The Bush administration has launched a massive campaign of preventive detention, based on little evidence of wrongdoing. The INS jailed hundreds of people, without even alleging involvement in Al Qaeda or 9/11.The sweep proceeded under an unprecedented veil of secrecy and under a presumption of guilty until proven innocent.
By David Cole
In 1919, a series of politically motivated bombing attempts culminated in an explosion at the Washington home of Attorney General A. Mitchell Palmer. The federal government responded by rounding up thousands of suspected subversive immigrants across the country. They were held in unconscionable conditions, interrogated incommunicado, and in some cases tortured. In the end, more than 500 were deported, not for the bombing, but for their political associations. The "Palmer Raids," were led in part by a young J. Edgar Hoover, then head of the Justice Department's Alien Radical division. Eventually criticism of the raids brought the nation's first Red Scare to what appeared to be an end.
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Handcuffed detainees lined up against a wall inside the INS detention facility in Baltimore. © Steven Rubin |
The government's current investigation of the terrorist attacks of September 11 does not yet appear to match the excesses of the Palmer Raids. But the government has been so secretive about the detentions this time around that it is difficult to be sure. We don't even know how many people have been detained.
In early November, less than two months into the investigation, the Justice Department said the number was 1,147. But as criticism mounted over the scope of the roundup, the Justice Department responded by simply stopping its practice of announcing the running tally. Thus, there has been no public accounting of the total number detained since November 5. And since the total was just about all the information the Justice Department was willing to share, the detentions remain shrouded in unprecedented secrecy.
What we do know, however, suggests that we may be repeating some of the mistakes of the past. As in the Palmer Raids, the government seems to have dispensed with developing probable cause before arresting individuals, and instead has used pretexts — usually of routine immigration violations — as justification for detaining hundreds of people about whom it has only the faintest suspicion. As in 1919, the government seems to be proceeding not on grounds of individual culpability, but of guilt by association. And as in the Palmer Raids, it has targeted almost exclusively immigrants, a group that by definition has no voice in the political process. As of February, despite the thousand-plus arrests, only one person had been charged with involvement in the 9/11 violence: Zaccarias Moussaoui. And he was picked up three weeks before the attacks. Justice officials claim that 10 or twelve detainees may be linked to Al Qaeda, but that leaves hundreds unaccounted for.
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A girl rollerblades in Bayridge, Brooklyn. Since 9/11, Muslims, Arab-Americans and other profiled groups have faced suspicion and attack. © Mel Rosenthal |
They fall into four categories. More than 725 have been held for alleged immigration status violations; about 120 for federal crimes unrelated to September 11; an undisclosed number for state criminal charges; and a similarly undisclosed but assertedly small number as federal material witnesses, purportedly to preserve their testimony for a criminal proceeding. The Justice Department has been especially closed-mouthed about the largest group of detainees, the more than 725 people held on immigration charges. It refuses even to name them and has ordered them tried in secret, with proceedings closed to the public, the press, legal observers, and even family members. On orders from Attorney General Ashcroft, Chief Immigration Judge Michael Creppy has instructed immigration judges not to list the cases on the public docket, and to refuse to confirm or deny that they even exist. Not even during the Palmer Raids did the U.S. engage in such a wholesale practice of secret detentions and trials.
But facts that have become public — in part from a Freedom of Information Act (FOIA) lawsuit filed by Amnesty International and the Center for National Security Studies, as well as investigations by enterprising journalists — indicate that nearly all the detainees are from Arab and largely Muslim population countries, and that most have little or no connection to the events of September 11.
The fact that the government has cast its net so widely — when it admits that only a handful are even thought to be connected to Al Qaeda — is a reflection of how lacking the government's intelligence was. Indeed, it seems fair to say that the breadth of the government's sweep is inversely proportional to the shallowness of its intelligence. It is swinging in the dark.
GUILTY UNTIL PROVEN INNOCENT
With the exception of Zaccarias Moussaoui and perhaps the material witnesses, all the detainees are being held on "pretextual" charges. The real reason for their incarceration is not that they worked without authorization or took too few academic credits, for example. Rather, the government used these excuses to detain them because it thinks they just might have valuable information, because it suspects them but lacks sufficient evidence to make a charge, or simply because the FBI is not yet convinced that they are innocent.
Consider, for example, Ali Maqtari. A Yemeni citizen, Maqtari was picked up on September 15 when he accompanied his U.S. citizen wife to Fort Campbell, Kentucky, where she was reporting for Army basic training. Agents interrogated him for more than 12 hours and accused him of involvement with terrorists. Maqtari took and passed a lie detector test, but was detained on the highly technical charge that he had been in the country illegally for ten days while changing his status from tourist to permanent resident. The government never offered any evidence linking him to terrorism or to crime of any kind. It merely submitted a boilerplate affidavit from an FBI agent arguing that Maqtari should be detained because the investigation of terrorism is a "mosaic," and therefore, seemingly innocent facts might at some future time turn out to indicate culpability. Two months later, Maqtari was released without charges.
