Detained for Terror
When Muhammad Rafiq Butt died in the New Jersey's Hudson County jail on Oct. 23 after a month of detention, no one knew he was there. The 55-year-old Pakistani restaurant worker was one of the 1,147 people detained for questioning in the investigation of the Sept. 11 attacks. Until county officials announced that Butt had been found dead in his jail cell, neither the Pakistani consulate, Butt's family, nor members of the local Pakistani community knew of his incarceration.
The Justice Department has since confirmed that they have no evidence linking Butt to the hijackers. Butt, instead, was being held by the Immigration and Naturalization Service for overstaying his visitor's visa and lacking proper travel documents. Yet his detention was cloaked in secrecy. Butt's name was expunged from immigration charging documents. The INS has sealed the records of his bond hearing. Pakistani consulate officials were never notified of his detention.
According to the Regional Medical Examiner's office in Newark, New Jersey, a preliminary autopsy determined that Butt died of heart problems and that there was no evidence of trauma or foul play. A Hudson County spokesman said Butt had complained of pain in his gums and had been brought to a dentist, who gave him the antibiotic tetracycline.
When Butt was found dead by prison guards, the spokesman said a Hazmat unit was called in as a precautionary measure because officials said he was detained days after the attacks and he was of Middle Eastern descent. Butt's cell mate and a handful of guards received nasal swab tests for anthrax which proved negative. But no one bothered to contact the Pakistani consulate to report his death.
Human rights attorneys say many immigrants like Butt, who speak little English, often do not understand that they have the right to make phone calls to lawyers and loved ones. And some, such as political dissidents, have good reasons for not contacting their consulates. But civil liberties groups say Butt's virtual disappearance into detention on Sept. 19 is just one of many cases where the government has withheld public information about detainees. Non-citizens held on immigration charges are most vulnerable because they have no right to an attorney while in custody. Butt appeared at his hearing with a translator, but without legal counsel.
Dr. Mansoor Khan, a Pakistani physician who publishes the Pakistan Voice, a newspaper for the New York area Pakistani community, says the lack of information about Butt's detainment has prompted his family back in Pakistan to imagine the worst. "They are saying that something went wrong with him in interrogation," said Khan. "No information is there. They do not think that he died of natural causes."
To date, little is known about the identities and detention conditions of others held on immigration charges related to the Sept. 11 investigation. The government has released only a trickle of information about those detained as material witnesses and those arrested on unrelated criminal charges. According to civil liberties organizations, the absence of those basic facts, coupled with the lack of debate and rushed passage of anti-terrorism legislation, has cast the government's actions in an unprecedented veil of secrecy.
"I think it is alarming to have people picked up by the hundreds and held on secret charges," says Kate Martin, director of the Center for National Security Studies in Washington D.C. "It raises serious questions about mass secret detentions and we have never had those in this country."
Who Are the Detainees?
According to Justice Department spokesperson Dan Nelson, the 1,147 people detained in the anti-terrorism investigation fall into three categories: approximately 185 people are being held on immigration law violations; a small, but undisclosed number are being held as material witnesses; and a large group is detained under federal, state or local criminal charges unrelated to the Sept. 11 attacks. The Justice Department will not reveal how many detainees have been released. Nelson says withholding information about detainees is necessary to protect the privacy of those held on immigration charges or to shield sensitive grand jury records.
"The Department of Justice has consistently released to the public information on criminal complaints and INS documents as they have been made available," said Nelson. "Our practice will be to continue to release as much information as possible."
No civil liberties groups are suggesting that Butt died of anything but natural causes. But they contend that the continuing secrecy surrounding the detainees, and the selective release of information by the government, raises questions about the possible rights violations which the government should address. On Oct. 17, the American Civil Liberties Union sent a letter to Attorney General John Ashcroft seeking more information about the detainees. When Ashcroft declined to provide any information, ACLU members met on Oct. 26 with Robert S. Mueller III, director of the Federal Bureau of Investigation. The group said that Mueller was unresponsive to their requests.
Prompted in part by the government's brushoff, Kate Martin filed a Freedom of Information Request on Oct. 29 demanding that authorities identify individuals arrested or detained since Sept. 11 and produce the charges filed against them, the names of their attorneys, and where they were being held. The FOIA request was signed by a coalition of 21 civil liberties, human rights and electronic privacy organizations. According to Martin, six members of Congress, including Senate Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.) have since asked for the information in the FOIA request to be made public.
On Nov. 1, the Justice Department agreed to expedite the FOIA request, and Martin says they have 20 days to reply. Ashcroft also has announced that the Justice Department will limit disclosures under FOIA requests whenever there is a legal basis for doing so (though the Justice Department has not spelled out under what authority they would withhold such information). If the FOIA request is denied, Martin says it would be an unprecedented claim of secrecy. INS laws permit the agency to withhold the names of those charged with immigration violations unless questions are raised about the agency's performance. It is unclear whether the FOIA request will trigger this exemption.
Martin, whose organization monitors civil liberties violations carried out in the name of national security, says she knows of no legal authority that would permit the government to withhold the names of those arrested or detained. While the government may argue that they need to keep intelligence gathering or terrorism investigations secret, Martin says the real issue at stake is ensuring that the criminal justice system remains an open and transparent process.
