Following the attacks of September 11, the Department of Justice launched an extensive effort aimed at "apprehending those responsible for the September 11 attacks and ...detecting, disrupting, and dismantling terrorist organizations."6 Thousands of Federal Bureau of Investigation (FBI) agents, working with other federal, state and local agencies, have been conducting an unprecedented investigation into terrorist activities in the U.S.
Determined to move swiftly given the urgency of the situation and public pressure to show results, the Department of Justice began a process of questioning thousands of people about whom there were "indications" they might have information about or links to terrorist activity.7 Our research suggests that the "indications" that triggered questioning in many cases may have been little more than nationality, religion, and gender.8 As of July 2002, the September 11 investigation had not yielded any criminal indictments for crimes connected to terrorist activity.9
Some 1,200 Muslim non-citizens questioned by federal agents in connection with the September 11 investigation were subsequently taken into custody. The vast majority was arrested by the Immigration and Naturalization Service (INS) for immigration law violations, e.g. working on a tourist visa, that had nothing to do with terrorism. Prior to September 11, such violations would not have warranted continued detention; persons arrested would have been quickly released on bail pending final decision on deportation. But immigration violations were the only possible legal basis (other than material witness warrants) for detaining persons identified as of interest to the September 11 investigation while the Department of Justice continued investigating whether they had information about or links to terrorist organizations. The criminal law in the U.S. rightfully does not permit preventive detentions for investigative purposes.10 The Department of Justice turned to the immigration law system to conduct what has been called a "campaign of mass preventive detention."11 Almost all of the post-September 11 immigration detainees-whom the government has called "special interest" detainees-were ultimately deported or released on bond-sometimes after months of detention-after the Department of Justice concluded they had no connection to terrorist activities or groups.
Almost all of the "special interest" detainees whose nationalities were revealed by the Department of Justice on January 11, 2002 came from countries in South Asia, the Middle East, and North Africa, as shown on the graph below. The largest group of detainees (248) was from Pakistan, followed by Egypt, 100, and Turkey, fifty-two. Some of the nationals of countries in North America and Europe who were classified as "special interest" cases were naturalized citizens and were in fact also born in South Asia, the Middle East, and North Africa. The Department of Justice has not released the nationalities of post-September 11 detainees charged with federal or state crimes or held on material witness warrants and they are therefore not included in the graph below.
Source: INS detainees defined as "special interest" cases on a list released by the Department of Justice on January 11, 2002.
It is not surprising that the vast majority of those detained in connection with the September 11 investigation are non-citizens from those geographic regions. The nineteen alleged hijackers were all Muslim men from Middle Eastern countries and the U.S. government asserts their attacks were orchestrated by al-Qaeda, a diffuse network of Sunni Islamist militants headed by Osama bin Laden that has heavily (although not exclusively) recruited operatives in or from Middle Eastern and South Asian countries. It would be reasonable for law enforcement agents to assume that other members of al-Qaeda or their allies in the United States might possess similar characteristics. But it is unreasonable to assume that nationality, religion, and gender should suffice to identify suspicious individuals.
The Department of Justice claims that the "special interest" detainees "were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity.... For example, they may have been questioned because they were identified as having interacted with the hijackers, or were believed to have information relating to other aspects of the investigation.... In the course of questioning them, law enforcement agents determined, often from the subjects themselves, that they were in violation of federal immigration laws, and, in some instances, also determined that they had links to other facets of the investigation."12 Our research, press accounts, and research by other organizations suggests, however, that the "indications" that triggered questioning and subsequent arrest in many cases may have been little more than a form of profiling on the basis of nationality, religion, and gender. Being a male Muslim non-citizen from certain countries became a proxy for suspicious behavior. The cases suggest that where Muslim men from certain countries were involved, law enforcement agents presumed some sort of a connection with or knowledge of terrorism until investigations could subsequently prove otherwise.
