Interesting Legal Precedents, Vol. 2

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The San Francisco Chronicle reported this weekend that Muhammad Ismail and his son Jaber Ismail, U.S. citizens, have been barred from re-entering the United States until they answer questions in Pakistan to the satisfaction of the FBI. The two men were pulled aside during a layover in Hong Kong and informed there was “a problem with their passports.” The elder Ismail is a naturalized U.S. citizen; his son, 18, was born in the U.S. Neither one is a dual national.

The two have not been charged with any crime. They are, however, close relatives of another father and son pair, Umer and Hamid Hayat of Lodi, California, who were tried last year on support of terrorism charges. Coincidentally, the elder Hayat, an ice cream vendor, was just released on time served and fined $3,600 for a minor offence.

Back to the Ismails and their unusual treatment as U.S. citizens denied re-entry into their country without any charge or stated cause:

“We haven’t heard about this happening — U.S. citizens being refused the right to return from abroad without any charges or any basis,” said Mass, a lawyer for the American Civil Liberties Union.

McGregor Scott, the U.S. attorney for California’s eastern district, confirmed Friday that the men were on the no-fly list and were being kept out of the country until they agreed to talk to federal authorities.

“They’ve been given the opportunity to meet with the FBI over there and answer a few questions, and they’ve declined to do that,” Scott said.

Mass said Jaber Ismail had answered questions during an FBI interrogation at the U.S. Embassy in Islamabad soon after he was forced back to Pakistan. She said the teenager had run afoul of the FBI when he declined to be interviewed again without a lawyer and refused to take a lie-detector test.

Here again, we’re looking at an apparently unprecedented situation, and one that any U.S. citizen who travels outside the country might have grounds to be worried about:

Michael Barr, director of the aviation safety and security program at USC, said the Ismail case appears to be unusual in the realm of federal terrorism investigations.

“You become what is called a stateless person, and that would be very unprecedented,” Barr said.

21 thoughts on “Interesting Legal Precedents, Vol. 2”

  1. Any other lawyers out there able to figure this out? What are they citing to bar a USC from entering the US? I can’t think of anything that authorizes them to do that. I mean they can arrest them, detain them if they have probable cause, revoke their citizenship maybe, but short of that they can’t treat USCs like an alien applying for admission.

  3. Neither one is a dual national.

    Just curious for those who might know – would the FBI have more a right/reason to do all this if they had been dual citizens?

  4. Any other lawyers out there able to figure this out? What are they citing to bar a USC from entering the US? I can’t think of anything that authorizes them to do that. I mean they can arrest them, detain them if they have probable cause, revoke their citizenship maybe, but short of that they can’t treat USCs like an alien applying for admission.

    whoa indeed. here’s my somewhat bleary-eyed and tentative take — the facts on this aren’t clear yet, but the likeliest suspect is the Bush administration’s usual suspect: the post-9/11 congressional resolution authorizing the war against Al Qaeda in Afghanistan, the Authorization for the Use of Military Force, affectionately known as the “AUMF.” The Bush administration has long tried to give the AUMF quite a bit of oomph, arguing that it authorized the detention of Jose Padilla as an enemy combatant, the NSA’s warrantless wiretapping, the use of secret prisons abroad, and the use of military commissions that do not comply with the Uniform Code of Military Justice. And maybe other stuff as well.

    I’d put my money on the AUMF before any other administration argument — I can’t really think of any other plausible statutory authorization for this, and as one law professor has put it, the Bush people have more or less used the AUMF as “the stated justification for virtually everything controversial that the President does, notwithstanding more specific congressional statutes purporting to foreclose the very authority that, according to the Administration, the AUMF provides.” But the Supreme Court has read the AUMF more narrowly than the administration has, most recently in the Hamdan case and before that in the Hamdi case. (The administration’s interpretation did, admittedly, find a somewhat friendlier audience in the US Court of Appeals for the Fourth Circuit, in the Padilla case.) The Bush administration’s expansive reading of the AUMF does not seen correct, and if it were correct, it’d be pretty scary — as one government lawyer rather directly maintained in one of the earlier Guantanamo cases, under the administration’s interpretation the AUMF would even authorize indefinite detention as an enemy combatant of a “little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] is really a front to finance al-Qaeda activities.”

