THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Antiterror tactic is assailed, defended

Detainees held without charges

By Maria Sacchetti
Globe Staff / May 22, 2010

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The Pakistani men detained last week in connection with the attempted Times Square bombing were handcuffed, given prison jumpsuits to wear, and held behind bars.

But they have not been charged with any crime.

Their arrests are part of a controversial law enforcement tactic that allows US Immigration and Customs Enforcement, commonly called ICE, to hold people for civil immigration violations while investigators attempt to build criminal cases against them.

Federal officials say it is a valuable tool in the fight against terrorism, and its use increased after the Sept. 11, 2001, terrorist attacks.

But civil liberties advocates and others say the government is sidestepping the criminal process by limiting detainees’ access to lawyers and keeping them in jail. Some analysts say the tactics used by ICE could also alienate immigrant communities that are vital to helping solve crimes and preclude chances of wider evidence gathering.

“I think there’s an overuse of ICE in these cases,’’ said Vincent M. Cannistraro, who led counterterrorism operations for the CIA until 1991 and now issues a newsletter on global security issues from Virginia. “If you suspect that they’re there, watch them. You can tap their phones. You can basically monitor their activities until you do get the information you need.’’

While police, the FBI, and other law enforcement agencies require evidence of crimes to arrest people, immigration officials require only a violation of the civil immigration law, such as an expired visa.

Last week, authorities arrested Aftab Ali Khan, 27, and Pir Khan, a 43-year-old taxi driver, both of Watertown, and Mohammad Shafiq Rahman, a 33-year-old computer programmer from South Portland, Maine, on immigration violations as part of the investigation into the alleged bombing attempt by Faisal Shahzad on May 1.

US Attorney General Eric Holder said last week that investigators believed there was evidence the three men provided money to Shahzad, a former financial analyst from Bridgeport, Conn., through an informal money-transfer network.

On Thursday, government lawyers said Aftab Ali Khan had Shahzad’s cellphone number stored in his phone and written on an envelope in his bedroom. None of the three has been charged criminally.

In the local terrorism case and others, authorities can use immigration laws, including the threat of deportation, as leverage to get information. Earlier this year, New York subway bombing suspect Najibullah Zazi increased his cooperation with authorities after they threatened to charge his mother with immigration offenses and after they charged his Afghan-born father with crimes, according to an account in The Washington Post.

FBI spokeswoman Gail Marcinkiewicz said ICE is a key part of the Joint Anti-Terrorism Task Force in Boston, where federal, state, and local agencies regularly collaborate on antiterrorism efforts, she said.

“The reason we have task forces in this day and age is that not any one law enforcement agency can do it alone,’’ she said.

But civil liberties groups say the broad use of immigration laws leaves the system vulnerable to abuses. ICE and the immigration courts are not subject to the same public scrutiny as are the police and the regular court system. ICE routinely refuses to release detainees’ names, and their court files are not available to the public.

The agency has jailed 27-year-old Baskaran Balasundaram, a Sri Lankan, for nearly two years on concerns that he provided support to a terrorist group in his homeland, even though he said he had been kidnapped by them and forced to live like a slave. In 2009, a federal judge granted him asylum based on his story of kidnap and, later, torture by the Sri Lankan Army, but he remains in jail. The American Civil Liberties Union of Massachusetts is fighting in court for his release.

“Their public face is that they’re using immigration as a tool of law enforcement and say they’re really going after the worst of the worst,’’ said Laura Rótolo, staff attorney for the ACLU of Massachusetts. “But in reality, they’re deporting increasing numbers of people’’ who have not been convicted of crimes.

From fiscal years 2005-2009, the number of noncriminals in immigration custody nearly doubled, from 139,583 to 278,408, while the number of criminal detainees rose slightly from 93,834 to 105,116, according to Susan Long, managing director of the Transactional Records Access Clearinghouse at Syracuse University, which tracks immigration figures and other data.

ICE’s stated priority is to crack down on crime and terrorism, and to meet that goal, the agency’s budget has risen from nearly $3.6 billion in 2005 to more than $5.7 billion this fiscal year, according to agency figures.

Donald Kerwin — vice president of programs at the Migration Policy Institute, a nonpartisan think tank based in Washington — said the government should make national security the priority. The risk of detaining people for immigration violations, he said, is that if the government fails to build a criminal case against them, they may end up deporting them and setting them free in their homelands.

“That’s where the rationale falls apart,’’ Kerwin added. “If you really suspect that somebody was a terrorist sympathizer or somebody who provided material support, unless there was no possibility of a criminal case against them, why would you release them to their country of nationality where they could stage attacks against the United States?’’

Brian Kyes, police chief of Chelsea, the city with the state’s highest percentage of immigrants, said police in immigrant communities often walk a fine line with ICE to keep their communities safe. He makes clear that Chelsea police do not enforce federal immigration law, so that immigrants feel comfortable reporting crimes whether they are in the country legally or not.

But, Kyes said, he willingly works with ICE to arrest violent criminals and gang members. “I want to keep Chelsea as safe as possible,’’ he said. “It is another tool to prevent that person from going back out into the community and reoffending and putting our citizens at risk.’’

Maria Sacchetti can be reached at msacchetti@globe.com.

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