Chapter 3: Treatment of Immigrants...

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Chapter 3: Treatment of Immigrants,
Refugees and Minorities

INTRODUCTION

Immediately after September 11, the United States’ national program to admit refugees fleeing persecution around the world was shut down completely for almost three months, stranding more than 22,000 refugees who had already been told they could come to the United States. At the same time, the U.S. government began an intensive effort to apprehend accomplices and prevent another attack. Thousands of people who had nothing to do with terrorism - mostly non-citizens - were trapped in a hastily-cast net. Nearly 1,200 people were detained, mostly Arab, South Asian and Muslim men. Most of the detainees caught up in the initial investigation have now been deported. And to date, only 23,497 refugees out of 70,000 that were to have been admitted into the United States this fiscal year have arrived.

REFUGEE RESETTLEMENT PROGRAM SHUT DOWN [62]

For more than two decades, the United States has accepted an average of about 90,000 refugees a year to resettle here. Refugees must undergo a long application process - including interviews and security checks - to be accepted for resettlement. In the United States, church groups and other voluntary agencies meet the arriving refugees at the airport and help them to find jobs and schools. Most of them are women and children.

Refugees were already the most-scrutinized group of non-citizens coming into the United States. But after September 11, the program was shut down for nearly three months while the Administration conducted a security review. Some 22,000 refugees who had already been accepted to come to the United States – in many cases to join family members already here – were told their long-awaited trips had been canceled indefinitely. Many refugees were trapped in homeless limbo after giving up their old living quarters, unable to come to new homes or to join people who awaited them. And those stranded in Pakistan found themselves in extra danger because of anti-American sentiment there. While the program was shut down, almost no new refugees were interviewed abroad.

The refugee resettlement program formally resumed on December 11, 2001 with a flight from Zagreb to Los Angeles, but this important humanitarian program is still only a faint shadow of its former self. The President signed a document authorizing 70,000 refugees to be admitted this fiscal year (ending September 30, 2002), but only 23,497 refugees have been admitted so far.

It is particularly ironic that the attacks of September 11 should have caused so much hardship to such defenseless people as refugees. As Senator Sam Brownback of Kansas said in February, at a Senate hearing on the slowdown of the refugee resettlement program, “we cannot allow those events, which have already caused so much death and sorrow, to undermine our commitment to rescuing the persecuted, the widow, and the orphan.”

THE POST SEPTEMBER 11 DETAINEES

In the weeks and months after September 11, nearly 1,200 people, mostly Arab, South Asian and Muslim men, were detained as part of the Department of Justice investigation into the attacks. The authorities refused to disclose the identities and locations of those detained. Families, advocates, and organizations are still struggling to obtain information about those who remain in detention, as well as the many that have been deported.

Attorney General John Ashcroft characterized these arrests and detentions as an important step in the antiterrorism investigation. Speaking in October 2001, the Attorney General stated, “[O]ur anti-terrorism offensive has arrested or detained nearly 1,000 individuals as part of the September 11 terrorism investigation. Those who violated the law remain in custody. Taking suspected terrorists in violation of the law off the streets and keeping them locked up is our clear strategy to prevent terrorism within our borders.”[63]

Although the arrests and detentions were described as part of the government's "anti-terrorism offensive," few of those detained were ever charged with criminal activity tied to the investigation.[64] The Attorney General's generic reference to the detainees as "suspected terrorists" strains credulity. Many were deported on non-criminal charges of overstaying a visa or working more hours than is permitted on a student visa. The majority of non-citizens detained by the government were long-term residents, business owners and taxpayers. Many are married to U.S. citizens and have U.S. citizen children.

THE LAW

Most Americans cannot recite the Bill of Rights, but all Americans are familiar with the basic principles of fairness and due process built into the U.S. Constitution including: the right not to be arbitrarily detained, and to challenge the lawfulness of detention in a court of law; the right to a speedy hearing by a competent, independent and impartial tribunal; the right to know the charges and evidence against one; and protection against torture and other cruel treatment or punishment. These constitutional principles form the foundation for international human rights treaties, drafted with U.S. leadership and support.

The United States is a party to the International Covenant on Civil and Political Rights (ICCPR) which states that “No one shall be subjected to arbitrary arrest or detention.”[65] The circumstances of the government’s arrests and detentions of non-citizens post-September 11 have prompted human rights advocates to submit complaints to international fora. The Human Rights Clinic at Columbia University has submitted a request to the Working Group on Arbitrary Detention of the United Nations Human Rights Commission asking that the practices of the United States, as a party to the ICCPR, be reviewed under international standards for arbitrary detention.[66]

Preventive detention - detention prior to obtaining evidence of crime or in advance of any crime being committed - is contrary to these international principles as well as to U.S. law.

PREVENTIVE DETENTION

In announcing a new Foreign Terrorist Tracking Task Force on October 31, 2001, the Attorney General laid out an explicit strategy to exploit his previously largely unused power to detain and deport people for minor immigration status violations, as well as the power to detain those who, though not suspected of crime or immigration violations, were believed by the government to be "material witnesses" to crime. The government’s theory appeared to be that, whether or not a particular person posed a threat to the United States, detention would prevent those detained from proving to be a threat[67] - an “arrest and detain first, ask questions later” approach. Using the term “suspected terrorist” to refer to all those the government was detaining, the Attorney General explained that,

We will arrest and detain any suspected terrorist who has violated the law. If suspects are found not to have links to terrorism or not to have violated the law, they'll be released. But terrorists who are in violation of the law will be convicted, in some cases be deported, and in all cases be prevented from doing further harm to Americans.[68]

The Justice Department targeted individuals based on their gender, religion, ethnicity and national origin. In many cases, only after they were detained, were grounds sought to justify arrest and, in those cases in which immigration violations, however minor, could be identified, individuals faced lengthy detention pending deportation.[69]

The last complete tally released by the U.S. Department of Justice in early November reported that 1182 individuals had been detained in the post-9/11 sweeps.[70] At that point, the Department of Justice announced that it would no longer release a tally. Of that number, 752 were held on immigration charges and 129 were held on criminal charges. As of June 13, 2002, the number of immigration detainees remaining was 74 and the number of detainees held on federal criminal charges was 73.[71] In a letter dated July 3, 2002, however, Assistant Attorney General Daniel J. Bryant stated that 81 individuals remained in detention on immigration charges and 76 on criminal charges.[72] The discrepancies in these numbers raise questions as to their accuracy.

These numbers are inconclusive. Individuals detained after November 8, 2001 – the date that the Department of Justice announced it would cease releasing a tally – are not included in the original figure of 1182. In addition, those detained as a result of the “Absconder Apprehension Initiative” (described below) are not included. The Assistant Attorney General states in his letter that as of May 29, 2002, 611 individuals have been subject to closed hearings, in cases termed “special interest” by federal authorities.[73] There has yet to be a clear definition of what kinds of cases fit within the “special interest” category. Access to more detailed information remains the subject of litigation under the Freedom of Information Act.

Information about the legal basis for the detentions seeped out slowly. A small number were detained on federal criminal charges for such offenses as theft or credit card fraud, which appeared unrelated to the attacks. At least three dozen others were held as “material witnesses” on the grounds that they may have information that would be useful in a criminal or grand jury proceeding. But the great majority of detainees were held on routine immigration violations, such as overstaying a visa.

