The right of any person-citizen or non-citizen-to be represented by legal counsel after being deprived of liberty for alleged criminal or immigration law violations is protected under U.S. as well as international human rights law.117 U.S. constitutional law also affirms the right to counsel during custodial interrogations on criminal matters.118 In the criminal context, but not in immigration proceedings, the right to counsel includes the right to court-appointed counsel if the detainee cannot afford to hire one.
Legal representation is a crucial safeguard to enable detainees to effectively exercise other rights, including the right against criminal self-incrimination, the right to be charged promptly or released, the right to be brought before a judge to determine the legality of a detention, and the right to not be subjected to torture or other cruel, inhuman, or degrading treatment. Effective access to an attorney is particularly important for immigration detainees who may not know their rights or be familiar with complicated U.S. criminal or immigration law procedures. Unfortunately, many of the post-September 11 detainees were unable to exercise their right to counsel.
"Special interest" detainees were questioned in custody as part of a criminal investigation, even though they were subsequently charged with immigration violations. Our research indicates that many were originally questioned by teams of agents from both the FBI and the INS, or were first questioned by the FBI and then by the INS. The questions typically addressed criminal matters as well as the individual's immigration status.
In practice, the FBI has used administrative proceedings under the immigration law as a proxy to detain and interrogate terrorism suspects without affording them the rights and protections that the U.S. criminal system provides. Among those protections is the right to have an attorney present during custodial interrogations, including free legal counsel if necessary.119 Even though immigration detainees do not have the right to free counsel in connection with immigration proceedings, they should be granted court-appointed representation when they are interrogated about matters related to a criminal investigation.
An example of the blurring of the distinction between criminal and administrative processes is the case of Ayub Ali Khan. Khan, a citizen of India, was arrested along with Mohammed Jaweed Azmath aboard an Amtrak train near Fort Worth, Texas, on September 12, 2001. Authorities found box cutters, hair dye, and $5,500 in cash in their possession, according to press reports.120 Law enforcement agents told reporters that they were key suspects in the investigation of the September 11 attacks.121 Despite apparently being a terrorism suspect, Khan was held in custody solely for overstaying his visa. As an INS detainee, he did not have the right to a court-appointed attorney and he remained unrepresented for fifty-seven days. During this time, he "signed all kinds of papers, and was questioned ad nauseum without an attorney," according to a public defender who was later assigned to him.122 The lawyer said that his client was brought before an immigration judge only on November 8, 2001, almost two months after his arrest. Khan has been held in restricted confinement at the Special Housing Unit at the Metropolitan Detention Center since September 2001. Both Khan and Azmath were indicted on credit card fraud charges in December 2001.
The constitutional right to counsel exists only during custodial criminal interrogations.123 A person does not actually have to be held in a police station or arrested for the interrogation to be considered "custodial." U.S. courts have looked to the circumstances of the questioning to determine if a reasonable person would believe he or she had been effectively deprived of his or her freedom in a significant way and could not freely walk away from the law enforcement agents seeking information.124 Many post-September 11 detainees were originally questioned in their homes or places of work and subsequently taken to FBI or INS offices for further questioning. We have no way of knowing whether many of them believed they had a choice about whether to answer the questions posed to them. We suspect that many did not realize that when the FBI came to their houses, including in the middle of the night, they could refuse to let them in or refuse to answer questions. We also suspect many would have believed they were not free to leave when they were taken to FBI or INS offices.
Our research indicates that the FBI frequently questioned persons in custody without informing them of their "Miranda rights," i.e. their right to remain silent, to have an attorney present during their questioning, and to have an attorney appointed for them if they cannot afford one. Human Rights Watch interviews with INS detainees and their attorneys indicated that in some instances detainees were informed of their right to a lawyer only after the FBI interrogated them. For instance, Bah Isselou and three other Mauritanians arrested in Louisville, Kentucky, were told they had the right to a lawyer and given access to a phone to try to find one four days after their arrest and after FBI questioning about the terrorist attacks. After that single phone call, they were held incommunicado and in isolation for two weeks and denied access to a telephone.125
Other times, detainees were given Miranda warnings but when they asked for an attorney, they were reportedly told that they would get one only after the interrogation. Some detainees said that they were pressured to answer "just a few questions" right away and not wait to obtain an attorney. For example, two FBI agents went to the workplace of a Palestinian civil engineer and said they wanted to ask him some questions. He declined to talk to them without a lawyer present. The agents told the man that if he insisted on having a lawyer, they would have to open a "full investigation." He was asked whether he possessed weapons and about the September 11 attacks. The man asked for a lawyer again. He said he was afraid he could be "misquoted" without an attorney present. The agents said, "[t]his is America. This would never happen." A few days later, FBI and INS agents went to the man's workplace again and arrested him for overstaying his visa. Even though the man was legally in the country at the time, he spent twenty-two days in prison.126 None of the "special interest" detainees interviewed by Human Rights Watch had an attorney present during FBI or INS interrogations regarding the terrorist attacks.
