Testimony of Nadine Strossen to the Senate Judiciary Committee

Testimony of Nadine Strossen
President of the
American Civil Liberties Union

Submitted to the
Senate Judiciary Committee

Department of Justice Oversight: “The Massive, Secretive Detention and Dragnet Questioning of People based on National Origin in the Wake of September 11”

December 4, 2001

Chairman Feingold and other members of the Committee, I am pleased to testify before you today at this oversight hearing on the conduct of the Department of Justice in response to the September 11 attacks on the World Trade Center and the Pentagon. My name is Nadine Strossen and I am the President of the American Civil Liberties Union, a non-partisan, non-profit organization, consisting of nearly 300,000 members, dedicated to protecting the principles of freedom and equality reflected in our Constitution and civil rights laws. I am also a Professor of Law at New York Law School, teaching and writing about Constitutional Law.

Before I discuss the ACLU’s concerns about the infringements on constitutional rights and civil liberties in connection with the Department of Justice’s detention and questioning of thousands of individuals in the wake of the horrifying September 11 attacks, I want to note how close to home those attacks were, and how I continue to be directly affected by their ongoing impact. Both the ACLU’s national headquarters and New York Law School are located within blocks of “Ground Zero.” By some stroke of relative good fortune, everyone who worked at either location was spared direct physical injury or death. Nonetheless, the psychic and health traumas are deep and enduring, and both workplaces were severely damaged.

The ACLU office was closed for a week and it took several weeks before we had full use of telephone service and computers. New York Law School, which suffered more physical damage, was closed for several weeks, and in fact did not have long distance telephone service restored until just a couple weeks ago. Many students — including many who had just arrived in New York from other parts of the country, for the beginning of their law school careers — are still suffering severely from the psychic aftershocks. A number dropped out and moved away altogether, and others are taking some time off before returning to law school. One who never came back after witnessing the horrifying attacks and ensuing chaos, choosing to move to another part of the country, was one of my two full-time staff members. The air quality is still so bad that it is often physically unpleasant, if not adverse to health; colleagues with asthma or other respiratory conditions can’t remain at the school for more than short periods.

Moreover, like most New Yorkers, I lost a friend and colleague in the attack. John Perry, who was both a police officer and a lawyer, had long been active in the ACLU’s New York affiliate. He and I worked together on a number of projects, including a series of public television programs about constitutional law/civil liberties issues. So I come before the Committee today with personal losses and grief resulting from the tragedy (fully realizing how much greater and more direct were the losses suffered by so many others), and a strong desire to see that those who helped perpetrate this atrocious crime are brought to justice.

The ACLU recognizes that this investigation is an enormous undertaking and we are grateful to the thousands of people at the Department of Justice who are working hard, with the best intentions, to solve this atrocious crime and protect us from future attacks. However, the Department of Justice has assumed broad new police powers and used investigative tactics that unnecessarily violate rights with no showing that these measures increase the likelihood of capturing or deterring terrorists. Indeed, former FBI agents have publicly criticized the government’s detention and questioning of thousands of individuals based on their immigration status and their national origin specifically from a law enforcement perspective. They maintain that these dragnet tactics are ineffective at best, counterproductive at worst, in terms of the all-important goals of punishing and preventing terrorism.11 Washington Post, October 27, 2001.

My written testimony will focus on three aspects of the sweeping detentions and questioning, which raise particular concerns about infringements of constitutional rights and civil liberties: (1) the DOJ regulation authorizing it to record confidential, privileged attorney- client communications between individuals who are being detained and their attorneys; (2) the government’s refusal to disclose basic information about the people who have been detained, and (3) the questioning of 5,000 young men who lawfully entered the U.S. on non-immigrant visas, based on their country of national origin. We believe that these measures unnecessarily violate civil liberties and rights without sufficient justification in terms of advancing national security. These measures will not make us more safe, but they will make us less free.

