Detained

Ohio was supposed to be their first taste of freedom.

All Israelis enter the military at 18, and getting out of the service is generally their first experience away from the authority of parents and ranking officers. Traditionally, many Israelis take a year or so to travel and let off steam before starting college or a career, working and playing their way through interesting places like Thailand, Brazil, and ... Findlay, Ohio.

In a small city in northwest Ohio, 11 twentysomething Israelis, recently discharged from the military, would have made for exotic neighbors: sharply dressed, their hair styled in wild curls and long sideburns, their speech a tangle of gutturals, their various complexions ranging from pale and freckled to dark Sephardic olive. Eleven of them in three apartments would not have helped the impression they may have made in this rural corner of the state, that they were possibly a terrorist cell.

Or maybe they somehow spooked shoppers at the malls at which they worked, since Americans had been warned that malls were potential terrorist targets. Who tipped off the Immigration and Naturalization Service (INS) -- if it was in fact a tip-off -- is not known, but on the morning of October 31, only a few weeks after the Israelis had come to Ohio, the FBI and INS raided their apartments.

"We figured it was a mistake, so we sat really calm," says Ori Ben Tur, a 22-year-old from Haifa who was in Findlay with his girlfriend, one of two women in the group. They were told not to bother bringing a change of clothes or anything to read, and then whisked away to INS district offices in Cleveland.

The INS "had lots of paperwork to do," says Liran Diamant, a ponytailed 24-year-old from a small town north of Tel Aviv. "It wasn't interrogation. It was just a few questions. It seemed like they already knew what they had to know."

For most of that first day, the Israelis were under the impression that they would be able to return to Findlay soon enough. Ben Tur says that he didn't get nervous until after a night in Broadview Heights city jail, when they were all given orange jumpsuits to wear and then cuffed at the wrists and ankles. The restraints remained in place even in the holding cells and for meals.

"No one was protecting us," Ben Tur says. "No one knows we are there." They also were not allowed to make international calls home with their calling cards.

It was the worst kind of limbo. They weren't given bond, nor were they going to be deported. "They said they needed to keep us in jail for some reason, and didn't say why," says Ben Tur. In their frustration, the detainees begged to be asked questions, but for Ben Tur and Diamant, at least, the FBI interrogations were brief, 15 minutes to half an hour.

"We just wanted to do everything in order to help," says Diamant. "If the FBI looked for something, we wanted them to find it."

Allegedly, the Israeli 11 violated their visas by selling toy helicopters and other holiday gift items at nearby shopping malls for Quality Sales, a Miami-based retail company. Tom Dean, an attorney for Quality Sales, says the year-old company, owned by a young Israeli couple, covered living expenses. In exchange, the Israelis would work at mall kiosks as unpaid "trainees" for six months, with the ability to transfer to other cities where Quality Sales operates.

While the INS said that this kind of work was out of bounds, it also designated their cases "special interest," indicating that the arrest was related to the domestic terror sweep.

The Israelis were brought to the Federal Building in Cleveland for processing, where the INS deviated from custom and refused to grant them bond. After two weeks in local jails, a federal immigration judge ordered their release, citing a lack of any evidence that they presented a threat to the community. Despite the order, the INS succeeded in holding two of the Israelis for a full month.

As far as it is possible to ascertain, the Israeli 11 account for most of the terror-related suspects detained in the Cleveland area for any duration. More significantly, the two Israelis held for a month were the first in the country subjected to a new federal rule -- quietly entered into the books just days before their arrest -- that allows law enforcement officials to effectively overrule immigration judges. Essentially, the rule change makes the facts of a case irrelevant; and this is just one of the many traditional safeguards of defendants' rights that have been sacrificed in the interests of national security since the terror attacks.

"This was the first time in my career that I could not explain to a client why they were being held in detention," says the Israelis' attorney, David Leopold, who heads Case Western Reserve University's immigration law program, and chairs the state bar of immigration attorneys. "I could not and still can't. It just doesn't make sense."