A striking case of the FBI's refusal to respect the right to counsel is that of Osama Awadallah, a lawful permanent resident of the United States and a citizen of Jordan. An old phone number of Awadallah's was found in the car abandoned by Nawaf Al-Hazmi, one of the September 11 alleged hijackers, and the FBI subsequently began an investigation of Awadallah.127 On September 20, 2001, a team of eight FBI agents and local police went to Awadallah's apartment in San Diego. When Awadallah returned home in the early afternoon, the agents told him they wanted to ask him a few questions at the FBI office. Awadallah asked if they could talk to him at his apartment but they insisted that he be interviewed at their offices and told him that they would drive him there. When Awadallah insisted he be allowed to go to his apartment to pray, he was permitted to go to the apartment followed by the agents; he was patted down and the agents made him keep the bathroom door open while he went to urinate and wash before praying. When he was taken to the FBI office around 3:00 p.m., Awadallah repeatedly expressed his concern that he not miss a computer class that began in a few hours. Two agents questioned Awadallah for about six hours and told him they believed he had information regarding the events of September 11. At one point when he asked about getting to his class, the agents told Awadallah that he would "have to stay" with them until the interview was finished. Although these circumstances clearly indicate a custodial interrogation, Awadallah was never advised of his right to an attorney.
When the interview ended at 11:00 that night, Awadallah agreed to take a lie detector test the following morning. The next morning, after he took the test, FBI agents accused him of lying on some of the questions and then told him that he was "one of the terrorists." Awadallah attempted to stand up, but the agents ordered him to "sit down and don't move." He then asked to call his lawyer, but the agents refused his request. They continued to question him, even though Awadallah repeated several times that he had to leave for Friday prayer. The agents told him he was going to miss Friday prayer and that they were going to fly him to New York. Awadallah again demanded to call a lawyer because it was his right, but the agents said, "[h]ere you don't have rights." The FBI subsequently secured a warrant for Awadallah's arrest as a material witness. Later he was charged with perjury for lying to a grand jury. He spent eight-three days in prison before being released on bail.128
In a subsequent court case, Awadallah claimed that he had been unlawfully seized by FBI agents. As the court pointed out, "a consensual encounter ripens into a seizure, whether an investigative detention or an arrest, when a reasonable person under all the circumstances would believe he was not free to walk away or otherwise ignore the police's presence."129 Reviewing the facts, the court concluded Awadallah was "clearly not `free to ignore' the FBI" and had in fact been "seized"-and, indeed, that the seizure was unlawful because the agents did not have probable cause or even reasonable suspicion to believe that Awadallah had committed a crime. Based on this and other findings of unlawful government conduct, the court dismissed the indictment against him. Although the question of Awadallah's right to an attorney was not raised in the case, the court's finding that he had been "seized" by the FBI when he was questioned indicates that he should have been told his rights and given access to an attorney.
Tiffanay Hughes and Ali Al-Maqtari were arrested on September 15, 2001 when they arrived at the Fort Campbell, Kentucky army base where Hughes was assigned. Without being told why, they were placed in locked, separated rooms at the base, Hughes for five and a half hours, and Al-Maqtari for about nine hours. Then they were interrogated separately for two to three hours without counsel present and without breaks until early in the morning. During their detention they were not given water or food, except for some cookies Al-Maqtari received during his interrogation. At the outset of the questioning, their interrogators-one INS, three FBI, and six or seven army officers-told them that they were not arrested. Al-Maqtari replied, "I wished." He told Human Rights Watch he did not feel free to leave. The interrogators did not inform Al-Maqtari or Hughes of their right to have an attorney present. Al-Maqtari described the interrogation in testimony presented to the Senate Judiciary Committee:
The investigators said many, many times that our marriage was fake, and that Tiffanay must be married to me because I was abusing her. These accusations were totally false and very painful for me. They also made many negative remarks about Islam, things like Islam being the religion of beating and mistreating women. One acted out a fist hitting his hand, another said my wife had written a letter saying that I beat her, which I knew was false, and another insisted he would beat me all the way to my country because I mistreated my wife.... The interrogators were so angry and wild in their accusations that they made me very frightened for what might happen to me.130
Before being released on bond, Al-Maqtari was detained for fifty-two days, mostly in solitary confinement, charged with ten days of "unlawful presence" in the country. The army encouraged Hughes to take an honorable discharge, and she did so on September 28, 2001.131
One of the purposes of the right to have an attorney present during custodial interrogations is to help prevent coercive interrogations. In the cases described below, detainees were not only denied access to attorneys, but were subjected to abusive treatment in violation of U.S. constitutional132 and international standards.133
· Abdallah Higazy, a thirty-year-old Egyptian graduate student with a valid visa, was detained as a material witness on December 17, 2001. A pilot's radio had allegedly been found in the New York City hotel room where he had stayed on September 11. He was placed in solitary confinement at the Metropolitan Correctional Center in Manhattan.
Higazy volunteered to take a polygraph test. "I wanted to show I was telling the truth," he told Human Rights Watch. On December 27, he was taken to an office in Manhattan and had a polygraph test administered. He was then questioned more for at total of four to five hours. The detainee stated that he was given no break, drink, or food. His lawyer waited outside and he was not allowed to be present during the questioning.
