NYTimes: Inside America's secret new justice system

"It took no more than a week for James Wynne, a veteran FBI investigator, to confirm the harmless truth, and now, two years later, he is ready to talk about it: The small, foreign-looking man he had helped arrest for videotaping outside a tall office building in Queens, New York, on Oct. 25, 2001, was no terrorist.
He was a Buddhist from Nepal planning to return there after five years of odd jobs in at places like a pizzeria in Queens and a flower shop in Manhattan. He was taping street scenes to take back to his wife and sons in Katmandu. And he had no clue that the tall building that had drifted into his viewfinder happened to include an office of the Federal Bureau of Investigation.
Yet by the time Wynne filed his FBI report a few days later, the Nepalese man, who spoke almost no English, had already been placed in solitary confinement at a federal detention center in Brooklyn just because his camcorder had caught a building with an FBI office on three of its 12 floors. He was then swallowed up in the government's new maximum security system of secret detention and secret hearings, and his only friend was the FBI agent who had helped put him there.
Except for the videotape - "a tourist kind of thing," in Wynne's estimation - there was not a shred of evidence against Purna Raj Bajracharya, 47, who came from Nepal in 1996. His one offense, staying to work on a long-expired tourist visa, was an immigration violation punishable by deportation, not jail. But he wound up spending three months in solitary confinement before he was sent back to Katmandu in January 2002, and to release him from his shackles, even Wynne needed help.
The clearance process had become so byzantine that Wynne could not hasten it. Unable to procure a release that officially required signatures from top antiterrorism officials in Washington, he took an uncommon step for an FBI agent: he called the Legal Aid Society for a lawyer to help the jailed man.
Now, two years later, Wynne and the Legal Aid lawyer, Olivia Cassin, agreed to talk for the first time about the case and their unlikely alliance. Their documented accounts offer a rare, firsthand look into the workings of a secret world.
Within 10 days of the Sept. 11 attacks, the Justice Department instructed immigration judges that all cases designated as "special interest" were to be handled in closed courtrooms, without visitors, family or reporters, and without confirming or denying whether a case was on the docket. The secrecy left detainees with little or no access to lawyers.
Visa violators would be held indefinitely, until the FBI was sure they were not involved in terrorism. Because he was a visa violator who had engaged in a suspicious activity, Bajracharya was among hundreds placed in the special interest category, and his case was wiped from the public record.
Mark Corallo, a spokesman for the Justice Department, said that though he was unfamiliar with the case, the system of secrecy Bajracharya encountered is lawful and necessary. "The idea that someone who has violated our immigration laws may be of interest on a national security level as well is an unfortunate reality, post-9/11," he said. Closed hearings are legal as long as due process is provided, he said, and all abuses will be dealt with.
But Cassin, the Legal Aid lawyer, argues that under this secret practice, there is no way to know whether noncitizens are being unfairly detained. "By its very nature," she said, "it can happen again without our knowing about it."
Bajracharya was finally returned to Nepal on Jan. 13, 2002. By then he had spent almost three months in a 6-by-9-foot cell kept lighted 24 hours a day. The unit of the Metropolitan Detention Center in Brooklyn where he was held has become notorious for abuses documented by the Justice Department's own inspector general, who found a pattern of physical and mental mistreatment of post-9/11 detainees. Videotapes showed officers slamming detainees into walls, mocking them during unnecessary strip searches and secretly taping lawyer-client conversations.
Wynne would not comment on detention policies, and said that he should not be "held out as the one lone person who did the right thing." But during an extended interview approved by his FBI superiors, he read aloud from phone logs documenting desperate messages from the man's family in Katmandu, his efforts to reassure Bajracharya, and his dawning recognition that no resolution was in sight.
"I told Purna that I would try to help him, that I wouldn't forget about him," Wynne said. "I felt some - not responsibility, but I felt that there was no one else."
By telephone from Katmandu, Bajracharya recalled the fear, humiliation and despair he experienced in prison. "I had nothing but tears in my eyes," he said through a translator. "The only thing I knew, I was innocent, but I didn't know what was happening."
