In F.B.I., Innocent Detainee Found Unlikely Ally

By NINA BERNSTEIN

The New York Times

June 30, 2004

It took no more than a week for James P. Wynne, a veteran F.B.I. investigator, to confirm the harmless truth that only now, more than two years later, he is ready to talk about. The small foreign man he helped arrest for videotaping outside an office building in Queens on Oct. 25, 2001, was no terrorist.

He was a Buddhist from Nepal planning to return there after five years of odd jobs at places like a Queens pizzeria and a Manhattan flower shop. He was taping New York street scenes to take back to his wife and sons in Katmandu. And he had no clue that the tall building that had drifted into his viewfinder happened to include an office of the Federal Bureau of Investigation.

Yet by the time Mr. Wynne filed his F.B.I. report a few days later, the Nepalese man, who spoke almost no English, had been placed in solitary confinement at a federal detention center in Brooklyn just because of his videotaping. He was swallowed up in the government's new maximum security system of secret detention and secret hearings, and his only friend was the same F.B.I. agent who had helped decide to put him there.

Except for the videotape "a tourist kind of thing," in Mr. Wynne's estimation no shred of suspicion attached to the man, Purna Raj Bajracharya, 47, who came from Nepal in 1996. His one offense staying to work on a long-expired tourist visa was an immigration violation punishable by deportation, not jail. But he wound up spending three months in solitary confinement before he was sent back to Katmandu in January 2002, and to release him from his shackles, even Mr. Wynne needed help.

The clearance process had become so byzantine that the officer who had set the procedure in motion could not hasten it. Unable to procure a release that officially required signatures from top antiterrorism officials in Washington, Mr. Wynne took an uncommon step for an F.B.I. agent: he called the Legal Aid Society for a lawyer to help the jailed man.

Now, for the first time, the F.B.I. agent and the Legal Aid lawyer, Olivia Cassin, have agreed to talk about the case and their unlikely alliance. Their documented accounts offer a rare, first-hand window into the workings of a secret world.

Within 10 days of the Sept. 11 attacks, the Justice Department instructed immigration judges that all cases designated as "special interest" were to be handled in separate closed courtrooms, without visitors, family or reporters, and without confirming whether a case was on the docket. The secrecy left detainees with little access to lawyers.

Visa violators would be held indefinitely, until the F.B.I. was sure the person was not involved in terrorism. As a visa violator under suspicion, Mr. Bajracharya was among hundreds placed in the special interest category, and his case was wiped from the public record.

Mark Corallo, a spokesman for the Justice Department, said that though he was unfamiliar with the case, the system of secrecy Mr. Bajracharya encountered is lawful and necessary. "The idea that someone who has violated our immigration laws may be of interest on a national security level as well is an unfortunate reality, post-9/11," he said. Closed hearings are legal as long as due process is provided, he said, and all abuses will be dealt with.

But Ms. Cassin, of Legal Aid, argues that under this secret practice, there is no way to know whether other noncitizens are even now being unfairly detained. "By its very nature," she said, "it can happen again without our knowing about it."

Mr. Bajracharya was finally returned to Nepal on Jan. 13, 2002. By then he had spent almost three months in a 6-by-9-foot cell kept lighted 24 hours a day. The unit of the Metropolitan Detention Center in Brooklyn where he was kept has become notorious for the abuses documented there by the Justice Department's own inspector general, who found a pattern of physical and mental mistreatment of post-9/11 detainees. Videotapes showed officers slamming detainees into walls, mocking them during unnecessary strip-searches, and secretly taping their conversations with lawyers.

Mr. Wynne would not comment on detention policies, and said that he should not be "held out as the one lone person who did the right thing." But during an extended interview approved by his F.B.I. superiors, he read aloud from phone logs documenting desperate messages from the man's family in Katmandu, his efforts to reassure the weeping detainee, and his own dawning recognition that no resolution was in sight.

"I told Purna that I would try to help him, that I wouldn't forget about him," Mr. Wynne explained. "I felt some - not responsibility, but I felt that there was no one else."

By telephone from Katmandu, Mr. Bajracharya recalled the fear, humiliation and despair he had experienced in prison. "I had nothing but tears in my eyes," he said through a translator. "The only thing I knew, I was innocent, but I didn't know what was happening."

He said he was stripped naked in the federal jail. "I was manhandled and treated badly," he said, becoming agitated. "I was very, very embarrassed even to look around, because I was naked."

The ordeal began when his videotaping aroused the suspicions of two detectives from the Queens district attorney's office, which has space in the same 12-story building where the F.B.I. occupies three floors. After taking him inside for questioning, they called upstairs to the F.B.I., and Mr. Wynne was dispatched to take over the interrogation. With no translator, Mr. Bajracharya tried to explain himself to half a dozen law enforcement officers, including two federal agents from the Immigration and Naturalization Service who verified his illegal immigration status.