Higazy claimed that the interrogating agent threatened him from the beginning: "We will make the Egyptian authorities give your family hell if you don't cooperate," he recalled the agent telling him. During the polygraph test he was asked about the September 11 attacks. The agent repeated, "tell me the truth" after each of his answers and he became increasingly anxious. When the agent described to him about what the radio device allegedly found in his room could do, he said he became nervous and almost fainted. He asked the agent to stop the polygraph test and take the cables off him, and so he did.
The FBI agent continued the interrogation even though Higazy was not connected to the polygraph machine any more, and without his counsel present. According to Higazy, the following dialogue occurred:
"The results of the test are inconclusive," the agent said, "but this never happened to anyone who said the truth.... We can show ties between you and September 11. You are smart, you are an engineer, a pilot's radio was found in your room; it doesn't take a genius to figure it out."
"It's not my device, I don't know who put it there," Higazy replied.
"You know you have nothing to do with September 11, you were scared of the FBI and denied the radio was yours, but you can tell the truth," the agent persisted.
Higazy told Human Rights Watch: "I thought I was in trouble, that I had lost the only chance to prove I was innocent." Faced with the FBI's pressure, he ultimately admitted the radio was his. "All I wanted to do is to keep away from September 11 and to keep my family away from them," the detainee told Human Rights Watch. After his admission, he asked for his lawyer. He felt very tired and asked that the rest of the test be postponed.
Higazy offered to do a polygraph test again but requested that his lawyer be present. According the Higazy, the FBI refused, alleging that the attorney would be a disruption. Higazy refused to do the test again without a lawyer and it was never done. He said the interrogating agent denied in front of his lawyer that he had threatened his family.
On January 11, 2002, Higazy was charged with lying to the FBI. However, three days later, the owner of the radio, an American pilot, went to the hotel to claim it. Higazy was released in his cotton prison scrubs and given three dollars for subway fare on January 16. The charges against him were dropped.
Higazy told Human Rights Watch: "It was horrible, horrible. I always have the feeling of being accused of something I didn't do. I was crying each and every day five to seven times."
On May 31, 2002, Ronald Ferry, the former hotel security guard who produced the pilot's radio was sentenced to six months of weekends in prison for lying to the FBI. He admitted that he knew that the device was not in a safe belonging to Higazy. Ferry, who is a former police officer, said that he lied during a "time of patriotism, and I'm very, very sorry." The judge said that his conduct was "wrongly motivated by prejudicial stereotypes, misguided patriotism or false heroism."
A judge is considering whether to open an inquiry into the manner in which FBI agents obtained Higazy's confession.134
· On September 14, 2001, the FBI arrested Uzi Bohadana, a twenty-four-year-old Jewish Israeli, in Jackson, Mississippi. The INS charged him with an immigration violation for working while on a tourist visa.
Bohadana said that on September 16 he was beaten by six accused or convicted criminals who were his cellmates at the Madison County Jail in Canton, Mississippi. He told Human Rights Watch that he was taken to a hospital after the attack, where he received stitches on his eye and lip, but he could not have surgery on his broken jaw because the hospital did not have the capabilities.
The next day, he was taken to an INS office and interrogated by the FBI and the INS for one and a half hours while injured. Bohadana asserted that at the time of the interrogation he could hardly talk and was dizzy because of the painkillers he had been given. He said that he was informed of his right to contact a lawyer and the consulate of Israel, but he claimed that the agents told him that "if he talked it'd be quicker." He said he was in pain and agreed to talk without a lawyer. He was asked about the jail assault he had suffered and about the September 11 attacks.
Bohadana was later transferred to Concordia Parish Jail in Ferriday, Louisiana where the FBI interrogated him twice and the INS once. He said that at the first FBI interrogation there he was "overwhelmed with drugs," and could not answer the questions. The agents stopped the interrogation after ten minutes. Bohadana said that the day of his second interrogation jail staff told him that the FBI had ordered that he not be given any medication until after the questioning, so he was in pain all morning. That interrogation lasted for about two hours, during which he was asked about the terrorist attacks. Bohadana said he was not told he had the right to a lawyer during the interrogations at this facility, and he did not ask for one. He told Human Rights Watch that he did not need an attorney because he was innocent and had nothing to hide. Bohadana was released on bond on October 5, 2001.135
· Osama Salem was arrested in mid October 2001, after a former girlfriend of his told the FBI that he was a terrorist and an expert bomb-maker. Eight FBI, INS, and police officers went to his house in Jersey City, New Jersey and arrested him for entering the country with a false passport. Salem said the FBI had no search warrant but searched the house anyway, without asking him for permission.