Eavesdropping on Protected Attorney Client Conversations

Without observing the normal notice and comment period required under the Administrative Procedures Act, Attorney General Ashcroft announced, under “emergency authority,” a regulation that permits the Department of Justice to eavesdrop on confidential attorney client conversations in any case in which the Attorney General finds that there is “reasonable suspicion” to believe that a particular federal prisoner “may” use communications with attorneys or their agents “to further or facilitate acts of terrorism.” The regulation requires that the Director of the Bureau of Prisons (BOP) “shall … provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege.

In short, the Justice Department, unilaterally, without judicial oversight, and with no meaningful standards, is to decide when to eavesdrop on the confidential attorney-client conversations of a person whom the Justice Department itself may be seeking to prosecute. This regulation applies not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not yet been convicted of any crime and are presumed innocent, as well as material witnesses and individuals who are being held on suspected immigration violations and who are not accused of any crime.

This regulation is particularly disturbing because it is unnecessary. The Department of Justice already has legal authority to record attorney- client conversations by going before a judge and obtaining a warrant based on probable cause that the attorney is facilitating a crime. Indeed, the Supreme Court has even approved searches of an attorney’s law office, provided a warrant has first been obtained from a neutral and detached magistrate. Similarly, if prison officials have reason to believe that a particular prisoner is using the mail to violate the law or threaten security, they may obtain a search warrant to read and open the mail.

A second source of longstanding legal authority to record conversations between attorney and client, when justified by crime control concerns, is the “crime-fraud exception” to the attorney-client privilege. Attorney- client communications lose their privileged status if the government can establish that the communications were used for the purpose of facilitating a crime or perpetrating a fraud. However, it is the judge, not the Justice Department, who determines which communications fall under the crime-fraud exemption. The Supreme Court has made clear that the determination whether an attorney-client communication falls within the crime-fraud exception is to be made by courts in an in camera hearing after the government provides the court with evidence substantiating a good faith basis to believe that the exception applies.

The Justice Department has not articulated a single reason why these two provisions in current law are insufficient to ensure that attorneys are not assisting their clients in committing crime. Indeed, during questioning before the Senate Judiciary Committee on November 27, 2001, Assistant Attorney General Michael Chertoff could not answer Senator Kennedy’s question as to why the new regulation was necessary. Yet in spite of any justification for doing so, the Department of Justice has made itself the arbiter of when conversations should be monitored, taking away the authority from a neutral judge. This regulation is an unprecedented frontal assault on the attorney-client privilege and on the right to counsel and the right of access to the courts guaranteed by the Constitution.

The Supreme Court has recognized the attorney-client privilege as the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients, recognizing that sound legal advice or advocacy depends upon the lawyer being fully informed by the client. The Court stated that the attorney client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Indeed, the privilege is so well established and considered such a compelling societal interest, that the Supreme Court has held that the privilege survives even after the client’s death.

Besides violating the long established attorney-client privilege, the regulation violates the Sixth Amendment right to the assistance of counsel. In the famous case of Gideon v. Wainwright, the Supreme Court ruled that the Sixth Amendment guarantees a person facing criminal charges the right to the assistance of counsel for his defense. This right is not limited to the trial itself, but includes the assistance of counsel in the investigation and preparation of a defense. Indeed, the Supreme Court has recognized that denying a person access to counsel in the period prior to trial, the period most likely to be impacted by this regulation may be more damaging than denial of counsel during the trial itself.

The essential bedrock of the Sixth Amendment right to the assistance of counsel is the ability to communicate privately with counsel. Even the Justice Department recognizes the need for private attorney-client communications. In a friend of the court brief, the Justice Department wrote, “the Sixth Amendment’s assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding.” Under the regulation, the defendant and his counsel are confronted not just by the possibility that the government is monitoring their communications, but by the certain knowledge that it is doing so.

Separate and distinct from the Sixth Amendment rights of persons facing criminal charges, prisoners have a constitutional right of access to the courts. This right is not limited to pretrial detainees facing criminal charges, or those appealing criminal convictions, but extends even to convicted prisoners who may wish to seek a writ of habeas corpus or file an action challenging the conditions of their confinement. Indeed, because a prisoner ordinarily does not have the right to vote, the Supreme Court has held that the right to file a court action might be a prisoner’s remaining most fundamental right. Regulations and practices that unjustifiably obstruct the availability of legal representation are invalid. Courts have expressly held that the right of access is the guarantee of an opportunity to communicate with counsel privately. Moreover, courts have specifically held that, when the individual seeking to confer with counsel is incarcerated, a prison must provide a facility for confidential attorney-client conversations. Likewise, judicial rulings have held that the Sixth Amendment right of access to the courts includes the right to privacy in attorney-client mail.

