Defending Omar Ameen, an Innocent Refugee, with Rachelle Barbour
In this episode, Eugene interviews Rachelle Barbour, an assistant federal defender for the Office of the Federal Defender of the Eastern District of California. She is an advocate for Omar Ameen, an Iraqi refugee accused of being an ISIS commander and murdering a police officer in Iraq. On April 21, 2021, a federal judge ruled this was physically impossible because Ameen was not in Iraq at the time of the alleged murder. However, Ameen nonetheless remains detained in an ICE facility and has been held in detention for over 1000 days. Eugene and Rachelle discuss federal immigration cases and the mechanisms that can keep someone locked up and separated from their family.
In January of 2020, Ben Taub wrote a piece for The New Yorker that outlines how Ameen landed in prison.
I learned about this case through my friends at Michigan law school. Some of my classmates were taking international refugee law second semester, which is January 2021, and they emailed me this article saying you should interview Rachelle, who’s a Michigan law alum too.
This was not a recent case. A lot of detention cases are really long. Do you think this is a particularly long one? Or is it kind of normal?
Nothing is normal about this case. Omar will be spending three years in custody in a couple of weeks. He was arrested on August 15, 2018. Everything’s unusual about this case, including the amount of time that he’s sat in custody as an innocent man.
Today is July 24, Saturday, and his immigration hearing is scheduled for next week.
Now, he’s no longer in extradition court. He is in immigration court fighting against removal back to Iraq, which would result in the same thing we were fighting against: the extradition, his execution. His immigration hearing, or at least the first step of it, is set for this Tuesday and Wednesday, the 27th and 28th of July, in Van Nuys, California, down by L.A.
So Omar Ameen is a refugee from Iraq. He was living in the suburbs of Sacramento when he was arrested in his apartment in 2018. He was accused of being an ISIS commander and wanted for the 2014 murder of a police officer in his hometown of Rawah, Iraq during an ISIS invasion, according to the DOJ. Then on April 21, 2021, a federal judge said he couldn’t have done this. This is Rachelle’s work. Her team successfully argued that this murder was physically impossible; at that time he was in Turkey.
But despite the judge’s order to release him, he’s still been in ICE facility since then. He’s been in custody for over 1000 days, three years. Is there anything that you would want to add to clarify those brief facts before we go in?
It was obvious to us from the first month of the case that Omar hadn’t done it. We told DOJ that over and over, and nonetheless, he spent three years in custody. The crime he didn’t commit — and had nothing to do with committing — the victim was murdered. That family has no closure, in part because the US government and the Iraqi government have sought to pin it on Omar, someone who had nothing to do with it. So it’s tragedies all around except for the US government, which has not suffered anything except a defeat in court. Meanwhile, Omar is in custody, and his kids are growing up without him.
The New Yorker article by Ben Taub links the political climate of that time to help unpack what was going on in 2018. With the change in administrations, has there been a significant difference?
There’s been no difference, and that is really horrible. It makes no sense to me that they continue to pursue Omar in this way. There’s been no change, no accountability, no will to say, “Why did we go so wrong?” They’re just they’re trying to do the same exact thing.
How did you decide to work at the federal defender’s office? What is the Federal Defender?
Federal defenders are the public defenders for a federal court. So a lot of times when we think of public defenders, we’re thinking of state court, because everyone’s very familiar with the state court system. You get called to jury duty. At least in California, there’s one in every county. It’s the crimes that we nonlawyers would be most likely to interact with: street crime, assaults, stolen cars, shoplifting.
But federal court is really different. One thing that federal court does, which does not happen at all in state court, is international extraditions. As public defenders for federal court, we’re assigned to those just like we’re assigned to normal criminal cases. You have to look at the law of the other country. I was a French major in college; I don’t get to use that very much. I got to use that in a case I had out of France.
So when Omar’s case came, it was a natural fit for me to work on it, though, I certainly have no experience. I don’t speak Arabic, I had no experience with Middle Eastern political issues. That’s what public defenders do. I went to the University of Michigan law school. Then I moved to California to work at the federal defender’s office in Sacramento. Luckily, at Michigan, I had amazing professors, including Bryan Stevenson, who taught at Michigan when I was a 3L and taught about the ways that power structures in our society manifest through criminal law and against the most vulnerable of all of us, and the real need and honor to fight on behalf of those folks against people with an incredible amount of power.
Putting someone in custody, putting someone to death — that is a huge manifestation of the power of the state. It’s a real honor to have done this now for 20-plus years, and Omar’s case typifies exactly why we need public defenders. It shows why folks in immigration custody need public defenders. If Omar didn’t have free immigration lawyers who are willing to take his case, completely pro bono, he would just be ground down under the heel of the government. And I’m sure that’s something they were counting on. And they didn’t count that he would have folks working all weekend to prepare for this hearing next week. That’s a really horrible aspect of our system.
What was Omar’s resettlement process from Turkey and the layers of false information involved in this case?
One thing with extradition law is it is very pro-government.
The normal extradition case is kind of arm’s length between two sovereign nations.