Using nationality, religion, and gender as a proxy for suspicion is not only unfair to the millions of law-abiding Muslim immigrants from Middle Eastern and South Asian countries, it may also be an ineffective law enforcement technique. The U.S. government has not charged a single one of the thousand-plus individuals detained after September 11 for crimes related to terrorism. Such targeting has also antagonized the very immigrant and religious communities whose cooperation with law enforcement agencies could produce important leads for the investigation. Additionally, a series of cases in which there is more substantive evidence of links to acts of terror strongly suggests that a national origin terrorist profile is flawed. Zacarias Moussaoui, "the twentieth" hijacker, is a French citizen, Richard Reid, the "shoe bomber," is a British citizen, and José Padilla, aka Abdullah Al Muhajir, "the dirty bomber," is a U.S. citizen of Puerto Rican descent.13
Some of the "special interest" cases were originally identified for questioning and detention simply because spouses, neighbors, or members of the public said they were "suspicious" or accused them without any credible basis of being terrorists.
· On November 1, 2001, two FBI agents went to the workplace of a Palestinian civil engineer in New York City. They informed him that they had received an anonymous tip that he had a gun-which was not true. The engineer suspects that a contractor with a grudge against him sent the tip to the FBI. Five days later, INS agents came to his workplace and arrested him for overstaying his visa. The man's visa had indeed expired but he had applied for an adjustment of status; he was therefore legally in the country. He received a visa extension from the INS office in Vermont while he was detained. He was incarcerated for twenty-two days before being released on bond.14
· On November 25, 2001, after a resident of Torrington, Connecticut, told police that he had heard two "Arabs" talking about anthrax, police officers followed two Pakistani men suspected of having had the conversation to a gas station. The officers arrested the two men and also Ayazuddin Sheerazi, an Indian businessman who was minding the station temporarily for his uncle, the owner, and another man from Pakistan who happened to be there at the time. According to Sheerazi's attorney, the police never offered any reason for arresting Sheerazi or suspecting him of wrongdoing. He told Human Rights Watch, "Torrington is a small place, so they arrested the Arabs in the community." Even though Sheerazi was legally in the country the INS kept him eighteen days in detention before he was released on bond. (The caller who made the complaint to the police later failed a voluntary polygraph test).15
· Ahmad Abdou El-Khier, an Egyptian national, was picked up on September 13, 2001 after a hotel clerk told police that he appeared "suspicious." El-Khier was initially charged with trespassing in the Maryland hotel where he was staying, then held as a material witness, and finally charged with violating the terms of his visa on a previous visit to the United States. He was deported on November 30, 2001.16
· Mohammed Asrar, a Pakistani convenience store owner in Dallas, Texas, was arrested on September 11, 2001, after a neighbor called the police to report that he was an "Arab" who possessed guns and might be a terrorist. Asrar was arrested by the FBI at his convenience store and interrogated without an attorney for hours. He was charged with "possession of ammunition while a prohibited person." The fact that he had overstayed his visa rendered him a person prohibited from possessing ammunition. "[The prosecutors] think he's a terrorist, but when I ask them why, they won't tell me," said his court-appointed attorney. The attorney told Human Rights Watch that he believed innocuous facts, such as that Asrar, who is an avid photographer, took pictures of the Atlanta skyline, were seen with suspicion because Asrar is South Asian. "There is no question in my mind that the prosecution of this case and the treatment of my client are unique because of his ethnicity," he said.17
· Two Somali men, Ismael Abdi Hassan and Ahmed Shueib Yusuf, stopped their rental vehicle on November 26, 2001 to kneel in a parking lot and pray in Texas City, Texas. Responding to a call by a "nervous bystander" who reported "suspicious activity," Texas City police approached the men and subsequently arrested them after a search of their car uncovered a knife and a driver's license that appeared to have been altered.18
· Forty Mauritanians were arrested in Louisville, Kentucky apparently because someone had told the police that one of them was taking flying lessons, which turned out to be untrue, and another person said that one of the Mauritanians looked like one of the alleged hijackers. Bah Isselou told Human Rights Watch that he and others who were arrested at his home were not told the reason for the arrests or who was arresting them. They were driven to the INS office in Louisville, where they learned they had been arrested by the FBI and the INS. All but four of them were released the next day. On the third or fourth day after their arrest the four still in custody were informed they had been charged with overstaying their visas.19
Individuals from Muslim or Middle Eastern countries who encountered law enforcement randomly have been arrested and investigated in connection with the terrorist attacks:
· Upon arriving at the Newark, New Jersey train station, on October 11, 2001, Osama Sewilam asked a policeman for directions to his immigration attorney's office. The policeman asked him where he was from, and he replied, "Egypt." The policeman asked him if he had a visa. He said it had expired and that was why he was going to see his lawyer. The policeman took him to the police station and called the FBI. Sewilam was deported on March 15, 2002.20
· On September 21, 2001, Ahmed Alenany, an Egyptian physician, was approached by a police officer after he had stopped by the roadside in New York City to look at a map. According to Alenany, the police officer questioned why he had stopped in a no-parking zone, asked to see his visa, and discovered it had expired. The police officer also noted two pictures of the World Trade Center in Alenany's car. Alenany was subsequently charged with overstaying his visa even though he had filed for an extension before it expired, and thus, he was legally in the country. Without the advice of counsel, Alenany agreed to be deported because the judge suggested that pursuing his case would keep him in jail for many weeks. He was detained for more than five months while waiting to be removed from the country, during which time the government presented no evidence linking him to terrorism. He is now free but still faces possible removal from the country.21
· On October 11, 2001, Habib Soueidan, a Lebanese national, was selling pictures of the World Trade Center and U.S. flags on a New York City sidewalk when he was arrested for not possessing a vendor's license. He said police did not arrest three vendors of Chinese descent who were also there, even though he claimed that they did not have licenses either. Soueidan was charged with overstaying his visa and interrogated about the terrorist attacks.22
· Ali Alikhan, a citizen of Iran, was driving back to Colorado from vacation at Yellowstone National Park on September 15, 2001, when he was pulled over by a police officer for speeding. When the officer saw his name on the license, he asked Alikhan for his immigration documentation. The officer called the INS, who told him to arrest Alikhan for overstaying his visa. The officer arrested Alikhan and delivered him to the INS. Alikhan was interrogated several times about the September 11 attacks, always without an attorney. He was held in custody for 120 days, thirty-five of those in isolation, on the charge of overstaying his visa. He has been released on bond.23
Some Middle Easterners were arrested simply because they approached sensitive sites:
· Ansar Mahmood, a twenty-four-year-old Pakistani who was a legal permanent resident in the United States, decided to have his picture taken on October 9, 2001 to send to his family, according to a newspaper report. After work, he drove to the highest point in Hudson, New York, a hilltop overlooking the Catskills Mountains, but the view also included the main water treatment plant for the town. Two guards had been posted there that day because of the anthrax scare. While one of the guards took Mahmood's picture, the other called the police. The FBI's investigation of Mahmood uncovered that he had helped an undocumented friend from Pakistan find an apartment and he was charged with harboring an illegal immigrant.24
· Tiffanay Hughes, a U.S. citizen, and her husband, Ali Al-Maqtari, a Yemeni citizen, were searched and detained at an army base in Kentucky where she was a recruit on September 15, 2001, for no stated reason. She said that two days earlier, when she went to pick up her orders in Massachusetts, an officer told her repeatedly that she could not wear a hejab, a headdress used by many Muslim women. She protested and said it was a religious symbol. She said that the officer replied, "Don't let people know that you're Muslim. It's dangerous."25 Hughes believed that her identification card photo, in which she was wearing the hejab and which was allegedly posted at the army base guardhouse when she arrived there, and her speaking a foreign language (French) with her husband may have raised suspicions. Hughes was followed by three officers everywhere she went for almost two weeks while at the army base. The army encouraged her to take an honorable discharge, and she did so on September 28. Her husband was detained for fifty-two days, mostly in solitary confinement. He was charged with an immigration violation for ten days of "unlawful presence" in the United States while he changed from a visitor's visa to a visa sponsored by his wife. He had been released on bond.26
Some individuals may have been detained because their names resembled those of the alleged hijackers.27 "The only thing a lot of these people are guilty of is having the Arabic version of Bob Jones for a name," said Bob Doguim, an FBI spokesman in Houston.28
The Department of Justice has detained men from the Middle East on immigration charges after they contacted the agency volunteering information about the alleged hijackers. For example, two days after the attacks, Mustafa Abu Jdai, a Jordanian of Palestinian descent, contacted the FBI and told investigators he had answered an advertisement for a job posted at a Dallas, Texas, mosque and met in the spring of 2001 with several Arabic-speaking men who offered to pay him to take flight lessons in Texas, Florida, or Oklahoma. The FBI showed him photographs and he recognized one of the men as Marwan Al-Shehhi, one of the alleged hijackers. Abu Jdai was subsequently charged with overstaying his visa and remained in detention three months later pending deportation.29
6 Declaration of Dale L. Watson submitted April 9, 2002, in Detroit Free Press v. John Ashcroft, 195 F. Supp. 2d 948 (April 3, 2002), p. 2.
