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
Office of the Inspector General
CONDITIONS OF CONFINEMENT AT THE
METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK
Almost 60 percent of the 762 aliens detained in connection with the Government's investigation of the September 11 terrorist attacks were arrested in the New York City area. As discussed previously, the overwhelming majority of these aliens were arrested on immigration charges that, in a time and place other than New York City post-September 11, would have resulted in either no confinement at all or confinement in an INS or INS contract facility pending an immigration hearing. However, fear of additional terrorist attacks in New York City and around the country changed the way aliens detained in connection with the investigation of the September 11 attacks were treated.
Aliens arrested by the INS on immigration charges who were deemed by the FBI to be of "high interest" to its terrorism investigation were held in high-security federal prisons across the country, such as the Federal Bureau of Prisons's (BOP) Metropolitan Detention Center (MDC) in Brooklyn, New York.88 Overall, the BOP confined 184 September 11 detainees in its facilities nationwide. A total of 84 detainees determined by the FBI to have a possible connection with the PENTTBOM investigation or terrorism in general were housed at the MDC from September 14, 2001, to August 27, 2002.
Generally, aliens deemed by the FBI to be "of interest" or "of undetermined interest" to the Government's terrorism investigation were detained in lower security facilities, such as the Passaic County Jail in Paterson, New Jersey (Passaic). From September 2001 to May 2002, 400 September 11 detainees were confined in Passaic.
This chapter examines the conditions of confinement for September 11 detainees held at the MDC, while the next chapter examines conditions experienced by September 11 detainees at Passaic. As we discuss in these two chapters, the FBI's initial assessment of its level of interest in specific September 11 detainees directly affected the detainees' conditions of confinement within the institution and their access to telephones, legal counsel, and their families.
In this chapter, we discuss the BOP's initial communications blackout after the terrorist attacks; its classification of September 11 detainees as "witness security" inmates; the MDC's administrative maximum (ADMAX) Special Housing Unit (SHU), a special high-security section of the facility where September 11 detainees were held until cleared by the FBI of involvement with terrorism; the MDC's process for transferring September 11 detainees from the ADMAX SHU to the facility's general population; the detainees' access to legal counsel; allegations of physical and verbal abuse made by detainees against MDC staff; and other condition of confinement issues, including consular visits, recreation opportunities, medical care, and lighting conditions in the ADMAX SHU cells.
II. INITIAL COMMUNICATIONS BLACKOUT AFTER SEPTEMBER 11
Immediately after the September 11 attacks, the BOP ordered all detainees who were "convicted of, charged with, associated with, or in any way linked to terrorist activities" to be placed in the highest level of restrictive detention. Also, MDC officials placed all incoming September 11 detainees in the ADMAX SHU without conducting the routine individualized assessment. BOP Director Kathy Hawk Sawyer told the OIG that this designation resulted from the FBI's assessment and was not the BOP's "call." Detainees held in the MDC's ADMAX SHU were subjected to the most restrictive conditions of confinement authorized by BOP policy, including "lockdown" for 23 hours a day, restrictive escort procedures for all movement outside of the ADMAX SHU cells, and tight limits on the frequency and duration of legal telephone calls.
Hawk Sawyer told the OIG that the detainees were held under these restrictive detention conditions, in part because the BOP did not know who the detainees were or what security risks they might present to BOP staff and facilities. She said the policies applied to the September 11 detainees were not new policies created specially for the detainees. Rather, the policies were long-standing BOP practices for housing inmates who presented special security concerns. She noted that on any given day persons are detained by the BOP in conditions exactly like those applied to the September 11 detainees.
Hawk Sawyer informed the OIG that the Department did not initially give the BOP any guidance on how to confine the detainees. However, she said the Deputy Attorney General's Chief of Staff, David Laufman, and the Principal Associate Deputy Attorney General, Christopher Wray, called her during the weeks after September 11 with concerns about detainees' ability to communicate both with those outside the facility and with other inmates. Hawk Sawyer said she discussed specific September 11 detainees during these conversations as well as the detainees in general. Hawk Sawyer stated that Laufman's and Wray's concerns about the detainees' ability to communicate both with those outside the facility and with other inmates confirmed for her that the BOP's initial decision to restrict detainee communications with persons outside the facility and to isolate them from the general inmate population and from each other was appropriate.
Hawk Sawyer also told the OIG that she had conversations with David Laufman and Christopher Wray from the Office of the Deputy Attorney General, in which she was told to "not be in a hurry" to provide the September 11 detainees with access to communications - including legal and social calls or visits - as long as the BOP remained within the reasonable bounds of its lawful discretion. Hawk Sawyer emphasized that Department officials never instructed her to violate BOP policies, but rather to take the policies to their legal limit in order to give officials investigating the detainees time to "do their job."
Laufman, Chief of Staff to the Deputy Attorney General, confirmed the substance of the conversations described by Hawk Sawyer. He told the OIG that he urged the BOP to exercise the full scope of its discretion to sequence detainee outside contacts on the "back end" of the BOP's discretion. Wray stated that when he contacted Hawk Sawyer about some specific criminal inmates connected to terrorism who were already in BOP custody at the time of the September 11 attacks, he discussed having these inmates placed under the most secure conditions possible. He stated that while he does not recall giving any specific instructions, he stated that the "spirit" of his comments was that the BOP should, within the bounds of the law, push as far toward security as they could.
On September 12, 2001, David Rardin, the BOP's Northeast Region Director (which includes the MDC), directed wardens in his region not to release inmates classified by the BOP as "terrorist related" from restrictive detention in SHUs "until further notice." Rardin also ordered a communications blackout for September 11 detainees during a telephone conference call with all Northeast Region Wardens on September 17, 2001. Consequently, MDC staff did not allow detainees to receive telephone calls, visitors, or mail, or to place telephone calls or send mail until the BOP received information concerning the security risks presented by the detainees.
We could not determine with any certainty the length of the communications blackout that affected September 11 detainees in BOP facilities. However, based on multiple witness interviews, the blackout appears to have lasted from several days to several weeks. According to Michael Cooksey, the BOP Assistant Director for Correctional Programs, all September 11 detainees initially were held incommunicado, but after 8 to 10 days detainees were permitted limited attorney and social contacts. John Vanyur, Senior Deputy Assistant Director in the BOP's Correctional Programs Division, told the OIG that the detainees had no external contacts for the first few weeks after the terrorist attacks until the BOP received more information on the September 11 detainees being held in BOP facilities.
Fifteen of the September 11 detainees we interviewed who were placed in the MDC between September 14 and October 16, 2001, told the OIG that this "communications blackout" continued until mid-October 2001.89 The detainees said that during this period, MDC staff did not permit them visitors, legal or social telephone calls, or mail.
The BOP, in comments submitted to the OIG after reviewing the draft of this report, stated that "at no time did the [BOP] prohibit detainees from sending outgoing mail" that would have informed detainee attorneys and family members where they were being held. Our interviews with MDC staff and September 11 detainees and BOP documents contradict this assertion. For example, a conference call between the Eastern Regional Director on September 20, 2001, and various wardens (including MDC Warden Zenk) re-established legal visits, legal telephone calls, and legal mail for the September 11 detainees. However, detainees continued to be denied social visits, non-legal telephone calls, and non-legal mail until approximately mid-October 2001.
By the same token, the detainees' recollections that the communications blackout lasted until mid-October 2001 conflicted with MDC records showing detainees meeting with some consular officials and attorneys in early October 2001. On October 1, 2001, Cooksey issued procedures to all BOP facilities housing September 11 detainees that should have ended the communications blackout that had been imposed on the detainees.90 This memorandum permitted "legal mail, legal calls, and legal visits for September 11 detainees in accordance with written Bureau (BOP) policy." Yet, even though this communications blackout was supposed to be lifted by Cooksey's October 1 memorandum, the way the BOP classified September 11 detainees created significant restrictions on access to detainees, which we describe below.
III. IMPACT OF DETAINEE CLASSIFICATION
The BOP initially classified all September 11 detainees it housed as Witness Security, or WITSEC, inmates.91 Witness Security inmates generally are individuals who agree to cooperate with law enforcement, judicial, or correctional authorities by providing evidence against persons or groups involved in illegal activities. Because their cooperation with the Government can place their lives in jeopardy, the BOP takes significant precautions to ensure the safety of WITSEC inmates. Accordingly, any information about WITSEC inmates is closely guarded, such as their identity, location, and status.
Normally, the arresting agency would inform the BOP of the person's status and the need for WITSEC protection, but the BOP classified the detainees in this category without any individual assessment of the circumstances of their arrests.
When applied to the September 11 detainees, the WITSEC classification resulted in MDC officials withholding information about the detainees' status and location. This made it very difficult for attorneys, family members, and, at times, law enforcement officers to visit September 11 detainees or even determine their location. For example, because information on WITSEC inmates is so strictly protected, staff who worked at the MDC's reception desk did not know specific detainees were confined at the MDC and often told people inquiring about a September 11 detainee that the detainee was not being held at MDC when, in fact, he was. The MDC reception staff instead would refer the caller or visitor to the BOP's National Locator systems for information about the detainee.92 Yet, because WITSEC inmates are not listed in the BOP's National Locator systems, people who accessed the registry to inquire about September 11 detainees were unable to obtain any information about where a particular detainee was being held.
The OIG interviewed four attorneys who each represented a September 11 detainee housed at the MDC about their initial efforts to contact their clients. Three of the attorneys told us that they were informed by MDC front desk staff at some point that their clients were not present at the MDC when, in fact, their clients were being held in the facility at the time. One attorney told us that when she went to the MDC to attempt to locate her client, MDC staff checked their "system" and informed her that her client was not housed at MDC. After she complained, another MDC employee came to the front desk, informed the attorney that her client was in the MDC, and authorized her to meet with him.
Another attorney told the OIG that he went to the MDC after front desk staff had informed his paralegal that his client was not housed at the facility. The attorney said he provided the MDC front desk staff with numerous combinations of his client's name, which contained five different parts. The attorney said he again was told that his client was not housed at the MDC. The attorney also visited the INS's Varick Street Service Processing Center in Manhattan in a failed effort to locate his client. In fact, his client was in the MDC at the time.
In addition to lifting the initial communications blackout for September 11 detainees, Cooksey's October 1, 2001, memorandum established a new inmate classification that was used for the September 11 detainees - Management Interest Group 155 (Group 155) - in part to address the lack of information the BOP was providing to attorneys and family members about the detainees. However, Cooksey's October 1 memorandum directed all BOP staff, including staff at the MDC, to continue holding September 11 detainees in the most restrictive conditions of confinement possible until the detainees could be "reviewed on a case-by-case basis by the FBI and cleared of any involvement in or knowledge of on-going terrorist activities." 93 As a result, the BOP continued to use "WITSEC" as its primary designation for September 11 detainees and "Group 155" as a secondary designation. Therefore, the tighter restrictions that flowed from the WITSEC designation continued to apply to all September 11 detainees, and difficulties that families and attorneys had trying to locate the September 11 detainees continued.
