Morrow v. District of Columbia.30
Detroit Free Press v. Ashcroft.31
James Madison, a framer of the U.S. Constitution and the fourth president of the United States, described openness as the bedrock of democracy: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.... A people who mean to be their own Governors, must arm themselves with the power which knowledge gives."32 The principle of openness became one of the bulwarks of American democracy, offering crucial protections against governmental abuse of power. It is particularly important where the liberty of individuals is at stake-in the criminal justice system as well as in immigration proceedings.
U.S. law has long recognized that secrecy is inconsistent with justice and democratic principles of government accountability. The courts have ruled repeatedly that criminal and administrative proceedings should be subject to public scrutiny to protect the defendant's or detainee's right to a fair trial as well as to uphold "the public's right to know what goes on when men's lives and liberty are at stake."33 Constitutional mandates for public trials are mirrored in international human rights law, which requires "public" hearings when an individual's rights and obligations will be determined by a court or tribunal.34
Since September 11, however, the U.S. Department of Justice has chosen to arrest, detain, and adjudicate the fate of over 1,000 people under a veil of secrecy. It has refused to release the names of most persons arrested in connection with its September 11 investigations, although the names of arrestees are traditionally public, and it has shut the public out of immigration proceedings against those individuals, although such proceedings have long been open.35 Department of Justice officials have insisted such secrecy is vital to their campaign against terrorism, but their arguments for such unprecedented and widespread secrecy are not persuasive, as we discuss below. There may well be compelling reasons in particular cases why the name of an individual detainee or the proceedings against him should be kept closed to the public. But the Department of Justice's unilateral decision to keep the public in the dark about arrests and administrative proceedings against all non-citizens swept up in the September 11 investigation cannot be squared with principles of justice and democratic accountability.
Secrecy comes with a high price. It has bred questions about the legality of the detentions and the fairness of the treatment of non-citizens. By shielding its acts from public scrutiny, the U.S. government has cast a cloud of suspicion over the appropriateness of its actions and has exacerbated fears among the Middle Eastern and South Asian communities in the United States from which most of the post-September 11 detainees have come.36
Secret detentions are antithetical to U.S. tradition and fundamental principles of international human rights.37 Yet the Department of Justice has refused to provide a complete accounting of the number of those detained during its investigation of the September 11 attacks, their names, and their places of detention.
On November 5, 2001, the Department of Justice of Justice stated that 1,182 individuals had been arrested in connection with the September 11 investigation and that most of them remained in custody at that time.38 The government has never provided a clear explanation for the disparity between the figures it released in November and June, nor has it indicated the number of arrests since November.39
The total number of persons detained in connection with the September 11 investigation may never be known. The withholding of the identities of those charged with immigration violations in the context of the September 11 investigation-called "special interest" cases in government documents-makes it impossible to check the accuracy of the numbers released by the Department of Justice, but there are indications that more people have been arrested than the government has recognized. In addition, the Department of Justice has refused to say how many individuals have been held as material witnesses and has stated that it does not maintain records of those initially detained as part of the September 11 investigation and then held on state or local criminal charges.40
Initially, the Department of Justice refused to provide any details regarding the identity of those detained in connection with the September 11 investigation. After considerable public pressure, requests by members of Congress, and a Freedom of Information Act (FOIA) lawsuit filed by twenty-two Arab-American, Muslim, and rights organizations, including Human Rights Watch, on January 11, 2002, the U.S. government released a limited amount of information about the post-September 11 detainees.41 The Department of Justice released two lists of selected information about 835 individuals detained in connection with the September 11 investigation. The department amended those lists three weeks later but has not publicly released any additional or updated lists since then.
One of the January 11 lists contained the names of individuals who had been charged with federal crimes.42 Of the 108 people identified as having been criminally indicted, only one-Zacarias Moussaoui-was charged with crimes related to the September 11 attacks. (As of this writing, Moussaoui was being tried in federal district court in Virginia; prosecutors believe he would have been the twentieth hijacker had he not been arrested before the attacks.) Most of the others on the list were charged with relatively minor crimes, such as lying to government investigators, fraudulent acquisition of a driver's license, and theft of a truckload of cereal. In addition, the Department of Justice subsequently said there were nine sealed cases involving people charged with federal crimes, the nature of which it has not revealed.43
The list of those charged with crimes may be incomplete. Human Rights Watch has learned of the cases of six individuals who were arrested after September 11, interrogated by the FBI in connection with the terrorist attacks, and later charged with crimes, whose names do not appear on the January 11 list.44The Department of Justice stated that the total number of individuals charged with federal criminal violations between September 11, 2001 and June 28, 2002 was 129.45
The second Department of Justice list contained limited information about 718 non-citizens arrested in connection with the investigation of the September 11 attacks and charged with immigration violations. The list did not provide their names or the locations of imprisonment, but simply indicated their nationalities, arrest dates, and the nature of the immigration charges, e.g. overstaying their visa. (The first page of the list is attached in Appendix A as a sample.)
The lists left many questions unanswered about the total number of individuals detained as part of the investigation of the September 11 attacks. As noted above, the lists refer to only 835 cases of the 1,182 detainees previously acknowledged by the Department of Justice. The Department of Justice has never clarified whether the 347 detainees not included in the January 11, 2002 lists continued in custody without charges ever being brought against them, were held on material witness warrants, or faced other, undisclosed charges.46
There are other problems with the January 11 lists. For example, according to statements by Department of Justice officials to the press, 460 of the 718 INS detainees on the list remained in custody on January 11.47 Yet, according to press reports, on January 18, there were about 600 "special interest" cases in custody in three facilities alone: 346 individuals were held at the Passaic County Jail in New Jersey, fifty-two were held at the Krome Service Processing Center in Miami, Florida, and about 200 at the Hudson County Correctional Center in New Jersey.48 Human Rights Watch also talked to "special interest" detainees who were held in facilities in other states at the time. The Department of Justice stated a total of 752 persons had been detained on immigration charges at some point between September 11, 2001 and June 24, 2002.49
The release of the January lists was the result of legal actions carried out by rights groups against the Department of Justice. As already indicated, a coalition of nongovernmental groups, including Human Rights Watch, filed a request for the disclosure of basic information about the post-September 11 detainees under FOIA on October 29, 2001. After the Department of Justice turned it down,50 the groups filed a lawsuit on December 5, 2001.
