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Human Rights Abuses of Post-September 11 Detainees

UNITED STATES
PRESUMPTION OF GUILT:

Human Rights Abuses of Post-September 11 Detainees

--- For full report see... http://www.humanrightswatch.org/reports/2002/us911/

SUMMARY OF RECOMMENDATIONS

For me America was the dreamland. I used to think that I was lucky to live in a liberal and democratic country. But the dreamland became hell for me after September 11. - Muffed Khan, a deported Pakistani.1

On September 11, 2001, hijackers turned four airplanes into instruments of terror. Their horrific crime left some 3,000 dead, devastated the lives of many thousands more, destroyed the World Trade Center, and created a sense of urgency about protecting the United States from future terrorists attacks. September 11 was not just an assault, however, on lives and buildings. It was also, as United States President George W. Bush pointed out, an attack on the fundamental freedoms on which the U.S. was founded.

Unfortunately, the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights against abusive governmental power that are guaranteed by the U.S. Constitution and international human rights law. Most of those directly affected have been non-U.S. citizens. Under Attorney General John Ashcroft, the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.

To many Americans, the failure to uphold rights may seem an abstract concern in the face of the very concrete threat posed by terrorist attacks. But the lives of many who came to the United States with high hopes for a better life have been harmed by the practices documented in this report. Their lives were turned upside down when their nationality and religion drew the government's attention although they were never charged with terrorism

Drawing on scores of interviews with current and former detainees and their attorneys, this report provides the most comprehensive analysis to date of the mistreatment of non-citizens swept up in the September 11 investigation. Separate chapters detail the unjustified secrecy of the government's practices, including the secret incarceration of post-September 11 detainees and immigration proceedings closed to the public; custodial interrogations without access to counsel; arbitrarily prolonged confinement, including detention without charge; and the deplorable conditions-including solitary confinement-as well as the physical abuse to which some detainees have been subjected.


Immediately after the September 11 attacks, the Department of Justice-through constituent agencies, the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS)-began a process of questioning thousands of people who might have information about or connections to terrorist activity. The decision of whom to question often appeared to be haphazard, at times prompted by law enforcement agents' random encounters with foreign male Muslims or neighbors' suspicions. The questioning led to the arrest and incarceration of as many as 1,200 non-citizens, although the exact number remains uncertain. Of those arrested, 752 were charged with immigration violations.

By February 2002, the Department of Justice acknowledged that most of the persons detained in the course of the September 11 investigation and charged with immigration violations-what it terms "special interest" detainees-were of no interest to its anti-terrorist efforts. As of July 2002, none of the "special interest" detainees had been indicted for terrorist activity; most had been deported for visa violations. Nevertheless, their histories of arrest, interrogation, and detention reflected the department's unwarranted presumption of their guilt.

Arresting persons of interest to the September 11 investigation on immigration charges, such as overstaying a visa, enabled the Department of Justice to keep them jailed while it continued investigating and interrogating them about possible criminal activities-a form of preventive detention not permissible under U.S. criminal law. Using immigration law violations as a basis for detention permitted the Department of Justice to avoid the greater safeguards in the criminal law-for example, the requirement of probable cause for arrest, the right to be brought before a judge within forty-eight hours of arrest, and the right to court-appointed counsel. While the alleged visa violations provided a lawful basis for seeking to deport these non-citizens, the Justice Department's actions constituted an end run around constitutional and international legal requirements governing criminal investigations.

In addition to using immigration law to circumvent its obligations under the criminal justice system, the Department of Justice has also created new immigration policies and procedures that weaken previously existing safeguards against arbitrary detention by the INS. While an immigration law violation may justify deportation, it does not in itself justify detention after arrest. The INS has the legal authority to keep a non-citizen confined pending conclusion of his or her deportation proceedings only if there is evidence of the individual's dangerousness or risk of flight. Whereas most persons accused of overstaying their visas, working on a tourist visa, or other common immigration law violations are routinely released from jail while their cases proceed, the Department of Justice has sought to keep "special interest" detainees confined in the absence of evidence that they were dangerous or a flight risk. Their release from jail has been contingent on government "clearance," that is a decision that they were not linked to nor had knowledge about terrorist activities. In effect, "special interest" detainees have been presumed guilty until law enforcement agents concluded otherwise.

The "clearance" process was not the only innovation in immigration practice instituted to expand government powers vis-a-vis INS detainees. The Department of Justice promulgated new rules and issued new policies that permit detainees to be held without charge in cases of an undefined "emergency"; that authorize blanket closure of immigration hearings to the public, including detainees' family and friends; and that allow the INS to keep detainees in jail despite immigration judges' orders that they be released on bond. All of these new rules and policies increased the agency's discretionary authority and weakened existing safeguards to protect non-citizens' rights to liberty and due process.