CRIMINAL DETAINEES

Some of the detainees have been charged with crimes such as possession of fraudulent documents, lying to a government official, or illegal entry into the United States. Unlike those charged with immigration violations, individuals charged with a crime are entitled to a lawyer at government expense if they cannot afford one and are entitled to a speedy trial. Some of those originally arrested for immigration violations reported that, once they were granted release on bond by an immigration judge, criminal charges were filed which justified continued detention.[74]

In some cases, it appears that criminal charges may have been filed in retaliation against detainees who challenged their detention. For example, Shakir Ali Baloch, a Canadian citizen, was held in a maximum-security jail without charge or explanation for three and a half months from September 20, 2001 to January 4, 2002. Immediately after his attorney filed a habeas corpus petition, he was charged with the criminal offense of illegally reentering the United States.[75]

MATERIAL WITNESSES

Several detainees were held as “material witnesses” – individuals who the government alleges may have information pertaining to a criminal investigation. The law permits detention of a material witness to guarantee availability when testimony is needed in a criminal proceeding, if the government can show that the individual is a flight risk, or that the only means of obtaining testimony is detention.[76] If the government does show a need to detain the witness, the detention should not exceed the amount of time necessary to secure the testimony by deposition.[77]

Although material witnesses are not criminal suspects, those detained in the September 11 investigation were reportedly interrogated as if they were accused criminals and were detained in conditions that were punitive in nature.[78] Many of these detainees were never actually required to testify in any court proceeding, and depositions were not sought to secure their testimony, raising doubts about the legitimacy of the government's assertions that they were held as material witnesses to crime.[79]

Several of those detained under this provision challenged their detention in court. In United States of America v. Osama Awadallah, the use of material witness warrants to detain individuals for potential testimony before a grand jury was ruled unlawful.[80] Awadallah is a lawful permanent resident in the United States and was held in solitary confinement in the maximum-security wing at the Metropolitan Correctional Center in New York for 20 days, based solely on a material witness warrant.[81] The government made several misrepresentations and omissions in order to get an arrest warrant and, during the time Awadallah was imprisoned, the government failed to take steps to secure his deposition. In ordering his release, Judge Shira Scheindlin said that “since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation.”[82] The government appealed the decision.

In a subsequent case in the same federal district court in New York, In re the Application of the United States for a Material Witness Warrant, Judge Michael Mukasey reached a different conclusion. In this case, the judge upheld the use of the material witness warrants, concluding that the government may invoke the federal material witness statute to obtain the detention of witnesses for grand jury proceedings.[83]

IMMIGRATION DETAINEES

Immigration Enforcement vs. Criminal Justice System

The investigation into the September 11 attacks constituted a search for criminal suspects. But the primary legal regime under which this investigation has been conducted is not the United States criminal code, but rather the immigration enforcement system. The discretion given the government under the immigration laws to arrest, detain and deport individuals is much broader than that under the nation's criminal justice system and provides fewer protections against abuse. There is little judicial oversight of the government's decision to detain an immigrant subject to deportation, even for prolonged periods. And because immigration proceedings are not considered criminal prosecutions, those detainees are not entitled to legal representation unless they can afford to retain counsel themselves.

The Administration has sought to exploit these advantages under the immigration enforcement system in order to keep people in jail for prolonged periods without access to counsel or to a judge, something it would not be entitled to do under the criminal law.[84] Prior to September 11, individuals detained on minor immigration violations such as overstaying a visa, were routinely released on bond pending their court hearing. But since September 11, the Department of Justice has exercised its authority to prevent release on bond and to prolong detention. Of the nearly 1,200 detainees accounted for by the government, 718 were reported to have been charged with immigration violations.[85]

Basis for Detention

The Department of Justice now has expanded authority that makes it easier to extend the length of detention pending deportation. This has allowed more time for the government to search for evidence on the chance that it might discover links between immigration detainees and the September 11 attacks. This strategy, while it has caused great hardship to those in detention and their families, appears to have yielded few terrorism suspects and few leads in the investigation.

USA PATRIOT Act

After relatively little Congressional debate, the USA PATRIOT Act was signed into law on October 26, 2001. The Act granted unprecedented new powers (though not as broad as those initially requested by the Administration) to the Attorney General to detain non-citizens he certifies as a suspected terrorist. Congress included some important safeguards against abuse of this power. For example, the Attorney General must charge a detainee with a crime, initiate immigration procedures for deportation, or release the individual within seven days of detention; the Attorney General’s certification of an individual as a suspected terrorist must be reviewed every six months and either renewed or revoked; the substantive basis for the Attorney General’s certification is subject to judicial review; and he must report to Congress every six months specific details about the use of these new powers.

Even with these safeguards, the new powers raise serious concerns about the potential for abuse. The new law could result in long-term detention of non-citizens who have never been charged with a crime but who have violated their immigration status in some way. The USA PATRIOT Act did not specify what process the Attorney General must follow in making and reviewing the decision to certify an individual as a suspected terrorist. Nor did it provide guidance to the courts on what evidence they should consider in assessing the reasonableness of the Attorney General’s decision, whether detainees will have access to the evidence on which such decisions are based and the standards for review of such evidence. Although some provisions of the USA PATRIOT Act contained sunset provisions under which the new measures will automatically expire after a certain period, there is no sunset provision attached to these new detention powers. They are now a permanent feature of our law, and it will take another act of Congress to repeal them.

New Regulatory Authority

The new detention powers of the USA PATRIOT Act were the most controversial provisions contained in the new law. What little debate there was in Congress about the Act centered mostly on these provisions. Although the Administration pressed hard for these expanded powers, in the more than ten months since they have had them, they have yet to use them even once. Perhaps because of the judicial review and congressional oversight amendments passed by Congress as part of the Act, the government has chosen instead to rely on regulatory authority to accomplish the same goals.

On September 17, 2001, the Attorney General issued a regulation increasing from 24 to 48 the number of hours the INS could detain someone without charge. In addition, the regulation authorized detention without charge for an unspecified additional “reasonable period of time” in the event of an “emergency or other extraordinary circumstance.”[86] Unlike the USA PATRIOT Act provision, this regulatory authority is not limited to detainees suspected of terrorist activity. Determining what “reasonable” means or what constitutes an “emergency” or “extraordinary circumstance” is left open to interpretation by individual INS officers. There are no meaningful checks on INS authority under this regulation.

Documents released by the INS in response to litigation under the Freedom of Information Act provide a window into the abuse that can flourish under such blanket detention authority. Of 718 so-called “special interest” detainees being held on immigration violations, 317 were held without charge for more than 48 hours. In 36 of those cases, individuals were held for 28 days or more before being charged. Thirteen people were held for more than 40 days without charge and nine were held for more than 50 days. The longest period of detention without charge was the case of a man from Saudi Arabia who was held for 119 days without charge.[87]

These figures represent only a partial picture. According to lawyers representing a number of detainees, it is now common for the INS to fail to charge individuals within the prescribed 48 hours.[88] The bipartisan effort in Congress to include in the USA PATRIOT Act a seven-day charge requirement to curb abuse of new government powers has been completely ineffectual. Current practice under INS regulations involves detention without charge not only for a week, but for months.