On August 2, 2002, a federal district court ordered the release of the identities of all those detained in connection with the September 11 investigation. The judge called secret arrests "a concept odious to a democratic society ...and profoundly antithetical to the bedrock values that characterize a free and open one such as ours."51 The court fully acknowledged the importance of protecting the nation's physical security in a time of crisis, but emphasized that "the first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship."52
The court rejected the government's rationale for keeping the names of the detainees secret. It found that the government failed to prove that disclosure of the names would hinder cooperation by the detainees in the investigation, and that it failed to prove that disclosure would provide a roadmap of the investigation to terrorist groups, or enable them to create false evidence. Indeed, the court noted that none of the INS detainees had been linked to terrorism, and therefore concluded that the government's recitation of harms regarding disclosure was "pure speculation."53 In ordering the release of the names, the judge concluded: "Unquestionably, the public's interest in learning the identities of those arrested and detained is essential to verifying whether the government is operating within the bounds of the law."54
The court ordered the Department of Justice to disclose the names of the detainees, including material witnesses, and their attorneys within fifteen days of the ruling. The judge allowed the withholding of the identities of detainees who requested confidentiality in writing, and asked that the government submit any judicial sealing orders that bar the disclosure of detainees' names in specific cases for in camera (in judge's chambers) review or provide an additional affidavit describing the legal basis of any sealing orders. She said that the Department of Justice does not have to disclose the dates and locations of arrest, detention, and release.
In response, the Department of Justice stated that the "ruling impedes one of the most important federal law enforcement investigations in history, harms our efforts to bring to justice those responsible for the heinous attacks of September 11 and increases the risk of future terrorist threats to our nation."55 The government is expected to appeal the decision and seek a stay of the order of disclosure.
The New Jersey chapter of the American Civil Liberties Union (ACLU) also filed a lawsuit against local authorities on January 22, 2002, seeking information on those held in New Jersey jails on immigration violations.56 On March 26, 2002, a New Jersey Superior Court judge ruled that the government's refusal to release the names and other basic information on immigration detainees violated a state law that requires jail officials to publish a list of all inmates in their facilities and ordered that the names be made public.57
In response to the New Jersey decision, and in an effort to override state or local laws requiring the release of information about detainees, the Department of Justice issued a new interim rule that prohibits state and local employees from disclosing names and other information relating to immigration detainees.58 The preamble to the rule expressly states that its aim is to supersede state or local law regarding the release of such information.59 A New Jersey appeals court concluded that the rule, as federal law, must prevail over state law and, therefore, it overturned the March 26 order by the New Jersey Superior Court to release the names.60 The ACLU has appealed this decision.
The new rule will not only frustrate efforts to determine how many post-September 11 detainees there are, and where they are held, but it will adversely affect the situation of all INS detainees, even those who have not been detained in connection with the September 11 investigation. INS detainees often have difficulty getting access to telephones to inform family, friends, and lawyers where they are held; the various INS offices often do not know who is detained where; and detainees are frequently moved without notice by the INS.61 Contacting detention centers directly is thus often the best way to determine where a person is in fact held. However, the new rule prohibits jail staff from telling relatives, friends, and attorneys whether the detainee they are looking for is incarcerated at their facility. For instance, a lawyer in Florida was denied access to his client pursuant to the new rule. Salman Salman's attorney called the Orange County jail in early July 2002 to find out whether his client, a "special interest" detainee, was being held there. Jail officials reportedly told him that he was not incarcerated at the jail, which was not true.62 In addition, the new rule may prevent nongovernmental organizations that provide pastoral care, legal advice, visitation, or other services to INS detainees from revealing any information about the detainees with whom they come in contact. This would hinder their ability to denounce human rights abuses, demand adequate detention conditions, and advocate on behalf of individual detainees.63
Access to detention facilities by independent monitoring groups such as Human Rights Watch helps ensure that detainees are treated in a fair and humane manner. Such scrutiny is particularly important when dealing with foreigners who for reasons of language, lack of political clout, difficulty retaining counsel-immigration detainees do not have the right to free counsel-, and unfamiliarity with the U.S. justice system may be more vulnerable to violations of these rights.
Human Rights Watch and other rights groups have visited facilities holding INS detainees many times prior to September 11.64 However, officials have denied access to most of the facilities that hold post-September 11 detainees, thus impeding independent monitoring of their treatment. The fact that these detainees were initially arrested on immigration charges in connection with the investigation of the September 11 attacks does not justify shutting the door to outside observers. On the contrary, independent monitoring is paramount because the connection of these particular detainees to the terrorist investigation has put some of them at risk of mistreatment by correctional officers and by other individuals in custody; this is especially true for those who share living quarters with accused or convicted criminals. In addition, the U.S. government has kept some of these detainees under particularly harsh detention conditions, as described in the chapter, Conditions of Detention, below.
Non-citizen detainees held in connection with the September 11 investigation have been held in federal as well as local facilities. Human Rights Watch was denied permission to visit two federal facilities reportedly holding many post-September 11 detainees, the Metropolitan Correctional Center (MCC) in Manhattan and the Metropolitan Detention Center (MDC) in Brooklyn, New York. We were given a limited tour of the Passaic County Jail in Paterson, New Jersey, and a more complete tour of the Hudson County Correctional Center in Kearny, New Jersey. Human Rights Watch's requests to visit the Denton County Jail in Texas, the Middlesex County Jail in New Jersey, and the Krome Service Processing Center in Florida have been pending for months.
The wardens of MCC and MDC rejected Human Rights Watch's requests for access with identical letters dated November 30, and December 5, 2001, respectively. Both letters stated that the events of September 11 required them to minimize "activities not critical to the day-to-day operations of the institution."65 Two months later, the warden of the MDC denied a second Human Rights Watch request to tour the facility. Human Rights Watch made the second request after receiving allegations of poor conditions and ill-treatment at the facility that were impossible to confirm or deny without access to MDC's premises and its staff.66 The warden also turned down similar requests by Amnesty International and by reporters who wanted to visit specific detainees at the facility.
The INS district director in Newark, New Jersey, denied Human Rights Watch access to the Hudson County Correctional Center in Kearny on November 30, 2001 and to the Passaic County Jail in Paterson on December 12, 2001, saying that interviewing detainees would not be feasible given the "extraordinary" circumstances. The INS district director subsequently changed her position and allowed Human Rights Watch and other groups to tour the two facilities on February 6, 2002.
INS and jail officials allowed a complete tour of the Hudson County Correctional Center. The tour of the jail in Passaic County was rushed and incomplete.67 The INS district director in charge of the visit refused a Human Rights Watch request to view an occupied housing unit, citing privacy and security concerns, although officials had permitted the group to view an occupied housing unit at the Hudson County Correctional Center.68 Detainees held at the Passaic County Jail at the time told Human Rights Watch that housing cells were cramped and that they were confined with accused or convicted criminals.
