Committee on Homeland Security and Governmental Affairs
United States Senate
340 Dirksen Senate Office Building
Washington, D.C. 20510
As you consider the nomination of Michael Chertoff to the position of Secretary of Homeland Security, the undersigned organizations urge you to carefully consider his troubling record on the misuse of immigration laws and the material witness statute, and to obtain clear commitments from him to avoid similar civil liberties problems should he be confirmed to head the Department of Homeland Security. We also urge you to conduct a full inquiry into recent reports that Mr. Chertoff advised the CIA on the legality of coercive interrogation tactics based on the 2002 Office of Legal Counsel memorandum on torture.
Directly after 9/11, the Justice Department began a carefully planned campaign focusing on the prevention of future attacks. Although no one can take issue with the goal of this effort, revelations in the three years since have called into question the investigative methods used by federal law enforcement.
Reportedly, several of the most controversial policies were both conceived and managed by Mr. Chertoff, then the assistant attorney general in charge of the Justice Department’s Criminal Division. We believe the Senate should thoroughly examine his role in developing and implementing post-9/11 investigative policies that went too far in intruding on the basic rights and liberties of people in the United States.
Of greatest concern are the findings of the Justice Department’s own Inspector General, made public in June 2003, that senior officials in the department implemented a policy of “”indiscriminate and haphazard”” detentions of non-citizens in the wake of the September 11th attacks. These detentions entailed the round-up of hundreds of primarily Arab, Muslim and South Asian men, often without any information linking them to terrorism, and subjecting them to series of special measures that violated their basic rights, such as prolonged detention without charge, interference with the right to counsel, denial of an opportunity for release on bond, and unduly harsh conditions of confinement, including some cases of physical and verbal abuse. The Department refused to release the names of the persons detained and kept their deportation hearings completely closed.
The Inspector General found that the Department implemented an official, though unwritten, “”hold until cleared”” no-bond policy. Because the clearance procedure was given a low priority and was plagued by resource shortages, the average length of confinement for the detainees was 80 days, with many held for much longer – up to 8 months. The average length of time before the detainees even learned the basis for their detention was three weeks.
The Inspector General also found fault with the conditions of confinement for many of the detainees. His office looked in detail at the people held in the Metropolitan Detention Facility in Brooklyn, NY, which held many of the FBI’s “”high interest”” detainees under extremely restrictive conditions. During the first three weeks of their confinement, the detainees were subject to a complete “”communications blackout,”” which kept their families, attorneys and the news media in the dark as to their whereabouts and condition. Even after the blackout period ended, problems with the detention policy sometimes still kept them incommunicado. A subsequent report from the Inspector General released in December 2003 confirmed that many detainees held at the Metropolita?n Detention Facility w?ere subjected to physical and verbal abuse.
As head of the Criminal Division, Mr. Chertoff was also deeply involved in the strategy of using the material witness statute when investigators could not establish any legal basis for taking a person of interest into custody, be it civil or criminal. But the material witness statute was never intended as a way for the authorities to detain, without evidence, persons suspected of crime. We still do not know the scope or number of material witness arrests in connection with the counterterrorism investigation as Mr. Chertoff maintained throughout the investigation that material witness detentions must remain secret; the Justice Department has refused to disclose even to Congress the names or how many material witnesses it has arrested in connection with the 9/11 investigation.
Several other similar questions arise in Mr. Chertoff’s public record, including his role in the revision of the Attorney General Guidelines governing the initiation of FBI investigations and the “”voluntary”” interview program of thousands of Arab and Muslim men not suspected of any crime. The former policy now permits the FBI to send undercover agents into social, religious or political events, open to the public, even when there is no suspicion of wrongdoing. The latter program, many individuals believe, “”had a chilling effect on relations between the Arab community and law enforcement.””
We are also very concerned about reports that Mr. Chertoff advised the CIA on interrogation methods to be used on detainees, pursuant to the August 2002 memo from the Office of Legal Counsel. The CIA reportedly sought legal protection against the prosecution of its agents under the federal anti-torture statute, and in response Mr. Chertoff provided advice on a wide range of coercive methods of interrogation. In particular, it has been reported that he did not tell the CIA that waterboarding – a technique that unquestionably constitutes torture – was absolutely illegal. On the contrary, he reportedly advised the CIA that waterboarding could lawfully be used under certain circumstances.
Most of these problematic policies contain elements of profiling based on religion, ethnicity or national origin. Rather than focusing on real terrorist threats, many of these post-9/11 policies seemed to target people based on little more than their religion or national origin. Basic American principles of fairness and equality before the law, as well as practical concerns about the waste of scarce resources on investigative dead-ends, prompt our concern. Accordingly, we ask that the Senate seek the following commitments from Mr. Chertoff prior to voting on his nomination.
