Interested parties charged that the government's policies were unconstitutional or in violation of civil liberties or laws regarding public disclosure. Numerous lawsuits were filed seeking information about the September 11 detainees and protesting secret deportation hearings.
Many also inquired into the status of the nearly 600 people from Afghanistan, Pakistan, and other nations who were captured by U.S. soldiers in the October 2001 retaliatory attack on Afghanistan. Some of these individuals were taken to the U.S. naval base in Guantánamo Bay, Cuba. Reuters News Service ("Red Cross Head Discusses Guantanamo Inmates with Bush," February 15, 2005) reported that in a February 14, 2005, meeting with President Bush and Secretary of State Condoleezza Rice, the president of the International Committee of the Red Cross, Jakob Kellenberger, raised concerns about detainees at Guantánamo Bay and elsewhere.
In a January 2005 press release, Wendy Patten, U.S. Advocacy Director for Human Rights Watch, said, "Guantánamo has become the Bermuda Triangle of human rights. Basic rights vanish there. By flouting international law in its treatment of detainees, the Bush administration has drawn worldwide criticism and undermined support for U.S. counterterrorism efforts" ("Guantanamo: Three Years of Lawlessness," Human Rights News, Washington, DC: Human Rights Watch, January 11, 2005). The Human Rights Watch statement counted some 550 people being held as "enemy combatants" and noted that only four faced charges at that time. Also in a January 2005 statement ("Guantanamo Bay—A Human Rights Scandal," http://www.amnestyusa.org/waronterror/guantanamo/), Amnesty International described the condition of detainees from some thirty-five different nations who were "without access to any court, legal counsel or family visits. Denied their rights under international law and held in conditions which may amount to cruel, inhuman or degrading treatment, the detainees face severe psychological distress."
The Courts Rule
FREEDOM OF INFORMATION.
On August 2, 2002, U.S. District Court Judge Gladys Kessler ordered the Justice Department to release the names of the aliens being detained on immigration charges and their attorneys. Her ruling stated: "Secret arrests are a concept odious to a democratic society and profoundly antithetical to the bedrock values that characterize a free and open one such as ours."
On June 17, 2003, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision on appeal (Center for National Security Studies, et al., v. U.S. Department of Justice [No. 02-5254 & No. 02-300]). The court found that the Justice Department was justified in withholding information about the detainees, whose status as of June 2002 was described in the court's opinion:
- Of the more than 700 detainees held on immigration-related charges, 74 remained in custody. Many had been deported.
- Of the 134 individuals detained on federal criminal charges, 99 were found guilty either through pleas or trials.
- An undisclosed number of persons believed to have information relating to the events of September 11 were detained after a judge issued a material witness warrant to secure their testimony before a grand jury. The government is prohibited by court orders from releasing any information about the proceedings.
SECRET DEPORTATION HEARINGS.
On September 21, 2001, Chief Immigration Judge Michael Creppy issued an order stating that typically open deportation hearings should be closed in any case deemed of "special interest" in the investigation of the terrorist attacks. A lawsuit was filed by the American Civil Liberties Union (ACLU) on behalf of Representative John Conyers (a Democrat from Michigan) and Michigan newspapers challenging Judge Creppy's order after the public and press were denied access to the deportation hearing of a Muslim religious leader who had overstayed a tourist visa.
On August 26, 2002, the U.S. Court of Appeals for the Sixth Circuit ruled in Detroit News, Inc., et al., v. Ashcroft, et al. that the Bush administration acted unlawfully in holding hundreds of deportation hearings in secret on the sole grounds that those involved were terrorism suspects. "Democracies die behind closed doors," Judge Damon Keith wrote. His ruling characterized the September 11 attacks as "egregious, deplorable, and despicable" events that led to vigorous prosecution of immigration laws, but he described governmental secrecy as "profoundly undemocratic" (2002 FED App. 0291P [6th Cir.] No. 02-1437).
In a separate suit, the ACLU represented the media seeking information on "special interest" detainees taken into custody in New Jersey. A lower court judge in Newark ordered the government to open all such hearings to the public unless it could offer case-by-case proof of the need for secrecy. The Third U.S. Circuit Court of Appeals reversed the lower court ruling (North Jersey Media Group, Inc.; New Jersey Law Journal v. John Ashcroft, Attorney General of the United States; Michael Creppy, Hon., No. 02-2524). The case was appealed to the U.S. Supreme Court, which declined to review it.
The decisions of the courts in these two cases left the government in a position where its power to hold secret hearings was restricted in the four states belonging to the Sixth Circuit (Tennessee, Michigan, Ohio, and Kentucky) but not in the remaining forty-six states.