For almost fifty years INS regulations have mandated that deportation proceedings be presumptively open.69 Immigration judges, however, can close individual court proceedings if necessary to protect sensitive information or vulnerable individuals, for example, in cases of asylum seekers and battered spouses.70 The traditionally open nature of deportation proceedings is consistent with U.S. constitutional law. The U.S. Supreme Court has ruled that criminal and quasi-judicial administrative hearings should be open and public if such hearings have traditionally been open to the public and if a public hearing plays a significant role in the judicial process.71
The Department of Justice broke with this long-established practice of openness when it closed immigration proceedings for post-September 11 INS detainees. On September 21, 2001, pursuant to direction from the attorney general, Chief Immigration Judge Michael Creppy sent an internal memorandum to all immigration judges and court administrators detailing special, additional security procedures for certain cases.72 Under these special procedures, immigration judges are required to close hearings to the public, including family, friends, and the media.73 In addition, Creppy ordered that the special cases are not to be posted on court calendars outside the courtroom and are not to be included in information provided on the immigration courts' telephone information service. Courtroom personnel may not discuss the case with anyone and may not confirm or deny to anyone whether a case is on the docket or scheduled for a hearing.74 The Creppy memorandum also prohibits the release of the "Record of Proceeding" (the official file containing documents relating to a non-citizen's case) to anyone except for the detainee's attorney "assuming the file does not contain classified information."75 Neither detainees nor their attorneys, however, were precluded from publicly revealing information about the cases, including any evidence presented by the government during the hearings.
The attorney general made the decision to order the blanket closure of immigration hearings without any public notice or debate. Since the Creppy directive was released, the Department of Justice has not publicly revealed its criteria to determine when a case should be closed, and there is no procedure for the review of the decision to close a hearing. For more than nine months, the Department of Justice refused to say how many cases had been conducted behind closed doors. In July, in response to a Congressional request for information, it stated that as of May 29, 2002, 611 individuals had been subject to secret hearings, and 419 of them had more than one secret hearing.76 Some detainees have told Human Rights Watch that their hearings were initially closed but were opened later once they received "clearance" from the FBI, i.e. once the FBI determined they had no links to or knowledge of terror groups or the September 11 hijackers.77
Closing immigration proceedings implicates two distinct but interconnected constitutionally protected rights: the due process right of detainees to public trials when their liberty interests are being adjudicated, and the First Amendment right of access to quasi-judicial administrative proceedings by the public-including the press.78 Several lawsuits have been filed challenging the closure of immigration hearings as a violation of those rights. In two cases decided as of this writing, federal district courts ruled the blanket closure of immigration proceedings unconstitutional. International human rights law also provides for open hearings in administrative cases.79
Rabih Haddad, a citizen of Lebanon, was arrested on December 14, 2001 and charged with overstaying his visa. His first hearing, on whether he should be released on bond pending final adjudication of the charges against him, was closed to the public pursuant to the Creppy memorandum.80 Haddad sued the U.S. government arguing that holding his deportation proceedings in secret violated his constitutionally protected due process rights. The ACLU, four Michigan newspapers, and U.S. Representative John Conyers, also filed lawsuits, claiming exclusion from Haddad's hearings violated their right of access under the First Amendment to the U.S. Constitution.81 On April 3, 2002, a federal judge in Michigan concluded the blanket closure of removal hearings in "special interest" cases violated constitutional mandates.82 The judge quoted from an earlier decision that pointed out:
[I]n administrative proceedings of a quasi-judicial character the liberty and property of the citizens shall be protected by the rudimentary requirements of fair play. These demand "a fair and open hearing,"-essential alike to the legal validity of the administration regulation and to the maintenance of public confidence in the value and soundness of this important governmental process ...when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process.83
After reviewing the numerous cases affirming the right of access, the judge concluded:
It is important for the public, particularly individuals who feel that they are being targeted by the Government as a result of the terrorist attacks of September 11, to know that even during these sensitive times the Government is adhering to immigration procedures and respecting individuals' rights. Openness is necessary for the public to maintain confidence in the value and soundness of the Government's actions, as secrecy only breeds suspicions.84
The judge noted that the right of access is not unlimited. But the presumption of openness can only be overcome when closure directly serves a compelling interest and is narrowly tailored to achieve that interest. In light of the government's failure to articulate any specific reasons pertinent to Haddad's case for why his hearings must be closed, the judge ordered Haddad's hearings to be open and records of previous hearings to be released. The government appealed the court's ruling, but an appeals court forced it to release the transcripts and denied it an emergency stay to keep hearings closed pending appeal.85
Another federal district court judge in New Jersey ruled against the Department of Justice in a lawsuit challenging the closure of "special interest" case hearings brought by the New Jersey chapter of the ACLU and the New York-based Center for Constitutional Rights on behalf of three New Jersey publications. In declaring the blanket secrecy pursuant to the Creppy memorandum unlawful, the court in North Jersey Media Group v. Ashcroft noted the important public interests served by open judicial proceedings:
Promotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; serving as a check on corrupt practices by exposing the judicial process to public scrutiny; enhancement of the performance of all involved; and discouragement of perjury.86
In addition to noting the history of openness in deportation or removal proceedings, the court also found:
[T]he ultimate individual stake in [deportation] proceedings is the same as or greater than in criminal or civil actions. Moreover, the proceedings have undeniable similarities to judicial proceedings.... The parallels in both the nature of the right at stake and the character of the proceedings lead to the conclusion that the same functional goals served by openness in the civil and criminal judicial contexts would be equally served in the context of deportation hearings.87
As in the Haddad case, the court gave short shrift to the government's position, finding that it had failed to show that the blanket closure policy was narrowly tailored to serve a compelling interest. The court pointed out that the government's asserted interests in preventing disclosure of, e.g. the name of the detainee and the place of his arrest, were vitiated by the fact that nothing prevented the detainee himself from releasing that information publicly. The court also suggested that in camera (in a judge's chambers) disclosure of sensitive or classified material in individual cases might serve the government's interests more narrowly than the blanket closure policy of the Creppy memorandum. The judge ordered that deportation proceedings be open to the public, unless the government is able to show a need for a closed hearing on a case-by-case basis. The Department of Justice appealed the decision and the Supreme Court stayed the judge's order pending an appellate ruling.88
By depriving immigration judges of the authority to determine the need to close hearings on a case-by-case basis, the Creppy directive circumvents the authority of immigration judges. Not surprisingly, the judges themselves have complained that this policy reinforces "the public perception that due process is not available before Immigration Courts."89
On May 28, 2002, perhaps in response to having lost two federal court cases that challenged the blanket secrecy policy, the Department of Justice issued a new interim rule authorizing immigration judges to issue protective orders and seal records relating to law enforcement or national security information in individual cases. The new rule also authorizes judges to issue orders that prohibit detainees or their attorneys from publicly divulging the protected information.90 The new rule is "designed to work in tandem" with the measures announced in the Creppy directive and "in a limited sense, codify a portion of that authority by limiting what the respondent and his or her representatives may disclose about sensitive law enforcement and national security information outside the context of those hearings." 91
On its face, granting immigration judges the authority to issue protective orders sealing sensitive information is not problematic; it is a power possessed by federal courts and it enables immigration courts to protect legitimate law enforcement or national security concerns while still protecting the due process interests of immigration detainees. What is troubling, however, is language in the new rule ordering the immigration judges to "give appropriate deference to the expertise of senior officials in law enforcement and national security agencies in any averments in any submitted affidavit in determining whether the disclosure of information will harm the national security or law enforcement interests of the United States."92 The preamble to the rule points out that "innocuous" information can be sensitive in a broader intelligence context.93 Given the sweeping, general statements of national security and law enforcement interests made to justify closure of immigration hearings and refusal to release information about "special interest" detainees and the requirement of "deference," it remains to be seen whether immigration judges will require government officials to provide particularized justification for protective orders in individual cases. Vague assertions of connections with or knowledge of terrorist or other criminal activity should not be enough to conduct closed hearings and issue gag orders.
