Senator Feingold Letter to Attorney General Ashcroft

June 24, 2003
The Honorable
John D. Ashcroft
Attorney General of the United States
U.S. Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20510
Dear Mr. Attorney General:
As you know, the Senate Judiciary Committee is scheduled to hold an oversight hearing tomorrow on the report by the U.S. Department of Justice Office of the Inspector General (IG) on the treatment of individuals held on immigration violations in connection with the investigation of the September 11 attacks. The Senate and the American people are entitled to meaningful oversight of the Justice Department, which is made all the more urgent given the critical review of the Department‘s conduct by the IG. I regret that neither you nor another high level Department official will testify at this important hearing.
I therefore request that you respond to the following questions, which I would have asked you, had you appeared before the Committee:
(1) As early as October 31, 2001, I and some of my Senate and House colleagues raised concerns with you about the September 11 detainees, including their conditions of detention and access to counsel. In your November 16, 2001, response to my October 31 letter, you assured me that aliens who are arrested are informed of their right to be represented by counsel, provided with a list of organizations that provide free legal services, and informed that they may communicate with consular or diplomatic officers of the country of their nationality in the United States. In a series of Senate Judiciary Committee hearings with senior Justice Department officials during the fall 2001, my colleagues and I again raised concerns — this time about issues such as detainees‘ access to counsel and family, detainees‘ conditions of confinement, and the selective roundup of mostly Arab and Muslim male immigrants.
We received assurances from Michael Chertoff, Assistant Attorney General for the Criminal Division, at a hearing on November 28, 2001, and Viet Dinh, Assistant Attorney General for the Office of Legal Policy, at a hearing on December 4, 2001, that detainees have access to counsel. Mr. Chertoff testified, “nobody is held incommunicado. We don‘t hold people in secret, you know, cut off from lawyers, cut off from the public, cut off from their family and friends. They have the right to communicate with the outside world. We don‘t stop them from doing that.” In a hearing on December 6, 2001, you told me that detainees are allowed access to counsel, saying:
I do not intend to hold individuals without access to counsel. And we will take steps to make sure that we don‘t. I don‘t believe that we are. And I will make available to individuals an understanding of pro bono counsel or free counsel in the event that they are not classified as individuals entitled to an attorney at government expense. . . .Each of these individuals obviously has had the right to contact a lawyer — you have cited some who have said that their contact hasn‘t been with free enough access, and I will look carefully into that.
The IG now confirms that access to counsel was denied to many detainees, sometimes for prolonged periods. Communications blackouts, lasting from several days to several weeks, were imposed on some detainees. Even when there was no blackout, many detainees were only allowed one phone call to a lawyer per week. Sometimes calling a wrong number, or reaching a voicemail system, counted as the one call. Guards would ask, “are you okay,” and if a detainee said “yes,” they were not offered their call, even though the guard did not specifically ask the detainee if the detainee wanted to place a call. Lists of pro bono attorneys were not consistently provided and were often inaccurate.
More disturbingly, according to the IG report, senior Justice Department officials — David Laufman, the chief of staff to the Deputy Attorney General, and Christopher Wray, the Principal Associate Deputy Attorney General — actively sought to limit detainees‘ access to counsel. They told the Director of the Bureau of Prisons (BOP) to “not be in a hurry” to provide the September 11 detainees with access to communications, including legal and social calls or visits. (IG Report at 113.) In other words, while you and other Department officials publicly assured Congress and the American people that the right to counsel would be protected, it appears that senior Justice Department officials, in fact, actively sought to undermine it.
(a) Please indicate whether the directive by Mr. Wray and Mr. Laufman was authorized by their superiors, and if so, who authorized the directive? If the directive was not authorized by their superiors, please indicate whether the Department has reprimanded them or taken any other disciplinary action against them.
(b) In response to the IG report criticizing the Department‘s conduct, the Department has said that “the law was scrupulously followed.” (Department press release, June 2, 2003.) Please explain how you believe the law was scrupulously followed here, or, in other words, how you believe the detainees‘ due process rights, including the right to representation by counsel, was not infringed by the Department‘s conduct.
(c) Please describe what steps, if any, were taken by you to facilitate detainees‘ right to counsel after you promised me and the Committee to “look carefully into that” on December 6, 2001.
(2) Pursuant to federal regulations, the Immigration and Naturalization Service (INS), which prior to March 1, 2003, was part of the Justice Department, was required to decide whether to file immigration charges against an alien within 48 hours of the alien‘s arrest, except in the event of an emergency or other extraordinary circumstances, in which case the charging determination may be made within an additional reasonable period of time. While the regulations do not specify a deadline for the INS to serve notice of the charges on the alien, the INS did have a goal of serving notice within 72 hours after arrest. You testified before the House Judiciary Committee on June 5, 2003, that “Some people were not charged immediately with immigrant [sic] violations; that‘s something we would like to improve the record on. But no person that I am aware of, none, was ever held for more than 30 days without a charge in that respect.” The IG, however, found that at least 25% of the detainees were issued a Notice to Appear (NTA) more than 72 hours after arrest, and some not until months later. Twenty-four detainees were served with an NTA more than 31 days after their arrest. The IG could not determine the exact day a charging decision was made because the IG was told that the Department did not maintain such records.
(a) Why does the Department not keep records regarding charging decisions containing basic information, such as the date of the decision?
(b) If no records were maintained, what is the basis for your statement that no one was ever held for more than 30 days without a charge?