In some cases, the Department of Justice detained people of interest to the September 11 investigation by obtaining arrest warrants for them as material witnesses. The ostensible purpose of such warrants has been to ensure the appearance of witnesses before the grand juries investigating the September 11 attacks. After repeated interrogations-and isolated confinement under extremely restrictive conditions-some of those detained as material witnesses were eventually released, sometimes without ever having been brought before a grand jury, while others were charged with crimes or immigration law violations. The Department of Justice has refused to say how many persons have been arrested as material witnesses or how many remain in custody. Human Rights Watch's research has identified thirty-five individuals who were held as material witnesses.

Most of the "special interest" detainees are Muslim men who are not U.S. citizens. Given that the nineteen alleged hijackers were all men, citizens of Middle Eastern nations, and Muslim, it is not surprising that law enforcement has focused on male Muslim non-citizens from Middle Eastern and contiguous countries. But suspicion that other terrorists in the United States might have a similar profile to the alleged hijackers is no justification for abrogating the rights of the Muslim immigrant community. National origin, religion, and gender do not constitute evidence of unlawful conduct.

In a nation created and continually recreated by immigrants, it is particularly tragic to see the willingness of the U.S. government to sacrifice the rights of non-citizens and to find the public largely mute in its response. One can only speculate whether the nature of the September 11 investigation would have been different if citizens had been the primary targets. But, as has been pointed out, "[b]ecause non-citizens have no vote, and thus no direct voice in the democratic process, they are a particularly vulnerable minority. And in the heat of the nationalistic and nativist fervor engendered by war, non-citizens' interests are even less likely to weigh in the balance" of freedom versus security.2

But it is not only the rights of non-citizens that have been ignored. In refusing to release the names of immigration detainees held in connection with the September 11 investigation and in closing their immigration hearings, the Department of Justice has trampled on basic free speech rights that include the public's right to know "what their government is up to," as the Supreme Court has stated.3

The Department of Justice has argued that withholding the names of the detainees from the public and denying the public access to deportation proceedings is essential to protect the national security and September 11 investigation. Its arguments are not persuasive. For example, it has claimed that revealing the names of "special interest" detainees would alert terrorist organizations to who has been detained. Yet it is not plausible that any such organizations would not know already if their members have been arrested, since most of the detainees have been held for long periods of time and they have been free to communicate their detention to whomever they chose. The government also asserts that if detainees' names are disclosed or if deportation hearings are held publicly, terrorists would be able to map the progress of the investigation. While there may be good reason in individual cases to keep the public from all or part of a deportation hearing to prevent the disclosure of sensitive information, the government has closed hundreds of immigration proceedings without making any individualized showing that such closure was necessary. Many of the government's arguments about possible harms that might flow from holding hearings in public and disclosing the identity of "special interest" detainees are predicated on the assumption that the detainees are linked to terrorist activities-yet none of them have been charged with terrorism-related offenses. Unsubstantiated speculations about potential damage to the government's investigation, however, should not be permitted to override the fundamental principle that arrests and hearings affecting a person's liberty should be public to ensure fairness and to prevent the abuse of power.

The veil of secrecy the Department of Justice has wrapped around the post-September 11 detainees reflects a stunning disregard for the democratic principles of public transparency and accountability. The Department of Justice has sought to shield itself from scrutiny by keeping from the public information that is indispensable to determining the extent to which its September 11 investigation has been conducted in accordance with U.S. law and international human rights law. It has also sought to silence criticism of its anti-terrorist efforts, most notably with Attorney General Ashcroft's infamous statement to Congress that those who raise questions about "lost liberty" are aiding the country's enemies.4

U.S. history shows how dangerous it is to allow government to claim unchecked power to protect national security. Following World War I during a period of social conflict that included several bombings (including the bombing of the attorney general's home), the government undertook massive raids and seized thousands of suspected communists and anarchists without any regard for due process. During World War II, more than 110,000 people were detained in internment camps solely because of their Japanese ancestry. During the Cold War, countless persons were victims of the "Red Scare"-losing their jobs, being publicly humiliated, and some even being sent to prison for suspected or real association with the Communist Party. In each case, the government argued necessity. In each case, history vindicates the victims and condemns the government's conduct.

Human Rights Watch recognizes the critical importance of protecting lives from terrorist attacks and of bringing to justice those responsible for them. Law enforcement and information gathering should proceed effectively, intelligently, and efficiently. There is no evidence, however, that prior to September 11 federal agents lacked sufficient means to investigate and prosecute terrorist conspiracies and organizations or that their work was inappropriately hampered by safeguards for individual rights. In our judgment, the abridgment of those safeguards subsequent to September 11 was born not of necessity, but from insufficient recognition of the importance of the rights that are the foundation of American democracy. Indeed, rather than weakening national security, protection of civil liberties is a hallmark of strong, democratic polities. As Supreme Court Justice Louis D. Brandeis wrote in 1927, the framers of the U.S. Constitution knew that "fear breeds repression; that repression breeds hate; [and] that hate menaces stable government."5

Nations, like individuals, prove their mettle and the strength of their convictions during crises. Faced with the very real yet immeasurable danger of ongoing terrorist threats and the urgent need to find and hold accountable those responsible for September 11, the U.S. government has failed to hold high the fundamental principles on which the nation is premised-the very values that President Bush declared were under attack from terrorists.