Salem said that he was taken to the FBI building in Newark where he was given Miranda warnings but was not told of his right to contact the consulate of Egypt. His request to make a phone call was denied. He asked for an attorney and was told that he would be given a public defender later. He stated that he was then interrogated by five men for seven or eight hours without breaks, not even to go to the bathroom, and he was given water but not food. The agents reportedly warned him, "If you don't answer questions, we'll charge you as a terrorist." He was asked whether he knew Osama bin Laden, if he had collaborated with Mohammed Atta (one of the alleged hijackers), if he went to the mosque, who he knew in the mosque, and if he had a pilot's license. He said that he was called, "Osama bin Laden" during the interrogation.
He was sent to the INS building in Newark, where he was interrogated again by INS officers for three hours. Salem said he was asked the same questions. He was never assigned a court-appointed lawyer. He was ordered deported on January 18, 2002.136
· On his way to New York City, Qaiser Rafiq, a national of Pakistan and a legal permanent resident who has lived thirteen years in the United States, was pulled over by state police and undercover officers in nine vehicles in Colchester, Connecticut, on October 16, 2001. He said he was not given Miranda warnings or told why he was arrested. Rafiq said that while his car was being searched, an agent grabbed him by the hair and banged him on the hood of a car three times while he called him "son of a bitch" and asked him where his "terrorist friends" were. He was taken to his sister's house, six blocks away, which was searched without a warrant, according to Rafiq.
Rafiq was then taken to a state police station in Hartford, Connecticut, where two FBI agents, "Bob Murphy" and "Frank McCarthy," interrogated him for three and a half hours. Rafiq said he asked for an attorney three or four times during the interrogation but was told by McCarthy, "you guys have no rights here, you better start telling us what we ask you or we'll put you in jail for the rest of your life." Then he was interrogated by six state police officers for about four or five hours. Rafiq said that one of them, "Detective Mellacis," grabbed him by the hair and slapped him repeatedly. During both interrogations, Rafiq was asked about Muslims he knew and about his job.137
Rafiq said he spent the night in a cell in the basement of the police station. He was not given a blanket despite being very cold. "I was shivering all night." In the morning, he said he was asked whether he wanted to make a statement admitting that he knew Middle Eastern men involved in terrorism. He said he would not sign any such statement and was taken to court, where the prosecutor said that the FBI was interested in questioning him further. The judge set a one million dollar bond. Rafiq would later be charged with larceny. He has been unable to pay the high bond and remains in detention as of this writing.138
Although the Department of Justice has not commented on the ability of September 11 investigation suspects to have counsel present during interrogations, it has insisted that their right to counsel for the purposes of immigration proceedings has been respected. In testimony before the Senate on December 7, 2001, Michael Chertoff, assistant attorney general of the Criminal Division, said:
Every one of [the detainees] has the right to counsel. Every person detained has the right to make phone calls to family and attorneys. Nobody is being held incommunicado.... We don't hold people in secret, you know cut off from lawyers, cut off from the public, cut off from their family and friends. They have the right to communicate with the outside world. We don't stop them from doing that.139
Russell Bergeron, a spokesman for the INS, also said: "I've yet to see a specific case involving a specific individual on a specific day, for example, where he was entitled to have access to a phone and call his attorney and was prevented. If such an allegation exists, we would like to hear about it."140
Human Rights Watch's research shows, however, that many post-September 11 detainees have not been able to exercise effectively their right to counsel. Detainees have not been informed of their right to counsel or were urged to waive their right; policies and practices of the facilities holding them have impeded their ability to find counsel; and the INS has failed to inform attorneys where their clients are or when their hearings are scheduled. Some of the problems of access to counsel by September 11 INS detainees are long-standing and common to all individuals held by the INS, while others are specific to the investigation of the September 11 terrorist attacks.141
Immigration detainees do not have the right to a court-appointed attorney under U.S. law, but the INS has the obligation to inform them of their right to be represented by an attorney.142 Many immigration detainees are unfamiliar with U.S. laws and do not know the rights to which they are entitled. Of twenty-seven "special interest" INS detainees interviewed by Human Rights Watch, only ten said that they were informed of their right to an attorney. Seven detainees said that they were not told of this right, two were informed of their right only after undergoing custodial interrogations, and in eight cases the detainees did not remember or it was not clear.143
Some detainees said that they were informed of their right to an attorney but that law enforcement agents discouraged them from exercising that right, telling them that retaining counsel would hurt their cases or would result in lengthier detention. For example, Orin Behr said an agent told him and ten other Israelis arrested with him, "you don't need a lawyer. This is a very simple matter. One day or two and you'll be out."144 Behr said: "We believed him, so nobody got a lawyer at the beginning." Behr remained four weeks in detention charged with working while on a tourist visa. Ali Saber, a Pakistani citizen, said that upon his arrest, INS agents told him, "If you are going to take a lawyer it is going to be a long process."145 He had been held for two and a half months when Human Rights Watch interviewed him. He had been charged with overstaying his visa and was unrepresented by counsel.