Four senior managers at BOP Headquarters, including Senior Deputy Assistant Director John Vanyur, acknowledged to us that the BOP's initial designation of September 11 detainees as WITSEC inmates caused administrative confusion. The MDC Warden's Executive Assistant told the OIG that briefings for MDC staff in the weeks after the terrorist attacks did not provide clear guidance about how to handle inquiries from the public about September 11 detainees, particularly to staff assigned to the visitors' desk in the MDC's front lobby. MDC Warden Michael Zenk and the MDC Associate Warden for Programs both confirmed that staff at MDC's front desk had turned away visitors - including attorneys - who sought to contact September 11 detainees because of confusion surrounding the WITSEC/Group 155 designation initially assigned to the September 11 detainees.94
The WITSEC designation also impeded law enforcement interviews of September 11 detainees. MDC staff told the OIG that several law enforcement officials in the New York area who called the MDC to schedule detainee interviews shortly after the terrorist attacks were told that a particular detainee was not housed at the MDC. To address this problem, MDC staff established a process under which law enforcement officers contacted staff in the MDC Command Center or one of the Lieutenants responsible for supervising the ADMAX SHU in advance of their arrival to schedule an interview and to ensure that the September 11 detainee was housed at the MDC.
In response to the continuing confusion about access to the detainees and obtaining information about the detainees, the BOP established another new classification for September 11 detainees. In an October 31, 2001, memorandum, Cooksey removed the WITSEC designation for September 11 detainees in SENTRY, the BOP's inmate tracking database, but the Group 155 assignment continued to apply to the detainees. After October 31, when MDC staff at the front reception area searched for a September 11 detainee in SENTRY, a warning message referred to the detainee as a "SPECIAL SIS CASE." The staff was therefore alerted to contact the MDC's Special Investigative Supervisor (SIS), who determined whether the visitor had been cleared to meet with the detainee.
However, problems persisted even after this second re-classification because of the BOP's initial decision to classify September 11 detainees as WITSEC inmates. As late as March 1, 2002, the Captain of the ADMAX SHU e-mailed the MDC Warden and officials at BOP Headquarters requesting that September 11 detainees no longer be categorized as WITSEC inmates in the SENTRY system.95 According to the Captain, the WITSEC designation was unnecessary and caused "confusion . . . at times attorneys are being turned away."
Because of the policy that all September 11 detainees were to be held in the most restrictive conditions at BOP facilities, they were placed in the MDC's Special Housing Units (SHU). In BOP institutions, SHUs are designed to segregate inmates who have committed disciplinary infractions or who require administrative separation from the rest of the facility's population.96 According to BOP regulations, an employee called the Segregation Review Official is required to review the status of each inmate housed in the SHU on a weekly basis after the inmate has spent seven days in disciplinary segregation or administrative detention. In addition, that official is required to conduct a formal hearing every 30 days to assess the inmate's status. 97
We found that the BOP did not review the status of each September 11 detainee on a weekly basis and did not conduct formal hearings monthly to assess the detainee's status. Rather, it relied on the FBI's assessment of "high interest." We reviewed the monthly SHU reports for the September 11 detainees we interviewed and found that each was annotated with the phrase "continue high security." MDC officials told the OIG that, if they did not receive notification from BOP Headquarters that the FBI had cleared a September 11 detainee, the detainee's monthly report was automatically annotated with the phrase "continue high security," without a hearing being conducted, and the detainee remained in segregation.
In addition, the September 11 detainees were housed in the most restrictive type of SHU - an Administrative Maximum (ADMAX) SHU. According to BOP officials, ADMAX units are not common in most BOP facilities because the conditions of confinement for disciplinary segregation or administrative detention in a normal SHU are usually sufficient for correcting inmate misbehavior and addressing security concerns. An ADMAX SHU has more restrictive conditions than a normal SHU. For example, the ADMAX SHU at the MDC, unlike a regular SHU, has a four-man hold restraint policy, hand-held cameras recording detainee movements, cameras in each cell to monitor detainees, and physical security enhancements.98
Conditions in the ADMAX SHU differ markedly from conditions in the MDC's general population. In the general population, inmates are allowed to move around the unit and use the unit's telephones. They also are not subjected to the movement and restraint policies enforced in the ADMAX SHU. In addition, detainees in the general population are permitted certain electronic equipment in their cells, such as small radios.
By contrast, as we describe below, detainees in the ADMAX SHU are restricted to their cells, have limited use of telephones with strict frequency and duration restrictions, and can only move outside their cells for specific purposes and while restrained and accompanied by MDC staff. Several September 11 detainees who spent time in the ADMAX SHU before being moved to the MDC's general population described the difference as "between night and day."
Prior to September 11, 2001, the MDC had a SHU, but not an ADMAX SHU. After the September 11 terrorist attacks, MDC staff contacted staff from the BOP's Metropolitan Correctional Center (MCC) in Manhattan for assistance in establishing an ADMAX SHU.99 The MDC quickly created an ADMAX SHU from one part of its existing SHU. This ADMAX SHU was only partially operational when the first September 11 detainees arrived on September 14, 2001. According to MDC officials, the unit became fully operational by October 15, 2001, when MDC management distributed operating procedures to staff assigned to the ADMAX SHU.
Each wing has 31 cells and a capacity of 60 inmates per wing. The wings are divided into two blocks of cells called "ranges." September 11 detainees were housed in individual cells in the SHU range that was converted to an ADMAX SHU. As more detainees were transferred to the MDC, two and at times three detainees were housed in a single cell in the ADMAX SHU. MDC staff told the OIG that as many as 60 detainees were housed in the ADMAX SHU at one time.
In an effort to improve security, the MDC also initiated a series of structural changes to the ADMAX SHU in early October 2001 that were completed in mid-November 2001. The changes included:
The cells in the ADMAX SHU contained a set of bunk beds, toilet and sink fixtures, a shower, and a small seating area.
|Image 1: These pictures depict a typical ADMAX SHU cell and show (moving clockwise from top left) the bunk bed, shower, seating area, and combination toilet and sink fixture. Photographs dated May 1, 2002.|
Detainees and MDC staff used a multipurpose room located at the end of the ADMAX SHU range for medical examinations, strip searches, recreation, and individual meetings.
|Image 2: This picture shows a multipurpose room on the ADMAX SHU range that is equipped for detainee medical examinations. Photograph dated May 1, 2002.|
A modified food preparation area was located between the ADMAX range and the regular SHU ranges on the MDC’s ninth floor. Normally, inmate food at the MDC is served on hard plastic trays, but food for the September 11 detainees was transferred to foam plates to prevent the detainees from using plastic trays as weapons.
The recreation area in the ADMAX SHU consisted of four cell bays enclosed by chain link fencing on all sides and the ceiling. The roofs of the four recreation cells, located on the top floor of the MDC, were open to the outside. Due to security concerns, MDC staff did not provide recreation equipment to September 11 detainees housed in the ADMAX SHU.
|Image 3: This picture shows the ADMAX SHU recreation cells as viewed from the last recreation cell. Photograph dated May 1, 2002.|
Visitors, attorneys, and family members met with September 11 detainees in a special visitation area adjacent to the ADMAX SHU range. All visits between detainees and their attorneys or family were “non-contact,” meaning physical contact between parties was prevented by a clear partition. Correctional officers were not present in the special visitation areas during these visits.
|Image 4: These photographs show two views of the non-contact visiting area used by September 11 detainees in the ADMAX SHU. Photographs dated May 1, 2002.|
Law enforcement visitors to the ADMAX SHU were permitted contact visits with September 11 detainees in a separate visiting area across from the non-contact area.
|Image 5: These pictures show two views of the contact visiting area in the ADMAX SHU. Photographs dated May 1, 2002.|
Officials at the MDC combined existing BOP policies for disciplinary segregation and administrative detention to create policies and procedures governing September 11 detainees housed in the ADMAX SHU.100 The following procedures were implemented for these detainees on September 20, 2001:
September 11 detainees had two methods to make a request or file a complaint about their treatment or conditions at the MDC - the "copout" and the Administrative Remedy Program. The copout, a process in which detainees identify concerns to MDC staff, was the primary method for detainees to request telephone calls (social and legal), medical care, or resolution of visitation problems.101 The copout, while not an official complaint process, was used by detainees to request staff assistance for a variety of issues.
In contrast, the Administrative Remedy Program is the BOP's formal process for filing a complaint, such as an allegation of physical or verbal abuse against facility staff. Detainees (or inmates) are expected to exhaust all informal methods for resolving their concerns, such as submitting copouts, before filing complaints under the Administrative Remedy Program.102
IV. HOUSING ASSIGNMENT OF SEPTEMBER 11 DETAINEES
As described above, the MDC did not follow the BOP's inmate security risk assessment procedures for determining where to house the September 11 detainees. Instead, MDC officials relied on the FBI's assessment that the detainees generally were "of high interest" to its ongoing terrorism investigation and automatically placed them in the MDC's most restrictive housing conditions - the ADMAX SHU.
The first September 11 detainees arrived at the MDC on September 14, 2001. Initially, Dennis Hasty, the MDC Warden at the time, and the former Associate Warden for Custody told us they were under the impression that the MDC would be asked to house only about 16 September 11 detainees, the capacity of one block of SHU cells if each detainee was housed individually.103 However, the number of September 11 detainees sent to the MDC soon exceeded their original expectations as the FBI arrested additional aliens and classified them "of high interest." At the time, the MDC was the only detention facility in New York City operational and suitable for housing detainees under highly restrictive conditions.104
Officials from the BOP's Northeast Region and BOP Headquarters told MDC staff that they believed that September 11 detainees who were sent to the MDC were "suspected terrorists." However, as discussed previously, from our interviews and document reviews we determined that the FBI did not have a formal process for making an initial assessment of a detainee's possible links to terrorism, and this assessment lacked specific criteria and was applied inconsistently. The BOP's Northeast Region Counsel explained to the OIG that the BOP accepted this assessment, since the BOP normally takes "at face value" FBI determinations that detainees had a potential nexus to terrorism and therefore were "high-risk."
Under standard BOP practice, newly arrived inmates are kept separate from an institution's general inmate population for the first 30 days while staff conducts risk assessments to determine whether the inmates can be released safely into the general population. We found no evidence that MDC staff performed any of the normal risk assessments on the September 11 detainees, because the detainees were assigned automatically to the ADMAX SHU.
We found that even after September 11 detainees who had been placed in the ADMAX SHU were finally "cleared" by the FBI, some remained in the ADMAX SHU for days or weeks after they were supposed to be transferred to the MDC's less restrictive general population.
As discussed in Chapter 4, prior to October 1, 2001, the FBI New York Field Office and the INS New York District Office developed their own procedures to clear local September 11 detainees using staff who served on the New York Joint Terrorism Task Force (JTTF). When the FBI liaison to the New York JTTF told the INS and BOP liaisons that the FBI had no further investigative interest in a particular detainee, the BOP liaison drafted a clearance memorandum to the MDC Warden or Captain. When the Warden received this memorandum, the detainee could be "normalized" (i.e., released to the general population).105
However, this process did not occur quickly, even after the FBI cleared the detainee. According to the OIG's data analysis, before October 2001, the MDC received notification that the FBI had cleared a September 11 detainee an average of 15 days after the FBI's New York Field Office had actually cleared the detainee.
On October 1, 2001, the process for transferring the detainees from the ADMAX SHU to the general population was centralized to BOP Headquarters in Washington, D.C. Under the new process, the FBI's New York Field Office informed FBI Headquarters that a detainee was no longer of investigative interest to its terrorism investigation. Subsequently, staff in the International Terrorism Operations Section at FBI Headquarters coordinated CIA checks for detainees before issuing clearance memoranda.
