http://www.theage.com.au/news/national/2002/02/20/FFXLXJOKUXC.html

US to free Australian detainee


By GAY ALCORN
UNITED STATES CORRESPONDENT
WASHINGTON
Wednesday 20 February 2002

Sometime in the next few days, Khaled Musa will board a flight from New Jersey to Sydney. Mr Musa, an Australian citizen although he has never lived in Australia, has by any standards been through a traumatic experience.

Arrested on October 4 for overstaying his visa, the 21-year-old has sat in jail ever since, even though the FBI cleared him of any involvement with terrorism and even though he has told America's Immigration and Naturalisation Service that he has no objections to deportation.

America has eight million illegal immigrants who have either overstayed their visas or entered illegally. Before September 11, authorities often turned a blind eye to them. Jail for over-stayers was virtually unheard of, let alone indefinite detention. Normally, authorities would issue a warning to fix the visa or leave the country.

September 11 changed that. When Mr Musa leaves, he will have spent more than four months in jail.

The policy after September 11, according to Attorney General John Ashcroft, is zero tolerance, a "deliberate campaign of arrest and detention" to prevent terrorist attacks.

More than 700 people have been detained on immigration charges and more than 300 remain in jail.

None of them has been charged with terrorism-related offences and only a handful with any criminal offence. Technically, the US is within its rights, as the law provides for detention for a "reasonable period", but it is arguably stretching its discretion. Civil liberties groups say the US is targeting Arabs and delaying deportation so they can keep fishing for scraps of evidence, even when a court has ordered deportation.

Mahmoud Allam, Egypt's consul-general in New York, told The New York Times yesterday that, while Egypt supported America's campaign against terrorism, some of its citizens faced surreal obstructions in getting out of jail.

"It reminds you of the famous Kafka story of The Trial," he said. The presumption of innocence was reversed - detainees had to prove themselves blameless before being released.

Mr Musa's lawyer, Regis Fernandez, has no doubt the reason his client is going home is because of a lawsuit he filed on January 31 to force the government to deport Mr Musa.

Mr Musa's case is troubling for other reasons. He has an Australian passport because his father is a citizen who spent many years in Australia before moving his family to Jordan. Mr Fernandez believes the fact Mr Musa never lived in Australia may explain why the authorities failed to tell the Australian Government that one of its citizens was in jail.

The Geneva Convention mandates that a foreign prisoner has the right to consular access.

Mr Musa arrived in the US on February 4 last year on a 90-day "visa waiver" program but stayed on after it expired.

"When we contacted the Australian consulate at the end of December, they initially said it could not be true, there definitely was no Australian detained," Mr Fernandez said. "That gave us pause because we thought it was kind of unusual that an Australian national would be detained and placed in jail for months without even the consulate knowing it had happened."

Several countries have complained to US authorities about the slow processing of the cases and failure of immigration officials to inform them that their nationals were in jail.

That the US is tightening its rules is understandable given the trauma of September 11 and the fact that all of the 19 hijackers were foreigners.

But what if, as Mr Fernandez says, an American is arrested overseas and nobody tells the American embassy for three, four, or five months, and the country refuses to deport a US citizen even if a court rules that he should be deported?

There is a clash of values, here, and precedents being set that the US may live to regret.