(c) Please provide documentation or other evidence that no one was held for more than 30 days without a charge.
(d) Please provide documentation or other evidence that the 24 individuals served with an NTA more than 31 days after arrest were in fact charged in less than 30 days.
(e) Please identify those instances in which the “emergency or extraordinary circumstances” exception was invoked, and please provide documentation of the “emergency or extraordinary circumstances.”
(3) The IG criticizes the Department for the “indiscriminate and haphazard manner” in which immigrants were labeled as possible terrorism suspects. (IG Report at 70.) It is my understanding that virtually none of the individuals detained on immigration violations after September 11 were ever charged with terrorism crimes.
It appears that the Department‘s “hold until cleared” and “no bond” policies effectively constituted a mandatory detention policy for anyone the Department arrested in connection with its September 11 investigation. Congress, however, was so concerned about the potential for abuse of mandatory detention policies that, in the USA PATRIOT Act expanding the Attorney General‘s detention authority, Congress included a requirement that the Attorney General certify that he has reasonable grounds to believe the person is a suspected terrorist or has engaged in other activity that endangers the national security of the United States. See Section 412 of the USA PATRIOT Act (Public Law 107-56). The Department apparently detained immigrants after September 11 pursuant to pre-existing authority, not under this provision of the Patriot Act. Nevertheless, this provision is an indication of the level of Congress‘s concern in granting broad detention powers to the Attorney General and the clear intent of Congress that the Attorney General should provide a factual basis for a determination that someone should be held without bond.
In your testimony before the House Judiciary Committee on June 5, 2003, you were asked by Representative Maxine Waters what connection existed between these detained individuals and the September 11 investigation. You said, “There are individuals who had strong links to the terrorists against whom we did not have a case that was sufficient to bring criminal charges, or about whom the bringing of the case might result in the revelation of material in court which would be against the national security interests of the United States.” You then described the cases of three individuals who were deported because you determined that they had strong links to terrorism or that bringing charges would be in the national security interests of the U.S. For each of these three cases, please provide the facts of their cases, including, but not limited to, the date of arrest, the immigration charges made against them, whether they were deported, and the criminal charges, if any, filed against them.
(4) In testimony before the Senate Judiciary Committee on November 28, 2001, Assistant Attorney General Chertoff said that all detainees had violated immigration or criminal law or were being detained on material witness warrants. He went on to say, “nothing that we are doing differs from what we do in the ordinary case or what we did before September 11.” The IG‘s report, however, states that “the overwhelming majority of these aliens were arrested on immigration charges that, in a time and place other than New York City post-September 11, would have resulted in either no confinement at all or confinement in an INS or INS contract facility pending an immigration hearing.” (IG Report at 111.) Please explain the inconsistency between Mr. Chertoff‘s assertion and the finding of the IG.
(5) Why were such a high percentage (33%, more than double the number of detainees of any other country) (IG Report at 21) of the detainees Pakistani nationals when it was learned that the majority of the hijackers in the September 11 attacks were from Saudi Arabia?
(6) When it became clear that the FBI clearance process was taking weeks and months, and that many of the detainees were guilty of immigration violations alone, why were the “hold until cleared” and “no bond” policies not reconsidered?
(7) Please explain the legal basis for the Department‘s “no bond” policy and please provide all documentation, legal memoranda, or other communications concerning the legal basis for this policy.
(8) Please explain the legal basis for the Department‘s “hold until cleared” policy and please provide all documentation, legal memoranda, or other communications concerning the legal basis for this policy.
(9) (a) Please explain the legal basis for the Department‘s decision to continue to hold individuals after issuance of a final order of removal. The Office of Legal Counsel opinion that has been cited by the Department in response to the IG report was not issued until February 2003, so please provide the legal basis for the Department‘s decision at the time those decisions were being made, beginning in the fall 2001. (b) Please provide all communications, memoranda, or documents concerning the legality of the continued detention of individuals who had been issued a final order of removal, including all memoranda or communications by the INS stating its views on the issue.
(10) Please explain why the Department failed to conduct adequate oversight of federal detention facilities and state contract facilities concerning the treatment of detainees in custody and their ability to file complaints about physical and verbal abuse.
(11) The IG found that the BOP‘s decision to allow staff to destroy or reuse videotape recordings of detainee movements hampered the usefulness of the videotape system to prove or disprove allegations of abuse raised by detainees. The lack of videotape evidence hampered the IG‘s investigation of detainee abuse allegations. What steps have you taken to improve the BOP‘s document and videotape retention policies and procedures?
(12) Why was there no prompt reconsideration of the Witness Security, or WITSEC, classification when the communications blackout was lifted?
(13) What steps will you take to improve communication between the Bureau of Prisons and the Department about the policies and practices relating to the treatment of immigration detainees?
(14) Former INS Commissioner James Ziglar recently said, “The overwhelming means that the government has at its disposal today to invade and intimidate suggests to me that we must be even more vigilant in deterring government overreaching. . . . The insatiable appetite for more power by those who already have it is always justified by ‘necessity.‘” “Former INS Head Warns of Rights Abuses; Officials‘ Fear of Being Blamed for a New Attack Has Bad Side Effect, Ziglar Says,” The Washington Post, June 15, 2003, p. A12. What reforms are you undertaking at main Justice, the FBI, and the Bureau of Prisons to ensure that the abuses highlighted in the IG report are not repeated? Please indicate in your response which IG recommendations you are adopting and which recommendations you have declined to adopt.
I look forward to your response.
Russell D. Feingold

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