The BOP employee who served as a liaison to FBI Headquarters during this period told the OIG that he generally checked with the FBI on a daily basis for new clearance memoranda for September 11 detainees.106 The liaison said that once a clearance memorandum was issued, he notified the Intelligence Section at BOP Headquarters, either by e-mail or in his weekly report, that the FBI had cleared a specific September 11 detainee. Staff in BOP's Intelligence Section then prepared a memorandum from Cooksey, the BOP's Assistant Director for Correctional Programs, to the Warden of the BOP institution in which the detainee was held. The "Cooksey memorandum," as it became known, formally notified a BOP Warden that a detainee was no longer considered "high risk" and that his conditions of confinement could be normalized.
After the FBI and BOP implemented this centralized process, the time it took for a BOP facility to receive notice that an inmate was no longer considered "high risk" lengthened. Our analysis found that the MDC received notice from BOP Headquarters, via a Cooksey memorandum, an average of 32 days after the FBI New York Field Office had cleared a September 11 detainee. The range of these cases varied from a minimum of 7 days after the FBI New York Field Office's clearance for one detainee to 109 days for another detainee.
BOP officials told us that they would not transfer a September 11 detainee to an institution's general population prior to receiving the FBI clearance notification via the Cooksey memorandum. We found inconsistencies in this policy, which we discuss in the next section. Moreover, BOP officials explained that the process to transfer an inmate to the general population after receiving clearance could take several days. The Cooksey memorandum permitted the MDC to assess detainees using normal BOP policies to place them in appropriate housing. After receiving a memorandum on a particular detainee, the MDC conducted its own assessment of the detainee, and BOP officials said it took time to review records and interview correctional officers as part of this assessment. BOP officials told us that they were aware of two detainees who unintentionally were left in the ADMAX SHU after the MDC received the Cooksey memorandum, due to administrative errors. They also stated that they were aware of a third detainee who received a Cooksey memorandum but remained in the ADMAX SHU because of disciplinary problems.
The efficiency of the FBI clearance process and the length of time it took BOP Headquarters to notify the MDC of a detainee's clearance were significant because they dictated when a September 11 detainee could be released to the MDC's general population, where detention conditions were markedly less restrictive.
We also found that the MDC inconsistently applied the Cooksey memorandum process for transferring September 11 detainees from the ADMAX SHU to the general population. Of the 53 detainees in our MDC sample, 23 received Cooksey memoranda; 20 never received Cooksey memoranda; and 10 were cleared using the local procedures in effect prior to centralization of the process at FBI and BOP Headquarters on October 1, 2001. Of the 20 detainees who never received Cooksey memoranda, 14 were transferred from the MDC,107 5 were released into the general population without FBI clearances,108 and 1 was released on bond.
Our analysis of the 23 detainees in our MDC sample who received Cooksey memoranda determined that FBI Headquarters took an average of 107 days to clear the detainees of any connection to terrorism, and the MDC received this notification an average of 24 days after the detainee was actually cleared by FBI Headquarters.109 In response to OIG questions, BOP management offered no explanation for why it took, on average, more than one month to issue Cooksey memoranda after the FBI had cleared the September 11 detainees.
Our analysis of the records of the 23 detainees who received a Cooksey memorandum showed that 4 of the 23 detainees were released into the general population prior to a Cooksey memorandum being received. Further, three of these four detainees did not have FBI clearances prior to being released into the general population. While it is possible that the MDC could have learned that a detainee had been cleared by the FBI from a source other than a Cooksey memorandum, such deviation from the standard procedure is noteworthy given the BOP's adherence to other rules developed to ensure that the September 11 detainees did not present a risk to the facility's staff or other inmates.
|Case Study 1:
A September 11 detainee arrested in New York City arrived at the MDC on November 5, 2001. More than six months later, on May 16, 2002, the FBI officially determined that the detainee was of "no investigative interest" regarding the September 11 attacks or terrorism in general. However, a BOP Intelligence Liaison in the SIOC at FBI Headquarters wrote that "due to an internal FBI admin[istrative] error," notification from the FBI to the BOP that the detainee had been cleared was not received by the BOP until June 13, 2002.
The Cooksey memorandum for this detainee issued by BOP Headquarters arrived at the MDC on June 14, 2002. The detainee was released into the MDC's general population later that same day, more than seven months after his arrest and almost one month after the FBI had cleared him.
V. ACCESS TO LEGAL COUNSEL
This section examines the access to counsel afforded September 11 detainees while housed in the MDC. We focus on the policies and procedures implemented by the MDC that affected these detainees' access to counsel. We also examine how the MDC's initial communications blackout and the detainees' WITSEC classification affected the availability of legal calls, access to pro bono attorney lists, and the ability of their attorneys to meet with them.
We found that the BOP's decision to house September 11 detainees in the most restrictive confinement conditions possible severely limited the detainees' ability to obtain, and communicate with, legal counsel.
Under applicable BOP policies, MDC officials had significant discretion to determine the frequency and length of the detainees' legal telephone calls. Yet, we found that the MDC adopted procedures for September 11 detainees more appropriate for pre-trial inmates who had obtained counsel prior to their detention, rather than for individuals like the September 11 detainees, the vast majority of whom had no legal representation upon arriving at the MDC and needed to secure counsel.110
The BOP's national policy on attorney telephone calls states that inmates should be afforded the opportunity "to place an occasional unmonitored call to his or her attorney . . . frequent calls should be allowed only when an inmate demonstrates that communication with his or her attorney by other means is not adequate." BOP regulations do not specify an acceptable number of inmate legal telephone calls, nor does the policy define what level of attorney communication is "not adequate."111 MDC officials told us that in accordance with BOP Headquarters's instructions to maintain the tightest restrictions possible on the September 11 detainees, they decided to adopt a practice of permitting detainees one legal telephone call per week. The MDC's legal call practice did not violate any BOP policy because, given the absence of existing written guidance from BOP Headquarters, MDC management was given broad discretion to develop and implement a facility-specific legal call policy for the detainees.
MDC unit managers and counselors controlled the process for placing legal telephone calls for detainees housed in the ADMAX SHU. Detainees who wanted to make a legal call had to submit a written request known as a "copout." A unit counselor described the process for placing legal telephone calls in the ADMAX SHU once a September 11 detainee submitted a copout:
In addition to the written copout process, our interview with the ADMAX SHU unit counselor and our review of the MDC Legal Call Log revealed that the unit counselor made rounds to offer legal calls to September 11 detainees, at the most, 2 to 3 times per week. In fact, our review of the Legal Call Log and copout records revealed that between September 17, 2001, and April 3, 2002, there were six periods of over seven days in which the counselor did not make rounds in the ADMAX SHU to offer detainees the opportunity to place legal calls. Three of these periods were between September 17, 2001, and January 2, 2002, and lasted 28, 16, and 8 days. The other three periods were between January 8 and April 3, 2002, and lasted 20, 16, and 8 days.
Three September 11 detainees interviewed by the OIG said that each time the unit counselor made rounds through the ADMAX SHU he simply asked detainees "are you okay?" The three detainees said that, initially at least, they did not realize that this question was shorthand for, "Do you want a weekly legal telephone call?" A unit counselor confirmed to the OIG that when he made rounds through the ADMAX SHU to provide legal calls, he asked the September 11 detainees, "Are you okay?" to determine whether they wanted to make legal calls. Detainees we interviewed reported that an affirmative response to the question of whether they were "okay" resulted in them not receiving a legal telephone call that week.
The Associate Warden for Programs, the ADMAX SHU unit manager, and a unit counselor told us that if a detainee declined an opportunity to make a legal call, this refusal was not always recorded in the MDC's Legal Call Log. Our analysis also found that legal call refusals were not consistently annotated in the log. The Associate Warden said that the unit counselor prepared a weekly memorandum that listed the names of the detainees who refused legal calls that week.
We analyzed the weekly legal call memoranda, the Legal Call Log, and copouts for legal calls submitted by the 19 September 11 detainees we interviewed at the MDC. The first legal call made by any September 11 detainee, according to these three sources, was not until October 15, 2001.112 Yet, the MDC was notified via conference call by the BOP Northeast Region that legal telephone calls could be made by detainees as of September 20, 2001.
Based on the length of time spent in the ADMAX SHU, the 19 detainees we interviewed collectively should have been offered 383 opportunities to make legal phone calls. The Legal Call Log lists 200 legal calls made by these detainees.113 We also reviewed 60 memoranda with the names of detainees who declined their legal calls and 27 copouts for which there are no corresponding entries in the log. We concluded that, at best, detainees in our sample were offered 287 legal telephone calls, far less than one legal call per detainee per week.
The detainees we interviewed also stated they were not always offered weekly legal calls. Seven of the 19 September 11 detainees we interviewed stated that they did not complete legal telephone calls and were not visited by attorneys from the time they arrived at the MDC in mid-October until mid-December 2001. When detainees began placing legal calls from the ADMAX SHU in mid-October 2001, 15 of the 19 detainees we interviewed told the OIG they were permitted, at most, one legal telephone call per week. Three detainees told us that they never were offered legal telephone calls, and one detainee stated that he was denied legal calls as part of disciplinary punishment. A review of the Legal Call Log indicates that this particular detainee placed one legal call during the month he spent in the ADMAX SHU.
Fourteen of the 19 detainees were not offered their first legal phone calls within 7 days of arrival at the MDC. Of this group of detainees, the earliest legal phone call was offered ten days after arrival. One detainee was not offered his first legal phone call until 42 days after arrival. The average time from arrival to the first offer to make a legal phone call for the 14 detainees was 17 days.
We found that of the 287 legal telephone calls offered, 101 (37 percent) were offered more than seven days apart. In response to this finding, the MDC unit counselor said he offered weekly legal calls and the detainees' statements to the contrary were inaccurate.
Even when MDC offered detainees telephone calls, the MDC's response to unsuccessful attempts to contact attorneys by telephone was arbitrary. Four of the 19 detainees we interviewed told the OIG that legal calls resulting in a busy signal or calls answered by voicemail counted as their one legal call for the week. In addition, six detainees told the OIG that their calls to attorneys on the pro bono attorney list that resulted in no answer, were a wrong number, or resulted in a refusal to provide legal services counted as the detainees' legal call for that week. The unit counselor disputed these claims, stating that a "no contact" or busy signal did not count against the detainee as his sole weekly legal call. The unit counselor told the OIG that if the line was busy or the call could not be placed for some other reason, he tried to provide another legal call to the detainee the next time he made rounds in the ADMAX SHU. Yet, the Legal Call Log, which lists 200 total calls for September 11 detainees, indicates at least four instances when a "no contact" or busy signal counted as a detainee's weekly legal call. Moreover, the Associate Warden for Programs, the ADMAX unit manager, and a second unit counselor acknowledged to the OIG that reaching an answering machine counted as a completed legal call, although encountering a busy signal did not. This meant that for some detainees, if they reached an answering machine while trying to obtain an attorney during their one weekly telephone call, they would not be permitted another legal call for a week.
