The private prison industry is doing quite well since September 11, says Alisa Solomon in this week's Village Voice.

"County jailers have long known that housing INS detainees pumps easy income into the coffers. Nearly 900 facilities around the country provide beds for the INS, and in interviews over the years, several county sheriffs and wardens have described such detainees as a 'cash crop.'

With the state prison population finally declining, "the only incarcerated populations sustaining reliable growth now are INS detainees and federal prisoners, many of them noncitizens."

Is there a problem with this? Two primarily:

"Like agriculture, restaurants, hotels, and other realms of American business, the prison-industrial complex now also looks to illegal immigrants as the most promising means of keeping them afloat. The danger, anti-prison activists say, is that the pressure to fill empty cells will add even more fuel to the demand to round up immigrants. "

In other words, echoes of "May we see your papers?"

Advocates are also concerned about the deals the feds may make with private prisons.

"They worry about bidding wars among potential jailers, who might be willing to further cut services to detainees in exchange for contracts. Many state and local providers, the advocates charge, already fail to meet the INS's own weak detention standards."

Advocates claim that "the profit motive undermines justice. We've seen that trying to keep costs low means setting up in isolated, rural areas, far from attorneys and support networks; avoiding expenses for special medical or dietary needs; attracting low-wage employees who aren't sufficiently professional."

The Justice Department reaches a new low today in the case of James Ujaama. Arrested in Denver as a material witness in the 9/11 investigation. Ujaama allegedly sold laptops to the Taliban before Sept. 11 and maintained a website with Anti-American sentiment. He had a secret hearing in Denver after which he was moved to Alexandria, VA.

His family couldn't find him after the move. Why? The Justice Department is holding him under another name. Charlie Brennan of Denver's Rocky Mountain News writes about it today in Security lid clamped tight on Ujaama case.

The ABA today officially passed a resolution opposing the 9/11 Secret Detentions.

The resolution "opposed incommunicado detention of foreign nationals in undisclosed locations by the Immigration and Naturalization Service" and urged that the detainees names be disclosed and they be given immediate access to lawyers and family members.

In urging the protection of the constitutional and legal rights of these detainees, the ABA recommended the following:

"-- disclosing their names, whereabouts and charges against the detainees, and assuring them access to lawyers and family members.

-- promptly charging detainees or releasing them when charges are not brought.

-- providing prompt custody hearings before immigration judges to determine detention and bond issues, with the opportunity for appellate review.

-- conducting public hearings on whether to deport a detainee, except when the individual's safety might be threatened or a judge finds information likely to be disclosed that would compromise national security.

-- permitting independent agencies to visit the detention centers and to meet privately with detainees to monitor compliance."

Last Friday, the group released its report on the 9/11 detainees written by the ABA Task Force on Treatment of Enemy Combatants. The task force, chaired by Miami lawyer Neal Sonnett, included military law experts, prosecutors, judges and defense counsel.

The report calls for detained citizens to have the right to counsel and judicial review of their cases. The report did not address the rights of foreign nationals who are detained as combatants.

The father of Yaser Hamdi pleaded with Congress in letters made public today for fair treatment for his son. He said his American-born son went to Afganistan and Pakistan to do humanitarian relief work.

The senior Hamdi wants his son treated as the American citizen he is--not the enemy combatant the Government is claiming him to be--Hamdi has been held in a military jail without counsel since November.

Yesterday the Government defied a prior court order to turn over documents to the Judge so he could rationally decide the controversy. But, turns out the court of appeals mandate from the 4th Circuit hasn't been received yet so the Judge entered another order saying he doesn't have jurisdiction of the case yet.

So Hamdi remains locked up, subject to interrogations without counsel, and who knows what other deprivations.

We hope the Senators give Hamdi Sr.'s pleas full consideration.

Update: Thanks to How Appealing for posting that this afternoon that the Fourth Circuit issued an Order directing that the mandate issue "forthwith" and that the stay is dissolved. Translation: The district court judge that said he does not have jurisdiction now has it and immediately pick up where it left off which is with the Government defying his order to produce records on Hamdi.

In a major victory for the more than 20 civil rights, human rights and civil liberties groups that have challenged the government's policy of secret arrests in connection with the September 11 attacks, a Federal Judge has ordered the release of the names of the Sept. 11 arrestees

Here is the text of the 45 page decision.