In some cases, the INS frustrated attorneys' efforts to reach their clients, whether deliberately or because of bureaucratic chaos and confusion. Attorneys have said that it was hard for them to retrieve information about their clients, including the time and date of hearings.146 For instance, Gerald Goldstein, the attorney for Al-Badr Al-Hazmi, a Saudi national detained in Texas by the INS, testified before the Senate Judiciary Committee that the INS did not let him talk to his client for five days, a period during which Al-Hazmi was interrogated several times.147 Goldstein also testified about the difficulties in simply finding where his client was held: he talked to three different INS officials, sent four letters to the INS, and placed numerous calls that went unanswered. Five days after Al-Hazmi's arrest, the attorney learned that he had been transferred from Texas to New York.
The attorney of Ahmed Abdou El-Khier, a twenty-eight-year-old Egyptian citizen, told Human Rights Watch that INS officials refused to tell him where his client was detained for two weeks, during which time El-Khier was transferred to several facilities. The attorney said that only after he filed a petition with federal court was he informed that his client was being held at the Passaic County Jail in New Jersey. The INS charged El-Khier with working while on a tourist visa. His attorney said that he called the INS daily for five days to find out when his client's deportation hearing might be held. On the fifth day, an official told him that the hearing had already taken place and that El-Khier had waived the right to an attorney and admitted he had worked for a total of three weeks during two previous trips to the United States. El-Khier was deported on November 30, 2001.148
Similarly, the lawyer of Fayez Khidir, a citizen of Sudan charged with overstaying his visa, said that she tried to locate her client for four weeks during which time the INS moved him to three detention centers in the New York/New Jersey area. She eventually threatened to contact the press if the INS did not tell her where Khidir was. An INS officer promised to call her back with the location within three business days, but the promise was not kept. She finally discovered that her client was being held at the Passaic County Jail in Paterson, New Jersey. The same attorney, who represented several other men held in connection with the September 11 investigation besides Khidir, went to a hearing for one client and found that another of her clients, a national of Turkey held for overstaying his visa, was also there for a hearing. She had not been informed of this hearing by the court.149
The aftermath of September 11 has exacerbated longstanding difficulties with access to counsel faced by INS detainees.150 The INS's transfer policy is a common impediment to obtaining and keeping legal representation: the agency moves detainees frequently from one facility to another without regard to where detainees' attorneys are based or where their families live. Furthermore, the INS does not give advance notice to detainees, the detainees' families, or their lawyers of transfers. As a result, attorneys have been unable at times to locate their clients. As a practical matter, attorneys may not be able to continue to represent clients transferred to facilities in other states. A new rule prohibiting facilities from disclosing the identity of immigration detainees they hold will make it even more difficult for lawyers to track down their clients.151
Eighty percent of the immigration detainees that appeared before Immigration Courts in 2001 were not represented by counsel, according to data from the Executive Office for Immigration Review.152 The inability to pay legal fees is perhaps the main obstacle INS detainees face in securing legal counsel as many have scant financial resources. Post-September 11 detainees face even greater legal expenses because their cases involve unique complications, such as being kept in detention pending FBI clearance. "These cases are a headache for a lawyer," said Sohail Mohammed, who represented about a dozen "special interest" detainees. He added that some lawyers were not taking them because they required a lot of work.
The INS is required by law to hand out lists of attorneys and organizations that offer free legal representation to detainees, but in practice these lists may be of little help.153 For instance, some post-September 11 detainees interviewed by Human Rights Watch at Passaic County and Hudson County jails in New Jersey said they had called all the legal assistance groups on the list provided by the INS, but none of the groups accepted collect calls, the only type of call the detainees were allowed to make. Even though U.S. law requires that this list be updated "not less often than quarterly," the list of pro-bono counsel provided to detainees held at the Metropolitan Detention Center (MDC) in New York was outdated by months.154 INS facilities are supposed to progressively install phone systems that allow free calls to attorneys on the list handed out to detainees, local courts, and consulates; however, these systems are not operational in most facilities.
The difficulties in finding and in communicating with attorneys were especially severe for the many "special interest" detainees held in administrative segregation. Even though the INS's Detention Standards, which describe the proper treatment to be afforded to immigration detainees, state that individuals kept in segregation "will be permitted telephone access similar to that provided to detainees in the general population," communicating with the outside world was very restricted or outright prohibited for "special interest" detainees in segregation. For instance, attorneys representing detainees held in segregation at MDC said that for months after September 11 their clients could only make one phone call to their attorneys and another to their families per month.155 "Access to the phone was so restricted that it was almost meaningless," said Brian Lonegan, a Legal Aid Society staff member who arranged legal representation for some detainees. Lonegan said that phone calls to attorneys were at times only allowed after 5:00 p.m. when it was unlikely that detainees would be able to find or reach an attorney.156
Difficulty understanding and communicating in English and lack of familiarity with the U.S. legal system are also substantial obstacles for some immigration detainees. Without interpreters or legal counsel, they are left to navigate complicated immigration laws on their own. Some post-September 11 detainees told Human Rights Watch that they signed documents in English given to them by the INS or FBI that they did not understand. By signing them, they unknowingly waived their right to retain counsel, to contact the consulate, or to have a hearing before being deported.157 In some instances, detainees without representation agreed to be deported during hearings because they were told that they would be sent back to their home countries relatively quickly, while fighting removal would mean that they would remain in jail for many weeks. Nonetheless, in many cases, they were still kept in detention for months pending FBI clearance after agreeing to be deported.