    There could also be a bit of sleight of hand going on in terms of what’s technically going on here, behind the scenes and behind the news headlines — is it the FBI which is actually prohibiting these folks from returning to and entering the United States? or are they refusing to let them fly because their names are on a “no-fly” list?

    If it technically were the Pakistani or Hong Kong authorities prohibiting them from leaving either Pakistan or Hong Kon, but at the FBI’s behest and without any formal U.S. fingerprints being left anywhere, then this example would seem like others that have taken place already — the Abu Ali case, for example, involved a U.S. citizen detained by Saudi authorities (and allegedly tortured) at the behest of the United States before being indicted and returned to the United States. And I think there have been other, similar examples of practices like this, which seem to bear a family relationship to extraordinary rendition. What seems to make this case more notable, at least to me, is the suggestion that the FBI is openly calling the shots and openly excluding a U.S. citizen from returning.

    Would it be constitutional if there were statutory authorization for this? That might be more complicated, depending on the precise basis for which the individuals were being temporarily excluded. But all of this should raise our collective eyebrows.

    I mean they can arrest them, detain them if they have probable cause, revoke their citizenship maybe

    To revoke citizenship, the government bears an extremely high burden — barring fraud in the naturalization itself, I’m pretty sure the government would have to show that the individual specifically intended to abandon their U.S. citzenship status.

    would the FBI have more a right/reason to do all this if they had been dual citizens

    I myself can’t really see why it makes any difference — as long as the U.S. citizenship status is valid, I can’t think of any reason why dual citizenship by itself would justify unequal treatment. The only instance in which it seems that it could be relevant is if the second citizenship were of a country with which we were actively at war — but, of course, Pakistan is currently a U.S. ally. So certainly it would be odd for dual citizenship with Pakistan alone to make much of a difference. Maybe in combination with other factors the government might throw it in as yet another factor to be weighed in the balance, but if they went down that road, they also could end up limiting the arguments available when they go after U.S. citizens who are not dual citizens.

  6. Excerpt, Ian Lustick interview @ Berkeley:

    There’s a chapter in the book where you look at how many terrorist attacks there have been — well, obviously none after 9/11 — but also, all the people who supposedly were [involved], arrested and then convicted. Talk a little about that, because you were struck with an anomaly there, right? That’s right. It’s an anomaly that’s sharpened by the fact that, as everyone knows, the United States Government through the USA PATRIOT Act and other measures not even in the PATRIOT Act, such as wiretapping surveillance, has removed almost any barrier that ever stood between the United States Government and its ability to know anything it wants about anyone in the United States. Combine these abilities with the tens of thousands of people who’ve been detained and interrogated. Essentially any Middle Easterner whom the government had any interest in has been turned inside out with respect to possible links to terrorism. Huge amounts of money — we’re talking about billions and billions of dollars — have been put into increasing investigative, surveillance, and enforcement, capacities that had been directed against organized crime and against drugs are now being dedicated to the War on Terror. What has been the result? Repeatedly the government has announced the discovery of a spectacularly important, dangerous sleeper cell — in Detroit, in Lackawanna, New York, even here in Lodi, California, and in Idaho, in Florida — and they’ve trumpeted these successes because they have been struck on the inside by how few discoveries they have made. But when they bring them to trial they have been humiliated repeatedly to find [people like] Iman Faris from Ohio, who they said was working for al Qaeda to destroy the Brooklyn Bridge. He then turned out to be a mentally unstable guy who thought he could actually bring the Brooklyn Bridge down with a blow-torch. The overwhelming number of people counted as successes turn out to have been Middle Easterners cheating on their language exam, truck drivers who had nothing to do with terrorism, people who extended their visas. You have in Detroit this sleeper cell, so-called; the cases were thrown out when it was shown that the prosecutor was cooking the evidence, and now the prosecutor’s actually been convicted by the government of obstruction of justice and other charges. In Lodi, California, where the government did finally, after a very long trial, get a conviction of one person, an obviously weak-willed, not very intelligent cherry picker who hardly speaks English, who speaks Pashtun, went to Pakistan to find a bride and ended up in the camp his grandfather runs that may have had al Qaeda people in it. The government interrogated him for months and even showed a videotape of him nodding in agreement to things that reporters in the courtroom said he barely understood, and he was convicted — his father’s case resulted in a hung jury, they couldn’t convict him — in a very conservative area. They convicted the son of material support for terrorism because he showed up at the camp in Pakistan. When the arrest in Lodi was announced in February by Negroponte, the Director of National Intelligence, in front of the entire panoply of the American intelligence and law enforcement leadership at Congress, he said this discovery of an important, large sleeper cell in this community [of Lodi] was terrifying–instructive evidence of the importance of the War on Terror and why it must be our highest priority. Well, it turns out that this conviction is all based on evidence provided by an informer who was paid $250,000 to find the sleeper cell. He couldn’t find it, but he found that this one young guy had gone to a camp in Pakistan. This informer [also gave] incorrect information about having seen Ayman al-Zawahiri, Osama bin Laden’s right-hand man, in this mosque in Lodi, which everyone knows now is false. So, again, it’s one in a long list of embarrassing failures. The fact is, no matter how much money has been spent, we haven’t found any planning of serious terrorism, with one exception. There was a couple in Texas who had all the material for cyanide bombs, except they were radical right-wing white Christians, not Muslims, and for that reason the government has not celebrated their arrest and conviction as a victory on the War on Terror.

