By Carrie Johnson
Washington Post Staff Writer
Saturday, October 10, 2009
For Ziaulhaq, an Afghan driver who had never ventured outside the borders of his war-torn country, the prospect of a trip to the United States seemed like the adventure of a lifetime. He pleaded with his bosses at a contracting company near the U.S. air base at Bagram to include him on the whirlwind trip to Columbus, Ohio.
But the all-expenses-paid travel -- billed as a conference to honor Afghan businesses -- turned out to be an elaborate ruse to draw Ziaulhaq and two co-workers to the United States. Prosecutors wanted them here as witnesses in a bribery case against U.S. servicemen and some Afghan contractors.
And what began as a celebration in the summer of 2008 has become an agonizing extended stay for Ziaulhaq, who is not accused of any crime but has been forced to stay thousands of miles away from his sick wife and six children at home. Ziaulhaq and two countrymen have spent more than a year confined to a hotel in a drab industrial area near Chicago's sooty Midway Airport.
Their saga highlights anew the power of a controversial U.S. statute that allows prosecutors to hold people, without suspicion or criminal charges, as material witnesses in ongoing investigations. After the Sept. 11, 2001, terrorist strikes, the Bush Justice Department used the law to round up Muslim men, giving rise to a lawsuit against then-Attorney General John D. Ashcroft that experts say could make its way to the U.S. Supreme Court. And at least one key Senate Democrat has tried, to no avail, to introduce more safeguards into the material witness process.
Authorities say they want Ziaulhaq's testimony in their prosecution of a bribery scheme at Bagram, an Air Force base 27 miles north of Kabul, in which servicemen accepted kickbacks from Afghan contractors. The servicemen, according to prosecutors, packed the cash in boxes that they sent home by way of the U.S. Postal Service.
But the little-noticed case has been beset by delays and confusion. It has drawn increasingly sharp complaints from lawyers and an Afghan diplomat who say that Ziaulhaq, 39, is a casualty in the U.S. government's efforts to crack down on corruption and military contracting fraud in Afghanistan and Iraq.
Justice Department officials declined to comment on the bribery case, but they noted that the lengthy detention was approved by a federal judge.
Ziaulhaq, a slender former veterinary student with a scraggly black beard, came to work as an office aide and a part-time driver for the contracting company because of family ties. He says he had no contact with the military and knows nothing about the case.
"I made him available to both sides and he doesn't know anything," said Michael J. Falconer, a court-appointed attorney for Ziaulhaq, who uses just one name. "Unless there's some surprise waiting in the wings, he won't be a material witness because he's got nothing to say that's material. . . . This poor guy just got swept up in the mess."
Ziaulhaq and his confederates -- Bashir Ahmad, 30, and Kiomars Mohammad Rafi, 27 -- had been employees of companies that provided concrete security barricades and other materials to the U.S. military at Bagram. Now they spend their days attending prayer services and cooking in their small kitchenette of their hotel, where monthly rates range from $2,000 to $3,000. The hotel sits next to a $3 carwash and across the street from an industrial strip occupied by discount-store distribution centers.
They rarely venture out and are subjected to nightly curfews and calls from probation officers. Prosecutors secured court permission to detain the men as flight risks, arguing that they might never return for trials if they were allowed to go home. A few months ago, however, the Afghans were released from electronic monitoring.
At the same time, some of the men who have been indicted in the case have successfully petitioned a judge for permission to travel to the gym, study English and attend a funeral and a family reunion in Wisconsin, court records reflect.
"It's just terrible," Falconer said. "They do not have any identification, so they can't do anything. They can't even go to a health club or cash the checks they get for witnesses' fees."
Nearly a year ago, court-appointed lawyers exhorted a federal judge to schedule depositions, giving the Justice Department and defense attorneys a chance to question the three witnesses so they could return to their families. But the judge deferred a ruling. Another bid in June to hold an "emergency" deposition for Ziaulhaq passed without action.
A letter to the Justice Department by Afghan Ambassador Said T. Jawad expressing his concern about "the lengthy and unwarranted detention of three Afghan nationals" received a reply but did not accelerate the pace.
