American Civil Liberties Union Testimony at an Oversight Hearing on "Lessons Learned - The Inspector General's Report on the 9/11 Detainees" Before the Senate Judiciary Committee on June 25, 2003

Submitted by
Anthony Romero, Executive Director, and
Timothy H. Edgar, Legislative Counsel*

The Inspector General finds widespread, serious and systemic rights violations. These include:

• Significant (possibly intentional) interference with detainees' right to counsel. Many detainees were effectively prevented from obtaining representation by the enforcement of extreme restrictions on contact with the outside world; excessive secrecy impeded the ability of lawyers to confer with, or even to find their clients. Disturbingly, the report uncovers some evidence this interference was deliberate, finding that prison officials were told to ""not be in a hurry"" to permit detainees to contact lawyers, consulates, or family members for assistance.

• Lengthy detentions without charges. People were detained without charges being filed within the constitutionally required 48-hour period, or even within the more lenient 72-hour period the Department of Justice set for itself after September 11. Some detainees were held without charge for weeks or even months.

• Mandatory detention of immigrants eligible for bond. Detainees were subjected to an unwritten, but rigid ""no bond"" policy that prevented detainees from obtaining release on bond, even if they were statutorily eligible and were able to satisfy an Immigration Judge that they were not dangerous and were likely to appear at deportation hearings.

• A ""clearance"" procedure that presumed guilt. High government officials established a clearance procedure that presumed detainees had something to do with the September 11, 2001 attacks unless the FBI ""cleared"" them, turning the presumption of innocence - a hallmark of American law - on its head. This process dragged on for an average of almost three months (80 days), and in some instances took over 200 days, while detainees languished in prison, even after they had been ordered deported and there was no valid immigration purpose served by their continued detention.

• ""Indiscriminate and haphazard"" labeling of ordinary immigrants as terror suspects. The implementation of the clearance process was criticized by the Inspector General for the ""indiscriminate and haphazard manner"" in which ordinary immigrants who were encountered coincidentally during the investigation were labeled as ""of interest"" to the September 11 investigation, branding them suspected terrorists.

• Physical and other mistreatment of some detainees. The Inspector General found that some detainees - particularly those incarcerated at the Metropolitan Detention Center in New York - had been subjected to physical and other mistreatment at the hands of prison officials, conduct which in some cases may be criminal, and, in all cases, falls woefully short of acceptable standards. The Inspector General noted that this aspect of his investigation was hampered by the destruction of videotapes that would have assisted the investigation.

• Multiple, systematic violations of the Department's own regulations. Detainees who were ordered deported, but held after the 90 day removal period, were not give custody reviews required by regulations. Bureau of Prisons regulations that described the process for determining the conditions of detainees' confinement were likewise ignored.
  

Even before the Inspector General's investigation, the ACLU protested these and related abuses by testifying in Congressional hearings,[2] by assisting immigration lawyers in filing habeas corpus petitions, and by filing lawsuits with its coalition partners challenging the secrecy surrounding September 11 detentions.[3] Amnesty International and Human Rights Watch documented these abuses in lengthy reports.[4]

With this report, the Inspector General adds a voice from within the Department of Justice itself to the chorus of complaints from civil liberties and human rights organizations concerning the widespread abuses suffered by those subject to the government's first mass roundup of immigrants following September 11.

Tip of the Civil Liberties Iceberg?

The Inspector General's report represents only a start in much-needed oversight. The report covers only one, narrow aspect of the government's detention practices following the September 11 attacks - itself only one aspect of the government's post-September 11 detention, law enforcement and surveillance policies.

The report makes clear that it does not cover the entire group of post September 11 detainees. It does not cover the treatment of persons detained pursuant to the material witness statute. It does not cover persons detained as part of a terrorism investigation on federal or state criminal charges not directly related to terrorism (such as persons detained on document fraud charges). It does not cover persons detained in Guantanamo Bay, Cuba, or American citizens detained without charge as ""enemy combatants"" within the United States.

The report also does not cover those immigrants who were not detained directly as a result of the September 11 investigation, but were detained as a result of policies adopted ostensibly to combat terrorism. These include: those encountered as a result of a series of mass ""voluntary"" interviews of Arab and Muslim visitors who were determined to be out of lawful immigration status, undocumented workers uncovered during ""Operation Tarmac"" and other post-September 11 immigration enforcement sweeps, or those detained as a result of the government's ""special registration"" program of mass fingerprinting and registration of immigrants from Arab and Muslim countries.

