The number of men arrested and incarcerated as material witnesses who had no connection to, much less knowledge about, terrorists or terrorist activities is significant. Based on government admissions of mistaken arrests, Congressional inquiries, and our review of material witness cases, as many as one-third of the witnesses had no relevant information regarding any criminal activity. [258] In these cases, the information suggesting that the witness had any information relating to an investigation was erroneous. The number may be substantially greater, but cannot be ascertained until more records are made public. Forty-two witnesses never faced any charges, and only seven faced any terrorism-related charges.

In a significant proportion of cases, witnesses have had information, but it was far too minimal, tangential, or circumstantial to provide the basis for arrest and incarceration. There may have been good reasons for the Justice Department to want to talk to some of these men, such as those who had prior contacts with hijackers, but absent any evidence of wrongdoing, there was no good reason for arresting them and forcing them to languish in jail. If the government had been willing to proceed more carefully, if it had taken more seriously the liberty interests of the men, few of the seventy would have been considered genuine material witnesses, and even fewer would have been deemed flight risks. What has accounted for the appalling record of arresting utterly innocent people and locking them up for months?

The federal government understandably felt great urgency after the September 11 attacks, particularly in light of the limited information the FBI had about al-Qaeda at the time, and this apparently induced federal investigators and attorneys to lower their professional standards. Yet months and years after September 11, when federal agents have assessed how to proceed with Muslim men of Middle Eastern and South Asian descent who had attracted their notice for one reason or another, they have rushed to judgment, and failed to acquire and develop solid evidence. In case after case, federal investigators and attorneys have given undue weight to unverified tips, made poor inferences from the information they had, and leapt to dubious conclusions.

One cannot help but ask whether ignorance and prejudice about Muslims in the United States and men of Middle Eastern or South Asian descent has helped color the analysis of the government in these cases. The witnesses' religion and national origin has taken on excessive and unwarranted significance, as agents have become suspicious of the most innocuous of activities. Many of the cases suggest the government has paid scant heed to either the constitutional or the international prohibitions on discrimination on the basis of religion, national origin, or ethnicity. Whether it was possessing a box cutter, taking pictures of a bridge, or playing soccer early in the morning, the most innocent conduct has aroused the government's suspicions when undertaken by people who fit a certain religious and ethnic profile.

Innocent people have also became the hapless victims of the government's zeal because neither the Justice Department nor the courts have honored the letter and spirit of the material witness rules that protect everyone's right to freedom. Disregarding the requirement that arrests and incarceration not be used if there were some other way to secure the testimony has meant the unnecessary arrests and detentions for scores of men. Denying witnesses access to information and keeping the proceedings buried in secrecy has also meant the Justice Department's mistakes have not been rectified as quickly as they might otherwise have been. Many of the cases already described in this report suggest the extent of the government's errors. Additional ones include the following:

Abdullah Tuwalah and Salman al Mohammedi

In 2003, the Department of Justice was conducting a grand jury investigation into the alleged criminal activity of Ali Saleh Ali Almari, a Saudi Arabian national who was a student at MarymountCollege.Federal agents suspected Almari of assisting terrorist plots as an operative, although they only charged him with running a college test-taking scam-selling test answers to college students. [259] In connection with the grand jury investigation, the Department of Justice arrested a number of material witnesses, including two other Saudi Arabian and Muslim students at Marymount, Abdullah Tuwalah and Salman al-Mohammedi. According to the lawyers for the two students, the FBI's main argument for arresting the two witnesses was that they knew Almari through the Muslim society at school. Fred Sinclair, who represented al-Mohammedi, told HRW/ACLU:

[I]t was guilt by association. He knew someone who knew someone If anything, my guys may have partied with [Almari] The government's basis was weak. These people go to school together. Al Mohammedi was social with him through their Arab groups. If he was not an Arab friend of al-Mohammedi, I don't think the government would have any suspicion. [260]

Denise Sabagh, who represented Tuwalah, was similarly dismissive of the government's case:

It was pretty vague-it was more tenuous than al-Mohammadi. They said that he knew some person that knew some person that may have known anything. The affidavit also said they found some flight manuals and magazines with Osama bin Laden's picture. But it was so tenuous. The magazine was Time or something from the Saudi Embassy and [Tuwalah] had come to the United States originally to attend flight school. [261]

