Editorial
The New York Times
July 4, 2004
There was, for
instance, Purna Raj Bajracharya, who was videotaping the sights of New York City
for his family back in Nepal when he inadvertently included an office of the
Federal Bureau of Investigation. He was taken into custody, where officials
found he had overstayed his tourist visa, a violation punishable by deportation.
Instead, Mr. Bajracharya wound up in solitary confinement in a federal
detention center for three months, weeping constantly, in a 6-by-9 cell where
the lights were never turned off. As a recent article by Nina Bernstein in The
Times recounted, Mr. Bajracharya, who speaks little English, might have been in
there much longer if an F.B.I. agent had not finally taken it upon himself to
summon legal help. Mr. Bajracharya ran afoul of a Justice Department
ruling after the 2001 terrorist attacks that ordered immigration judges to hold
secret hearings in closed courtrooms for immigration cases of "special
interest." The subjects of these hearings could be kept in custody until the
F.B.I. made sure they were not terrorists. That rule might have seemed prudent
after the horror of 9/11. But since it is almost always impossible to prove a
negative, any decision to let a person once suspected of terrorism free
constitutes at least a political risk. If officials have no particular prod for
action, they will generally prefer to play it safe and do nothing. The
unfortunate Nepalese was finally released only because of James Wynne, the
F.B.I. agent who originally sent him to detention. Mr. Wynne's investigation
quickly cleared Mr. Bajracharya of suspicion, but no one approved the paperwork
necessary to get him out of prison. Eventually, Mr. Wynne called Legal Aid,
which otherwise would have had no way of knowing he was ev en in custody. When law enforcement officials make mistakes, there is an all-too-human
temptation to press on rather than admit an error. Brandon Mayfield, a lawyer
in Oregon, was arrested in connection with the bombing of commuter trains in
Madrid, even though he had never been to Spain. Spanish authorities had taken a
fingerprint from a plastic bag discovered at the scene and F.B.I. officials
thought it matched Mr. Mayfield's prints, which were among the many from
discharged soldiers in the enormous federal database. The American
investigators must have felt they hit pay dirt when they discovered that Mr.
Mayfield was a convert to Islam, that his wife had been born in Egypt and that
he had once represented a terrorism defendant in a child custody case. The fact
that there was no indication he had been out of the country in a decade did not
sway them. Neither did the fact that Spanish authorities were telling them that
the fingerprints did not actually match. Mr. Mayfield was held for two weeks,
even though the only other connections between him and terrorism were things
like the fact, as the F.B.I. pointed out, that his law firm advertised in a
"Muslim yellow page directory" whose publisher had once had a business
relationship with Osama bin Laden's former personal secretary. When the
Spaniards linked the fingerprint to an Algerian man in May, Mr. Mayfield's case
was dismissed and the F.B.I. did apologize. But the ordeal could have dragged
on much longer if the investigation had not involved another nation, whose
police were not invested in the idea that the Oregon lawyer was the culprit.
And it could have been endless if Mr. Mayfield had been an undocumented worker
being held in post-9/11 secrecy, or if he had been picked up in Afghanistan as a
suspected Taliban fighter and held incommunicado at Guantánamo. For more
than two years now, about 600 men have been kept in American custody in Cuba,
and the odds are that some perhaps most were merely hapless Afghan foot soldiers
or bystanders swept up in the confusion of the American invasion. But it took
the Supreme Court to tell the Bush administration they could not be kept there
forever without giving them a chance to contest their imprisonment.
Anyone who needs another demonstration of how difficult it is for law
enforcement authorities to acknowledge error can always look to the case of
Capt. James Yee. A Muslim convert, Captain Yee was a chaplain at Guantánamo
until he was taken into custody on suspicion of espionage. He was held in
solitary confinement for nearly three months, during which time authorities
realized that the case against him was nonexistent. Rather than simply let him
go, they charged him with mishandling classified material. The charges seemed
to have much less to do with security concerns than official face-saving. And
to repay Captain Yee for its self-inflicted embarrassment, the military went at
great lengths in court to prove he was having an affair with a female officer.
While that had nothing to do with security either, it did humiliate the
defendant in public, as well as his wife and child, who were present at the
trial. Virtually every time the Bush administration feels cornered, it
falls back on the argument that the president and his officials are honorable
men and women. This is an invitation to turn what should be a debate about
policy into a referendum on the hearts of the people making it. But this nation
was organized under a rule of law, not a dictatorship of the virtuous. The
founding fathers wrote the Bill of Rights specifically because they did not
believe that honorable men always do the right thing.