The U.S. government has relied on two arguments to justify keeping from the public the identity of INS detainees and closing the proceedings against them. It has asserted that the disclosure of such information would 1) hinder the September 11 investigation and 2) violate immigration detainees' privacy.
The Department of Justice has argued that disclosing the names and other information about post-September 11 detainees held on immigration charges and opening their immigration hearings to the public could compromise its terrorism-related investigations.
According to the Department of Justice, revealing the names of detainees and the place of their arrest might:
1) Lead to public identification of individuals associated with them, other investigative sources, and potential witnesses, whom terrorist organizations might then intimidate or threaten to discourage them from supplying valuable information.
2) Deter detainees from cooperating with the Department of Justice once they are released;
3) Reveal the direction and progress of the investigations by identifying where the Department of Justice is focusing its efforts.94
The Department of Justice has also argued that if the identities of INS detainees are made public,
... terrorists who learn that their associates or even people who know their associates have been detained [may] alter their plans in a way that presents an even greater threat to the United States. Official verification that a member has been detained and therefore can no longer carry out the plans of his terrorist organization may enable the organization to find a substitute who can achieve its goals more effectively, thereby thwarting the government's ability to frustrate ongoing conspiracies.95
The Department of Justice has offered similar arguments for closing the immigration hearings of "special interest" detainees. It maintains that public hearings would disclose information from which a terrorist organization could deduce patterns and methods of the investigation and thereby take steps to thwart it. According to Dale Watson, executive assistant director for Counterterrorism and Counterintelligence of the FBI, "[b]its and pieces of information that may appear innocuous in isolation can be fit into a bigger picture by terrorist groups."96 Watson has speculated about the many ways terrorist organizations could use knowledge revealed in a hearing. For example, "putting entry information into the public realm regarding all `special interest cases' would allow the terrorist organization to see patterns of entry, what works and what doesn't. It may allow them to have the information they need to alter methods of entry into the United States for terrorist members." He has argued that public hearings involving "evidence about terrorist links (or detainees where we are not even sure yet the extent of any terrorist links) could allow terrorist organizations and others to interfere with the pending proceedings by creating false or misleading evidence. Even more likely, the terrorist organizations may destroy or conceal evidence, tamper or threaten potential witnesses, or otherwise obstruct the ongoing investigations and pending prosecutions."97
The catalogue of adverse possibilities conjured by the government is impressive but unpersuasive. First, there are many cases, such as Haddad's, where the name of the detainee is already public. Moreover, nothing prevents the detainees, their families, or attorneys from revealing their detention-as many have done. As Michael Chertoff, assistant attorney general of the Criminal Division, pointed out in congressional testimony: "Everybody who is in detention ...is absolutely free to publicize their name through their family or through their lawyers. There's nothing that stops them from saying, `Hey, I'm being held in detention as part of this investigation.'"98 If releasing the names of detainees could hamper the investigation, as the Department of Justice maintains, "self-identifying" would logically hinder it, as well. Yet any detainee who is in fact a member of a terrorist organization is readily able to alert an associate to his detention.
Second, it is difficult to square the Department of Justice's contention that terrorist organizations are extremely sophisticated and could put together bits and pieces of information from hundreds of hearings around the country, with the argument that official disclosure would alert such organizations to who has been detained. Sophisticated terrorist groups likely already know through their own networks whether any of their members or allies have been arrested.
Third, revealing who has been detained would not reveal who is being watched, who is being wiretapped, or who is a member of a group that has been infiltrated.99 In other words, releasing the names of detainees would not reveal the full scope or pattern of the FBI's investigations, what the FBI knows or does not know.
Although the Department of Justice has repeatedly asserted that its terrorism investigation might be seriously harmed if the names of "special interest" detainees were publicly revealed, it nonetheless provided those names and place of detention, along with other information, to the embassies of the detainees' countries in fulfillment of its obligations under the Vienna Convention on Consular Relations.100 To our knowledge, the U.S. placed no secrecy restrictions on the information it provided the embassies. Indeed, several of those embassies subsequently provided the names, dates of arrest, charges, and places of detention for 130 detainees to the ACLU in response to its request.101 The embassies presumably have distributed the information to officials in their home countries, including Middle Eastern and South Asian countries, and it may have circulated widely.
The government's allegations of potential harm to the September 11 investigation might have more force if all or most of the INS detainees were involved in some way or had knowledge of terrorist organizations. Yet the Department of Justice has acknowledged that this is not the case. According to Department of Justice officials, the thousand-plus other "special interest" detainees, "were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States.... 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." (Emphasis added.)102 That some detainees might have links to terrorism is scant justification for closing the immigration proceedings of all the "special interest" detainees. Indeed, in February 2002,-two months before the filing of the Watson affidavit, which purported to justify the need for the closed hearings policy-the government declared that about half of the post-September 11 detainees charged with immigration violations were no longer of any interest to the investigation.103
The government's justification for blanket secrecy for hundreds of immigration hearings also sweeps too broadly. Its rationale would justify closing trials in any large criminal investigation. The Department of Justice's arguments would, for example, justify closing arrest rosters and trials in organized crime cases where there would be a danger that accomplices and associates might learn details about the progress made by law enforcement, tamper with evidence, and threaten witnesses. The U.S. justice system has mechanisms to ensure reasonable openness while preventing harm to an ongoing investigation, but has never allowed blanket secrecy over hundreds of cases on the mere allegation that criminals might learn something about the investigation if the prosecution were conducted publicly.
The government's second argument-that it does not release the names of INS detainees or conduct their hearings publicly to protect their privacy-also fails to withstand scrutiny. Attorney General Ashcroft originally contended at a hearing before the Senate Judiciary Committee on December 6, 2001, that federal legislation prohibited him from revealing the detainees' names and other information about them. During questioning, however, he was forced to concede that there was no such legislative prohibition.104 That concession, however, did not result in the department's release of the detainee information sought by Congress, the media, and rights groups.