Neither Tuwalah nor al-Mohammadi was ever brought before the grand jury, much less ever charged with any crime. After months of detention, during which they were repeatedly questioned by the FBI, they were released. [262]

Ahmed Abou El-Khier

On September 14, 2001, the government arrested Ahmed Abou El-Khier after a clerk at a motel in College Park, Maryland called the FBI authorities to report that he looked suspicious. [263] (After the September 11 attacks, many Middle Eastern and South Asian men have become the victims of public suspicions based on no more than their appearance.) [264] Although El-Khier was a paying guest at the motel,the Justice Department initially charged him with one count of trespass. [265] The government subsequently changed the grounds for detention of El-Khier to that of a material witness on the basis that he had "a relationship with one of the hijackers." [266] As El-Khier languished in jail, the government could not find evidence that he had any connection to the September 11 investigation. [267] El-Khier never testified before a grand jury. El-Khier believed he was arrested because "I was Egyptian and Arabic and Muslim-this is the reason they hold me." [268]

Details are scant as to why El-Khier, twenty-eight, remained under suspicion. His lawyer believes the government had little more than the initial tip that he was suspicious and a polygraph test that erroneously suggested that he lied about knowing two of the September 11 hijackers-allegations that never proved to have any basis. There was apparently no proof other than a shared Egyptian nationality connecting El-Khier to the hijackers. All documents pertaining to his status as a material witness are under seal. Law-enforcement authorities declined to comment on the case.

A federal judge in New York dismissed El-Khier's material witness warrant on October 11, 2001. [269]

Ismael Selim Elbarasse

Maryland state police stopped the family car of U.S. citizen Ismael Selim Elbarasse, his wife, and three children as they were driving back to their home in Virginia after a three-day family vacation in Delaware. The police pulled over the Elbarasse family after they thought they saw Nadia Elbarasse videotaping the Chesapeake BayBridge from the moving car. [270] Dua'a Elbarasse, twenty, daughter of Ismael Selim Elbarasse, explained that her mother was simply trying to zoom in on boats in the bay, which the tapes later confirmed: "We had taped our whole vacation, and we thought the bay looked really nice off the bridge." [271] Suspecting that the Elbarasses were filming the BayBridge as a target, [272] the state police ordered the family members out of their car and searched them. The police, joined by the FBI, took the Elbarasses to the stationfor seven hours of questioning.

In doing a computer search on Elbarasse, the FBI discovered that he had a connection to an ongoing criminal trial of men in Chicago charged with providing material support to Hamas. [273] That evening, a federal judge in Illinois issued a material witness warrant for Elbarasse while he was held in a Maryland jail. Two weeks later, a Maryland federal court ordered Elbarasse released from jail and held under house arrest after his family and friends put their houses up as collateral for a bail of one million dollars.All documents in his case remain under seal.

Ayub Ali Khan

On September 12, 2001, the FBI arrested Ayub Ali Khan and Mohammed Azmath at the Amtrak railroad station in San Antonio, Texas. The two friends from India had just lost their old jobs working togetheras managers of a newsstand in New Jersey's Newark Penn Station and were relocating to Texas for new work. They had begun their trip to Texas on a plane that was scheduled to fly from Newark, New Jersey to San Antonio, Texas on September 11, 2001. Because of the attacks that day, their plane was grounded in St. Louis, Missouri. Azmath and Khan completed their journey to San Antonio by train, like many other passengers. Shortly before the train reached San Antonio, federal agents approached Azmath and Khan on the train based on a "suspicious tip" from other passengers. [274] The government arrested Azmath and Khan after they discovered they possessed around $5000 cash, box-cutters, and "a prayer rug and other religious paraphernalia." [275] In other words, the FBI detained the two men because they had some money, had an instrument commonly used by people who work in newsstands among other occupations, and were Muslim non-citizens.Surely, but for the last attribute, they would never have been detained.

