6/26/20 Jonathan Hafetz on the Plight of Adham Amin Hassoun

All right, y'all, welcome to the Scott Horton Show.
I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
We can also sign up for the podcast feed.
The full archive is also available at youtube.com slash scotthorton show.
All right, y'all, introducing Jonathan Hayfitz, Senior Staff Attorney at the ACLU.
Welcome back to the show.
How are you doing?
Very well, and yourself?
I'm doing great.
Appreciate you joining us here.
And you know, I read this incredibly interesting story, I'm not sure if I've ever heard about this specific case or not, Adham Amin Hassoun, and I hate to quote the Daily Beast, but I do somewhat respect Spencer Ackerman, so okay.
It's a Spencer Ackerman article at the Daily Beast, and it says here that you guys have been representing this guy, and that he has been held since when and for what, again?
It's a good question.
He's been held, well, he was convicted in the 2000s for what's called material support for terrorism, but as the judge in his case found, he actually had nothing to do with a group like Al-Qaeda, and was not directed the U.S.
Essentially, he was caught up in some kind of broader operation, and he was convicted of basically giving money to, or supporting charities in places like Chechnya that were intended to assist people there during conflicts in Bosnia and Chechnya.
Nothing directed the United States, and he was caught up in the overreaction and the sweeping kind of abuse of authority after 9-11, but anyway, he was convicted, and he was sentenced to a term of imprisonment.
The government sought to sentence him to a longer term, much longer term, but the judge refused, said he was not a threat to the U.S. national security, and so the case was done, and then he was released from, his prison term ended.
And he's a, although he's a longtime resident of the United States, he's not, you know, his family here, children born here, sister, he's not a citizen, and so he was, he was ordered removed from the country, he was going to be deported after his term of imprisonment ended.
The problem is that he's a stateless Palestinian, he was born in Lebanon, doesn't have Lebanese citizenship, and the government was not able to locate a country to deport him to.
I think in part because they're, this administration's ability to conduct diplomatic negotiations has been totally stymied by the Trump administration, which has gutted the State Department.
But in any event, they couldn't find a place to transfer him to, so rather than letting him go after they were unable to deport him, they decided to keep him locked up on one of the most sweeping versions of executive power that I've ever seen.
They've invoked the Patriot Act, which was the legislation passed right after 9-11, overbroad legislation, and they've latched onto a provision that they actually haven't used in 20 years, in fact, almost 20 years since the act was passed.
And the provision says that if someone, if a non-citizen is ordered removed from the country, ordered deported, and they can't be removed, and it's clear there's no country that they can be sent to, they can be detained indefinitely if they pose, quote, a threat to national security or the public safety, end quote.
And so they have invoked that, claiming that Mr. Assoon is a threat to national security and can't be released.
We think this is an unconstitutional statute, it essentially allows for the government to imprison people without charge.
But we've also fought, said, well, if you're going to invoke it, you've at least got to give him a fair hearing in court.
And we've been fighting for that for the last six months.
The government's view was initially that if they invoked the statute, that there were no review.
If the executive said you're a threat to national security, that's the end of the story.
There's no judicial review of the facts.
No one gets to examine them, it's just trust us.
We think this person's a danger, we get to lock him up maybe for the rest of his life.
And we've challenged that in court and we're ready to go for a hearing, all set to where we're ready to challenge and expose the government's allegations as lies.
It was supposed to start on Wednesday of this week, Wednesday, November 24th, it was supposed to start.
And the government at the last minute said, guess what?
We have no case, we can't prove our case.
But it's still trying to keep him locked up.
So they've admitted they don't have a case to present or they're not hiding behind secrecy or anything like that?
They're not hiding behind secrecy.
There's no secrecy.
There's no classified information.
They said we can't meet the burden that the district court established in the case.
And under the district court's rulings, we cannot prevail.
And that means that they can't prevail before court where they have to show that Mr. Assoon is a danger.
The judge initially imposed it.
So but then their argument is, but they shouldn't have to show that he's a danger because they can do this anyway.
That's exactly right.
Their view is we, the judge erred, that the fundamental error was that the judge actually required that we have to put on proof.
So the only way they win the case is if, if, if, if the judge or the appeals court says you're correct government, you don't need to put on any evidence.
And the judge erred by actually holding a hearing, you know, supply, providing a fair process and making you provide some shred of credible evidence to back up your claims.
