U.S. government detention of suspects.

The Bush administration's program to require Middle Eastern males to submit to special registration comes on the heels of a similar crackdown the U. S. Justice Department pursued in the wake of the September 11, 2001, attacks. Once again, human rights groups expressed similar concerns about the civil liberties of both programs' targets.

After the attacks, the U.S. government detained more than 1,200 non-U.S, nationals--mostly men of Arab or South Asian origin--in nationwide sweeps for possible suspects, and few of these detainees remain in custody. According to Justice Department spokesperson Mark Corallo, within six months in 2002, 150 of the remaining detainees either pleaded guilty to, or were convicted of, criminal violations. Still, all available public records and sources show that none of the convictions related to September 11, 2001.

Six days after the terrorist attacks, the U. S. Department of Justice issued an interim administrative rule. This law extended the period of time a nonnational can be held in the Immigration and Naturalization Services' (INS) custody without formal charges of violating criminal or immigration law, from twenty-four to forty-eight hours for an undefined period in "an emergency, or in other extraordinary circumstances."

According to Amnesty International's (AI) March 2002 report entitled "Amnesty International's Concerns Regarding Post-September 11 Detentions in USA," as of January 2002, 317 individuals--out of a total of 718 INS detainees at the time--had been charged after 48 hours. In 36 out of the 718 cases, the suspects were charged 28 days or more after their arrests. In all 718 of those cases, the charges that the U.S. government eventually filed were immigration violations, some of them routine. Two Pakistani men were held for forty-nine days in custody and another man for thirty days before the INS charged them with overstaying their visas. Barbara Olshansky, an attorney at the Center for Constitutional Rights, said:

   The INS has taken a different
   approach with post-9/11 detainees,
   not because they
   violated the immigration
   laws, but rather because federal
   law enforcement authorities
   deemed them potential
   (but not actual or even probable)
   terrorists often based
   on vague suspicions rooted
   in racial, religious, ethnic,
   and/or national origin stereotypes
   rather than in hard
   facts.

The Department of Justice hasn't responded to these allegations. In a federal court decision in the summer of 2002, U.S. District Judge Gladys Kessler took issue with the manner in which the government rounded up the post-September 11, 2001, detainees. Kessler said:

   Here the government has used its arrest
   power to detain individuals as part of an
   investigation that is widespread in
   scope and secrecy. Plaintiffs voice grave
   concerns about the abuse of this power,
   ranging from denial of the right to counsel ... to
   the failure to file charges for
   prolonged periods of detention to mistreatment
   of detainees in custody.

Individuals held for immigration violations in the United States have a right to counsel but not to court-appointed or state-funded attorneys. For many, the only way to receive counsel is through pro bono or low cost legal assistance from non-governmental organizations. But attorneys and NGOs reported experiencing problems while trying to gain access to detention facilities to screen for those needing assistance.

According to Rebecca Thornton, a spokesperson for the Lawyer's Committee on Human Rights, officials denied many attorneys without a G-28 form stating that a lawyer represents a client entry to INS detention centers to screen for new clients. The 2002 Al report reveals that the detainees themselves voiced numerous complaints. Chief among the complaints: denial of right to an attorney. The report said officials didn't advise some post-September 11 detainees of their right to an attorney during initial questioning by the Federal Bureau of Investigation. Other detainees reported that officials refused their requests for attorneys. Several detainees alleged that officials threatened them or treated them in an ill manner during questioning. For example, according to the 2002 AI report:

   A Pakistani man arrested in Florida said
   he asked repeatedly for a lawyer while
   being interrogated by the INS in Miami
   for several hours handcuffed to a
   chair.... His request was denied, and his
   attorney spent a day trying to find out
   where he was detained before locating him
   the next day at the INS detention center.

Others reported difficulties in obtaining counsel once detained in INS detention facilities. INS detention standards require that detainees should be given a list of organizations able to provide pro bono or other representation, and that they should be allowed to make phone calls to legal service providers and other key contacts. However, according to Al, detainees consistently reported that detention officials denied them adequate telephone access.

