How the U.S. has mishandled the post-Sept. 11 detention process
By Anita Ramasastry
(FindLaw) -- This summer, the Office of the Inspector General ("OIG") for the United States Department of Justice ("DOJ"), issued two reports relating to the treatment of certain immigrant detainees after September 11. They reveal some very disturbing practices.
Perhaps most upsetting is the government's use of "preventive detention" – the practice of imprisoning immigrants against whom there is no evidence of terrorist activity, purportedly as a means of preventing future attacks. Detention without evidence is not the hallmark of a free society.
Visitors to the U.S. were locked up for months in cells that were lit up 24 hours a day – merely because their visas had expired. They had no connection at all to terrorism, nor had they committed any crime. There were not informed of the charges against them for significant periods of time.
For weeks, some detainees had no access to a telephone – even to call a lawyer or family member. When concerned family members called, authorities refused to confirm whether a given individual even had been detained. Our own Department of Justice, in short, created a truly Kafkaesque nightmare for visitors to our country.
Criticism from within the government
The OIG is an independent entity that reports to the Attorney General and to Congress. It has jurisdiction over the entire Department of Justice (DOJ) – including the FBI, the Federal Bureau of Prisons (BOP), and what was formerly known as the Immigration and Naturalization Service (INS), and is now part of the Office of Homeland Security.
The OIG issued a report in June 2003 providing a detailed analysis of the detention process used to hold 762 aliens accused of immigration violations as part of the DOJ's anti-terrorism initiatives.
The OIG's first report strongly criticizes DOJ, and the FBI in particular, for going beyond what even the attacks of September 11 required. For instances, OIG's first report states, "[w]hile the chaotic situation and the uncertainties surrounding the detainees' roles in the September 11 attacks and the potential for additional terrorism explain some of these problems they do not explain nor justify all of them. We believe that the Department and the FBI should consider these issues carefully in an effort to avoid similar problems in the future." (Emphasis added.)
This criticism is all the more striking in that it comes from within the government itself.
Using minor immigration violations as a pretext for harsh confinement
After September 11, Attorney General John Ashcroft instructed the FBI and other federal law enforcement employees to use "every available law enforcement tool" to arrest persons who "participate in or lend support to, terrorist activities."
One such "tool" was the detention, in the 11 months after the attacks, of 762 aliens. The OIG's first report focuses on them.
The pretexts for these detentions were various immigration offenses, including overstaying their visas and entering the country illegally. The FBI feared some might be connected to the September 11 attacks, or to terrorism in general. But some were detained simply because the FBI was unable, at least initially, to determine whether they were connected to terrorism.
Among these were some who were targeted due to very vague leads (a landlord might find his Middle Eastern tenant "suspicious"). Others simply had the misfortune to be the roommate or coworker or someone who was under suspicion – in classic instances of unfair "guilt by association."
In one instance, law enforcement officers stopped three Middle Eastern men who were found to have plans for a public school in their car. But their employer verified that they working on construction for a school, so that it was entirely appropriate for them to have the plans. Nevertheless, the three men were detained.
Justifiably, then, the OIG faults the FBI for being overly broad in its decisions as to whom to detain. Its first report also revealed that the processes and criteria for deciding whether someone was a terrorist risk were ill defined and often arbitrary:
The first report thus criticized the "indiscriminate and haphazard manner in which the label of 'high interest,' 'of interest' or 'of undetermined interest' was applied to many aliens who had no connections to terrorism." And it stressed that, "the FBI should have taken more care to distinguish between aliens who it actually suspected . . . as opposed to aliens, while possibly guilty of violation federal immigration law, had no connection to terrorism." (Emphasis added.)
Unfortunately, once the labels were applied, however arbitrarily, they stuck – even to someone against whom there was no evidence at all. The process for allowing a detainee to clear himself, and thus free himself, was often slow and cumbersome.
Only 2.6 percent were cleared within 3 weeks. The average length of time from arrest to clearance was 80 days. More than a quarter of the detainees were cleared only after 3 months. Some detainees remained in high security confinement even after the FBI had cleared them.
