Finding Fault

MARGARET WARNER:

In the first months after the Sept. 11 attacks, the Justice Department rounded up hundreds of Muslim and Arab immigrants, who authorities believed might have terrorist ties.

Yesterday, the department's inspector general issued a 198- page report sharply criticizing the way some 762 aliens were held for months without bond on visa and other immigration violations.

Inspector General Glenn Fein wrote: "While our review recognized the enormous challenges and difficult circumstances confronting the department in responding to the terrorist attacks, we found significant problems in the way the detainees were handled. Even in the hectic aftermath of the Sept. 11 attacks, we believe the FBI should have taken more care to distinguish between aliens who it actually suspected of having a connection to terrorism as opposed to aliens who – while possibly guilty of violating federal immigration law – had no connection to terrorism."

Among the report's criticisms: Failing to tell detainees the charges against them– sometimes for more than a month; refusing to release a detainee until FBI headquarters in Washington formally cleared him of any suspicion of terrorism, a process that took an average of 80 days; sharply limiting detainees' ability to contact legal counsel or family; and a pattern of physical and verbal abuse of some detainees at one holding facility, the Federal Metropolitan Detention Center in Brooklyn.

The Justice Department responded in a statement yesterday: "The Inspector General Report clearly recognizes the department was operating under the most difficult of circumstances," the response said. "Under these unprecedented and extraordinary circumstances, the law was scrupulously followed and respected while aggressively protecting innocent Americans from another terrorist attack." The department went on to say: "Those detained were illegal aliens…detention of illegal aliens is lawful."

None of the detainees were ever charged with terrorism. Most have now been deported on immigration violations. The inspector general recommended 21 changes to make the department's handling of such detainees more uniform, timely, and humane.

MARGARET WARNER:

For more on the findings in the inspector general's report, we're joined by Anthony Romero, the executive director of the American Civil Liberties Union. The ACLU has filed several lawsuits on behalf of some of the detainees, and Ruth Wedgwood, a former federal prosecutor in New York; she currently teaches international law at Johns Hopkins University's School of Advanced International Studies. Welcome to you both.

Mr. Romero, first of all just flesh out this report a little more for us from everything you have read and your familiarity with the cases. How did it happen that these more than 750 Arab and Muslim immigrants were held for this long essentially in legal limbo?

ANTHONY ROMERO:

That's right, Margaret. And, of course, the report confirms much of what we knew was playing out over the last 18 months. But what is notable about the inspect general report is that it comes from the Justice Department itself — that is the internal watchdog agency of the Justice Department criticizing the actions, the policies, the rules and the regulations of Justice Department officials. Even though as you say it recognizes the hectic aftermath in which many Justice Department officials operated, it did go on to criticize the haphazard and indiscriminate way in which the Justice Department pursued the war on terror.

It faulted the whole process by which aliens were being held and denied access to the judicial proceedings and bond determinations. It faulted some of the Justice Department officials who insisted that they had the authority with which to hold the immigrants and that the report point outs there was quite a lively debate within the Justice Department about the propriety of the policies and rules.

It goes on to document in fact that many of the immigrants had difficulty securing counsel and notwithstanding the Justice Department's assurances that they were being afforded access to counsel the report now points otherwise, that in fact they had difficulty calling their lawyers or their family members. The Bureau of Prison officials were told not to be in a hurry, quote, unquote, to allow immigrants access to contact their lawyers and their family members, and that as you mentioned in one detention center, the Metropolitan Detention Center in New York, some immigrants were subjected to physical and verbal abuse.

And what was probably the most breathtaking part of the report that videotapes that were taken of the immigrants in detention to assure to safeguard against their abuse and conditions of confinement, those videotapes were destroyed contrary to a policy that had been put in place that was meant to keep these videotapes indefinitely, all of this coming from the Justice Department itself and over the last 18 months we have heard from Justice Department officials insisting that they have done nothing wrong and they continue to assert that even though their own Justice Department report asserts otherwise.

MARGARET WARNER:

All right. We'll get to that, but let me get Ruth Wedgwood's views here. How do you explain that this happened?

RUTH WEDGWOOD:

The arrests in question here are folks who were encountered as the FBI worked down the chain of criminal leads after the September 11th bombings of the World Trade Center and the Pentagon and the attempted or intended bombing of the capital of the White House.

MARGARET WARNER:

These were tips called in –

RUTH WEDGWOOD:

Some were, but some were also the kind of network you follow backwards from cards in a person's wallet, from phone calls they have made. It's the way you ordinarily put together a conspiracy case. And whenever the FBI agents encountered somebody who was out of status either who entered the country illegally with false papers or had overstayed his visa or had entered without any papers at all — just snuck over the border — they called the INS and the INS detained them as immigration suspects. They were not detained on criminal charges but rather as the report concedes almost entirely immigration violators.

MARGARET WARNER:

So the inspector general report though pointed out that even after some agents whether they were INS or FBI had concluded that certain people were not probably linked to terrorism that, they had put in this policy the FBI headquarters in Washington declared them of terrorism before, they could be released and it sometimes took literally months. What happened? Was the FBI just overworked or was this do you think a deliberate policy?

RUTH WEDGWOOD:

I think it's a combination of things. There was the shifting of burden it's true, to say that before a person would be allowed to be returned to his country-say he was adjudicated to be violative of immigration status to be returned to Pakistan or to Egypt — before that return would actually be carried out the FBI was to be asked if he was of interest in a terrorism investigation.