Also, according to six September 11 detainees we interviewed, unit counselors unilaterally hung up the telephone when a detainee's legal call lasted longer than three minutes. The ADMAX SHU unit counselor denied this allegation and stated that he did not limit the length of detainees' legal calls. The Legal Call Log, which is supposed to track the length of detainee legal calls, shows most calls lasting at least 5 minutes, with the longest call noted as 34 minutes.
In late November 2001, at least 20 September 11 detainees at the MDC staged a hunger strike to express dissatisfaction with their confinement and the conditions in the ADMAX SHU, including the restrictive telephone policies. Four of the 19 September 11 detainees we interviewed said they refused food beginning in late November 2001 to protest a lack of attorney telephone calls, among other issues. A daily ADMAX SHU report filed on November 28, 2001, confirmed the hunger strike, and noted that 20 of the September 11 detainees were refusing to eat, in part because of concerns about limited legal telephone calls.114
|Case Study 2:
We interviewed a September 11 detainee at the MDC who was arrested on September 26, 2001. He said he was originally arrested after the New York JTTF executed a search warrant for his apartment. He was suspected of social security fraud, insurance fraud, and credit card fraud. He also was suspected of working with others in a scheme to provide funds to al Qaeda. He was immediately transferred to INS custody and spent approximately one day at the INS Varick Street Service Processing Center. He told us he was never informed as to why he was arrested but said he later pleaded guilty to marriage fraud.
Based on the Legal Call Log, the detainee was not offered a legal call until October 15, 2001. That call was listed as a completed 10-minute call. According to the Legal Call Log, the detainee was not offered his next legal call until November 7, 2001, which the ADMAX SHU Counselor recorded as being refused by the detainee. The log showed that on December 17, 2001, the detainee made his next legal call, the result of which was an incomplete "no answer." This detainee refused three legal call offers in January 2002, according to weekly memoranda that recorded the detainees who did not wish to make a legal call.
The detainee told us that he was given a pro bono attorney list by MDC staff in October 2001. He stated that he tried to contact several legal services providers on the list, but received no responses when he called the numbers listed. He denied being offered the opportunity to make a legal phone call in November 2001. The detainee also stated that he was not allowed to make a social call to his sister for the first three months he was incarcerated at the MDC. He said that in December 2001, he finally contacted his sister and that by mid-January 2002, his sister had obtained legal representation for him, approximately four months after he entered the MDC.
The BOP's classification of September 11 detainees as WITSEC inmates also hampered their ability to visit with attorneys long after the MDC lifted its initial communications blackout. Even though MDC officials developed procedures to permit meetings between detainees and their attorneys in the ADMAX SHU, the continuing confusion on the part of MDC staff who interacted with attorneys about the location of detainees made the attorneys' ability to visit their clients more difficult.
The first attorney visit recorded for a September 11 detainee at the MDC took place on September 29, 2001. The next two attorney visits for different detainees were noted on October 10, 2001. According to the Associate Warden for Programs, the MDC did not allow September 11 detainees any visitors for about three weeks after the terrorist attacks. During this communications blackout period, MDC staff told attorneys who sought to visit September 11 detainees that information on the detainees was not available. Instead, MDC staff referred the attorneys to the BOP's National Locator Service, which, as we discussed previously, contained no information about September 11 detainees due to their WITSEC classification.
By the end of the first week in October 2001 (after the communications blackout was lifted), the MDC instituted the following new screening procedures to determine whether attorneys could meet with September 11 detainees:
When an attorney seeking to visit a September 11 detainee arrived at the MDC and provided the name of his or her client, the desk officer checked two lists which were updated daily: a general, sanitized roster of all MDC inmates that did not include WITSEC/Group 155 inmates, and a list of "separatees" - inmates who had been separated from the general population for a variety of reasons. However, the Associate Warden for Programs, the MDC Captain, and MDC reception area staff told the OIG that the September 11 detainees were not on either list. Instead, their names were kept on a third list maintained elsewhere in the MDC in order to control access to the information. This list was not kept at the MDC reception area. Therefore, if an attorney asked about a detainee whose name was not on either of the two daily lists available to the officer at the front desk, and the attorney had not obtained prior approval for visits from the Associate Warden, the desk officer told the attorney that the detainee was not present at the facility (when, in fact, the detainee may have been incarcerated in the ADMAX SHU).
Five New York-area attorneys told us that they were unable to meet with their September 11 detainee clients for many weeks because MDC staff told them that their clients were not housed at the MDC. Four of the attorneys each represented one detainee and one attorney represented several MDC detainees. According to the attorneys, they were not permitted to visit their clients during the second week of November 2001, and the first weeks of December 2001, February 2002, and March 2002. The attorneys said they were turned away either over the telephone or when they showed up at the MDC. According to the attorneys, no MDC officials mentioned any clearance procedure they needed to follow in order to visit their clients.
Eventually, these attorneys did gain access to their clients, and by the time of our May 2002 site visit to the MDC, all of the attorneys we interviewed said they were not having problems obtaining access to their clients at the MDC.
As noted above, most of the September 11 detainees had not hired attorneys before entering the MDC and, consequently, needed to solicit legal representation when initially incarcerated in the MDC. For example, 17 of the 19 September 11 detainees we interviewed said they did not have attorneys when they arrived at the MDC. The remaining two detainees had retained attorneys during their stays at other detention facilities before they were transferred to the MDC.
We found that the INS did not consistently provide September 11 detainees with lists of attorneys who would take immigration clients without compensation (known as "pro bono" cases). Several of the detainees we interviewed said that they did not receive the pro bono lists until days or months after their arrival at the MDC.115 We also found that the lists they eventually received contained significant inaccuracies, including wrong telephone numbers and numbers for attorneys who were unwilling or unable to take the September 11 detainees as clients because they only handled immigration asylum claims.
As stated previously, the BOP classified the September 11 detainees as pre-trial inmates. The BOP has no policy that requires its staff to provide lists of pro bono attorneys to pre-trial inmates arrested by the INS. On the other hand, federal regulations specify that INS officers who processed the September 11 detainees after they were arrested were responsible for providing the detainees "with a list of the available free legal services . . . located in the [INS] district."116 The Executive Office for Immigration Review (EOIR), part of the Department of Justice, maintains lists of pro bono attorneys who offer free legal services to immigration detainees in each INS District and distributes these lists to detention facilities holding immigration detainees.
In addition, Immigration Judges overseeing removal proceedings for the September 11 detainees also are required to, "[a]dvise [detainees] of the availability of free legal services . . . located in the [INS] district".117 The INS requires that staff members at all of its detention facilities, including contract facilities, enable detainees to make calls to attorneys on the INS-provided pro bono list.
According to the MDC's Associate Warden for Programs and the ADMAX SHU Captain, when the BOP lifted its restriction on telephone calls for September 11 detainees on October 1, 2001, MDC staff obtained a list of pro bono attorneys from the INS within a week and provided that list to detainees. However, the MDC staff we interviewed, including the Associate Warden, stated that the list contained inaccurate telephone numbers.
As described above, some detainees told us that their calls to attorneys on the pro bono list that resulted in no answer, were clearly an inaccurate number, or resulted in a refusal to provide legal services counted as the detainees' legal calls for that week. Consequently, the inaccurate pro bono attorney list affected detainees' ability to contact counsel in a timely manner. The Associate Warden and the ADMAX SHU Captain told the OIG that they obtained more accurate pro bono lists from EOIR and the INS between mid-October and early November 2001.
We found that BOP's classification of September 11 detainees as WITSEC/Group 155 inmates, and the resulting confusion this designation caused MDC staff, prevented or delayed many of the detainees' visits from family members.
In order to schedule a social (as opposed to an attorney) visit, September 11 detainees had to provide a list to MDC staff of which family members they wanted to be able to visit them. The same problems that attorneys encountered in attempting to visit their clients at the MDC hindered the detainees' family visits as well. Three detainees we interviewed said family members on their lists were told by MDC staff that the detainees were not housed at the MDC when, in fact, the detainees were in the facility.
As discussed previously, the BOP made changes in the detainees' classification status at the end of October 2001 after realizing that its original WITSEC/Group 155 designations were causing problems for MDC staff in handling requests for visits from detainees' attorneys and family members. The BOP also added notations in its SENTRY inmate tracking system whenever a September 11 detainee's name was queried before staff authorized a visit. The messages were designed to alert MDC staff about information that could and could not be released about these detainees (e.g., "Special SIS case - do not disclose location - notify SIS of inquiry"). We found, however, that the detainees' redesignation in the BOP system did not mean that MDC staff provided better assistance to detainees' visitors. The MDC's Associate Warden for Programs told the OIG that MDC management sought to address the social visitation problem by training reception area staff on proper procedures for granting visitation to detainee family members. However, problems persisted, as illustrated by the following case study.
|Case Study 3:
One September 11 detainee was held at the MDC from October 16, 2001, until June 14, 2002. His wife said she experienced repeated problems while attempting to visit her husband. The woman, who took unpaid leave from work to travel from her home in New Jersey to the MDC, said that between October and December 2001 she was told by staff at the MDC visitors' desk that her husband was not incarcerated at the facility when, in fact, he was. When she eventually learned her husband was at the MDC, she visited him for the first time on December 19, 2001, after being granted a "special visit" by the unit manager at a date and time outside the normal visiting schedule. From January 31 to March 31, 2002, the woman said she was not permitted to visit her husband because he was being disciplined for failing to stand up for a 4:00 p.m. daily count.
The woman subsequently was permitted to visit her husband during the week of April 2, 2002. However, she was not permitted to visit her husband the week of May 1, 2002, because she arrived at the MDC on a day and at a time that MDC reception area staff told her was not the appropriate time to visit detainees held in the ADMAX SHU. The woman told the OIG that she assumed this was an appropriate time because it was the same day of the week and hour of her previous "special visit." When she contacted the ADMAX SHU unit manager about this particular visitation problem, he arranged for another "special visit" which took place on May 4, 2002. On May 9, 2002, the detainee's wife arrived at the MDC to visit her husband but MDC staff told her that all the visitation rooms were full. She was asked to wait until after the 4:00 p.m. inmate count for a possible visit at 4:30 p.m. At 4:30 p.m., the reception staff told her to go home and call the following day. On May 10, 2002, the detainee's wife said she was unsuccessful in contacting anyone at the MDC to arrange a visit with her husband.
As of May 10, 2002, the woman had succeeded in visiting her husband three times during his more than five months of confinement in the ADMAX SHU.
Similar to the problems experienced by attorneys seeking access to their September 11 detainee clients, the BOP's categorization of these detainees as WITSEC inmates inhibited the ability of consular officials to determine whether individuals from their countries were held at the MDC. Beyond that issue, however, we found that MDC staff did attempt to facilitate visits by foreign consulates that requested meetings with detainees from their countries.
The federal government's policy regarding consular access to incarcerated foreign nationals applies whether the detainees are in the custody of the BOP or the INS. Federal regulations state:
Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States. Existing treaties with the following countries . . . require immediate communication with appropriate consular or diplomatic officers whenever nationals . . . are detained in removal proceedings, whether or not requested by the alien and even if the alien requests that no communication be undertaken in his or her behalf. 118
According to Michael Rozos, Chief of the INS's Long Term Review Branch, INS agents who arrested September 11 detainees on immigration violations were required to inform the aliens that they had a right to contact consular or diplomatic officers from their country of nationality in the United States. Rozos acknowledged that if aliens express an interest in making such contacts, the INS is required to facilitate that request, usually by providing the detainee access to a telephone along with the number for the appropriate consulate.
