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Physical liberty is a fundamental human right affirmed in international law and in the U.S. Constitution. Arbitrary detention is the antithesis of respect for that right. An individual who is arbitrarily detained is rendered defenseless by the coercive power of the state. While arbitrary detention is a hallmark of repressive regimes, democratic governments are not immune to the temptations of violating the right to liberty.

The right to liberty circumscribes the ability of a government to detain individuals for purposes of law enforcement-including protection of national security. While the right to liberty is not absolute, it is violated when persons are detained unlawfully or when they are "subjected to arbitrary arrest or detention."169 A detention is unlawful under international human rights law if it is not conducted "on such grounds and in accordance with such procedure as are established by law."170 A detention will also be arbitrary-even if conducted according to existing laws-if it is manifestly disproportional, unjust, or unreasonable.171

Under the U.S. Constitution, unlawful or arbitrary detentions are considered violations of the right to due process contained in the fifth and fourteenth amendments, which forbid the government from depriving any person of "life, liberty or property without due process of law." As the Supreme Court has stated, "freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that [the Due Process] Clause protects."172 The due process clause applies "to all `persons' within the United States," including aliens, whether their presence is lawful or not.173

As explained below, various safeguards are required by international and U.S. constitutional law to protect individuals from arbitrary detention, including the obligation of authorities to inform a detainee promptly of the charges under which he or she is held; the obligation to permit a detainee to be released on bail absent strong countervailing reasons such as danger to the community or flight risk, pending termination of legal proceedings; and the obligation to provide a detainee with effective access to a court that can review the legality of the detention. In the case of many post-September 11 detainees, these safeguards were ignored and detainees were held arbitrarily for considerable periods of time.

All detention procedures are subject to occasional problems or delays that can lead to accidental violations of detainees' rights, and such problems might be understandably greater in the context of the confusion, urgency, and magnitude of the investigative effort that followed the September 11 attacks. Our research suggests, however, that the numerous violations of detainees' rights were not simply inadvertent. First, the Department of Justice developed new detention rules after September 11 that deliberately truncated protections that previously existed, extending the period during which detainees can be held without charge and permitting the INS to keep in custody detainees who immigration judges had ordered released on bond. Second, the pattern of the government's actions indicates a deliberate effort to use immigration detention as a form of preventive detention for criminal investigation purposes, even though immigration law does not authorize detention for that purpose. The Department of Justice has sought to hold immigration detainees for lengthy periods of time even though it lacked evidence that they were a flight risk or posed a danger to the community-the only legitimate bases on which the INS can hold immigration detainees pending the termination of deportation proceedings.

Even after deportation orders were issued, the INS continued to hold some detainees not because it could not remove them from the United States, but because they had not received "clearance" from the FBI. In doing so, the INS overstepped the boundaries of its authority. There are no laws or regulations giving the INS authority to keep detainees in custody for such a reason; indeed, we know of no regulation that establishes such a "clearance" rationale for continued detention. In effect, immigration detainees from Middle Eastern, South Asian, and North African countries, detained for no more than technical visa violations, were presumed guilty of criminal conduct or knowledge thereof until proven innocent.

These policies and practices have significantly eroded non-citizens' legal rights, have seriously undermined judicial oversight over government actions, and, compounded with other due process irregularities such as lack of access to counsel, have resulted in arbitrary detentions under international and U.S. law.

Detaining Non-Citizens without Charge

A fundamental corollary of the right to liberty is the right not to be held without charge. Article 9 of the International Covenant on Civil and Political Rights states, "anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." U.S. constitutional law similarly recognizes that detention without charge violates the right to liberty protected by the due process clause of the fifth and fourteenth amendments. Non-citizens detained for possible immigration law violations have the same right to be "promptly" informed of the charges against them as a citizen held in police custody. If charges are not filed, the detained person is entitled to release.

The right to liberty is also safeguarded by the requirement that detained persons be able to obtain judicial review of their detention, so that a court "may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."174

In the aftermath of September 11, the Department of Justice sought legislation that would permit it to detain indefinitely, without charge and without judicial review, non-citizens certified by the attorney general as possible terrorists. Congress refused to grant the attorney general such unprecedented powers. In the USA PATRIOT Act, which became law on October 26, 2001, Congress instead granted the Department of Justice the power to keep certified suspected "terrorists" in custody for seven days without charge.175 At the end of this period, the attorney general must charge the suspect with a crime, initiate immigration procedures for deportation or release him or her.176 Six months after the USA PATRIOT Act was passed the Department of Justice declared that it had not certified any non-citizen as a terrorism suspect under the act.177

Non-citizens are instead being held without charge under the provisions of a new rule which the INS issued quietly and without a public comment period, on September 20, 2001.178 Prior to the new rule, the INS had to charge a detained non-citizen within twenty-four hours of detention or release him or her; there was no exception for emergency situations.179 The new rule extended the permissible period of detention without charge to forty-eight hours. A requirement of issuing charges within forty-eight hours is not inherently unreasonable. The Supreme Court has ruled that in criminal cases, the government has to bring charges and a judge has to make a determination of probable cause within forty-eight hours of arrest.180 But the new rule also contained a loophole by which the forty-eight hour limit could be ignored: "[I]n the event of an emergency or other extraordinary circumstance," the agency can hold non-citizens without charge for "an additional reasonable period of time." 181 The rule contains no criteria as to what constitutes an emergency or other extraordinary circumstance, nor does it set any limits on the period of time a non-citizen can be held without charge in such circumstances.

The preamble to the new rule explains that in emergencies the INS may require additional time beyond forty-eight hours before filing charges "to process cases, to arrange for additional personnel or resources, and to coordinate with other law enforcement agencies."182 The rule does not require that the INS justify the delay in filing charges or even that it serve notice to the individual or to the immigration court of its intent to hold the detainee past forty-eight hours without charge. Immigration detainees who may not even be guilty of violating immigration law are thus subject to being held in jail for an undefined period of time simply because of the INS's inability to process cases promptly and coordinate efficiently with other government agencies. Although the preamble to the rule argues that immediate implementation of the rule without public comment was needed to react to the September 11 attack, the rule has no expiration date, and thus is now a permanent feature of U.S. immigration regulations.

In issuing the new rule, the Department of Justice gave itself extraordinary powers of detention that exceed the limitations subsequently mandated by Congress in the USA PATRIOT Act. Although the "special interest" immigration detainees are held in connection with a criminal investigation, the rule denies them the due process right criminal suspects have to be charged within forty-eight hours. Human Rights Watch believes that the rule permits arbitrary detentions in contravention of international and constitutional law.

Widespread Delays in Filing Charges

Many "special interest" detainees have been held without charge for longer than forty-eight hours. Using the information released by the Department of Justice in January 2002 and updated in February, we have compiled a graph summarizing the length of time 718 "special interest" detainees were held before charges were filed.183 The Department of Justice has not released any subsequent updates to that information. In 49 percent of the cases, the INS served a charging document to the detainee before the arrest, the day of the arrest, or one day after. In 6 percent of the cases, charges were served two days after the arrest.184 In 31 percent of the cases, charges were filed three days after the arrest or later. One-hundred and thirty-six non-citizens were held for more than a week without charge, sixty-four of these were charged only three weeks after their arrest or later, and thirty-five detainees were held from one to three months without charge. For instance, a Saudi Arabian was charged with falsely saying that he was a U.S. citizen only 120 days after his arrest and a Jordanian was held for 113 days without charge and finally accused of overstaying his visa.

The list released by the Department of Justice failed to provide the date charges were filed in 14 percent of the cases.185 It may be that the government simply failed to keep updated information in the cases of 102 individuals detained as of January 2002 in the "largest, most comprehensive criminal investigation in world history," as the attorney general defined it.186 But the lack of a charging date may also indicate these non-citizens had still not been charged by February 15, 2002, the date when the list was updated. The U.S. government has not provided information on dates of detention or charges for any "special interest" detainees detained after January 2002.