And I think it points out again that the FBI has not traditionally had decent records, retrievable mechanisms. They don't have an advanced IT system so they can put a name in a database and pull up everything they need to know. Ironically, it's the obverse of some of the problems that there were in detecting the 9/11 events. I think the usefulness of this kind of report number one is testimony to some self-correcting mechanism that this IG's report was actually provided for by the Patriot Act. But it's a way of showing management problems where sometimes small errors in different systems of the department, like the Challenger investigation, can magnify each other. I think though it's excessive to impute to the intentionality on anyone's part.

ANTHONY ROMERO:

I think one can not characterize this report as describing small errors, however Ruth. And while much of what you say is patently contradicted by the report. In fact, they talk about the fact that they were not following up criminal leads at all, that the inspector general's own words talk about the haphazard and indiscriminate ways in which immigrants were profiled as potential terror suspects.

The government knew or should have known that they, in fact, had no connection with the terrorist attacks. It goes on then to say that these were not ad-hoc decisions made by low level law enforcement officials. It documents rather clearly in the report. Page 70, I point to you, where it talks about the official policy of the Justice Department to hold these people for as long as they were able it was made at the highest level of the Justice Department and that then was carried down the chain of command.

MARGARET WARNER:

All right, Mr. Romero, let me ask Professor Wedgwood about that. Does the Justice Department have the authority to do this, to essentially override the standard INS procedures in terms of how long you hold detainees and under what condition?

RUTH WEDGWOOD:

A lot of the immigration policy was set by regulations and some of the regulations were changed after Sept. 11.

MARGARET WARNER:

Which, could Justice do that basically unilaterally?

RUTH WEDGWOOD:

So long as it follows the required Administrative Procedure Act and other kinds of administrative law requirements.

ANTHONY ROMERO:

This year it was changed.

RUTH WEDGWOOD:

It's certainly true that after Sept. 11, I think there was a sense that people didn't know what was coming down the pike. Ashcroft, General Ashcroft openly said he was going to follow a policy that was much like the Al Capone tax policy get them on tax evasion or much like Rudy Giuliani's squeegee man quality of life policy. He was going to use the immigration law as one way of trying to further investigations of possible links to terrorism. One can have a philosophical debate about. But I don't agree with Tony; I don't think it's right to say that John Ashcroft intended that guards in the Brooklyn detention center should abuse detainees. In fact, cameras were put into their cells after a period of time to try to avoid that. The filming was done deliberately to show what happened.

ANTHONY ROMERO:

They destroyed the tapes.

RUTH WEDGWOOD:

It's unfortunate that they were not secured for a longer period of time of more than 30 days. I think it's wrong. The one thing the report says they were not looking at, it was not within their purview to look at what the basis was for the initial immigration arrest of each of these persons.

MARGARET WARNER:

Mr. Romero, the Justice Department in their statement said everything they did was legal; they cited their own office of legal counsel. But they also said as we quoted, all of these people were illegal immigrants. It's legal to detain them; it's legal to hold them without bond. Is Justice Department right about that, that legally they were within their proper purview?

ANTHONY ROMERO:

The regulations that they reference in the memorandum were in fact changed only earlier this year. And, remember that these policies and procedures dragged on for months on end. And regardless of how it played out what is really at the center of the inspector general's report is how they enforce the nation's immigration laws.

I mean, certainly the inspector general's not going to argue that we should disregard the immigration laws. What they found fault with however, in their 198 report, was the manner in which they enforced the nation's immigration laws. And then you find throughout the whole report that many of these decisions were made at the highest level of the Justice Department, encouraging individuals to do everything they could and bypassing individuals within the Justice Department who disagreed with them. Beau Cooper, who was the general counsel of the INS is on record in the inspector general's report as contradicting some of the assertions and statements and policies of Mr. Ashcroft.

MARGARET WARNER:

What do you say in response, Mr. Romero, to what the Justice Department says which is look in the atmosphere post 9/11 we didn't want to send these folks back to their home countries without being sure they weren't linked to terrorists?

ANTHONY ROMERO:

The inspector general report recognizes that. It recognizes the context. It says even in the hectic aftermath they were indiscriminate and haphazard manner in which they effected the nation's immigration laws — was problematic. And what is troubling to us today is the triumphalism that still comes from the Justice Department and their apologists that notwithstanding 198 report that documents fully the level of abuses and changes in policies that trampled on rights of immigrants; it's not an ACLU report. It's a Justice Department report that their triumphalism and their efforts to become apologists on behalf of government policies has us quite troubled.

MARGARET WARNER:

Professor Wedgwood explain if you can and I know you don't work for the Justice Department but the Justice Department's response. On the one hand yesterday they issued a statement and had a briefing saying everything we did was totally legal as we quoted from; on the other hand ,they said, well, some of these 21 recommendations the IG made we've already instituted. I mean, do you think this report — one has the conduct stopped? Has the report had an impact or in fact will future detainees essentially be treated the same way? What is your reading of that?

RUTH WEDGWOOD:

I wouldn't judge the whole Justice Department's response by one press release from one press office. I think the press release was intended to remind people that in the immediate aftermath of Sept. 11 there really was the sense of scrambling –and some of the ways, sorry Tony, but the systems interacted badly was people perhaps not paying enough attention. It was kind of like –

ANTHONY ROMERO:

We were paying attention.

RUTH WEDGWOOD:

– fractal geometry if you like. What do I do in the aftermath is that even in the process you can see changes being made. For example one of the things holding up the release of detainees was asking for both an FBI and a CIA clearance; they dropped the CIA clearance after a period of time. There was self-consciousness inside that was things were taking too long.

MARGARET WARNER:

All right –

ANTHONY ROMERO:

That's not what I read in the report. That's not what you read —

MARGARET WARNER:

Sorry, but, Mr. Romero, Professor Wedgwood, we have to leave it there, thanks.