Granted, the government had cause to believe that the 762 detainees had violated federal immigration law. But prior to September 11, many such violations – such as the visa overstays – were common, and thus frequently overlooked.
Indeed, the OIG remarked that, "it is unlikely that most if not all of the individuals arrested would have been pursued by law enforcement authorities for these immigration violations but for the [September 11] investigation. Some appear to have been arrested more by virtue of chance encounters or tenuous connections to a [September 11] lead rather than any genuine indications of a possible connection with or possession of information about terrorist activity."
Dramatic deviations from the normal process of immigration detention
Moreover, under normal circumstances, the government's discovery of a possible immigration violation would not result in automatic detention. Instead, the alleged violator would learn the charge against him within 48 hours, and typically receive a formal Notice to Appear within 72 hours.
In contrast, the post-September 11 detainees, on average, did not receive their Notices for a week. Only 60 of them were timely served. Some did not receive notice of the charges against them for several weeks, or even a month.
Under normal circumstances, the alleged violator would receive a reasonably prompt immigration hearing. There, he would have a chance to mount a defense – a defense that the prompt Notice had allowed him to begin to prepare – with the aid of an attorney if he so chose.
Then, under normal circumstances, pending the hearing's outcome, the alleged violator would often be released on bond. But all 762 post-September 11 detainees came under a "Hold Until Cleared" policy, and a "no bond" policy.
Under this policy, the INS used boilerplate affidavits stating that national security concerns were involved to justify their opposition to bonds. When evidence was not available, they were told to ask for a continuance of the bond hearing, so they could at least interpose some delay.
The shocking mistreatment of 'high interest' detainees
Perhaps the most shocking segment of the OIG's first report relates to detainees who were classified as "high interest" by the FBI. This category may sound ominous – as if these detainees were all terrorists. But that wasn't at all the case.
In its report, the OIG "question[ed] the criteria (or lack thereof) the FBI used to make its initial designation of the potential danger posed by September 11 detainees." And it demonstrated how arbitrary the "high interest" designation often was: The arresting FBI agent could make this assessment without any guidance and based on the initial detainee information available at the time of the arrest.
Despite the hasty nature of the classification, it had huge consequences. For instance, 184 "high interest" detainees were confined in high security federal prisons as opposed to less restrictive INS detention facilities.
Moreover, 84 were held at the Metropolitan Detention Center (MDC) in Brooklyn, under highly restrictive conditions, including 23-hour-a-day lockdown. For many months, the lights in their cells were left on for 24 hours per day. When leaving their cells, they were handcuffed and placed in leg irons.
Some said they were verbally and physically abused. And indeed, despite denials from the BOP staff, the OIG found "significant evidence that the abuse occurred," and concluded "that the evidence indicates a pattern of abuse by some correctional officers against some September 11 detainees."
These detainees' status and location were withheld even from attorneys and family members. They were allowed only one social telephone call per month. The vast majority had no legal counsel upon arriving at the prison and needed to secure counsel, but they were allowed only one legal telephone call per week – if that. (Evidence shows that the detainees may well not have had effective access to even that one call.)
For the first 3 weeks, during which a blackout was declared, no visitors (including attorney) were allowed at the MDC. Attorneys were also falsely told that their clients were not housed at the MDC, when they actually were.
Several detainees noted that the lists of pro bono attorneys provided to the detainees were handed out days or months after their arrivals. The lists also contained inaccuracies such as wrong telephone numbers.
In addition, detainees were often given no information about an administrative complaint process for reporting allegations of abuse, and no access to BOP handbooks for several months after their arrival. Some were merely given a 2-page summary of rules and procedures that did not mention the complaint process at all.
As a point of comparison, the OIG noted that detainees in the Passaic County Jail in New Jersey, were treated much the same as other immigrants being held for violations of immigration laws (in a non-terrorism context). These detainees were persons who were labeled "of interest" rather than "high interest." The report was quick to note that detainees in this facility were treated much better, demonstrating that there are detention models that can work more effectively and humanely.
The second report: An initial glimpse of civil rights complaints
On July 17, 2003, the OIG issued a second, follow-up report.
