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UNITED STATES: PRESUMPTION OF GUILT

took massivc raids and scized thousands of suspected communists and anarchists without any regard for due process. During World War 11. more than 110,000 pcoplc were detained in intemment 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 cven being sent to prison for suspected or rcal association with the Communist Party In each case, the government argucd ncccssity. In cach case. history vindicates the victims and condomns the government's conduct

Wc hope this report will encourage US. of. ficials, legislators, and the public to insist that US domestic anti-terrorism cfforts bc conducted with full respect for basic nights. Remcdying the nights violations that have accompanied the post-September 11 detcntions will require a scries of steps, as recommended below. But the overarching goal must be two-fold: 1) bringing transparency and accountability to the goverment'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 cnding policies and practices that circumvent important rights safeguards

Human Rights Watch recognizes the critical importance of profccting lives from tcrronst attacks and of bringing to justice those responsible for them Law enforcement and information gathering should proceed cffectively, intelligendy, and cfficiently. There is no cvidence. however, that prior to September 11 federal agents lacked sufficient means to investigate and prosecutc terrorist conspiracies and organizations or that their work was inappropriately hampered by safeguards for individual nyhts. In Our judgment thc abridgment of those safcguards subscqucnt to Scptember 11 was born not of necessity, but from insufficient recognition of the importance of the nights that are the foundation of American democracy Indeed, rather than weakening national security, protection of civil libcrtics is a hallmark of strong, democratic polities

As Supreme Court Justice Louis D. Brandeis wrote in 1927, the framers of the US Constitution knew that "fear breeds repression: that repression broods hatc, (and) that hate men. accs stablc government

Nations, like individuals, prove their mettle and the strength of their convictions during cnses. Faced with the very real vet immeasurable danger of ongoing terrorist threats and the urgent need to find and hold accountable those respon. sible for September 11, the US government has failed to hold high the fundameutal principles on which the nation is promised the very values that President Bush declared were under attack from terrorists

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 In. vestigation, as well as to any now agency that carries out immigration functions

In some cascs, acting on the recommendations will cntail revision or rescission of administrative regulations or policies In other cascs, thc Department of Justice must instruct and oversce its cmploy. ees to ensure their practices are consistent with human rights requirements. We also urge Congress to cxcrcise its legislative and oversight authority to ensure that the necessary changes in current policies and practices are made. The US government must ensure that the investigation and detention of persons suspected of haviny links to terrorism are conducted with full regard for the rights of all persons in the United Statcs to bo free of discrimination, arbitrary dc. tention, mistreatment in confinement, and violations of duc process

Arrests 1. Fodcral law cnforcement 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

Whitney California, 247 US. 357. 375 (1927) (Justice Brandeis concurring)

2 Immigration laws should not be sclectivcly enforced through discriminatory arrests made on

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4. INS dctamccs--whether in administrativo segregation or in the gencral population should have generous access to telephones to find attornous to represent them Telephone calls for purposcs 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.

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

5 INS detainees should not be asked to sign legal documents in English, including descriptions of the nghts they are erutled to or waivers of nights, without adequate assurances that they full 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 accuratcly cxplained in a language that the detainee can understand

Access to Counsel and Protection of Legal Rights | Any onc held in custodial detention, including INS custody, should not bc questioned about know ledge of or involvement with criminal activities, including terrorism, without being advisod of his or her night to remain silent, to have an attorney present during quc suoning, and to have one provided through court appointment if he or she cannot afford onc. 10. be given *Miranda“ warings Wherc a detaince does not

6. Thc INS should promptly respond to requests from attomers and families regarding the location of detainees, including immediately after arrest and after any transfer. The INS should cnsure that detaines have adequatc phonc access to inform their attomers and family members of their places of detention

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7 The INS should comply prompths with orders of removal issued by immigration judges and with grants of voluntary departurc, regardless of whether there is an ongoing law enforcement investigation into the detainee's conduct, knowi. odgc. and associations. If Congress wishes to enact legislation authorizing the continued detention of INS detainees pending federal law unforcement "clcarana," it should cosurc such legislation adequately reflects consulutional due process requirements

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 delas in charying detaices in crocptional circumstances should be TCscinded If the rule is not rescinded, detention without charge for more than forty eight hours rulc should be permitted only in narrowl tallored circumstances. Such exceptions must not allow delavs un filing charges beyond seven dass, the time limit authorized by Congress in the USA PATRIOT Act for individuals certified as terrorism suspects

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

3. If a detainee is held for more than forty eight hours without charge. the NS should automatically and immediatels bring him or her before an immigration or fcdcral court for a determination of the detention s legality.