We hope this report will encourage U.S. officials, legislators, and the public to insist that U.S. domestic anti-terrorism efforts be conducted with full respect for basic rights. Remedying the rights violations that have accompanied the post-September 11 detentions will require a series of steps, as recommended below. But the overarching goal must be two-fold: 1) bringing transparency and accountability to the government's treatment of detainees by rejecting the pervasive secrecy that has shrouded their detention and legal proceedings; and 2) protecting the integrity of the immigration and criminal justice systems by ending policies and practices that circumvent important rights safeguards.

Recommendations

The recommendations below are intended to address the human rights violations identified in this report. They are directed to the Department of Justice, including the Immigration and Naturalization Service and the Federal Bureau of Investigation, as well as to any new agency that carries out immigration functions. In some cases, acting on the recommendations will entail revision or rescission of administrative regulations or policies. In other cases, the Department of Justice must instruct and oversee its employees to ensure their practices are consistent with human rights requirements. We also urge Congress to exercise its legislative and oversight authority to ensure that the necessary changes in current policies and practices are made. The U.S. government must ensure that the investigation and detention of persons suspected of having links to terrorism are conducted with full regard for the rights of all persons in the United States to be free of discrimination, arbitrary detention, mistreatment in confinement, and violations of due process.

Arrests

1. Federal law enforcement agents should not target persons for investigation or arrest because of their national origin, race, religion, or gender. Either singly or together, these characteristics should not be the basis for suspicion of unlawful conduct. Some concrete evidence of illegal conduct must be produced.

2. Immigration laws should not be selectively enforced through discriminatory arrests made on the basis of national origin, race, religion, or gender. These traits should not be used as a surrogate for evidence of visa violations.

Secrecy

1. The Department of Justice should make promptly available the names of all persons detained on immigration charges, the date of each arrest, place(s) of detention, and name(s) of any attorney(s), to their family members, their counsel, and any other person having a legitimate interest in the information unless a wish to the contrary has been expressed by the persons concerned.

2. The INS should authorize state and local facilities holding INS detainees to make available the information described above.

3. Subject to reasonable security restrictions, the INS should permit independent monitoring groups as well as nongovernmental organizations offering legal, counseling, pastoral, or other services to have access to all facilities in which INS detainees are being held, and permit such groups to speak with detainees.

4. Immigration hearings should be presumptively open. If the government seeks to have an immigration hearing closed, it should present particularized justification that shows the need to conduct all or part of the proceedings in an individual case in secret for reasons of national security or to protect classified information. The final decision to close a hearing should be made by an immigration judge on a case-by-case basis. The INS should not assert detainee's privacy or other individual interests as a basis for closing a hearing to the public unless the detainee has requested the hearings be closed for that reason.

Access to Counsel and Protection of Legal Rights

1. Anyone held in custodial detention, including INS custody, should not be questioned about knowledge of or involvement with criminal activities, including terrorism, without being advised of his or her right to remain silent, to have an attorney present during questioning, and to have one provided through court appointment if he or she cannot afford one, i.e. be given "Miranda" warnings. Where a detainee does not demonstrate a strong command of English, written waiver forms should be in a language the person questioned can read and understand.

2. Anyone who requests to have an attorney present during a custodial interrogation about his or her knowledge of or involvement in criminal activities, including terrorism, should be permitted to secure the assistance of counsel before questioning continues. If a person cannot afford an attorney, one should be appointed. Law enforcement officials should not encourage a person to waive his or her right to counsel.

3. INS officials should inform all detainees, in a language they can understand, of their right to have counsel represent them, and provide them information in a language they can understand regarding how to obtain counsel. INS officials should not encourage detainees to proceed with their immigration cases without counsel.

4. INS detainees-whether in administrative segregation or in the general population-should have generous access to telephones to find attorneys to represent them. Telephone calls for purposes of securing counsel should not be limited to collect calls. Organizations offering free or low-cost legal services should have access to detention facilities to offer their assistance to detainees.

5. INS detainees should not be asked to sign legal documents in English, including descriptions of the rights they are entitled to or waivers of rights, without adequate assurances that they fully understands the content and significance of the document. To the extent possible, documents should be provided in the language of the detainee. In cases where such translation is not possible or where a detainee cannot read, documents must be fully and accurately explained in a language that the detainee can understand.

