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'Significant problems' with DOJ detainees

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, June 2 (UPI) -- An internal Justice Department investigation found "significant problems" with how alien detainees were treated in the wake of the Sept. 11, 2001, attacks.

The problems included physical and verbal abuse, extended detention without cause and unacceptable conditions, particularly at a New York City facility.

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In the 11 months after the Sept. 11 attacks, 762 aliens were detained for immigration offenses, including overstaying their visas and entering the country illegally.

The investigation was conducted by department Inspector General Glenn Fine and the results were released Monday.

"While our review recognized the enormous challenges and difficult circumstances confronting the Department in responding to the terrorist attacks," Fine said in a statement, "we found significant problems in the way the detainees were handled."

The inspector general praised as well as criticized DOJ employees.

"The Justice Department faced enormous challenges as a result of the Sept. 11 terrorist attacks, and its employees worked with dedication to meet these challenges," Fine said. "The findings of our review should in no way diminish their work. However, while the chaotic situation and the uncertainties surrounding the detainees' connections to terrorism explain some of the problems we found in our review, they do not explain them all."

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Meanwhile, both the department and its critics claimed vindication with the release of Fine's report.

"The Justice Department believes that the inspector general 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," Barbara Comstock, department public affairs director, said. "Our policy is to use all legal tools available to protect innocent Americans from terrorist attacks. We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks."

She said the IG report "clearly recognizes the department was operating under the most difficult of circumstances," but "the law was scrupulously followed and respected while aggressively protecting innocent Americans from another terrorist attack."

The American Civil Liberties Union saw the IG report in a different light.

"Immigrants weren't the enemy," ACLU Executive Director Anthony Romero said in a statement. "But, the war on terror quickly became a war on immigrants. The inspector general's findings confirm our long-held view that civil liberties and the rights of immigrants were trampled in the aftermath of 9/11."

The IG report determined, among other things, that:

-- "The FBI in New York City made little attempt to distinguish between aliens who were subjects of the FBI terrorism investigation (PENTTBOM) ... and those encountered coincidentally ... The OIG report concluded that, even in the chaotic aftermath of the Sept. 11 attacks, the FBI should have expended more effort attempting to distinguish between aliens who it actually suspected of having a connection to terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead."

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-- "The INS did not consistently serve the Sept. 11 detainees with notice of the charges under which they were being held within the INS's stated goal of 72 hours. The review found that some detainees did not receive these charging documents ... for more than a month after being arrested. This delay affected the detainees' ability to understand why they were being held, obtain legal counsel, and request a bond hearing."

-- "Aliens arrested in the New York City area generally were confined at (the Metropolitan Detention Center, or MDC, in Brooklyn and at the Passaic County Jail in Paterson, N.J., a county facility under contract with the Immigration and Naturalization Service). While the INS made the ultimate decision where to house the Sept. 11 detainees, it relied primarily on the FBI's assessment of the detainees' possible links to terrorism. FBI agents generally made this assessment without any guidance, and based on the limited information available at the time of the aliens' arrests. Where a Sept. 11 detainee was housed had significant ramifications on the detainee's detention experiences, because a detainee held at the MDC experienced much more restrictive confinement conditions than those held at Passaic."

-- "The department instituted a policy that all aliens in whom the FBI had an interest in connection with the PENTTBOM investigation required clearance by the FBI of any connection to terrorism before they could be removed or released. Although not communicated in writing, this 'hold until cleared' policy was clearly understood and applied throughout the Department. The policy was based on the belief -- which turned out to be erroneous -- that the FBI's clearance process would proceed quickly. FBI agents responsible for clearance investigations often were assigned other duties and were not able to focus on the detainee cases. The result was that detainees remained in custody -- many in extremely restrictive conditions of confinement -- for weeks and months with no clearance investigations being conducted. The OIG review found that ... the FBI clearance process took an average of 80 days, primarily because it was understaffed and not given sufficient priority by the FBI."

