Analysis of the Second Response by the Department of Justice to Recommendations in the Office of the Inspector General's June 2003 Report on the Treatment of September 11 Detainees
Office of the Inspector General
November 21, 2003
Our core mission at the Department of Homeland Security is not just to protect America's assets-our buildings and airports and power plants-but to protect America and our way of life. We are committed to ensuring that as we take aggressive measures to improve our nation's security, we will implement those measures in ways that respect our civil rights and civil liberties.
In this context, the Department of Homeland Security (DHS) takes very seriously the findings and recommendations contained in the Department of Justice Inspector General's report (DOJ OIG report) regarding September 11 detainees. Of course, the report analyzes events that took place before the formation of our Department. Nevertheless, the report is highly relevant to our work. As you know, DHS assumed many of the immigration functions that were, during that critical time period, part of the Justice Department. We are working closely with our outstanding colleagues in DOJ as we manage together this major reorganization of the federal government. The two agencies working together to establish effective means of coordination and communication in a number of areas, including with regard to situations involving aliens of interest to terrorism investigations.
As described in this memorandum, we have taken significant steps to remedy concerns identified by the Inspector General regarding the handling of aliens in the aftermath of September 11. Some of our actions preceded the findings by the Inspector General while others were developed after careful review of the report and recommendations. Moreover, we consider this and on-going process-long after we have addressed the recommendations by the Inspector General in this report we will continue to review our policies and procedures to ensure that we carefully respect the civil rights and civil liberties of all people in the United States.
On June 2, 2003, the DOJ OIG issued the report, "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of September 11 Attacks." The OIG report examined the treatment of seven hundred and sixty-two aliens detained in connection with DOJ's terrorism investigation. The report identified concerns with respect to: the length of the detainees' confinement; the process to clear individual detainees of a connection to the September 11 attacks or terrorism in general; bond determinations; the removal process and the timing of removal; and conditions of confinement, including access to legal counsel. The DOJ OIG made twenty-one recommendations to DOJ and DHS related to the issues discussed in the report.
On June 17, 2003, you sent me a memorandum stating that the DHS Office of Inspector General (DHS OIG) would monitor the recommendations made by the DOJ OIG to ensure that DHS takes appropriate and corrective action.
On August 4, 2003, I provided you with DHS's interim responses to the OIG report. By memorandum on July 21, 2003, the Deputy Attorney General, on behalf of the Attorney General's office, the Federal Bureau of Investigation (FBI), and the Bureau of Prisons (BOP), provided the DOJ OIG with responses.
On September 4, 2003, the DOJ OIG sent a letter and report to DOJ and DHS analyzing each agency's responses to the recommendations. The analysis noted that both agencies are taking the OIG recommendations and taking steps to address many concerns raised by the report. While the DOJ OIG concluded that DHS responses adequately addressed some recommendations, it rightly concluded that additional information is necessary to address others. The purpose of this memorandum is to provide that additional information.
II. SUMMARY OF DHS ACTIONS TO ADDRESS THE OIG REPORT
Well in advance of the release of the OIG Report, DHS and its Border and Transportation Security Directorate (BTS) had initiated a series of actions and policy changes that address several of the OIG's findings and recommendations. The OIG report served as an additional catalyst for a reevaluation of policies and practices surrounding the detention of aliens in the context of events of national impact. Over the past several months, we have carried out a comprehensive internal review of immigration-related operations in DHS. Working at my direction, the review has been led by C. Stewart Verdery, Jr., the Assistant Secretary for Border and Transportation Security Policy and Planning; Daniel W. Sutherland, the Department's Officer for Civil Rights and Civil Liberties; and, Victor X. Cerda, the Acting Legal Advisor for BTS's Immigration and Customs Enforcement Bureau (ICE). As part of this review, we met with and considered the views of a coalition of civil rights and civil liberties groups that expressed concerns about the government's handling of the investigations and detentions of aliens in the period following September 11. We also received insight from scholars who have studied the post-September 11immigration measures.
While we provide a specific response for each of the OIG's recommendations, our actions fall into five broad categories.
First, we are diligently working to improve coordination between DHS and DOJ. Many of the issues discussed in the OIG report relate to issues of communication between the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS) in the weeks and months following September 11, 2001.1 It is critical to remember how devastating the events of September 11 were to those who were responsible for enforcing our nation's laws. Numerous government locations had to be evacuated, including law enforcement offices and immigration detention facilities. When anthrax was mailed to several government facilities, the work was made even more difficult. Throughout these weeks and months, federal investigators, intelligences analysts, detention officers, prosecutors, and judges performed under extremely difficult circumstances. America is proud of the heroic and courageous work done by our country's law enforcement community.