While arguing against revealing all the names, the Department of Justice has nonetheless chosen to release the identities of several people whom it said were involved with the terrorist attacks (some of whom were subsequently cleared of any wrongdoing). For example, authorities identified Ayub Ali Khan and Mohammed Jaweed Azmath, who were held on immigration violations, as two key suspects in the investigation.105 A Chicago FBI agent said Nabil Al-Marabh, another INS detainee, was a terrorism suspect.106 Law enforcement agents also identified Al-Badr Al-Hazmi, who was held as a material witness.107
In response to the Freedom of Information Act lawsuit described above, the Department of Justice has cited a provision contained in the act that exempts the disclosure of documents that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."108 But arrests in the United States as well as immigration charges are traditionally a matter of public record, which precludes a reasonable privacy interest on the part of detainees. In a case brought under the New Jersey Right to Know Act-the state's equivalent of the federal Freedom of Information Act-seeking release of the names of INS detainees held in New Jersey facilities, the judge noted that personal information of those charged with crimes is routinely made public. Rejecting the government's argument that greater protection of privacy was required for anyone arrested in connection with the September 11 investigation, the court stated that "INS inmates have no more expectation of privacy than do other inmates. The fact of their arrest in connection with September 11 events, however notorious, does not cloak them with privacy rights denied to others arrested for horrific events, including child rape and murder."109
While the Department of Justice has argued that keeping the detainees' names and places of detention secret protects them from embarrassment and even retaliation, it has ignored the ways such secrecy harms the detainees. For example, secrecy has made it harder for agencies willing to provide affordable or free legal counsel to locate the detainees and make their services available to them.110 It has increased the isolation, fear, and helplessness felt by many detainees by making it harder for family and friends to find them-a difficulty compounded in some cases by limited access to telephones and frequent transfers from facility to facility experienced by some detainees.
The Department of Justice has also raised privacy arguments to justify closing to the public immigration hearings of September 11 INS detainees. The government has argued that detainees have a "substantial privacy interest" in keeping hearings closed because opening them "would forever connect [detainees] to the September 11 attacks. Given the nature of these investigations, the mere mention of their names in connection with these investigations could cause the detainees embarrassment and humiliation."111 This is a curious argument to make to justify excluding family members and friends who are already aware of the detainee's arrest. Even more bizarrely, the government has refused to open hearings even when detainees have requested it.112
Without even acknowledging the irony of its position, the Department of Justice forcefully raised the privacy argument in the case of Rabih Haddad, discussed above, even though his arrest and detention had been amply covered in the press and it was Haddad himself who was challenging the closure of his immigration proceedings. None of the dozens of detainees and their lawyers whom Human Rights Watch interviewed indicated they wanted closed hearings; some of the lawyers told us they believed closed hearings were detrimental to their clients' interests. Detainees' lawyers have said that the secrecy surrounding closed hearings raised suspicions that their clients were somehow linked to terrorism, even though during the hearings the INS never produced any evidence of those links, let alone charged them with anything but violating immigration laws and regulations.
The Department of Justice has contended that the release of basic information about the detainees "would not contribute meaningfully to the public's understanding of the inner workings of the government."113 According to the U.S. Supreme Court, the Freedom of Information Act's "basic policy of full agency disclosure ...focuses on the citizens' right to be informed about what their government is up to. Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose."114 Knowledge about government's activities is particularly important when "men's lives and liberty are at stake."115
the district court in Center for National Securities Studies v. United
States noted, the identity of the detainees is essential to public
assessment of the government's conduct of its September 11 investigation.116
That assessment will include consideration of the effectiveness of the
government's efforts as well as the extent to which it is abiding by U.S.
and international human rights law. Moreover, as discussed below, the arrest
and detention of INS detainees has been accompanied by persistent allegations
of violations of detainees' rights-including
arbitrary detention, lack of access to attorneys, physical mistreatment,
and harsh detention conditions. Without access to the detainees' names
and places of detention, the public has a truncated ability to determine
how well its government has been upholding basic constitutional and human
rights. Human Rights Watch's own efforts to verify the treatment of the
detainees was substantially hampered by not having the names and places
of detention of the detainees.
32Letter to W. T. Barry, August 4, 1822.
33Pechter v. Lyons 441 F. Supp. 115 (S.D.N.Y. 1977), p. 118.
34International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), entered into force Mar. 23, 1976, article 14(1). Proceedings may be closed to the public and media for all or part of a trial for reasons of "national security" or for other specified reasons. The United States ratified the ICCPR in 1992.
35The U.S. government has refused to disclose the names of September 11 detainees charged with immigration violations or held as material witnesses, while the regulations governing the U.S. criminal justice system have forced it to reveal the identities of 108 September 11 detainees charged with federal crimes unrelated to the attacks but arrested in connection with the investigation.
For brevity's sake, throughout this report we will use the term "post-September 11 detainees" to refer to persons arrested and held in detention in connection with the U.S. government's investigation into the September 11 terrorist attacks.
36Human Rights Watch tried for more than ten weeks to arrange a meeting with INS officials to discuss allegations of mistreatment and the findings contained in this report. On February 12, 2002, we wrote a letter requesting a meeting with INS Commissioner James Ziglar or his designate, which was followed by numerous phone calls. On April 26, 2002, the INS informed us that the new Executive Assistant Commissioner for Field Operations, Johnny Williams, was too busy to meet with us anytime in the foreseeable future. When Human Rights Watch asked if there would be anyone else with whom we could meet, we were told that Williams would be the only suitable person. We requested and received a letter recounting the INS's formal refusal to meet with us, which read, in part:
At the present time, neither I nor Anthony Tangeman, the Deputy Executive Associate Commissioner for Detention and Removal Operations, are able to meet with you concerning the matters which you raised in your letter.... We would appreciate receiving copies of your report.
Letter from Executive Associate Commissioner Johnny Williams to Human Rights Watch, April 29, 2002.
On April 29, 2002, Human Rights Watch sent a letter to Dale Watson, executive assistant director for counterterrorism and counterintelligence, Federal Bureau of Investigation, requesting a meeting with him to discuss the findings of this report, but we never received a response.
37The Declaration on the Protection of All Persons from Enforced Disappearances, a non-binding resolution adopted by the U.N. General Assembly in 1992, provides that accurate information on the detention of persons and their places of detention, including transfers "shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned." [Emphasis added.] G.A. Res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (December 18, 1992), Art. 10(2). Furthermore, an official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention and steps shall be taken to maintain similar centralized registers, information in which shall be made available to the persons noted above. Ibid., article 10(3).
38Dan Eggen and Susan Schmidt, "Count of Released Detainees Is Hard to Pin Down," Washington Post, November 6, 2001; "Two Branches at Odds on Detainees' Status," Philadelphia Inquirer, November 6, 2001; and Amy Goldstein and Dan Eggen, "U.S. to Stop Issuing Detention Tallies," Washington Post, November 9, 2001.