The FBI never bothered to present any evidence to support their stated suspicions of the Findlay Israelis -- not even when the immigration judge offered to hear the evidence in secret. The best the Israelis themselves can figure, the INS checked on their work status after the owner of their building complex noticed funny names on their leases.

Tom Dean, the attorney for Quality Sales, says that while the FBI claimed the company itself was under investigation -- one stated reason for the Israelis' detention -- the agency showed no interest in questioning the company's owners, or seeing a list of employees or any other information Quality Sales could provide.

Needless to say, Israeli Jews, the one group of people whom al-Qaeda conspirators and Osama bin Laden hate even more than they hate Americans, make for surprising suspects. Or, at least, rare ones. According to U.S. Attorney General John Ashcroft's latest update, the domestic terror probe has filtered 1,200 people in and out of detention, with thousands of "interviews" with Arab and South Asian immigrants underway. As of Nov. 27, about half of those 1,200 past or current detainees were in custody on alleged immigration violations, nearly all of them, it is purported, citizens of countries in South Asia, North Africa or the Middle East. News reports inform us that among them, about 60 Israeli Jews were detained nationwide.

It may very well be that these detentions are evidence that the FBI's effort to investigate terrorism is no more carefully targeted than mass racial profiling will allow. But it is difficult to conclude much of anything about the secret terror investigation when courtrooms are closed to reporters, cases don't appear on the official docket, the Justice Department won't release the identities of detainees or comment in any way, and only random chance or an attorney determines whether the details of a case can even be known.

All that happened to the Israelis in those first days occurred in the absence of legal representation. Immigration cases are considered civil, not criminal, matters, and so, the right to counsel isn't an absolute right. If poor or unconnected detainees can't find adequate counsel, the court isn't going to provide one. That's one major reason why, even in normal circumstances, many, if not most, detainees don't have representation.

After Sept. 11, it became even more difficult.

The Justice Department withheld the names of detainees, so groups like the American Civil Liberties Union that want to represent those caught in the dragnet have been forced to sue to discover identities. Luckily for the Israelis, at least one of them had sufficient American connections to be able to retain Leopold's help.

If many of the Israelis at first hesitated to retain an attorney, it was because they were told that they would be processed more quickly if they didn't. When they began to sense that their captors were in no hurry to move the process along, those who hadn't already done so asked Leopold -- who had been contacted by the uncle of one the detainees -- to represent them as well.

The nine men were soon moved to Medina County Jail. Diamant thinks the INS and FBI were slow-moving, rude, and unresponsive "jerks," but the jail population paid them no mind, he says, and for jail it wasn't that bad. They had easy access to Leopold, and the mother of Oren Behr, one of the two men held for month, was even able to visit her son; she flew in from Israel and rented a room at a hotel in nearby Lodi.

All just wanted to get out and get back to Israel, but after initially refusing bond, the INS -- most likely taking orders from Washington, says Leopold -- began to delay their bond hearings.

An immigration case may be civil, says Leopold, but "it looks criminal, it feels criminal, it acts criminal ... People can be locked up on basically no evidence. The mere allegation of an immigration violation can give someone the power to lock someone up indefinitely."

Leopold says it didn't take long after Sept. 11 before he received the first clue of the massive domestic dragnet to come. He was representing a drug offender from Central America who had been detained by the INS. Within days of the terror attacks, the detainee was freed, far sooner than normally could have been expected. He says it was as if they couldn't release his client fast enough.

For the next two months, holding cells across the country were needed for the roundup of people who might be linked to terrorist activity. Since around the end of October, there have been indications that investigators have been getting desperate for suspects. Alleged status violators, according to a mostly uninformative Justice Dept. disclosure, only represented a small proportion of those detained in the first month of the investigation. But they represented nearly the entire increase in detainees when Ashcroft announced new numbers on Nov. 27.

Of course, overstaying a visitor's visa doesn't inspire quite the same excitement as, say, possession of a bogus license to carry hazardous materials, and one hopes that investigators' suspicions are based on something more substantial than mere visa technicalities. There is little evidence that this is the case. Two weeks ago, senior law enforcement officials told The New York Times that only about a dozen, or 2 percent, of the immigration-related detainees "are believed to have terrorist ties."