For example, France says, “We think that this person who is in the United States committed a fraud in France, and we investigated and went to court, and now we have an arrest warrant, and could you do us a favor? We’d love to get them back.” There’s an internal process that goes into whether the US feels like this is an important enough case to spend the resources. But ultimately, what happens is the US goes on behalf of France and arrest the person and puts them into extradition proceedings, and they get a public defender who makes sure that the procedure is done correctly and that there’s probable cause, meaning enough proof that this person committed this crime in the other country to make it okay that we’re going to send them off in custody, and they’re going to get prosecuted there.
These are a function of two international treaties between two countries, Iraq and the US. Iraq has never asked for someone to get returned before Omar, that I’m aware of; if they’ve asked, it’s never actually happened. The treaty has been around since 1935, signed by the king of Iraq.
The US ran Iraq’s judicial system under the Coalition Provisional Authority for years, and we’re still there, sort of monitoring. We work very closely with Iraqi security forces. We’ve been very instrumental in who gets to be in charge in Iraq. Those are all facts anyone could agree to.
So when Iraq asked for Omar to be returned, that’s a pretty intense first shot, to say he’s an ISIS commander, hiding out in Sacramento and getting someone murdered in 2014 when ISIS took over Iraq. 2014 was the time when ISIS was just rampaging across northern Syria into Iraq, almost made it to Baghdad, and the Iraqi security forces pulled back immediately.
It was very clear that Omar had no idea what we were talking about. He was in Turkey at the time. The fact is he’s not an ISIS commander. He’s not a terrorist. He wasn’t in Iraq in 2014. He did not kill the victim. All of that became crystal clear. But we were still dealing with it in the context of a system that says, “Is there enough evidence to send him back? But let’s just send him back and he can have a trial in Iraq,” which then begs the question what that looks like, and we know what that looks like.
In fact, I connected with Ben Taub for The New Yorker, because his prior article in December of 2018 had been a long exploration of the failures of the Iraqi criminal justice system, particularly with respect to people arrested for ISIS offenses. It was chilling when we read that article four months into Omar’s detention in Sacramento. It was 10-minute trials, and then you get to execute the person. It made us realize how ridiculous it was to think, “Oh, just send him back and he can raise all his defenses and show he was in Turkey, and then he’ll be released.” Our backs were against the wall from the beginning. But then we started getting the evidence together.
The vetting that goes into resettlement of refugees adds another layer of why someone would risk everything. Could you help us understand that?
Even if you were a terrorist, even if you were an ISIS commander who’s trying to get into the US, by the date of the murder, Omar and his family had been given permission to resettle in the US, in fact, just a couple of weeks before the murder.
I think one thing that’s amazing is we have social media and cell phones. It would have been different 50 years ago: To prove where you are, you’d have to call witnesses.
We actually talked to a ton of witnesses and got statements from all kinds of people saying, “Not only he was with us in Turkey, but I know the guy, he was not in Iraq, and he’s not an ISIS commander.”
We could look at social media. We could look at the refugee process in Turkey, which, thankfully for Omar, is intense: You have to register, he was registered, you have to go weekly, and you have to sign every Thursday at the immigration office. He did that. Part of the investigation challenge is how do you get sign-in sheets from an immigration office in Turkey for a case in the US, that’s four or five years later, by the time you get it and follow up on it? It’s a different system, a different language. We got the sign-in sheets for June; he had signed it. So all of that helps. It was building that case with layer upon layer.
We actually figured it out, but it took two and a half years to get cell phone records. They showed exactly what we’ve been saying the whole time. You could see Omar ride a bicycle to work, and you could see him head home. You could see him go to the pier where he went with his friends to fish. That was huge. But we were still piling up evidence in a system with a judge who might not care about their evidence; he can just have a trial and you’re out. Our judge gave us the time. That brings us to now because of course, he didn’t get out. A judge ordered him out, and the US government decided, “No, he should just go into immigration proceedings now.” And we’ll just do it again.
The judge says he should go, so why is he still in custody?
Because we don’t have the power in this situation. The US government has the power. Prosecutors have the power, and they have the power to ruin people’s lives. In this particular case, they are using that power incorrectly — factually, incorrectly — and the why they’d have to answer, I can’t answer for them. I asked myself that question all the time. How can people do this? Why do people do this? I don’t know.
You said that there was no big change between administrations. Do you have any kind of explanation for that?
The big bosses change. The big bosses have a lot going on; this is one man fighting for his life, literally to not be returned to Iraq for his execution. In Sacramento, now he’s outside Bakersfield, California, the people on the top changed. In fact, a lot of the people at the top haven’t even been confirmed. We don’t have a new head of ICE. I don’t know if there are lots of people who will say, “This is ridiculous and outrageous. We need to stop.” Many, many people have the power to do that. I’m not naive about it. Many people have the power to say, “Hold up. How did this happen? We need to audit this. We need to look at this before we go further.” It just hasn’t happened. It’s not that we haven’t been asking; we’ve been asking a lot. We’ve been reaching out at multiple levels, to say “We’re trying to save you guys from a huge mistake here.” No one seems to care. They will have to answer for it at some point, I hope. I hope you get to ask those questions to someone who can actually give you an answer.