9 Federal law enforcement agents and prosecutors should not usc matcrial 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 precedented investigation into tcrronist activities in the US

Determined to movc swiftly given thc urgency of the situation and public pressure to show results, the Department of Justice began a process of questioning thousands of people about u hom there were “indications" they might have information about or links to terrorist activity. Our research suggests that the indications that triggered questioning in many cases may have been little more than nationality, religion, and gender. As of July 2002. thc Scptember 11 investigation had not vielded any criminal indictments for crimes connected to terrorist activ

Some 1,200 Muslim non-citizens questioned by federal agents in connection with the Scptember Il investigation were subscquently taken into custods. The vast majonty was arrested by the Immigration and Naturalization Service (INS) for immigration law violations, cg work. ing on a tounst visa, that had nothing to do with terrorism. Prior to September 11. such violations would not havc warranted continued detcntion, persons arrested would have been quickly released on bail pending final decision on deportation But immigration violations were the only possible legal basis (other than material witness warrants) for detaining persons identified as of interest to the September 11 investigation while the Department of Justice continued investigaling whether they had information about or links to terronst organizations. The criminal law in the US rightfully does not permit preventivo detcntions for investigative purposes

Thc Department of Justice tumed to the immigration

Ibid. p. 3 * Human Rights Watch sought meetings with FBI and INS officials to discuss this and other issues raused in this repont The INS denied our request, the FBI never responded

The only person who has been indiciod for crimes related to the September 11 attacks, Zacarias Moussaout—was alrcady in detention before September

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UNITED STATES: PRESUMPTION OF GUILT

reason for believing they are dangerous or poses a security risk Conditions of segregated confincmçnt should not be unnecessarily restrictivo or punitive Detainces held in segregated confinement for their own protection or other nondisciplinary reasons should be cntitled to all the privileges and programs available to general population detainees.

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

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

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

3 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

II. ARRESTS

Following the attacks of September 11, the Department of Justice launched an extensive cffort aimed at apprchcnding those responsiblc for the September 11 attacks and detecting. disruptiny, and dismantling terrorist organizations Thousands of Federal Bureau of Investigation (FBI) agents, working with other federal, stats and local agencies, have been conducting an un

Declaration of Dale L. Watson submitted April 9, 2002. in / letrolirer Press Juhn Ashcroll 195 F. Supp 2d 948 (April 3, 2002), p 2

Preventive detention is permissible onkin lughly limited situations not relevant here eg, for æertain com icted sex olenders who have sened their sch tences but are still considered dangerous

UNITED STATES: PRESUMPTION OF GUILT

la sistem to conduct what has been called a “campaign of mass preventive detention Almost all of the post-Scptcmber 11 immigration detainocs-whom the government has called special interest" detainccsucre ultimately deported or relcascd on bond somctimes after months of dutention after the Department of Justice concluded they had no connection to terronse activitics or groups

Who are the Detainees?

Almost all of the special interest” detainees whose nationalities were revealed by the Department of Justice on January 11. 2002 camc fror countries in South Asia, the Middle East, and North Arnca, as shown on the graph below The largest group of detainccs (248) was from Pakistan, followed by Egypt 100, and Turkey. fifty-tuo. Some of the nationals of countries in North Amenca and Europe who were classified as special interest" cascs worc naturalized citi. zens and were in fact also bom in South Asia. the Middle East and North Africa The Department of Justice has not released the nationalities of post-September 11 detainees charged with foderal or state ormes or bold on mal nal uitness warrants and they are therefore not included in the graph below

See David Coke, Enemy Aliens,“ Stanford LAN Review, vol. 54.950.2002. p.955

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