INS regulations specifically provide that an alien detained by the INS "shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States." Therefore, the INS was responsible for informing the September 11 detainees of their rights to contact their consular representatives, even for those detainees who were first held at BOP facilities like the MDC. The INS uses a form to document that it asked detained aliens if they wanted to contact their consulate.119 Of the 44 A-Files we were able to review for the September 11 detainees in our MDC sample, only 10 detainees had copies of this form in their files.
BOP policy requires that "whenever it is determined that an inmate is a citizen of a foreign country, the Warden shall permit the consular representative of the country to visit on matters of legitimate business. A Warden may not deny this privilege even if the inmate is in disciplinary status."120 MDC Warden Zenk said that the MDC's role was limited to providing detainees with consular telephone calls upon their request and to facilitate detainees' meetings with consular officials after MDC staff conducted appropriate screenings of the consular officials. He said that the MDC did not have responsibility for notifying detainees' consulates about their incarcerations.
Zenk told the OIG that the MDC was not contacted by any foreign consulates about September 11 detainees in the two weeks immediately following the September 11 attacks. Zenk and the Associate Warden for Programs said that beginning in October 2001, all inquiries from consulates to the MDC were directed to the Warden's Executive Assistant, who served as the point of contact for consular representatives seeking to visit September 11 detainees at the MDC. According to Zenk, the MDC carefully screened consular personnel before permitting them to visit with September 11 detainees. He said consulates were required to submit a written request stating the name of the detainee to be visited and the names of the visiting consular officials. When the visitors were approved, the Executive Assistant or the Associate Warden for Programs forwarded a memorandum officially approving the visits to the MDC's front desk to inform MDC staff of the impending consular visit.
However, similar to the difficulty experienced by detainees' attorneys and family members seeking to meet with them, the MDC detainees' designation as WITSEC inmates made it difficult for consulates to contact detainees who were citizens of their countries. For example, on October 9, 2001, a consular official met with five September 11 detainees at the MDC. Later that same day, the consular official tried to call the MDC Warden to discuss the detainees' cases, but was informed by an MDC employee that none of the five detainees was held at the MDC. Instead, the MDC employee gave the consular official the telephone number for BOP's National Inmate Locator, which, as discussed previously, did not contain information about the September 11 detainees.
Our review of files maintained by the Warden's Executive Assistant shows that between October 1, 2001, and May 7, 2002, the MDC received 22 requests for visits from 9 consulates regarding 24 different detainees. In addition, the Pakistani consulate made two requests to meet all Pakistani detainees housed at the MDC. Most of the correspondence in the file is annotated to indicate that a consular visit was approved or actually occurred. The exceptions were an October 24, 2001, request to visit five detainees, and a December 6, 2001, letter requesting visits with two detainees. We were unable to determine whether these consular visits took place because the letters are not annotated and the MDC did not maintain a separate list that reflected consular visits with September 11 detainees.
The MDC was not required to affirmatively notify foreign consulates that it was detaining citizens from their countries who had been arrested in connection with the September 11 terrorism investigation. BOP policy mandated only that MDC officials "permit" visits by consular officials. The overwhelming majority of September 11 detainees were nationals of Pakistan, India, Egypt, and Saudi Arabia. The international treaties that the United States has with these countries do not require mandatory notification of the consulate when a foreign national of those countries is held in U.S. detention.
Our review of the 22 visitation requests from consulates received by the MDC from October 2001 to early May 2002 showed that only 2 of the requests were from a country (United Kingdom) that, by treaty, requires affirmative notification. While we did not determine if the INS affirmatively notified United Kingdom consular officials of these two detentions, we found that these two detainees were visited by consular officials from the United Kingdom and the MDC complied with BOP policies in facilitating consular visits for these two detainees.
VI. ALLEGATIONS OF PHYSICAL AND VERBAL ABUSE
Based on our interviews of 19 September 11 detainees and our investigation of allegations of abuse raised by several detainees, we believe the evidence indicates a pattern of physical and verbal abuse against some September 11 detainees held at the MDC by some correctional officers, particularly during the first months after the terrorist attacks. Although the allegations have been declined for criminal prosecution, the OIG is continuing to investigate these matters administratively.121
In this section of the report, we describe our interviews of 19 September 11 detainees during our inspection visit in May 2002, the investigation conducted by the OIG's Investigations Division regarding specific complaints of abuse, and other allegations of abuse that were referred to the FBI or BOP for investigation.
In connection with this review of the treatment of September 11 detainees, our inspection team interviewed 19 detainees who were being held at the MDC when we visited the facility in May 2002. All 19 detainees complained of some form of abuse. Twelve complained about physical abuse and 10 complained about verbal abuse. The complaints of physical abuse ranged from painfully tight handcuffs to allegations they were slammed against the wall by MDC staff. The detainees told us that the physical abuse usually occurred upon their arrival at the MDC, while being moved to and from their cells, or when the hand-held surveillance camera was turned off.
Ten of the 19 detainees we interviewed during our inspection visit alleged they had been subjected to verbal abuse by MDC staff, consisting of slurs and threats. According to detainees, the verbal abuse included taunts such as "Bin Laden Junior" or threats such as "you're going to die here," "you're never going to get out of here," and "you will be here for 20-25 years like the Cuban people." They said most of the verbal abuse occurred during intake and during movement to and from the detainees' cells.
Our inspection team interviewed 12 correctional officers about the detainees' allegations of physical abuse. All 12 officers denied witnessing or committing any acts of abuse. Further, they denied knowledge of any rumors about allegations of abuse. The correctional officers we interviewed also denied they verbally abused the detainees and denied making these specific comments to the detainees.
On October 30, 2001, the OIG reviewed a newspaper article in which a September 11 detainee alleged he was physically abused when he arrived at the MDC on October 4, 2001. Based on the allegations in the article, the OIG's Investigations Division initiated an investigation into the matter. When we interviewed the detainee, he complained that MDC officers repeatedly slammed him against walls while twisting his arm behind his back. He also alleged officers dragged him by his handcuffed arms and frequently stepped on the chain between his ankle cuffs. The detainee stated his ankles and wrists were injured as a result of the officers' abuse. He also identified three other September 11 detainees who allegedly had been abused by MDC staff members.
We interviewed these three other September 11 detainees. They stated that when they arrived at the MDC, they were forcefully pulled out of the vehicle and slammed against walls. One detainee further alleged that his handcuffs were painfully tight around his wrists and that MDC officers repeatedly stepped on the chain between his ankle cuffs. Another detainee alleged officers dragged him by his handcuffs and twisted his wrist every time they moved him. All three detainees alleged that officers verbally abused them with racial slurs and threats like "you will feel pain" and "someone thinks you have something to do with the World Trade Center so don't expect to be treated well."
During our investigation of these complaints, we received similar allegations from other September 11 detainees. On February 11, 2002, four September 11 detainees held at the MDC (including one of the detainees we interviewed previously) told MDC officers that certain MDC officers were physically and verbally abusing them. Those complaints were provided to us. In interviews with our investigators, these detainees alleged that when they arrived at the MDC in September and October 2001, MDC officers forcefully pulled them from the car, slammed them into walls, dragged them by their arms, stepped on the chain between their ankle cuffs, verbally abused them, and twisted their arms, hands, wrists, and fingers. One of the detainees alleged that when he was being taken to the MDC's medical department following a 4-day hunger strike, an officer bent his finger back until it touched his wrist. Another detainee alleged that when he arrived at the MDC, officers repeatedly twisted his arm, which was in a cast, and finger, which was healing from a recent operation. He also alleged that when he was transferred to another cell in December 2001, officers slammed him into a wall and twisted his wrist.122 One detainee claimed his chin was cut open and he had to receive stitches because officers slammed him against a wall.
During our investigation, the OIG asked the detainees individually to identify the officers who had committed the abuse through photographic lineups. The detainees identified many of the same officers as the perpetrators, and the OIG focused its investigation on eight officers. The OIG interviewed seven of these officers. Six of them denied physically or verbally abusing any of the detainees or witnessing any other officer abuse the detainees. Five remembered at least one of the detainees and some of them remembered a few of the detainees. Two officers described two detainees as disruptive and uncooperative. One of the officers explained that the high-security procedures in place during the weeks following the September 11 attacks required four officers to physically control inmates during all escorts; face them toward the wall while waiting for doors, elevators, or the application and removal of leg restraints; and place them against the wall if they became aggressive during these escorts.
The seventh officer interviewed by the OIG told us that he witnessed officers "slam" inmates against walls and stated this was a common practice before the MDC began videotaping the detainees. He said he did not believe these actions were warranted. He said he told MDC officers to "ease up" and not to be so aggressive when escorting detainees. He also said he witnessed a supervising officer slam detainees against walls, but when he spoke with the officer about this practice the officer told him it was all part of being in jail and not to worry about it. The seventh officer signed a sworn affidavit to this effect. In a subsequent interview with the OIG, this officer recharacterized the action as "placing" the detainees against the wall, and said he did not want to use the word "slam." He denied that the officers acted in an abusive or inappropriate manner.
The OIG reviewed the detainees' medical records. The medical records do not indicate that most of the detainees received medical treatment for the injuries they asserted they received from officers. Two of the detainees' medical records indicate they were treated for injuries that they later claimed were caused by officers, but the medical records did not indicate that they alleged their injuries were caused by officers at the time they were treated. One detainee's records do not mention the cause of the injury and the other detainee's records state the detainee said he was injured when he fell. In his interview with the OIG, the detainee alleged his chin was badly cut when detention officers slammed him against the wall. He said that nobody ever asked him how his injury occurred. The other five detainees did not seek treatment for their alleged injuries.
Based on the scarcity of medical records documenting injuries and the lack of evidence of serious injuries to most of the detainees, the U.S. Attorney's Office for the Eastern District of New York and the Civil Rights Division declined criminal prosecution in this case. All of the detainees, with the exception of one, now have been removed from the United States. Nevertheless, the OIG is continuing its investigation of these allegations as an administrative matter. Because this case is ongoing, we are not describing in detail all the evidence in the case about the detainees' allegations. However, we believe there is evidence supporting the detainees' claims of abuse, including the fact that similar - although not identical - allegations of abuse have been raised by other detainees, which we describe in the next section.
Four cases alleging physical abuse of September 11 detainees at the MDC were referred to the FBI for investigation. Another two complaints of abuse were referred to the BOP's internal affairs office for review. As we summarize below, the FBI closed three of these cases and one FBI case remains open. The BOP closed one case due to the resignation of an employee and closed the other as unsubstantiated after conducting an investigation.
In each of the four cases assigned to the FBI, the detainee alleged that he was "slammed" against a wall or door by MDC correctional officers and was injured as a result. Two of the detainees also alleged that they were threatened by MDC correctional officers and incurred additional physical abuse, such as being kicked by officers or having the chain on their leg restraints stepped on by officers. The detainees' complaints were forwarded initially to the Department's Civil Rights Division, which after a delay in two of the cases assigned them to the FBI to investigate. In two of the cases sent to the FBI, the detainees already had been removed by the time the FBI received the complaints and were not interviewed. In another case, the detainee was removed six months after the FBI received the case, but was not interviewed. The FBI did not attempt to locate these removed detainees or to interview the correctional officers. The Civil Rights Division declined prosecution of the three cases, and the FBI subsequently closed its investigations.
