Sign-On Letter Submitting Comments to the Honorable Thomas Ridge of the Department of Homeland Security in Response to the Department of Justice's Office of the Inspector General's Report on the September 11th Detainees

Dear Secretary Ridge:

We, the undersigned ethnic, religious, human rights, and civil rights organizations submit the following response to the report by the Department of Justice's Office Of Inspector General titled, ""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.""

These comments will be limited to Office of the Inspector General's (OIG) report. They do not address all of the problems that are pervasive in our detention system. For years, detained immigrants have been mistreated and denied access to the legal system. Thus, we urge the Department to use the OIG report's recommendations as an opportunity to address broader defects in our immigration detention system. While we are pleased by your Department's attention to the recommendations in the OIG report, we have outlined below areas of particular concern and indicated our recommendations.

The OIG report confirmed the concerns many of our organizations voiced from the beginning- that many detainees were classified as ""September 11th"" detainees ""regardless of the factual circumstances of the aliens' arrest or the absence of evidence connecting them to the September 11th attacks or terrorism."" (pg. 186) Similarly, the OIG report confirmed that detainees were subject to harsh and abusive conditions of detention. Moreover, the sweeping nature of the investigation illustrated a lack of good intelligence by the FBI, and its failure to distinguish between immigrants who it suspected of having a connection to terrorism from those who had no connection.

Profiling and Immigration Law as a Proxy for Combating Terrorism

We note that there was a faulty assumption at the outset of the investigation, namely that it would find terrorists by apprehending persons who were out of status from certain countries. This led to the anomaly of using national origin, religion, and racial profiling as a basis for finding terrorists rather than relying on intelligence and traditional law enforcement investigative mechanisms as the most effective tools to locate those connected to terrorism. Moreover, we are disturbed by the OIG's assumption that in recommending that agencies decrease the time needed for a clearance in the future, the same kind of blanket sweep may happen again. We urge you to commit that the Department will never again round up immigrants and detain them in the name of fighting terrorism, without clear evidence linking them to terrorism.

What's more, immigration laws were improperly used to hold minor visa violators as ""September 11th"" detainees when no ties to terrorism could be found and they could not be charged criminally. We urge your Department to revisit the overarching assumption of the post 9-11 detentions- that immigration law should be a tool for the blanket detention of individuals who are not connected to terrorism and cannot be charged criminally. As the report shows, such an approach resulted in the prolonged detention of individuals from certain countries. Our immigration laws can and should be enforced in a fair and even-handed manner, and not selectively enforced against a particular race, nationality or religion. As counterterrorism expert Vincent Cannistraro noted, ""When we attach the blunt instrument of immigration policy and enforcement to [select immigrant] communities?we undercut the basis of any cooperation with the FBI and local law enforcement. And that's the problem I see?we're using immigration policy as a proxy for law enforcement and it is a poor proxy because it alienates the very communities that we need to depend on for early warning. ?the FBI needs to be able to ?work with immigrant communities.""[1]

Secret Arrests and Hearings: The unprecedented secrecy surrounding the arrests, detention, and deportation hearings of the September 11 detainees contributed to the abuses identified in the OIG report. This regime of secrecy continues today with the Justice Department refusing to release the names of detainees and mandating secret immigration hearings for these detainees. Such secrecy blocks Congressional and public scrutiny of the kinds of abuses found by the OIG. It is not compatible with an open society and notions of fair play, which are the cornerstone of our democracy. We request that the names of those who have been detained in connection with the September 11 investigations be released immediately and that you take whatever steps are necessary to ensure that this policy of unwarranted arrests and blanket closed hearings will not be repeated. Specifically, we ask that you reaffirm that immigration proceedings are presumptively open to the public, and allow limited exceptions only for discrete portions of hearings and only upon a case-by-case showing of necessity.

Secret Detentions without Charge: Detaining somebody without a charge is one of the more egregious and disturbing features of the terrorism investigation. This occurred in great part because of a September 17, 2001, DOJ-issued regulation which not only expanded the time INS was given to charge an individual to 48 hours, but also created a broad exception. The exception: that in the event of an ""emergency or other extraordinary circumstances,"" a charging determination could be made within an ""additional reasonable period of time."" The September 17, 2001 regulation does not define "extraordinary circumstances" or "reasonable period of time.""

Moreover, the regulation does not specify a timeframe for when an individual must be notified about the charges against him. This deprives individuals of due process, namely, prompt notice of the government's custody decision and of the charges on which they are being held. While the goal by INS was to serve a Notice to Appear (NTA) on an individual within 72 hours, the OIG Report confirms that many did not receive these notices for weeks and for some, more than a month after their arrest (pg. 35).

The OIG report takes a step in the right direction by recommending that DHS document cases where individuals are detained without charge beyond 48 hours and formally require that individuals are served an NTA within 72 hours of their arrest. These recommendations are not sufficient. We urge that DHS rescind the September 17 rule and establish a 48 hour deadline for DHS to charge an individual and serve him with an NTA. Where a charge cannot be levied within the 48 hour period, the detainee must be brought immediately before a judge for determination of whether there exists a legitimate exception for limited continued detention without charge.