While recognizing the incredible work done during that time period under difficult circumstances, it is appropriate to make changes in policy to ensure that our communications and coordination are improved in case such an event is repeated. One of the critical items that we are addressing is coordination between DOJ, primarily the FBI, and DHS's law enforcement officers and attorneys. DHS is discussing with DOJ a proposed memorandum of understanding (MOU) that would improve our coordination and flow of communications. Our discussions are centering on the need for a concrete set of procedures to handle a large-scale influx of alien detainees who may present national security risks. We believe that these new policies and procedures would significantly improve coordination between these agencies with regard to the detention of aliens during times of national impact.
Second, we will institute changes in policy to ensure that aliens who are arrested are informed of the charges against them in a timely fashion.2 The OIG concluded that immigration officials did not promptly serve some of the detainees with documents explaining the charges filed against them. According to the OIG Report, at least twenty-five percent of detainees were held more than three days without being provided a reason for their arrest. DHS is taking steps necessary to formalize the process for ensuring that aliens are promptly informed of the charges against them. As explained below, we will soon issue guidance aimed at formalizing the practice of providing service to the alien of a notice of charges within 72 hours of the time an alien has been arrested and detained. If specific "extraordinary circumstances" are present, the charging decision and notice to the alien can be served within an additional short period of time. The guidance will define what is intended by extraordinary circumstances and provide that the notice be served as soon as practicable.
A related issue is the OIG's concern that immigration headquarters office and field offices were not sufficiently coordinated with respect to which office was responsible for issuing the notices of charges. As explained below, DHS will issue procedures that will localize the initial clearance of the Notices to Appear. The procedures will also state that local offices will be responsible for serving the Notices to Appear in all but a limited number of cases-cases involving national security and related grounds. We are confident that this division of responsibilities will ensure a more timely and efficient process of notifying aliens that are detained of the charges against them.
Third, we are committed to ensuring the DHS independently reviews the individual circumstances of each case in which the FBI requests detention solely based upon information regarding an alien's possible association to terrorism. Directions have been give that DHS officers and attorneys carefully study the underlying facts in each case and make assessments as to both the necessity for detention and the appropriate conditions of confinement in every case. By doing so, the agency will properly exercise its responsibilities concerning the arrest and detention of aliens. This will also ensure that ICE can make the proper recommendations to the immigration courts on bond, detention and removal. This independent assessment is essential because ICE attorneys are officers of the court and must have confidence in the representations made to the court.
Fourth, we have already taken strong steps toward monitoring and oversight of the conditions of confinement for detainees. ICE's Detention and Removal Office (DRO) issued a new "detention standard" in July 2003 that ensures that immigration and customs enforcement officials visit detainees regularly to monitor conditions of confinement and address concerns. The OIG has concluded that this detention standard resolves the recommendations related to conditions of confinement. Nevertheless, we are committed to revisiting our detention practices to ensure that they are both strong and fair. This review of our detention policies is on-going. The Officer for Civil Rights and Civil Liberties will continue to work closely with DRO on this project.
Finally, we are committed to strengthening our efforts to conduct post-order custody reviews. The OIG recommended that DHS improve efforts to review the cases of those aliens detained for more than 90 days after receiving final orders of removal. We will ensure that post-order custody reviews are conducted consistently, and, as described below, will issue new guidance to ICE field offices to guarantee that these reviews are completed.
By strengthening our policies and practices in these five primary areas, we believe that DHS furthers its goals of strengthening national security and upholding the rule of law.
III. SPECIFIC RESPONSES TO THE DOJ OIG RECOMMENDATIONS
The following are DHS's specific responses to recommendations that apply to areas in which DHS has jurisdiction.
Enhancing Communications and Coordination
Procedures and a form to annotate the charging determination and service of the NTA will be developed and disseminated to the field. This guidance will be issued along with the final policies and procedures negotiated with the DOJ.
Issues of Concern During Times of National Impact
Over the past several months, the Department of Homeland Security has undertaken a close review of policies, regulations and procedures. The DOJ OIG report has served as a helpful tool in this process. The activities related to arrest, detention, litigation, and removal for which we are responsible will be carried out under a streamlined process should an event of national impact occur in the future. By implementing the policy changes outlined above, DHS intends to move forward in ways that support national security while honoring the rule of law.