The FBI first held Khan as a visa violator but later obtained a material witness warrant for his arrest. Both he and Azmath, who was arrested on an immigration charge, were held in solitary confinement in the high security Special Housing Unit of MDC Brooklyn for almost a year. [276]

The government never charged them with any terrorist-related offenses. Instead, the government eventually charged them with credit card fraud, based in part on statements Khan and Azmath made without the presence of counsel. During a court hearing in April 2002, Khan's attorney argued against his continued detention:

Why is this defendant being held in such close custody, when there is no terrorism case against him and it has not been shown in any credible, palpable way that this defendant was involved in an attempt to hijack an airliner to crash into the WorldTradeCenter?

Yes, he's a Muslim, he's from India. His family lives in Hyderabad. The defendant has no criminal record, no pilot training, none of the indicators that would suggest that the defendant is involved in planning some kind of heinous act against buildings or airliners, none of that in this case. [277]

Khan's mother took his case to the United Nations Working Group on Arbitrary Detention, which ruled that the United States had violated international prohibitions against arbitrary detention by holding Khan and Azmath without a sufficient basis. [278]

After almost a year in detention, Khan was convicted of credit card fraud and given time served. At his sentencing hearing, he contested his arrest:

Your honor, I must say, my arrest was executed without probable cause based upon entirely bare suspicion and racial profiling. Single me out, a Muslim, as a terrorist. Your Honor, I am not a terrorist. [279]

Khan and Azmath were deported in January 2003. [280]

"Evansville Eight"

In early October 2001, FBI law enforcement officials received a call from La-Tennia Abdelkhalek, an American-born cook at Rafferty's restaurant in Evansville, Indiana, stating that her husband Fathy, an Egyptian waiter at the Olive Garden, seemed despondent and had told her he was "going to crash [into the Sears tower]." [281] The FBI moved swiftly, set up surveillance, and on October 10, 2001, arrested not only Fathy, but eight of his friends. [282] The nine men were former members of the Egyptian national rowing team who had relocated to Evansville over the previous ten years for work. Allworked several shiftseach day in Evansville restaurants to support their families. Abdelkhalek and seven of his friends were arrested as material witnesses; one man, Mohammad Youssef, was arrested on immigration charges.

The FBI apparently found the nine men suspicious because of their common Egyptian background, their friendship, and their social and athletic activities. The FBI apparently found significant the fact that the nine men worked out and played soccer together regularly at 6 a.m., and FBI agents questioned each of the men separately about their morning soccer games. One of the detained material witnesses explained:

They didn't wait to find out the truth, they just took us. They asked why do we work out at 6:00 a.m.? I told them, it's to practice. They started blaming us. I told them we used to play sports in Egypt for twelve, fourteen years. We work out together. Then they ask me in the interview whether I have been to Afghanistan; did I know bin Laden? I said I never have been to Afghanistan. They said I am a witness and I ask them, material witness for what? They didn't tell me. [283]

Another said:

One of the guys with the FBI, he said so you go and play soccer in the morning and stuff like this. I said yes we go play. But you go play early, at six in the morning. I said well that's the only time that all of us can be together. Because we work first shift second shift and third shift. So that's the only time we have. Because he asked me why we go in the morning and work out. I said first we go work out and then we play soccer. I felt like I had to be very clear about every word I say. So whenever he said work out, I said you mean soccer, and he said yeah. [284]

In questioning the witnesses, federal agents asked each of the Evansville material witnesses about why they used the word "uncle" to refer to Adel Khalil, the uncle of material witness Tarek Albasti. Khalil, who also arrested as a material witness, was almost twenty years older than the other men. During interrogations, the men explained that the word "uncle" in Egypt was commonly used to refer to older people out of respect. As Khalil told HRW/ACLU:

Then they ask me why do people call you uncle? I laugh, I say because I have white hair. They say is your name Uncle? I say, no, Adel. It's like this for forty-five minutes. They don't understand. Why Uncle? They thought I was the mafia or something. [285]

The FBI had questioned Tarek Albasti a month before they arrested him as a material witness. Albasti is a U.S. citizen, married to a U.S. citizen, with a young U.S. citizen child. He came under government suspicion, however, because he had come to the United States from Egypt, was a Muslim, and had taken flying lessons. A few days after September 11, FBI agents had visited him at his house to question him about his flying lessons. During that interview, he explained that his father-in-law, a former U.S. State Department official, had given him the flying lessons as a gift, and he took lessons only for small planes, not commercial airliners. The agents were nonetheless suspicious and interwove their questions about his flying capability with questions about his knowledge of bin Laden:

