OIG Report Criticizes The Government's Treatment Of 9/11 Detainees

IMMIGRATION LAW & POLICY

Arrest and Detention

OIG REPORT CRITICIZES THE GOVERNMENT’S TREATMENT OF 9/11 DETAINEES
Immigrants' Rights Update, Vol. 17, No. , July 15, 2003

A report prepared by the U.S. Justice Dept.’s own Office of the Inspector General (OIG) criticizes the government’s treatment of non–U.S. citizens who were held on immigration charges in connection with the government’s investigation of the terrorist attacks of Sept. 11, 2001. While noting that law enforcement officials were under extreme pressure after the 9/11 attacks, the report details numerous instances of abuse, including situations where detainees were held too long without being informed of charges against them, were prevented from meeting with family and counsel, and were subjected to unduly harsh treatment. The report concludes by offering recommendations for policy changes.

The OIG conducted interviews with a sample of the 762 detainees arrested and charged in post-9/11 investigations who were held at two facilities in the New York area. The OIG also reviewed the detainees’ files as well as the policies and procedures surrounding their detention. The detainees were almost exclusively Muslim men, the majority of whom were from Pakistan.

At the time it was released (June 2, 2003), the report was widely covered in the media and was the subject of congressional hearings that included testimony by Attorney General John Ashcroft and other Justice Dept. officials. Though Ashcroft defended the government’s conduct towards the detainees, Justice Dept. officials have publicly stated that they are instituting policy changes in order to rectify some of the problems discussed in the report. Some of the issues concerning abusive treatment at one of the detention facilities continue to be under investigation.

The OIG is an office within the Justice Dept. that investigates misconduct in department programs and operations. It conducted the investigation and wrote the report pursuant to section 1001 of the USA PATRIOT Act. That section directs the OIG to receive and review claims of Justice Dept. civil rights violations and to inform Congress of its results.

The report begins by providing a context for the law enforcement efforts conducted in the aftermath of the 9/11 attacks. Immediately after the attacks, the Federal Bureau of Investigation took the lead in a massive investigation that it dubbed PENTTBOM (for “Pentagon/Twin Towers bombing”). In an attempt to garner any leads related to the 9/11 attacks, the agency deployed 4,000 special agents with 3,000 support personnel to work on PENTTBOM. Early on, officials realized that because the hijackers were non–U.S. citizens, any investigation would need to include a significant immigration component. At the same time, Ashcroft directed a shift in policy from one focused on investigation and prosecution to one emphasizing prevention. The Justice Dept. policy was to use whatever legal means available to detain anyone who might be linked to terrorism. According to the policy, if law enforcement agents encountered any noncitizen while pursuing the PENTTBOM investigation, and the individual did not have legal status, the individual would be arrested, even if the person was not a subject of the investigation. Such an individual would then be placed in the category of individuals “of interest” to the FBI.

The report notes that within a week of the attacks, the FBI had received more than 96,000 tips or potential leads from the public. Many of these tips were general in nature and no more substantial than a landlord reporting on the erratic schedule of a tenant who appeared to be Arab. They also included traffic stops during which Middle Eastern–appearing tourists were found to be carrying photographs of the World Trade Center and other New York landmarks. Because of the directive to cast a wide net to prevent any future attacks and the fear that more attacks might be imminent, individuals who had overstayed their visas or had entered the country illegally were arrested and detained under the auspices of the PENTTBOM investigation.

Classification of Detainees. After each arrest, the FBI assessed whether the person arrested was “of interest” to its terrorism investigation. The FBI classified individuals as being “of interest,” “of high interest,” or “of undetermined interest.” These classifications had significant ramifications for the detainees. First, the Justice Dept. instituted a policy that any detainee on the Immigration and Naturalization Service custody list had to be detained until cleared by the FBI. Though never communicated in writing, this “hold until cleared” policy was clearly understood and applied throughout the department. As a result, 9/11 detainees were not allowed to be released on bond according to normal INS procedures and were not allowed to depart or be removed from the U.S. before receiving FBI clearance. Second, the classification assigned to each detainee determined where he or she would be confined and his or her conditions of confinement.

The OIG audit criticized the inconsistent manner in which these assessments were made. The report stated that the FBI should have taken more care to distinguish between individuals whom it actually suspected of being connected to terrorism and those who may have been guilty of violating an immigration law, had no connection to terrorism, and were simply encountered through a PENTTBOM lead. According to the report, these distinctions were made in different parts of the country but not in the New York area, where the majority of the 9/11 detainees were held.

Notice of Charges. The report found that many of the 9/11 detainees did not receive notice of the charges against them in a timely manner. Normally, after arresting a noncitizen for an immigration violation, the INS (now the Bureau of Immigration and Customs Enforcement, or BICE) would notify the arrestee of the charges against him or her. It would initiate a removal proceeding by serving a notice to appear (NTA) on the individual and the immigration court. Prior to the 9/11 attacks, the regulations (8 CFR § 287.3) required the INS to make the charge within 24 hours of the arrest. Following the attacks, the Justice Dept. changed the regulations to allow the INS 48 hours to issue the NTA. The revised regulation also included an exception to the 48-hour rule, allowing charges to be made within a reasonable period of time in the event of an emergency or other extraordinary circumstance.

