June 03, 2003

Excerpts from:

The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks

Glenn A. Fine, Inspector General
US Department of Justice
June 2, 2003
(Full report as PDF (14mb) -- HTML version is forthcoming)

[Note: The report was completed on April 29, 2003. Then it "underwent an extensive review process within the Department, the FBI, and other Department components prior to its public release." According to the official press release, the full report was released with "only a few words or phrases that contain specific identifying information 'redacted' (blacked out) because they are considered Law Enforcement Sensitive by the Department and the FBI."]

In the aftermath of the Sept. 11 terrorist attacks, the Department of Justice used the federal immigration laws to detain aliens who were suspected of having ties to the attacks or terrorism in general. More than 750 aliens who had violated immigration laws were arrested and detained in connection with the F.B.I.'s investigation into the attacks, called PENTTBOM. Our review examined the treatment of these detainees, including their processing, bond decisions, the timing of their removal or release, their access to counsel and their conditions of confinement. To examine these issues, we focused on the detainees held at the B.O.P.'s [Bureau of Prison's] Metropolitan Detention Center (M.D.C.) in Brooklyn, N.Y., and at the Passaic County Jail in Paterson, N.J., because the majority of Sept. 11 detainees were held in these two facilities, and because many complaints arose regarding their treatment.

In conducting our review, we were mindful of the circumstances confronting the department and the country as a result of the Sept. 11 attacks, including the massive disruptions they caused. The department was faced with monumental challenges, and department employees worked tirelessly and with enormous dedication over an extended period to meet these challenges.

It is also important to note that nearly all of the 762 aliens we examined violated immigration laws, either by overstaying their visas, by entering the country illegally or some other immigration violation. In other times, many of these aliens might not have been arrested or detained for these violations. However, the Sept. 11 attacks changed the way the department, particularly the F.B.I. and the I.N.S., responded when encountering aliens who were in violation of their immigration status. It was beyond the scope of this review to examine the specific law enforcement decisions regarding who to arrest or detain. Rather, we focused primarily on the treatment of the aliens who were detained.

While recognizing the difficult circumstances confronting the department in responding to the terrorist attacks, we found significant problems in the way the Sept. 11 detainees were treated. The I.N.S. did not serve notices of the immigration charges on these detainees within the specified time frames. This delay affected the detainees in several ways, from their ability to understand why they were being held, to their ability to obtain legal counsel, to their ability to request a bond hearing.

In addition, the department instituted a policy that these detainees would be held until cleared by the F.B.I. Although not communicated in writing, this "hold until cleared" policy was clearly understood and applied throughout the department. The policy was based on the belief, which turned out to be erroneous, that the F.B.I.'s clearance process would proceed quickly. Instead of taking a few days as anticipated, the clearance process took an average of 80 days, primarily because it was understaffed and not given sufficient priority by the F.B.I.

We also found that the F.B.I. and the I.N.S. in New York City made little attempt to distinguish between aliens who were subjects of the PENTTBOM investigation and those encountered coincidentally to a PENTTBOM lead.

Even in the chaotic aftermath of the Sept. 11 attacks, we believe the F.B.I. should have taken more care to distinguish between aliens who 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 a PENTTBOM lead. Alternatively, by early November 2001, when it became clear that the F.B.I. could not complete its clearance investigations in a matter of days or even weeks, the department should have reviewed those cases and kept on the list of Sept. 11 detainees only those for whom it had some basis to suspect a connection to terrorism.

The F.B.I.'s initial classification decisions and the untimely clearance process had enormous ramifications for the Sept. 11 detainees. The department instituted a "no bond" policy for all Sept. 11 detainees. The evidence indicates that the I.N.S. raised concerns about this blanket "no bond" approach, particularly when it became clear that the F.B.I.'s clearance process was slow and the I.N.S. had little information in many individual cases on which to base its continued opposition to bond. The I.N.S. also raised concerns about the legality of holding aliens to conduct clearance investigations after they had received final orders of removal or voluntary departure orders. We found that the department did not address these legal issues in a timely way.

The F.B.I.'s classification of the detainees and the slow clearance process also had important ramifications on their conditions of confinement. Many aliens characterized by the F.B.I. as "of high interest" to the Sept. 11 investigation were detained at the M.D.C. under highly restrictive conditions. While the F.B.I.'s classification decisions needed to be made quickly and were based on less than complete information, we believe the F.B.I. should have exercised more care in the process, since it resulted in the M.D.C. detainees' being kept in the highest security conditions for a lengthy period. At the least, the F.B.I. should have conducted more timely clearance checks, given the conditions under which the M.D.C. detainees were held.

Our review also raised various concerns about the treatment of these detainees at the M.D.C. For example, we found that M.D.C. staff frequently, and mistakenly, told people who inquired about a specific Sept. 11 detainee that the detainee was not held at the facility when, in fact, the opposite was true. In addition, the M.D.C.'s restrictive and inconsistent policies on telephone access for detainees prevented them from obtaining legal counsel in a timely manner.

With regard to allegations of abuse, the evidence indicates a pattern of physical and verbal abuse by some correctional officers at the M.D.C. against some Sept. 11 detainees, particularly during the first months after the attacks. Although most correctional officers denied any such physical or verbal abuse, our interviews and investigation of specific complaints developed evidence that abuse had occurred.

We also concluded that, particularly at the M.D.C., certain conditions of confinement were unduly harsh, such as illuminating the detainees' cells for 24 hours a day. Further, we found that M.D.C. staff failed to inform M.D.C. detainees in a timely manner about the process for filing complaints about their treatment.

The Sept. 11 detainees held at Passaic had much different, and significantly less harsh, experiences than the M.D.C. detainees. The Passaic detainees were housed in the facility's general population and treated like other I.N.S. detainees held at the facility. Although we received some allegations of physical and verbal abuse, we did not find evidence of a pattern of abuse at Passaic as we did at the M.D.C. However, we found that the I.N.S. did not conduct sufficient and regular visits to Passaic to ensure the conditions of confinement were appropriate.

In sum, while the chaotic situation and the uncertainties surrounding the detainees' connections to terrorism explain some of these problems, they do not explain them all. We believe the department should carefully consider and address the issues described in this report, and we therefore offered a series of recommendations regarding the systemic problems we identified in our review.

They include recommendations to ensure a timely clearance process; timely service of immigration charges; careful consideration of where to house detainees with possible connections to terrorism, and under what kind of restrictions; better training of staff on the treatment of these detainees; and better oversight of the conditions of confinement. We believe these recommendations, if fully implemented, will help improve the department's handling of detainees in other situations, both larger scale and smaller scale, that may arise in the future.

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