DOJ And DHS Slow To Address Recommendations Prompted By Mishandling Of Post-9/11 Immigration Detainees

IMMIGRATION LAW & POLICY

Arrest and Detention

DOJ AND DHS SLOW TO ADDRESS RECOMMENDATIONS PROMPTED BY MISHANDLING OF POST-9/11 IMMIGRATION DETAINEES
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

Of the 21 recommendations made by the Justice Dept.'s Office of the Inspector General (OIG) in its report criticizing the treatment of non-U.S. citizens who were detained and held on immigration charges following the attacks of Sept. 11, 2001, only two had been addressed with enough specificity and completeness for the OIG to consider them "closed" by the time it issued a Sept. 5, 2003, follow-up report analyzing the steps the Depts. of Justice and Homeland Security say they have taken to address the OIG's recommendations.

In its previous report, the OIG took the Justice Dept. to task for policies and procedural breakdowns that resulted in many noncitizen detainees having to languish far longer in detention facilities than was warranted by the nature of their immigration violations, sometimes under conditions of confinement far more harsh than warranted. (For more on the June 2, 2003, report containing the recommendations, see "OIG Report Criticizes the Government's Treatment of 9/11 Detainees," IMMIGRANTS' RIGHTS UPDATE, July 15, 2003, p. 1.) The policy most responsible for prolonging the detainees' suffering came to be known as "hold until cleared." Under it, the Justice Dept. opposed granting release on bond to any of the noncitizens arrested as a result of the 9/11 attack investigation until the detainee was cleared by an FBI background check. As a result of the policy and of the FBI's slowness in completing the background checks, detainees with no suspected ties to any terrorist activity or group received the same kind of treatment as those very few for whom a suspicion of such ties was more well-founded.

The two recommendations that the OIG now considers closed were designed to address the failure by Immigration and Naturalization Service authorities to adequately monitor the conditions under which 9/11-related detainees were held in the Passaic County Jail, a facility in Paterson, New Jersey, that houses immigration detainees under a contract with the federal government. In response to the recommendations, the Bureau of Immigration and Customs Enforcement (ICE), which now is part of the Dept. of Homeland Security, issued a new detention standard that requires ICE personnel to pay weekly visits to each immigration detainee housed in any facility, be it a DHS-run facility, or one run by the Bureau of Prisons, or one with which the DHS has contracted.

In addition, DHS personnel are to monitor the conditions in which immigration detainees are housed and respond within specified time frames to certain kinds of requests made by detainees. According to the OIG's analysis of the new detention standard, it requires that all detainees "have access to counsel, telephone calls, and visitation privileges consistent with their classification." Furthermore, "ICE has issued an operational order emphasizing the need for its employees to follow all applicable policies, procedures and regulations governing the detention of aliens. This order particularly [notes] the importance of detainees' access to legal representation and consular officials."

With regard to the other 19 recommendations, the OIG's overall conclusion about the two departments' responses to them was that "the recommendations are not addressed with sufficient specificity, and significant work remains before the recommendations are fully implemented and closed."

For example, as of the time the OIG issued the Sept. 5 follow-up report, the Justice Dept. had not specifically addressed how in the future, after arresting large numbers of noncitizens in connection with a terrorism investigation, it will "more effectively classify detainees at the outset of the investigation, . . . prioritize clearance investigations, and . . . better allocate FBI resources to conduct such investigations." In its analysis of the Justice Dept.'s vague response to the OIG's specific recommendation regarding this set of issues, the OIG says, "[W]e continue to believe that the FBI should develop general criteria and guidance to assist its field offices in making more consistent and uniform assessments of an illegal alien's potential connections to terrorism. We also believe the [Justice Dept.] should not wait until another national emergency to create such criteria."

A PDF copy of the OIG's Sept. 5 report is available online at www.usdoj.gov/oig/special/03-06/analysis.pdf (an HTML version is also available on the OIG's Web site). The report's full title is "OIG Analysis of Responses by the Department of Justice and the Department of Homeland Security to Recommendations in the OIG's June 2003 Report on the Treatment of September 11 Detainees."