He said he was stripped naked in the federal jail. "I was manhandled and treated badly," he said, becoming agitated. "I was very, very embarrassed even to look around, because I was naked."
The ordeal began when his videotaping aroused the suspicions of two detectives from the Queens District Attorney's Office, which has space in the same building. After taking him inside for questioning, they called upstairs to the FBI, and Wynne was dispatched to take over the interrogation. With no translator, Bajracharya tried to explain himself to half a dozen law enforcement officers, including two federal INS agents who verified his illegal immigration status.
It was Wynne, as the lead FBI agent on the scene, who sent him to the federal detention center in Brooklyn by labeling him of high interest to investigators, pending a more thorough look. Wynne, now 50, describes himself as a lifelong New Yorker who doesn't take illegal immigration lightly. His specialty is international art fraud, not terrorism. But at a time of heightened anxiety about another terrorist attack, he maintains, it was reasonable to suspect the worst until he could check out Bajracharya's history, along with some discrepancies in his identity documents and questions about money wired to Nepal.
The questions were resolved within days. Bajracharya did not show up in any terrorist data banks, and Wynne soon confirmed Bajracharya's explanation of a $37,000 wire transfer to Nepal. The money was from a recent legal settlement for injuries incurred when he was hit by a car in 1999. Former employers also told Wynne that Bajracharya was trustworthy.
On Nov. 1, the day Wynne wrote his report clearing Bajracharya, he told him through a translator that it would take about a week to get the matter resolved.
Over the weekend, messages arrived from Bajracharya's sons in Katmandu pleading for help for their father. On Nov. 5, Wynne discussed the case with the head of terrorism in the U.S. Attorney's office; on Nov. 7 and 8, he discussed it with a lawyer at the Immigration and Naturalization Service.
"Because he was willing to leave - he wanted to leave - it didn't seem to me that it was a big a hurdle to move him out of there," Wynne said.
But the weeks dragged on. Learning that a secret immigration hearing was scheduled for Nov. 19, Wynne thought a resolution was at hand. Instead, in a second conference call to Bajracharya after the hearing, he found him confused and distraught. It turned out official FBI clearance from Washington had not yet come through, and the matter had been adjourned to another secret hearing on Dec. 6.
Wynne said he realized at this point that he had been too optimistic: "You have to understand one thing. I'm in the Queens office; in Manhattan they were running this whole initiative, and there was a whole procedure set up for the clearances. I wasn't aware that there were so many levels that needed to sign off on this thing, frankly, when I filed my report."
The Monday after Thanksgiving, Wynne called in Legal Aid. "This guy needed some help," he said. "It's as simple as that." He insisted that anyone would have done the same thing. Cassin says she knows of no other FBI investigator who has.
By the time Cassin spoke with Bajracharya, through a thick plexiglass barrier and under the eye of a prison video camera, she said, he was weeping all the time.
On Dec. 6, in a secret hearing room in the prison, she said, she watched him carried in by three burly officers of the Federal Bureau of Prisons, shackled so completely that he could not move. "He's tiny," she said. "His feet didn't even touch the floor."
She said government immigration lawyers agreed that since her client had been cleared by the FBI, he would be permitted a "voluntary departure." She was instructed to buy him an airplane ticket to Katmandu through a deportation officer. She did, but the first departure date was canceled without explanation.
Meanwhile, like other high interest detainees, Bajracharya was still in solitary confinement 23 hours a day. "After a month or two, I started to scream that I was going to die if didn't talk to anybody," he recalled.
Cassin and Wynne tried to fulfill Bajracharya's most insistent request: to go home looking like a respectable person, not a criminal. Wynne made a special trip to the prison to deliver a box labeled "release clothing."
But when Bajracharya was finally taken to the plane on Jan. 13, he was in shackles and an orange prison jumpsuit. "I wanted to wait for my clothes, at least the shoes and the jacket," he said, "but they took me by force." "