Another regulation providing expanded detention powers to the INS, which took effect on October 29, 2001, gives the Executive Office for Immigration Review expanded authority to suspend, at the request of the INS, an immigration judge's decision that a detainee should be released on bond.[89] Prior to this Rule, once an alien was ordered released on bond by an immigration judge, the INS could request a stay only in limited circumstances involving aliens subject to mandatory detention, such as those convicted of certain aggravated felonies. The new regulation expands this authority to include any case where an alien has been detained while removal proceedings were pending or where bond has been set at $10,000 or more. Under these regulations, an INS trial attorney (the prosecutor in immigration proceedings) is authorized, in effect, to overrule the judge's order that a detainee be released. There is no requirement that the individual be suspected of a crime or terrorist activity. As the appeal process is lengthy, and bond in post-September 11 cases has routinely been high, the result has been prolonged periods of detention.[90]

The automatic stay rule was recently declared a violation of due process by a district court judge in the case of Almonte-Vargas v. Kenneth Elwood. Judge R. Barclay Surrick stated in his decision that due process is not satisfied where an individualized custody determination is “effectively a charade.”[91]

Failure to Get "Clearance"

Detainees otherwise eligible for release on bond were regularly denied parole based on an obscure declaration by the government that they had not received “clearance,” a process that has still not been explained. It appears that “clearance” is what is granted when the authorities have ruled out the possibility of any connection between the detainee and terrorist activity. Records on the operation of this procedure are unavailable to the public or the courts. This practice turns the presumption of innocence on its head. Essentially, a detainee is presumed guilty until proven innocent.

Access to Counsel

Although not entitled to court-appointed counsel, immigration detainees are entitled to have access to counsel at their own expense. In ordinary times, the immigration system is nearly impossible to navigate without a lawyer. But since September 11, with the government's panoply of new powers and commitment to aggressive enforcement, detainees are particularly disadvantaged if they are without legal representation. Obviously, detention impedes the ability to access counsel, but INS rules require that detainees be informed of their right to counsel and about resources available for pro bono representation; provided with access to telephones free of charge for legal calls; and provided appropriate time for visits from their attorney.[92]

After September 11, however, immigration detainees have faced greater obstacles to accessing legal representation, including: very limited access to telephones (detainees in Passaic County Jail were allowed only one phone call to an attorney per week) and in some instances collect calling only; outdated phone lists for legal service organizations; failure to provide detainees with the handbooks that contain the information they need to find counsel; and restrictions on lawyers trying to gain access to clients or prospective clients.[93]

In addition to these practical obstacles to effective access to counsel, the Attorney General has issued a new directive authorizing the government to listen in on attorney-client conversations in situations where it suspects the communication may facilitate criminal acts. The government already had the authority to do this, but that power was tempered by a requirement that it first make a showing to a judge that such monitoring was necessary. Now, the executive branch has the power to unilaterally make such decisions, without oversight by the judiciary.[94] The new rule requires the government to notify attorneys and their clients in advance when monitoring will occur, making it unlikely that the government will gain any useful information about terrorist plots. But the rule is likely to significantly disrupt attorney-client communications, and infringe on what the Supreme Court has described as “the oldest of the privileges for confidential communications known to the common law,” designed “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”[95]

Secrecy

The government has sought to keep secret the names of the people it has in detention and the charges, if any, on which they are being held. Various rationales have been offered in defense of this policy, ranging from concern for the privacy of the detainees to fear that releasing information about who the government has in custody would tip off the terrorist network about U.S. investigative strategy. But many sectors of the public, including the media, public interest groups, and members of Congress, have sought access to this information.

The ACLU filed a lawsuit seeking release of the names of detainees being held at two county jails in New Jersey, under a state law which “stipulates that the names and the dates of entry of all inmates in county jails, without exception, ‘shall be open to public inspection.'[96] New Jersey Superior Court Judge Arthur D’Italia ruled against the government, calling secret detentions “odious to a democratic society.” In response to the ruling, the Department of Justice issued a new regulation prohibiting state authorities from releasing information about immigration detainees.[97] The state court ruling ordering release of the information was effectively overruled by the Justice Department.

At the federal level, a coalition of organizations led by the Center for National Security Studies filed suit in federal district court in the District of Columbia against the Department of Justice to seek responses to their request for information about the detainees under the Freedom of Information Act. Holding that “[s]ecret arrests are profoundly antithetical to the bedrock values that characterize a free and open [society] such as ours,”[98] and noting that none of the detainees held on immigration charges had been tied to terrorism, Judge Gladys Kessler ordered the government to release the names of detainees and their lawyers. “The first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship,”[99] Judge Kessler said. The Justice Department refused to comply and appealed the decision.

In addition to withholding the names of detainees, the Attorney General has also asserted the power to close immigration hearings to the public, including to families of the detainees, in cases of “special interest” to the government. The government has not revealed the criteria by which it classifies a case being of “special interest.” Instructions on how to comply with the Attorney General's order that certain hearings be held in secret are contained in a September 21, 2001 memorandum issued by Chief Immigration Judge Michael J. Creppy.[100] The internal memorandum instructs immigration judges to: paper over windows in their courtrooms; deny access to visitors, family and the press; remove cases from the docket list; and change computerized docket systems to ensure that case names and other information do not appear in any publicly accessible format.

As it did in defense of its policy of withholding the names of detainees, the government asserted a dual purpose in holding secret hearings in "special interest" cases: avoiding setbacks to the terrorism investigation and protecting the privacy interests of the detainee.[101] But lawyers for detainees subject to these measures believe that a secrecy order casts suspicion on their clients which may affect their client’s ability to get a fair hearing. As a practical matter, the secrecy provisions of the Creppy memorandum have made it more difficult for lawyers to get information, ordinarily available through an automated information system, on the status of a prospective client’s case or even where upcoming hearings will be held.

When the Justice Department designated the case of Rabih Haddad, a well-known Muslim cleric in Michigan, as a “special interest” case and closed his immigration proceedings to the public, Representative John Conyers (D-MI), the ACLU and the Detroit Free Press joined other members of the public in challenging the government’s policy of closed hearings. Federal District Judge Nancy G. Edmunds ruled that blanket closure of deportation hearings was unconstitutional.[102]

A parallel case in New Jersey challenging the policy, New Jersey Media Group v. Ashcroft, reached similar conclusions.[103] Federal District Judge John W. Bissell held that the government provided no evidence to support the claim that a blanket closure was necessary, and it already had a framework to close sensitive cases based on individualized determinations or risk. In addition, the claim that the closed hearings were aimed to protect the privacy of detainees was unsubstantiated. Many of the detainees did not want this protection and felt disadvantaged by the policy.

Undeterred by adverse rulings in federal court, the Department of Justice issued a new regulation attempting to ensure its ability to hold secret hearings.[104] Under the new measure, immigration judges are directed to grant “protective orders” on a case-by-case basis to bar disclosure of information which the government wants kept secret. The regulation seeks to replicate the effect of the Creppy memorandum, while addressing the concerns reflected in court decisions about a lack of case-by-case determinations of risk.

