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 US 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 scck 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permits indefinite delay in charging detainees in "exceptional circumstances should be rcscinded If the rule is not rescinded, detention without charge for more than forty-eight hours rule should be permitted only in narrowly tailored circumstances Such exceptions must not allow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 authonzed 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 reIcase on bond.

5. The INS should initially set or scck 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, matenal 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 nondisciplinary 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 detainces 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 cmployees.

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.

II. ARRESTS

Following the attacks of September 11, the Department of Justice launched an extensive effort aimed at "apprehending those responsible for the September 11 attacks and detecting. disrupting, and dismantling terrorist organizations. Thousands of Federal Bureau of Investigation (FBI) agents, working with other federal, state and local agencies, have been conducting an un

Declaration of Dale L. Watson submitted April 9, 2002, in Detroit Free Press v. John Ashcroft, 195 F. Supp. 2d 948 (April 3, 2002). p. 2.

precedented investigation into terrorist activities in the U.S

7

Determined to move swiftly given the urgency of the situation and public pressure to show results, the Department of Justice began a process of questioning thousands of people about whom 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, the September 11 investigation had not yielded any criminal indictments for crimes connected to terrorist activity.

Some 1,200 Muslim non-citizens questioned by federal agents in connection with the September 11 investigation were subsequently taken into custody. The vast majority was arrested by the Immigration and Naturalization Service (INS) for immigration law violations, c.g working on a tourist visa, that had nothing to do with terrorism. Prior to September 11. such violations would not have warranted continued detention, 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 investigating whether they had information about or links to terrorist organizations. The criminal law in the US. rightfully does not permit preventive detentions for investigative purposes. The Department of Justice tumed to the immigration

14

Human Rights Watch sought meetings with FBI and INS officials to discuss this and other issues raised in this report. The INS denied our request, the FBI never responded.

The only person who has been indicted for crimes related to the September 11 attacks-Zacarias Moussaoui-was already in detention before September

10 Preventive detention is permissible only in highly limited situations not relevant here. eg., for certain convicted sex offenders who have served their sentences but are still considered dangerous.

It is not surprising that the vast majority of those detained in connection with the September 11 investigation are non-citizens from those goographic regions. The nineteen alleged hijackers were all Muslim men from Middle Eastem countries and the US government asserts their attacks were orchestrated by al-Qaeda, a diffuse network of Sunni Islamist militants headed by Osama bin Laden that has heavily (although not exclusively) recruited operatives in or from Middle Eastem and South Asian countries. It would be reasonable for law enforcement agents to assume that other members of al-Qacda or their allies in the United States might posSCSS similar characteristics. But it is unreasonable to assume that nationality, religion, and gender should suffice to identify suspicious individuals.

The Department of Justice claims that the "special interest detainees were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity For example, they may have been questioned because they were identified as having interacted with the hijackers, or were believed to have information relating to other aspects of the investigation In the course of questioning them. law enforcement agents determined, often from the subjects themselves, that they were in violation of federal immigration laws, and, in some instances, also determined that they had links to other facets of the investigation research, press accounts, and research by other organizations suggests, however, that the "indications" that triggered questioning and subscquent arrest in many cases may have been little more than a form of profiling on the basis of nationality, religion, and gender. Being a male Muslim non-citizen from certain countries became a proxy for suspicious behavior. The cases suggest that where Muslim men from certain countries were involved, law enforcement agents presumed some sort of a connection with or knowledge of terrorism until investigations could subsequently prove otherwise

Our

17 Declaration of Watson submitted in Detroit Free Press v. Ashcroft. p. 3

Using nationality, religion, and gender as a proxy for suspicion is not only unfair to the millions of law-abiding Muslim immigrants from Middle Eastem and South Asian countries. it may also be an ineffective law enforcement technique The US government has not charged a single one of the thousand-plus individuals detained after September 11 for crimes related to terrorism Such targeting has also antagonized the very immigrant and religious communities whose cooperation with law enforcement agencies could produce important leads for the investigation Additionally, a scrics of cases in which there is more substantive evidence of links to acts of terror strongly suggests that a national origin terrorist profile is flawed. Zacanas Moussaoui. the twentieth hijacker, is a French citizen, Richard Reid, the "shoe bomber, is a British citizen, and Josc Padilla, aka Abdullah Al Muhajir. "the dirty bomber, is a US citizen of Puerto Rican descent.

13 Zacarias Moussaoui, a French citizen of Moroccan descent. was arrested at a Minnesota flight school on August 17. 2001 He faces six conspiracy counts alleging that he conspired with Osama bin Laden and al-Qaeda to carry out the September 11 attacks. Richard Reid was arrested on December 22. 2001 after he allegedly ined to detonate a bomb concealed in his shoc aboard a Paris-Miami flight. He has been charged with attempted murder, attempted homicide. and attempted use of a weapon of mass destruction José Padilla was arrested on May 8, 2002 on suspicions of participating in a plot to explode a bomb laden with radioactive material. He is now being detained without charges as an "enemy combatant."