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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
Office of the Inspector General


CHAPTER ONE

INTRODUCTION

I. BACKGROUND

On September 11, 2001, terrorists hijacked four airplanes and flew two of them into the World Trade Center Towers in New York City and one into the Pentagon in Arlington, Virginia. The fourth plane crashed into a field in southwestern Pennsylvania before it could strike a target in Washington, D.C. The attacks killed more than 3,100 people, including all 246 people aboard the 4 airplanes.

The Federal Bureau of Investigation (FBI) immediately initiated a massive investigation, called "PENTTBOM," into this coordinated terrorist attack. The FBI investigation focused on identifying the terrorists who hijacked the airplanes and anyone who aided their efforts. In addition, the FBI worked with other federal, state, and local law enforcement agencies to prevent follow-up attacks in this country and against U.S. interests abroad.

Shortly after the attacks, the Attorney General directed the FBI and other federal law enforcement personnel to use "every available law enforcement tool" to arrest persons who "participate in, or lend support to, terrorist activities."1 One of the principal responses by law enforcement authorities after the September 11 attacks was to use the federal immigration laws to detain aliens suspected of having possible ties to terrorism. Within 2 months of the attacks, law enforcement authorities had detained, at least for questioning, more than 1,200 citizens and aliens nationwide.2 Many of these individuals were questioned and subsequently released without being charged with a criminal or immigration offense. Many others, however, were arrested and detained for violating federal immigration law.

Our review determined that the Immigration and Naturalization Service (INS) detained 762 aliens as a result of the PENTTBOM investigation. Of these 762 aliens, 24 were in INS custody on immigration violations prior to the September 11 attacks. The remaining 738 aliens were arrested between September 11, 2001, and August 6, 2002, as a direct result of the FBI's PENTTBOM investigation. All 762 detainees were placed on what became known as an "INS Custody List" because of the FBI's assessment that they may have had a connection to the September 11 attacks or terrorism in general, or because the FBI was unable, at least initially, to determine whether they were connected to terrorism.

The Government held these aliens in a variety of federal, local, and private detention facilities across the United States while the FBI investigated them for ties to the September 11 attacks or terrorism in general. These facilities included several Federal Bureau of Prisons (BOP) institutions such as the Metropolitan Detention Center in Brooklyn, New York; the Federal Detention Center in Oakdale, Louisiana; and the U.S. Penitentiary in Leavenworth, Kansas; INS facilities such as the Krome Service Processing Center in Miami, Florida; and state and local facilities under contract with the INS to house federal immigration detainees, such as the Passaic County Jail in Paterson, New Jersey, and the Hudson County Correctional Center in Kearny, New Jersey.

Soon after these detentions began, the media began to report allegations of mistreatment of the detainees. For example, detainees and their attorneys alleged that the detainees were not informed of the charges against them for extended periods of time; were not permitted contact with attorneys, their families, and embassy officials; remained in detention even though they had no involvement in terrorism; or were physically abused, verbally abused, and mistreated in other ways while detained.

Several individual detainees and non-profit organizations filed lawsuits against the Department of Justice (Department) protesting the lack of public information about the detainees and the length and conditions of the detainees' confinement. For example, the Center for National Security Studies brought suit against the Department under the Freedom of Information Act seeking information about the detainees, including their names and where they were being held.3 Five detainees filed a class action lawsuit alleging they were physically abused, verbally abused, and held without a legitimate immigration or law enforcement purpose long after they received final removal or voluntary departure orders.4 In addition, advocacy organizations such as Amnesty International and the Lawyers Committee for Human Rights issued reports asserting mistreatment of the detainees or mishandling of their cases.5

Pursuant to our responsibilities under the USA PATRIOT Act (Patriot Act) and the Inspector General Act, the Department of Justice Office of the Inspector General (OIG) initiated this review to examine the treatment of detainees arrested in connection with the Department's September 11 terrorism investigation.6 Specifically, the OIG's review focused on:

We focused our review on INS detainees housed at two facilities - the BOP's Metropolitan Detention Center (MDC) in Brooklyn and the Passaic County Jail (Passaic) in Paterson, New Jersey. We chose these two facilities because they held the majority of September 11 detainees and were the focus of many complaints about detainee mistreatment.