The government also sought to preserve its power to close all "special interest" cases by appealing its loss in the Rabih Haddad case to the U.S. Court of Appeals for the Sixth Circuit. But on August 26, 2002, the Sixth Circuit affirmed the lower court's ruling and held “the blanket closure of deportation hearings in ‘special interest’ cases unconstitutional.”[105] Judge Damon J. Keith, who wrote the opinion, stated that, by asserting "national security" concerns,

the Government seeks a process where it may, without review, designate certain classes of cases as "special interest cases" and, behind closed doors, adjudicate the merits of these cases to deprive non-citizens of their fundamental liberty interests….This, we simply may not countenance. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.[106]

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Endnotes
[62] For more details on the refugee resettlement program, see the Lawyers Committee for Human Rights Asylum & Refugee Newsletter, No. 4, “Refugee Resettlement Slowly Resumes,” available at http://www.lchr.org/asylum_refugee_newsletter/asylumnews4.htm. Additional issues of the newsletter can be found at http://www.lchr.org/refugee/refugee.htm.
[63] Attorney General John Ashcroft, Prepared Remarks for the U.S. Mayors Conference, October 25, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_25.htm.
[64] Danny Hakim, “4 Men Charged With Being in Terrorist Cell in Detroit Area,” New York Times, August 29, 2002. The four detainees were originally charged in September 2001with possession of fraudulent identification documents under the criminal code. They were denied bond on the basis that they were a flight risk. These charges will be superceded by the new indictments.
[65] International Convention on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), entered into force March 23, 1976, article 9(1). The United States ratified the ICCPR in 1992. The full text of the ICCPR is available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
[66] Human Rights Clinic, Columbia Law School, Background Paper for the U.N. Working Group on Arbitrary Detention Concerning the U.S. Detention of Arabs and South Asians Post-September 11, April 1, 2002.
[67] Department of Justice, “Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force,” October 31, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_31.htm.
[68] Ibid.
[69] Some of those whose detentions were justified on the grounds that they had overstayed their visas were in fact in the United States legally, as they had filed requests for visa extensions or other adjustments of status with the INS. See Human Rights Watch, United States: Presumption of Guilt (New York: Human Rights Watch, 2002), pp. 12-14.
[70] Dan Eggen and Susan Schmidt, “Count of Released Detainees is Hard to Pin Down,” Washington Post, November 6, 2001; Amy Goldstein and Dan Eggen, “U.S. to Stop Issuing Detention Tallies,” Washington Post, November 9, 2001.
[71] Center for National Security Studies v. U.S. Department of Justice, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002).
[72] Letter from Daniel J. Bryant, Assistant Attorney General, U.S. Department of Justice, to Senator Carl Levin, Chairman of Permanent Subcommittee on Investigations, Senate Committee on Governmental Affairs (July 3, 2002).
[73] Ibid.
[74] A lawyer representing many of the post-September 11 detainees observed that “[w]hen the feds no longer have any justification to keep the detainees on immigration issues, they resort to criminal charges to keep them.” Karim Fahim, “Endgame,” Village Voice, March 6 - 12, 2002.
[75] Ibid.
[76] See 18 U.S.C. � 3144.
[77] Ibid.
[78] Material witnesses were reported to have had more limited access to phone calls and more restricted visitation privileges than other detainees. See Human Rights Watch, United States: Presumption of Guilt , pp. 61-67.
[79] Human Rights Watch, United States: Presumption of Guilt, p. 61.
[80] United States of America v. Osama Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. April 2002).
[81] Human Rights Watch, United States: Presumption of Guilt, p. 66.
[82] United States v. Awadallah, 202 F. Supp. 2d at 59.
[83] In re the Application of the United States for a Material Witness Warrant, 2002 U.S. Dist. Lexis 13234 (S.D.N.Y. July 11, 2002). See also “Federal Material Witness Statute Applies to Grand Jury Proceedings,” Criminal Law Reporter, Vol. 71, No. 16, July 24, 2002, available at http://litigationcenter.bna.com/PIC/litpic.nsf/
138b81ff0d2075e685256ad4005f1851/
31bd4ccfef700faf85256c010072cfa6?OpenDocument.
[84] This strategy was made clear by the Attorney General in an October speech to U.S. mayors:
“Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.” Attorney General John Ashcroft, Prepared Remarks for the US Mayors Conference, October 25, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_25.htm.
[85] Amnesty International, “Amnesty International’s Concerns Regarding Post September 11 Detentions in the USA,” March 14, 2002, p. 8, available at http://www.amnestyusa.org/usacrisis/9.11.detentions2.pdf.
[86] 8 C.F.R. � 287.3
[87] These statistics were among the limited information the government provided in response to litigation under the Freedom of Information Act led by the Center for National Security Studies. Records are available on their website at http://www.cnss.gwu.edu/.
[88] The Lawyers Committee interviewed more than 30 attorneys, as well as community organizers in frequent contact with the populations most affected. The interview notes are on file with the Lawyers Committee.
[89] Review of Custody Determinations, 66 Fed. Reg. 54909 (2001) (to be codified at 8 C.F.R. pt. 3)
[90] The bond stay authority has impacted individuals in a variety of ways. Lawyers for detainees have told the Lawyers Committee that INS trial attorneys often inform them that the INS intends to appeal if the detainee is granted bond, and that the detention will be continued pending that appeal. Lawyers often choose to postpone the bond hearing instead of risking more lengthy detention for their client. Judges have also refused to set bond if the INS has indicated its intention to appeal.
[91] Ursula Altagracia Almonte-Vargas v. Kenneth Elwood, 2002 U.S. District Court, Lexis 12387 (E.D. Penn. June 28, 2002).
[92] Detainees are to be given a site-specific detainee handbook that describes the rights of the detainees and the services available, including attorney and family visitation and telephone use. A list of pro bono resources for legal representation is required to be posted in all detainee housing areas and updated quarterly. INS Detention Standards, Detainee Handbook, available at http://www.ins.usdoj.gov/graphics/lawsregs/handbk.pdf. Since lack of access to direct calls can inhibit the ability to secure legal representation, INS standards also require that detention facilities permit detainees to place direct calls to legal service providers, as well as consular officials. INS Detention Standards, Telephone Access, available at http://www.ins.usdoj.gov/graphics/lawsregs/teleacc.pdf. Detainees are also entitled to reasonable hours to meet with their lawyers. The standards require detention facilities to permit legal visitation “seven days a week, including holiday. It shall permit legal visits for a minimum of eight hours per day on regular business days, and a minimum of four hours per day on weekends and holidays.” INS Detention Standards, Visitation, available at http://www.ins.usdoj.gov/graphics/lawsregs/visit.pdf
[93] The Lawyers Committee interviewed more than 30 attorneys, as well as community organizers in frequent contact with the populations most affected. Interview notes are on file with the Lawyers Committee. At the Metropolitan Detention Center (MDC) in Brooklyn, for example, post-9/11 detainees held in the Special Housing Unit could meet with their counsel only through a set of bars covered with a thick glass window, through which lawyer and client were left to communicate through a little hole covered with a metal grille.
[94] National Security; Prevention of Acts of Violence and Terrorism, 66 Fed Reg. 55062 (2001) (to be codified at 28 C.F.R. pts. 500 and 501).
[95] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
[96] ACLU Press Release, “ACLU of New Jersey Wins Access to Information on Post-September 11 Detainees,” March 27, 2002, available at http://www.aclu.org/news/2002/n032702a.html.
[97] Release of Information Regarding INS Detainees in Non-Federal Facilities, 67 Fed. Reg. 19508 (2002) (to be codified at 8 C.F.R. pts 236 and 241).
[98] Center for National Security Studies v. U.S. Department of Justice, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002).
[99] Ibid.
[100] Michael Creppy, “Cases Requiring Special Procedure,” Internal Memorandum-Executive Office for Immigration Review (Creppy Memorandum), September 21, 2001.
[101] “Declaration of James S. Reynolds,” submitted January 11, 2002, in Center for National Security Studies v. U.S. Department of Justice.
[102] Detroit Free Press v. John Ashcroft, 195 F. Supp. 2d 948 (April 3, 2002).
[103] New Jersey Media Group v. John Ashcroft, 205 F. Supp. 2d 288 (D.N.J. May 28, 2002).
[104] Michael Creppy, “Protective Orders and the Sealing of Records,” July 16, 2002.
[105] Detroit Free Press v. Ashcroft, 2002 FED App. 0291P (6th Cir. August 26, 2002) opinion available at http://pacer.ca6.uscourts.gov/cgi-in/getopn.pl?OPINION=02a0291p.06.
[106] Ibid.

