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VI. ARBITRARY DETENTION
Detaining Non-Citizens without Charge..
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UNITED STATES: PRESUMPTION OF GUILT
1. SUMMARY AND RECOMMENDATIONS
For me America was the dreamland. I used to think ihor / was lucky to live in a liberal sind democratic country. But the dreamland became hell for me after September 11.
Muffed Khan, a dcported Pakistani
On Scptember 11, 2001, hijackers turned four airplanes into instruments of terror. Their hornfic crimc left some 3.000 dead, devastated the lives of many thousands more, destroved 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 US was founded
Unfortunately, the fight against terrorism launched by the United States after September Il did not include a vigorous affirmation of those freedoms Instead, the country has witnessed a persistent, delibcrate, and unwarranted crosion of basic rights against abusive governmental power that are guaranteed by the U.S. Constitution and international human rights lau. Most of those directly aftected have been nonUS citizens. Under Attorney General John Ashcroft, the Department of Justice has subjected them to arbitrary detention, violated duc process in legal proceedings against them, and run roughshod over the presumption of innoccncc
To many Americans. the failure to uphold nghts may scom an abstract concern in thc face of the very concrete threat posed by terrorist attacks But the liscs of many who came to the United States with high hopes for a better life havc bccn 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 tcrronsm
Drawing on scores of interviews with current and former detainces and their attomcys, this report provides the most comprehensive analysis to date of the mistreatment of noncitizens swept up in the September 11 investigation Separate chapters detail the unjustified secrecy of the government's practices, including the sccrct incarceration of post-Scptcmber 11 detainees and immigration proceedings closed to the public: custodial interrogations without accss 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 agencics, the Federal Burcau of Investigation (FBI) and the Immigration and Naturalization Service (INS) began a process of questioning thousands of people who might have infomation about or connections to terrorist activity The decision of whom to question oficn appeared to be haphazard, at times prompted by law enforcement agents random encounters with forcign malc Muslims or neighbors suspicions. The questioning led to the arrest and incarceration of as many as 1.200 non-citizens, although the cxact number remains uncertain Of those arrested, 752 were charged with immigration violations
B: 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" detainocs were of no interest to its anti-icrrorist cf. forts. 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, intcrrogation, and detention reflected the departmcnt's unwarranted presumption of their guilt.
ENITED STATES: PRESUMPTION OF GUILT
Aresting persons of intcrest to the Scptcmber 11 investigation on immigration charges, such as overstaying a vise enabled the Departmcnt of Justice to keep them jailed while a continued investigating and interrogating them about possible criminal activities a form of preventive detention not permissible under US. criminal la Csing immigration law violations as a basis for detendon permitted the Departmcnt of Justice to avoid the greater safeguards in the crminal law-for erampic, the reqmrement of probable cause for arrest. the nght to be brought before a judge within forti eight hours of arrest, and the nyht to court-appointed counsel. While the allegod visa violavons provided a lawful basis for seeking to deport these noncitizeos. the Justice Department s actions constituted an end run around constitutional and international legal requirements governing criminal investigatons
In addition to using immigration law to ciraumvent its obligations under the criminal justice sistem, 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 (au violation may justif dcportation, it does not in itself justifi detention after arrest The NS has the legal authority to keep a non-citizen confined pending conclusion of his or her deportation proceedings only if there is cvidence of the individual's dangerousness or risk of flight. Whcrcas most persons accused of overstaying their visas, working on a tourist visa, or other common immigration law violations are routinely released from jail wtule their cascs procced, thc 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 relcasc from jail has been contingent on govemment "clearance, that is a decision that they were not linked to nor had knowledge about terrorist activities In effect "special interest" detainees havc bocn presumed guilty until law enforcement agents concluded otherwise
The "clearance” process was not the only innovation in immigration practice instituted to cxpand government powers vis-a-vis INS de
