Link to testimony of Glenn Fine, Inspector General of the U.S. Dept. of Justice, before the Senate Judiciary Committee:
http://judiciary.senate.gov/testimony.cfm?id=817&wit_id=609
Link to complete report of Inspector General:
http://www.usdoj.gov/oig/igspecr1.htm
Some key findings:
“Classification of Detainees
In the aftermath of the September 11 attacks, the FBI pursued thousands of leads relating to its PENTTBOM investigation, in New York and elsewhere, ranging from information obtained from a search of the hijackers’ cars to anonymous tips called in by people who were suspicious of Arab and Muslim neighbors who kept odd schedules.
If the FBI encountered an alien in connection with pursuing any of these leads, whether or not the alien was the subject of the lead, the FBI asked the INS to determine the alien’s immigration status. If the alien was found to be in the country illegally - either by overstaying his visa or entering the country illegally - the alien was detained by the INS.
The FBI then was asked to make an assessment of whether the arrested alien was “of interest” to its terrorism investigation. If the FBI indicated that the alien was “of interest,” “of high interest,” or “of undetermined interest,” the alien was placed on the INS Custody List and treated as a September 11 detainee.
These initial classifications by the FBI had significant ramifications for the detainees. First, the Department instituted a policy that any detainee on the INS Custody List had to be detained until cleared by the FBI. Although never communicated in writing, this “hold until cleared” policy was clearly understood and applied throughout the Department. As a result, the September 11 detainees were not allowed to be released on bond according to normal INS procedures and were not allowed to depart or be removed from the United States before FBI clearance, even if an Immigration Judge ordered their removal or the detainee voluntarily agreed to leave. Second, the initial classification decision by the FBI often determined where the detainees would be confined and their conditions of confinement.
Our review found that these classification decisions were not handled uniformly throughout the country. FBI and INS offices outside New York City attempted to screen out or “vet” cases in which illegal aliens were encountered only coincidentally to a PENTTBOM lead or showed no indication of any connection to terrorism. In these cases, the alien was not placed on the INS Custody List and was processed according to normal INS procedures.
However, this vetting process was not used in the New York City area. Rather, the FBI in New York did not attempt to distinguish between those aliens who it actually suspected of having a connection to the September 11 attacks or 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. As a result, anyone picked up in connection with a PENTTBOM lead in the New York area was deemed “of interest” for purposes of the “hold until cleared” policy, regardless of the origin of the lead or any genuine indications of a possible connection to terrorism. For example, if an agent searching for a particular person on a PENTTBOM lead arrived at a location and found other individuals who were in violation of their immigration status, those individuals were detained and considered to be arrested in connection with the PENTTBOM investigation.
Our review does not criticize the Department’s decision to investigate or require FBI clearance for aliens who the FBI actually suspected of having a connection to terrorism or the September 11 attacks. However, we do criticize the inconsistent manner in which these decisions were made. Even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to attempt to distinguish between aliens who it actually suspected of having a connection to terrorism and aliens who, while guilty of violating immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. In most parts of the country this was done; in New York, where the bulk of the September 11 detainees were arrested, it was not.
Notice of Charges
Our review found that many September 11 detainees did not receive notice of the charges against them in a timely manner. Normally, after an alien is arrested for violating federal immigration law, the INS notifies the alien of the charges and initiates a removal proceeding by serving a Notice to Appear (NTA) on the alien and the Immigration Court. The NTA must include the alien’s specific acts or conduct that is in violation of the law.
Prior to the September 11 attacks, the INS was required by federal regulation to make this charging determination within 24 hours of arrest. The Department changed the regulation soon after the September 11 attacks to allow the INS 48 hours to make the determination. The revised regulation also included an exception to the 48-hour rule that provided that in the event of an emergency or other extraordinary circumstances, the charging decision could be made within an additional reasonable period of time. The regulation does not define “extraordinary circumstances” or “reasonable period of time.” Moreover the regulation contains no requirement as to when the INS must notify the alien of the charges; the regulation only addresses when the INS must make its charging decision.
Our review determined that the INS did not record when the charging decisions were actually made, but it did record when the charges were served on the alien. According to the INS, before the September 11 attacks its goal was to serve charges on aliens in writing within 48 hours of arrest. After September 11, the INS’s goal was to serve charges on aliens within 72 hours.
We found that the INS served 60 percent of the September 11 detainees with NTAs within its goal of 72 hours. However, many detainees did not receive their charging documents for weeks, and some for more than a month, after being arrested. Detainees housed in the MDC received notice of their charges an average of 15 days after their arrest. Delays were caused by several factors, including the INS’s decision to review and approve all charges at INS Headquarters and miscommunications between the INS New York and Newark Districts, each of which presumed that the other office had served the charging documents on aliens who were transferred from the INS in New York to the INS in Newark.
The delays in receiving notice of the charges affected the September 11 detainees in various ways. First, it postponed detainees’ knowledge of the specific immigration charges they faced. Second, it affected the detainees’ ability to obtain effective legal counsel given the lack of specific charges. Third, it delayed the detainees’ opportunity to request bond re-determination hearings and seek release.”
But to me, the most shameful part is:
“The Clearance Process
Our review found that the Department’s “hold until cleared” policy was based on the belief - which turned out to be erroneous - that the FBI’s clearance process would proceed quickly. For example, many Department officials told us that they believed that the FBI would take a few days or a few weeks to clear aliens arrested on PENTTBOM leads but who had no additional indications of a connection to terrorism.
That belief was inaccurate. [bolding mine] The FBI cleared less than 3 percent of the 762 September 11 detainees within 3 weeks of their arrest. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days. More than a quarter of the 762 detainees’ clearance investigations took longer than 3 months.”
As a former Justice Department employee, I am appalled at such treatment of people who were arrested on extremely flimsy evidence in most cases.
Please discuss.