Even with respect to the detention practices it examines, the report does not examine the government's secrecy decisions - its decisions to withhold names and other information about detainees from civil liberties and human rights organizations and to hold all immigration hearings in secret, with no press, family members, or outside observers permitted. Nor does the report analyze the legality or propriety of some of the basic policies whose implementation it criticizes, including the fateful decision to implement a ""hold until cleared"" policy that turned the presumption of innocence on its head.

The findings of the report are disturbing enough to warrant a thorough review of these broader policies. Treatment of this group of post-September 11 detainees may only be the tip of the iceberg of post-September 11 civil liberties abuses. The Inspectors General of the Department of Justice and the Department of Homeland Security should immediately undertake a thorough review of these broader policies. Likewise, Congress should undertake comprehensive oversight of post-September 11 initiatives to determine whether these initiatives have been effective and whether they have led to the sorts of widespread abuses documented by the Inspector General with respect to post-September 11 immigration detainees. Congressional committees should not be content with holding a few hearings; instead, they must probe documents and witnesses, undertaking the kind of intensive review that the Inspector General has done in his report.

Immigration Violations: A License to Violate Rights?

The Department of Justice has been quick to point out that September 11 detainees were unlawfully present within the United States, as if to imply that this excuses widespread and systemic disregard of constitutional and other rights. In fact, the Supreme Court has made clear, on multiple occasions, that ""the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.""[5]

As a result, we welcome Chairman Hatch's statement at this hearing, ""Let me be clear: neither the fact that the department was operating under unprecedented trying conditions, nor the fact that 9/11 detainees were in our country illegally, justifies entirely the way in which some of these detainees were treated."" We hope the Bush Administration will follow his lead by abandoning its attempt to justify mistreatment of September 11 detainees by implicitly arguing that immigration status gives the government a license to ignore the Constitution and laws of the United States.

The Department's Fateful Choice to Establish and Defend a Secret Detention Process Based on a Presumption of Guilt

The Inspector General's report makes clear that some of the civil liberties abuses suffered by September 11 detainees occurred as a result of miscommunication or other bureaucratic failings that can be explained in part as a result of the circumstances facing the government. However, other serious problems were the direct result of policy choices, made at the highest level of the Department of Justice, that were dismissive of the law and the rights afforded to every person within the United States.

Two particularly fateful decisions included (1) the choice to detain every undocumented immigrant encountered, even coincidentially, as part of what the Department of Justice itself calls the largest investigation in the history of the United States, and (2) the choice to treat all such detainees as ""of interest"" to the investigation until affirmative ""cleared"" of involvement in terrorism. The result of these decisions was to establish a detention process based not on our laws and immigration procedures, but on a new, secret process that created a presumption of guilt.

As described in the Inspector General's report, this parallel process came to be known as its ""hold until cleared"" policy. FBI clearance - not statutory and regulatory procedures - determined which detainees were detained before and after the immigration courts made detention decisions, which detainees could be released from detention on bond, and which detainees, if ordered removed or allowed to depart, were in fact removed or released. This policy amounted to wholesale preventive detention of a kind that Congress had never authorized.

The ""hold until cleared"" process began when an individual was designated as a ""special interest"" detainee. This designation, however, was not based on any evidence of connection to terrorism, but was simply a mechanical process based on whether the individual was encountered, even coincidentally, as investigators pursued terrorism leads, regardless of the quality of the lead. Many of the leads that brought out-of-status aliens into custody as ""September 11"" cases were clearly the result of overt ethnic stereotyping by an anxious public.

As the Inspector General noted, while some ""September 11"" leads were based on evidence of links to the hijackers, many involved nothing more substantial than ""anonymous tips called in by members of the public suspicious of Arab and Muslim neighbors who kept odd schedules.""[6] For example:

• Tips phoned into the FBI in the weeks after September 11 included one which noted only that ""numerous Middle Eastern men"" worked at a grocery store, and that the store was closed the day after the attacks.[7]
• One caller told the FBI only that ""two Arabs"" had rented a truck from his vehicle rental business, then returned it earlier than expected, acted nervous and ""did not argue"" when the business refused to return their deposit.[8]

Although criminal investigators made very early efforts to distinguish those individuals who were ""really"" of ""investigative interest"" from the pool of detainees labeled ""special interest"" by the FBI or INS,[9] the broad ""special interest"" or ""September 11"" label remained branded on immigration detainees.