The following are some of the cases of prolonged detention without charge:

· On November 6, 2001, INS and FBI agents arrested a Palestinian civil engineer at his workplace in New York City. He was legally present in the U.S. even though his visa had expired because he had applied for an extension and was waiting for a response from the U.S. government. The man's attorney filed a motion for a bond hearing and he first appeared before a judge on November 28, twenty-two days after his arrest. At that time, he had still not been charged with any violation.187 He was released on bond in the minimum amount of $1,500 the next day. The man was informed of the charge against him-overstaying his visa-two weeks after he was released and five weeks after he was arrested.188

· Nabil Almarabh, a former Boston cab driver who is a Kuwaiti citizen, was incarcerated in isolation for eight months without charge and without seeing a judge, according to Adem Carroll, a staff member of the Islamic Circle of North America who talked to him on the phone several times and visited him once in detention. Almarabh told Carroll that he was arrested on September 18, 2001, but first stepped into a courtroom only on May 22, 2002, when he was charged with illegal re-entry into the United States, an immigration-related criminal charge for which he was assigned a court-appointed lawyer. Unnamed Department of Justice officials said in a Washington Post article that Almarabh had forfeited his right to see an immigration judge because he had violated a previous deportation order by returning to the United States.189 Paradoxically, they also asserted that he had been brought before a judge at least three times-twice immediately after his arrest and once in May. The article also reported that Almarabh was held as a material witness before May. Material witnesses have the right to court-assigned counsel and Carroll said that Almarabh did not have an attorney before his May proceeding. He also stated that the detainee appeared not to have received any notification of being a material witness. Almarabh has been transferred to the Buffalo Federal Detention Center in Batavia, New York and is being held with the general population.190

· Afzal Kham, a forty-eight-year-old man who speaks no English, came to the United States on July 29, 2001 as a stowaway on a ship from Sweden. He said he came to work and send money to his six children in his native Pakistan. He was arrested in the Bronx on September 17, 2001. Four INS and FBI agents arrived at his home at 2:00 a.m. and asked him if he was legally in the country. He said no. The agents detained him and his three roommates. On February 6, 2002, 142 days after his arrest, he told Human Rights Watch that he had not been to court yet and had received no charging document or any other official document from the government.191

Delay in Access to Courts

The delay in filing charges also delays detainees' appearance before an immigration judge. Under INS procedures, immigration judges do not automatically review whether there is probable cause for a detention. Hearings before immigration judges on the merits of the INS's case against a detainee are not scheduled until after charges have been filed. If a non-citizen is held in custody but not charged, he or she will not be scheduled automatically for a court hearing, regardless of how long he or she has been detained. An immigration detainee held without charges has two recourses to challenge continued detention. The detainee can request a hearing before an immigration judge to consider whether he or she should be released on bond or can file a habeas corpus petition in federal court.192 Either of these procedures is a formidable obstacle for non-citizens who may not be familiar with the U.S. legal system and who may not have an attorney to counsel and represent them.193

Detainees Denied Release on Bond or Held on Extraordinarily High Bond

The right to liberty continues after a person has been accused of violating immigration laws, no less than criminal laws. While an allegation of an immigration violation, if proven, may justify deportation, it does not in itself justify detention. Under U.S. law, immigration detainees should not be kept in custody unless a judge concludes the individual's dangerousness or risk of flight warrant detention until the conclusion of the immigration hearings.194 As one federal court has noted, "[d]ue process requires an adequate and proportionate justification for detention-a justification that cannot be established without an individualized inquiry into the reasons for detention."195 Immigration judges should not merely "rubber-stamp" the INS's request that an individual be kept in custody. "The process due even to excludable aliens requires an opportunity for an evaluation of the individual's current threat to the community and his risk of flight."196

The Department of Justice has sought to circumvent the requirement of an individualized determination of dangerousness or flight risk for "special interest" detainees. Rather than presenting particularized evidence to immigration judges that might justify the need to keep a "special interest" detainee under custody, it has suggested that any post-September 11 detainee of interest to the government's investigation should be kept in custody until it can rule out the detainee's involvement in or even useful knowledge about criminal activity.

The Department of Justice's argument is laid out in an affidavit written by Michael E. Rolince, section chief of the FBI Counterterrorism Division's International Terrorism Operations Section, which the government has filed in an unknown number of bond hearings in "special interest" cases. (The affidavit is attached as Appendix B to this report). The Rolince affidavit consists of a four-page description of the September 11 attacks and the ongoing federal investigation and a two-page section that offers general arguments for the continued detention of non-citizens under FBI scrutiny. It is modified in each case by the addition of a paragraph about the specific detainee in whose case the document is filed. The affidavit states:

In the context of this terrorism investigation, the FBI identified individuals whose activities warranted further inquiry.... The FBI must consider the possibility that these aliens are somehow linked to, or may possess knowledge useful to the investigation of, the terrorist attacks on the World Trade Center and the Pentagon. The respondent [name] is one such individual.197

Then the paragraph on the individual follows. In the case of Ali Al-Maqtari, the affidavit stated:

As a result of a search previously described to the court, the FBI continues to download the hard drive of a computer. (The computer was found in a car belonging to Al-Maqtari's wife.) When interviewed by the FBI, Al-Maqtari said he had not used the laptop but purchased it used for $250 from a customer at the convenience store where he works. Al-Maqtari said that the customer obtained the computer form a third party. At present, the download of the hard drive is still running. Once this process is completed, the FBI will need several days to review the information obtained.198

No information was provided to suggest why the government believed Al-Maqtari might be linked to the September 11 investigation or what the significance of the laptop might be, nor was any other information offered to the judge during the bond hearing to suggest that Al-Maqtari was dangerous or a flight risk.

In the case of Osama Elfar, the affidavit contended in general terms that the FBI had uncovered information indicating that he might have possible links to terrorist organizations and the 1993 World Trade Center bombing investigation, but it did not provide any facts to support such assertions.199 According to the detainees and their attorneys, the Rolince affidavit constituted the sole evidence presented by the INS to the immigration judge. No evidence was presented of criminal activity by either detainee, merely FBI conclusory suspicions.200

The Rolince affidavit compares counterterrorism intelligence to the construction of a "mosaic," insisting that detainees should remain in custody because although their cases may not look suspicious in isolation, they may form part of a larger picture of terrorist activity when analyzed in a broader context. "What may seem trivial to some may appear of great moment to those within the FBI or the intelligence community," reads the document. The affidavit does not offer evidence of any link between the specific detainee in whose case the document was filed and any crimes or some other reason why he might be a danger to the community or a flight risk if released. It simply contends that the detainee should be kept in custody because "the FBI has been unable to rule out the possibility that respondent is somehow linked to, or possesses knowledge of, the terrorist attacks on the World Trade Center and the Pentagon."201

The "mosaic" theory turns the presumption of innocence on its head and eviscerates the right to liberty absent individualized evidence of a person's dangerousness or risk of flight. The Department of Justice is arguing that the U.S. government should be able to detain non-citizens while it investigates them, even if they have not been charged with any crime, simply because it cannot rule out the possibility of criminal conduct. Moreover, it argues that the mere possibility the detainee has "useful information" should warrant his detention. Human Rights Watch is aware of no legal basis for detaining non-citizens simply because they may have knowledge related to a crime.

As dubious as the Rolince affidavit's arguments are, they have worked. Prior to September 11, non-citizens accused of technical violations of their visas who did not have a criminal record were routinely released from custody pending deportation proceedings with no bond or a low bond-typically $500. Yet immigration judges have routinely denied bond or set extraordinarily high bonds for non-citizens charged with immigration violations who were arrested in connection with the terrorism investigation. Osama Elfar, for example, who was charged with overstaying his visa, was denied bond and spent eighty-one days in detention, some of them in solitary confinement. When the INS failed to remove him from the country by a deadline set by an immigration judge, his attorney petitioned for a writ of habeas corpus that forced the government to send Elfar back to his native Egypt.202 The immigration judge initially set a bond of $50,000 in Al-Maqtari's case, but the INS motioned for a stay, so he remained in detention. The immigration judge gave the INS an additional period of time to present more substantial information to support the high bond, but the agency never produced further evidence beyond the Rolince affidavit. After the FBI issued a document stating it had terminated the investigation of Al-Maqtari, he was released on a $10,000 bond, which his attorney still considered very high for Al-Maqtari's alleged violation-ten days of "unlawful presence" in the country while he changed from a tourist to a spouse-sponsored visa.203 Al-Maqtari spent fifty-two days in detention, mostly in solitary confinement.