Our review did not seek to examine all aspects of the Department's terrorism investigation, including the specific investigative techniques involved in the September 11 investigation or the decisions made by federal, state, and local law enforcement on why to detain specific individuals.7 Additional issues beyond the scope of this review include the reasons and justifications for the Department's decision to limit public release of information concerning arrests related to the ongoing terrorism investigation, its decision to close immigration proceedings to the public, and its use of voluntary interviews for certain categories of aliens.8 Several lawsuits related to these issues are ongoing. In addition, our review did not examine the Department's use of material witness warrants to detain certain individuals in connection with its terrorism investigation, another issue currently being litigated in the courts.9

Rather, our review focused on the treatment of aliens who were held on federal immigration charges in connection with the September 11 investigation. We examined the reasons why many of the detainees experienced prolonged confinement. In addition, we examined the detainees' conditions of confinement, including their access to counsel, access to medical care, and allegations of physical or verbal abuse by correctional officers.

In this report, we discuss the actions of senior managers at the Department, the FBI, the INS, and the BOP, who established the broad policies and led the investigation in response to the September 11 attacks; the actions of the INS, which processed and detained many of the aliens arrested in the aftermath of September 11; and the actions of the BOP, which housed many of the detainees.

In conducting our review, we were mindful of the circumstances confronting the Department and the country as a result of the September 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.

II. METHODOLOGY OF THIS REVIEW

The OIG conducted interviews, fieldwork, and analysis for this review from March 2002 until March 2003. As noted above, we focused on two detention facilities, the MDC in Brooklyn, New York, and the Passaic County Jail in Paterson, New Jersey. We chose the MDC because it housed 84 aliens arrested in the aftermath of the September 11 terrorist attacks. In addition, the MDC received widespread media coverage for allegations of abuse against detainees and for the restrictive conditions of confinement it imposed on the detainees. We selected Passaic because it housed 400 aliens arrested in connection with the September 11 terrorism investigation - the most in any single facility - and, like the MDC, was the subject of many media articles regarding the treatment of detainees.

In this review, "September 11 detainees" are defined as aliens held on immigration violations in connection with the investigation of the September 11 attacks. The FBI categorized these aliens as either "of interest," "of high interest," or "of undetermined interest" to its terrorism investigation. The INS treated all three categories as "September 11 detainees," and sometimes referred to them as "special interest" or "of interest" detainees.10

As noted above, the Department detained 762 aliens on immigration charges in connection with its terrorism investigation between September 2001 and August 2002. From the total of 475 September 11 detainees held at the MDC and Passaic,11 we selected a sample of 119 detainees - 53 held at the MDC and 66 confined at Passaic - to examine their detention experiences in detail.

Our MDC sample of 53 detainees was composed of 19 aliens who were being held at the facility during our site visit in May 2002; a random sample of 30 detainees previously held at the MDC but released or transferred prior to our May 2002 visit; and 4 detainees whose experiences at the MDC were the subject of media articles.12

Our Passaic sample of 66 detainees was composed of 30 aliens reportedly held at the facility immediately prior to our site visit in May 2002; a random sample of 30 detainees held at Passaic but released or transferred prior to our May 2002 visit; and 6 detainees whose detentions at Passaic were the subject of media articles.

We interviewed 32 detainees in these sample groups - 19 housed at the MDC, 13 at Passaic - with their attorneys present if they requested. We also separately interviewed seven immigration attorneys who represented September 11 detainees held at the MDC or Passaic.