[T]hey came in, and asked, "When did you start flying, why did you start flying?" Then they asked me what I thought of Osama bin Laden. And I told them I told them I had no idea about Osama bin Laden except for these last four days. I didn't have much knowledge of Osama bin Laden and the mujahadeen or Afghanistan. I had heard about the mujahadeen and Afghanistan but nothing about a specific person. But after September 11 of course everyone is glued in front of the TV. And I learned about him because one night there was a TV program about Osama bin Laden I told them that's what I know of Osama bin Laden. [286]

After holding the men in solitary confinement for two weeks and questioning them further, the Department of Justice decided that La-Tennia Abdelkahelk's tip about her husband was baseless. Had the government investigated the tip or her record before arresting the nine men, agents would have found that and La-Tennia Abdelkhalek had marriage problems and that she was known to get very angry at her husband for sending money home to his children in Egypt. The FBI has since apologized to the nine men for wrongfully arresting them.

Albader al-Hazmi

Dr. Albader al-Hazmi, a Saudi national working as a radiology resident in San Antonio, Texas, was held as a material witness for thirteen days. On September 13, 2001, armed government agents entered his home, where he lived with his wife and small children. As best as al-Hazmi could tell based on the questions the FBI asked himand according to government information leaked to reporters, the Justice Department's principal basis for arresting him as a witness was that he has a last name similar to that of two of the hijackers. Federal investigators also found him suspect because he had obtained an American visa in Jiddah (a visa location used by some of the hijackers); had wired $10,000 from Saudi Arabia to another Saudi Arabian in America; had purchased five tickets on Travelocity, the website allegedly used by the hijackers; and had received phone calls over the past couple of years from a bin Laden at the Saudi embassy. [287] As al-Hazmi explained:

[T]he government said I had traveled too much and that my last name match one of the hijackers names. The government found that I received a phone call from a guy with last name of bin Laden. I told them the bin Laden I knew worked under the supervision of the Saudi embassy and he is not into politics. I contacted this man to ask him to bring books for our mosque library in San Antonio. [288]

According to press reports, anonymous federal government sources identified al-Hazmi as a key terrorist suspect who had provided funds for the September 11 hijackers. Nevertheless, they never brought him before a grand jury, and he was never charged with any crime or immigration violation. [289]

Omer Bakarbashat

The FBI presumed that Omer Bakarbashat had information relevant to the September 11 investigation because a year before the September 11 attacks, he had subleased the apartment of two of the hijackers. Bakarbashat, a Yemeni national, was in the United States on a student visa following his completion of a computer science degree in Jordan. After seven months in the United States, his family had a financial set-back and could no longer assist him with his tuition. Bakarbashat falsified his immigration documents so he could work in the U.S. to support himself. He dropped out of school and found work as a computer technician, because "I didn't want to give up my dream."

After spending nights in his car and with friends, Bakarbashat eventually found cheap housing he could afford when two acquaintances from the mosque where he prayed daily said they were looking for someone to take the last month on their six-month lease for $400-half the rent. This was his only substantive interaction with the two men, Nawaf al-Hazmi and Khalid al-Midhar, who a year later hijacked American Airlines flight seventy-seven, which killed 189 people when it crashed into the Pentagon on September 11. [290] When FBI agents visited Bakarbashat on September 15, 2001, he voluntarily explained his connection to the men, whatever information he knew of them, and disclosed that he was out of status. Bakarbashat volunteered to be polygraphed about his knowledge and allowed the government to search his computer and his residence.

Despite his willingness to cooperate, the government presumed he had more information and told him it would charge him for financially assisting the two hijackers by subletting their apartment. Although the federal agents announced he was a suspect, they arrested him as a material witness and jailed him in solitary confinement in New York for three months, while continuing to threaten terrorism charges against him. According to his lawyer:

Bakarbashat leased an apartment that [the two hijackers] once resided in. He took over the rest of the lease from the guys. He had no social interactions with al-Hazmi and al-Midhar. Initially the government was going to charge him with providing material support for renting an apartment from them. Really, he was pretty poor-a student, getting his degree in computers. He would be living in his car if he didn't rent a cheap apartment. [291]

Bakarbashat was eventually criminally charged and deported for doing work while on a student visa. [292]