You can have this incredible vetting process and 99.9% of the people are fine, but then if you have 0.1% that makes it on the news, it kind of says what this administration is saying about secret agents or immigrants infiltrating the US is correct. What are your thoughts on that?
Is it just confirmation bias by people, especially in that prior administration who wanted to see this and looked for it? The fact is Omar was innocent. Yhat’s how hard they had to look, that they had to actually set someone up with a false charge of being an ISIS commander, to point to one person and trumpet headlines across the world, that they had found one person who supposedly came in that way with the intent.
The prior administration — the prosecutors, the media — very explicitly pushed that Omar was here to set up a sleeper cell. They had no problem setting him up with false charges, clearly disprovable charges. That’s how hard they had to fight to find that one. I don’t understand why this administration doesn’t see Omar’s case as a real chance to say, “Hold up.” Like they literally had to make up charges against someone to try to damn the refugee system.
By the way, two or three weeks after Omar was arrested, Secretary of State Pompeo dropped the refugee cap to the lowest ever, citing Omar’s case as not random. He was citing Omar’s case as the basis for it. Back to the mystery of why the US is so dug-in on this instead of seeing it as a real opportunity for reflection and rehabilitation of a system which, clearly from law enforcement’s position, you want to see what you want to see. You want to see a Muslim refugee who’s a terrorist, you can make it happen. You can go talk to people in the country from which he fled who will be happy to tell you who he is. That’s exactly what happened.
Omar has been sitting in custody away from his family for three years. But what’s lucky is that the people who set this up pointed to a murder that had actually happened, instead of just how many other murders could they have been. They could have just said, “Oh, he just beheaded someone.” But they pointed to a murder that actually happened on an actual date of natural time, which means that we could then have a date to say, he was nowhere near there.
How does any of this stand in court? Government officials can get the evidence that they want and that speaks to the power disparity. Could you speak to that creation of evidence?
One aspect of it is a rush to judgment, a wanting to see a Muslim terrorist who they could tag as the infiltrator, the ISIS Commander. The other side is the Iraqi side, a country that really wants to accomplish a successful extradition with the United States to burnish what is a seriously flawed criminal justice system. I don’t have to speculate what their motive is. That’s one of the motives they’ve said themselves.
Then we get down to the witnesses or the so-called witnesses. We have to focus on the head of a militia who has collaborated with us since probably around 2003–04. He is a con man. He has said things in video like, “I would drink Omar’s blood if he was in front of me.” He and the FBI are there in Iraq. They’ve already decided they’re here to dig up some evidence on Omar, and it is just like the perfect storm. This is the same crew who the government is going to try to cite as evidence in the immigration proceeding.
They’re going to cite these folks who we’ve proven are liars, and we don’t get to cross-examine that. That’s what Omar is confronting in immigration court.
Omar’s been separated from his family for an incredibly long time. Could you speak to that aspect of his case?
So Omar’s youngest daughter is American. She was born in Sacramento. She was one when Omar got arrested, and she just turned four. Now, Omar is five hours away from Sacramento in a place that’s not allowing social visits because of COVID, so his family hasn’t seen him since early this year, and that was through glass at the jail. He has not had a hug or a kiss from his family in three years, since 2018. The strength that his family has in coping with that, and the emotional strength that Omar has shown is truly incredible. That’s bad enough, and when I turn to the fact that he’s innocent, and we’ve been trying to explain that nicely to the government this whole time, it is completely heartbreaking.
What are your thoughts on your experience dealing with this case? How do you stay hopeful in dealing with the larger structure of power?
In this case, justice is a tiny flame that we’ve been trying to keep alive this whole time. As long as Omar’s still in the United States, and we can still fight for his freedom and his life, that flame is alive. What’s galling is that we shouldn’t be the ones who are fighting for justice; prosecutors are supposed to seek justice, the US government is supposed to seek justice. This is not a unilateral thing where we seek justice, and they just get to laugh it off. They have abdicated that, and I believe that prosecutors should believe in doing the right thing, and they haven’t.
So we are keeping some hope alive, but it is a challenge. We don’t want this case to be forgotten. It’s insane to win an extradition, then feel like you’re climbing the same mountain all over again.
Our website, FreeOmarAmeen.com, has lots of ways that folks can help. I’ve seen people from all over the country help. I’ve had folks write their Congresspeople and CC me, and get me a conversation with staffers because a constituent in a completely different place cared about this case. I think the only way to get any kind of accountability is to push this to people who care about justice. Right now, I don’t know who those people are, but we clearly haven’t talked to them yet. I think you get this to the right person, the answer should be outrage on the part of the government. This is happening in slow motion right in front of everyone’s eyes. We can stop it now, but we haven’t yet. And we just need help.
What’s the outlook on this case? What can listeners do?
I can picture someday being able to welcome Omar coming out of custody. I’m not sure I thought that we could do that prior to winning the extradition case because the law was horrible. As crazy as immigration court is, and as challenging as it is, the opportunity to fight is much broader in immigration court. I welcome it: People can reach out to me directly at my work email if they want to help Omar. Really, I welcome it. Thank you.