39In testimony before the Senate Judiciary Committee, Michael Chertoff, assistant attorney general of the Criminal Division, was asked about the disparity between the Department of Justice's assertion that more than 1,100 people had been detained in the terrorism investigation until the beginning of November and its statement at the end of January that less than 600 had been charged with federal crimes or immigration violations. Chertoff said:
I can't give you the number relating to material witnesses on grand jury because I am forbidden by law. I don't know the number of people being held in state and local custody because, frankly, we don't track that. And so without those two numbers, I cannot do the mathematics necessary to subtract from the 1,100.
Testimony of Michael Chertoff, assistant attorney general of the Criminal Division, before the Senate Judiciary Committee at its hearing on "DOJ Oversight: Preserving Freedoms While Defending Against Terrorism," November 28, 2001.
Regarding this issue, James Reynolds, chief of the Terrorism and Violent Crime Section in the Criminal Division of the Department of Justice, declared:
While DOJ attempted at one time to keep and publicly release a count of all persons contacted by law enforcement in connection with the attacks, even if they were just briefly stopped, it became clear that this was impractical. Eventually, DOJ concluded that it was better to focus on the individuals who were formally taken into custody because they were believed to have violated federal criminal law or the immigration laws, or were believed to have information material to grand jury investigations emanating from the events of September 11.
Supplemental Declaration of James S. Reynolds submitted February 5, 2002, in Center for National Security Studies v. U.S. Department of Justice, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002), p. 1.40Ibid.
41Requests made in an October 31, 2001 letter sent by seven lawmakers, including the chair of the Senate Judiciary Committee, to the Department of Justice seeking information about the detainees were only partially met and left the lawmakers unsatisfied. Senator Russell Feingold, who had initiated the requests, stated, "At a minimum, the department can and should produce a list of who is being held in connection with this investigation and why." Josh Gerstein, "DOJ won't identify Sept. 11 detainees," ABCNews.com, November 22, 2001.
The Freedom of Information Act (FOIA), which was passed by Congress in 1966 and amended in 1974, creates procedures whereby any member of the public may obtain certain records of the agencies of the U.S. federal government. The FOIA's primary objective is disclosure. Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8 (2001).
42The list of persons charged with federal crimes released on January 11, 2002 included ninety-two names. On February 5, the Department of Justice amended the list with "the names and other information about sixteen individuals who were inadvertently omitted from the original" list. Robert McCallum, "Defendant's Notice of Filing of Amended and Supplemental Exhibits," submitted February 5, 2002, in Center for National Security Studies v. U.S. Department of Justice, p. 1. Sixty-two of the 108 appeared to remain in detention as of January 11, 2002.
43Supplemental Declaration of Reynolds submitted in Center for National Security Studies v. U.S. Department of Justice, p. 2.
44The six cases are below:
Qaiser Rafiq was charged with larceny and repeatedly interrogated about the September 11 attacks. For more details on this case see the section, Abusive Interrogations, in this report. Human Rights Watch telephone interview with Qaiser Rafiq, Corrigan-Radgowski Correctional Center, Uncasville, Connecticut, March 14, 15, and 18, 2002.
Wael Abdel Rahman Kishk was convicted of lying to federal officials about whether he planned to take flying lessons in this country, according to a newspaper article. The report states that for a time officials feared that he might have been part of a second wave of terrorism. William Glaberson, "Judge Rejects Long Prison Term for Arab Caught in Terror Sweep," New York Times, February 16, 2002.
Mohammed Asrar was arrested after a neighbor called the police to report he was an "Arab" who possessed guns and might be a terrorist. He was interrogated by the FBI for hours and was eventually charged with possession of ammunition while a "prohibited" person. Asrar was a "prohibited" person because he had overstayed his visa; otherwise, his possession of ammunition would have been legal. Human Rights Watch telephone interview with Robert Carlin, Mohammed Asrar's attorney, Dallas, Texas, March 15, 2002.
Javid Naghani was sentenced to two years and nine months in federal prison for interfering with a flight crew. Naghani allegedly threatened to "kill all Americans" after he was caught smoking on a plane, according to press reports. His comments caused the plane to be escorted by military jets back to its departure city. Naghani's attorney said that his client was intoxicated when on board and that the man, who has a thick accent, did not say "kill all Americans" but "Cleaning of America," the company he works for. David Rosenzweig, "Immigrant Gets Prison for Threats on Plane," Los Angeles Times, March 19, 2002; "Iranian Gests Prison for Flight Outburst," Copley News Service, March 19, 2002; and "Iranian Man Sentenced to 33 Months in Prison in Air Canada Incident," Associated Press, March 18, 2002.
According to a newspaper report, Viqar Ali and Waqar Ali Khan were indicted for possessing fraudulent passports. They were arrested on September 13 when authorities went to their home as they investigated their roommate, Iftikhar Ahmed, who was charged with fraud. "Roommate of immigration fraud suspect also charged," newsobserver.com, February 21, 2002. Ahmed's name is on the government list but Ali and Khan's names are not.
45Letter to Senator Carl Levin, chairman of the Senate's Permanent Subcommittee on Investigations, from Daniel J. Bryant, assistant attorney general, July 3, 2002.
46Both the 835 and the 1,182 numbers are of people arrested at some point in connection with the September 11 investigation, not of individuals held in custody at the time the Department of Justice released the numbers.
47Dan Eggen, "Delays Cited In Charging Detainees," Washington Post, January 15, 2002.
48See Jim Edwards, "`Special Case' INS Detainees Decline, But Not as Fast as Ashcroft Reckons," New Jersey Law Journal, January 18, 2002; Susannah Bryan, "Protesters Seek Muslims' Release, More than 50 Detainees Held at Krome Center," South Florida Sun-Sentinel, December 26, 2001; and Brian Donohue, "US Stirs Criticism on Number of Detainees," Star-Ledger, December 15, 2001.
49Letter to Levin from Bryant.
50The Department of Justice's denial of the FOIA request was hardly surprising. A memo issued on October 12, 2001 by Attorney General Ashcroft was an indication of the administration's drive to restrict access to information. The memo stated:
Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.... When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions.
John Ashcroft, "Memorandum for Heads of All Federal Departments and Agencies," October 12, 2001.
51Center for National Security Studies v. U.S. Department of Justice, p. 2.
52Ibid, p. 4.
53Ibid, p. 19.
54Ibid, p. 26.
55Statement by Assistant Attorney General Robert McCallum Jr. cited in Steve Fainaru and Dan Eggen, "Judge Rules U.S. Must Release Detainees' Names," Washington Post, August 3, 2002; and in Gina Holland, "Officials Oppose Naming Detainees," Associated Press, August 3, 2002.
