Scott Horton 0:10
All right, y’all welcome it’s 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 5000 interviews going back to 2003, all of which are available at ScottHorton.org. You can also sign up to the podcast feed. The full archive is also available at youtube.com/ScottHortonShow.
All right, so introducing Jonathan. Hey Fitz, senior staff attorney at the ACLU, welcome back to the show. How you doing?

Jonathan Hafetz 0:47
Very well in yourself.

Scott Horton 0:49
I’m doing great. appreciate you joining us here. And you know, I read this incredibly interesting story. I’m not sure if I ever heard about this specific case or not. Hum. mean, how soon 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?

Jonathan Hafetz 1:23
It’s a good question. He’s been held. Well, he was 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 to us essentially, he was caught up in some kind of broader operation and he was, he was convicted of basically giving money to or supporting charities in places like Chechnya. That We’re intended to uh, you know, it’s just people there during conflict 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 911. And he was anyway but anyway, that he was convicted and he was sentenced to a term imprisonment, the government sought to sentence him to a longer term, much longer term. But the the judge refused, said he was not a threat to national the US national security. And so the case was done. And then he was released from his prison term ended. And he’s a loser, longtime resident United States. He’s not at his family here, children born here, sister, he’s a 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 stateless Palestine. And 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’m thinking part because there, this administration’s ability to conduct diplomatic negotiations has been totally stymied by the Trump administration, which has got at the State Department. But in any event, they couldn’t find a place to transform to so rather than letting him go, after they weren’t able to deport him, they decided to keep him locked up on it. And one of the most sweeping versions of executive power that I’ve ever seen, they’ve they’ve they’ve they’ve invoked a patriot act, which was the legislation passed right after 911 overbroad legislation, and they’ve latched on to a provision that they actually haven’t used in 20 years since the back almost 20 years since the Act was passed. And and the provision says that if someone if a non citizen is ordered removed from the country or 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 post Quote, threaten national security or public safety and quote, and so they have invoked that claiming that Mr. Soon is a threat to national security and can’t be released. We think this is an unconstitutional statute 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 invoke the statute declared no review with the executive. The executive said you’re a national 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 got we get to lock them up maybe for the rest of his life. And we’ve challenged that in court and our our, 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. We’re supposed to start this On Wednesday of this week, Wednesday, November 24, 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.

Scott Horton 5:14
So they’ve admitted they don’t have a case to present or they’re not hiding behind secrecy or anything like that.

Jonathan Hafetz 5:20
They’re not 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 we you know, the if the under the district court’s ruling, we cannot prevail, and they that that means that they can’t they can’t prevail before court, where they have to show that Mr. As soon as a danger and the judge initially and

Scott Horton 5:43
then their argument is, but they shouldn’t have to show that he’s a danger because they can do this anyway.

Jonathan Hafetz 5:48
That’s exactly right. Their view is weak. The judge erred that the fundamental error was that the judge actually required that we have to put on proofs. So the only way they win the case is if if if the job they appeal If the appeals 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 supply providing a fair process and making you provide some shred of credible evidence to back up your claims. But if not, if the if the, you know, as we maintain and I think as manifest if there’s the 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 chilling.

Scott Horton 6:37
I mean, does it matter that he’s illegal immigrant and not an illegal immigrant or anything like that? I mean, clearly, he’s going to or less, but we’re talking about not deporting him but locking him up. So

Jonathan Hafetz 6:50
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 that Government invoking here is the same one invoked after, against us citizens after 911. On the in the military detention context where it said, we can lock you up indefinitely based on, you know, executive say so. And I think it’s another excellent point you make, which is he’s not challenging his removal I did. He’s eager to participate. He loves Americans. He’s had, you know, many wonderful experiences the United States, but he wants to just be free and he would be eager to go to another country just to live the room, his remaining years and freedom and peace. So he’s not he’s not challenging his right to remain in the US. 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.

Scott Horton 7:45
[ADS]

How much of your case is well, first you’re just trying to get the hearing but then obviously you have a case that he’s 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 unconstitutional overreach or how resigned are you to Their power to buy as he said, He’s not contesting his 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 them up indefinitely with a one good hearing?

Jonathan Hafetz 9:19
No, I think they absolutely do not. They this was this, this issue came up in a case called Zed vitesse, versus Davis, which decided in June of 2001. And it’s, you know, it’s not a, you know, it happens in a number of cases, in this case in vault where you have someone who’s, you know, been ordered removed based on a criminal conviction, including, you know, perhaps for violent, violent offenses of violence. The people in this case had been convicted of armed robbery and other violent offenses. they’ve they’ve served their time. And as in this advisors case, they serve their time and they then it’s time that you They get out the, you know, 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, you know, vague 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 has ruled that if once if, if a non citizen is been ordered removed, but after some period of time, you know, around, say around six months or so could be longer, but not much longer. If they are, if they if they if the government is unable to find a country to send them to, and their removal is not foreseeable, 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 the 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 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 a court, right to put on evidence to examine government witnesses, you know, what anyone in their, you know, what he understands is as basic due process, right, and that the judge agreed with us back in December and a ruling and said, You know, I’m not going to decide whether they could do this administered, you know, to someone who, in fact does pose a threat to the security but I want to find out what the what the facts are here first, and so I’m going to order a hearing and she ordered a hearing in December and you January, she told the government that if you have to put on actual witnesses, you can’t lie behind jailhouse informants and unreliable hearsay. And so we’ve been proceeding towards trial. And we were scheduled to have the five day trial report. It’s a bench trial before the judge on starting on June 24. And then six days before the trial was 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, you know, we’re saying give up, we’re giving up and enter judgment, or, you know, under judgment for Mr. Assume, but then they said, instead of saying, what 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.