Al-Maqtari's extremely high bond is not exceptional. For instance, Sidi Mohammed Ould Bah and Sidi Mohammed Ould Abdou, two Mauritanian men charged with overstaying their visas, were held on $10,000 bonds, which they could not pay. They were released after the immigration judge lowered the bond to $5,000 five weeks after their arrest. "Under normal circumstances my clients would have been released on a low bond from the beginning. They would have not been detained at all," said their attorney.204 After talking to attorneys representing forty-nine clients, journalist Jim Edwards calculated that New Jersey immigration judges have approved bond amounts five times higher or more than before September 11 for those detained in connection with the terrorist investigation.205

Continued Detention Despite

Release Order

On October 31, 2001, the INS issued a new "automatic stay" rule that allows it to keep a detainee in custody even after an immigration judge orders him or her released on bond if the initial bond was set at $10,000 or higher.206 Since the INS determines the initial bond amount, this provision gives the INS the ability to keep a detainee in custody simply by setting the initial bond at $10,000. Detainees can appeal the stay of the judge's release order and their continued detention to the Board of Immigration Appeals (BIA), but even if the BIA upholds the release order, the INS can keep the detainee in custody by taking the case to the attorney general.207 Hence, the rule gives extraordinary power to the INS to hold people for long periods of time as they try to pursue a complicated and delay-ridden appeal process.

The automatic stay provision applies to non-citizens held for any kind of immigration offense, no matter how minor. The rule ultimately renders the outcome of bond hearings and immigration judges' review irrelevant. Non-citizens can be detained for months at the discretion of local deportation officers, who set the initial bond, regardless of the immigration judge's impartial assessment of whether the non-citizens present a risk of flight or a danger to the community.

Human Rights Watch does not know how frequently the INS has used the automatic stay provision. The INS does not release such information and, as discussed above, proceedings against "special interest" detainees are shrouded in secrecy. An example of its use, however, is in the case of two Israelis who were charged with working in Ohio while on tourist visas. After the government failed to produce evidence of links to terrorism against them, an immigration judge granted them voluntary departure and ordered each of them released on a $10,000 bond on November 12, 2001.208 The INS used the automatic stay to keep them in detention. The two remained in jail until November 27, but were never told why. Once released, the INS prevented them from leaving the country by retaining their passports. The two men were finally allowed to leave the United States a month after their release from jail after their attorney filed a petition for a writ of habeas corpus with the federal court.209 In another case, Atila Kula, a Turkish citizen, was held in a New Jersey jail for more than two weeks after a judge's order that he be released.210 Kula was legally in the country when he was arrested.

On June 28, 2002, a district judge found continued detention under the automatic stay rule a violation of due process. In Almonte-Vargas v. Kenneth Elwood, the judge granted a writ of habeas corpus and ordered released a woman who had been held in detention for more than four months pursuant to the automatic stay rule after an immigration judge ordered her release on bond.211 In his decision, the federal judge said that due process requires that non-citizens be afforded the opportunity for an individualized hearing addressing the necessity of detention, but "due process is not satisfied where the individualized custody determination afforded to Petitioner was effectively a charade. By pursuing an appeal of the Immigration Judge's bond determination and requesting that no action be taken on the appeal, the INS has nullified that decision."212

Immigration judges have also criticized the automatic stay rule. A paper by the National Association of Immigration Judges cites the automatic stay as an example of the immigration courts' "susceptibility to improper interference" by the Department of Justice.213 The paper advocates the removal of immigration courts from the Department of Justice.

Refusal to Release Detainees for whom Bonds have been Posted

There is no provision of the Immigration and Naturalization Act, nor of regulations issued thereunder, which authorizes continued detention pending authorization from FBI or INS officials after a judge has already ordered release. Nevertheless, in some cases in which an immigration judge has ordered a detainee released on bond, the INS has simply refused to carry out the order until the detainee has received some sort of "clearance" from FBI or INS headquarters. For instance, the family of a man detained in New Jersey tried to pay his bond three times, but a month and a half after the judge ordered him released, he was still in jail, according to his attorney.214 The INS also repeatedly refused for almost a week to accept the bond payment from the family of two Pakistani men, an uncle and a nephew, also detained in New Jersey.215 His attorney called the INS and was told that "they needed a response from Washington before releasing him." Human Rights Watch research shows that at least five more detainees who were ordered to be freed on bond by immigration judges were not released by the INS when their families went to pay the bond.216 In the case of Uzi Bohadana, the INS failed to release him even after his family paid the $2,500 bond that the local INS had set.217 His attorney said that a local INS officer told her that Bohadana was on "a list" and, therefore, could not be freed. He was finally released three weeks after the bond was paid.

Continued Detention Despite

Removal Order

Once an immigration judge has ordered that a non-citizen be removed from the United States, the INS is authorized to keep this individual in custody only as necessary to carry out the removal. The Immigration and Naturalization Act provides that the INS shall remove non-citizens from the United States within ninety days of the issuance of an order of deportation.218 The act permits the removal period to be extended for an extra ninety days "if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal."219 Detainees who are granted voluntary departure shall leave the United States within 120 days of the order.220

The INS has no authority to keep non-citizens in its custody who have been ordered deported once it can remove them from the country. Nevertheless, since September 11 the INS has continued to hold individuals ordered deported or granted voluntary departure with safeguards not due to difficulties in arranging for their removal, such as absence of travel documents or lack of a country that would accept them, but because the detainees had not been "cleared" of links to or knowledge of terrorist activities.221 The process effectively reverses the presumption of innocence: non-citizens detained for immigration law violations are kept jailed until the government concludes they have no links to criminal conduct. This "clearance" process has never been publicly described nor are there any laws or regulations authorizing it. Detainees who were never charged with terrorist offenses are nonetheless held until approval for their release or removal is authorized by several sections of the Department of Justice and the FBI.222 This "clearance" process is not connected to the immigration charges against the detainee.

The number of non-citizens whose release was delayed pending "clearance" may never be known. According to a press report, eighty-seven detainees with final orders of removal were waiting for clearance as of February 18, 2002.223 Some detainees who were granted voluntary departure with safeguards by an immigration judge waited in jail, ticket in hand, past the deadline set by the judge for departure until the FBI decided that they were of no use to the terrorism investigation. For instance, on October 15, 2001, an immigration judge granted voluntary departure with safeguards to Mohammed Munir Gondal, who had been charged with working without authorization, and ordered him removed from the country within a month. The deadline passed, however, and the INS did not send Gondal or his counsel notification of any extension of the judge's deadline; it simply refused to allow his departure. Gondal's attorney said that the INS officer in charge of the case told him that they could not let him go because "INS headquarters hasn't authorized it yet." The attorney was also told that the government continued to investigate his client. The government never produced any evidence that linked Gondal to terrorism or to any crime. Gondal was finally allowed to leave the country on February 7, 2002, 115 days after he was granted departure.224

Ibrahim Turkmen had a similar experience. A national of Turkey, he was charged with overstaying his visa and granted voluntary departure with safeguards on October 31, 2001. A friend of his bought a plane ticket to Turkey for him two days later and gave it to the INS. In January, an INS agent told Turkmen that he had been "cleared" by the FBI but still needed additional INS "clearance." He was allowed to leave the country four months after the voluntary departure order, on February 25, 2002. During this time he was confined in Passaic County Jail. 225

Both Mohammed Riaz, a German citizen born in Pakistan, and Habib Soueidan, a Lebanese citizen, were charged with overstaying their visas and ordered deported at the end of October.226 However, on February 6, 2002, when Human Rights Watch spoke to them, they were still being held. For Riaz it was 104 days after his final order of deportation, for Soueidan, ninety-eight days. Neither of them had an attorney. Asif-ur-Rehman Saffi, a Pakistan-born French citizen, was charged with working without authorization and ordered deported, but he was removed from the United States only four and a half months after the final order of deportation.227 In the meantime, Saffi was housed in administrative segregation, where he was allegedly physically and verbally abused by correctional officers. It took the government almost three and a half months to deport Syed Amjad Ali Jaffri, a native of Pakistan, after an immigration judge ordered him removed from the country.228 He had been charged with working without authorization. Amjad Baig, a Pakistani citizen charged with attempting to use a false passport, remains in custody at the Metropolitan Detention Center in New York as of this writing, even though he was ordered deported on March 18, 2002.229

Attorneys have filed petitions in federal courts to pursue redress for the excesses of the INS. For instance, Saffi and Jaffri are plaintiffs in a class action lawsuit brought against the U.S. government on April 17, 2002 that seeks to include all "special interest" detainees who received final orders of removal but were held beyond the period necessary to secure their removal from the United States.230 The lawsuit seeks the repeal of abusive INS policies and compensatory and punitive damages.

