of the Mustafas
by Dan B. Gerson
On September 15, 2001, two Middle Eastern men, sixty-seven-year-old
Fahti Mustafa and his son, twenty-four-year-old Nacer Mustafa, traveled
by air from Leon, Mexico to Bush Intercontinental Airport in Houston,
Texas, en route to their home in Florida. They had gone to Mexico on
September 9 in order to purchase leather and other dry goods to be resold
in Fahti Mustafa's dry goods store located in their hometown of Labelle,
Florida, a small agricultural town. Fahti Mustafa, a Palestinian-American
who became a United States citizen in 1972, took Nacer, who is also
a United States citizen, having been born in Puerto Rico, along with
him to help because Fahti is very hard of hearing and suffers from other
medical problems, including diabetes and heart disease.
The father and son were originally scheduled to return to Florida on
September 13, but due to the emergency shutdown of air travel following
the terrorist attacks of September 11 were unable to travel until the
15th. The Mustafas landed in Houston and presented their United States
passports to immigration authorities. An INS officer thought that he
saw something suspicious about the passports and called in an FBI agent,
who, after detaining the Mustafas, summoned an agent of the State Department
Diplomatic Service, which is in charge of passport matters. The State
Department agent, who also happened to be part of the Gulf Coast Terrorist
Task Force, concluded that each passport, although issued at separate
locations and dates, had been altered by the placing of an extra layer
of laminate over the existing laminate. Both Mustafas, after being taken
to separate rooms and questioned, denied any knowledge of improprieties
regarding their passports. The agent, Christopher Culver, tried to get
Nacer to admit that he had altered his passport and asked to which country
he would like to go if deported. Nacer told the agent that he was a
United States citizen, but that information did not seem to make an
impression on the agent. A criminal complaint was filed against both
Mustafas alleging that they were in possession of altered passports.
In the complaint, Agent Culver swore that the passports "had obviously
been altered with the introduction of an additional clear sheet on top
of the genuine laminate." He explained how altered passports can
be used to aid terrorist activity and drug-smuggling organizations.
The agent attempted to cast the Mustafas in the worst light, stating
that, when questioned, "The Mustafas declined to offer any explanation,"
when in fact they denied knowledge of any alterations. He suggested
that no records were available regarding Fahti's naturalization, and
characterized Nacer's nickname and family name as "aliases."
Both Mustafas were placed in the Federal Detention Center in Houston,
Texas. The assistant United States attorney handling the case requested
that both Mustafas be detained without bail as flight risks because
of "national security." The pre-trial services officer, in
this relatively minor case that would ordinarily result in a sentence
of approximately six months incarceration or probation, recommended
detention. At the detention hearing, Agent Culver, although admitting
that he had no evidence linking either Mustafa to terrorism, expanded
his earlier allegations and showed the magistrate judge where the passport
had been taken apart and resewn. He also repeated to the court how altered
passports can be used to aid terrorism and drug smuggling. In court
the Mustafas presented records and witnesses that showed that they were
stable citizens of their county. The judge considered everything about
the Mustafas suspicious: the fact that both father and son had traveled
to the Middle East; the year that Nacer graduated high school; whether
or not Fahti was retired or operated a business. The whole process was
skewed against the Mustafas in light of the events of September 11.
They were definitely not being afforded the presumption of innocence
even though none of the September 11 hijackers were Palestinian and
none were United States citizens. Following the hearing, and after eleven
days in jail, Fahti was released (just barely). He was required to wear
an electronic leg monitor and to remain under a curfew that amounted
to a virtual home arrest, allowing him to go to work during the day.
The next day, Fahti, in ill health, hard of hearing, and speaking poor
English, afraid to get on an airplane, took a bus home to Florida.
The magistrate, in a scathing detention order, denied Nacer bond and
detained him as a flight risk and a possible threat to national security.
This is a man that lives in the same small town as his parents, operates
his own filling station, has a wife and two small children, and whose
only conviction was a misdemeanor probation for assault that he lived
out. Nacer immediately appealed the magistrate's detention order. The
district judge wrote an even more harsh opinion upholding the detention.
In it he questioned how a small store-owner could afford to travel to
the Middle East and cited the aliases and false birth dates and social
security numbers that Nacer had allegedly used in the past. Apparently
some law enforcement officer had written down his date of birth and
social security number with one digit off or transposed; and as stated
before, his "aliases" were his nickname "Victor"
and his mother's last name.
Nacer sat in the Federal Detention Center for sixty-seven days, far
from home, missing his family, locked up in his own country, and charged
with an offense for which he was totally innocent. Shortly before the
case was set for trial, the assistant United States attorney received
a scientific report from the INS lab that showed that there was no evidence
that the two passports had been tampered with or altered. The cases
were dismissed and Nacer Mustafa was let out of the Federal Detention
Center. He received no explanation and no apology, he just walked out.
Both Nacer and Fahti filed petitions under the Hyde Amendment, requesting
that the government reimburse them for reasonable attorney's fees because
they had been wrongfully prosecuted. In order to collect money from
the government under the Hyde Amendment, the prevailing defendant must
show that the government's actions were "frivolous, vexatious,
or in bad faith." We claimed that Agent Culver's assertions that
the passports had obviously been resewn and altered were, in fact, frivolous,
vexatious, and in bad faith. The same district judge who denied Nacer
bail wrote the opinion denying the Hyde Amendment claim, stating that
in this time of dire national emergency all parties working for the
government acted "in the utmost good faith."
That is the end of the legal saga of Fahti and Nacer Mustafa, but their
lives have been altered by what they have gone through. Nacer wonders
what his customers and neighbors are thinking when he speaks to them,
feeling that perhaps he is under suspicion even though everyone knows
that the charges were dropped. He keeps the dismissal papers handy to
show people if they are interested or curious. Nacer maintains a lower
profile than before and is a little more guarded, refraining from loud
conversations and debates with his friends and family when out in public.
Fahti has gone through a heart bypass operation since his release, and,
according to Nacer, sometimes just sits and stares into space. The hardest
thing, says Nacer, was hearing his father in the next cell, crying.
"This man has never even had a parking ticket, and he loves this
country, but we were innocent, and look what they did to us."
Unlike the hundreds of Middle Eastern men who were detained indefinitely
after September 11, held in secret without criminal charges or due process
of law, the Mustafas were given due process. However, due process did
them little good when all parties involved, including the arresting
agent, the pre-trial services officer, the federal prosecutor, the magistrates,
and the district judges took the worst view of the Mustafas and concluded
that they were a risk to national security. Both men were incarcerated,
humiliated, prosecuted, and forced to spend a large amount of money
to defend themselves...collateral damage in the war against terrorism.
Dan Gerson is an attorney at law in Houston, Texas.
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