Access to the Legal System: We have long opposed the practice of jailing immigration detainees without an individualized determination that they pose a risk of flight or a danger to the community. The practice of blanket denial of bonds was used on September 11 detainees in violation of the law. Under an October 3, 2001 policy, INS was required to oppose bond in all cases unless FBI headquarters expressed no interest in the case. This policy is contrary to the law and, again, the law could have been followed if adequate resources had been devoted to the clearance of innocent detainees. Then INS General Counsel Owen ("Bo") Cooper questioned whether INS lawyers could make representations to the Court consistent with the evidence necessary to follow the Department's ""no bond"" policy. (pg. 78) As revealed in the OIG report: ""Thus, even though from the INS's perspective it had no evidence to support a "no bond" position, INS attorneys were required to argue that position in court."" The INS attorneys should be applauded for raising these concerns; we agree with their understanding of the law. Even where there is a legitimate detention, we recommend that individuals be afforded an individualized bond hearing before an Immigration Judge. Individuals should be released from custody on a reasonable bond unless they are found to be a flight risk or a danger to the community. We urge the Department to make those regulatory and statutory changes necessary to insure this in the future.

Access to Counsel: The OIG report identifies a number of ""right to counsel"" barriers, among them a ""communications blackout,"" a once a week phone call policy for contacting attorneys, and the miscommunication between detention facilities and attorneys. A ""communications blackout"" at the Metropolitan Detention Center, formally initiated September 17, but lasting until mid-October, (pgs. 112-114) essentially ""disappeared"" detainees within the system, leaving them with no access to their attorneys or families, and no way to inform them of their whereabouts. It was frightening to learn that the first call to legal counsel by a September 11 detainee did not take place until October 15, 2001. (p. 132). Even after the communications blackout was lifted, access to counsel was severely limited. Detainees could make one legal call a week and busy signals and answers by voicemail were counted as a call. (pg. 134) In some circumstances, ""Are you okay"" by a prison counselor became the functional equivalent of ""Do you need to talk to your lawyer this week?"" As confirmed by the OIG report, ""Detainees we interviewed reported that an affirmative response to the question of whether they were "okay" resulted in them not receiving a legal telephone call that week."" (p. 132) The OIG report also found that attorneys were regularly told that their clients were not in a facility, when in fact they were. (pg. 136) In addition, INS did not consistently provide the detainees with a list of pro bono attorneys. (pg. 137)

We are pleased by Under Secretary Asa Hutchinson's recent testimony before the Senate Judiciary Committee about the new BICE detention standard: ""Finally, the standards include specific timeframes during which [BICE] officers must respond to certain enumerated detainee requests. All detainees in DHS controlled facilities are required to have access to counsel, telephone calls, and visitation privileges consistent with their classification. ?This order particularly noted the importance of detainees' access to legal representation and consular officials."" It is essential that detainees receive regular access to counsel, regardless of their classification. Indeed, as the OIG Report indicates, access to counsel can be too easily denied in practice, especially when based on a flawed or haphazard process of classification.

Detention Conditions: The OIG report also found disturbing conditions of detention at the MDC. The report found that detainees were placed in the most restrictive forms of custody: 23 hour lockdown, a ""pattern of physical and verbal abuse,"" (p. 142) restrictive escorts, communications blackout and then strict limits on access to counsel and visitors- without a routine individualized assessment. (pg. 112) The resulting mistreatment of the detainees shows the need for strict adherence to protective procedures and policies, especially in times of emergency. Several of our organizations regularly represent immigration detainees and note that many of the problems experienced by the 9/11 detainees and outlined in this report (i.e. commingling with criminals, abuse by guards, lack of access to counsel) can be seen, in slightly less egregious forms, in jails and prisons throughout the country.

Effective Internal Oversight: The recent ""Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act"" (Report) details 1,073 reported complaints received by the OIG. Among other things, the Report delineates whether such complaints were investigated by OIG, referred to another agency, or closed after review. One complaint involved an inmate who alleged ""that during a physical examination a BOP physician told the inmate, 'If I was in charge, I would execute every one of you . . . because of the crimes you all did.' The physician allegedly treated other inmates in a cruel and unprofessional manner."" The abuses identified in the OIG report and the Report to Congress highlight the need for strong and effective oversight over civil rights in DHS. Under the Homeland Security Act, the Officer for Civil Rights and Civil Liberties (OCRCL) is responsible for reviewing and assessing abuses related to civil rights, civil liberties, and racial and ethnic profiling by Department staff and employees. We urge your Department to work with the OCRCL in the development of policy so that potential problems can be identified and corrected before policies are finalized. Similarly, we recommend that you develop an effective complaint mechanism and investigative protocol in OIG for potential civil rights and civil liberties violations involving DHS officers.

In advance, we thank you very much for your consideration of the above-mentioned recommendations. We look forward to working together in the future.

Sincerely,

National

[1] See comments of Vincent Cannistraro at 26th National Legal Conference on Immigration and Refugee Policy, Center for Migration Studies and the Catholic Legal Immigration Network, Inc., April 3, 2003, ""National Security and Immigration Rights."" See also, ""America's Challenge: Domestic Security, Civil Liberties and National Unity After September 11,"" Migration Policy Institute (June 2003).