But if not, if, if, if the, you know, as we maintain and I think is manifest, if there's a constitution requires that you get a hearing before you're locked up for the rest of your life and you get a chance to, you know, to, to examine the evidence and to present your side to the judge, then the government loses.
But their position is, is chilling.
I mean, does it matter that he's a legal immigrant and not an illegal immigrant or anything like that?
I mean, clearly his protections are going to be less, but we're talking about not deporting him, but locking him up.
So great question.
It makes no difference.
He's in the United States.
He's he's protected by the due process clause as a as a longtime resident.
I mean, the theory of the government invoking here is the same one invoked after against U.S. citizens after 9-11 in the military detention context where it said, we can lock you up indefinitely based on, you know, executives say so.
And I think it's another excellent point you make, which is he's not challenging his removal.
Indeed, he's eager to participate.
He loves Americans.
He's had, you know, many wonderful experience in the United States, but he wants to just be free and he would be eager to go to another country just to live his remaining years in freedom and peace.
So he's not he's not challenging his right to remain in the U.S.
He's just challenging his right not to be locked up, that if they can't deport him and he can't be removed, at least until he's another country is found, he shouldn't have to languish behind bars.
Hey, guys, Scott Horton here from Mike Swanson's great book, The War State.
It's about the rise of the military industrial complex and the power elite after World War II, during the administrations of Harry Truman, Dwight Eisenhower and Jack Kennedy.
It's a very enlightening take on this definitive era on America's road to world empire.
The War State by Mike Swanson.
Find it in the right hand margin at scotthorton.org.
Hey, y'all, Mike Swanson is a successful Wall Street trader with an Austrian school understanding of the markets, and therefore he has great advice to share with you.
Check out Mike's work and sign up for his list at wallstreetwindow.com.
And that's what you'll get, a window into all of Mike's trades.
He'll explain what he's buying and selling and expecting and why.
I know you'll learn and earn a lot.
Wallstreetwindow.com.
That's wallstreetwindow.com.
How much of your case is, well, first you're just trying to get the hearing, but then obviously you have a case that you would like to present that he's not a threat, but first you're trying to argue that they can't even do this.
This is an unconstitutional overreach, or how resigned are you to their power to, well, as you said, he's not contesting his removal, but, well, as you said, he's a Palestinian refugee.
He can't go home.
And so since he has nowhere to go, do they have the right to lock him up indefinitely with one good hearing?
No, I think they absolutely do not.
This issue came up in a case called Zedvitus versus Davis, which decided in June of 2001.
And it happens in a number of cases, in this case where you have someone who's been ordered removed based on a criminal conviction, including perhaps for violent offenses of violence.
The people in the Zedvitus case had been convicted of armed robbery and other violent offenses.
They've served their time, as in the Zedvitus case, they served their time and then it's time that they get out the, what used to be the INS, the Immigration Naturalization Service, now it's DHS or ICE, takes custody of them in order to remove them.
But because of some, for some reason, they may have some issue, they can't, they're stateless or there's a concern they'll be tortured in their home country, they can't be removed.
And so the court in Zedvitus ruled that if once, if a non-citizen is being ordered removed, but after some period of time, around, say around six months or so, could be longer, but not much longer, if they are, if they, if the government is unable to find a country to send them to and their removal is not foreseeable, it's like, looks like they're not going to be able to find a country, they have to be ordered released unless they're going, you know, that's it.
They can't just, you can't keep people locked up.
So that was the settled law.
And after that, the government passed a, well, the Congress passed a statute, the Patriot Act, and there was a provision in there saying that may be the law, but if we say it's national security, that's different.
And then we can just keep you.
And we think this is, you know, unconstitutional, like the government could not do this under any circumstances, but, and we've made that argument to the court, but the other argument and the one that we've been focused on for the last, you know, since last year has been, if the government's going to do that, it has to at least give the person a fair hearing before court, right.
To put on evidence, to examine government witnesses, you know, what anyone in there, you know, what he understands is as basic due process, right.
And the judge agreed with us back in December in a ruling and said, you know, I'm not going to decide whether they could do this to someone who in fact does pose a threat to the security, but I want to find out what the facts are here first.
And so I'm going to order a hearing.
And she ordered a hearing in December.
In January, she told the government that if you have to put on actual witnesses, you can't lie behind jailhouse informants and an unreliable hearsay.