- No more secret arrests. Commit to inform the American people of the identity of and charges brought against individuals detained by the DHS.
- Release the names of those secretly arrested and detained in the wake of the 9/11 attacks. Virtually none of the more than 760 immigrants arrested and detained on immigration violations in the wake of the 9/11 attacks had any connection to terrorism. Yet to this day the government refuses to release their names and has gone to great lengths to keep them secret. In the words of Judge Gladys Kessler, “”Secret arrests are a concept odious to a democratic society.””
- Ensure open deportation hearings. In order to keep secret the identities of the hundreds of non-citizens arrested after the 9/11 attacks, the DOJ issued a blanket order automatically closing all deportation hearings for all of those detainees. The secrecy helped cover up the fact that many detainees were denied access to a lawyer, held in unduly harsh conditions, and that some were abused by guards. Open hearings, with appropriate protections for classified information, are needed to ensure that abuses such as the ones documented by the IG are prevented and that the American public is informed concerning what its government is doing.
- Ensure that individuals are not jailed without being charged and commit to providing individuals who are jailed on suspicion of immigration violations timely notice of the charges against them, no later than 48 hours after they are jailed. Almost one-half of the aliens detained on immigration violations following Sept. 11 were not charged within a 48-hour period. An analysis by the Washington Post found “”about 40 percent of the immigrants were not charged within a week, and that some were held for seven weeks or more without charges.””
- Assure that individuals are provided fair, individualized bond determinations when the DHS seeks to jail them. By October 2001, DOJ had instituted a policy to override decisions of immigration judges that an individual detainee was entitled to release on bond after a hearing in his case. The DOJ policy, which remains in place in the form of a regulation, enabled the blanket override of judicial bond decisions in individual cases. Thus, persons being held for minor immigration violations, who would ordinarily obtain pre-hearing release, were detained for weeks and months without a fair opportunity to seek release on bond.
- Assure that individuals who are detained are allowed immediate access to counsel and family.
- End the selective enforcement of the immigration laws based on ethnicity or religion. The special registration program conducted between November 2002 and April 2003 sought to gather information on 83,000 Arab and Muslim men. There has been no claim that the program uncovered terrorists, but it did lead to deportation proceedings against approximately 13,000 persons who voluntarily complied with the program. Targeting these immigrant communities is inconsistent with President Bush’s statements in the wake of the 9/11 tragedy that individuals should not be singled out for harsh treatment just because they were Arab, Muslim or South Asian.
- No more abuse of the material witness statute. DHS should work with DOJ to ensure that the material witness authority is confined to its proper use – detention of individuals whose testimony is material and is needed in court, and who are likely to flee if not detained.
Thank you for your attention to this issue. Please do not hesitate to contact us if you have any questions.
American Civil Liberties Union
American-Arab Anti-Discrimination Committee (ADC)
American Humanist Association
Asian Law Caucus
Bill of Rights Defense Committee
Caribbean and American Family Services, Inc.
Center for National Security Studies
DRUM – Desis Rising Up & Moving
Human Rights First
Human Rights Watch
Illinois Coalition for Immigrant and Refugee Rights
Islamic Circle of North America (ICNA Relief)
Korean American Resource & Cultural Center (KRCC)
Korean Resource Center (KRC)
Lawyers’ Committee for Civil Rights Under Law
Leadership Conference on Civil Rights
Legal Momentum (the new name of NOW Legal Defense and Education Fund)
National Council of La Raza National Korean American Service & Education Consortium (NAKASEC)
Open Society Policy Center
The Interfaith Alliance
The National Asian Pacific American Legal Consortium
The New York Immigration Coalition
Young Korean American Service & Education Center (YKASEC)
 The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, Department of Justice Office of the Inspector General, April 2003 at 2, available at http://www.usdoj.gov/oig/special/0306/full.pdf (unless otherwise noted, the facts and specifics cited in this letter are taken from this report).
 Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York, Office of the Inspector General, Department of Justice, December 2003, available at http://www.usdoj.gov/oig/special/0312/final.pdf.
 Steven Brill, After: How America Confronted the September 12 Era, Simon & Schuster, 2003, at 148.
 See 18 U.S.C. § 3144 (2004) (“”No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.””)
 Justice Department’s Project to Interview Aliens After September 11, 2001, GAO Report Congressional Committees, GAO-03-459 (2003).  See David Johnston, et. al, “”Security Nominee Gave Advice to the CIA on Torture Laws,”” New York Times, January 29, 2005, at A1.
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