tances. The Department of Jusoce promulgatod new rules and issued new policies that permit dctarnocs to be held without change in cases of an undefined cmcrgcncı", that authonze blanket closure of immigration heanngs to the public, including detaines family and frends, 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 authont and weakened custing safcguards to protect non-citizens rights to liberty and due process
In some cases, the Department of Justice detained people of interest to the Scptember 11 mvcstigation by obtaining arrest warrants for them as matenal witnesses The ostensible pur. pose of such warrants has been to cnsure the appcarance of witsesses bctorc the grand junics invesogating the September 11 attacks After repeated interrogations and isolated confinemcnt under cxtrcmcly restrictive conditions—some of those detained as matc nal wit nesses were eventuall released. Sometimes without ever having been brought before a grand jony whule others were charged with comes or immigranon law violations The Department of Justice has refused to say how many persons have been arrested as material witnesses or how inan
remain in custod Human Rights Watch 's research has identified thirty-five individuals wbo were bold as material witycsscs
Most of the "special interest“ detainees are Muslim men who arc not US citizens. Given that the nineteen alleged hijackers were all men, citizens of Middle Eastem nations, and Muslun, it is not surprising that law enforcement has focused on male Muslim non-citizens from Middle Eastern and contiguous countries But suspicion that other terronsts in the United States might have a similar profile to the alleged hijackers is no justification for abrogating the nights of the Muslim immigrant community National ongin, religion, and gender do not constitute cvidence of unlawful conduct
In a nation created and continually recreated by immigrants, it is particularly tragic to see the willingness of the US goverment to sacrifice
UNITED STATES: PRESUMPTION OF GUILT
the rights of non-citizens and to find the public largely mute in its response One can only spcculate whether the nature of the September Il investigation would have been different if citizens had been the primary targets. But, as has been pointed out, "1bccausc non-citizens havo 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
But it is not only the rights of non-citizens that have been ignored. In refusing to release the names of immigration detainces held in conncction with the September 1l investigation and in closing their immigration hearings, the Department of Justice has trampled on basic free speech nyhts that include the public's right to know what their government is up to," as the Supreme Court has stated.
The Department of Justice has argued that withholding the names of the detainees from the public and denying the public access to depontation proceedings is essential to protect the national security and September 11 investigation, Its arguments are not persuasivc For example, it has claimed that revealing the names of "special interest' detainees would alert terrorist organizations to who has been detaincd. 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 froc to communicatc their dctention to whomever they chose. The government also asserts that if dctainces' names are disclosed or if deportation beanngs 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 govcrnment's arguments about possiblc harms that might flow from holding hcanngs in public and disclosing the identity of special interest” detainccs are predicated on the assumption that the detainocs are linked to terrorist activities- ct none of them have been charged with terronsmrelated offenses. Unsubstantiated speculations about potential damage to the govemment's investigation, however, should not be permitted to override thc fundamental principlc that artcsts and hearings affecting a person's liberty should be public to ensure fairness and to prevent the abuse of power.
Thc vcil of sccrccy the Department of Jus. tice 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 thc public information that is indispensable to determining the extent to which its September 11 inycsugation has been conducted in accordance with US law and international human rights law. It has also sought to silencc cnticism 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."
U.S. history shows how dangerous it is to allou government to claim unchecked power to protect national security Following World War I during a period of social contlict that included several bombings (including the bombing of the attomey general's home), the government under
Testimony of Attorney General John Ashcroft besore a hearing of the Senate Judician Committee on DOJ On crsight Presen ing Our Freedoms While Defending Against Terrorism," December 6, 2001, During that bearing, the attorney general said:
To those who scare peace-loving people with phantoms of lost liberty. In message is this
ou lactics only aid terrorists, for the crode our national umly and dimimsh our resohc Thco give ammunition to America's enemics, and pause to America's friends They encourage people of goodwill to remain silent in the face of evil
David Colc. "Encmy Alicns,“ Stanford Low Review, vol. 54.990. 2002, p.955
US Department of Justice v Reporters Committee. 489 U.S 749,773 (1989).