In the one case that the FBI has not yet closed, the detainee complained in May 2002 that he was slammed into a wall, unnecessarily strip searched, and physically abused by MDC officers. The FBI received the case in July 2002, and opened an investigation in September 2002. As of March 19, 2003, however, the FBI had not interviewed the detainee or any officers.
In one of the cases referred to the BOP, the correctional officer who allegedly physically and verbally abused the detainee resigned during the investigation, and as a result the BOP closed the matter without further investigation. In the other case, the BOP interviewed the detainee, reviewed his medical records, and had his alleged injuries medically examined. The medical department did not find any injuries and the detainee's medical records do not indicate any injuries around the time of the alleged abuse. The BOP also interviewed two subjects and a supervising officer who witnessed the detainee's transfer. All three officers denied abusing the detainee and stated that during a routine cell rotation, the detainee began cursing and threatening the subjects. The BOP closed its investigation as unsubstantiated.
Based on the similarity of the allegations in these FBI and BOP cases to the ongoing OIG investigation, the OIG has decided to complete the investigations of the FBI and BOP cases and incorporate the relevant allegations from these cases into our ongoing investigation.
All 19 detainees we interviewed also complained of other types of harassing behavior by MDC staff while they were housed in the ADMAX SHU, such as staff banging on their cell doors or telling detainees to "shut up" while they were praying. All 19 detainees told the OIG that MDC officers banged on their cell doors for the midnight inmate count. When we questioned MDC staff about these allegations, they told us that they were responsible for ensuring that the detainees were alive during the nightly count and that banging on the cell doors was their method of waking the detainees. We confirmed that, according to BOP Program Statement 5511.06, Inmate Accountability, "Staff conducting counts shall ensure the observance of a real person and not a 'dummy.' When conducting a count, the staff member must personally observe a living breathing human body for each inmate counted." MDC staff told us they banged on the cell door to satisfy the BOP's national policy requirement to ensure that a living human body was in each ADMAX SHU cell.123
September 11 detainees also told the OIG that their afternoon prayers often were interrupted by MDC officers who conducted a "stand-up count" at 4:00 p.m. daily in the ADMAX SHU. MDC officials said the detainees were informed about these daily counts, including the midnight count, in a 2-page document containing ADMAX SHU policies that each detainee was supposed to receive when he first entered the MDC. However, several detainees told the OIG that they did not sufficiently understand English or they did not realize they were supposed to stop praying for the count. Two September 11 detainees said they were disciplined for not standing up during the count by being deprived of social visits. According to MDC records, one detainee had his social visitation privileges suspended for 60 days, while another detainee had his privileges suspended for 90 days.
When we questioned MDC staff on this subject, one Lieutenant said he delayed the afternoon count until the detainees had completed their prayers. All the other Lieutenants and correctional officers we interviewed said they followed standard BOP regulations and did not delay the afternoon count to avoid interfering with detainees' prayers.
Even though the MDC has a formal process for inmates to file complaints of abuse, we found that MDC staff failed to inform the September 11 detainees about these procedures in a timely manner. As discussed previously, the Administrative Remedy Program (ARP) is the BOP's formal procedure for filing allegations of physical or verbal abuse against facility staff. While the ARP is discussed in the MDC's facility handbook, only 1 of the 19 detainees we interviewed said he received this handbook when he arrived at the MDC in October 2001. The other 18 detainees we interviewed told us that they did not learn about this complaint resolution process until they received their facility handbooks several months after their arrival at the MDC.124
Of the 19 detainees we interviewed, 5 who said they never received facility handbooks told the OIG that they only learned about the ARP from other detainees in the ADMAX SHU. Ten detainees said they received a handbook four to six months after arriving at the MDC, while three other detainees said they received a handbook within a month of arriving at the MDC.125 One detainee did not respond to the question about when he received a facility handbook.
All 19 detainees told the OIG that they either were informed verbally about ADMAX SHU policies or they received a 2-page explanation of the policies instead of the complete MDC facility handbook. We found, however, that this 2-page summary of MDC policies did not include a description of the ARP process.
The Associate Warden for Programs told the OIG that all September 11 detainees were provided with a handbook when they were processed into the MDC. She suggested that it was possible that correctional officers confiscated the handbook from the detainees as an unacceptable item in their ADMAX SHU cell. The two-page document, "Special Housing Unit Rules and Regulations," included a list of items that the detainees could retain in their ADMAX SHU cells. These items included certain clothing items, facility-provided linen, specified personal items, and select hygiene items. The list of permitted items did not include a facility handbook. Therefore, according to the Associate Warden for Programs, because the facility handbook was not on the list, correctional officers may have confiscated the handbook. On October 17, 2001, the MDC changed its policy to permit detainees to retain the facility handbook in their cells. MDC officials could not explain why the detainees said that they did not receive the facility handbooks until months later. The Associate Warden also stated that some detainees might not have become familiar with the ARP process until several months after they arrived at the MDC because they did not understand English or had not read the handbook.
MDC management took some affirmative steps to prevent potential staff abuse by installing security cameras in each September 11 detainee's cell in the ADMAX SHU and by requiring MDC staff to videotape all movements of detainees to and from their cells. However, the MDC's policy that permitted staff to destroy or reuse these videotapes after 30 days hindered these efforts. As a result, the OIG, MDC management, and others were unable to use the videotapes to prove or disprove allegations of abuse raised by individual detainees.
According to interviews with BOP staff, the MDC installed cameras in its ADMAX SHU cells by mid-October 2001 pursuant to a national directive issued shortly after the September 11 attacks.126 The directive required that cameras be installed in each cell housing a September 11 detainee. According to BOP and MDC officials, the security cameras were installed because the video record could help protect BOP staff from unfounded allegations of abuse. According to an "al Qaeda Training Manual" found by police in Manchester, England, during a search of an al Qaeda member's home, terrorists incarcerated in the United States were urged to distract Government officials by claiming mistreatment. Consequently, the BOP was concerned that specious allegations of abuse would consume valuable administrative and legal resources.
David Rardin, the former BOP Northeast Region Director, directed in an October 9, 2001, memorandum to Northeast Region Wardens (including the MDC) that any movement of a September 11 detainee outside of his cell must be videotaped. According to Rardin's memorandum, the videotape policy was intended to deter unfounded allegations of abuse made by September 11 detainees and to substantiate abuse if it occurred.
Rardin also directed that these videotapes of detainee movements and tapes of detainees in their cells were to be preserved "indefinitely." However, by December 18, 2001, after the MDC had accumulated hundreds of videotapes, Mickey Ray, Rardin's successor as the BOP's Northeast Region Director, revised the policy for retaining surveillance videotapes from "indefinitely" to 30 days, except for incidents involving use of force by BOP staff. According to instructions from Ray, tapes that showed use of force by MDC staff against detainees were to be preserved for "evidentiary use." Tapes that did not show use of force against detainees could be reused on the 31st day. Acting on Ray's new policy, MDC Warden Zenk and the MDC Captain told the OIG that correctional staff destroyed hundreds of tapes to free up storage space at the MDC.
Consequently, videotapes that could have helped prove or disprove allegations of abuse raised by detainees were not available. The lack of videotape evidence hampered the OIG's investigation of detainee abuse complaints.
VII. OTHER ISSUES
We were unable to assess fully the level or quality of medical care provided to the September 11 detainees based on the limited documentation in the detainees' medical files.127 Four September 11 detainees we interviewed complained that MDC medical staff provided them with over-the-counter pain relievers for every medical problem they raised, including toothaches and pain from kidney stones. The detainees alleged that they were not offered more effective treatments for their medical conditions.
One detainee told the OIG that he was given Tylenol for a sore throat but was given nothing for an elevated temperature associated with the flu. Another detainee, who fractured his hand prior to arriving at the MDC and had his cast removed the day before he arrived, claimed he received no treatment after informing MDC medical staff that he was in pain. When the detainee's hand was x-rayed in January 2002, the MDC physician's assistant allegedly told him that while the x-ray showed cracks in his hand, "we are not going to do anything about it." His MDC medical record showed that an x-ray was taken but the accompanying notes in the file were illegible. When questioned by the OIG, the physician's assistant said she did not recall making that statement to the detainee.
When we asked the same physician's assistant whether Tylenol was the only pain relief medication offered to the detainees, she responded that the MDC's normal practice was to provide medications that are sufficient to relieve pain and discomfort. We interpreted this statement to mean that from the physician assistant's perspective, Tylenol was sufficient to treat most discomfort. The physician's assistant said she dispensed Tylenol to the detainee who claimed he was not treated for his hand discomfort.
In keeping with the high-security procedures implemented by the MDC for moving September 11 detainees housed in the ADMAX SHU, a detainee's visit to the MDC medical or dental offices required removal of all other non-ADMAX SHU inmates from the offices before medical or dental staff could conduct diagnostic procedures such as x-rays. The MDC's escort requirement for September 11 detainees was unique among MDC inmates and, according to the physician's assistant, resulted in delayed medical or dental care for the detainees. For example, the physician's assistant told the OIG about a 4-week delay in x-raying a detainee because of the manpower-intensive escort requirement. However, she speculated that other reasons also might have delayed a detainee's diagnostic procedure, including an unexpected attorney visit. The physician's assistant could not recall how many detainees were affected by such delays for diagnostic services, except that the number was small.
Interviews with September 11 detainees and MDC records confirmed that medical staff made daily rounds in the ADMAX SHU. Beyond that, however, incomplete documentation in the facility's medical files made it impossible for us to draw conclusions about the quality of medical and dental care provided by MDC staff to September 11 detainees.
MDC staff provided the limited amount of recreation for September 11 detainees required by BOP policy for high-security inmates. However, the large number of detainees housed in the ADMAX SHU, the lack of warm clothing, and scheduling conflicts restricted the detainees' willingness or ability to participate in exercise.
According to BOP policy, ADMAX SHU detainees are entitled to one hour of recreation a day, five days a week. MDC staff documented the ADMAX SHU record each time they offered recreation to September 11 detainees and also noted any refusals by a detainee to participate in recreation.
September 11 detainees told the OIG that lack of proper clothing was a major reason why they often refused recreation. According to all 19 detainees we interviewed, during November and December 2001 the short-sleeved shirts they were provided offered insufficient protection from the cold in the recreation areas in the ADMAX SHU, which were located on the top floor of the MDC and were open-air.
Three detainees told the OIG that in January 2002, MDC staff began offering jackets to detainees who wanted to exercise. According to 18 ADMAX SHU reports we reviewed covering a period from November 9, 2001, to January 8, 2002, almost 75 percent of the detainees held at any one time in the ADMAX SHU declined recreation because it was regularly offered in the early morning when conditions were too cold.
Eighteen of the 19 detainees we interviewed told the OIG that lights in their cells were illuminated at all times, even at night. MDC management told the OIG that these lights were necessary to properly operate the security cameras installed in each of the detainees' cells. In addition, MDC management claimed that it did not have the ability to reduce the amount of light in the detainees' cells due to the manner in which the cellblock's wiring was configured. However, we found that MDC staff was able to reduce the amount of light in individual detainee cells as early as November 2001, but chose to keep the cell lights on 24 hours a day until at least late February 2002.
