The 66-day hunger strike of Palestinian prisoner Khader Adnan brought overdue attention to Israel's practice of detaining Palestinians for lengthy periods without criminal charges. It also brought attention to the same practice in other countries, including the United States, where, as Salon.com columnist Glenn Greenwald pointed out, indefinite detention is "now firmly in place" for terrorism suspects.
It's important to remember that the U.S. government detains people for indefinite periods without bringing charges, but Greenwald misses an equally important point: the United States was doing this long before 9/11 and the "War on Terrorism."
On any given day, the Department of Homeland Security is holding some 33,000 non-citizens in federal detention centers, in federal prisons, or in county jails. Although politicians and much of the media regularly call these immigrants "illegals" or "criminal aliens," the detainees aren't facing criminal charges. Many are suspected of being in the United States without authorization -- a civil violation -- and are waiting for their cases to be heard. Some detainees are being held while they try to win political asylum or fight their deportation orders. A number have already been ordered deported and are waiting for the authorities to arrange their removal from the country.
The majority stay in detention for less than a month. The wait is much longer for some -- for example, detainees with a final order of deportation who can't find a country willing to accept them. Some of these come from places like Cuba which don't routinely cooperate with U.S. deportation policies; others, including many Palestinians, simply don't have a country.
Until 2001 the U.S. government maintained that it could hold "unremovable" detainees indefinitely, and immigration advocates and lawyers came to refer to them as "lifers." In June 2001 the Supreme Court ruled in the case of Zadvydas v. Davis that this practice was unconstitutional. In general, the court said, immigration authorities shouldn't hold such detainees for more than six months unless there is a reasonable expectation that they can be deported in the foreseeable future.
The Zadvydas ruling was a step forward, but it didn't mean that the indefinite detentions had ended. Nothing forces the government to release a detainee after six months; it's up to the detainee to challenge a prolonged detention through a federal habeas corpus petition. But filing a habeas petition isn't an easy job even for a U.S. citizen with financial resources and a good command of English; an immigrant in detention is unlikely to have these advantages. An immigration detainee is also unlikely to have a lawyer. In a sort of ultimate Catch-22, the government says it can imprison immigrants just as if they were facing criminal charges, but since their cases are civil, the government isn't obligated to provide an attorney.
Even when the detainees get legal representation, the U.S. government has many ways to keep them in detention for months or even years beyond the six months established in the Zadvydas decision.
An Activist Without a Country
The Palestinian-born New York-based activist Farouk Abdel-Muhti worked in a variety of political causes for years, but his activities became much more public with the start of the second Palestinian Intifada in September 2000 and the anti-Muslim hysteria that followed the September 2001 terrorist attacks in the United States. During the spring of 2002 he began working with the morning program at WBAI, the New York affiliate of the Pacifica group, arranging live phone interviews with people in Gaza and the West Bank. A few weeks later, on April 26, a joint task force of immigration and New York City police agents arrested Abdel-Muhti at his home, ostensibly to enforce a 1995 deportation order.
Abdel-Muhti was placed in administration detention in the Middlesex county jail in central New Jersey to await his removal from the United States. But the United States couldn't deport him, as immigration officials knew perfectly well: they had tried twice already, once in the 1970s and again in the 1990s.
Abdel-Muhti was born near Ramallah on the West Bank in 1947, when the Palestinian territories were under British rule. He was living in South America in 1967 when Israel occupied the West Bank, so Israel didn't register him as a West Bank resident. Jordan, which administered the West Bank after the end of the British Mandate, provided him with a birth certificate in the early 1960s but didn't recognize him as a Jordanian citizen. He was stateless, and no country was required to accept him.