7 Ibid, p. 3.
8 Human Rights Watch sought meetings with FBI
9 and INS officials to discuss this and other issues raised in this report. The INS denied our request; the FBI never responded.
The only person who has been indicted for crimes related to the September 11 attacks-Zacarias Moussaoui-was already in detention before September 11.
10 Preventive detention is permissible only in highly limited situations not relevant here, e.g., for certain convicted sex offenders who have served their sentences but are still considered dangerous.
11 See David Cole, "Enemy Aliens," Stanford Law Review, vol. 54:950, 2002, p. 955.
12 Declaration of Watson submitted in Detroit Free Press v. Ashcroft, p. 3.
13 Zacarias Moussaoui, a French citizen of Moroccan descent, was arrested at a Minnesota flight school on August 17, 2001. He faces six conspiracy counts alleging that he conspired with Osama bin Laden and al-Qaeda to carry out the September 11 attacks. Richard Reid was arrested on December 22, 2001 after he allegedly tried to detonate a bomb concealed in his shoe aboard a Paris-Miami flight. He has been charged with attempted murder, attempted homicide, and attempted use of a weapon of mass destruction. José Padilla was arrested on May 8, 2002 on suspicions of participating in a plot to explode a bomb laden with radioactive material. He is now being detained without charges as an "enemy combatant."
14 Human Rights Watch interview with Palestinian civil engineer, Paterson, New Jersey, December 20, 2001. The detainee's name has been withheld upon request.
15 Sheerazi, whose family owns a carpet plant in Bombay, was in the United States beginning in May 1, 2001 on business. He had entered the country legally and had applied for an extension of his visa before it expired. After his release he returned to India. Human Rights Watch telephone interview with attorney Neil Weinrib, New York, New York, January 28, 2002.
16 Human Rights Watch telephone interview with Martin Stolar, Ahmed Abdou El-Khier's attorney, New York, New York, March 28, 2002. For newspaper accounts of this case see John Cloud, "Hitting the Wall," Time Magazine, November 5, 2001; vol. 158 no. 20. Patrick McDonnell, "Nation's Frantic Dragnet Entangles Many Lives Investigation: Some are jailed on tenuous `evidence,' their opinion of America soured," Los Angeles Times, November 7, 2001; Jodi Wilgoren, "Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, `Why?,'" New York Times, November 25, 2001; and Josh Gerstein, "Cases Closed: In Immigration Cases, Information on Hearings and Court Records Is Restricted," ABCNews.com, November 19, 2001.
17 The attorney said that Asrar has been held in a maximum-security area of jail, and, if convicted, faces three to four years in prison for the charge of illegal possession of ammunition. Human Rights Watch telephone interview with Robert Carlin, Texas, March 15, 2002.
18 When the police searched Hassan and Yusuf's truck they found a knife with a blade measuring a quarter inch more than Texas law allows. Yusuf was charged with possession of an illegal weapon. Reportedly, Hassan gave the police officers a driver's license on which the photograph appeared to have been burned, and where the height and weight listed far exceeded his. Hassan, who later presented a valid Texas identification card, was charged with possessing an altered driver's license. They were reportedly released on bail the next day. Kevin Moran, "Praying Muslims find selves in jail: 2 face charges over license, knife," Houston Chronicle, November 29, 2001; and "Two Muslims Arrested for Suspicious Activity," Associated Press, November 29, 2001.
