“We have to hold these people until we find out what is going on.” According to a report issued June 2 by the Justice Department’s own Inspector General, that’s what Michael Chertoff, head of the department’s criminal division, told his deputy in the wake of the September 11, 2001, attacks. He was referring to hundreds of immigrants swept up and labeled “of interest” to the 9/11 investigation. The report finds that in order to “hold these people,” high-level Justice Department officials exploited immigration law for purposes it was never designed for–denying immigrants bond without evidence that they were dangerous, holding them incommunicado under unduly harsh conditions and keeping them locked up for months, even after they had agreed to leave the country.
The immigrants, nearly all Arab or Muslim, were picked up on flimsy or no evidence and held as long as the FBI could not rule out that they might somehow be connected to the attacks. The government charged them with routine immigration violations and adopted a blanket, and blatantly illegal, policy of denying bond even when it had no reason to believe that a detainee posed a danger or flight risk. The Immigration and Naturalization Service adopted an official practice of seeking continuances and extensions to obscure the fact that it had no evidence and to keep immigrants detained without hearings.
The only legitimate purpose for immigration detention is to remove a person from the country. But the Inspector General reports that long after the cases were resolved and immigrants had agreed to leave, they were kept behind bars, solely because the FBI had not yet cleared them of connection to terrorism, a process that took an average of eighty days and as long as 244 days.
Most remarkable, not a single one of the more than 700 people held as “of interest” to the 9/11 investigation was charged with the crimes of that day, or with any terrorist crime whatsoever. Virtually all were cleared of any connection to terrorism. The government had presumed them guilty of terrorism, but they turned out to be innocent. Yet they were all treated as terrorists and held and tried in secret. Many were placed in twenty-three-hour lockdown and held for an initial period of weeks, in which they were not allowed to communicate with their families, their lawyers or their fellow inmates.
The Justice Department’s response to the Inspector General’s report was classic Ashcroft. He not only refused to apologize but actually had the nerve to treat it as a validation, not an indictment, of his actions. Department spokeswoman Barbara Comstock claimed that “the Inspector General’s report is fully consistent with what courts have ruled over and over–that our actions are fully within the law and necessary to protect the American people.”
In fact, the Inspector General never suggested that the government’s actions were legal–he explicitly declines to adopt a legal conclusion either way. But the Justice Department has advised its officials to obtain lawyers for their defense. And for good reason. Contrary to Comstock, all but one of the courts that have addressed the government’s treatment of the detainees have found its actions illegal. A district court has held its secret arrests illegal; two district courts and a court of appeals held its secret immigration hearings unconstitutional; and two district courts have ruled unconstitutional its policy of keeping immigrants locked up even after immigration judges order their release. Only one court, a divided court of appeals, has ruled in the government’s favor, upholding the closure of immigration hearings to the press; the government avoided Supreme Court review of that policy only by informing the Court that it was abandoning it. A substantial class-action challenge, brought by the Center for Constitutional Rights, to the policy of keeping immigrants locked up long after their cases have been resolved is pending in federal court in Brooklyn.
In short, the Justice Department is as careless about the truth regarding the legality of its own actions as it was careless about the terrorist connections of its detainees. And it’s only going to get worse. Attorney General Ashcroft used the occasion of his testimony before Congress shortly after the release of the Inspector General’s report to ask for even more sweeping powers, including more death penalties, broader imposition of guilt-by-association for supporting blacklisted groups, and expanded preventive detention authority, this time applied to citizens. But why should Congress give more power to a man who has not only abused the power he already wields but cannot even acknowledge his own wrongdoing?