6. The INS should promptly respond to requests from attorneys and families regarding the location of detainees, including immediately after arrest and after any transfer. The INS should ensure that detainees have adequate phone access to inform their attorneys and family members of their places of detention.

7. In deciding whether to transfer a detainee to a different facility, the INS should take into account the location of a detainee's family, legal counsel, and community ties. Detainees should not be transferred to facilities that impede an existing attorney-client relationship or disrupt family or community ties, absent compelling reasons for the transfer.

Consular Rights

1. The United States should ensure that it meets its obligations under the Vienna Convention on Consular Relations to inform any detainee of his or her right to communicate with a consular officer from his or her country of citizenship or nationality upon his or her detention.

2. The U.S. government should promptly notify the consulate of the detainee's country of citizenship or nationality of his or her detention.

Arbitrary Detention

1. If a person is arrested on the basis of an immigration violation, the INS should only seek the person's continued detention based on individualized evidence of dangerousness or risk of flight.

2. The INS should inform all persons arrested by INS officials of the charges against them within forty-eight hours of arrest or it should release them. The rule promulgated by the INS that permits indefinite delay in charging detainees in "exceptional circumstances" should be rescinded. If the rule is not rescinded, detention without charge for more than forty-eight hours rule should be permitted only in narrowly tailored circumstances. Such exceptions must not allow delays in filing charges beyond seven days, the time limit authorized by Congress in the USA PATRIOT Act for individuals certified as terrorism suspects.

3. If a detainee is held for more than forty-eight hours without charge, the INS should automatically and immediately bring him or her before an immigration or federal court for a determination of the detention's legality.

4. INS detainees should be released on bond pending final adjudication of immigration proceedings unless a judge finds there is evidence of the individual detainee's dangerousness or risk of flight. Absent such evidence, the fact that the detainee was originally identified or questioned in connection with a terrorism investigation should not warrant refusal to authorize release on bond.

5. The INS should initially set or seek judicial bond orders at amounts no higher than that reasonably calculated to ensure detainees will appear for immigration proceedings. High amounts should not be used to force detainees to remain in custody in the absence of particularized evidence of dangerousness or risk of flight.

6. The INS should comply immediately with judicial orders to release detainees on bond. It should rescind its rule preventing release in cases where the INS sets high bond amounts.

7. The INS should comply promptly with orders of removal issued by immigration judges and with grants of voluntary departure, regardless of whether there is an ongoing law enforcement investigation into the detainee's conduct, knowledge, and associations. If Congress wishes to enact legislation authorizing the continued detention of INS detainees pending federal law enforcement "clearance," it should ensure such legislation adequately reflects constitutional due process requirements.

8. Persons ordered deported and held in detention must be removed within ninety days of the issuance of the removal order as required by law.

9. Federal law enforcement agents and prosecutors should not use material witness warrants to circumvent the basic due process requirement that persons may be detained only with probable cause of criminal conduct. In the absence of such probable cause, material witness warrants should not be used to keep possible criminal suspects in detention.

Conditions of Detention

1. INS detainees should not be held in segregated confinement unless there is individualized reason for believing they are dangerous or poses a security risk. Conditions of segregated confinement should not be unnecessarily restrictive or punitive. Detainees held in segregated confinement for their own protection or other non-disciplinary reasons should be entitled to all the privileges and programs available to general population detainees.

2. The INS should fully implement, monitor, and enforce its own Detention Standards setting forth the basic conditions of detention for INS detainees. It should not place or maintain detainees in facilities that do not meet those standards.

3. INS detainees should not be confined with persons accused or convicted of criminal offenses.

4. The INS should investigate fully all complaints of abuse or mistreatment of detainees. It should remove all detainees from facilities where there are cases of abuse by staff or criminal inmates unless the facility undertakes prompt remedial action, including dismissal of abusive employees.

5. To the maximum extent practicable, jails and detention centers that hold immigration detainees should have staff members who speak the language of the people in custody and can act as translators, particularly in cases where there is a concentration of detainees who speak the same foreign language.

1 "Pakistanis Tell of US Prison Horror," BBC, June 29, 2002.

2 David Cole, "Enemy Aliens," Stanford Law Review, vol. 54:950, 2002, p. 955.

3 U.S. Department of Justice v. Reporters Committee, 489 U.S. 749,773 (1989).

4 Testimony of Attorney General John Ashcroft before a hearing of the Senate Judiciary Committee on "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism," December 6, 2001. During that hearing, the attorney general said:

To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of goodwill to remain silent in the face of evil.
5 Whitney v. California, 247 U.S. 357, 375 (1927) (Justice Brandeis concurring).

--- For full report see... http://www.humanrightswatch.org/reports/2002/us911/

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