Prosecutors and defense lawyers are blaming each other for the delays.
"Since the return of the indictment, the United States has sought to expeditiously move this case toward resolution," Justice Department antitrust division chief Christine A. Varney wrote to the ambassador in August.
The Justice Department does not control the trial date in the complicated case, a spokeswoman added. But court-appointed attorneys for the witnesses and lawyers for the Afghan contracting companies are questioning why prosecutors lured the Afghan men into the country, only to wait nine months before expanding the criminal charges in the case and adding new defendants, all of which meant further delays.
The Afghans are hoping that a court proceeding later this month could finally pave the way for their return to their homeland.
"He is not a criminal," said Zuriden, Ziaulhaq's brother, in a telephone interview from Afghanistan, conducted in English. "More than one years he is in America. I don't know what is his problem. There is not anyone to help him."
Adding to the mystery of Ziaulhaq's long confinement is a recent statement in a court filing by prosecutors that they would need to interview him for only an hour, raising questions about how critical his testimony is to the case. The other two men detained as material witnesses may have more relevant information because they had more contact with people at Bagram, according to lawyers involved in the matter.
The path to Chicago was a serpentine one for Ziaulhaq, Ahmad and Rafi. They arrived at O'Hare International Airport on Aug. 25, 2008, after 36 hours of flights that took them from Kabul to Delhi and Tokyo before they landed in Chicago. The men -- accompanied by some of their supervisors who have been charged with bribery and other crimes -- thought they were en route to Ohio, where they would be feted in an event marking the seventh anniversary of Operation Enduring Freedom at a dinner aimed at "honoring the past and building the future."
"We have been very busy here gearing up for what promises to be a great conference and chance to honor those of you who have helped us make such great strides in building the future of Afghanistan," wrote a man identifying himself as a "special programs coordinator" for the Defense Department in a 2008 e-mail to the Afghan contracting company.
Just days earlier, prosecutors had secured grand jury indictments against several military men, Afghan business owners and their companies for allegedly paying and accepting bribes to grease the skids for contracts at Bagram.
Court documents said the material witnesses had each worked for the contractors who had been charged and had "gained information, engaged in conversations and/or performed acts that constitute . . . evidence against one or more" of the defendants.
Three of the U.S. servicemen pleaded guilty to bribery last summer. Air Force Master Sgt. Patrick W. Boyd, who doled out contracts for concrete bunkers and asphalt paving, admitted to accepting $130,000 in bribes, prosecutors said in court papers. The government pegged its losses in the case of former National Guard Maj. Christopher P. West at $400,000 to $1 million. A friend of West's pleaded guilty to receiving stolen property -- at least $100,000 that West mailed from Afghanistan in 14 boxes.
The case against the foreign companies and the four Afghan men who owned them continues.
Gina Talamona, a Justice Department spokeswoman, declined to disclose exactly how much authorities had paid to keep the three witnesses in hotels, although prosecutors last month called it an "extraordinary effort and expense." The men earn $88 per day to cover witness fees and incidental expenses, according to one source. But an attorney for Ziaulhaq said that cashing the government checks is "cumbersome" because his client does not have an identification card to show the bank teller.
Talamona noted the Justice Department's efforts in an ongoing multiagency task force to crack down on international contract corruption. The department's antitrust division brought 11 cases last year alleging criminal fraud schemes in Iraq and Afghanistan.
"How long a material witness will be held is determined by the court," she said, adding that, when it is possible, the department will ask a judge to expedite a witness's release using a deposition to gather the testimony.
Chuck Aron, an attorney for Ahmad, said he does not discuss pending cases. Matthew Madden, an attorney for Rafi, declined to comment.
"These people have no constituency," said Kirby Behre, a District-based lawyer at the Paul Hastings firm who is representing Assad John Ramin, an owner of one of the companies named in charges. Ramin denies the criminal charges against him.
"This is clearly abusive, but perhaps because these are Afghan nationals and not Americans, nobody seems too concerned about the treatment these men are receiving," Behre said.
Staff writer Kari Lyderson in Chicago contributed to this report.