Abdel-Muhti's activism was probably the reason the United States decided to detain him, but his activism also gave him advantages other detainees lacked. His political experience provided him with the skills he needed to organize much of his own defense, to give interviews and write articles from inside prison. Friends and fellow political activists formed a committee for his release and began organizing protests, petition drives, and fundraising events. The case got attention from both independent and mainstream media, and Japanese-American filmmaker Konrad Aderer made a short film on the case (later he produced a moving full-length documentary, Enemy Alien, connecting Abdel-Muhti's imprisonment to Aderer's own family history and the internment of Japanese-Americans during World War II).
Unlike most detainees, Abdel-Muhti also had pro bono legal representation. Attorney Joel Kupferman, executive director of the New York Environmental Law and Justice Project, agreed to represent him, with the assistance of MacDonald Scott, a Canadian paralegal and activist who was then working for the National Lawyers Guild in New York.
But progressive lawyers with immigration experience were already swamped with other cases of Muslim and Middle Eastern men rounded up after 9/11, so it was several months before the committee could enlist Kupferman and Scott for the case. And U.S. justice doesn't move quickly in the best of times. Abdel-Muhti's legal team wasn't able to file the petition for habeas corpus until November 6, 2002.
Abdel-Muhti had now been in prison for more than six months.
The "Proven Track Record"
The United States had one month to respond to the petition. Since Abdel-Muhti was imprisoned in New Jersey, the case was filed in the U.S. District Court for New Jersey, where the government was represented by U.S. Attorney Chris Christie -- now the state's Republican governor and a favorite of billionaire right-wing activists Charles and David Koch. Christie assigned the Abdel-Muhti case to Assistant U.S. Attorney Thomas R. Calcagni, who has since become the director of the New Jersey Division of Consumer Affairs.
On December 9 Calcagni filed a 28-page response denouncing Abdel-Muhti as a "convicted criminal several times over" with "a 40-year history of flouting United States immigration laws and hiding his true identity" with "at least 10 different aliases." The Palestinian's "countless attempts to thwart removal efforts by providing false or insufficient information" were the real reason the government had failed to deport him, Calcagni wrote. The government held it was justified in holding Abdel-Muhti until he had provided "the information needed to verify his nationality."
There were elements of truth in the government's response. Abdel-Muhti did have one serious conviction: in 1993 he pled guilty to a misdemeanor assault charge arising from a domestic dispute, and he served 27 days in jail. But his other convictions were for minor offenses, such as selling rugs and neckties on the street without a license or "resisting arrest" at a demonstration. It was also true that Abdel-Muhti first entered the country with false papers -- in 1963 at the age of 16 -- presenting a clumsily forged Honduran birth certificate and claiming to be George (or Jorge Alberto) Muhti Nasser. But at least since 1975 he had consistently identified himself as the Palestinian Farouk Abdel-Muhti. The many "aliases" cited by the government appeared to be mostly due to Abdel-Muhti's uncertainty on how to transliterate his name from Arabic or, more often, the sort of spelling and typing errors routinely made by government clerks faced with non-English names.
There was no real question that Abdel-Muhti was Palestinian. In addition to the birth certificate issued by Jordan, he had presented the government with an affidavit from an elderly Palestinian man living in New Jersey who had been a friend of the family on the West Bank, and with letters and affidavits from New York-area residents showing that the local Palestinian community recognized him as a Palestinian and as an activist for Palestinian causes.
Why then did immigration authorities need "information to verify his nationality"?
Assistant U.S. Attorney Calcagni gave the government's game away when talking to a reporter for the New Jersey Law Journal in March 2003. "Curiously," the Journal noted, "even Calcagni admits that Muhti [sic] may eventually win his freedom." "We have a proven track record of not being able to repatriate someone there [to Palestine]," Calcagni told the reporter.
In other words, the authorities simply wanted to hold Abdel-Muhti in detention for as long as possible, and since they knew his status as a stateless Palestinian meant they would have to release him, they decided to contest his nationality.
"Wreaking Havoc" With Transfers
But the government's efforts to protract Abdel-Muhti's detention weren't limited to writing imaginative legal briefs.