19 The Mauritanians were detained on September 14, 2001. Isselou and the other three spent more than a month in jail before being released on bond while their deportation proceedings continued. Human Rights Watch telephone interviews with Bah Isselou, Florida, October 6, 2001; and with Dennis Clare, Bah Isselou's attorney, Louisville, Kentucky, October 23 and 31, 2001. For press reports on this case, see "Mauritanian in USA Recounts Arrest, Interrogation Over 11 September Attacks," BBC, September 29, 2001; David Firestone, "Federal Arrest Leaves Mauritanian Bitter," New York Times, December 9, 2001.
20 Human Rights Watch interview with Osama Sewilam, Hudson County Correctional Center, Kearny, New Jersey, February 6, 2002; and his attorney Sohail Mohammed, Clifton, New Jersey, November 5 and November 19, 2001.
21 Human Rights Watch interviews with Mohammed. For a press report of this case see Christopher Drew and Judith Miller, "Though not Linked to Terrorism, Many Detainees Cannot Go Home," New York Times, February 18, 2002.
22 Soueidan said that he had arrived in the United States in 1999 and married an American citizen but never regularized his immigration status. He was ordered deported on October 31 but remained in custody as of February 6, 2002. He had no attorney. Human Rights Watch interview with Habib Soueidan, Passaic County Jail, Paterson, New Jersey, February 6, 2002.
23 Human Rights Watch telephone interview with Ali Alikhan, Vail, Colorado, March 11, 2002.
24 Hanna Rosin, "Snapshot of an Immigrant's Dream Fading," Washington Post, March 24, 2002.
25 The U.S. military does not allow personnel to wear religious headdress when on duty and in uniform, as sanctioned by the Supreme Court in Goldman v. Weinberger 475 U.S. 503 (1986). Hughes was told she could not wear a hejab when she went to pick up her orders at the army's office in Massachusetts. At that moment she was not on duty; she was in fact not working for the military yet. Her starting day was a few days later, when she arrived at the army base in Kentucky, and on that day she was not wearing the hejab.
26 Human Rights Watch telephone interviews with Ali Al-Maqtari and Tiffanay Hughes, November 29, 2001, and with attorney Michael Boyle, October 24, 2001.
27 Men who may have been detained because of their last names include Abdulaziz Alomary, Al-Badr Al-Hazmi, Khalid S.S. Al Draibi, and Saeed Al Kahtani, according to press reports. Some were charged with immigration violations while others were eventually released. See Cloud, "Hitting the Wall"; Scot Paltrow and Laurie P. Cohen, "Government won't disclose reasons for detaining people in terror probe," Wall Street Journal, September 27, 2001; Robyn Blumner, "Abusing detention powers," St. Petersburg Times, October 15, 2001; Sydney P. Freedberg, "Terror sweep a battle of rights and safety," St. Petersburg Times, January 13, 2002; and Pete Yost, "3 Tunisians ordered out of U.S.," Associated Press, November 15, 2001.
28 McDonnell, "Nation's Frantic Dragnet Entangles Many Lives Investigation...."
29 Human Rights Watch interview with attorney Karen Pennington, Dallas, Texas, January 15, 2002; and Amy Goldstein et al., "A Deliberate Strategy of Disruption: Massive, Secretive Detention Effort Aimed Mainly at Preventing More Terror," Washington Post, November 4, 2001, p. A01. Cloud, "Hitting the Wall." See also the case of Eyad Mustafa Alrababah in the section, Misuse of Material Witness Warrants, in this report.
Some attorneys have said that cooperation with the FBI once in custody has not helped their clients. They complain that their clients have been kept in detention even after they were promised to be released if they took and passed polygraph tests, which they did.
30 Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).
31 Detroit Free Press v. John Ashcroft, 195 F, Supp. 2d 948 (April 3, 2002), p. 10.