In addition, we reviewed the INS Alien Files (known as "A-Files") of 104 detainees from our sample of 119 September 11 detainees: 44 of the 53 detainees in our MDC sample and 60 of the 66 detainees in our Passaic sample.13 The INS was unable to provide us with the remaining 15 A-Files for these detainees. At the MDC and Passaic, we also reviewed the facilities' records pertaining to the 119 detainees in our samples, including their administrative, disciplinary, and medical files. In addition, we reviewed available FBI Headquarters and FBI field office records for 54 September 11 detainees identified by the INS on January 23, 2002, as having been held longer than 90 days after receiving voluntary departure or removal orders.14

We also examined INS and BOP policies and procedures relating to immigration charging, conditions of confinement, and access to counsel. These included agency detention standards as well as specific policies applicable to the MDC and Passaic that were developed prior to and after the September 11 attacks. We focused on how the BOP and INS implemented these standards, and we examined the actions of managers at the Headquarters and local levels regarding their adherence to these policies. In particular, we examined the following documents during our analysis:

In addition, we conducted more than 50 interviews of officials at the FBI, INS, BOP, and the Department of Justice regarding their involvement in developing and implementing the policies concerning the apprehension, detainment, investigation, and adjudication of September 11 detainee cases. Among the officials we interviewed were the Attorney General, the Deputy Attorney General (DAG), the Associate Deputy Attorney General responsible for immigration issues, and various officials in their offices; the Assistant Attorney General for the Criminal Division and attorneys from the Criminal Division involved in the September 11 investigation; the INS Commissioner; the INS Executive Associate Commissioner for Field Operations, the INS General Counsel, and a variety of other INS attorneys and staff; the FBI Director, the former Deputy Director, General Counsel, and other FBI officials; the BOP Director, the BOP's Assistant Director for Correctional Programs, and other BOP attorneys and staff; and officials in the Department's Executive Office for Immigration Review (EOIR).15 During our fieldwork at the MDC and Passaic, we interviewed the wardens, supervisors, correctional officers, medical staff, and other employees who had contact with or oversight of September 11 detainees. In addition, we interviewed managers and employees in the FBI's New York Field Office and Newark Field Office, the INS's New York and Newark District Offices, and the U.S. Attorney's Office for the Southern District of New York.16

During our review, we also met several times with representatives of Amnesty International and Human Rights Watch, who offered information and discussed their concerns about the treatment of aliens arrested after September 11. In addition, these organizations helped arrange interviews with some September 11 detainees or their attorneys. We also met with representatives from the American Civil Liberties Union, the Center for Constitutional Rights, the Islamic Circle of North America, and the Legal Aid Society.

III. ORGANIZATION OF THIS REPORT

This report is organized into ten chapters and begins with this introduction to the report. Chapter 2 describes the initial actions taken by the Department in Washington, D.C., and New York City that affected the arrest, detention, and investigation of the September 11 detainees. It discusses demographic statistics on the September 11 detainees, including their age, citizenship, location, and date of arrest. It also describes the procedure used by the FBI, INS, and BOP to review and process aliens detained on immigration charges in connection with the Department's terrorism investigation.

Chapter 3 discusses the charging of September 11 detainees with immigration violations. We identify policies, procedures, and issues that affected the timely charging of the detainees.

Chapter 4 examines the development and implementation of the Department's "hold until cleared" policy for September 11 detainees. It describes a series of operational orders issued by INS Headquarters to manage September 11 detainees. It also examines the processes implemented by the FBI to clear detainees of any connection to terrorism and the ramifications of this procedure on the detainees' length of confinement. We discuss why the FBI New York Field Office and INS New York District Office initially developed a separate list of September 11 detainees unbeknownst to FBI and INS Headquarters officials and the problems this presented. In addition, we describe the impact caused by the Department's decision to require Central Intelligence Agency (CIA) name checks for each of the detainees. The chapter ends with an examination of the FBI's development of a "watch list" and its process for adding and removing names from that list.

Chapter 5 begins with basic information about federal immigration law, including the charging procedure for immigration violations, bond hearings, and removal proceedings.17 It then examines the Department's opposition to bond for September 11 detainees and the INS's efforts to keep detainees in custody.

Chapter 6 discusses detainees with final removal and voluntary departure orders, the Department's decision to prevent removal of September 11 detainees until they were cleared by the FBI, and the eventual rescission of the policy. The chapter concludes with a review of the INS's compliance with a requirement that it conduct a review of the continued detention of aliens held for 90 days after they received removal orders.

Chapters 7 and 8 examine the conditions of confinement experienced by September 11 detainees at the MDC and Passaic facilities. Chapter 7 evaluates conditions at the MDC, including allegations of physical and verbal abuse, access to legal counsel, medical care, recreation, and other issues. Chapter 8 examines similar issues for September 11 detainees confined at Passaic.