In addition, at least six attorneys representing eight detainees have tried to force the Department of Justice to carry out immigration judges' orders of removal by petitioning for writs of habeas corpus in which they argued that the INS was acting illegally. As a result of the petitions, six detainees have been sent home. The government charged one of the detainees with a crime, illegal re-entry, and kept him in detention after the habeas corpus petition was filed.231 The other case is still pending.232

While petitioning for writs of habeas corpus has provided relief in a number of cases, as a practical matter this approach is not available to every detainee. Lawyers expressed concern that filing a petition with federal court will prompt the government to bring minor immigration-related criminal charges against their clients, such as lying to a law enforcement agent, document fraud, or illegal re-entry, to keep them in detention. Moreover, it is very unlikely that non-citizens who lack counsel and in many cases have limited English language skills, would be able to file such petitions. The INS has refused to reveal how many "special interest" detainees have retained attorneys, but 80 percent of all INS detainees who appeared before immigration courts in 2001 lacked counsel.233

Misuse of Material Witness Warrants

To the innocent even a momentary deprivation of liberty is intolerable.... Confinement of the plaintiff [as a material witness] among criminals and forcing him to wear prison garb added the grossest insult to injury.

Quince v. State, Rhode Island Supreme Court, 1962.234

Most of the persons placed in federal custody in connection with the government's investigation of the September 11 attacks have been arrested on immigration or federal criminal charges. The U.S. government has also detained a number of people as material witnesses. The Department of Justice has refused to say how many material witnesses have been arrested in connection with the September 11 investigation or to release their names and places of detention.235 On August 2, a district judge declared: "The Government's treatment of material witness information is deeply troubling.... The public has no idea whether there are 40, 400, or possibly more people in detention on material witness warrants."236 Human Rights Watch has been able to identify thirty-five individuals, two of them U.S. citizens, who have been held as material witnesses. The judge ordered the Department of Justice to release the identities of all material witnesses, except for those in whose cases a sealing order bars the disclosure. The judge asked the government to submit any such orders for in camera (in judge's chambers) review. The Department of Justice is expected to appeal the decision and seek a stay of the order.

Federal law authorizes the courts to issue warrants for the arrest of material witnesses in criminal proceedings in circumstances where securing their testimony might not otherwise be feasible.237 Rarely used, material witness warrants have a limited but important purpose: to make sure important witnesses render their testimony where there is a real possibility the witnesses may flee to avoid testifying or might be assaulted by persons seeking to silence them, e.g. in mafia trials. The warrants are a singular exception to U.S. law's general prohibition on detaining individuals in the absence of probable cause of criminal conduct.

Our research, including interviews with attorneys and persons who have been held as material witnesses, suggests that the Department of Justice has deliberately used material witness warrants to detain possible criminal suspects who could not otherwise be held in custody on criminal charges and who apparently had not violated immigration laws.238 Indeed, Department of Justice officials have acknowledged that detentions pursuant to material witness warrants were part of the department's strategy of "incapacitating" terrorists.239 For instance, the only person, to our knowledge, who has been charged with a crime connected to the terrorist attacks, Zacarias Moussaoui, the alleged twentieth hijacker, was originally held as a material witness. He was subsequently indicted with six conspiracy counts alleging that he conspired with Osama bin Laden and al-Qaeda to carry out the September 11 attacks. His trial began in July in Virginia. Another man described as a suspect who was initially held as a material witness is José Padilla, who was accused of participating in a plot to explode a radioactive bomb in the United States, but never charged with any crime. He is currently being held as an "enemy combatant" and has been denied access to the courts and an attorney.

The warrants were obtained to secure the presence of the witnesses before the grand juries investigating crimes connected to September 11. All of the material witnesses we interviewed, or whose cases have been described to us by their attorneys, were interrogated extensively about possible criminal conduct or connections to terrorism. A district court declared that at least eight and possible more material witnesses were never brought before a grand jury to testify, although that was the ostensible purpose of the warrants.240 They were all confined in jail, treated no better than accused or convicted criminals; indeed, some were subjected to punitive conditions, held in solitary confinement, and subjected to security measures typically reserved for dangerous persons. Most were let out of their cells only one hour per day. Although material witnesses have a right to counsel, including court-appointed counsel if necessary, some in fact did not have access to counsel.

Some of the persons held on material witness warrants were ultimately released once the warrants were dismissed while others were charged with federal crimes or immigration violations unearthed during the investigation.

The following cases illustrate the misuse of material witness warrants to keep possible suspects in detention and the mistreatment of the material witnesses while they were confined:

· Jean-Tony Oulai was arrested by eleven FBI, INS, and airport security personnel at a Florida airport on September 14, 2001 after a random search of his luggage turned up a stun gun, flight manuals, and documents with notes in a language that airline workers mistook for Arabic. Oulai, who is a citizen of the Ivory Coast and is black and Roman Catholic, told Human Rights Watch that he was a licensed pilot and that he did not speak Arabic. Stun guns are permitted in checked luggage but have to be reported to the airline. Oulai said that the employee at the airline counter saw the stun gun but did not ask him to fill out any form.

Oulai was charged with entering the country illegally. Even though he said he entered with a legal student visa, he acknowledged he overstayed his visa and decided to accept deportation instead of spending a long period of time incarcerated while pursuing his case. He was ordered deported on November 15. His embassy allegedly issued him a travel permit and wrote a letter guaranteeing that the Ivorian government would make sure Oulai would cooperate with U.S. law enforcement if his testimony were required in any proceeding in the United States.

Instead of deporting him, the U.S. government kept him in detention as a material witness for three months. On February 14, 2002, a judge dismissed the material witness warrant, reportedly after prosecutors admitted that they had no evidence that linked Oulai to terrorism. Still, Oulai was not released. U.S. attorneys in Florida accused him of lying to federal agents about whether he was living legally in the United States the day he was arrested, a crime that is rarely prosecuted. A magistrate set a $100,000 bond on the charge, which was paid by Oulai's brother, who is a physician. Oulai was still not released. The government contended that he was in INS custody because he was waiting to be deported. His attorneys argued that it was illegal for the INS to hold him because the statutory ninety-day deadline for removal after a final order of deportation had passed.

Prosecutors then told the attorneys that Oulai was in the custody of the Marshals Service and was being taken from Virginia to Florida. Reportedly, four federal officials repeatedly contradicted each other over whether the INS or the Marshals Service had custody of Oulai. In the meantime, for seven days neither Oulai's family nor his attorneys could find out where he was held. It turned out that he was being shifted through several states and detention facilities.

As of this writing, Oulai has been in detention for eight months, some of the time in solitary confinement. He alleged he was beaten by law enforcement agents at Baker County Detention Center in Florida.241 (For more details see the section, Physical and Verbal Abuse, in this report.)