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Chapter 3: Treatment of Immigrants

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Message:	: Chapter 3: Treatment of Immigrants, : Refugees and Minorities : INTRODUCTION : Immediately after September 11, the United States’ national program to admit refugees fleeing persecution around the world was shut down completely for almost three months, stranding more than 22,000 refugees who had already been told they could come to the United States. At the same time, the U.S. government began an intensive effort to apprehend accomplices and prevent another attack. Thousands of people who had nothing to do with terrorism - mostly non-citizens - were trapped in a hastily-cast net. Nearly 1,200 people were detained, mostly Arab, South Asian and Muslim men. Most of the detainees caught up in the initial investigation have now been deported. And to date, only 23,497 refugees out of 70,000 that were to have been admitted into the United States this fiscal year have arrived. : REFUGEE RESETTLEMENT PROGRAM SHUT DOWN [62] : For more than two decades, the United States has accepted an average of about 90,000 refugees a year to resettle here. Refugees must undergo a long application process - including interviews and security checks - to be accepted for resettlement. In the United States, church groups and other voluntary agencies meet the arriving refugees at the airport and help them to find jobs and schools. Most of them are women and children. : Refugees were already the most-scrutinized group of non-citizens coming into the United States. But after September 11, the program was shut down for nearly three months while the Administration conducted a security review. Some 22,000 refugees who had already been accepted to come to the United States – in many cases to join family members already here – were told their long-awaited trips had been canceled indefinitely. Many refugees were trapped in homeless limbo after giving up their old living quarters, unable to come to new homes or to join people who awaited them. And those stranded in Pakistan found themselves in extra danger because of anti-American sentiment there. While the program was shut down, almost no new refugees were interviewed abroad. : The refugee resettlement program formally resumed on December 11, 2001 with a flight from Zagreb to Los Angeles, but this important humanitarian program is still only a faint shadow of its former self. The President signed a document authorizing 70,000 refugees to be admitted this fiscal year (ending September 30, 2002), but only 23,497 refugees have been admitted so far. : It is particularly ironic that the attacks of September 11 should have caused so much hardship to such defenseless people as refugees. As Senator Sam Brownback of Kansas said in February, at a Senate hearing on the slowdown of the refugee resettlement program, “we cannot allow those events, which have already caused so much death and sorrow, to undermine our commitment to rescuing the persecuted, the widow, and the orphan.” : THE POST SEPTEMBER 11 DETAINEES : In the weeks and months after September 11, nearly 1,200 people, mostly Arab, South Asian and Muslim men, were detained as part of the Department of Justice investigation into the attacks. The authorities refused to disclose the identities and locations of those detained. Families, advocates, and organizations are still struggling to obtain information about those who remain in detention, as well as the many that have been deported. : Attorney General John Ashcroft characterized these arrests and detentions as an important step in the antiterrorism investigation. Speaking in October 2001, the Attorney General stated, “[O]ur anti-terrorism offensive has arrested or detained nearly 1,000 individuals as part of the September 11 terrorism investigation. Those who violated the law remain in custody. Taking suspected terrorists in violation of the law off the streets and keeping them locked up is our clear strategy to prevent terrorism within our borders.”[63] : Although the arrests and detentions were described as part of the government's "anti-terrorism offensive," few of those detained were ever charged with criminal activity tied to the investigation.[64] The Attorney General's generic reference to the detainees as "suspected terrorists" strains credulity. Many were deported on non-criminal charges of overstaying a visa or working more hours than is permitted on a student visa. The majority of non-citizens detained by the government were long-term residents, business owners and taxpayers. Many are married to U.S. citizens and have U.S. citizen children. : THE LAW : Most Americans cannot recite the Bill of Rights, but all Americans are familiar with the basic principles of fairness and due process built into the U.S. Constitution including: the right not to be arbitrarily detained, and to challenge the lawfulness of detention in a court of law; the right to a speedy hearing by a competent, independent and impartial tribunal; the right to know the charges and evidence against one; and protection against torture and other cruel treatment or punishment. These constitutional principles form the foundation for international human rights treaties, drafted with U.S. leadership and support. : The United States is a party to the International Covenant on Civil and Political Rights (ICCPR) which states that “No one shall be subjected to arbitrary arrest or detention.”[65] The circumstances of the government’s arrests and detentions of non-citizens post-September 11 have prompted human rights advocates to submit complaints to international fora. The Human Rights Clinic at Columbia University has submitted a request to the Working Group on Arbitrary Detention of the United Nations Human Rights Commission asking that the practices of the United States, as a party to the ICCPR, be reviewed under international standards for arbitrary detention.[66] : Preventive detention - detention prior to obtaining evidence of crime or in advance of any crime being committed - is contrary to these international principles as well as to U.S. law. : PREVENTIVE DETENTION : In announcing a new Foreign Terrorist Tracking Task Force on October 31, 2001, the Attorney General laid out an explicit strategy to exploit his previously largely unused power to detain and deport people for minor immigration status violations, as well as the power to detain those who, though not suspected of crime or immigration violations, were believed by the government to be "material witnesses" to crime. The government’s theory appeared to be that, whether or not a particular person posed a threat to the United States, detention would prevent those detained from proving to be a threat[67] - an “arrest and detain first, ask questions later” approach. Using the term “suspected terrorist” to refer to all those the government was detaining, the Attorney General explained that, : We will arrest and detain any suspected terrorist who has violated the law. If suspects are found not to have links to terrorism or not to have violated the law, they'll be released. But terrorists who are in violation of the law will be convicted, in some cases be deported, and in all cases be prevented from doing further harm to Americans.[68] : The Justice Department targeted individuals based on their gender, religion, ethnicity and national origin. In many cases, only after they were detained, were grounds sought to justify arrest and, in those cases in which immigration violations, however minor, could be identified, individuals faced lengthy detention pending deportation.[69] : The last complete tally released by the U.S. Department of Justice in early November reported that 1182 individuals had been detained in the post-9/11 sweeps.[70] At that point, the Department of Justice announced that it would no longer release a tally. Of that number, 752 were held on immigration charges and 129 were held on criminal charges. As of June 13, 2002, the number of immigration detainees remaining was 74 and the number of detainees held on federal criminal charges was 73.[71] In a letter dated July 3, 2002, however, Assistant Attorney General Daniel J. Bryant stated that 81 individuals remained in detention on immigration charges and 76 on criminal charges.[72] The discrepancies in these numbers raise questions as to their accuracy. : These numbers are inconclusive. Individuals detained after November 8, 2001 – the date that the Department of Justice announced it would cease releasing a tally – are not included in the original figure of 1182. In addition, those detained as a result of the “Absconder Apprehension Initiative” (described below) are not included. The Assistant Attorney General states in his letter that as of May 29, 2002, 611 individuals have been subject to closed hearings, in cases termed “special interest” by federal authorities.[73] There has yet to be a clear definition of what kinds of cases fit within the “special interest” category. Access to more detailed information remains the subject of litigation under the Freedom of Information Act. : Information about the legal basis for the detentions seeped out slowly. A small number were detained on federal criminal charges for such offenses as theft or credit card fraud, which appeared unrelated to the attacks. At least three dozen others were held as “material witnesses” on the grounds that they may have information that would be useful in a criminal or grand jury proceeding. But the great majority of detainees were held on routine immigration violations, such as overstaying a visa. : CRIMINAL DETAINEES : Some of the detainees have been charged with crimes such as possession of fraudulent documents, lying to a government official, or illegal entry into the United States. Unlike those charged with immigration violations, individuals charged with a crime are entitled to a lawyer at government expense if they cannot afford one and are entitled to a speedy trial. Some of those originally arrested for immigration violations reported that, once they were granted release on bond by an immigration judge, criminal charges were filed which justified continued detention.