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'TONY OULAI - NOT A SUSPECT BUT HELD UNLAWFULLY BY U.S. - 27 MAY 2002'


11th September 2001
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FROM: http://www.washingtonpost.com/wp-dyn/articles/A14191-2002May26.html

No Longer a Suspect, But Still a Detainee
U.S. Won't Release or Deport Prisoner

By Amy Goldstein
Washington Post Staff Writer
Monday, May 27, 2002; Page A01

It was 5 a.m. when Tony Oulai heard the sheriff's deputy unlocking his cell door. Without explanation, Oulai was led to the clinic downstairs for another blood-pressure check and to the dormitory for eggs and grits two hours early. He was back in his cell before the deputy reappeared with an order.

"Pack your stuff."

Outside the Alexandria jail, it was chilly and growing light as Oulai was loaded into a U.S. Marshals Service van. The van drove past the familiar federal courthouse and onto the highway, but by now he knew enough not to expect an answer when he asked where he was going.

When the van reached Dulles International Airport, a government jet was waiting. For the third time that morning, Oulai was searched by a marshal. Then he boarded the plane.

By that day, March 22, it had been six months since Jean-Tony Oulai, 34, was arrested as a suspected terrorist at a Florida airport. It had been four months since a New York immigration judge ordered him deported from the United States. It had been three months since he was sent to Alexandria as a material witness, alleged to have crucial information about the Sept. 11 hijackings -- and nearly two months since prosecutors acknowledged they had no evidence that Oulai, a Roman Catholic from the Ivory Coast, knew about the hijackings or any other terrorism.

Still, the government would not let him go.

Oulai is among more than 1,200 men who have been jailed by the U.S. government to prevent further violence by Muslim extremists. He became the first material witness to speak publicly from detention about his experience. Last winter, The Washington Post chronicled the secrecy, prison treatment and unconventional legal maneuvers that have characterized his case.

Events in his case since then -- as depicted by Oulai, his lawyers and relatives, and federal sources -- illustrate the lengths to which the government has gone to keep some detainees in jail, even after they have been ruled out as terrorists.

Just as one federal prosecutor in Alexandria told a judge that Oulai no longer was considered a material witness, a federal prosecutor in Jacksonville, Fla., charged him with the seldom-prosecuted crime of making a false statement to a government investigator.

U.S. officials have continued to act with confusion and, at times, hostility. A black African, Oulai was listed in a recent federal document as a native of Iceland. He asked one jail guard for a Bible and was handed a Koran. For days at a time, he has been unable to contact his family or attorneys.

Why the government has held Oulai, and an unknown number of others, after they are removed from suspicion is unclear. Justice Department officials have said they are using all available legal tools to keep possible terrorists off the streets in an aggressive campaign to prevent further attacks, but they also say they have no policy of prolonging the incarceration of people they rule out. Civil libertarians and defense attorneys say such extended detentions are common, and construe them as anti-terror zealousness and an impulse to justify what they call racial profiling after Sept. 11.

As he boarded the marshals' jet at Dulles, Oulai reasoned that Jacksonville, where the felony charge awaited, would be his destination, but the plane was on a milk run. Throughout the day, it picked up and discharged prisoners in New Jersey, Massachusetts and Iowa.

Late in the afternoon, it touched down and taxied to a stop in front of a large hexagonal building. Oulai was searched again and led into an admissions area crammed with other inmates who had just arrived.

"Man, where the hell are we at?" he asked a fellow prisoner in the crowd. The answer -- Oklahoma -- did not explain why he was there.

The Federal Transfer Center next to the Oklahoma City airport is a central hub for the Bureau of Prisons, a way station for prisoners who are being shifted around the country. This unexpected stop matched the legal limbo in which Oulai found himself -- no longer a suspected terrorist, not yet free.

'Resident' or 'Residing'?

The crime of which Oulai has been accused circles back to Jacksonville on Sept. 14. As he tried to fly home to Los Angeles, a random search of luggage he was checking turned up a stun gun, old flight manuals, commercially available CIA videos and newspapers annotated in a language that airline workers mistook for Arabic.

Interrogated first by the FBI, then by the Immigration and Naturalization Service, Oulai told the agents he had been in the United States since 1988 and had graduated from a pilot-training school in Daytona Beach, Fla. Lately, he'd been traveling the country, trying to form an aid society for the poor countries of West Africa.

The flight manuals were from his student days, he said, and he'd bought the stun gun in Florida a few years ago. They were in two boxes he said he had just retrieved from a cousin in Orlando.

The criminal charge revolves around what Oulai told the INS about his immigration status. According to prosecutors, Oulai said he was a "resident alien," falsely implying he was in the country legally when he actually had overstayed his visa. According to Oulai and his lawyers, he said he was "residing" in the United States and had entered on a student visa, which was valid when he arrived.