The new DOJ regulation provides that the government will not retain “properly privileged materials” that it obtains through its monitoring. During his appearance before the Senate Judiciary Committee, Assistant Attorney General Chertoff suggested that the regulation violates no rights and causes no harm because “innocent” conversations will not be retained or used against the client and “guilty” conversations are not protected anyway. However, an individual’s right to counsel will still be violated by the government’s announced monitoring program, even if the government does not retain his privileged communications with counsel or use these communications against him in a criminal prosecution. Indeed, an individual’s Sixth Amendment right to counsel will still be violated in the wake of the announced monitoring program even if the government does not actually intercept any of that individual’s privileged communications with his lawyer. As the courts have recognized, the violation occurs as soon as the individual and his lawyer are informed that their confidential attorney-client communications are henceforth subject to monitoring by government agents. From that point on, all attorney-client communications are chilled, thus thwarting the privilege’s key purpose – to encourage the full and frank disclosure and discussion between attorney and client that is an essential prerequisite for the lawyer’s effective representation of the client.

In a recent opinion, Richard A Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit, powerfully explained why “merely” announcing a policy of government monitoring of attorney- client communications would have a devastating impact on the attorney- client privilege and the associated Sixth Amendment rights to representation by counsel and access to the courts. Chief Judge Posner’s opinion described a colloquy during the oral argument in which he had asked the government lawyer if the attorney-client privilege would be violated in the following hypothetical situation: all conversations between criminal defendants and their lawyers were taped, but the tapes were never turned over to the prosecutors, and instead were stored in the National Archives. The government lawyer took the position that none of the defendants could complain in this situation because none could be harmed by it, since the prosecutors would not have access to the tapes. Judge Posner rejected that conclusion, explaining:

The hypothetical practice that we have described would, because of its pervasiveness and publicity, greatly undermine the freedom of communication between defendants and their lawyers and with it the efficacy of the right to counsel, because knowledge that a permanent record was being made of the conversations between the defendants and their lawyers would make the defendants reluctant to make candid disclosures. (Totalitarian-style continuous surveillance must surely be a great inhibitor of communication.)

Failure of the Government to Disclose Fully Information about the Persons it has held and incarcerated since September 11

The Department of Justice has launched what appears to be an extensive program of preventive detention. Although certainly not on the same scale or scope as the internment of Japanese-Americans during World War II , this is the first large-scale detention of a group of people based on country of origin or ancestry since that shameful episode, for which our government formally apologized and paid reparations.

The Department admits that over 1,200 people have been detained in connection with the September 11 attacks. Some have been incarcerated for long periods of time, others held for only hours. Because of the secrecy surrounding the detentions, we do not know whether most of these people are still incarcerated or have been released.

A major safeguard against government abuses of power is being thwarted by the Justice Department’s policies: access to information. The Department is defying the public’s right to know, refusing to give important information about the detainees. This wall of silence undermines public confidence in the investigation and raises questions about the fairness of the process, as well as the rights and even the welfare and safety, of the incarcerated individuals.

According to media accounts of the detentions, only a very small number of persons that have been arrested have any involvement or knowledge of the attacks. Approximately 10 people, what the Washington Post called the “hot center” are believed to have close ties to the al Qaeda network or some knowledge of the hijackers. An additional 17 men and 1 woman have more distant connections to the hijackers or connections to the people in the “hot center.” The rest have been charged with unrelated technical immigration violations, minor criminal charges (usually under state law), and as material witnesses under 18 U.S.C. sec. 3144. It appears that the vast majority of the people being detained in connection with this investigation are being detained on pretexts: they have committed a minor offense that gives law enforcement or immigration authorities the power to detain them even though they would not under normal circumstances be detained for such conduct. By all accounts, the overwhelmingly majority of detainees are Muslims or Arabs, come from Middle Eastern countries, and are non- citizens.