Access to legal documents would help detainees with a fair understanding of English to know their legal options and rights. However, legal libraries are often grossly inadequate for immigration detainees, especially those held in local jails. For instance, even though the Hudson County jail held hundreds of immigration detainees on February 6, 2002, when Human Rights Watch toured it, the immigration "section" in its law library consisted of a stack of about three books held behind a counter.158 The staff could not produce Title 8 of the United States Code, which contains the U.S. immigration laws, said that they did not have "know-your-rights" materials, and a copy of the INS Detention Standards was stored in a computer that was not operational, according to the INS district director.159 The INS Detention Standards mandate that all facilities holding INS detainees shall have a law library that contains thirty immigration-related texts, including the above-mentioned Title 8 and "self-help materials." Yet jail officials repeatedly said during our visit that the facility was in full compliance with all the Detention Standards except for one related to telephone access.160
117 The Sixth Amendment to the U.S. Constitution states: "In all criminal prosecutions, the accused shall enjoy the right ...to have the assistance of counsel for his defense." The fifth and fourteenth amendments guarantee due process to any person. Under U.S. law, immigration detainees have the right to be represented by counsel. 8 CFR 240.3. Principle 11 of the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: "A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law." Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, Annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). This principle is derived from article 9 of the ICCPR, which provides that any person deprived of her or his liberty must have an effective opportunity to challenge the lawfulness of their detention before a court. In its general comment no. 8, the U.N. Human Rights Committee interpreted ICCPR article 9 to include "all deprivations of liberty, whether in criminal cases or in other cases such as ...immigration control." United Nations Human Rights Instruments, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.4, February 7, 2000, p. 88, para. 1.
118 In the landmark 1966 case Miranda v. Arizona, the Supreme Court ruled that anyone arrested in the course of a criminal investigation shall be afforded certain rights:
The prosecution may not use statements... stemming from questioning initiated by law enforcement officers after a person has been taken into custody... unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination.
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he said will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
Where an interrogation is conducted without the presence of an attorney and a statement is taken, heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel.
Miranda v. Arizona, 384 U.S. 436 (1966).
On February 26, 2000, the U.S. Supreme Court reaffirmed suspects' Miranda rights in two decisions. In U.S. v. Dickerson, Chief Justice Rehnquist wrote for the majority that law enforcement officers must warn criminal suspects of their rights, including their right to remain silent. In California Attorneys for Criminal Justice (CACJ) v. Butts, the Supreme Court upheld a ruling by a federal court in Los Angeles that police interrogation after a suspect has requested an attorney or invoked his or her right to remain silent violates a person's rights under Miranda.
119 Other differences between administrative and criminal cases are the deadlines for charging and court oversight. Under U.S. law, those detained for crimes have to be charged and brought before a judge within forty-eight hours of arrest. Those detained for immigration violations can be held without charges for an undefined "reasonable period of time" in the event of an "emergency," and may not be brought before an immigration judge for weeks after their arrest, depending on how full the docket in the district is.
120 See "Two Men with Box Cutters Are Removed From Train In Texas," Associated Press, September 14, 2001; Ross E. Milloy with Michael Moss, "More Suspects Are Detained In Search for Attack Answers," New York Times, September 26, 2001; Dan Eggen, "Terrorist Hijacking Probe Slows in U.S.," Washington Post, October 19, 2001; and Laurie P. Cohen and Jesse Pesta, "U.S. denies accusations from jailed man that he had no counsel, access to phone," Wall Street Journal, November 5, 2001.
121 Walter Pincus, "Silence of 4 Terror Probe Suspects Poses Dilemma for FBI," Washington Post, October 21, 2001.
122 Human Rights Watch telephone interview with attorney Lawrence Feitell, New York, New York, May 14, 2002.
123 The Sixth Amendment to the U.S. Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to ...have the assistance of counsel." See next note for the Supreme Court's interpretation of this constitutional right.
124 The Supreme Court has defined custodial interrogation as follows: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona.
125 Human Rights Watch telephone interviews with Bah Isselou, Florida, November 6, 2001; and Dennis Clare, his attorney, Louisville, Kentucky, October 23 and 31, 2001. The three other Mauritanians were Sidi Mohammed Ould Bah, Sidi Mohammed Ould Abdou, and Cheikh Melainine Ould Belal. They were all arrested on September 12 and charged with immigration violations. They were released on bond, Isselou on October 10, and the others at the end of October.
126 Human Rights Watch interview with Palestinian civil engineer, Paterson, New Jersey, December 20, 2001 and email communication with his attorney, Claudia Slovinsky, May 24, 2002. The detainee's name has been withheld upon request.
127 The phone number was that of a residence where Awadallah had lived briefly two years earlier. The FBI investigations subsequently established that Awadallah had no connections with or knowledge about the September 11 attacks or terrorist activities, but that he had met Al-Hazmi and another alleged hijacker at work and at the local mosque two years earlier when they lived in San Diego, California.