Scott Horton 13:00
Yeah. And now, so about this guy’s statelessness in the first place. He said he’s born in Lebanon. So his parents are refugees, I guess, parents or grandparents? Yeah, he’s old enough. His parents were refugees from Israel. So Palestine 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 that you can’t send someone back to a refugee camp in Lebanon or what’s the deal with that?

Jonathan Hafetz 13:29
Well, I mean, he can’t his rubles not possible. I mean, if I mean, I think that they would have to you have to give him citizenship or you know, he would but he’s not able to can’t send him back there. So they’re trying to find another

Scott Horton 13:40
because because Lebanon already said under no circumstances will they take him

Jonathan Hafetz 13:44
or I mean, the data I mean, we don’t know the full details but he’s not doesn’t have citizenship. So he’s not able to go back there doesn’t have residency there. She’s not a citizen there. So he’s essentially still you know, he’s stateless. Is he stateless? Maybe

Scott Horton 13:54
you can live in an airport somewhere.

Jonathan Hafetz 13:57
Yeah, well, that would be better than his his car. situation in the federal prison in Batavia, which which also has one of the highest COVID-19 outbreaks or poverty or you know, number of cases of institution. So is he 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 a human, he’s just been, you know, kind of languishing, he’s done it. He has, you know, 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 his 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 confinement in Florida. We’re starting 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.

Scott Horton 15:09
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. 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 pedia 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 them 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. called the Randy Weaver treatment, you either become an informant for the government or else then we’re coming after you. And so no worries, 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 chechi in Afghanistan. Right. So what’s the problem?

Jonathan Hafetz 16:10
Right? It I mean, it’s it’s something that they’re like, it’s something that happened before 911 if there hadn’t been a 911, he never would have been prosecuted. It’s only it’s only because of that. I think that’s exactly right. I think that’s part of it, is it because, you know, they claim he didn’t do quote, unquote, cooperate or or do what they want there, they are still kind of seeking to punish him, and it’s very cruel.

Scott Horton 16:30
You know, what exactly was his association with video? Can you talk about that?

Jonathan Hafetz 16:35
I mean, the very minimal very minimum is in the case. And I mean, the Guardian, and the government never proved really anything and he didn’t have much association with him. So it was, and so that was, he was kind of lumped in. We’re really, I think, dia 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 the judge was it’s 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 this long sentence double the sentence the government wants and I think the judge would be appalled that Mr. That after serving his time is true as soon as still you know back in you know, he’s still in you know, facing like years more of us detention right.

Scott Horton 17:31
Of course, I mean, pedia was accused of plotting to set off dirty bombs and attack you know, American civilian apartment complexes with radioactive what have you and so this guy was associated with that I could are associated with him I’m not saying that was true at all, obviously was not to say that was the that was in fact the accusations that they had tortured out of poor Binya Mohammed into making against Jose Padilla. We know that but uh, if If this guy had been tarred with those same accusations at the same time as what I’m trying to say that could have certainly been detrimental to his case back then, right.

Jonathan Hafetz 18:08
Yeah, I think that’s right. I mean, being tried with someone who was linked even unfairly to this plot that was never proven and based on torture was not helpful at all for him.

Scott Horton 18:20
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.

Jonathan Hafetz 18:30
Yeah. So the judge, the government moved, as I said, they dropped the drop. They’re essentially dropped 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 conditioned and agreed upon conditions in place if he’s ordered release, but 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 freezes releasing cases. been locked up. So the judge we’re 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 out any evidence against him at the hearing that she ordered

Scott Horton 19:14
once now, by the term stay, I mean, that has a ring of temporary ness 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.

Jonathan Hafetz 19:37
Right well that’s their that’s their bottom line position is that they if Yeah, they’re not saying they will but they’re saying they have the power to keep them for the rest

Scott Horton 19:44
of us. Yeah, 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 them. But we don’t feel like we have to. that’s beside the point.

Jonathan Hafetz 19:53
Correct. This and the stay is just to keep him imprisoned while the May while the people plays out. That is while the court the appeals courts decide whether the government whether the government in theory is has any validity, which totally it does not have any that they can keep him for life. But what that means is, as soon 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, his bogus, right so it’s it’s just it’s just being it’s just another way to game for the government to try to gain the legal system and 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.

Scott Horton 20:35
Well, and here’s the thing too, is that in all those indefinite detentions, including Jose pedia, and including all of the 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. It’s been hiding out there that Bush and Cheney never tried to invoke this provision. That set No. I mean, this is like Israeli administrative detention after your sentence we get to keep holding Yeah,

Jonathan Hafetz 21:06
that’s exactly what it is. And I thought yeah, we think it’s unconstitutional and even added a minimum you need to get you actually have to have a fair hearing.

Scott Horton 21:14
Maybe we can ask Joe Biden he wrote the patriot act right

Jonathan Hafetz 21:19
right. Well, I think I would hope he would be a that you know, a future administration another 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 want it, they would think it’s a total abuse to do it here. And it’s just cool. Yeah, at least

Scott Horton 21:38
we have a choice we can count on the guy who wrote the thing to hopefully maybe not enforced that part of it. Coming up so big, big choice coming up in our election, everybody. Um, but yeah, no, all kidding aside, it well, as is obvious on the face of it, but it should 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.

Jonathan Hafetz 22:13
Well, thank you and thanks for your time. Appreciate that.

Scott Horton 22:15
Aren’t you guys that is Jonathan Heifetz. 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, Antiwar Radio can be heard on kpfk 90.7 FM in LA, APSradio.com antiwar.com ScottHorton.org and libertarianinstitute.org