The FBI clearance process, on the other hand, occurred entirely ex parte and in secret, without checks and balances. Individual detainees had no way of learning why they were considered to be ""special interest"" cases, had no means of challenging the government's assessment before an impartial adjudicator, and had no mechanism by which they could obtain a clearance decision within reasonable time limits. As the report makes clear, most detainees were held for months before they were cleared, not because of lengthy investigations, but because the FBI failed to even initiate the requisite investigation or take other timely steps to complete the process.

The Result: Serious Civil Liberty Abuses in Detention

The decisions to arrest, charge, detain, and remove those the government labeled ""special interest"" detainees came to be a governed almost entirely by the secret FBI clearance process - rendering functionally irrelevant (at least temporarily) the judicial process designed to be check on government authority.

Not surprising, without checks on its power, abuses resulted. These included:

• Lengthy detentions without charge. Many individuals were detained for significant periods of time without charge. The Inspector General found that between 25 and 40% of September 11 immigration detainees were held more than 72 hours without charge,[10] and that at least 24 people were held for more than one month without charge. The failure to charge aliens with an offense for weeks and months directly contravened Congress's judgment in the USA PATRIOT Act to limit detention of even certified terrorism suspects (and none of the September 11 detainees were ever certified) to seven days without charge.[11] It also violated the Department's own regulations requiring a charging determination to be made within 48 hours after the alien's arrest,[12] and its internal policy to serve aliens with charging documents within 72 hours after arrest. These delays left many detainees unaware of the reasons for their arrest, prevented them from obtaining legal counsel, and prevented them from seeking release on bond for lengthy periods of time.

• Mandatory ""no bond"" detentions. Bond hearings for which detainees were statutorily eligible were scheduled and were held, but were rendered meaningless by the Department's ""no bond"" policy, which required detention until FBI clearance was complete. INS attorneys were instructed to obtain continuances to delay the hearings as long as possible. If judges scheduled hearings, INS attorneys were forced to defend the ""no bond"" position with a ""boilerplate"" affidavit, or without any evidence at all.[13] If judges granted bond, INS attorneys were directed to file for stays and appeals to the Attorney General, who would deny bond based exclusively on the lack of FBI clearance. Apparently to facilitate this strategy, the Department of Justice rushed through regulations to give the INS the right to block any release order approved by an Immigration Judge simply by filing a notice of intent to appeal, without any need to provide support for the merits of such an appeal.[14] Congress never authorized mandatory detention for aliens in the position of these ""special interest"" detainees, who were not charged with terrorism or certified as suspected terrorists under the USA PATRIOT Act,[15] but instead were suspected only of routine visa violations.

• Indefinite detention of those willing to be removed. September 11 detainees were not incarcerated only for the period during which they awaited immigration proceedings, however. Detention continued after Immigration Judges ordered removal or allowed voluntary departure (if the alien was found removable and other claims for relief were unsuccessful). Many detainees, in fact, agreed to their removal and gave up all appeal rights in the understanding that they would be immediately sent home. But under the ""hold until cleared"" policy in effect until February 2002, removal orders were not executed, and the means to effectuate removal (such as obtaining travel documents) were not even pursued, until FBI clearance was obtained. According to the OIG report, at least 54 detainees with final orders of removal were held for more than the 90 days provided in the Immigration and Nationality Act.[16] In the vast majority of these cases, the INS failed to provide a post-order custody review as required by its own regulations.[17]

• Incommunicado detentions, preventing access to counsel and family members. The Bureau of Prisons (""BOP"") was told to ""not be in a hurry"" to allow detainees to communicate with the outside world, including with legal counsel.[18] All September 11 detainees at BOP facilities were initially held completely incommunicado for over one week, and continued to be denied phone calls, mail, and visits with their families until mid-October 2001.[19] Moreover, they continued to be classified as ""Witness Security"" inmates, so that attorneys or family members contacting a BOP facility were often falsely told the detainee was not being held there. Detainees were allowed only one legal phone call per week, regardless of whether the call went through, which created a significant hurdle for aliens who did not already have counsel.