In the Metropolitan Detention Center (MDC) in Brooklyn, New York, a number of detainees reported that officials refused them any access to phones during the early part of their detention. Some detainees interviewed for the 2002 Al report alleged that they waited as long as twenty-four days before they could make their first call. Detainees in the MDC also reported being allowed just one phone call a week--they had to choose a number from the list of attorneys provided. If no one answered when they called, they had to wait another week before being allowed to try again. Several detainees reported that they tried two or three times to obtain counsel before giving up on finding a lawyer.

Another common complaint made by detainees was that the information on the list of pro bono counsel was inaccurate. Olshansky said, "While INS detainees typically receive a list of organizations that might provide free legal services, the lists given to post-9/11 detainees have been woefully inadequate, containing much inaccurate and outdated information." The MDC, for instance, lists that the INS distributed for weeks contained an out-of-date number for the Legal Aid Society. The Justice Department denies all claims that post-September 11 detainees have been denied counsel. U.S. Attorney General John Ashcroft said in November 2001 that "these detainees do have a right to counsel," adding that the INS provides detainees with information about how to obtain free counsel.

James Reynolds, chief of the Terrorism and Violent Crime Section in the Criminal Division of the U.S. Department of Justice, said, "No one has been denied their right to talk to an attorney.... INS has provided each of the persons detained on immigration violations with information about available pro bono representation."

Immigration lawyers and several human rights groups worry that, although not charged with crimes, many post-September 11 detainees are held in punitive conditions in jails, sometimes alongside people charged or convicted of criminal offenses. Al received reports of cruel treatment, including prolonged solitary confinement, heavy shackling of detainees during visits or court appearances, and lack of adequate exercise. Some detainees also alleged that detention officials physically and verbally abused them.

In his class action suit against INS Commissioner James Ziglar and other "Doe Defendants," Asif-ur-Rehman Shah, eventually charged with a visa violation due to working without authorization, claims that upon his arrival at the MDC "the Doe defendants bent back his thumbs, stepped on his bare feet with their shoes and pushed him into a wall so hard that he fainted.... The lieutenant in charge," the suit contends, "called Mr. Saffi [Shah] a terrorist, boasting that Mr. Saffi would be treated harshly because of his involvement in the September 11 terrorist attacks and threatening to punish him if he ever smiled."

Since the first post-September 11 detentions, the U.S. government released limited data, which doesn't include the names of the detainees, the names of their attorneys, or the places of detention. Adding to the secrecy, the INS has designated these detainees as "special interest cases," closing their immigration hearings not only to the general public but also to family members while sealing the records of their cases.

In an effort to gain information about the identity and location of detainees, several human rights organizations, including Al USA and the American Civil Liberties Union, made a joint formal request to the Department of Justice on October 29, 2001, for the release of records under the Freedom of Information Act. In response, the Justice Department issued the Reynolds Declaration, claiming exemption from the FOIA on grounds that the release of names could aid future terror plots, affect the ongoing investigations, violate the detainees' privacy, and jeopardize their physical safety.

Judge Kessler of the U.S. District Court for the District of Columbia rejected the Justice Department's exemption claims on August 2, 2002. Kessler ordered the Justice Department to release the names of the detainees and their attorneys within fifteen days, unless a detainee requests in writing that his name be omitted. Kessler ordered the release of the names of all material witnesses as well. However, the government did win one victory. The Justice Department doesn't,have to reveal when and where people were arrested and jailed, or as Kessler said, "in the bloodless language of the law `detained.'"

The Bush administration is appealing the ruling on the grounds that releasing the names would give al-Qaeda significant information that it might not already have. Federal attorneys are also filing a motion for a temporary stay of the order, which would allow the government to keep the names secret until after the appeal.

Meggie Sramek will soon graduate--with a double major in English and French--from Duke University at Durham, North Carolina, and is a native of Houston, Texas. This article was written during her internship at the National Journalism Center in Washington, D.C., where she also wrote for the Reston, Virginia, Times Community newspaper.