Immigration authorities' many powers over detainees include the ability to move them around at will, sometimes shipping them hundreds of miles, at the taxpayer's expense, to facilities far from their families and their lawyers (if they're lucky enough to have lawyers). The government claims this is a purely administrative matter intended to ensure efficient use of prison space. But as Human Rights Watch's Alison Parker told the New York Times in 2011, "[o]ne transfer is enough to wreak havoc with a detainee's case in immigration court."
By February 2003 Abdel-Muhti had been in prison for 10 months, and District Judge Faith Hochberg was finally starting to consider scheduling a hearing on his habeas petition. He had already been moved three times within New Jersey, but now he was moved a fourth time: on February 19, without warning, immigration authorities transferred him to the county jail near York, Pennsylvania, 180 miles from New York City. U.S. Attorney Christie's office then asked for the habeas petition to be moved to the federal court for the Middle District of Pennsylvania, which includes York. On May 8 Judge Hochberg ordered the case transferred to that court, located in Harrisburg, Pennsylvania.
A little more than a year after his arrest, Abdel-Muhti now had to restart the whole process of suing for his release from administrative detention.
Abdel-Muhti's health was deteriorating. Now 55 years old, he suffered from high blood pressure and a thyroid condition. The immigration service provided him with medication, but he sometimes missed his daily dosage because of his frequent moves; at other times, correction officers withheld the medicine as a form of punishment.
His situation worsened in Pennsylvania. On February 26, one week after he was moved to York, prison authorities placed Abdel-Muhti in a segregation unit. They gave no explanation for the solitary confinement, which continued for seven months. The prisoner was alone in a small cell for 23 hours of each day; the remaining hour was the only time when he could shower, exercise, or make phone calls. Since his one hour outside the cell was often at night, he went for long periods without exposure to sunlight. "Get me out," he would tell his friends when he was able to use the phone. "I don't want to die here."
The Legal Team Grows
Despite his health problems and the stress of solitary confinement, Abdel-Muhti continued to write and speak for his own release and to protest the mistreatment of other detainees. Meanwhile, hundreds of people were signing petitions for his release, his supporters were holding weekly vigils in front of the Federal Building in Manhattan, and his legal team was growing.
Philadelphia legal activist Danielle Redden joined as a legal assistant after Abdel-Muhti's transfer to York. Paula Knudsen, then a new staff attorney with the Harrisburg office of the American Civil Liberties Union (ACLU) of Pennsylvania, agreed to assist Abdel-Muhti with his complaint against an immigration agent who had drawn a gun on him in July 2002. Buffalo-based attorney and law professor Joanne Macri, an expert on conditions of confinement who now heads the Criminal Defense Immigration Project of the New York State Defenders Association, began working to get Abdel-Muhti out of segregation. Jeffrey Fogel, then the legal director at the New York-based Center for Constitutional Rights (CCR), decided that the Center should join the case; new CCR staff attorney Shayana Kadidal -- now senior managing attorney of CCR's Guantánamo Global Justice Initiative -- was assigned to be the lead attorney.
By the beginning of September 2003, Abdel-Muhti had been in prison for 16 months and in solitary for five, but he now had a pro bono legal team of a size and a quality that is usually available only to the very wealthy.
On October 9 Shayana Kadidal filed an updated habeas petition with federal district judge Yvette Kane in Harrisburg. Later in the month Knudsen, the ACLU attorney, set a November date for Abdel-Muhti to take a lie detector test to prove he was telling the truth in his complaint against the immigration agent. Macri scheduled a November meeting with immigration authorities at York and made it clear she expected them to produce the required documentation of their reasons for keeping Abdel-Muhti segregated. (The authorities were supposed to review his segregation on a weekly basis, and only continue it if they could show cause.)
