Robert Simels, the New York lawyer for drug accused businessman, Roger Khan is to file a motion to have the Guyanese released from administrative custody at a federal jail in the US, saying that Khan is locked away in a cell which only allows him three showers per week and no telephone privileges.
The lawyer had also branded the facility a lock-up for terrorists and had asked the court to give reasons why Khan was moved from the Nassau County jail to the federal Metropolitan Correctional Centre (MCC), located in Manhattan, New York. Simels had approached the court on February 5 requesting a status conference to discuss Khan’s detention at the MCC facility. The court later denied the request, saying that a defendant does not have the right to determine in which facility he will be detained during his case, nor does the court generally interfere with decisions made by the Bureau of Prisons concerning security or space availability issues in the placement of inmates.
In a letter notifying the defence of his intention on Monday, Simels said that Khan will move to the court on February 26 or at a date to be designated by the court for an order granting him release from administrative detention at the MCC or alternatively, an immediate hearing to determine whether the Bureau of Prisons and its agent, the Warden of MCC New York is violating Khan’s constitutional right to due process by the current conditions of his confinement.
In an affidavit in support of the motion, Simels raised a number of issues reported in this newspaper before. He recalled how Khan was moved from Nassau County jail to MCC and the problems he has had visiting him.
Simels added that Khan was moved from one section of what he called a terrorist cell to another. “On February 3, 2007 Khan was moved from the SHU on 10 South to the SHU on 9 South, which is also a lockdown unit with limited privileges, visitation among other deprivations,” Simels said in his affidavits.
At the SHU 9 South unit, Simels said Khan could only have one telephone call a month and no attorney’s call. Besides, Simels said an official at the jail told him that the MCC makes up for the lack of telephone calls by permitting liberal visitation by counsel. “This is of course a ludicrous notion, that permitting counsel to go to the MCC to visit an inmate equates with a client having the ability to call counsel or that the client’s restrictive conditions do not violate due process,” Simels argued.
The lawyer said that he has visited Khan twice since he was moved from South 10 to South 9 and on both occasions the Guyanese was handcuffed and led into a visiting room, which must be viewed by the guard on duty and the door locked so no one could leave.
Simels said that there were sufficient grounds for Khan to be released from administrative custody, saying that pursuant to the Bail Reform Act, “the defendant requests this court, in supervising the conditions of this pretrial defendant, order MCC New York to provide sufficient justification for holding Khan in administrative detention, or in the absence of an adequate explanation, order Khan’s placement in general population” at the prison.
Simels argued that there is no legal authority to support the court’s refusal to intervene. He added that based upon his arguments, the court should intervene, conduct a hearing and direct the Warden or his representative to appear and explain the basis for Khan’s detention in the SHU and order that he be released from administrative detention if it is being used punitively or order alternatively that Khan be released on bail. Khan is before the court charged with conspiracy to import cocaine into the US. He is expected to go on trial by the middle of this year, but before that the US is to file a superseding indictment against him. He will make another court appearance on February 26.