The felony charge -- unlike the suspicions against him during his early months of detention -- is not an official government secret. Yet federal officials will not say why they are pursuing it when they could simply execute the deportation order against him.

One federal law enforcement source suggested a criminal conviction could make it more difficult for Oulai to reenter the United States once he returns to the Ivory Coast. Private immigration lawyers, however, said such reasoning doesn't make sense: Under his deportation order, Oulai must remain out of this country for at least 10 years - the same length of time a conviction would require.

According to a Justice Department official, the Bush administration is not pursuing a deliberate strategy of holding Sept. 11 detainees as long as possible by switching the basis of their incarceration. "It's not a policy to put people through one thing after another," said the official, who spoke on condition of anonymity. But, he added, "it can happen."

How often it has happened is unclear. The Justice Department declined requests to update a list from late last year that identified 116 people held on federal criminal charges in connection with the terrorism probe. The Justice official said 77 of about 700 detainees held at some point on INS violations later were switched to another kind of custody, but would not disclose how many were charged with a crime.

Another department official said that 128 people have been held on criminal charges -- but refused to describe how many previously had been in a different kind of custody.

Despite such sketchy official information, it is evident that Oulai is not the only detainee who has been removed from suspicion - or ordered out of the country - and then charged with a crime.

In San Diego, Omer Bakarbashat, a Yemeni who held a job at a gas station where one of the hijackers briefly worked, was arrested as a material witness. After he testified before a New York grand jury and was sent back to California, prosecutors accused him of altering his Social Security card and immigration papers so he could work.

In Norman, Okla., Mujahid Abdulqaadir Menepta also was held first as a material witness, because he'd known Zacarias Moussaoui, the only person in the United States accused of conspiring in the attacks. Later Menepta, a U.S. citizen, was charged with illegally possessing a gun that investigators found while searching his house.

In Bayonne, N.J., Anser Mehmood, a Pakistani truck driver, was arrested on an INS violation after investigators found a hazardous-materials license and records of flying lessons he'd given his teenage children. After a judge ordered him deported two months later, he, too, was charged with altering his Social Security card. He returned to Pakistan this month, a half-year after his deportation order.

The attorneys who represent these and other detainees say that the criminal charges appear intended largely to enable the government to save face, justifying the detention of people who ultimately proved unaffiliated with terrorism.

Bakarbashat, Menepta and Mehmood hastened their exodus from custody by following prosecutors' advice: They pleaded guilty. U.S. attorneys have encouraged such pleas by counting the time the detainees spent in custody as Sept. 11 suspects toward the sentences for the relatively minor crimes they were charged with afterward. Menepta and Bakarbashat are still in custody.

The assistant U.S. attorney who is handling Oulai's case, Michael F. Gallagher, has been urging him to plead guilty, too. The eight months he has spent in custody, Gallagher has pointed out, are two months beyond the maximum sentence the charge against him carries.

Oulai would rather wait for a trial. "I have nothing to plead guilty about," he said during one of many telephone conversations. "I am not a criminal. Never have been."

He will have to wait in jail. Government lawyers have used a series of legal maneuvers to prevent him from getting out on bond.

Chain of Custody

The basic tactic has been to lead Oulai through a twisting chain of custody between two federal law enforcement agencies - the Marshals Service and the INS - at strategic junctures.

This has happened even though U.S. Magistrate Judge Barry R. Poretz set a $100,000 bond on the false-statement charge in mid-February. Poretz reasoned that Oulai had a clean criminal record, a brother and sister working as professionals in the United States and no lingering link to the terrorism probe.

Within a week, Oulai's older brother, Andre, a physician in Michigan, posted the required sum, and his lawyer hired someone to retrieve his passport from California and turn it in to the court. But satisfying these conditions, Poretz had recognized, would not necessarily set Oulai free: He still was in INS custody, because he was waiting to be deported.

His attorney at the time, Thomas B. Walsh, contended that it was now illegal for the INS to hold him, because the three-month deadline for deportations had passed. But when Walsh raised that argument with another Alexandria judge on a Monday in mid-March, government attorneys delivered a surprise: Just before the weekend began, the prosecutor in Florida had won a court order requiring the Marshals Service to bring Oulai to Jacksonville.

"Mr. Oulai is in the marshals' custody,"a Justice attorney, Lyle Jentzer, told U.S. District Judge Claude M. Hilton. "This court doesn't have any jurisdiction to review the facts."

Walsh, furious, argued that his client couldn't possibly be in the marshals' custody, because he already had bond on the criminal charge. The judge disagreed, and Oulai stayed in jail.