Witnesses and Criminals is an editorial in today's Washington Post about holding detainees under the material witness statute.

We agree with the second half of this editorial, but not the first. It seems to change course in midstream. In fact, had we followed our instincts to tune out after the first two paragraphs, we would not have read the last two paragraphs, which we think are all too true.

The subject is the differing rulings of two federal judges in New York on the material witness statute as pertains to post-September 11 detainees.

We disagree with the Post and think Judge Scheindlein's view is correct that the material witness statute applies to trial witnesses, not grand jury witnesses. The Post maintains that the statute allows the government to "hold witnesses who might otherwise flee in order to secure their testimony," and that this is the way it should be, citing Terry Nichols' arrest on a material witness warrant when they didn't have enough to charge him with the Oklahoma bombing but wanted to secure his testimony.

The Post then criticizes the practical application of the law, "because it can be abused and should not be used indirectly as a punitive measure." We're beginning to agree.

The Post really engages our attention when it continues with, "What's troubling about the government's behavior in these cases is not that material witnesses have been detained but the circumstances and duration of the detentions." The Post is justly critical of the Government for holding Osama Awadallah in isolated detention for months, during which he sustained bruises and had limited access to counsel.

The Post opines, "If this is true, then it is unacceptable. More generally, the material witness statute authorizes holding people only for "a reasonable period of time" so that their testimony can be obtained. It's hard to see how this law could justify holding someone for months or after that person's grand jury testimony has been taken."

What happens when the witness does not want to talk? Under federal law, a witness who refuses to testify before a grand jury can be held in contempt and kept in jail for the remaining life of the grand jury. Grand jury terms are eighteen months. Sometimes a grand jury has not finished investigating a case when its term is up and a new grand jury is empanelled and the case transferred. The recalcitrant witness can be held for the life of that grand jury as well. So the "reasonable period of time" that the Post assumes will cause someone to intervene to prevent overly lengthy detentions doesn't really exist. There is no definition of "reasonable period of time," and with the detainees, reasonable time seems to be equated with "as long as it takes to make him talk."

We know that the Judge can release the person doing contempt time for refusal to testify before a grand jury if the Judge becomes convinced that the person won't talk no matter how long he or she remains in jail. Again, this is an arbitrary decision--hardly a uniform measuring stick of "reasonable time."

In the case of the detainees, where are the contempt hearings? Where are the contempt charges? Due to secrecy rules, we can't learn the truth. But even the Government says these witnesses have not been charged. They are not criminals, yet they have lost their jobs, their family life and their ability to partake of the ordinary pleasures in life.

The Post concludes with, "Still, the material witness law has clearly been used as a means of locking up people who have information relevant to the investigation and who themselves may be dangerous, yet against whom no case can immediately be made. This is pushing a line: The material witness law is not a means of preventive detention and should not be used as one."

So doesn't Judge Scheindlein's ruling make more sense?

P.S. We think Mr. Awadallah's wife has been a gutsy, intelligent and passionate advocate on his behalf.

Hussein al-Attas, the man who once gave Zacarias Moussaoui a ride, has been held in solitary confinement since his arrest 10 months ago which occurred while he was worshipping at a mosque. No charges have been filed against the 24 year old, who according to Deborah Hastings in her AP article today, remains in good spirits.

According to Hastings, Al-Attas is being "held by the Justice Department in downtown Manhattan as a material witness in connection with the terrorist attacks of Sept. 11. His attorneys, silenced by a federal gag order, defend their client during closed hearings and in legal motions filed under seal. "

Al-Attas can receive no visitors, save his attorneys. His only other contact is with a spanish speaking prisoner on the other side of his cell wall. They speak through an air-conditioning duct. Al-Attas has requested a Spanish-Arabic dictionary so he can better communicate with him.

The Government won't say how many people it is holding as material witnesses. What happens after Al-Attas testifies at Moussaoui's trial? Most likely, he gets deported back to Saudi Arabia.

The article has much more on Al-Attas and his connection to Moussaoui.

Press Release June 12, 2002, from the National Association of Criminal Defense Lawyers:

Washington, D.C.--Saying that the Bush Administration is incorrect in its interpretation of legal issues ranging from venue to the power of the president as commander in chief, state and federal criminal defense bar groups today filed an amicus curiae brief calling on the government to follow the law by giving accused "dirty bomber" Jose Padilla a lawyer and a chance to face his accusers in court.