In mid-October 2001, the MDC installed security cameras in each ADMAX SHU cell. According to Warden Zenk, each cell had to be illuminated sufficiently to provide for effective operation of the cameras. Each ADMAX SHU cell at the MDC has two lights: a small, square "nightlight" immediately inside the cell entrance, and a larger, rectangular "main light" in an upper corner of the cell. The nightlight, which is flush with the cell wall, is significantly dimmer than the cell's larger main light. A single switch located in a secure area at the end of the range controlled the two lights in all ADMAX SHU cells. While BOP policy provides that ADMAX SHU cells should be "adequately lighted," it does not specify the magnitude of lighting or hours of the day when lights should be turned on or off.
Eleven of the 19 detainees we interviewed said both lights in their ADMAX SHU cells were illuminated 24 hours a day until late March or early April 2002. Two detainees told the OIG that the main light in their cells was turned off in the evenings beginning in late February 2002. The other six detainees we spoke with could not specify the date the main cell lights were first turned off at night. A Lieutenant assigned to the ADMAX SHU during this period told the OIG that while he was unsure of the date, he remembered that detainees in the ADMAX SHU cells cheered when the main lights were first turned off in the evening.
All 19 detainees we interviewed complained about the difficulty of sleeping with both lights illuminated at all times in their ADMAX SHU cells. Detainees who were transferred to MDC's general population - which did not follow the same cell lighting protocols as the ADMAX SHU - told the OIG they were relieved to have the cell lights turned off during the evenings. The detainees told the OIG that the constant lighting in their ADMAX SHU cells affected them in the following ways: lack of sleep, exhaustion, depression, stress, acute weight loss, fevers, panic attacks, rapid heart beat, and reduced eyesight. In addition, according to a November 27, 2001, ADMAX SHU report, a September 11 detainee at the MDC whom we did not interview requested to see the MDC psychologist because he claimed he was suffering from sleep deprivation "after several months with the cell lights continuously illuminated."
When questioned about the issue, Warden Zenk and other MDC managers told the OIG that both lights in each detainee's ADMAX SHU cell were illuminated 24 hours a day until mid-March 2002. They said that at that time, installation of a new electrical circuit permitted staff to independently operate the two lights in the cells housing September 11 detainees. MDC staff said that after mid-March 2002 the main lights in detainees' cells were turned off from 11:00 p.m. until 6:00 a.m. on weekdays, and from 11:00 p.m. until 10:00 a.m. on weekends. They said that after mid-March 2002, only the smaller nightlight in each detainee's cell was illuminated 24 hours a day, and this was done to facilitate operation of the security cameras.
However, we found a wide discrepancy among MDC staff and other BOP officials as to the date the ADMAX SHU cells were rewired to permit independent operation of the nightlight and the main light. Our interviews with MDC and BOP staff found:
The MDC electrician stated that after detainees complained about both lights still being illuminated 24 hours a day, he checked the lights in January or February 2002 and found the rewiring he had performed in October or November 2001 was operating so that the larger main light in the cells could have been turned off separately from the smaller nightlight.
Warden Zenk responded to the OIG's findings that the main lights could have been turned off by the fall of 2001 by stating that MDC staff completed rewiring lights in the ADMAX SHU cells "by December 1, 2001." He said that at that point, the circuits for the lights were reconfigured for only two selections: either the nightlight could be turned on or the main light could be turned on, but not both lights simultaneously.
Warden Zenk further explained that while MDC management had originally told us that the two lights in the ADMAX SHU cells were illuminated 24 hours per day until "mid-March 2002," this date represented the time by which all SHU cells, including the second non-ADMAX SHU range that did not house September 11 detainees, were rewired to permit independent operation of the two lights. However, his response does not explain why 13 of the 19 September 11 detainees we interviewed stated that both lights in their cells were illuminated 24 hours a day until at least late February 2002.
We concluded that MDC staff had the capability to independently operate the lights in the detainees' ADMAX SHU cells by November 2001. We based our conclusion on interviews with September 11 detainees housed in the ADMAX SHU, BOP personnel from the Northeast Region Office, and staff at the MDC who either performed the rewiring or exercised direct oversight over the electrical work. While MDC management claimed that the facility did not have the ability to separately operate lights in detainees' ADMAX SHU cells until December 2001, the earliest date in which detainees said the main lights were turned off at night was late February 2002. Consequently, we concluded MDC staff subjected September 11 detainees to having both cell lights illuminated 24 hours a day for several months after they had the ability to independently control the lights.
Five of the 19 September 11 detainees we interviewed stated that they were deprived of personal hygiene items. According to applicable BOP policies, the MDC should have provided each detainee with one fresh towel each week and should have allowed each detainee to have one bar of soap. Two detainees stated that they were not given towels or soap during their first month in the ADMAX SHU. One detainee complained that he was not allowed to keep a toothbrush, towel, or toilet paper in his cell. Another detainee stated that he did not regularly receive soap or toilet paper. The fifth detainee stated that he did not have toilet paper in his cell during his first three weeks in the ADMAX SHU.
The MDC Captain in charge of the ADMAX SHU told us that the MDC policy for issuing hygiene supplies to September 11 detainees initially was established on September 21, 2001. According to this policy,
The SHU Lieutenant will supervise issuance of hygiene supplies every day. The SHU Officers will ensure the inmate receives toilet paper, toothbrush, toothpaste, etc. The security toothbrush is the only authorized toothbrush for use on this unit. The hygiene supplies will be provided to the inmate and then retrieved by the officers a short time later [emphasis added].
The Captain said that correctional officers issued hygiene supplies to the detainees each day according to this policy. He confirmed that all hygiene supplies were removed after use. Further, he stated that detainees were not permitted to keep toilet paper in their cells. When asked about the detainees' complaints, the Captain expressed disbelief that detainees failed to receive personal hygiene items. The Captain said the policy was modified on October 15, 2001, by eliminating the sentence, "The hygiene supplies will be provided to the inmate and then retrieved by the officers a short time later."
Seven of the 19 September 11 detainees we interviewed stated they participated in a hunger strike while housed in the ADMAX SHU as a protest against their incarceration and their conditions of confinement. The detainees told the OIG that they were just "immigration violators" and not drug dealers or criminals and that confinement in the ADMAX SHU was "excessive punishment."
According to BOP policy, an inmate must refuse nine consecutive meals before it considers the inmate to be on a hunger strike.129 When a detainee or inmate refuses nine meals, facility medical staff is required to carefully monitor the individual by weighing them daily and checking blood sugar levels frequently.
The MDC provided us with 18 ADMAX SHU reports for information about September 11 detainees on hunger strikes. According to these reports, for a 3-day period beginning November 27, 2001, 20 out of 46 detainees in the ADMAX SHU declared themselves to be on a hunger strike. Among the reasons cited on the ADMAX SHU reports by the detainees for refusing meals were "left for over 60 days with no visits from INS or the FBI, uncertainty over their future, confinement in Special Housing instead of general population, and limited visits and telephone calls." By November 29, 2001, all of the detainees had ended their hunger strikes, according to the ADMAX SHU reports, after many of the detainees received visits from their attorneys.
|Case Study 4:
A September 11 detainee arrived at the MDC on February 17, 2002, and began a hunger strike in late March 2002. According to the ADMAX SHU reports, the detainee began his hunger strike to protest his confinement in the ADMAX SHU instead of the MDC's general population and because of the MDC's limitation on visits and telephone calls. The detainee also was upset because he was not allowed to see his wife until she proved that she was married to him.
MDC staff began checking the detainee's blood sugar levels daily and offered him liquid nutritional supplements when he refused his ninth consecutive meal. By April 2, 2002, the detainee had missed a total of 17 consecutive meals. We could not determine how many more meals he missed because the next available ADMAX SHU report was dated April 6, 2002, and contained no mention of the continuing hunger strike. Therefore, we infer that the detainee ended his hunger strike sometime before April 6, 2002. The detainee told the OIG that he could not pinpoint the date he ended his hunger strike because he did not have access to a calendar.
VIII. OIG ANALYSIS
In the aftermath of the September 11 attacks, 184 aliens arrested on immigration charges were confined in high-security federal prisons, as opposed to less restrictive INS detention facilities. Eighty-four of these aliens were held at the MDC in Brooklyn, New York. These MDC detainees were held under "the most restrictive conditions possible," which included "lockdown" for at least 23 hours per day, extremely limited access to telephones, and restrictive escort procedures any time the detainees were moved outside their cells. To this end, the MDC created an ADMAX SHU specifically to confine the September 11 detainees.
The BOP played no role in deciding the security risk posed by individual September 11 detainees or their potential connections to terrorism. As discussed in Chapter 4, these decisions were made by the FBI in consultation with the U.S. Attorney's Office in the Southern District of New York and were communicated to the INS, whose agents generally arrested the aliens as part of a Joint Terrorism Task Force effort.
However, once the FBI characterized a detainee as "high interest" and the INS transferred the detainee to BOP rather than INS custody, the BOP took responsibility for the detainee's confinement. In the heightened state of alert after the terrorist attacks, the BOP combined a series of existing policies and procedures that applied to inmates in other contexts and applied them to the detainees they received after September 11, such as designating September 11 detainees as WITSEC inmates.
As a threshold matter, we question the criteria (or lack thereof) the FBI used to make its initial designation of the potential danger posed by September 11 detainees. The arresting FBI agent usually made this assessment without any guidance and based on the initial detainee information available at the time of arrest. In addition, there was little consistency or precision to the process that resulted in detainees being labeled "high interest," "of interest," or "of undetermined interest." While many of these decisions needed to be made quickly and were based on less than complete information, we believe the FBI should have exercised more care in the classification process, given the significant ramifications on detainees' freedom of movement and association depending on whether they were confined in a high-security facility such as the MDC or a less restrictive facility such as Passaic (discussed in Chapter 8). More important, as discussed in Chapter 4, the FBI devoted insufficient resources to investigating or clearing most of these detainees, resulting in their prolonged confinement under extremely high security conditions. Even after clearance, the BOP's delay in notifying the MDC lengthened even further these detainees' stay in the ADMAX SHU.
With regard to the conditions of confinement for detainees at the MDC, we appreciate that the influx of high-security detainees stretched MDC resources to their limit, with MDC staff members often working double shifts to monitor the detainees during a highly emotional period of time. We also appreciate the uncertainty surrounding these detainees and the chaotic conditions in the immediate aftermath of the September 11 attacks. However, our review raises serious questions about the treatment of the September 11 detainees housed at the MDC in several regards.
First, BOP officials imposed a "communications blackout" specifically for September 11 detainees within a week of the terrorist attacks. During this blackout period, detainees were not permitted to receive any telephone calls, visitors, or mail, or to place any telephone calls or send mail. While we were unable to determine the exact length of this communications blackout, it appears to have lasted several weeks, after which time the September 11 detainees were permitted limited attorney and social contacts. During this time, attorneys and family members were unable to receive any information about these detainees, including where they were being held. While such a policy was within the BOP's discretion, we question the justification for a total communications blackout on all these individuals, particularly for the length of time that it was imposed. In addition, the telephone limitations imposed on this group of detainees - one legal telephone call per week and one social call per month - further hindered the detainees' ability to obtain legal assistance, which posed a significant problem since the majority of the detainees entered the MDC without counsel.