56In 2001, 54 percent of all INS detainees were held in local jails because of inadequate space in federal facilities. INS Detention Standards Presentation to various NGOs by the INS's Detention and Removal Office, June 7, 2001. For information on the repercussions of INS's policy of holding individuals in its custody in local jails, see Human Rights Watch, "Locked Away: Immigration detainees in jails in the United States," A Human Rights Watch Report, vol. 10, no. 1(G), September 1998.
57American Civil Liberties Union v. County of Hudson, Superior Court of New Jersey, Docket No. A-4100-01T7 (March 26, 2002).
588 CFR Parts 236 and 241, INS No. 2203-02. The rule states:
No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee.
8 CFR 236.6.
59According to the preamble to the rule, "It would make little sense for the release of potentially sensitive information concerning Service detainees to be subject to the vagaries of the laws of the various States within which those detainees are housed and maintained.""Supplementary Information," 8 CFR Parts 236 and 241, INS No. 2203-02, p. 6.
60American Civil Liberties Union v. County of Hudson, 2002 New Jersey Superior Court, Lexis 272 (June 12, 2002). In its ruling, the court drew from the federal pre-emption provision contained in article 6 of the U.S. Constitution, which declares that "the laws of the United States ...shall be the supreme law of the land...anything in the constitution or laws of any State to the contrary notwithstanding." The appeals court found that the INS commissioner had the authority to issue the rule, and since the rule is federal law, it should prevail over state law.
61See Human Rights Watch, "Locked Away...."
62Henry Pierson Curtis, "Jail Cites INS Secrecy Rule in Denying Attorney Access," Orlando Sentinel, July 2, 2002. The attorney was able to see his client only a day after his phone call.
63The prohibition on disclosing information about the detainees may apply to these organizations if their relationship to the facility is deemed to be "official or contractual." See language of the rule in note 59 above.
64Human Rights Watch has monitored the treatment of INS detainees for almost fifteen years, visiting scores of detention facilities and jails. Some of our investigations into custodial conditions have resulted in publications, such as Human Rights Watch, "Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service," A Human Rights Watch Report, vol. 10, no. 4(G), December 1998; Human Rights Watch, "Locked Away...."; Human Rights Watch, Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1997); and Helsinki Watch, Detained, Denied, Deported: Asylum Seekers in the United States (New York: Human Rights Watch, June 1989).
65Dennis W. Hasty, warden, Metropolitan Detention Center, letters to Human Rights Watch, December 5, 2001; and Gregory L. Parks, warden, Metropolitan Correctional Center, letter to Human Rights Watch, November 30, 2001.
66See, for instance, Chisun Lee, "INS Detainee Hits, US Strikes Back," Village Voice, February 5, 2002.
67The visiting groups were only allowed to view the processing area, the visiting areas, and an empty housing cell.
68Statements by Andrea Quarantillo, Newark district director, INS, to Human Rights Watch staff during a tour of Passaic County Jail, February 6, 2002.
698 CFR 3.27. See also, Detroit Free Press v. Ashcroft, p. 8.
708 CFR 3.27(b) and (c).
71Globe Newspaper Co. v. Superior Court (1982).
72Michael Creppy, "Cases Requiring Special Procedure," Internal Memorandum-Executive Office for Immigration Review (Creppy memorandum), September 21, 2001. Immigration judges are not part of the judicial branch under article 3 of the U.S. Constitution but are employees of the Department of Justice.
73Ibid, paras. 10 and 11.
76Letter to Levin from Bryant.
77For instance, a Palestinian civil engineer held in INS custody said that his first hearing, which took place on November 28, was initially closed. The immigration judge asked an FBI agent who was attending the proceeding whether the detainee had received the agency's "clearance." When the agent responded yes, the immigration judge opened the hearing to the public. Human Rights Watch interview with a Palestinian civil engineer, Paterson, New Jersey, December 20, 2001. The detainee's name has been withheld upon request. Similarly, attorney Vicky Dobrin said that the initial immigration proceedings for two of her clients, Elyes Glaissia and his roommate, whose name has not been disclosed, were closed. Subsequent hearings have been held publicly. Human Rights Watch telephone interviews with attorney Vicky Dobrin, Seattle, Washington, November 20, 2001 and January 31, 2002.
78The due process clause of the Fifth Amendment to the U.S. Constitution applies to all persons, whether they are U.S. citizens or not. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 121 Ct. 2491 (2001).
79Article 14 of the ICCPR states that "[i]n the determination of ...his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." The Human Rights Committee has broadly interpreted the term "suit at law." See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 1993, p. 250. In Y.L. v. Canada, the committee stated that: "In the view of the Committee, the concept of a `suit at law' ...is based on the nature of the right in question rather than on the status of one of the parties (governmental; parastatal or autonomous statutory entities), or else on the particular forum in which individual legal systems may provide that the right in question is to be adjudicated upon." No. 112/1981. See also, Casanovas v. France (441/1990). Matters of rights in public law, such as administrative hearings, will come within article 14 particularly when such rights are subject to judicial review. For instance, in V.M.R.B. v. Canada (235/1987), the committee did not exclude the possibility that deportation proceedings may be "suits at law." See S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights (Oxford: Oxford Univ. Press, 2000), p. 282. The only restrictions would be the narrow ones provided for in the ICCPR, namely that the media and public may be excluded from a hearing for reasons of "morals, public order (ordre public) or national security in a democratic society." Article 14.
80When a non-citizen is charged with a violation of his visa and proceedings are instituted to determine whether the detainee is to be removed from the U.S., a bond hearing is held to determine whether a detainee may be released pending ultimate adjudication of the proceedings.
81See Cecil Angel, "Lawsuit by paper asks for access," Detroit Free Press, January 29, 2002; "ACLU Files First Post-Sept. 11 Challenge To Closed Immigration Hearings on Behalf of MI Congressman and Journalists," ACLU Press Release, January 29, 2002; and "Head of Closed Muslim Charity Files Suit," Chicago Tribune, February 15, 2002.
82Detroit Free Press v. Ashcroft, p. 3.
83Ibid, p. 9, quoting from Fitzgerald v. Hampton, 467 F. 2d 755 (D.C. Cir., 1972).
84Ibid, p. 10.
85Steve Fainaru, "Judge Orders Released Of Records of Closed Deportation Hearings," Washington Post, April 9, 2002.
86North Jersey Media Group v. Ashcroft, 205F. Supp 2d 288 (D.N.J. May 28, 2002), quoting from United States v. Smith, 787 F2d. 111, 114 (3rd Cir. 1986).
87Ibid, p. 129.
88The case is now being reviewed by the Court of Appeals of the 3rd Circuit in Philadelphia.
89Dana Marks Keener and Denise Noonan Slavin, "An Independent Immigration Court: An Idea Whose Time Has Come," National Association of Immigration Judges Position Paper, January 2002. The National Association of Immigration Judges represents the country's 221 immigration judges.