Diamant and Ben Tur were the only members of the group of Israelis who would talk to the Free Times about their experience. The others were either uncomfortable with their English skills, worried about saying something that would get them in trouble, or simply tired of the whole ordeal. Towards the end of his interview, conducted just a few days before he was to fly back to Israel, Ben Tur grew increasingly anxious.

"If someone came to your apartment and put you in jail for two weeks," says Ben Tur, "you'd be a careful guy. A month ago, I wouldn't think something like this could happen to me. I don't want to say something stupid. I'm afraid of the INS. Maybe I'm paranoid. What can I say? They arrested me. Maybe they can do it again?" Both referred questions about the alleged immigration violations to their attorney.

"All of them had valid visas," says Leopold. "None of them entered the country illegally, none of them." At issue, according to each document of charges, was work status, whether or not the visitor's visa each possessed allowed them to work the mall kiosks.

"These kids, if anything, were victimized by Quality Sales," says Leopold. "They were all led to believe that they had the right visas."

Tom Dean, Quality Sales' attorney, doesn't dispute that the Israelis thought their visas were adequate. Quality Sales thought so, too, based on bad legal advice given to the company's owners by a previous immigration attorney who incorporated Quality Sales last year and established its structure. The advice was based on wording in immigration rules that allows visitors to be unpaid "trainees." Dean says Quality Sales has abandoned the arrangement, but says that it's very similar to one that many other retail companies around the country use. It's good for the companies, for obvious reasons, and it's good for the Israeli "trainees" who are able to travel inexpensively in the U.S.

The Findlay Israelis did not want to fight over visitor status; they just wanted to go home. So when Leopold first got involved, he says, he made a handshake deal with INS that the Israelis would depart voluntarily for Israel. This involved accepting the charges as they appeared on the documents (although Leopold still questions whether the allegations would have stuck). If it were a criminal trial, one might call it a plea bargain, with the defendants agreeing to leave the country within 30 days.

But then came the hearing delays. The INS and FBI said they didn't have enough agents to investigate and needed more time, says Leopold. Then, when the hearing took place, the feds argued that Quality Sales was being investigated. No evidence was presented to the federal immigration judge, Elizabeth Hacker, that the Israelis represented a threat, or that Quality Sales was up to no good.

"I can understand when you're talking about somebody with evidence of terrorist involvement, you know, you need to use the custody rules," says Leopold. "But here, what really stuns me is that the government was given every opportunity. This judge ... bent over backwards, in my opinion, to the government to bring in any shred of evidence of terrorist activity, national security threat or public harm. I guarantee that if there was any evidence backing the government claim that this was a 'special interest' case, she would never have given bond. No way."

Judge Hacker gave bond to all 11 Israelis, and on Nov. 16 the first nine left jail. Leopold made his Beachwood home available as a crash pad. "The government called it 'special interest,' so we took a special interest," he comments. Two Israelis, however, would remain at Medina County Jail after the INS appealed their bond release. This was when the recent, unpublicized change in immigration rules, which made immigration judges and case facts irrelevant, became known.

Attorney Dean says Quality Sales only got into the mix after the Israelis in Findlay, and six Israeli trainees in Kansas City, Mo., were picked up by the INS. Quality Sales itself was never investigated. Dean says he traveled to Cleveland to meet with the INS and FBI, but when he sat down with the INS, he was told the FBI had begged off. "They didn't care ... I was informed the FBI wasn't interested in hearing about it."

Dean says the INS told him it was concerned that "maybe individuals related to a terrorist organization may have inserted one or more individuals into an organization like Quality Sales."

Dean also says that when he offered to hand over Quality Sales files, including the names of everyone who had worked for the company, they "didn't want to see that, didn't want to see anything."

A confused Dean called up other immigration attorneys and the Israeli consulate to brainstorm reasons why Israeli Jews were being caught up in the terror dragnet. The only reason they could come up with was that the FBI was seriously entertaining the crazy theories found on the internet and in the popular press in many Islamic countries, that Israeli intelligence masterminded the Sept. 11 attacks.