Over the next two days, four federal officials repeatedly contradicted one another over who had custody of Oulai.

The Florida prosecutor acknowledged in a court document that it was uncertain whether Oulai belonged to the Marshals Service or the INS. An Alexandria marshal refused to accept some clothing that Oulai's brother-in-law tried to drop off at the jail, saying Oulai was in the hands of the INS. Asked whether this were true, Alexandria Sheriff James H. Dunning first replied that it was, then called back to say he'd been wrong.

Later that day, the marshal in Jacksonville told the court there that he could not bring Oulai to Florida as quickly as the prosecutor wanted because he was in INS custody.

Whether out of confusion or intention, the custody Ping-Pong is the only reason Oulai was in his jail cell before dawn on Friday, March 22, to be led onto the marshals' jet and flown to three states before landing in Oklahoma.

His stopover at the Federal Transfer Center lasted four days. It was there, he has told his lawyers, family and representatives of the Ivory Coast Embassy, that a guard brought him a Koran after he requested a Bible, making him wonder if he still was regarded as a possible Muslim terrorist.

At 2 o'clock on the fifth morning, he was abruptly taken from his cell; soon after daybreak, he was put on another plane.

Since he'd left Alexandria, his family and advocates had no idea where he was. "This guy is being tromped all around, and I can't find him," Walsh complained during this time. "I had my secretary spend the better part of the day looking for him."

His sister in Fairfax could not sleep. The Ivorian Embassy was livid. Keeping Oulai in an undisclosed location and forbidding him to make phone calls "is the sort of thing I would have expected to happen while he was a material witness," said Augustin Douoghui, the embassy's legal representative in Washington. "Now that that is all dropped and they have a tenuous charge of lying, I never imagined this would happen."

Six nights after he left Alexandria, his sister's telephone in Fairfax rang. Oulai had arrived in Jacksonville, his 11th jail since September.

Ivory Coast to Iceland

His access to the outside world is more limited than it was in Alexandria. There are fewer newspapers, and no visits from relatives. The jailhouse rates for his collect calls are far higher than he or his sister realized at first; at times, he has found her phone blocked because her bill was too high.

His health has become a concern. His blood pressure has repeatedly registered high since he was taken into custody; just last week, he tested positive for exposure to tuberculosis.

If his access is limited, so is advocacy from the outside world. Several civil rights organizations are aware of his case, but none has pursued it.

The Ivory Coast Embassy monitors his case, too, but the Ivorian government has been reluctant to press too hard while courting the United States for economic aid. On a visit to Washington this spring, Prime Minister Affi N'Guessan said in an interview that the government would "very shortly re-engage discussions . . . because he has been detained for a very long time." But he noted, "It is not a protest."

The most concrete offer of help has come from a source that Oulai doesn't trust: the FBI. According to Oulai and his current attorney, Wade M. Rolle, agents have visited him three times since he returned to Jacksonville, inquiring about a beating he says he received at another Florida jail last fall.

A Justice Department spokesman would not confirm the visits. But a letter to Rolle from Jacksonville's top FBI official says agents are "investigating allegations of civil rights violations" and urges him to release his medical records, which Oulai and his lawyer are reluctant to do.

Oulai, meanwhile, worries that his jailers still may not understand who he is. Months ago, one federal form listed him as a Muslim from Syria. A Marshals Service document Oulai reviewed when he arrived in Jacksonville said he was from Iceland.

"I [want] to be absolutely sure my client doesn't get shipped out of here to Iceland," Rolle told a judge at a recent court hearing.

Gallagher, the prosecutor, told the judge the mistake arose from a flaw in a law enforcement database. "If they put in . . . IC for Ivory Coast, it comes up Iceland," he told the judge. "They know he's from the Ivory Coast."

"Summer's approaching," Magistrate Judge Thomas E. Morris said, "even in Iceland."

As summer approaches, Oulai remains in jail. His trial is scheduled for sometime in June, although his attorney is trying to prevent it.

Oulai's statement to the INS should be inadmissible in court, Rolle said at a hearing this month, regardless of what he said. Oulai was not advised of his legal right to remain silent, Rolle argued, and the interrogation continued after agents had confiscated his cell phone as he tried to reach a lawyer.

Gallagher countered that there are exceptions to Miranda rights, when law enforcement officers are asking routine questions about someone's name and citizenship - and especially when public safety is in question, as it was after Sept. 11.

No matter how the judge rules, Oulai said, "I got peace of mind. I have no doubt [they are] going to find some jury to convict me. . . . They aren't seeking justice."


© 2002 The Washington Post Company

FROM: http://www.washingtonpost.com/wp-dyn/articles/A14191-2002May26.html

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