| Misuse of Immigration Detention Laws in Counterterrorism Efforts |
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I. The Problem
In the aftermath of the 9-11 attacks, the Justice Department used the immigration laws to do an end run around basic rights protections for non-citizens, questioning and detaining primarily Arab and Muslim non-citizens often with little or no basis to suspect them of any connection to terrorism. The new administration should not repeat the mistakes that were detailed in a highly critical 2003 Inspector General Report on the treatment of these “special interest” detainees.[i] As it carries out its responsibilities to enforce the immigration laws, the executive branch should restore and uphold guarantees of due process and fair treatment for non-citizens.
The misuse of immigration law and procedure after 9-11 resulted in five principal abuses: prolonged detention without charge (in some cases up to four months); interference with the right to counsel; overriding judicial decisions to release a non-citizen on bond after a hearing; prolonged detention well after a person was ordered deported while awaiting the FBI to “clear” the person of any links to terrorism but without any pending criminal charge; and excessively harsh conditions of confinement, including some cases of physical and verbal abuse. The IG also criticized the “indiscriminate and haphazard” way in which many detainees were placed in the category of special interest detainees, concluding that the government made little attempt to distinguish between those who were the subject of a lead in the investigation and those who had no connection to terrorism.[ii] Although not addressed in the IG report, the Justice Department also refused to release the names of or charges against these detainees and instituted a controversial policy of secret immigration hearings that were closed even to the press and family members.
None of the 762 special interest immigrants detained after 9-11 was charged with involvement in the 9-11 attacks. While this abuse of immigration laws was highly ineffective in finding terrorist suspects, it had a tremendous impact on families and communities, alienating many in the Arab, Muslim and South Asian communities.
The Bush Administration halted some practices and took some partial corrective action on others, but in many cases the authorities remain on the books for use another day.
II. Proposed Solutions:
A. Ensure prompt filing of charges and bond hearings for persons detained – The Administration should require by regulation that a non-citizen detainee be charged with an immigration violation and served with a charging document within 48 hours of his or her arrest or detention. It should also require that charging documents be filed with the immigration court within 48 hours of detention and court hearings be timely scheduled. (This time period should be tolled in selective cases, for example for those eligible for relief under the Violence Against Women Act). B. Revoke the regulation that permits DOJ to litigate bond determinations, lose, and then override the judicial decision to release the individual on bond -- The Administration should repeal the “automatic stay” regulation, 8 C.F.R. §1003.19(i)(2) (Oct. 17, 2001), which authorized DOJ to stay automatically a judicial decision to release a detainee on bond after a bond hearing in immigration court. In the interim, the administration should issue an internal directive not to exercise the Secretary’s discretion to seek an automatic stay under the rule and instead pursue any stay as part of filing an appeal of the judge’s decision as per 8 C.F.R. §1003.19(i)(1).
C. Rescind the Creppy Memorandum and prohibit the blanket closure of immigration hearings, with limited, case-by-case exceptions only – The Administration should rescind the memo issued by Chief Immigration Judge Michael Creppy entitled “Cases Requiring Special Procedures” (Oct. 21, 2001)[[iii]] and adopt a clear policy stating that immigration proceedings are presumptively open to the public and the news media, allowing limited exceptions only for discrete portions of hearings and only upon a case-by-case showing of necessity.
D. Follow legal limits on prolonged detention of non-citizens who have been ordered deported -- U.S. Supreme Court decisions in 2001 and 2005[[iv]] require that immigrants who have been ordered removed be detained no longer than reasonably necessary to effectuate their deportation, typically no longer that 180 days. The new administration should adopt a policy that ensures that it strictly complies with the law in this area. The policy should specifically prohibit the continued detention of persons ordered removed beyond a reasonable period to effectuate their removal for purposes of investigation on criminal or other grounds. If the government has probable cause to believe that a non-citizen ordered removed has been involved in terrorist acts, then it should bring criminal charges against the person. III. Allies* American Library Association Lynne E. Bradley, Director Bill of Rights Defense Committee (BORDC) Flavia Alaya The Constitution Project Becky Monroe Council on American-Islamic Relations (CAIR) Corey Saylor, National Legislative Director Defending Dissent Foundation Sue Udry, Director Essential Information John Richard or Robert Weissman Government Accountability Project Jesselyn Radack, Homeland Security Director International Justice Network Liberty Coalition Michael D. Ostrolenk, Co-Founder/National Director OpenTheGovernment.org Patrice McDermott Open Society Policy Center http://www.opensocietypolicycenter.org/ South Asian Americans Leading Together Priya Murthy Stanford Law School - Mills International Human Rights Clinic Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director U.S. Bill of Rights Foundation Dane vonBreichenruchardt, President * These groups and individuals support the general principles expressed in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposal, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information. IV. Counterarguments and Rebuttal: A. Won’t these changes make it harder for the government to find and detain terrorist suspects? Won’t they result in releasing dangerous terrorists? Shouldn’t we use all available tools in dealing with terrorism? The IG report provides the best response to such dubious criticism. The policy decision to use immigration law to question and detain non-citizens in the aftermath of 9-11 resulted in a highly critical 200-page Inspector General report that contained 21 specific recommendations for corrective action. A new administration should take all necessary steps to ensure it does not repeat the serious mistakes that were made. The post 9-11 immigration round-ups proved highly ineffective in finding terrorists, and the policy came at the cost of alienating U.S. immigrant communities and tarnishing the U.S. image abroad, especially in the Arab and Muslim world. As to the specific reforms recommended in this document, DHS modified the charging rules, partially but not fully addressing the problem of prolonged detention without charge. The changes recommended here would ensure that the problem is fully remedied and that officers have clear rules to follow so that abuses do not occur. Such clarity is also critical to preventing prolonged detention after a person is ordered deported. Moreover, traditional rules that permit the government to seek a stay of a release order on appeal are sufficient to address concerns about release decisions; allowing the government to litigate and then overrule the judge undermines the integrity of the process. Rescinding the Creppy memo authorizing blanket closure of immigration hearings should be non-controversial. Little was gained through the closed hearings and the Bush Administration backed off its position in the face of legal challenges. [i] U.S. Department of Justice Office of the Inspector General, 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 (June 2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf. [iii] Available at http://www.immigrationlinks.com/news/EOIR%20Memo%20on%20Closed%20Proceedings.pdf. |