"That was the only thing we could scrape up," he relates.

Another theory held that the FBI was worried that Israeli intelligence was spreading out over the U.S.

"It defies logic," comments Leopold. "Any suggestion that Israeli intelligence interests would place a group of Israelis living openly in the middle of rural Ohio is ridiculous ...You can suggest and you can allege whatever you want, in any case, at any time. Whether it makes any sense is another story."

"Israel is a big friend of the U.S.," says Ori Ben Tur, both angered and baffled. "We're the only democracy in the Middle East. Did you know there was a memorial day [there] for Sept. 11? So why suspect Israel? We're fighting terrorism every day."

The situation put the Israelis in an unusual position. They are critical of new American methods of dealing with domestic terrorism, when it's Israel that's often criticized on similar grounds.

"It's totally different issue, yeah?" says Diamant. "It's a different conflict. If you talk about civil liberties, Israel at the moment is better than the U.S., no question about it. It's very problematic now to be a foreigner in the U.S., and Israel is not like that." When the question is narrowed to the Israeli/ Palestinian conflict, Diamant says, "I'm not a politician, I can't answer you about it."

At a Nov. 27 hearing at the Federal Building, all 11 got the voluntary departure for which Leopold had already settled, and that night, the last two were released from Medina County Jail, Oren Behr into the waiting arms of his mom.

While the FBI never clarified how these last two were different than the other nine, they were to remain under "safeguard order." "I have no idea what that means," says Leopold. The INS wouldn't return a call for comment.

Many of the Israelis were planning to leave the country within days, and were frantic to sell their cars and put their affairs in order. But the evening of Nov. 27, the same day the FBI released its grip, several of them had Cavs tickets and were going to see Michael Jordan, back from retirement to play for the Washington Wizards. Liran Diamant said it was a lifelong dream of his. But Jordan, the great American icon, was no longer on his game, and the next day Diamant expressed his deep disappointment.

The largest investigation in American history has disregarded many of what are now called the "niceties" of due process and traditional judicial transparency. Most of us would agree that this makes sense when talking about people held on a reasonable suspicion of taking part in terrorist activity. But what if there is no reasonable suspicion?

As a matter of law, the rights of non-citizens under the Constitution are much more limited than they are for citizens, but rights do exist. And guarding the spirit of the Constitution is another matter.

"It's egregious to hold people for a month, when it's pretty clear within a matter of hours that none of them is a threat to anybody at all, period," says Leopold. "And that shouldn't be happening in this country, and particularly not happening at this time, when there need to be people who need to be investigated pretty carefully. Why waste time on people who obviously have nothing to do with September 11?"

When Leopold passionately argues that suspecting Israelis of terrorism against the U.S. is silly and wasteful, he's not at the same time arguing that the roundup of non-Jewish visitors from the Middle East and South Asia -- representing the vast majority of investigation targets -- makes sense. On the contrary, he suggests that the experience of the Findlay Israelis may shed some light on the possibly minimal standards being used to incarcerate most everybody. In other words, the exception may prove to be the rule.

These days, civil liberties are no longer considered the weave of the American fabric; they are shiny medals to be put away when dress grays are exchanged for camouflage. Civil libertarians are spoken of as an obsessive cult. Yet even those who weigh in favor of "national security" should be concerned. As Leopold suggests, when FBI agents use the strict letter of immigration law, rather than the spirit of Constitutional law, to jail people blindly and then keep them there arbitrarily, no matter their country of origin, the agency is also wasting valuable investigative manpower and financial resources better used elsewhere.

But even worse is the possibility that, by only ringing up the number of detainees, and not allowing us to judge for ourselves how weak the cases may very well be, the Justice Department plays a public relations game designed to make Americans feel more secure than we really are. And in a war without definite objective, and therefore possibly without end, we may be kept in the dark for a long time.

"It's a shame that America can consider itself a big democracy," says Ori Ben Tur. "It became a big bureaucracy."

David Morton is the news editor at Cleveland Free Times.

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