128 Second Opinion and Order, United States of America v. Osama Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. 2002).
129 Ibid., p. 38.
130 November 29, 2001 hearing before the Senate Judiciary Committee.
131 Human Rights Watch telephone interviews with Ali Al-Maqtari and Tiffanay Hughes, New Haven, Connecticut, November 29, 2001, and with Michael Boyle, their attorney, New Haven, Connecticut, October 24, 2001.
132 The U.S. Supreme Court has repeatedly upheld the rights of individuals not to be subjected to coercive interrogations. In Haley v. Ohio, a concurring opinion stated: "An impressive series of cases in this and other courts admonishes of the temptations to abuse of police endeavors to secure confessions from suspects, through protracted questioning, carried on in secrecy, with the inevitable disquietude and fears police interrogations naturally engender in individuals questioned while held incommunicado, without the aid of counsel and unprotected by the safeguards of a judicial inquiry." Haley v. Ohio, 332 U.S. 596 (1948). In Stone v. Powell, the Supreme Court said: "A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect's will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability." Stone v. Powell.
133 International standards prohibit law enforcement officials from conducting coercive interrogations. Principle 21 of the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: "No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgment." Interrogators are banned from using torture to elicit information from people in their custody.
Article 7 of the ICCPR prohibits anyone from being subjected to torture or to cruel, inhuman, or degrading treatment or punishment. In 1994 the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2 of the convention states: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The definition of torture contained in article 1 of the convention is broader than physical abuse, and includes "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Cruel and inhuman treatment includes acts that do not meet the essential elements of torture, such as more limited beating or the deprivation of medical treatment, and harsh conditions of detention. Degrading treatment concerns the humiliation of the victim, regardless of the physical suffering imposed. See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 1993, pp. 133-34.
134 Human Rights Watch telephone interview with Abdallah Higazy, New York, New York, February 1, 2002; and with his attorney, Robert Dunn, New York, New York, July 23, 2002.
For press articles about this case see Jane Fritsch, "Grateful Egyptian is Freed as U.S. Terror Case Fizzles," New York Times, January 18, 2002; "Egyptian Student Wants Apology and An Investigation," Dow Jones International News, January 21, 2002; Christine Haughney, "A Sept. 11 Casualty: `Radio Man' Jailed for A Month, Then Freed; Egyptian Student Perplexed by Mistaken Arrest," Washington Post, March 11, 2002; Benjamin Weiser, "Worker Is Sentenced for Lie That Jailed Egyptian Student," New York Times, May 31, 2002; Mark Hamblett, "Guard Who Lied About Sept. 11 Sentenced," New York Law Journal, May 31, 2002; and Benjamin Weiser, "Judge Considers an Inquiry On Radio Case Confession," New York Times, June 29, 2002.
According to press reports, Higazy said that he did not hold a grudge against the FBI for pursuing charges against him the day he was released but he later asked for an apology for having been wrongly incarcerated. He is considering whether to file a civil lawsuit.
135 Human Rights Watch telephone interviews with Uzi Bohadana, Hollywood, Florida, November 13, 2001; and with his attorney, Patricia Ice, Jackson, Mississippi, November 5, 2001.
136 Human Rights Watch interview with Osama Salem, Hudson County Correctional Center, Kearny, New Jersey, February 6, 2002.
137 Rafiq was also asked if he recognized any of the alleged hijackers, about the entries in his address book, and why he left his Wall Street job at onenest.com in May 2001. He answered that he was fired after an argument with his boss. He said they told him that he had been seen with three Middle Eastern men in New Jersey on September 8, 2001, but he denied it.
Rafiq was also asked why he had a film permit to shoot on 25th Street in Manhattan starting on September 10. He said he worked part-time for a New York City company called Interactive Media Production Inc. and that they were going to record a television commercial for an insurance company. A March 6, 2002 letter written by Razaq Baloch, producer, Interactive Media Production, Inc., stated: "I would like to clarify that Mr. Rafiq time to time helped us in our television program production and also in covering the news for Pakistan Television.... It is very common in T.V. production that crewmembers keep a copy of the film permit with them for parking and permission purposes." Open Letter by Razaq Baloch, producer, Interactive Media Production, Inc., March 6, 2002.
Prosecutors reportedly asserted that Rafiq had drivers' licenses from multiple jurisdictions with different names, that a note saying "death to the infidels in Afghanistan" was found in his car, and that a car registered to Rafiq was apparently abandoned in Jersey City on September 8, 2002. Rafiq denied holding I.D.'s with different names. He said the note, written in Urdu, was from T.V. interviews and expressed support to the president of Pakistan's alliance with the United States in Afghanistan. He paraphrased the note as saying, "this war is not against Afghanis, this war is only against terrorism, and if there is someone who is going to be hurt it is terrorists." Rafiq said he gave the car found in New Jersey to a friend in 2000 instead of junking it.