We have the most urgent concern for the detainees who are being held on immigration charges because their access to legal counsel is limited. Unlike defendants in criminal cases or persons held as material witnesses, those who face immigration charges are not entitled to counsel at government expense if they cannot afford an attorney. Therefore, immigration detainees will have legal representation if they are able to retain counsel (or someone retains counsel for them) or are able to get free legal representation. Restrictions on telephone access, contact with family members and visits by pro bono lawyers and organizations that offer free legal representation impose practical impediments that deny detainees the opportunity to find or retain counsel.

The public has virtually no information about the whereabouts of persons held on immigration violations. Are they being held in custody or have they been released? Where are they being held? How long have they been held? Do they have an attorney? The fact that immigration detainees can be held in so many facilities, coupled with the secrecy surrounding the detention, makes it extremely difficult to determine whether the detainees have access to counsel, are allowed contact with their families, and are being properly treated. We know that at least one detainee – 55-year-old Mohammed Rafiq Butt – died in custody. On October 23, Mr. Butt was found dead in his cell at the Hudson County jail in Kearny, New Jersey, the cause of death ruled heart failure. We know of others who have been held for weeks without any immigration charges being lodged against them. This contradicts the Attorney General’s assurances that all those who are being detained are being promptly charged within 48 hours. It also violates the recently enacted Patriot Act, which requires that, even for those individuals certified by the Attorney General as suspected terrorists, charges must be filed within 7 days or the individuals must be released.

Until very recently, the Department of Justice had not released any information about the detainees other than some numbers about how many there were. However, perhaps responding to mounting political pressure, Attorney General Ashcroft recently released some information. While this is a positive development, the released information is woefully incomplete. The basic information that the ACLU and other citizens’ groups have been requesting is not classified or privileged, nor could its release raise any legitimate national security concerns. To the contrary, the information we seek should be a matter of public record: the names of the detainees; their citizenship status; where they are being held; the dates they were arrested or released (if applicable); the nature of the criminal or immigration charge; the disposition of the material witness warrant; the identity and names of addresses of the attorneys representing the detainees; the courts where the charges were heard and whether the proceedings were sealed, including the legal authority to close the proceedings; and any policy directives or guidance issued to officials about making public statements or disclosures about the detainees. Members of Congress have asked for similar information.

The information that has been provided by the Department of Justice is better than the total wall of silence that previously existed, but still inadequate. The government has now released the names of 93 people who have been charged with federal crimes but has not said where they are being held, nor provided any information about any of the people arrested on state or local charges who were also included in the DOJ’s tally of 1200 arrests. It is unacceptable that the government continues to refuse to provide the names of the immigration detainees, the locations where they are being held, or the identities of their lawyers. Without the names of the detainees it is impossible to verify if they are being properly treated. The DOJ should immediately allow pro bono attorneys and legal organizations to have in-person access to every immigration detainee wherever held.

It is not for lack of trying that we have been unable to get information about the detainees. On October 17, the ACLU wrote to the Attorney General asking him for information about the detainees. He did not respond to that letter. We posed similar questions to the Director of the FBI, Robert Meuller, at two meetings on September 25 and October 25. When those requests for information failed, we filed, along with other organizations, a request under the Freedom of Information Act on October 29. Subsequent to filing the FOIA request, on October 30, we met with Commissioner Ziglar of the Immigration and Naturalization Service who also did not provide the information. Although some information has been provided since the time of our FOIA request, the disclosures have been utterly inadequate, particularly because the information requested should be publicly available.