The government's response to Knudsen and Macri's efforts was almost immediate: on October 30 Abdel-Muhti was transferred back to New Jersey, where he was placed in the general prison population. This sabotaged the lie detector test by moving Abdel-Muhti out of Knudsen's jurisdiction, and saved immigration authorities from having to answer to Macri for Abdel-Muhti's segregation, but at least it ended his seven months' stay in solitary.
Movement on the habeas petition was less swift. Although the government didn't try to transfer the case a second time, officials continued to stall, managing to delay Abdel-Muhti's hearing before Judge Kane until March 30, 2004, a year and 11 months after his detention began.
Even then, the authorities tried one last delaying tactic. Less than an hour before the hearing was to begin, they sent the court an affidavit from an immigration official, Lisa Hoechst, claiming that the US was talking to Israel about expedited repatriation for Palestinians "listed in the population registry for the Palestinian territories" and that this would "bring about the likelihood of . . . removing Mr. Abdel-Muhti in the reasonably foreseeable future." Despite knowing that Abdel-Muhti was not in fact listed in the population registry, and after a year and a half of trying to cast doubt on his claim to be Palestinian, now the U.S. government said it didn't see any real obstacles to sending him back to the West Bank.
Ending the "Kafkaesque Exchange"
Once a judge had finally heard the two sides in court, the decision came quickly. On April 8 Judge Kane ordered the government to "release Petitioner Farouk Abdel-Muhti forthwith under reasonable conditions of supervised release."
In an accompanying memorandum Kane supported all of Abdel-Muhti's principal claims. She dismissed the government's recital of his criminal convictions as something that "can only serve to cloud the issues before the Court and place Petitioner in a bad light." She rejected the government's pretense that Abdel-Muhti might not be Palestinian, and she ruled that after two years the government's last-minute claim about the "likelihood" of deporting him didn't "pass Constitutional muster." She derided as a "Kafkaesque exchange" the government's repeated demands for Abdel-Muhti to provide more information on his nationality. "The law does not authorize [the government] to continue Petitioner's detention until he supplies answers it likes," she wrote.
But Abdel-Muhti's lawyers and supporters couldn't give him the good news. He had disappeared -- or, as they say in countries like Argentina or Chile, he had been disappeared.
The government had carried out a last series of arbitrary transfers for the activist in the days before and after the March 30 hearing. Instead of taking him directly to the Harrisburg court, officials first moved him to the Federal Detention Center in Philadelphia on March 23, and then to Harrisburg six days later. Judge Kane ordered Abdel-Muhti returned to detention in New Jersey after the hearing, but the government kept him at the county jail in Harrisburg until April 5, when they flew him to the federal penitentiary in Atlanta -- 725 miles in the wrong direction. There they wouldn't allow him to use the phone until the afternoon of Friday, April 9, a day after the judge's decision and too late to arrange his release before the weekend.
Immigration authorities never offered an explanation for this last transfer, which allowed them to keep the activist in detention for three extra days.
Did the System Work?
Farouk Abdel-Muhti was finally released on April 12, 2004, two weeks before the second anniversary of his arrest. Supporters and other activists celebrated his return to New York, and the release was covered in such media as the New York Times, the Philadelphia Inquirer, and Democracy Now!
Some people will undoubtedly say Abdel-Muhti's legal victory shows that the system works. But the process took two years, and Abdel-Muhti had resources that few immigration detainees could even imagine -- his own talents, persistence, and determination as an activist, a network of friends and supporters constantly publicizing his case, and a legal team of five highly qualified lawyers and two activist paralegals. What happens to other detainees in Abdel-Muhti's position? The government admits that some 2,000 immigration detainees remain in prison for a year or more. How many of these prisoners are trapped like Abdel-Muhti in a "Kafkaesque exchange"?
And we can hardly say that the system worked for Abdel-Muhti, whose health was seriously compromised by the time he was freed. On the evening of July 21, 2004, three months after his release, Abdel-Muhti suffered a massive heart attack as he was finishing a political talk at a meeting in Philadelphia. He died that night without ever recovering consciousness.