[74] : In some cases, it appears that criminal charges may have been filed in retaliation against detainees who challenged their detention. For example, Shakir Ali Baloch, a Canadian citizen, was held in a maximum-security jail without charge or explanation for three and a half months from September 20, 2001 to January 4, 2002. Immediately after his attorney filed a habeas corpus petition, he was charged with the criminal offense of illegally reentering the United States.[75] : MATERIAL WITNESSES : Several detainees were held as “material witnesses” – individuals who the government alleges may have information pertaining to a criminal investigation. The law permits detention of a material witness to guarantee availability when testimony is needed in a criminal proceeding, if the government can show that the individual is a flight risk, or that the only means of obtaining testimony is detention.[76] If the government does show a need to detain the witness, the detention should not exceed the amount of time necessary to secure the testimony by deposition.[77] : Although material witnesses are not criminal suspects, those detained in the September 11 investigation were reportedly interrogated as if they were accused criminals and were detained in conditions that were punitive in nature.[78] Many of these detainees were never actually required to testify in any court proceeding, and depositions were not sought to secure their testimony, raising doubts about the legitimacy of the government's assertions that they were held as material witnesses to crime.[79] : Several of those detained under this provision challenged their detention in court. In United States of America v. Osama Awadallah, the use of material witness warrants to detain individuals for potential testimony before a grand jury was ruled unlawful.[80] Awadallah is a lawful permanent resident in the United States and was held in solitary confinement in the maximum-security wing at the Metropolitan Correctional Center in New York for 20 days, based solely on a material witness warrant.[81] The government made several misrepresentations and omissions in order to get an arrest warrant and, during the time Awadallah was imprisoned, the government failed to take steps to secure his deposition. In ordering his release, Judge Shira Scheindlin said that “since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation.”[82] The government appealed the decision. : In a subsequent case in the same federal district court in New York, In re the Application of the United States for a Material Witness Warrant, Judge Michael Mukasey reached a different conclusion. In this case, the judge upheld the use of the material witness warrants, concluding that the government may invoke the federal material witness statute to obtain the detention of witnesses for grand jury proceedings.[83] : IMMIGRATION DETAINEES : Immigration Enforcement vs. Criminal Justice System : The investigation into the September 11 attacks constituted a search for criminal suspects. But the primary legal regime under which this investigation has been conducted is not the United States criminal code, but rather the immigration enforcement system. The discretion given the government under the immigration laws to arrest, detain and deport individuals is much broader than that under the nation's criminal justice system and provides fewer protections against abuse. There is little judicial oversight of the government's decision to detain an immigrant subject to deportation, even for prolonged periods. And because immigration proceedings are not considered criminal prosecutions, those detainees are not entitled to legal representation unless they can afford to retain counsel themselves. : The Administration has sought to exploit these advantages under the immigration enforcement system in order to keep people in jail for prolonged periods without access to counsel or to a judge, something it would not be entitled to do under the criminal law.[84] Prior to September 11, individuals detained on minor immigration violations such as overstaying a visa, were routinely released on bond pending their court hearing. But since September 11, the Department of Justice has exercised its authority to prevent release on bond and to prolong detention. Of the nearly 1,200 detainees accounted for by the government, 718 were reported to have been charged with immigration violations.[85] : : Basis for Detention : The Department of Justice now has expanded authority that makes it easier to extend the length of detention pending deportation. This has allowed more time for the government to search for evidence on the chance that it might discover links between immigration detainees and the September 11 attacks. This strategy, while it has caused great hardship to those in detention and their families, appears to have yielded few terrorism suspects and few leads in the investigation. : USA PATRIOT Act : After relatively little Congressional debate, the USA PATRIOT Act was signed into law on October 26, 2001. The Act granted unprecedented new powers (though not as broad as those initially requested by the Administration) to the Attorney General to detain non-citizens he certifies as a suspected terrorist. Congress included some important safeguards against abuse of this power. For example, the Attorney General must charge a detainee with a crime, initiate immigration procedures for deportation, or release the individual within seven days of detention; the Attorney General’s certification of an individual as a suspected terrorist must be reviewed every six months and either renewed or revoked; the substantive basis for the Attorney General’s certification is subject to judicial review; and he must report to Congress every six months specific details about the use of these new powers. : Even with these safeguards, the new powers raise serious concerns about the potential for abuse. The new law could result in long-term detention of non-citizens who have never been charged with a crime but who have violated their immigration status in some way. The USA PATRIOT Act did not specify what process the Attorney General must follow in making and reviewing the decision to certify an individual as a suspected terrorist. Nor did it provide guidance to the courts on what evidence they should consider in assessing the reasonableness of the Attorney General’s decision, whether detainees will have access to the evidence on which such decisions are based and the standards for review of such evidence. Although some provisions of the USA PATRIOT Act contained sunset provisions under which the new measures will automatically expire after a certain period, there is no sunset provision attached to these new detention powers. They are now a permanent feature of our law, and it will take another act of Congress to repeal them. : New Regulatory Authority : The new detention powers of the USA PATRIOT Act were the most controversial provisions contained in the new law. What little debate there was in Congress about the Act centered mostly on these provisions. Although the Administration pressed hard for these expanded powers, in the more than ten months since they have had them, they have yet to use them even once. Perhaps because of the judicial review and congressional oversight amendments passed by Congress as part of the Act, the government has chosen instead to rely on regulatory authority to accomplish the same goals. : On September 17, 2001, the Attorney General issued a regulation increasing from 24 to 48 the number of hours the INS could detain someone without charge. In addition, the regulation authorized detention without charge for an unspecified additional “reasonable period of time” in the event of an “emergency or other extraordinary circumstance.”[86] Unlike the USA PATRIOT Act provision, this regulatory authority is not limited to detainees suspected of terrorist activity. Determining what “reasonable” means or what constitutes an “emergency” or “extraordinary circumstance” is left open to interpretation by individual INS officers. There are no meaningful checks on INS authority under this regulation. : Documents released by the INS in response to litigation under the Freedom of Information Act provide a window into the abuse that can flourish under such blanket detention authority. Of 718 so-called “special interest” detainees being held on immigration violations, 317 were held without charge for more than 48 hours. In 36 of those cases, individuals were held for 28 days or more before being charged. Thirteen people were held for more than 40 days without charge and nine were held for more than 50 days. The longest period of detention without charge was the case of a man from Saudi Arabia who was held for 119 days without charge.[87] : These figures represent only a partial picture. According to lawyers representing a number of detainees, it is now common for the INS to fail to charge individuals within the prescribed 48 hours.