After the Sept. 11, 2001, terrorist attacks, federal agents searching for terrorists in the United States arrested hundreds of foreign nationals — mostly Arab and Muslim men.
In New York City, an Egyptian cabdriver with an expired visa was arrested carrying pictures of the World Trade Center. He was held for five months and then released.
In Louisville, 40 Mauritanians were detained because one of them was rumored to be taking flying lessons. Four were charged with overstaying their visas and held in jail for more than a month.
Most of the detainees were jailed for months in federal detention centers on immigration violations but were never charged with crimes. Immigration violators are not automatically granted legal counsel, so many detainees had trouble retaining lawyers. Secret hearings determined their fate, and because the government refused to disclose their whereabouts, frantic relatives struggled to find them.
The government also detained terrorism suspects on minor criminal violations. Two Somali men were stopped in Texas for carrying a fake ID and a pocketknife one-quarter inch longer than legal. They were released the next day.
The Department of Justice (DoJ) claimed the detentions were vital to national security. “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,” Attorney General John Ashcroft said six weeks after 9/11.
But a report on the detention of 762 illegal aliens by the DoJ's inspector general in the 11 months following Sept. 11 sharply criticized Justice Department tactics.
The report found “significant problems in the way the detainees were handled.” Some were beaten while incarcerated. In other instances, the government violated immigration policy by failing to promptly tell the detainees why they were being held.
“People were denied access to lawyers; they were beaten up in jail and held in abusively harsh conditions when they weren't ever even charged with a crime,” says Kate Martin, director of the Center for National Security Studies.
In fact, none of the detainees were ever charged with crimes related to Sept. 11, writes Georgetown University law Professor David Cole in a new book about civil liberties and terrorism, and only two or three proved to have any terrorism ties, such as donating money to organizations with links to terrorists.
According to the inspector general, the government cast too wide a net. “The FBI should have taken more care to distinguish between aliens whom it actually suspected of having a connection to terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with an investigative lead,” the report said.
The report also criticized the government's “hold until clear” policy, which kept immigrants behind bars longer than necessary because overworked FBI agents often took months to clear detainees of any terrorism ties.
“The government's use of immigration laws as a pretext for holding people indefinitely turned out to be a terrible policy for civil liberties,” says Timothy Edgar, legislative counsel for the American Civil Liberties Union (ACLU). “Immigration law is not the detention of aliens statute; it's the statute that allows the government to remove people from the country.” Normally, immigration detainees are held for a day or two, not months, Edgar adds.
The inspector general's report outlined 21 recommendations for improving immigration detentions, including streamlining the FBI clearance process, clarifying the rights of detainees and improving jail conditions.
The Justice Department said it was implementing some of the recommendations. But Barbara Comstock, a DoJ spokeswoman, said, “We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks.”
Last month, the inspector general said the Justice Department was addressing many of its concerns but that “significant work remains before the recommendations are fully implemented.”
Some legal experts say the government has a right to detain immigrants suspected of being terrorists. “The inspector general did not find any actual rights violations, nor did he question the legal authority of the government to detain people. He just questioned the way the detentions were carried out,” says Heather Mac Donald, a fellow at the conservative Manhattan Institute, a think tank.
Mac Donald also says that national-security issues trump concerns over civil rights: “The government was doing what was perfectly appropriate to protect the security of the country, which is its paramount duty, and without which, nothing else matters.”
A leading architect of the administration's anti-terrorism policies, however, now acknowledges the government overstepped its bounds. “The [inspector general's] report was a very dramatic wake-up call,” says Viet Dinh, the author of the USA Patriot Act who served as assistant attorney general under Ashcroft for two years until returning to Georgetown University Law Center in Washington as a professor in summer 2003. “The Department of Justice rightly said, 'We regret the mistakes, and we are taking steps to rectify them.' ”
— Benton Ives-Halperin