The report found that the INS served 60 percent of the 9/11 detainees with NTAs within 72 hours. However, many detainees did not receive their charging documents for weeks or even months after their arrests.

The Clearance Process. As noted above, the FBI instituted a policy that all individuals had to be “held until cleared.” This policy was based on the erroneous assumption that individuals would be cleared within a few days. However, according to the report, the average length of time that a 9/11 detainee was held before he was cleared was 80 days. More than a quarter of the clearance investigations for the 762 detainees took longer than 3 months.

Bond and Removal Issues. The Justice Dept. imposed a “no bond” policy for all 9/11 detainees as part of its decision to hold the detainees until the FBI could complete its clearance investigations. According to the report, INS officials told the OIG that they expected the FBI to present them with information supporting the no-bond position. But the FBI provided no such information to the INS. INS attorneys had to seek multiple continuances, even when they had no information from the FBI to support their arguments.

The report criticized the FBI’s “hold until cleared” policy on a number of accounts. First, it was broadly applied to many detainees for whom there was no affirmative evidence connecting them to terrorism. Second, the FBI failed to provide adequate field office staffing to conduct the detainee clearance quickly. The result was that detainees languished in detention for weeks and months, with no investigations being conducted. The report indicated that, given the lengthy clearance process, the Justice Dept. should have reevaluated its original decision to deny bond in all cases.

In addition to the bond issue, concerns about how long the INS could legally hold 9/11 detainees after they received final orders of removal or orders of voluntary departure also arose. Section 241(a)(1)(A) of the Immigration and Nationality Act requires that noncitizens who have violated immigration law be removed from the U.S. within 90 days of being issued removal orders. However, because the FBI insisted that individuals had to be cleared before they were allowed to be removed, detainees were held beyond the 90 days, even when they were willing to leave. The report criticized the INS and the Justice Dept. for failing to address the removal issue in a timely and considered fashion.

Conditions of Confinement. The OIG investigation looked at two detention facilities that serve the New York City metropolitan area: the Metropolitan Detention Center (MDC) in Brooklyn and the Passaic County Jail (Passaic) in Paterson, New Jersey. Generally, detainees deemed by the FBI to be of “high interest” to its terrorism investigation were held in high security facilities such as MDC, where detainees were held under 23-hour lockdown. Detainees deemed to be “of interest” or of “undetermined interest” were held in lower-security facilities such as Passaic.

Policies and practices employed at the higher security MDC, as well as the behavior of individual MDC staff members, generated numerous allegations of abuse, according to the OIG’s report. In the heightened state of alert following the 9/11 attacks, the Bureau of Prisons imposed a total communications blackout for several weeks on the 9/11 detainees housed at MDC. After the blackout ended, MDC applied a number of policies that were inappropriate to the 9/11 detainees. For example, MDC imposed “witness security” policies on them—i.e., policies ostensibly designed to provide protection to potential witnesses. These policies interfered with attempts by detainees’ families, attorneys and even law enforcement officials to locate the detainees, and they frustrated the detainees’ ability to obtain counsel.

MDC also restricted the detainees’ access to telephones. They were allowed only one call per week, and calls resulting in busy signals or answered by voicemail were counted as the allotted call for the week. In addition, instead of clearly asking detainees if they wanted to make their weekly calls, MDC staff ambiguously asked detainees if “they were okay.” Generally, detainees did not understand that the question was meant to be an inquiry about whether they wanted to use the phone.

MDC also kept bright lights on in detainee cells 24 hours a day for several months, even after electricians rewired the cellblocks to allow the lights to be turned off individually. Detainees complained that this practice left them sleep-deprived and depressed.

Finally, although MDC staff denied that they abused their charges, investigators reported allegations that the detainees suffered physical and verbal abuse, particularly during the first months subsequent to the attacks. Detainees alleged that they were slammed into walls, dragged by their arms, that guards would step on the chain between detainees’ ankle cuffs, would twist their arms, hands, wrists and fingers, and make slurs and threats such as “you will feel pain” and “you’re going to die here.” Interestingly, in an effort to document abuses, MDC installed security cameras in detainee cells and required staff to videotape detainee movements outside their cells. However, staff were permitted to destroy and reuse the tapes after 30 days. Thus, no documentation of abuses remains. The allegations of abuse at MDC continue to be pursued administratively. The systemic patterns of abuse alleged at MDC were not found in the Passaic County Jail.

The report states that the problems it describes were not merely the result of the chaos and uncertainty that emanated from the 9/11 attacks. It also states that the serious problems identified in the report should be carefully considered and addressed. These issues include ensuring timely clearance and service of charges, careful consideration of where detainees should be housed and what restrictions may be imposed, better training of staff who guard detainees, and better oversight of the conditions of confinement.

The OIG’s report can be accessed at the following URL: www.usdoj.gov/oig/special/03-06/full.pdf.