[88] The bipartisan effort in Congress to include in the USA PATRIOT Act a seven-day charge requirement to curb abuse of new government powers has been completely ineffectual. Current practice under INS regulations involves detention without charge not only for a week, but for months. : Another regulation providing expanded detention powers to the INS, which took effect on October 29, 2001, gives the Executive Office for Immigration Review expanded authority to suspend, at the request of the INS, an immigration judge's decision that a detainee should be released on bond.[89] Prior to this Rule, once an alien was ordered released on bond by an immigration judge, the INS could request a stay only in limited circumstances involving aliens subject to mandatory detention, such as those convicted of certain aggravated felonies. The new regulation expands this authority to include any case where an alien has been detained while removal proceedings were pending or where bond has been set at $10,000 or more. Under these regulations, an INS trial attorney (the prosecutor in immigration proceedings) is authorized, in effect, to overrule the judge's order that a detainee be released. There is no requirement that the individual be suspected of a crime or terrorist activity. As the appeal process is lengthy, and bond in post-September 11 cases has routinely been high, the result has been prolonged periods of detention.[90] : The automatic stay rule was recently declared a violation of due process by a district court judge in the case of Almonte-Vargas v. Kenneth Elwood. Judge R. Barclay Surrick stated in his decision that due process is not satisfied where an individualized custody determination is “effectively a charade.”[91] : Failure to Get "Clearance" : Detainees otherwise eligible for release on bond were regularly denied parole based on an obscure declaration by the government that they had not received “clearance,” a process that has still not been explained. It appears that “clearance” is what is granted when the authorities have ruled out the possibility of any connection between the detainee and terrorist activity. Records on the operation of this procedure are unavailable to the public or the courts. This practice turns the presumption of innocence on its head. Essentially, a detainee is presumed guilty until proven innocent. : Access to Counsel : Although not entitled to court-appointed counsel, immigration detainees are entitled to have access to counsel at their own expense. In ordinary times, the immigration system is nearly impossible to navigate without a lawyer. But since September 11, with the government's panoply of new powers and commitment to aggressive enforcement, detainees are particularly disadvantaged if they are without legal representation. Obviously, detention impedes the ability to access counsel, but INS rules require that detainees be informed of their right to counsel and about resources available for pro bono representation; provided with access to telephones free of charge for legal calls; and provided appropriate time for visits from their attorney.[92] : After September 11, however, immigration detainees have faced greater obstacles to accessing legal representation, including: very limited access to telephones (detainees in Passaic County Jail were allowed only one phone call to an attorney per week) and in some instances collect calling only; outdated phone lists for legal service organizations; failure to provide detainees with the handbooks that contain the information they need to find counsel; and restrictions on lawyers trying to gain access to clients or prospective clients.[93] : In addition to these practical obstacles to effective access to counsel, the Attorney General has issued a new directive authorizing the government to listen in on attorney-client conversations in situations where it suspects the communication may facilitate criminal acts. The government already had the authority to do this, but that power was tempered by a requirement that it first make a showing to a judge that such monitoring was necessary. Now, the executive branch has the power to unilaterally make such decisions, without oversight by the judiciary.[94] The new rule requires the government to notify attorneys and their clients in advance when monitoring will occur, making it unlikely that the government will gain any useful information about terrorist plots. But the rule is likely to significantly disrupt attorney-client communications, and infringe on what the Supreme Court has described as “the oldest of the privileges for confidential communications known to the common law,” designed “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”[95] : Secrecy : The government has sought to keep secret the names of the people it has in detention and the charges, if any, on which they are being held. Various rationales have been offered in defense of this policy, ranging from concern for the privacy of the detainees to fear that releasing information about who the government has in custody would tip off the terrorist network about U.S. investigative strategy. But many sectors of the public, including the media, public interest groups, and members of Congress, have sought access to this information. : The ACLU filed a lawsuit seeking release of the names of detainees being held at two county jails in New Jersey, under a state law which “stipulates that the names and the dates of entry of all inmates in county jails, without exception, ‘shall be open to public inspection.'[96] New Jersey Superior Court Judge Arthur D’Italia ruled against the government, calling secret detentions “odious to a democratic society.” In response to the ruling, the Department of Justice issued a new regulation prohibiting state authorities from releasing information about immigration detainees.[97] The state court ruling ordering release of the information was effectively overruled by the Justice Department. : At the federal level, a coalition of organizations led by the Center for National Security Studies filed suit in federal district court in the District of Columbia against the Department of Justice to seek responses to their request for information about the detainees under the Freedom of Information Act. Holding that “[s]ecret arrests are profoundly antithetical to the bedrock values that characterize a free and open [society] such as ours,”[98] and noting that none of the detainees held on immigration charges had been tied to terrorism, Judge Gladys Kessler ordered the government to release the names of detainees and their lawyers. “The first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship,”[99] Judge Kessler said. The Justice Department refused to comply and appealed the decision. : In addition to withholding the names of detainees, the Attorney General has also asserted the power to close immigration hearings to the public, including to families of the detainees, in cases of “special interest” to the government. The government has not revealed the criteria by which it classifies a case being of “special interest.” Instructions on how to comply with the Attorney General's order that certain hearings be held in secret are contained in a September 21, 2001 memorandum issued by Chief Immigration Judge Michael J. Creppy.[100] The internal memorandum instructs immigration judges to: paper over windows in their courtrooms; deny access to visitors, family and the press; remove cases from the docket list; and change computerized docket systems to ensure that case names and other information do not appear in any publicly accessible format. : As it did in defense of its policy of withholding the names of detainees, the government asserted a dual purpose in holding secret hearings in "special interest" cases: avoiding setbacks to the terrorism investigation and protecting the privacy interests of the detainee.[101] But lawyers for detainees subject to these measures believe that a secrecy order casts suspicion on their clients which may affect their client’s ability to get a fair hearing. As a practical matter, the secrecy provisions of the Creppy memorandum have made it more difficult for lawyers to get information, ordinarily available through an automated information system, on the status of a prospective client’s case or even where upcoming hearings will be held. : When the Justice Department designated the case of Rabih Haddad, a well-known Muslim cleric in Michigan, as a “special interest” case and closed his immigration proceedings to the public, Representative John Conyers (D-MI), the ACLU and the Detroit Free Press joined other members of the public in challenging the government’s policy of closed hearings. Federal District Judge Nancy G. Edmunds ruled that blanket closure of deportation hearings was unconstitutional.[102] : A parallel case in New Jersey challenging the policy, New Jersey Media Group v. Ashcroft, reached similar conclusions.[103] Federal District Judge John W. Bissell held that the government provided no evidence to support the claim that a blanket closure was necessary, and it already had a framework to close sensitive cases based on individualized determinations or risk. In addition, the claim that the closed hearings were aimed to protect the privacy of detainees was unsubstantiated. Many of the detainees did not want this protection and felt disadvantaged by the policy. : Undeterred by adverse rulings in federal court, the Department of Justice issued a new regulation attempting to ensure its ability to hold secret hearings.