Immigration Courts are an agency within the Department of Justice-called the Executive Office for Immigration Review (EOIR). They are administrative tribunals entrusted with the task of determining whether an individual is in the United States illegally, and if so, whether there is any status or benefit to which he is entitled under immigration laws. Immigration Courts are under the authority of the attorney general.
908 CFR Part 3, EOIR 133; AG Order No. 2585-2002, published at 67 Fed. Register 36799, May 28, 2002.
92Ibid, section 3.46(d).
93The rule prescribes sanctions for violations of the protective order. It states that if a detainee or an attorney discloses information from a closed hearing, the lawyer may be barred from appearing in immigration court hearings and the detainee can be denied discretionary relief. According to the language of the rule, a detainee could be punished if the lawyer reveals information without the client's permission and vice versa. In addition, the rule allows only one side-the government-to ask that proceedings be sealed.
Federal authorities first requested that hearings be sealed pursuant to this rule in the case of Zakaria Soubra on June 10, 2002. A Lebanese national held on an immigration violation, Soubra was named in the "Phoenix Memo," which warned before September 11 of the danger that Middle Eastern aviation students could pose to the security of the United States. Dennis Wagner et al. "Feds Invoke Secrecy Rule in INS Case," Arizona Republic, June 11, 2002.
94Declaration of James S. Reynolds submitted January 11, 2002, in Center for National Security Studies v. U.S. Department of Justice, p. 3.
95Ibid, p. 4.
96Declaration of Watson submitted in Detroit Free Press v. Ashcroft, p. 4.
97Ibid, p. 7.
98Testimony of Michael Chertoff, assistant attorney general of the Criminal Division, before the Senate Judiciary Committee at its hearing on "DOJ Oversight: Preserving Freedoms While Defending Against Terrorism," November 28, 2001.
99FBI Director Robert S. Mueller III has said that a "substantial" number of people suspected of ties to terror are under constant FBI surveillance within the United States. "FBI Chief: 9/11 Surveillance Taxing Bureau," Washington Post, June 6, 2002.
100See discussion of the Vienna Convention in the chapter, Arbitrary Detention, in this report.
101Information provided to Human Rights Watch by Anthony Romero, executive director of the ACLU, June 19, 2002.
102Declaration of Watson submitted in Detroit Free Press v. Ashcroft, p. 3.
103The Department of Justice declared: "persons believed not to be of current interest regarding the investigations emanating from the September 11th attacks are placed in an `inactive' status and may have been released from custody or deported." Supplemental Declaration of Reynolds submitted in Center for National Security Studies v. U.S. Department of Justice, p. 1. According to the documents it released on January 11, 2001, the cases of 355 individuals were classified as "inactive," and 363 as "active."
104Following is the relevant excerpt of Ashcroft's testimony before the Senate Judiciary Committee:
Attorney General Ashcroft: I would cite privacy Act 5, U.S. Code 552(a)-that's paren (a), paren (2), as-and the FOIA 5 U.S. Code 552(b)(6), especially as the prohibition regarding naming legal permanent residents.
Senator Feingold: You are citing this as a prohibition on disclosing any of the names of those in detention?
Attorney General Ashcroft: Not any of the names of those in detention. As I indicated earlier, senator, I-there is a varying legal standard, depending on the status of the individual. The prevention is on a narrow group of individuals that are permanent residents. The authority not to disclose relates to those who are not permanent residents, but disclosure of which, in the judgment of law enforcement authorities would be ill advised as it relates to aiding the enemy or interfering with the prosecution.
Senator Feingold: Well, Mr. Chairman, I would simply add that this confirms that there simply is no blanket prohibition in the law of disclosure, and I would just like that on the record.
Attorney General Ashcroft: I-I can agree with the senator, and would stipulate to the fact that there is no blanket prohibition.
Testimony of Attorney General John Ashcroft before a hearing of the Senate Judiciary Committee on "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism," December 6, 2001.
The two provisions that the attorney general said prevented him from releasing the identities of persons held in INS custody do not apply to the kinds of information sought regarding the detainees. The first provision states that the government should release final opinions in the adjudication of cases, statements of policy, staff manuals, and records already disclosed unless their release constitutes "a clearly unwarranted invasion of personal privacy" [5 USC Section 552a (2)]. The names of those detained by the INS do not fall in any of these categories. The second provision cited by the attorney general said that the release of information under FOIA requests does not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" [5 USC Section 552(b)(6)]. Yet, the detainee information is neither personnel nor medical nor of a similarly private nature. Provision (d) of the same section states, "This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress." Therefore, even if the Department of Justice were to argue successfully somehow that the privacy provision prohibited it from releasing information about these detainees to the public, it could not use it to justify its withholding of information from lawmakers. The Department of Justice has still refused to provide basic information to members of Congress. See note 42 above.
105See "Two Amtrak passengers detained in Fort Worth," Associated Press, September 13, 2001; and "Men detained on immigration violations, interviewed by FBI," Associated Press, September 18, 2001.
106See Mike Robinson, "Middle Eastern man with name on FBI's list is captured near Chicago," Associated Press, September 20, 2001; and John Carreyrou et al., "Investigators Arrest a Suspect In Chicago," Wall Street Journal, September 21, 2001.
107See "Saudi Doctor Proclaims Innocence After Release," Washington Post, September 26, 2001; and Scot Paltrow and Laurie P. Cohen, "Government won't disclose reasons for detaining people in terror probe" Wall Street Journal, September 27, 2001.
1085 USC 552 (b)(7)(C). Declaration of Reynolds submitted in Center for National Security Studies v. U.S. Department of Justice, p. 5.
109American Civil Liberties Union v. County of Hudson, Superior Court of New Jersey, Docket No. A-4100-01T5 (March 26, 2002.)
110While immigration detainees have a right to counsel, they do not have a right to free-of-charge, court-appointed counsel if they lack the funds to retain one privately.
111Declaration of Watson submitted in Detroit Free Press v. Ashcroft, p. 8.
112For instance, an attorney for Maliek Zeidan, a Syrian man charged with an immigration violation whose case was ordered closed in New Jersey, filed a preliminary injunction to have the proceedings open to the public. He argued that closinga deportation hearing hurt his client's case because it prevented his client's cousin from attending and functioning as a witness and a translator. The attorney maintained that holding proceedings in secret violated his due process rights under the Fifth Amendment. Jim Edwards, "Federal Judge to Review Ban on Open Hearing for Muslim Detainee," New Jersey Law Journal, March 5, 2002.
113Declaration of Reynolds submitted in Center for National Security Studies v. U.S. Department of Justice, p. 5.
114U.S. Department of Justice v. Reporters Committee, 489 U.S. 749,773 (1989).
115Pechter v. Lyons 441 F. Supp. 115 (S.D.N.Y. 1977), p. 118.
116Center for National Security Studies v. U.S. Department of Justice.