The National Association of Criminal Defense Lawyers and its New York State affiliate, the New York State Association of Criminal Defense Lawyers, filed the brief on behalf of Padilla in a civil action brought by Padilla's counsel in the federal court for the Southern District of New York.

Donald G. Rehkopf, Jr., co-chair of NACDL's Military Law Committee, says that the government's contention that President Bush's actions as commander in chief are above the law are unfounded. "Washington and Jefferson both rejected this argument during their terms. The Supreme Court has repeatedly affirmed that absent a declaration of martial law, citizens may not be imprisoned by our military."

If the government claims that Padilla is acting on behalf of an enemy, he should still be afforded, under the Geneva Conventions, a hearing as to whether or not he is entitled to prisoner of war status, says Rehkopf.

He also argues that the government cannot circumvent jurisdiction of the court by moving Padilla to another location, and that there is no legal justification for not allowing him to have contact with legal counsel.

The case is Padilla v. Bush, et al, SDNY No. 02-Civ-4445 (MBM).

Here is a summary of the brief .

Yesterday a federal judge in the Southern District of NY ruled that the Government's detention of potential grand jury suspects under the material witness statute is constitutional. Another judge in the same district had ruled it unconstitutional in April.

Judge Judge Shira Scheindlin has taken a lot of heat for finding the material witness statute (read it here) facially ambiguous and in violation of the Fourth Amendment prohibition against unreasonable seizures.

Next step will be an appeal to the Second Circuit Court of Appeals, stay tuned.

As further evidence of the failure of racial profiling as a law enforcement tool or to make us safer, consider this:

The Government has announced that out of 1100 people detained after Sept. 11, all but 74 have been deported or released from custody, and 38 of those remaining are about to be deported. That leaves 36 detainees in custody. So 95% have been released, and not one was charged with a terrorism offense related to September 11.

Of those who were deported, Deborah Jacobs, executive director of the Newark branch of the ACLU, said "Obviously they're not terrorists because you don't deport terrorists."

Received from Wilson Myers, Attorney and candidate for Florida Attorney General: "This will happen more and more. Fairness be damned, full speed ahead!"

He's talking about the lame INS attempt to oust Thar Abdeljabera, a 30 year old Palestinian father of five, for failing to report an address change.

The INS rarely deports anyone for this violation. In fact, their own regulations say failure to report an address change should not normally not be the basis for deportation. So what's behind this?

In March, Abdeljaber was tracked going 4 miles over the speed limit in Raleigh. He was stopped and found to have several thousand dollars in cash and maps with some cities in North Carolina circled in red. Abdeljaber told police he drew circles around places with flea markets and swap meets and Mexican stores--relatives say he travels to these places to sell electronic equipment he buys through the mail.

He has never been charged with any other crime. He's a legal permanent resident who came here to join his wife, also a legal resident, in 1998. Two of their five kids are U.S. citizens. In 1999, they moved to Richmond to be near his sister. He was charged with failing to report this address change within ten days. He pleaded guilty, served 25 days, and now INS is trying to deport him. He's been in jail for four months for this.

Jeanne Butterfield, executive director of the American Immigration Lawyers Association, says "They're using the immigration laws to go after people that they don't have any basis to go after under the criminal laws. I think it's appalling."

So do we, and so does Attorney General candidate Myers. We wish him the best and will track the race.

Thanks to the Washington Post Editorial, "Still No Lawyers" for reminding us that Hamdi and Padilla are still sitting in military brigs, not charged with any crime and unable to meet with lawyers. All because the executive branch says they have the sole right to declare someone an "enemy combatant."

This is an arrogant usurption of power as we have mentioned here before. We'll bump this comment:

"We think the military has the right to accuse someone of being an enemy combatant but it should be a judge who makes the decision. In open court. At a hearing where Hamdi is afforded a right to a lawyer, the right to review the evidence against him, and to call and cross-examine witnesses. Until and unless a court determines he is an enemy combatant, he should retain his rights as an American. To say otherwise means the Government can brand someone with a label and then imprison them indefinitely, even forever. We think that's way too much power to give the Government."

By the way, anyone see the ABA's ad promoting the Constititution that started in newpapers yesterday? If you do, send us the link so we can post it, ok? Thanks.