· When Human Rights Watch interviewed Eyad Mustafa Alrababah, a Palestinian with a Jordanian passport, he had difficulty remembering what had happened to him since his arrest on a material witness warrant, and said he could not see well. He had a blood-shot eye, appeared tired, and said he was depressed, but he had not seen a doctor. He had been held in solitary confinement for more than four months, the first two of them with the lights on twenty-four hours a day, during which time he said he could not sleep.

On September 29, 2001, Alrababah went to the FBI office in Bridgeport, Connecticut because he had recognized four of the alleged hijackers whose pictures were shown on television. He told Human Rights Watch that he met them at a mosque in March 2001, hosted them at his home, and in June 2001 drove them from Virginia to Connecticut and after that he did not see them again. Alrababah was questioned by two FBI agents and then taken to the Hartford Correctional Center, where he was held for about twenty days. Alrababah was placed in isolation. He was strip and cavity-searched at least once a week. He was not allowed to make any phone calls from the detention center but did telephone his fiancée, a U.S. citizen, a few times from the FBI office where he was taken for interrogations.

When he asked why he was detained, he was reportedly told, "you're a protected witness," but he said he was not given any document that detailed any charges against him or that stated that he was a material witness.

In mid-October, six or seven FBI agents interrogated Alrababah for four or five hours. He said he was informed of his right to have an attorney present but he waived his right telling agents, "I'm innocent. I am sure about what I say." Alrababah said one of them, an agent named "Burkowski" threatened him. "He was yelling and screaming. He said `disgusting Arabs,' and told me `I'm going to throw you out of the window like they do in your country.'" Alrababah was interrogated two or three more times, always without an attorney present.

Alrababah was moved to the Metropolitan Correctional Center in Manhattan at the end of October. There he spent about forty-five days in isolation with the lights constantly on. He was reportedly hardly allowed out of the cell. "If you're lucky, you get one hour [of outside time] a week," he told Human Rights Watch. He also said that communication with the outside was "horrible." Alrababah said that he could not call anyone and was only able to tell his fiancée that he was in detention through another detainee. "Nobody knows you are there," he said.

His fiancée confirmed that this detainee called her with Alrababah's message. She had found out from officials where Alrababah was held just a few days before; officials also told her that she could communicate with him only via mail.

From Manhattan, Alrababah was transferred to the Metropolitan Detention Center in Brooklyn in late November. He said that he was assigned an attorney the day he was supposed to appear before a grand jury, but he never testified. Alrababah said that he did not have an attorney during the first two months he was in detention. Despite being a material witness, he said he was not assigned a lawyer and he had tried to hire one but without success due to the difficulties of communicating with the outside from the detention centers.

Alrababah was moved to Alexandria City Jail, Virginia, in early December, where he appeared before a court for the first time since his arrest in September. He was charged with conspiracy and document fraud for signing a form falsely certifying that a New Jersey man was a Virginia resident, which allowed the man to obtain a Virginia driver's license. The man has not been linked to terrorism. Alrababah has not been charged with directly helping any of the alleged hijackers obtain driver's licenses or with knowing their plans.

Alrababah was removed from solitary confinement and placed with the general prison population on February 21, 2002, after spending almost four months isolated in detention. He pleaded guilty to the document fraud charge and was sentenced to time served. He remains in detention pending deportation as of this writing.242

· Abdallah Higazy, whose case is described above, was detained as a material witness on December 17, 2001. He was held at the Metropolitan Correctional Center in Manhattan, New York, where he spent thirty days in solitary confinement.

Higazy said he was only allowed out of the cell three times a week for showers, during which he was handcuffed. He said his cell was ten-by-eleven feet, had a toilet, a bed with a mattress, two sheets, and one blanket. He said the cell was very cold. After two weeks in detention Higazy saw that other detainees had two blankets, and asked for another one. The lights in his cell were kept on twenty-four hours a day. He complained about the lights once orally, but received no response. He said he was never told he could complain in writing.

When Higazy learned later that he was supposed to be allowed outside time, he requested it seven times, until he was finally permitted to go outside once, the only time during his incarceration. The outside area that he was taken to on that occasion was indoors, though. The detainee said it was a big room (twenty-by-eleven feet) with nothing there (no television or radio). It was "like walking in a bigger cage," he told Human Rights Watch.

Higazy never testified before a grand jury. He was charged with lying to the FBI for denying that a pilot's radio allegedly found in his hotel room belonged to him. As described above, he was released when the owner of the radio, an American pilot, went to the hotel to claim it.243

· On October 11, law enforcement officials arrested nine Egyptian, one of whom was a naturalized U.S. citizen, in Evansville, Indiana.244 Eight of the men were held as material witnesses and the ninth man, Mohammed Youssef, was held on immigration charges. Although the reason for their arrest is unknown, the wife of Fathy Saleh Abdelkhalek, one of the detainees, told a local newspaper that she had triggered the arrest when she called authorities and told them that her husband was suicidal and had threatened to die in a crash.245 Friends of Abdelkhalek later said that he was not suicidal but that he and his wife had arguments about him sending most of his money home to his children in Egypt.

The men were allegedly only allowed to make a phone call after they were questioned by the FBI and could not talk to their attorneys for four days after that. They were first held at the Henderson County Detention Center, Kentucky, and later transferred to the Chicago Metropolitan Correction Center. They said they were not allowed to call their families from the Chicago facility.

Seven of the nine were released on October 18; Abdelkhalek was released on October 26, and Youssef remained in detention and faced deportation proceedings. Abdelkhalek returned to jail a few days later on immigration charges after his wife, who is a U.S. citizen, refused to sign documents that would allow him to stay in the United States.246

· Dr. Al-Badr Al-Hazmi, a Saudi national working as a doctor in San Antonio, Texas, was held as a material witness for thirteen days. He was taken first to a local jail, then flown to New York. Authorities allegedly questioned him about a flight he booked and about his credit cards. Al-Hazmi's name is similar to two of the alleged hijackers. He was described in the press by federal government sources as a key suspect who had provided funds for the hijackers. He was denied access to a lawyer for six days, during which he was interrogated repeatedly. He never testified before a grand jury and was never charged with any crime or immigration violation.247

· Jose Padilla, a U.S. citizen who later used the name of Abdullah Al Mujahir, was arrested on May 8, 2002 on a material witness warrant when he arrived from Pakistan at Chicago's O'Hare International Airport. U.S. officials claimed he had met with al-Qaeda representatives overseas and had plotted to explode a "dirty bomb" on U.S. soil.248 Padilla was transferred to the Metropolitan Correctional Center in New York, where he was held for a month and where he had access to an attorney.249 On June 9, U.S. President George W. Bush signed an order designating Padilla as an "enemy combatant" and directing Defense Secretary Donald Rumsfeld to arrest and detain him indefinitely for interrogation. Padilla was transferred to the control of the U.S. military and moved to a Navy brig in South Carolina, where he is being held without charges or access to an attorney.250

The Department of Justice's use of material witness warrants to hold individuals in connection with the September 11 investigation has prompted two court decisions reaching opposite results on the lawfulness of such warrants. On April 30, 2002, a federal district judge in New York ruled that the use of material witness warrants to hold persons for future appearances before a grand jury was unlawful.251 After an analysis of the material witness statute and constitutional considerations, the judge concluded that material witness warrants may only be issued after a criminal case has been filed, and not for a grand jury investigation. She wrote: "If the government has a probable cause to believe a person has committed a crime, it may arrest that person, ...but since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation."252

In July, in another case, a different federal district court judge in New York upheld the use of material witness warrants in the context of grand jury investigations.253 The judge argued that Congress had intended the material witness statute to apply to grand jury proceedings as well as trials; that detaining witnesses for appearance before a grand jury did not violate the Fourth Amendment, and that courts for decades have routinely applied the statute on the assumption that it could be used to secure the testimony of material witnesses before a grand jury. 254