Further legal action may well be necessary to secure the Justice Department’s compliance with our FOIA request, especially in light of the Attorney General’s new directive discouraging the release of information pursuant to FOIA requests. The memorandum also informs agencies that the Department of Justice will back up their decisions not to release information. On October 12, 2001, Attorney General Ashcroft issued a “Memorandum for Heads of all Federal Departments and Agencies” instructing them on how to respond to FOIA requests. “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” Ashcroft established a “sound legal basis” standard for complying with FOIA requests. This memorandum superseded a 1993 memorandum from Attorney General Janet Reno, which encouraged agencies to release information under the FOIA unless it was “reasonably foreseeable that disclosure would be harmful.” Reno’s standard encouraged disclosure unless there was a reason not to, whereas Aschroft’s discourages disclosure unless there is a sound legal basis to do so. The fact that the Attorney General has pledged DOJ resources to defend any FOIA challenges is a further indication of the degree to which this administration is discouraging an open government.

The Attorney General’s ongoing refusal to provide requested, important information about the detainees appears to reflect his general philosophy of withholding as much government information as possible, as set out in his October 12, 2001 memorandum, rather than any specific legal justification for withholding this particular government information. When questioned by members of the Senate Judiciary Committee at an oversight hearing on November 27, 2001, Assistant Attorney General Michael Chertoff said there was no legal reason why the names of all the detainees could not be released. Even though it could legally do so, the DOJ has not released the names of the detainees who have been charged with immigration violations. Assistant Attorney General Chertoff explained that the Attorney General wishes to protect the privacy of the detainees and does not wish to compile and release a list of detainees for fear that the list will get back to Osama bin Laden and he will learn what has happened to some of his “sleepers.” It is highly unlikely that bin Laden would not know if one of his soldiers was taken into custody. However, the slight possibility that such a list might provide bin Laden with some information is overridden by the much greater public interest in making sure that 1,200 people are not being held incommunicado.

Significantly, the Attorney General’s October 12, 2001 memorandum discouraging disclosure in response to the FOIA requests stresses the special importance of maintaining the confidentiality of any communications with attorneys. “Congress and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations without fear that they will be made public. Other privileges ensure that lawyers’ deliberations and communications are kept private. No leader can operate effectively without confidential advice and counsel.” Ironically, the Attorney General appears to appreciate the need for private conversations with counsel on the part of the government itself, but not on the part of the individuals who are being detained and facing prosecution by the government.

New Authority for Attorney General to Hold People in Detention Adding to the concern about unfair detention is a new regulation that makes it easier for the government to detain non-citizens. This regulation was issued by the Attorney General on October 26 and went into effect on October 29. Like many post-September 11 regulations, it was put into effect under the administration’s “emergency rule-making authority” that exempts the Attorney General from complying with the normal notice and comment period. The new rule allows the Immigration and Naturalization Service to set aside any release order issued by an immigration judge , simply because it disagrees with the immigration judge’s determination, in cases where the agency says it believes that the non-citizen poses a danger to the community or is a flight risk. Previously, the immigration service needed to request a stay from the board of immigration appeals if it disagreed with an immigration judge’s determination, except in limited circumstances where the individual had been convicted of certain crimes or accused of terrorism. Now, even for individuals who are merely accused of overstaying their visas, the hearing before the immigration judge is has been rendered meaningless because the decision whether to detain or release rests exclusively with the INS.

In some cases, immigration detainees who have been ordered released on bond by an immigration judge (before the regulation changed) or who have been authorized to leave the country under an order of “voluntary departure” nonetheless remain in detention because they have not been “cleared” by the FBI. Under these circumstances, the detention is solely the result of an FBI hold and not based on any immigration authority. We do not know the total number of cases in which such holds constitute the basis for ongoing detention.

This new regulation expanding the government’s power to detain non- citizens raises some of the same constitutional concerns as the other new regulation discussed above, authorizing government monitoring of confidential attorney-client communications. Both reduce the traditional, essential role of judges to review executive action that limits individual rights and freedom – the Fifth Amendment right not to be deprived of liberty without due process of law, and the Sixth Amendment rights to counsel and access to the courts respectively. Judicial review is a critical lynchpin in our constitutional scheme of checks and balances, providing an important curb against executive abuses of power. In both cases, the government essentially takes a “trust-us” stance, urging Congress and the public to trust the Justice Department not to abuse its newly claimed unilateral powers to override the attorney-client privilege and to hold non-citizens in custody. But one of the touchstones of democracy is a healthy distrust of government.

The Questioning of 5,000 Men based on their Country of Origin