  7. Thank you for blogging about this. What a catch-22…one can’t find out if their name happens to be on a the no-fly list until afterwards and then it’s in a sense too late. I agree, this has to be one of the most egregious violation of one’s rights that I’ve seen here. I figured as a naturalized citizen, according to the bushites I’m a “2nd class citizen”, but I am shocked to see that even U.S. born citizens are getting similar treatments. And to get in more trouble for wanting a lawyer there? You’d think (though apparently incorrectly) that no matter what happens at the top, that there’d be some rational, ethical people working the ranks. I guess that’s few and far between and perhaps too much to ask.

  8. Unfortunately, other than the SF Chronicle article and the Wash Post, I’ve not seen any mainstream media coverage on this (I don’t have access to lexis-nexis at the moment….). There is also an excellent writeup here about this case here.

  9. Looks like I spoke a little too soon…the NY Times has finally picked up this story, though of course it was buried under the U.S. section, not on the main portion where of course there was yet another article on the Karr-Ramsey case. If anyone wants to know what’s wrong with the world…the screwed-up placement of these articles due to their inherent popularities explains it…

  12. saheli, sounds like she’s unclear on a whole lot more than the right to counsel….

  14. Yeah, I could actually hear my brain cells screaming and committing hara kiri after reading that. I especially loved the bit where one of the legitimate reasons for denying them entry was because of a refusal to speak with the FBI, which is some serious cart-before-horse-ism.

  15. “woman honor thyself” was scary and rather misguided in her thinking process.

    As per the U.N. Universal Declaration of Human Rights:

    Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country.

    Also

    Article 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

    According to this, the U.S. is one of the signatories.

  16. Today a poll revealed that 62% of Americans favor profiling of “Middle Eastern” (which must of necessity include brownz) men at airports. The article mentions a case against JFK (New York’s international airport) for apparently profiling. It is getting to the point where we will have to rely on the law and our (compromised?) constitutional protections as a shield against the majority of the citizenry, the government, and its security concerns.

  18. More info about the legalities of this situation (no new specific details)

    I do find it rather interesting [and disheartening] that paralleling the lack of MSM coverage of this story is the fact that there are only 17 posts (now 18) on this thread (not counting the two East Asian posts which I assume were adverts and subsequently removed). And no, I’m not going to whine about the fact that posts about Abhi’s travels to find desis and Siddhartha’s run-ins with furry-legged friends have proven to be many times more popular [if one judges by number of comments].

  21. woops…hopefully the SM intern will realize my mistake on the “news” section…I posted the URL of this thread instead of the story’s URL which is in post #20…