The court's opinion in United States v. Osama Awadallah offers a detailed picture of how the Department of Justice used a material witness warrant in the case of Osama Awadallah, a lawful permanent resident of the United States and a citizen of Jordan, and how he was treated while detained. Awadallah was first held as a material witness and later charged with perjury for denying to federal investigators that he knew the name of one of the September 11 alleged hijackers, even though he admitted he had met him and another hijacker, whom he identified.255 The judge ruled his detention illegal and suppressed his testimony not only because of the misuse of the material witness statute in the context of a grand jury investigation but because of an array of other violations committed by the U.S. government. The material witness statute provides that no individual may be detained if his or her testimony can adequately be secured by deposition.256 In an earlier decision the same judge had concluded that despite being detained for twenty days as a material witness, "there was no indication that the government had attempted to take Awadallah's deposition or offered to explain why it would not have been feasible-even though Awadallah's counsel made the offer to have Awadallah deposed."257 In addition, the judge determined that the arrest warrant against Awadallah was improperly issued due to "intentional misrepresentations and omissions" contained in the government affidavit, which exaggerated his flight risk and failed to say that he had fully cooperated with law enforcement agents.258

The proceedings in Awadallah's case also revealed a grim picture of the treatment that he and other material witnesses received while in custody. As the judge pointed out, Awadallah was held under conditions "more restrictive than that experienced by the general prison population."259 Whenever he was transported he was placed in a "three-piece suit," consisting of leg shackles, a belly chain, and handcuffs looped through the belly chain so that the hands were restrained at his waist. He was held in solitary confinement, not allowed to have family visits, and unable to make telephone calls for the twenty days he was held as a material witness; his attorney was unable to locate him for four days. Awadallah was also denied showers for many days and strip-searched each time he was taken from and to his cell.

Awadallah and some other material witnesses were held in the maximum-security wing at the Metropolitan Correctional Center (MCC) in New York. Two material witnesses who had been incarcerated there independently told Human Rights Watch that they were held in isolation with the lights on twenty-four hours a day and could not make a single phone call during their stays there (forty-five days for one and thirty days for the other).260 They also said that they were hardly ever allowed outside of their cells. Human Rights Watch requested but was denied access to the Metropolitan Correctional Center.261

Government statements filed in the Awadallah proceedings confirmed a policy at MCC of prohibiting material witnesses from making phone calls.262 The government acknowledged in an affidavit that "Awadallah and other inmates who were at the New York MCC in connection with the investigation into the September 11 terrorist attack were designated high-security inmates and handled in accordance with the procedures for such inmates."263 According to another government affidavit: "The warden determined that until [the MCC] had any concrete evidence from the FBI or other folks, that there was not a terrorist association or anything of that nature, [the MCC] would have to keep [the material witnesses] separate" and special precautions would apply.264 Prison officials recorded their movements with a hand-held camera, a policy that had been previously used with the "African Embassy bombers," the persons charged in the 1998 bombings of the U.S. embassies in Nairobi and Dar es Salaam.265

We were treated like criminals. We felt discriminated against and treated different from other detainees. Our requests were ignored; we were held in isolation and had no access to our lawyer for two weeks. Other prisoners did not face these conditions. We felt the treatment was degrading.

Bah Isselou, INS detainee,

October 6, 2001.266

169 International Covenant on Civil and Political Rights, Art. 9(1).

170 Ibid.

171 The Human Rights Committee, the international body that monitors compliance with the International Covenant on Civil and Political Rights, has determined that arrest and detention are arbitrary if not conducted in accordance with procedures established by law, or if the law itself and its enforcement are arbitrary. Therefore, a detention may be arbitrary even if it is "lawful." In a case involving a Cambodian asylum seeker, the Human Rights Committee noted that "`arbitrariness' must not be equated with `against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice." See A v. Australia (Human Rights Committee, No. 560/1993), U.N. Doc. CCPR/C/59/D/560/1993; and Van Alphen v. Netherlands (Human Rights Committee, No. 305/1988), U.N. Doc. CCPR/C/39/D/305/1988. Manfred Nowak, a leading commentator on the ICCPR, has stated that the prohibition against arbitrariness should be understood broadly to include deprivations of liberty that are "manifestly unproportional, unjust or unpredictable." Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 1993.

172 Zadvydas v. Davis, 533 U.S. 678, 121 Ct. 2491 (2001), citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Claims asserting arbitrary detention have also been made on other grounds, such as the right to counsel under the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right to ...have the assistance of counsel for his defense") and the excessive bail provision of the Eighth Amendment ("Excessive bail shall not be required").

173 Zadvydas v. Davis, citing Plyler v. Doe, 457 U.S. 202 (1982); and Mathews v. Diaz, 426 U.S. 67 (1976).

174 International Covenant on Civil and Political Rights, Art. 9(4).

175 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56.

176 Ibid, sec. 412.

177 The statement by the Department of Justice was one of the few periodic reports to Congress required by the USA PARTIOT Act. See Tom Brune, "U.S. Evades Curbs in Terror Law,", April 26, 2002.

178 8 CFR 287, INS No. 2171-01

179 The original regulation is contained in 8 CFR 287.3(d).

180 In County of Riverside v. McLaughlin, the Supreme Court ruled:

Our task in this case is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment.... We believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.

This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate [United States law] if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." (Emphasis added.)

County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

181 8 CFR 287, INS No. 2171-01.

182 "Supplementary Information" to 8 CFR 287, INS No. 2171-01.

183 The Department of Justice also released a list of those charged with federal crimes. Although this list provided the date of charge it did not include the date of arrest; thus, it is impossible to know how much time elapsed from one to another.

Besides the arrest date and the date when the charging document was served, the list of "special interest" cases included the detainees' nationality, the date when the charging document was filed with the immigration court, and the immigration charge. Other important information such as the detainees' names, arrest location, custody location, and whether they are of interest to the FBI, was redacted. Also redacted were: "JTTF Comments," "Counsel Comments," "DRO Comments," "Bond Info.," "SIOC FBI Interest," and a box under the heading "Legally Sufficient." A press report asserts that JTTF may mean "Joint Terrorism Task Force" and SIOC may mean "Strategic Information and Operations Center" (an intelligence center). Jim Edwards, "Data Show Shoddy Due Process for Post-Sept. 11 Immigration Detainees," New Jersey Law Journal, February 6, 2002. See Appendix A for the first page of this list.

184 Depending on the time of day a person was detained and the charging document served, charging two days after the arrest may or may not be within forty-eight hours of the arrest.

185 The first list released by the Department of Justice on January 4, 2002 lacked this information in more than 16 percent of the cases. The government subsequently disclosed a second list that contained "handwritten corrections to mistakes or omissions that were due to clerical error in the original [document]." "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, 2002 U.S. District Court, Lexis 14168 (D.D.C. August 2, 2002). The amended list gave the date the charges were filed for a few but not all cases in which it was missing. The government did not give a reason for its failure to provide such basic information.

186 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.

187 A detainee has the right to ask for a bond hearing even if he or she has not received a charging document. 8 CFR 3.14(a).

188 Human Rights Watch interview with Palestinian civil engineer, Paterson, New Jersey, December 20, 2001; and email communication with his attorney, May 24, 2002. The detainee's name has been withheld upon request. An immigration judge terminated the proceedings against him on February 14, 2002 based on the fact that he was in legal status.

189 Steve Fainuru, "Suspect held 8 Months Without Seeing Judge," Washington Post, June 12, 2002.

190 Human Rights Watch telephone interview with Adem Carroll, 9/11 relief coordinator for the Islamic Circle of North America, New York, New York, June 13, 2002. Several newspaper reports linked Almarabah to the alleged hijackers and al-Qaeda. See, for instance, Dan Eggen, "Officials Winnow Suspect List: Most in Detention Being Cleared as Sept. 11 Probe Slows," Washington Post, December 14, 2001; Amy Goldstein, "A Deliberate Strategy of Disruption: Massive, Secretive Detention Effort Aimed Mainly at Preventing More Terror," Washington Post, November 4, 2001; and Shelley Murphy, and Stephen Kurkjian, "Lawyers KO Payment for Man in Probe," Boston Globe, September 28, 2001.