In the aftermath of the September 11 attacks, Rafiq allegedly helped organize a couple of rallies condemning terrorism and supporting the decision of Pakistan's president to join the U.S. coalition against terrorism. A letter from the Pakistani embassy reads: "Mr. Rafiq has demonstrated openly his full support for the anti-terrorism efforts of the Pakistani government and has participated in World Trade Center aftermath activities organized by [the] Pakistani-American community." Open letter by Imran Ali, third secretary, Embassy of Pakistan in Washington, DC, February 20, 2002.
138 Human Rights Watch telephone interviews with Qaiser Rafiq, Corrigan-Radgowski Correctional Center, Uncasville, Connecticut, March 14, 15, and 18, 2002. See also, Dave Altimari, "Enigmatic Suspect Raises Brows: Intriguing Clues Attract Investigators in Terrorism Probe," Hartford Courant, January 7, 2002; and Carole Bass, "Bloody Good Reading," New Haven Advocate, March 14, 2002.
139 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.
140 Quoted in Jim Edwards, "Attorneys Face Hidden Hurdles in September 11 Detainee Cases," New Jersey Law Journal, December 5, 2001.
141 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.
142 8 USC 1229(a)(E).
143 Human Rights Watch also interviewed two detainees initially held as material witnesses and one charged with crimes. One of the material witnesses signed a document informing him of his rights, but he said he could not understand fully what it said; the other material witness said he was informed of his rights. The individual charged with crimes, which are unrelated to terrorism, said that he was not informed of his rights when he was arrested or thereafter.
144 Human Rights Watch telephone interviews with Orin Behr, Maryland, December 12, 2001; and David Leopold, Orin Behr's attorney, Cleveland, Ohio, December 10, 2001. The eleven Israelis were arrested on the morning of October 31, 2001 by FBI agents and local police in Lima, Ohio.
145 Human Rights Watch interview with Ali Saber, Passaic County Jail, Paterson, New Jersey, February 6, 2002. Saber was arrested on November 20, 2001, ordered deported on December 14, and was still in detention on February 6, 2002.
146 Testimony of Michael Boyle, representative of the American Immigration Lawyers Association, before the Senate Judiciary Committee, December 4, 2001.
147 Testimony of Gerald H. Goldstein, Esq., before the Senate Judiciary Committee, December 4, 2001. Al-Hazmi was arrested in San Antonio, Texas on September 12, 2001 and released on September 24, 2001. Al-Hazmi was held as a material witness for twelve days and was never charged with any crime or violation.
148 Human Rights Watch telephone interview with Martin Stolar, Ahmed Adbou El-Khier's attorney, New York, New York, March 28, 2002.
149 Human Rights Watch telephone interviews with attorney Sandra Nichols, New York, New York, November 27 and December 17, 2001.
150 See Human Rights Watch, "Locked Away...."
151 8 CFR Parts 236 and 241, INS No. 2203-02. See note 58 for a discussion of the rule.
152 The INS has refused to disclose how many of the thousand-plus "special interest" cases were unrepresented. Forced by a court order, the Department of Justice declared on June 13, 2002, that only eighteen of the seventy-four "special interest" cases in custody at the time did not have counsel (about 25 percent). As the table below shows, the vast majority of non-citizens charged with immigration violations and detained in the United States are not represented by counsel, while most individuals charged with immigration violations but not detained are represented.
Source: Executive Office for Immigration Review
153 8 USC 1229(b)(2).
154 The phone number of one an agency that did accept collect phone calls, the Legal Aid Society, was wrong. A staff member said that the organization had to move because its offices were damaged by the terrorist attacks and it gave the immigration court its new contact information but the MDC did not update the referral list given to detainees. Human Rights Watch telephone interview with Brian Lonegan, Legal Aid Society, New York, New York, April 15, 2002.
155 Human Rights Watch telephone interview with attorney Bill Goodman, Center for Constitutional Rights, New York, New York, March 25, 2002; and Ibrahim Tukmen v. John Ashcroft, "Class Action Complaint and Demand for Jury Trial," April 17, 2002, p. 15.
156 Human Rights Watch interview with Lonegan.
157 Imran Ali, an official with the Pakistani embassy in Washington, reportedly said that his embassy raised its concerns with U.S. officials regarding these issues: "We told them many detainees were illiterate and would not know the consequences of signing those documents. We said sometimes people might have been influenced that signing these papers would be in their interest." See Ann Davis, "Why Detainees Signed Waivers Forfeiting Right to Counsel," Wall Street Journal, February 8, 2002.
158 Library staff said they kept them there instead of on shelves like other legal texts because they only had one copy of each.
159 Librarians at Hudson County jail did not know what the INS's Detention Standards were when Human Rights Watch asked them. The INS district director said the standards were in a computer recently donated by the INS that was not operational. This information came as a surprise to the librarian, who was unaware that the Detention Standards were available anywhere in the library.
160 Hudson County jail officials said that the jail had not yet installed the preprogrammed telephone system that allows immigration detainees to call attorneys and agencies on the list of free legal service providers, local courts, and consulates free of charge, as required by the Detention Standards.