In Chapter 9, we offer a series of recommendations to address the issues discussed in this report. Chapter 10 provides our conclusions. The 11 Appendices contain a glossary of names (Appendix A) and terms (Appendix B), organization charts, various memoranda, and sample INS forms.


Footnotes

  1. Memorandum from Attorney General John Ashcroft to United States Attorneys entitled "Anti-Terrorism Plan" (September 17, 2001).

  2. In the weeks and months following the attacks, various totals of the number of people arrested in connection with the September 11 investigation were released by the Department of Justice or appeared in media accounts. A senior official in the Department's Office of Public Affairs told the Office of the Inspector General that in the weeks after the terrorist attacks her office provided frequent updates to the media on the number of persons questioned, arrested, and detained by federal, state, and local law enforcement officials. According to this official, the Public Affairs Office stopped reporting the cumulative totals after the number reached approximately 1,200, because the statistics became confusing.

  3. Center for National Security Studies v. United States Department of Justice, 01-civ-2500 (D.D.C. filed December 6, 2002).

  4. Turkmen v. Ashcroft, 02-civ-2307 (E.D.N.Y. filed April 17, 2002).

  5. See, e.g., "Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees," Human Rights Watch (August 2002); "A Year of Loss: Reexamining Civil Liberties Since September 11," Lawyers Committee for Human Rights (September 5, 2002).

  6. Pub. L. No. 107-56 (2001). The USA PATRIOT Act was signed by the President on October 26, 2001, approximately six weeks after the September 11 terrorist attacks. The Patriot Act provides new or enhanced law enforcement authorities, including the sharing of foreign intelligence information, increased penalties for money laundering and other financial crimes, and stricter controls on immigration. In addition, Section 1001 of the Patriot Act directs the OIG to receive and review claims of civil rights or civil liberties violations by Department employees.

  7. Some constitutional arguments have been raised regarding the Department's treatment of September 11 detainees. The claims were made in a variety of contexts, some of which are inapplicable in the immigration context and some of which are beyond the scope of this report. Removal proceedings are matters of civil rather than criminal law. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Because they are not criminal proceedings, some constitutional protections that apply in the context of a criminal prosecution do not apply in a removal proceeding. For example, immigration detainees have no Sixth Amendment right to counsel. While they are permitted to be represented by an attorney, they must find and pay for the attorney themselves, unlike in criminal cases where the Government provides defendants with an attorney if they are unable to pay for counsel.

  8. For example, on November 9, 2001, the Department and the FBI sought voluntary interviews with approximately 5,000 male visitors or foreign nationals between the ages of 18 and 33 who had entered the United States after January 2000 from countries "where there have been strong al Qaeda presences." See Attorney General John Ashcroft, Press Conference (March 20, 2002).

  9. A material witness warrant can be obtained from a judge upon a showing that the testimony of a person is material to a criminal proceeding and that it may become impracticable to secure the presence of the person by subpoena. See 18 U.S.C. 3144. A person held on such a warrant is referred to as a "material witness." See United States v. Awadallah, 202 F. Supp. 2d. 55 (S.D.N.Y. 2002).

  10. In this report we generally refer to all three FBI categories collectively as "of interest," unless otherwise noted.

  11. Nine September 11 detainees were held at both Passaic and the MDC.

  12. The INS provided us with a list of 30 September 11 detainees who were being held at Passaic in April 2002. However, when we conducted our site visit in May 2002, the INS had released or transferred 17 of the 30 detainees.

  13. The A-File, maintained by the INS, contains an alien's U.S. immigration history.

  14. See Chapter 6 for a discussion of final orders of removal.

  15. Throughout this report, most individuals are identified using the title they held at the time of the event or action under examination.

  16. Organization charts for the Department, FBI, INS, and BOP are attached at Appendix C.

  17. The 1996 amendments to the immigration laws combined "deportation" and "exclusion" proceedings into "removal" proceedings. In this report, we use the term "removal proceedings" to refer to all proceedings that sought to deport, exclude, or remove aliens from the United States.
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