Second, as noted above, the BOP initially designated all September 11 detainees as WITSEC inmates. Usually, this designation is applied to individuals who agree to cooperate with law enforcement by providing testimony against criminal suspects. Application of this WITSEC classification to the September 11 detainees, however, resulted in MDC officials continuing to withhold information about the detainees' location, even after the communications blackout was lifted.
This classification frustrated efforts by the detainees' attorneys, family members, and even law enforcement officers to determine where the detainees were being held. Because information on WITSEC inmates is tightly restricted, even MDC staff working at the front desk in the facility's lobby did not have access to information about the September 11 detainees. We found that MDC staff frequently - and mistakenly - told people who inquired about a specific detainee that the detainee was not held at the facility when, in fact, the opposite was true. Instead, the staff referred the caller or visitor to the BOP's Inmate Locator system for information about where an individual detainee was being held. But WITSEC inmates are not listed in this public system because of security reasons, and this prevented attorneys or family members from locating these September 11 detainees. We fault the MDC for not considering in a more timely manner the implications of labeling these September 11 detainees as WITSEC detainees and for not properly communicating to its employees - especially its staff who worked the facility's front desk - about the classification issues affecting September 11 detainees and how to properly address inquiries from the public.
The BOP tried at least twice to address this situation by reclassifying the September 11 detainees, first by renaming them "Group 155" inmates. Even then we found the BOP continued to use "WITSEC" as its primary designation. On October 31, 2001, the BOP reclassified the detainees as "Special SIS Cases." Neither reclassification alleviated the access issues confronted by detainees' attorneys and family members. In fact, we found that as late as March 1, 2002 - more than six months after the first September 11 detainees arrived at the MDC - the BOP's initial decision to classify the detainees as WITSEC inmates continued to cause confusion and resulted in attorneys being told incorrectly that their clients were not being held at the MDC.
We understand the MDC's efforts to follow instructions from BOP Headquarters and confine the September 11 detainees under secure conditions. That said, the detainees were pretrial inmates, most of whom had not obtained legal representation by the time they were confined at the MDC. Consequently, their designation by BOP officials as WITSEC inmates hindered the detainees' efforts to contact legal counsel and their families. We also believe the BOP should have taken timelier and more effective steps to address the situation after it realized the impact this designation was having on the September 11 detainees and the ability of their attorneys and families to locate them.
Third, with regard to the policies within the MDC for confining the September 11 detainees, MDC officials used existing BOP policies applicable to inmates in disciplinary segregation, and confined the September 11 detainees in the ADMAX SHU. The detainees were placed in restraints whenever they were outside their cells, including handcuffs, leg irons, and heavy chains. Four staff members were required to be present each time a detainee was placed into restraints and escorted from a cell. The detainees also were required to remain in restraints during their non-contact visits with their attorneys or family members.
Because of these restrictive conditions, we believe it was important for the FBI, INS, and BOP to determine, in a reasonable time frame, whether these detainees were connected to terrorism or whether they could be cleared to be moved from the ADMAX SHU to the MDC's much less restrictive general population. Yet, detainees remained in the ADMAX SHU for a long period of time waiting for the FBI's clearance process which, as we described in Chapter 4, was excessively slow. Even when the FBI cleared the detainees, they remained in the ADMAX SHU for days and sometimes weeks longer than necessary due to delays between the time the FBI cleared a detainee of a connection to terrorism and the time the MDC received formal notification of the clearance. In addition, we found that the MDC did not consistently follow its established procedures. Without explanation, it released at least four September 11 detainees from the ADMAX SHU prior to receiving clearance from the FBI that the detainee had no links to terrorism.
Fourth, the restrictive conditions imposed by the MDC prevented the detainees from obtaining counsel in a timely fashion. The BOP has no national policy regulating the number or length of telephone calls that inmates in an ADMAX SHU can make to their attorneys. Consequently, the policy regulating the frequency and duration of legal telephone calls established by the MDC for September 11 detainees - while complying with very broad BOP national standards - severely limited the detainees' ability to obtain and consult with legal counsel.
As mentioned previously, most September 11 detainees did not have legal representation prior to their detention at the MDC (only 2 of the 19 detainees we interviewed had hired legal counsel before they entered the MDC). The MDC imposed a policy that permitted September 11 detainees housed in the ADMAX SHU only one legal call per week. This type of policy is more appropriate for pre-trial inmates who have obtained counsel prior to their incarceration rather than for inmates like the September 11 detainees who needed to find counsel.
Further complicating the detainees' efforts to obtain counsel, the pro bono attorney lists provided September 11 detainees by the INS through EOIR contained inaccurate and outdated information. As a result, detainees often used their sole legal call during a week to try to contact one of the legal representatives on the pro bono list, only to find that the attorneys either had changed their telephone number or did not handle the particular type of immigration situation faced by the detainees. In addition, detainees complained that legal calls that resulted in a busy signal or calls answered by voicemail counted as their one legal call for that week. When questioned about this, MDC officials gave differing responses about whether or not reaching an answering machine counted as a completed legal call. We believe that counting calls that only reached a voicemail, resulted in a busy signal, or went to the wrong number was unduly restrictive and inappropriate.
In addition, the manner in which the MDC inquired whether the detainees wanted to place a legal call was unclear and inappropriate. In many instances, the unit counselor inquired whether September 11 detainees in the ADMAX SHU wanted their weekly legal call by asking, "are you okay?" For some period, several detainees told the OIG that they did not realize that an affirmative response to this rather casual question meant they opted to forgo their legal call for that week. We believe the BOP should have asked the detainees directly "do you want a legal telephone call this week?" rather than relying on the detainees to decipher that a shorthand statement "are you okay?" meant "do you want to place a legal telephone call?"
Our review determined that the MDC officials recognized their obligation to permit representatives from foreign consulates to visit with detainees and established a clearance procedure to facilitate these visits. However, we found that consular representatives experienced the same difficulties as attorneys in obtaining access to detainees due to the BOP's categorization of the detainees as WITSEC inmates. In addition, the MDC's classification of detainee calls to their consulates as "social calls" severely limited the detainees' ability to contact their consulates in a timely manner, given the MDC's limit of one social call per month for detainees.
Fifth, the restrictive BOP policies and the classification of September 11 detainees also hindered family visits. Although MDC management tried to train reception area staff on proper procedures for granting visitation to detainee family members, problems persisted even many months after September 11.
Sixth, with regard to allegations of physical and verbal abuse, we concluded that the evidence indicates a pattern of abuse by some correctional officers against some September 11 detainees, particularly during the first months after the attacks. Most detainees we interviewed at the MDC alleged that MDC staff physically abused them. Many also told us that that MDC staff verbally abused them with such taunts as "Bin Laden Junior" or with threats such as "you will be here for the next 20-25 years like the Cuban people." Although most correctional officers denied such physical or verbal abuse, the OIG's ongoing investigation of complaints of physical abuse developed significant evidence that it had occurred, particularly during intake and movement of prisoners.130
Seventh, MDC staff failed to inform detainees in a timely manner about the process for filing complaints about their treatment. Only 1 of the 19 detainees we interviewed said he received a facility handbook when he arrived that described the formal complaint process. Ten detainees told the OIG they did not learn about the complaint resolution process until they received their facility handbook 4 to 6 months after arriving at the MDC.
The Associate Warden for Programs told the OIG that all September 11 detainees received a facility handbook when they were processed into the MDC. Yet, even if the detainees received handbooks, staff apparently confiscated them as unacceptable items to retain in their ADMAX SHU cells. In addition, we found that a 2-page summary of MDC policies distributed to many of the detainees did not contain information about how to file a formal complaint. The haphazard fashion in which MDC staff handled dissemination of the facility handbook impeded the detainees' ability to seek review for their complaints about conditions of confinement at the MDC. If the detainees were not permitted to keep the facility handbook in their cells for security reasons, the MDC's 2-page summary of facility policies should have included information that described the process for filing a formal complaint.
Eighth, MDC staff appropriately took affirmative steps to prevent potential staff abuse against September 11 detainees - and protect MDC staff from unfounded allegations of abuse - by installing security cameras in each detainee's cell and by requiring staff to videotape all detainee movements outside their ADMAX SHU cells. However, the BOP's decision to permit MDC staff to destroy or reuse these videotapes after 30 days hampered the usefulness of the videotape system to prove or disprove allegations of abuse raised by individual detainees. We understand the difficulty in storing the hundreds of videotapes the MDC accumulated after several months of taping the detainees. But the decision to recycle or destroy the videotapes created problems regarding allegations of physical abuse at the MDC. Detainees were unable to use videotape evidence to support allegations of abuse filed more than 30 days after an alleged incident. Similarly, MDC staff had more difficulty refuting abuse allegations raised by detainees if the complaint was filed more than 30 days after the incident.
Given the proactive steps taken to prevent or document incidents of physical abuse against September 11 detainees, we believe rescinding the videotape retention policy was unwise. If BOP and MDC management wanted to refute detainee allegations of abuse using videotape evidence, it was shortsighted on their part to assume that all such allegations would be made and resolved within 30 days.
Ninth, we found that recreation offered to the September 11 detainees was limited due to BOP security policies, the limited number of recreation cells within the ADMAX SHU, and lack of proper clothing that led detainees to regularly refuse recreation because it was offered most often in the early morning hours when it was colder in the open-air recreation cells.
Tenth, MDC staff subjected the September 11 detainees to having both lights illuminated in their cells 24 hours a day for several months longer than necessary, even after electricians rewired the ADMAX SHU range. Our review determined that, despite the initial representations to us by MDC officials, the MDC was able to reduce the amount of light in an individual detainee's cell as early as November 2001, but instead kept both cell lights illuminated until at least mid-March 2002. Eighteen of the 19 detainees we interviewed complained to the OIG about the difficulty of sleeping with both lights illuminated 24 hours a day, citing exhaustion, depression, stress, and sleep deprivation. The MDC had little reason for keeping the lights constantly illuminated for as long as it did.
In sum, we recognize the uncertainties and confusion surrounding the initial policies and treatment relating to these September 11 detainees. Much about these detainees was unknown, and the BOP had to accept the FBI's loosely applied assessment of these detainees as "of interest" to the terrorism investigation. However, while we fault the FBI for the slowness of the clearance process, we believe the blackout and the initial WITSEC designation that the BOP imposed for several weeks was excessive, particularly because many of these detainees had no counsel or any contact with families. We also believe that the BOP instituted excessively restrictive policies on the detainees, particularly regarding telephone privileges. In addition, the BOP did not provide adequate information about the location of the detainees to the detainees' attorneys or their family members. These policies hindered the detainees' ability to obtain and consult with legal counsel and were more appropriate for detainees who had attorneys prior to arriving at the MDC. We also believe that some of the detainees were subject to physical or verbal abuse. Finally, we believe that some of the conditions of confinement were unnecessarily severe, such as two lights constantly illuminated in the detainees' cells. While the chaotic situation and the uncertainties surrounding the detainees' role in the September 11 attacks and the potential for additional terrorism explain some of these problems, they do not explain or justify all of them. We believe that the Department and the BOP should consider these issues carefully in an effort to avoid similar problems in the future.
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