SUSPECTED TERRORISTS HELD IN CUBA.
In March 2003 a federal appeals court ruled that 650 suspected members of the al-Qaeda terrorist network and the former Taliban regime in Afghanistan who were being held at a U.S. naval base in Guantánamo Bay had no legal rights in the United States and could not ask courts to review their detentions (Al Odah v. United States, No. 02-5251). The case, brought by relatives of some of the detainees, contested the legality and conditions of their confinement. Earlier, a Washington Post article, "U.S. Decries Abuse but Defends Interrogations" (Dana Priest and Barton Gellman, December 26, 2002), described alleged inhumane treatment of the individuals being held in Cuba.
Treatment of September 11 Detainees
A June 2, 2003, report from the Justice Department's inspector general, Glenn A. Fine, found "significant problems" in the treatment of some of the September 11 detainees, including physical and verbal abuse, long delays in charging detainees, a pattern of confining detainees in cells for twenty-three hours a day, the use of handcuffs and leg irons, and limitations on the ability of detainees to communicate with legal counsel (The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, Washington, DC: U.S. Department of Justice). During his June 25, 2003, testimony on the Justice Department's report before the Senate Judiciary Committee (http://www.usdoj.gov/oig/testimony/0306.htm), Fine acknowledged the tireless and dedicated work on the part of Justice Department employees under extraordinary circumstances and further stated that "the chaotic situation and uncertainties surrounding the detainees' role in the September 11 attacks, and the potential of additional attacks, explain many of the problems we found in our review, but they do not explain or justify all of them."
On the day the inspector general's report was released, Justice Department spokeswoman Barbara Comstock issued a statement asserting that "[t]he 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. 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" ("Statement of Barbara Comstock, Director of Public Affairs, Regarding the IG's Report on 9/11 Detainees," Washington, DC: U.S. Department of Justice, June 2, 2003).
Volunteers?
Between September 11 and November 9, 2001, the INS compiled a list of 7,602 names of aliens with characteristics similar to those of the hijackers and requested that the individuals on the list make themselves available for voluntary interviews. While many individuals expressed understanding regarding the need for such interviews, others expressed apprehension. The U.S. General Accounting Office (GAO) noted in Homeland Security: Justice Department's Project to Interview Aliens after September 11, 2001 (GAO-03-459, Washington, DC, April 11, 2003) that "attorneys for interviewees and immigration advocates…expressed the view that interviewed aliens did not perceive the interviews to be truly voluntary … they worried about repercussions, such as future INS denials for visa extensions or permanent residence, if they refused to be interviewed."
Civil Rights Violations
The September 11, 2001, terrorist attacks caused Americans to take greater notice of foreign-born residents. People who appeared to be from the Middle East were suddenly suspect. Those who appeared "different" in dress or behavior became the subject of particular attention, suspicion, and sometimes even violence. Communities, and particularly law enforcement agencies, across the nation were faced with the challenges of fair treatment and even protection of foreign-born residents.
Even the Department of Justice, the enforcement agency for such civil rights violations, was not immune to complaints. Philip Shenon of the New York Times ("Report on U.S. Antiterrorism Law Alleges Violations of Civil Rights," July 21, 2003) noted that in a report presented to Congress in July 2003, the Justice Department's inspector general advised that in the six-month period that ended on June 15, 2003, the inspector general's office had received thirty-four credible complaints of violations of the civil rights and liberties of individuals held in connection with terrorism investigations. According to Shenon, Muslim and Arab immigrants held in detention had allegedly been beaten; the accused perpetrators were Justice Department employees.
The Chicago Police Department recognized the need to understand and more effectively communicate with the diverse ethnic and religious groups that populated the city. According to Stephen Kinzer of the New York Times ("Chicago Police Videos Offer Insights into Various Faiths," January 23, 2005), the department produced a series of short videotapes that focused on religious groups with a significant presence in Chicago—Sikhs, Muslims, Jews, Buddhists, and Hindus. Many members of these faiths might appear to be from the Middle East and/or might wear particular dress that made them look "different." The tapes provided a look into homes and houses of worship and interviews with religious and community leaders. A police officer narrator gave tips on things to do or to avoid when interacting with people of each faith. The intent was to help police officers respect people's cultural heritage while protecting the community and the city.
Viewing the tapes was required training for all Chicago police officers and it had a noticeable effect. Kinzer reported that one Sikh leader said the training helped the police understand that the display of swords in homes and as part of men's clothing was a religious tradition rather than intended for criminal activity. A leader of Chicago's Islamic community said the training "changed our community's relationship with the police … people are beginning to see the Chicago Police Department as an ally rather than an opposing force."
For information on national origin discrimination, see Appendix I.
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