The USA Patriot Act had directed the OIG to "undertake a series of actions relating to claims of civil rights or civil liberties violations allegedly committed by DOJ employees." To do so, the OIG had established a Special Operations Branch in its Investigative Division, which received complaints of violation.
As of June 15, 2003, just before the second report was issued, the OIG had received a staggering 1073 complaints. However, only 272 fell within its jurisdiction (as opposed to that of other agencies, such as the Federal Aviation Administration, for example). And some complaints that were within OIG jurisdiction, were not within its USA Patriot Act mandate. Of the remaining complaints that were within both the OIG's jurisdiction and its mandate, 34 were deemed "credible" by the OIG.
Some newspaper accounts have suggested that the finding of only 34 credible complaints means there was not much of a problem. But it's important to remember that these complaints represented a significant percentage – more than 10%, and perhaps much higher than that – of those within the OIG's jurisdiction and mandate.
Moreover, these 34 complaints involved more than 34 individuals – some involve groups of detainees. For instance, twenty detainees alleged that a BOP correctional officer engaged in abusive behavior towards inmates.
Reportedly, the officer had ordered one Muslim inmate to remove his shirt so that the officer could use it to shine his shoes. A BOP internal investigatory report concluded that the allegations were unsubstantiated. But after OIG's investigation, the correctional officer admitted that he had initially been "less than completely candid" about the incident.
Here is a sampling of other complaints that are being investigated: An Egyptian citizen alleges that in a BOP facility, he was forced to undergo multiple and duplicative invasive body searches, denied the right to practice his religion, and forced to consume food prohibited by his religion. Another detainee alleges that an enforcement officer transferring him out of an INS facility, to another facility, held a loaded gun to his head and threatened him.
In another complaint – substantiated by the BOP – an inmate alleged that during a physical examination, a BOP physician told the inmate, "If I was in charge, I would execute everyone one of you . . . because of the crimes you all did." The same physician allegedly treated other inmates in a cruel and unprofessional manner.
Twenty of the 34 complaints were referred to the BOP directly. Of these, 16 are monitored referrals; the BOP must refer back to OIG.
These 20 complaints include allegations that BOP officials threatened to have an inmate's conditions of confinement changed unless the inmate cooperated with the government; abused inmates verbally by making slanderous remarks about Islam; placed an inmate in solitary confinement with a camera and a light that was constantly illuminated, and denied him legal assistance; made excessive searches of Muslim inmates' cells; and denied Muslim inmates access to television, radio, books and newspapers.
The second report applauds extensive efforts undertaken by the federal government to alert immigrants to their rights, and their ability to report civil rights violations. But is also suggests that many such violations occurred in the first place. Such civil rights violations that should not be tolerated in our justice system.
How unfair, harsh detentions of innocent persons can be prevented
If there is another large-scale terrorist attack, will DOJ and the FBI simply repeat the same mistakes in its wake? The OIG has made some recommendations in the hope that can be prevented.
Its first report, the OIG recommend, most importantly, that DOJ develop uniform arrest and detainee classification procedures. As the OIG states, what is needed are "[c]learer and more objective criteria to guide [the FBI's] classification decisions in future cases involving mass arrests of illegal aliens in connection with terrorism investigations."
The OIG also stressed that these classification decisions, in addition, should be made within a set, limited time frame. And the FBI should be required to provide the Office of Homeland Security and the BOP with a detailed written assessment of the evidence that an alien is, or is likely to be, associated with terrorism.
The OIG also has called for more resources in the field offices, and for greater interagency cooperation – especially if the FBI plans to use the "hold until cleared policy" in the future.
It was gravely disappointing – and, as the OIG assessment concludes, unnecessary – for DOJ to abridge detainees' liberties so drastically after September 11. There was no excuse for going so far then; and there is no reason not to develop a more just, fair system in the future.
Americans detained abroad for small offenses such as overstaying their visas, should be able to expect fair processes – but how can we, if we do not afford them to others?
Anita Ramasastry, a FindLaw columnist, is an assistant professor of law at the University of Washington School of Law in Seattle and the associate director of the Shidler Center for Law, Commerce & Technology.