And so we've been proceeding towards trial and we were scheduled to have the five day trial or it's a bench trial before the judge on starting on June 24th.
And then six days before the trial was supposed to start, the government said they filed a notice saying we're moving to cancel the trial, cancel the hearing, because we can't meet the burden.
We can't we can't prove our case to a judge, basically.
And so we're we're we're saying we give up, we're giving up and enter judgment or enter judgment for Mr. Assume.
But then they said instead of saying, well, allow him to go free.
They said enter judgment, but then stay your judgment, freeze your judgment so we can appeal your decision to a higher court and keep him locked up while we fight over this question of whether we can imprison someone based solely on on executive say so.
Yeah.
And now.
So about this guy's statelessness in the first place, you said he's born in Lebanon.
So his parents are refugees, I guess.
Parents or grandparents.
Yeah.
He's old enough.
His parents are refugees from Israel.
So Palestine, what was Palestine?
But so they can't send him back to Lebanon or if they did, he'd have to go to a refugee camp in Lebanon.
And is that against the law that you can't send someone back to a refugee camp in Lebanon or what's the deal with that?
Well, I mean, he can't.
His removal is not possible.
I mean, if I mean, I think that they would have to, you know, Lebanon to give him citizenship or, you know, but he's not able to can't send him back there.
So they're trying to find another cause because Lebanon already said under no circumstances will they take him or I mean, I mean, we don't have the full details, but he's not doesn't have citizenship.
So he's not able to go back there.
It doesn't have residency there.
She's not a citizen there.
So he's essentially state, you know, he's stateless, he's stateless.
Maybe he can live at an airport somewhere.
Yeah, well, that would be better than his his current situation in the federal prison in Batavia, which which also has one of the highest COVID-19 outbreaks or, you know, number of cases of institution.
So I should say his hearing was supposed to be in April, but got just compounding the unfairness got delayed for two months because of the COVID-19 coronavirus crisis.
So he's he's just been languishing.
He's done it.
He has health issues.
And he also, you know, to facilitate his release, prompt release, he also agreed to, I think what I would say are very stringent conditions, especially since, you know, he's as he maintains is as is completely innocent and the government hasn't put on any evidence to the contrary.
But he just, you know, in order to address any potential concerns the government or court might have.
He said, I will remain, you know, essentially in a home home confinement in Florida, where a sister resides and the government can watch me.
They can surveil me.
I don't care.
I just don't want to be in jail anymore.
I don't want to die in jail.
Yeah.
Oh, man.
All right.
Well, and, you know, it is important here, too, as they say in the article about how they were trying to get him to become an informant.
In fact, this was we found out later, I guess I know you know this, but it took years for this to come out that, in fact, they were trying to get Jose Padilla to become an informant, which raised a lot of questions why he was so dangerous that they had to turn him over to the military and the CIA when, in fact, he was so harmless that they were going to put him on the streets.
If only he would be a rat for them.
And apparently it turns out all that they dished up for him was really punishment also for not going along.
Call it the Randy Weaver treatment.
You either become an informant for the government or else then we're coming after you.
And so, in other words, this guy never really did anything in the first place.
Oh, they accused him of sending some money, I guess.
And he said that he was sending them to America's allies in the Balkans and Chechnya and Afghanistan.
Right.
So what's the problem?
Right.
I mean, it's something that if they're like it's something that happened before 9-11, if there hadn't been a 9-11, he never would have been prosecuted.
It's only because of that.
I think that's exactly right.
I think that's part of it is that because, you know, they claim he didn't do, quote, unquote, cooperate or do what they want there.
They are still kind of seeking to punish him.
And it's very cruel.
Now, what exactly was his association with Padilla?
Can you talk about that?
I mean, the very minimal, very minimal, I mean, this is in the case and just I mean, the government never proved really anything and he never had much association with him.
So it was and so that was he was kind of lumped in.
Well, really, I think Padilla was lumped in.
One of the two were lumped into the same prosecution and that and that, I think, was harmful to him.
But at least he at least he avoided a long, you know, the sentence that the government was trying to give him.
And the judge said some very strong things about him, said, look, under the law, what you did may be a crime, but I don't think you pose a danger.
I'm not going to give you the long sentence, double the sentence the government wants.
And I think the judge would be appalled that Mr. that that after serving his time, Mr.
Asun is still, you know, back in, you know, he's still, you know, facing like years more of detention.
Right.