• Secret detentions. The Justice Department refused to release the names of the detainees and their attorneys, or their place of detention, to a group of human rights and civil liberties organizations seeking to arrange representation for the detainees. The immigration hearings themselves were completely and categorically closed to the public, press, and the detainees' families and friends.
  

The Justice Department decided to resist all legal challenges both to continued detention, and to the secrecy surrounding its decisions. For example, the Department avoided having courts hear detainees' petitions for habeas corpus (which the ACLU assisted in drafting) by ""clearing"" detainees as soon as the petition was filed, thus allowing release or public access, mooting the legal claim, and avoiding a determination about the lawfulness of its policies.[20]

A Basic Lack of Accountability

Critically, this strategy, coupled with excessive secrecy, meant that the Justice Department was essentially accountable to no one for several months. The detainees faced often insurmountable hurdles in obtaining legal counsel who could effectively challenge the government's policies. Even if aliens had counsel who sought court review through habeas corpus petitions, the Justice Department systematically mooted claims and avoided legal determinations about their policies. The public, excluded from the hearing room and facing barriers to communication with the detainees themselves, was unable to observe whether the Justice Department adhered to the rule of law, or whether the Justice Department routinely ignored the immigration judges' decisions to grant bond or to order removal.

Not even the will of Congress provided an effective check on the Justice Department's actions. An initial draft of the USA PATRIOT Act would have given the government summary power to detain and deport individuals whom the Attorney General certified as having links to terrorism, without a hearing in immigration court and with no administrative or judicial appeal rights.[21] Congress rejected this provision. But through its ""hold until cleared"" policy and the imposition of a veil of secrecy over its actions, the Administration sought to circumvent Congress's choice, leaving its unilateral executive decisions unencumbered by any meaningful constraints.

In fact, as the Inspector General's report lays bare, the Justice Department's repeated public justifications for its unprecedented actions, both in the courts and before Congress, were ultimately based on a deception. The government knew, from a very early date, that the vast majority of the ""September 11"" detainees in its custody had not been designated as ""of interest"" to the investigation because of any evidence of connections with terrorism.[22] Yet Justice Department officials persisted in telling the public, Congress, and the courts that the individuals in its custody were terrorism-related suspects.

Just last month, the United States Court of Appeals for the District of Columbia Circuit issued an opinion denying a Freedom of Information Act request for the names of the September 11 detainees, based in large part on its deference to the declarations submitted by Justice Department experts. The court concluded, ""[t]he clear import of the declarations is that many of the detainees have links to terrorism.""[23] These declarations, the Inspector General's report makes clear, were at best highly misleading.

Nor were these the only misleading statements that Department of Justice officials made about September 11 detainees. In response to documented reports of abuse as early as the fall of 2001, Assistant Attorney General Viet Dinh sought to reassure Congress that detainees' rights were being respected. In testimony before the Senate Judiciary Committee on December 4, 2001, Mr. Dinh asserted that all detainees had been charged with an immigration violation, criminal violation, or were being held as material witnesses.[24] While it is not clear from the OIG report whether that statement was true when Mr. Dinh made it, the Inspector General that ""[m]any detainees did not receive notice of the charges for weeks, and some for more than a month after being arrested.""[25]

Likewise, Mr. Dinh asserted that detainees' right to counsel was being respected. In fact, the OIG report makes clear that the restrictions on contact with attorneys for some detainees - including a limit of one telephone call per week, as well as prodding by Department officials to limit access to counsel - made it impossible for many detainees to retain counsel for months after being arrested. Finally, Mr. Dinh asserts that detainees had a right to appeal adverse decisions - but did not disclose that the Department had practices that rendered those appeals virtually meaningless.

This statement would be incomplete if it did not recognize that among the many dedicated attorneys and other employees of the Department of Justice were those who questioned its treatment of September 11 detainees and raised concerns about the need to ensure the Department respect basic rights. For example, INS General Counsel Bo Cooper sought revisions to the ""hold until cleared"" policy to bring it into line with the requirements of the Constitution and Immigration and Nationality Act.[26] An attorney in the Criminal Division also raised red flags about sending the Department's attorneys into court to argue for the continued detention without bond of ordinary immigration violators without any evidence connecting them to terrorism, saying that such efforts would be a waste of resources and could harm the Department's credibility in future cases.[27] Yet the lack of checks and balances clearly frustrated the ability of these Department employees to get the attention of those who had the authority to change the policy.

A Department of Justice Unrepentant

Even after the