191 Human Rights Watch interview with Afzal Kham, Passaic County Jail, Paterson, New Jersey, February 6, 2002. Human Rights Watch interviewed him with the assistance of a fellow detainee who translated for him.

192 Regulation 8 CFR 3.14(a) says:

Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party pursuant to sec. 3.32 which indicates the Immigration Court in which the charging document is filed. However, no charging document is required to be filed with the Immigration Court to commence bond proceedings.

193 The vast majority of INS detainees are unrepresented, as they do not have the right to free-of-charge, court-appointed counsel. See note 152 above.

194 8 USC 1231 (a)(6)

195 Patel v. Zemski, 2001 F.3d, No. 01-2398.

196 Ngo v. INS, 192 F.3d 390 (3d. Cir. 1999).

197 Affidavit by Michael E. Rolince, section chief of the FBI Counterterrorism Division's International Terrorism Operations Section, filed in the cases of Ali Abubakr Ali Al-Maqtari, October 11, 2001, and Osama Mohamed Bassiouny Elfar, October 4, 2001, para. 11.

198 Affidavit by Rolince filed in the case of Al-Maqtari, para 12.

199 Affidavit by Rolince filed in the case of Elfar, para. 11. Osama Elfar said that he arrived in the United States three years after the World Trade Center bombing in 1993. Human Rights Watch telephone interview with Osama Elfar, Mississippi County Jail, Missour, November 21, and 26, 2001.

200 Human Rights Watch telephone interviews with Al-Maqtari and Tiffanay Hughes, New Haven, Connecticut, November 29, 2001; with Michael Boyle, their attorney, New Haven, Connecticut, October 24, 2001; with Elfar; and with his attorneys Dorothy Harper, October 22, and 24, 2001, and Justin Meehan, October 22, 23, and 24, 2001, and February 25, 2002.

201 Affidavit by Rolince filed in the cases of Al-Maqtari, and Elfar, para. 13.

202 Human Rights Watch telephone interviews with Elfar; with Harper; and with Justin Meehan.

203 Human Rights Watch telephone interviews with Al-Maqtari and Hughes; and with Boyle.

204 Human Rights Watch telephone interviews with Dennis Clare, Louisville, Kentucky, October 23 and 31, 2001.

205 Jim Edwards, "Attorneys Face Hidden Hurdles in September 11 Detainee Cases," New Jersey Law Journal, December 5, 2001. See also, Mae Cheng, "Questions Raised About Detainees," Newsday, December 17, 2001.

206 8 CFR Part 3, INS No. 272-01; and AG Order No. 2528-2001.

207 The immigration courts are part of the Department of Justice but are independent from the Immigration and Naturalization Service. An attorney general's ruling on an immigration case brought to him can be challenged in federal court.

208 A person who leaves the United States under voluntary departure has a clean record and can apply for a visa in the future, whereas a person removed from the country under a deportation order is barred from re-entering the United States for ten years, unless he or she obtains a special waiver from the U.S. government. Non-citizens who are granted voluntary departure have to pay for their own plane transportation out of the country.

209 Human Rights Watch telephone interviews with Orin Behr, Maryland, December 12; and David Leopold, Orin Behr's attorney, Cleveland, Ohio, December 10, 2001. For a press report on the case, see Tamara Audi, "Israelis detained, deported during sweep by immigration agency," Detroit Free Press, November 15, 2001.

210 Kula finished classes at Baruch College, New York, on October 17, 2001, but he was legally in the country when he was arrested on November 20 because students are permitted to stay sixty days after classes end. Kula's wedding-which was to have been December 1-would have made him eligible for a work permit. In an interview with reporters, Russ Bergeron, an INS spokesman, said that detainee's rights were not abridged, and noted that Kula could get married in jail. Kula's fiancée asked for just such a ceremony but the local sheriff, who ran the facility where Kula was detained, denied her request. "Muslim behind bars, despite a judge's order,", November 7, 2001; "No honeymoon," U.S. News & World Report, 17 December 2001; and Maki Becker, "Turkish Immigrant Held Despite Judge's Order," New York Daily News, December 9, 2001.

211 Ursula Altagracia Almonte-Vargas v. Kenneth Elwood, 2002 U.S. Dist. E.D. Penn. Lexis 12387.

The detainee was a woman and a citizen of the Dominican Republic and had not been arrested in connection with the terrorist investigation of the September 11 attacks. Her case is a reminder that the changes to immigration regulations issued by the Department of Justice in the months after September 11 apply to all non-citizens, not only those detained under suspicion of links to or knowledge about terrorism.

212 Ibid., p. 5.

213 Dana 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.

214 Human Rights Watch telephone interview with attorney Regis Fernández, Newark, New Jersey, December 17, 2001.

215 Human Rights Watch interviews with Sohail Mohammed, Clifton, New Jersey, November 5 and December 19, 2001.

216 The men are an Egyptian national represented by Rifat Harb of New Jersey, an Egyptian and a Palestinian represented by John Crow of Tucson, Mahmood Abbasi, and Mehmet Aktas. Human Rights Watch telephone interview with attorney Rifat Harb, New York, October 30, 2001; Somini Sengupta and Christopher Drew, "Effort to Discover Terrorists Among Illegal Aliens Makes Glacial Progress, Critics Say," New York Times, November 12, 2001; and Brian Donohue, "Foreigners linger in jail despite order to leave," Newhouse News Service, November 16, 2001.

217 Human Rights Watch telephone interviews with Uzi Bohadana, Hollywood, Florida, November 13, 2001; and with attorney Patricia Ice, Jackson, Mississippi, November 5, 2001.

218 241 (a)(1)(A).

219 241 (a)(1)(C).

220 8 USC 1229(a)(2). See note 208 above for the distinction between deportation and voluntary departure.

221 Under an order of voluntary departure with safeguards, the non-citizen must be kept in custody until the INS can carry out his or her removal from the country.

222 Jim Edwards, "Attorneys Face Hidden Hurdles in September 11 Detainee Cases," New Jersey Law Journal, December 5, 2001.

223 Christopher Drew and Judith Miller, "Though Not Linked to Terrorism, Many Detainees Cannot Go Home," New York Times, February 18, 2002.

224 Human Rights Watch interview with Mohammed Munir Gondal, INS's Elizabeth Detention Center, January 27, 2002; and with attorney Michael Levitt, New York, New York, February 28, 2002.

225 Ibrahim Tukmen v. John Ashcroft, "Class Action Complaint and Demand for Jury Trial," April 17, 2002.

226 Human Rights Watch interviews with Habib Soueidan and Mohammed Riaz, Passaic County Jail, Paterson, New Jersey, February 6, 2002. Mohammed Riaz was detained at his home by INS and FBI agents. He was interrogated twice by the FBI but never told by any law enforcement agent that he had the right to an attorney or to contact the consular office of Germany. He was ordered deported on October 25, 2001. Habib Soueidan, a Lebanese citizen, was arrested on October 11, 2001 by New York City police for selling on the street without a license and handed over to the INS. He was ordered deported on October 31.

227 Tukmen v. Ashcroft. Saffi was arrested on September 30, 2001, ordered deported on October 17, 2001 and removed from the United States on March 5, 2002.

228 Tukmen v. Ashcroft. Jaffri was arrested on September 27, 2001, ordered deported on December 20, 2001, and removed from the country on April 1, 2002.

229 Request filed before the Inter-American Commission on Human Rights, Organization of American States, by the International Human Rights Law Group, the Center for Constitutional Rights, and the Center for Justice and International Law for Precautionary Measures under article 25 of the commission's regulations, June 20, 2002.

230 Tukmen v. Ashcroft.

231 The detainee was Shakir Baloch and he was still in detention at this writing. Human Rights Watch interview with attorney Bill Goodman, New York, New York, March 25, 2002.

232 Human Rights Watch telephone interview with attorney Justin Meehan and the following press reports: "Immigration Detainee Takes Fight for Freedom to Court," Herald News, January 9, 2002; "INS Detainee Hits, US Strikes Back," Village Voice, February 5, 2002; and Drew and Miller, "Though Not Linked to Terrorism, Many Detainees Cannot Go Home."