Well, of course, I mean, Padilla was accused of plotting to set off dirty bombs and attack, you know, American civilian apartment complexes with radioactive, what have you.
And so if this guy was associated with that, I could associated with him.
I'm not saying that was true at all, obviously, was not saying that was the that was, in fact, the accusations that they had tortured out of poor Binyam Mohamed into making against Jose Padilla.
We know that.
But if if this guy had been tarred with those same accusations at the same time, is what I'm trying to say.
I mean, there's certainly been detrimental to his case back then.
Right.
Yeah, I think that's right.
I mean, being tried with someone who was linked, even if unfairly, to this plot that was never proven and based on torture was not helpful at all for him.
Yeah.
All right.
So and I'm sorry.
Tell me where it stands again.
As far as you have your hearing that has been ordered coming up again sometime soon.
Yeah.
So the judge, the government moved.
As I said, they drop, they drop, they essentially drop their case that we can't prove our case.
But they said issue a what's called the stay of release.
Right.
They know he's going to be released.
That we've actually conditions and agreed upon conditions in place.
If he's ordered release, whether they don't order his release, we we want you to stay it.
And then we and then if you don't do that, we are considering going to a court of appeals to try to get them to to stay it and freeze his release and keep him locked up.
So the judge were now in the process of filing legal papers on whether the judge should stay his release even after the government said they couldn't put on any evidence against him at the hearing that she ordered months now.
By the term stay.
I mean, that has a ring of temporariness to it.
But it sounds like what you're saying is they want to invoke national security and say that under this statute, under this part of the Patriot Act, they can keep this guy for the rest of his life.
Nothing temporary about it, that the government, the court, they're asking the court to butt out and let them continue to hold the guy, right or not?
Right.
Well, that's their that's their bottom line position is that they if you know, they're not saying they will, but they're saying they have the power to keep him for the rest of his life.
Never mind making a case that never mind that you're right that, yeah, no, we don't we can't make a case against him, but we don't feel like we have to.
That's beside the point.
Correct.
And the stay is just to keep him imprisoned while the while the appeal plays out.
That is, while the court, the appeals courts decide whether the government, whether the government's theory has any validity, which it totally does not have any, that they can keep him for life.
But what that means is Mr. Asun, practically speaking, would be in jail for months, even years more, while the appeals courts decide whether or not the government's totally bogus theory is bogus.
Right.
It's just it's just it's just another way to game for the government to try to game the legal system and manipulate it to try to keep him locked up, which after they didn't put on any evidence, they didn't even try.
And that's what's so appalling about this case.
Well, and here's the thing, too, is that in all those indefinite detentions, including Jose Padilla and including all of what thousands, couple thousand American Muslims who were rounded up and held as material witnesses and all these things that this is the first time you said that they have invoked this part of the Patriot Act that's been hiding out there that Bush and Cheney never tried to invoke this provision that said, no, I mean, this is like Israeli administrative detention after your sentence.
We get to keep holding you.
That's exactly what it is.
And it's you know, we think it's unconstitutional.
And even at a minimum, you need to get it.
You just have to have a fair hearing.
Maybe we can ask Joe Biden.
He wrote the Patriot Act, right?
Right.
Well, I think I we hope he would be that, you know, a future administration, other mission wouldn't do this once they actually see at least even if they want to have the power for the you know, for for some future case.
We don't think it's constitutional, but even if they wanted, they would think it's just a total abuse to do it here.
And it's just cruel.
Now, at least we have a choice.
We can count on the guy who wrote the thing to hopefully maybe not enforce that part of it coming up.
So big, big choice coming up in our election, everybody.
But yeah, no, all kidding aside, it it well, as is obvious on the face of it, but it shouldn't just go without saying all the time.
If you guys weren't fighting this fight, there might not be somebody fighting it.
And at the bottom line, you know, if there's nobody there to stick up for the Bill of Rights, we don't have one.
So thanks.
Well, thank you.
And thanks for your time.
Appreciate that.
All right, you guys.
That is Jonathan Hayfitz.
He is senior staff attorney at the ACLU.
And you can read all about this case.
Spencer Ackerman at the Daily Beast.
Government case collapses against man jailed indefinitely under Patriot Act.
The Scott Horton Show and Antiwar Radio can be heard on KPFK 90.7 FM in LA, APSradio.com, ScottHorton.org and LibertarianInstitute.org.