Another man, Osama Elfar, was detained on September 24, apparently because he was Egyptian, attended a Florida flight school, and worked as a mechanic for a small airline in St. Louis. He agreed to leave the country, but as of November, he was still detained. Hady Hassan Omar, also an Egyptian, spent two months in jail because he made plane reservations on a Kinko's computer around the same time as one of the hijackers. He was released without charges on November 23.
These and other cases suggest that the Justice Department policy has been to lock up first, ask questions later, and to presume that an alien is dangerous until the FBI has a chance to assure itself that he or she is not. Thus, government documents disclosed in the December FOIA lawsuit showed that of 725 people held on immigration charges, more than 300 had been determined to be of no interest to the investigation. Yet until individuals are "cleared," they are detained, even when the government has no legitimate basis for detention. The New York Times reported that as of February 18, for example, the Justice Department was blocking the departures of 87 foreign citizens who had either agreed to leave or had been ordered deported. The government was continuing to hold them simply because it had not yet satisfied itself that they were innocent, even though they were charged with no crimes.
CHANGING LAW TO FIT FEARS
Many of those detained were initially held without charges for several weeks. Shortly after September 11, the Immigration and Naturalization Service unilaterally amended a regulation governing detention without charges. The preexisting regulation had required the INS to file charges within 24 hours of detaining an alien. Under the new regulation, detention without charges is permissible for 48 hours, and for an unspecified "reasonable" period beyond that in times of emergency. Documents disclosed through the FOIA lawsuit show that many of the detainees were held for more than two weeks without any charges whatsoever.
Defenders of the administration often respond that the detainees violated immigration laws, and therefore deserve to be thrown in jail. But while an allegation of an immigration violation, if proven, may justify deportation, it does not in itself justify detention.
Before September 11, the INS could detain an alien charged with a deportable offense as a preventive matter, but only if it could show an immigration judge that the alien posed a threat to national security or a risk of flight. Under a new regulation issued October 29, however, even if the immigration judge rules that there is no basis for detention, INS prosecutors can keep the alien locked up simply by filing an appeal of the release order. Appeals of immigration custody decisions routinely take months, and often more than a year, to decide. And the prosecutor need not make any showing that the INS's appeal is likely to succeed.
None of these measures would pass muster if applied to citizens. Citizens are entitled to a public trial. They may be subjected to "preventive detention," but only if charged in a public proceeding and brought before an independent judge within 48 hours for a probable cause hearing. The requirement for a "speedy trial" means that unless a citizen agrees to an extension, preventive detention is limited to a matter of weeks. And if a judge rules that a citizen should be released on bail pending trial, the prosecutor cannot keep him in jail simply by filing an appeal.
In other words, the government has imposed on aliens widespread human rights deprivations that citizens would not tolerate. Yet, the Supreme Court has repeatedly stated that the due process clause applies to all persons, aliens and citizens alike.
THE LAST REFUGE OF SCOUNDRELS
It is likely to get still worse. An as yet unused provision in the USA Patriot Act, passed within six weeks of September 11, gives the attorney general unilateral authority to detain aliens on his say-so, without a hearing and without any opportunity for the alien to respond to the charges. The attorney general may detain any immigrant whom he certifies as a "suspected terrorist."
While "suspected terrorist" might sound like a class that ought to be locked up, the Patriot Act defines that class so broadly that it includes people who have never engaged in or supported a violent act in their lives, but are merely "associated" with disfavored groups. It also includes virtually every immigrant who has used or threatened to use a weapon, even in a barroom brawl, domestic dispute, or in other routine settings having nothing whatsoever to do with terrorism as it is commonly understood. Such aliens can be held without charges for seven days, and in some circumstances can be held indefinitely, even if they cannot be deported because they have a legal right to remain in the U.S.
One reason the Patriot Act provision has not yet been invoked may be that it raises a multitude of serious constitutional concerns. The Supreme Court has never permitted preventive detention absent a finding of dangerousness or flight risk, yet this provision would authorize just that.
Just last year, the Supreme Court interpreted another immigration law not to authorize indefinite detention because to do so would violate due process. In the criminal setting, the Court has limited detention without charges to 48 hours. And the INS is likely to argue that the Patriot Act standard for detention is less than probable cause, yet the Court has always required at least probable cause to arrest a person.
The horror of September 11 has undoubtedly affected us all. Few things are more important than bringing the surviving perpetrators to justice and ensuring that such an attack never happens again. But precisely because the terrorists violated every rule of human decency, it is critical that in responding to the terrorist threat, we hold fast to the rule of law. Dragnet sweeps and secret detentions fail that test. They did under the Palmer Raids and still do today. 
