"An immigration violation should not give the government license to rip up the rule book," said Jamie Fellner, director of Human Rights Watch's U.S. Program. "By restricting judicial oversight and blocking public scrutiny, the government has exercised virtually unchecked power over those it has detained."
The ninety-five page report, "Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees," is based on Human Rights Watch interviews with scores of current and former detainees and their attorneys. The report provides the most comprehensive analysis yet of the Justice Department's treatment of non-citizens swept up in the post-September 11 investigation.
Human Rights Watch found that the U.S. government has held some detainees for prolonged periods without charges; impeded their access to counsel; subjected them to coercive interrogations; and overridden judicial orders to release them on bond during immigration proceedings. In some cases, the government has incarcerated detainees for months under restrictive conditions, including solitary confinement. Some detainees were physically and verbally abused because of their national origin or religion.
Some 1,200 non-citizens have been secretly arrested and incarcerated in connection with the September 11 investigation, although the government has not disclosed the exact number. The vast majority are from Middle Eastern, South Asian, and North African countries. The report describes cases in which random encounters with law enforcement or neighbors' suspicions based on no more than national origin and religion led to interrogation about possible links to terrorism.
At least 752 men were then held on immigration charges while the government continued to investigate them. Turning the presumption of innocence on its head, the Department of Justice kept them in detention until it decided they had no links to or knowledge of terrorism. None of the 752 men has been indicted for terrorist-related crimes. Most were ultimately removed from the United States.
Using immigration law violations to detain these men while they were criminally investigated enabled the Justice Department to deny non-citizens their rights under U.S. criminal law - for example, the right to court-appointed counsel and the right to be promptly charged after arrest. In some cases, the Justice Department flouted regular procedures to keep non-citizens in the custody of the Immigration and Naturalization Service (INS) on the off chance that they might be found to be engaged in terrorism, a practice that amounts to unlawful "preventive detention."
"The U.S. government has failed to uphold the very values that President Bush declared were under attack on September 11," said Fellner. "It has ignored basic restraints on a government's power to detain that are the hallmark of free and democratic nations."
Human Rights Watch also criticized the U.S. government for blocking the public's right to know what its government is doing. Secret arrests and secret hearings are incompatible with core democratic values of openness, government accountability, and the rule of law.
Human Rights Watch calls on the U.S. government to:
- Immediately release the names of all persons detained since September 11 in connection with the terrorism investigation, and reverse its policy of secret hearings;
- Inform all INS detainees of the charges against them within forty-eight hours of arrest or release them, and rescind the rule that permits indefinite delay in charging INS detainees in "exceptional circumstances;"
- Advise all INS detainees who are questioned about terrorism of their right to remain silent, to have an attorney present during questioning, and to have one court-appointed if needed; and
- Comply immediately with all judicial orders to release detainees on bond, and stop keeping persons in INS detention until law enforcement decides that they are innocent of terrorist links.