Coalition Letter to the INS Director on the Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities (6/21/2002)
Director
Regulations and Forms Service Division
Immigration and Naturalization Service
425 I St., NW, Room 4034
Washington, DC 20536
Re: INS No. 2203-02 Interim Rule, "Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities" On behalf of the undersigned organizations, we are writing to you to express our strong opposition to the interim rule published at 67 Fed. Reg. 19508-11 (Apr. 22, 2002), governing release of information regarding Immigration and Naturalization Service (INS) detainees in non-federal facilities. The interim rule was issued by the Commissioner of Immigration and Naturalization pursuant to authority delegated by the Attorney General. We urge that the interim rule be immediately rescinded. In effect, the rule requires state and local governments, in violation of their own laws and in defiance of their own courts, to follow a misguided federal policy of secret detentions adopted in the wake of the September 11, 2001 attacks. That policy was rejected by a state court in New Jersey, a state where a large number of such detainees have been held. In addition, in separate cases, two federal district courts have rejected the government's arguments for secret immigration hearings, saying a policy of blanket closure violates the Constitution. Rather than heed these warnings, or simply go through the normal appellate process, the interim rule defies state law, as interpreted by the New Jersey court. Indeed, the rule expands the secrecy policy, by (1) forbidding state, local and private facilities from releasing information about "any detainee," including those having nothing to do with the government's September 11 investigation, and (2) by providing that state documents that contain information about INS detainees are not "public records," thereby purporting by administrative fiat to preempt every state governments' laws on the subject. Unfortunately, the rule's emergency issuance has now persuaded the intermediate appellate court in New Jersey to reverse the lower court's well-reasoned decision, not because it was incorrect, but only because the appellate court believed (incorrectly, in our view) that it was "constrained" to follow the federal government's secret detention policy in accordance with the federal regulation. We oppose the interim rule because: - The rule will frustrate the ability of our organizations, state and federal elected officials, and the general public to access information concerning INS detainees that is vital to ensuring that their rights are respected. Lengthy detentions without charge, serious impediments to detainees' rights to access counsel, and other abuses have been well documented over the past eight months. Continued secrecy will only lead to more abuse.
- The rule exceeds the authority of the Attorney General under the Immigration and Naturalization Act (INA) because the Act's general authority to implement the immigration laws and to arrest and detain non-citizens for immigration violations does not authorize a policy of secret detentions. Such a policy treads on fundamental constitutional values and would, at a minimum, require a clear statement from Congress.
- The rule also exceeds the Attorney General's authority in attempting to force the states to implement a policy of secret detentions in violation of their own laws. A state's agreement to house federal immigration detainees under a voluntary contract does not license the Attorney General to force state officials to keep secret the names and other information regarding those detainees contained in their own state records, particularly when the state's legislature has expressly required a different policy.
The government's shifting reasons for its policy of secret arrests have not withstood public, Congressional and judicial scrutiny. In the United States, the arrest and detention of an individual by the government is a public act, and cannot legitimately be made secret by the government. By contrast, the interim rule applies to all detainees in non-federal facilities. It does not apply simply to specific, sensitive information but rather applies to such basic information as the identity of a detainee, the fact of an arrest, and basis of a charge against a person. "The requirement that arrest books be open to the public is to prevent any 'secret arrests,' a concept odious to a democratic society . . . ." Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969). Because the Attorney General lacks authority to change that basic principle of American governance, much less to force the states to do so against their will, the interim rule should be rescinded. Sincerely, Al-Fatiha
American-Arab Anti-Discrimination Committee
American Civil Liberties Union
Arab American Institute
Asian American Legal Defense and Education Fund
Asian Law Caucus
Asian Pacific American Labor Alliance, AFL-CIO
Center for Constitutional Rights
Center for National Security Studies
Council on American Islamic Relations
First Amendment Foundation
Friends Committee on National Legislation (Quaker)
Human Rights Watch
Immigrant Defense Project, New York State Defenders Association
Immigration and Refugee Services of America
Independent Institute
Lincoln Square Legal Services, Inc., Fordham University School of Law
Multiracial Activist
National Asian Pacific American Legal Consortium
National Association of Criminal Defense Lawyers
National Coalition to Protect Political Freedom
National Committee Against Repressive Legislation
National Immigration Forum
National Lawyers Guild
Northwest Immigrant Rights Project
Open Society Institute
Partnership for Civil Justice
People for the American Way
Stanford Community for Peace and Justice
Tampa Bay Coalition for Justice and Peace
United Church of Christ Justice and Witness Ministries
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