It was Mr. Wynne, as the lead F.B.I. agent, who sent him to the federal detention center in Brooklyn pending a thorough investigation. The F.B.I. agent, now 50, describes himself as a lifelong New Yorker who does not take illegal immigration lightly. His specialty is international art fraud, not terrorism. But at a time of heightened anxiety about another terrorist attack, he maintained, it was reasonable to suspect the worst until he could check the man's history, discrepancies in his identity documents and questions about money wired to Nepal.

The questions were resolved within days. The Nepalese man did not show up in any terrorist databanks, and Mr. Wynne soon confirmed his explanation for a $37,000 wire transfer to Nepal. The money was from a recent legal settlement for injuries suffered when he was hit by a car in 1999. His records, roommates and former employees all vouched for the detainee's honesty.

On Nov. 1, 2001, the day Mr. Wynne wrote his report clearing Mr. Bajracharya, he told him through a translator that it would take about a week to get the matter resolved.

Over the weekend, pleading messages arrived from the detainee's sons in Katmandu: "Please help his father; he's not that kind of person - meaning a terrorist, I suppose," the F.B.I. agent said. On Nov. 5, he discussed the case with the head of counterterrorism in the United States attorney's office, and on Nov. 7 and 8, with a lawyer at the immigration agency.

"Because he was willing to leave - he wanted to leave - it didn't seem to me that it was a big hurdle to move him out of there," Mr. Wynne said.

But the weeks dragged on. Learning that a secret immigration hearing was scheduled for Nov. 19, Mr. Wynne thought a resolution was at hand. Instead, in a second conference call to the detainee after the hearing, he found him confused and distraught. It turned out that official F.B.I. clearance from Washington had not yet come through, and the matter had been adjourned to another secret hearing on Dec. 6.

At this point, the agent said, he realized he had been too optimistic. "You have to understand one thing: I'm in the Queens office; in Manhattan they were running this whole initiative, and there was a whole procedure set up for the clearances," he said. "I wasn't aware that there were so many levels that needed to sign off on this thing, frankly, when I filed my report."

The Monday after Thanksgiving, the F.B.I. agent called in Legal Aid. "This guy needed some help - it's as simple as that," Mr. Wynne said, insisting that anyone would have done the same thing. Ms. Cassin says she knows of no other F.B.I. investigator who has.

But by the time she spoke with the detainee, through a thick plexiglass barrier and under the eye of a prison video camera, she said, he was weeping all the time.

On Dec. 6, in a secret hearing room in the prison, she said, she watched him carried in by three burly officers of the Federal Bureau of Prisons, shackled so completely that he could not move. "He's tiny," she said. "His feet didn't even touch the floor."

She said government immigration lawyers agreed that since her client had been cleared by the F.B.I., he would be permitted a "voluntary departure." She was instructed to buy him an airplane ticket to Katmandu through a deportation officer. She did, but the first departure date was canceled without explanation.

Meanwhile, like other "high interest" detainees, Mr. Bajracharya was still in solitary 23 hours a day. "After a month or two, I started to scream that I was going to die if I didn't talk to anybody," he later recalled.

Ms. Cassin said she pleaded with the prison doctor to put him in the general prison population, but the doctor said he was crying so much he would cause a riot. Instead, on Dec. 11, a Muslim detainee was sent to share his tiny cell.

Expecting his imminent departure, Ms. Cassin and Mr. Wynne tried to fulfill the detainee's most insistent request: to go home looking like a respectable person, not a criminal. An assistant warden agreed to accept a box labeled "release clothing," containing the good suit he had worn when he came to America. Shortly before Christmas, Mr. Wynne made a special trip to deliver it.

But when Mr. Bajracharya was finally taken to the plane on Jan. 13, he was in shackles and an orange prison jumpsuit. "I wanted to wait for my clothes, at least the shoes and the jacket," he said, "but they took me by force."

Mr. Bajracharya's accounts of mistreatment fit the pattern reported by the inspector general. A spokesman for the United States attorney's office in Brooklyn, Robert Nardoza, said the office recently declined to prosecute abuses detailed in the reports "mainly because all of the witnesses had been deported and were unavailable to be interviewed."

Back in Nepal, which is riven by civil war, Mr. Bajracharya said he would be willing to testify against those who mistreated him if he were asked, though he fears what the government would do to him if he did so. Nonetheless, he remains grateful that he experienced America.

"What happened to me could have been an isolated incident," he said. "I still believe the American government is the best in the world."

Weeks after Mr. Bajracharya returned to Nepal, Mr. Wynne and Ms. Cassin managed to arrange delivery of his possessions by mail, including his camcorder. But when he tried to show his wife his travelogue of New York, all that remained on the tape was the pizzeria and the flower shop.

Mr. Wynne, sounding a bit sheepish, allowed that he had "probably erased" the rest, thinking it might fall in the wrong hands.

"Just an abundance of caution," he murmured.