233 See note 152 above.

234 Quince v. State, 179 A.2d 485, 487 (1962). The Rhode Island Supreme Court ruled in this case that a material witness had been unlawfully detained.

235 At least in some, and perhaps all, material witness cases, the Department of Justice has obtained judicial orders sealing the proceedings.

236 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. 28.

237 18 U.S.C. § 3144. The federal material witness statute provides:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person.... No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

238 The government has used material witness warrants in the past to keep suspects in detention for long periods of time. Examples include Wen Ho Lee, a nuclear weapon scientist suspected of but never charged with leaking national security documents; James Nichols, the brother of Terry Nichols who was convicted in connection with the 1995 Oklahoma City bombing; and Abraham Ahmad, a Palestinian American arrested in the aftermath of the Oklahoma City bombing but never charged. Richard Serrano, "After the Attack," Los Angeles Times, September 26, 2001.

239 Viet Dinh, assistant attorney general, Office of Legal Counsel, Department of Justice, wrote:

Each of the detainees has been charged with a violation of either immigration law or criminal law, or is the subject of a material witness warrant issued by a court. The aim of the strategy is to reduce the risk of terrorist attacks on American soil, and the Department's detention policy already may have paid dividends. These detentions may have incapacitated an Al Qaeda sleeper cell that was planning to strike a target in Washington, DC-perhaps the Capitol building-soon after September 11.

Viet Dinh, "Freedom and Security after September 11," 25 Harvard Journal of Law and Public Policy 399, Spring 2002.

240 Center for National Security Studies v. U.S. Department of Justice, p. 30.

241 Human Rights Watch interviews with Tony Oulai, Alexandria City Jail, Virginia, February 9, 2002; telephone interviews with his sister Leoncied Ouayouro, Fairfax, Virginia, February 1, 2002, and March 25, 2002; and with his attorney David Sontan, Virginia, February 1, 2002. See also, Amy Goldstein, "`I Want to Go Home': Detainee Tony Oulai Awaits End of 4-Month Legal Limbo," Washington Post, January 26, 2002; Amy Goldstein, No Longer Material Witness, West African Still Detained," Washington Post, February 15, 2002; and Amy Goldstein, "No Longer a Suspect, But Still a Detainee," Washington Post, May 27, 2002.

242 Human Rights Watch interview with Eyad Mustafa Alrababah, Alexandria City Jail, Virginia, February 5, 2002; and telephone interview with Ardra Doherty, Eyad Mustafa Alrababah's fiancée, Nutley, New Jersey, January 15, 2002.

243 Human Rights Watch telephone interview with Abdallah Higazy, New York, New York, February 1, 2002. See also the chapter, Denial of Access to Counsel, in this report.

244 The men are Fathey Saleh Abdelkhalek, thirty-four; Tarek Abdelhamid Albasti, twenty-nine, a naturalized U.S. citizen; Tarek Eid Omar, twenty-six; Khaled Salah Nassr, twenty-five; Yasser Shahin, twenty-four; Adel Ramadan Khalil, forty-six; Hesham Salem, twenty-eight; Ahmed Attia Hassan, twenty-six; and Mohammed Youssef, age unavailable. The men were former members of the Egyptian national rowing team. The FBI had visited Albasti twice prior to his arrest to inquire about his political beliefs and flying lessons he had taken. Albasti said that the lessons were a gift from his father-in-law, a lawyer and former United States diplomat who is a pilot.

245 Dave Hosick, "`It Was My Responsibility to Tell,'" Evansville Courier and Press, October 22, 2001.

246 "Federal authorities detain nine people in connection with terrorist activity," Associated Press, October 12, 2001; Terry Horne and Mike Ellis, "Feds detain 8 from Evansville in terror probe: All being held as material witnesses in FBI's investigation after Sept. 11 attacks," Indianapolis Star, October 13, 2001; Kimberly Hefling, "Men detained Sept. 11 hope their ordeal is finally over," Associated Press, October 28, 2001; Amy Goldstein et al., "A Deliberate Strategy of Disruption. Massive, Secretive Detention Effort Aimed Mainly at Preventing More Terror," Washington Post, November 4, 2001, p. A01; Pete Yost, "3 Tunisians ordered out of U.S.," Associated Press, November 15, 2001; Don Van Natta, "Arrests have yielded little so far, investigators say," New York Times, October 21, 2001; Kim Baker, "Thread of a Threat Led to Wide Dragnet," Chicago Tribune, November 5, 2001; and Kimberly Hefling, "2 detainees in terror probe are now facing deportation: The Evansville men remain in jail, waiting for their month-old cases to be resolved," Associated Press, November 16, 2001.

247 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. See also, Scot Paltrow and Laurie P. Cohen, "Government won't disclose reasons for detaining people in terror probe," Wall Street Journal, September 27, 2001; Robyn Blumner, "Abusing detention powers," St. Petersburg Times, October 15, 2001; and "Saudi Doctor Proclaims Innocence After Release," Washington Post, September 26, 2001.

248 The attorney general said: "In apprehending Al Muhajir as he sought entry into the United States, we have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive `dirty bomb.'" A dirty bomb involves exploding a conventional bomb that not only kills victims in the immediate vicinity, but also spreads radioactive material that is highly toxic to humans and can cause mass death and injury. "Transcript of the Attorney General John Ashcroft Regarding the transfer of Abdullah Al Muhajir (Born Jose Padilla) to the Department of Defense as an Enemy Combatant,", June 10, 2002.

249 Al Muhajir appeared before a judge on May 15, 2002, who assigned him counsel.

250 José Padilla v. George Bush, "Amended Petition for Writ of Habeas Corpus," United States District County for the Southern District of New York, June 19, 2002. Human Rights Watch questions the government's contention that international humanitarian law-or the laws of war-permits the president to unilaterally designate Padilla an "enemy combatant" who may be held by the military without charge or access to an attorney. International humanitarian law applies to the international armed conflict in Afghanistan, but it does not apply to any and all members of al-Qaeda regardless of their individual involvement with that conflict. If suspects are apprehended outside areas of armed conflict and have no direct connection to the conflict, international humanitarian law is inapplicable. Instead, the protections of international human rights law apply. In the case of a U.S. citizen detained in the United States, the protections of U.S. constitutional law apply as well. These protections include the rights to be formally charged and permitted access to counsel.

251 United States of America v. Osama Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. April, 2002).

252 Ibid, p. 59

253 In re the Application of the United States for a Material Witness Warrant, 2002 U.S. Dist. Lexis 13234 (S.D.N.Y. July 11, 2002).

254 The Fourth Amendment to the U.S. Constitution states: "The right of people against ...unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause."

255 Osama Awadallah was a subject of the investigation because agents found a scrap of paper in a car abandoned by the alleged hijackers with the phone number of a residence where he briefly lived two years earlier. He was arrested September 20, 2001 and spent eighty-three days in prison before being released on bail. See discussion of this case in the chapter, Denial of Access to Counsel, in this report.

256 See statute in note 237 above.

257 United States of America v. Awadallah.

258 Second Opinion and Order, United States of America v. Awadallah.

259 First Opinion and Order, United States of America v. Awadallah.

260 Human Rights Watch interview with Alrababah; and telephone interview with Higazy.

261 The warden of MCC denied Human Rights Watch's request in a November 30, 2001 letter that stated that the events of September 11 required the facility to minimize "activities not critical to the day-to-day operations of the institution." Gregory L. Parks, warden, Metropolitan Correctional Center. Letter to Human Rights Watch, November 30, 2001.

262 First Opinion and Order, United States of America v. Awadallah.

263 Government affidavit by U.S. Deputy Marshall Scott Shepard, cited in United States of America v. Awadallah, First Opinion and Order, p. 10.

264 Government memorandum cited in United States of America v. Awadallah, First Opinion and Order, p. 10.

265 Ibid, p. 11.

266 Human Rights Watch telephone interview with Bah Isselou, Florida, October 6, 2001.

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