[104] Under the new measure, immigration judges are directed to grant “protective orders” on a case-by-case basis to bar disclosure of information which the government wants kept secret. The regulation seeks to replicate the effect of the Creppy memorandum, while addressing the concerns reflected in court decisions about a lack of case-by-case determinations of risk. : The government also sought to preserve its power to close all "special interest" cases by appealing its loss in the Rabih Haddad case to the U.S. Court of Appeals for the Sixth Circuit. But on August 26, 2002, the Sixth Circuit affirmed the lower court's ruling and held “the blanket closure of deportation hearings in ‘special interest’ cases unconstitutional.”[105] Judge Damon J. Keith, who wrote the opinion, stated that, by asserting "national security" concerns, : the Government seeks a process where it may, without review, designate certain classes of cases as "special interest cases" and, behind closed doors, adjudicate the merits of these cases to deprive non-citizens of their fundamental liberty interests….This, we simply may not countenance. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution.[106] : : -------------------------------------------------------------------------------- : Endnotes : [62] For more details on the refugee resettlement program, see the Lawyers Committee for Human Rights Asylum & Refugee Newsletter, No. 4, “Refugee Resettlement Slowly Resumes,” available at http://www.lchr.org/asylum_refugee_newsletter/asylumnews4.htm. Additional issues of the newsletter can be found at http://www.lchr.org/refugee/refugee.htm. : [63] Attorney General John Ashcroft, Prepared Remarks for the U.S. Mayors Conference, October 25, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_25.htm. : [64] Danny Hakim, “4 Men Charged With Being in Terrorist Cell in Detroit Area,” New York Times, August 29, 2002. The four detainees were originally charged in September 2001with possession of fraudulent identification documents under the criminal code. They were denied bond on the basis that they were a flight risk. These charges will be superceded by the new indictments. : [65] International Convention on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), entered into force March 23, 1976, article 9(1). The United States ratified the ICCPR in 1992. The full text of the ICCPR is available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm : [66] Human Rights Clinic, Columbia Law School, Background Paper for the U.N. Working Group on Arbitrary Detention Concerning the U.S. Detention of Arabs and South Asians Post-September 11, April 1, 2002. : [67] Department of Justice, “Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force,” October 31, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_31.htm. : [68] Ibid. : [69] Some of those whose detentions were justified on the grounds that they had overstayed their visas were in fact in the United States legally, as they had filed requests for visa extensions or other adjustments of status with the INS. See Human Rights Watch, United States: Presumption of Guilt (New York: Human Rights Watch, 2002), pp. 12-14. : [70] Dan Eggen and Susan Schmidt, “Count of Released Detainees is Hard to Pin Down,” Washington Post, November 6, 2001; Amy Goldstein and Dan Eggen, “U.S. to Stop Issuing Detention Tallies,” Washington Post, November 9, 2001. : [71] Center for National Security Studies v. U.S. Department of Justice, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002). : [72] Letter from Daniel J. Bryant, Assistant Attorney General, U.S. Department of Justice, to Senator Carl Levin, Chairman of Permanent Subcommittee on Investigations, Senate Committee on Governmental Affairs (July 3, 2002). : [73] Ibid. : [74] A lawyer representing many of the post-September 11 detainees observed that “[w]hen the feds no longer have any justification to keep the detainees on immigration issues, they resort to criminal charges to keep them.” Karim Fahim, “Endgame,” Village Voice, March 6 - 12, 2002. : [75] Ibid. : [76] See 18 U.S.C. � 3144. : [77] Ibid. : [78] Material witnesses were reported to have had more limited access to phone calls and more restricted visitation privileges than other detainees. See Human Rights Watch, United States: Presumption of Guilt , pp. 61-67. : [79] Human Rights Watch, United States: Presumption of Guilt, p. 61. : [80] United States of America v. Osama Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. April 2002). : [81] Human Rights Watch, United States: Presumption of Guilt, p. 66. : [82] United States v. Awadallah, 202 F. Supp. 2d at 59. : [83] In re the Application of the United States for a Material Witness Warrant, 2002 U.S. Dist. Lexis 13234 (S.D.N.Y. July 11, 2002). See also “Federal Material Witness Statute Applies to Grand Jury Proceedings,” Criminal Law Reporter, Vol. 71, No. 16, July 24, 2002, available at http://litigationcenter.bna.com/PIC/litpic.nsf/ : 138b81ff0d2075e685256ad4005f1851/ : 31bd4ccfef700faf85256c010072cfa6?OpenDocument. : [84] This strategy was made clear by the Attorney General in an October speech to U.S. mayors: : “Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.” Attorney General John Ashcroft, Prepared Remarks for the US Mayors Conference, October 25, 2001, available at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks10_25.htm. : [85] Amnesty International, “Amnesty International’s Concerns Regarding Post September 11 Detentions in the USA,” March 14, 2002, p. 8, available at http://www.amnestyusa.org/usacrisis/9.11.detentions2.pdf. : [86] 8 C.F.R. � 287.3 : [87] These statistics were among the limited information the government provided in response to litigation under the Freedom of Information Act led by the Center for National Security Studies. Records are available on their website at http://www.cnss.gwu.edu/. : [88] The Lawyers Committee interviewed more than 30 attorneys, as well as community organizers in frequent contact with the populations most affected. The interview notes are on file with the Lawyers Committee. : [89] Review of Custody Determinations, 66 Fed. Reg. 54909 (2001) (to be codified at 8 C.F.R. pt. 3) : [90] The bond stay authority has impacted individuals in a variety of ways. Lawyers for detainees have told the Lawyers Committee that INS trial attorneys often inform them that the INS intends to appeal if the detainee is granted bond, and that the detention will be continued pending that appeal. Lawyers often choose to postpone the bond hearing instead of risking more lengthy detention for their client. Judges have also refused to set bond if the INS has indicated its intention to appeal. : [91] Ursula Altagracia Almonte-Vargas v. Kenneth Elwood, 2002 U.S. District Court, Lexis 12387 (E.D. Penn. June 28, 2002). : [92] Detainees are to be given a site-specific detainee handbook that describes the rights of the detainees and the services available, including attorney and family visitation and telephone use. A list of pro bono resources for legal representation is required to be posted in all detainee housing areas and updated quarterly. INS Detention Standards, Detainee Handbook, available at http://www.ins.usdoj.gov/graphics/lawsregs/handbk.pdf. Since lack of access to direct calls can inhibit the ability to secure legal representation, INS standards also require that detention facilities permit detainees to place direct calls to legal service providers, as well as consular officials. INS Detention Standards, Telephone Access, available at http://www.ins.usdoj.gov/graphics/lawsregs/teleacc.pdf. Detainees are also entitled to reasonable hours to meet with their lawyers. The standards require detention facilities to permit legal visitation “seven days a week, including holiday. It shall permit legal visits for a minimum of eight hours per day on regular business days, and a minimum of four hours per day on weekends and holidays.” INS Detention Standards, Visitation, available at http://www.ins.usdoj.gov/graphics/lawsregs/visit.pdf : [93] The Lawyers Committee interviewed more than 30 attorneys, as well as community organizers in frequent contact with the populations most affected. Interview notes are on file with the Lawyers Committee. At the Metropolitan Detention Center (MDC) in Brooklyn, for example, post-9/11 detainees held in the Special Housing Unit could meet with their counsel only through a set of bars covered with a thick glass window, through which lawyer and client were left to communicate through a little hole covered with a metal grille. : [94] National Security; Prevention of Acts of Violence and Terrorism, 66 Fed Reg. 55062 (2001) (to be codified at 28 C.F.R. pts. 500 and 501). : [95] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). : [96] ACLU Press Release, “ACLU of New Jersey Wins Access to Information on Post-September 11 Detainees,” March 27, 2002, available at http://www.aclu.org/news/2002/n032702a.html. : [97] Release of Information Regarding INS Detainees in Non-Federal Facilities, 67 Fed. Reg. 19508 (2002) (to be codified at 8 C.F.R. pts 236 and 241). : [98] Center for National Security Studies v. U.S. Department of Justice, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002). : [99] Ibid. : [100] Michael Creppy, “Cases Requiring Special Procedure,” Internal Memorandum-Executive Office for Immigration Review (Creppy Memorandum), September 21, 2001. : [101] “Declaration of James S. Reynolds,” submitted January 11, 2002, in Center for National Security Studies v. U.S. Department of Justice. : [102] Detroit Free Press v. John Ashcroft, 195 F. Supp. 2d 948 (April 3, 2002). : [103] New Jersey Media Group v. John Ashcroft, 205 F. Supp. 2d 288 (D.N.J. May 28, 2002). : [104] Michael Creppy, “Protective Orders and the Sealing of Records,” July 16, 2002. : [105] Detroit Free Press v. Ashcroft, 2002 FED App. 0291P (6th Cir. August 26, 2002) opinion available at http://pacer.ca6.uscourts.gov/cgi-in/getopn.pl?OPINION=02a0291p.06. : [106] Ibid.

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