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-- "The department instituted a 'no bond' policy for all Sept. 11 detainees as part of its effort to keep the detainees confined until the FBI could complete its clearance investigations. The OIG (Office of Inspector General) review found that the INS raised concerns about this blanket 'no bond' policy, particularly when it became clear that the FBI's clearance process was much slower than anticipated and the INS had little information in many individual cases on which to base its continued opposition to bond in immigration hearings. INS officials also were concerned about continuing to hold detainees while the FBI conducted clearance investigations where detainees had received a final removal or voluntary departure order. The OIG review found that the INS and the department did not timely address conflicting interpretations of federal immigration law about detaining aliens with final orders of removal who wanted and were able to leave the country, but who had not been cleared by the FBI."

-- "In January 2002, when the FBI brought the issue of the extent of the INS's detention authority to the department's attention, the department abruptly changed its position as to whether the INS should continue to hold aliens after they had received a final departure or removal order until the FBI had completed the clearance process. After this time, the Department allowed the INS to remove aliens with final orders without FBI clearance. In addition, in many cases the INS failed to review the detainees' custody determination as required by federal regulations."

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-- "The FBI's initial assessment of the Sept. 11 detainees' possible connections to terrorism and the slow pace of the clearance process had significant ramifications on the detainees' conditions of confinement ... 84 Sept. 11 detainees were housed at the MDC in Brooklyn under highly restrictive conditions. These conditions included 'lock down' for at least 23 hours per day; escort procedures that included a '4-man hold' with handcuffs, leg irons, and heavy chains any time the detainees were moved outside their cells; and a limit of one legal telephone call per week and one social call per month."

The inspector general's review also found some "conditions of confinement" in Brooklyn's MDC to be unacceptable:

"(Bureau of Prison) officials imposed a communications blackout for Sept. 11 detainees immediately after the terrorist attacks that lasted several weeks. After the blackout period ended, the MDC's designation of the Sept. 11 detainees as 'Witness Security' inmates frustrated efforts by detainees' attorneys, families, and even law enforcement officials, to determine where the detainees were being held. We found that MDC staff frequently -- and mistakenly -- told people who inquired about a specific Sept. 11 detainee that the detainee was not held at the facility when, in fact, the opposite was true."

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-- "The MDC's restrictive and inconsistent policies on telephone access for detainees prevented some detainees from obtaining legal counsel in a timely manner. Most of the Sept. 11 detainees did not have legal representation prior to their detention at the MDC. Consequently, the policy developed by the MDC that permitted detainees one legal call per week -- while complying with broad BOP national standards -- severely limited the detainees' ability to obtain and consult with legal counsel ... "

-- The evidence "in regard to allegations of abuse at the MDC ... indicates a pattern of physical and verbal abuse by some correctional officers at the MDC against some Sept... 11 detainees, particularly during the first months after the attacks and during intake and movement of prisoners. Although the allegations of abuse have been declined for criminal prosecution, the OIG is continuing to investigate these matters administratively."

-- The review "found that certain conditions of confinement at the MDC were unduly harsh, such as subjecting the Sept. 11 detainees to having two lights illuminated in their cells 24 hours a day for several months longer than necessary, even after electricians rewired the cellblock to allow the lights to be turned off individually ... "

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-- "By contrast, the OIG review found that the detainees confined at Passaic had much different, and significantly less harsh, experiences than the MDC detainees ...

The Office of Inspector General offered 21 recommendations on "the need to develop uniform arrest and detainee classification policies, methods to improve information sharing among federal agencies on detainee issues, improving the FBI clearance process, clarifying procedures for processing detainee cases, revising BOP procedures for confining aliens arrested on immigration charges who are suspected of having ties to terrorism and improving oversight of detainees housed in contract facilities."

The report was completed in April, but underwent an extensive review process within the Justice Department before being released Monday.

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