"While certain aspects of the FBI investigation into the terrorist attacks need to be secret, we do not live in a country where the government can keep secret who they arrest, where they are being held or the charges against them," said Martin. "We think it is unconstitutional for arrests to be secret and there have been a number of press reports, which if accurate, raise questions about whether people arrested have had their rights violated."
Civil Rights Violated?
None of those detained or arrested since Sept. 11 have actually been charged with crimes directly related to the highjackings. Still, these cases are held up as examples of progress in the government's anti-terrorism campaign. On Oct. 31, Ashcroft claimed that three Middle Eastern men, held in Michigan for falsifying documents, had advanced knowledge of the attacks. But the Justice Department later acknowledged they had no hard evidence of direct links. The Detroit Free Press quoted lawyers for two of the men who said they could not respond to the accusation because a federal judge in Detroit had barred them from discussing the case.
Meanwhile, Ashcroft has firmly stated that the government will not violate anyone's rights while investigating the Sept. 11 attacks. "We will preserve the rule of law because that's what makes us civilized," Ashcroft said in a speech to the U.S. Conference of Mayors on October 25.
The ACLU contends that while the government lacks evidence to charge suspects with terrorism crimes, the Justice Department is using minor immigration violations as a pretext for the detention and interrogation of non-citizens. "The government's goal is to get them into custody and ask them questions, and the device for getting them into custody is that they overstayed their visa," said Steve Shapiro, national legal director for the ACLU.
"Let terrorists among us be warned," Ashcroft said in his address to the mayors. "If you overstay your visas even by one day, we will arrest you. If you violate a local law, we will work to make sure that you are put in jail and kept in custody as long as possible."
Khan says he is worried that Pakistanis like Butt who overstay their visas will be held under the new anti-terrorism law, which allows the U.S. government to detain non-citizens without charging them with a crime.
"We are really concerned about how many other people are being arrested for the same issue and have no access to the Pakistani embassy," said Khan. "If they arrest you on any charges under the new regulations, they can take you for a week. How is my wife going to know where I am? How is my consulate going to know about me?"
The USA Patriot Act
Congress has largely complied with requests by law enforcement for broader powers to detain non-citizens. The initial proposal that the administration made to Congress on Sept. 19 asked for the attorney general to be able to detain non-citizens based on suspicion of involvement with terrorist groups and hold them indefinitely with no judicial review.
This caused a partisan uproar in the House and the new anti-terrorism law signed into law on Oct. 26 took some steps to reign in the administration's request. It required the attorney general to start deportation of foreign detainees immediately, charge them with a crime or release them within seven days.
The anti-terrorism law, dubbed the USA Patriot Act, also gives the attorney general the power to certify individuals as a threat to national security. Non-citizens accused of terrorism can be detained for "periods of up to six months," if they cannot be deported. They are also held in jail during deportation proceedings. An INS spokesman said that Butt accepted a voluntary deportation order during a hearing Oct. 15. But his departure was delayed because he lacked travel papers, which the INS was requesting from the Pakistani consulate.
Non-citizens deemed by the attorney general to be dangerous could also be held if a person's home country is unwilling to accept them back. Under the new law, Congress has the authority to review such detentions every six months. But Shapiro, of the ACLU, says there will be a certain percentage of people held for deportation hearings, and found to be deportable, but with no travel papers or a clear destination. "There are not many countries in the world willing to take someone we have labeled a terrorist under a deportation order," said Shaprio. "If there is nowhere to send them, these people can be held in jail indefinitely."
Even if deportation proceedings go smoothly, immigration advocates say it is possible for non-citizens to disappear in custody. Elisa Massimino, director of Washington Office of the Lawyers Committee for Human Rights, says the human rights community is concerned that that federal agencies will hold suspects for the allotted time and then pass them back and forth to continue the period of detention. Butt, for instance, was arrested and questioned by the FBI and then transferred into INS custody.
Massimino adds that those held on immigration charges are frequently shuttled between county jails, INS facilities or federal prisons, and it is sometimes difficult to determine exactly where detainees are being held. "Many innocent people are likely to be intimidated and, worse, picked up and lost in this new detention power without the ability to really challenge it," said Massimino. "We get calls from family members who say, 'My brother has been gone for two weeks, and we don't know where he is or what to do.'"
Civil liberties groups say that it has been difficult to identify those held on immigration charges because, even before Sept. 11, their names are expunged from public immigration charging documents under INS privacy laws. Detainees are also usually entitled to bond hearing before an immigration judge where charges are read in open court. According to Massimino, the INS has taken the extraordinary step of not permitting bond hearings for those detained in anti-terrorism investigations.
"Presumably, if they had evidence, then they would charge them," said Shapiro. "But now we are holding people based on suspicions of proof, and that is a fundament shift in how we administer justice in this country."
Nelson, of the Justice Department, confirms that immigration judges have the discretion to close hearings in order "to protect witnesses, interested parties or the public interest." But he could not say how many hearings associated with the detainees had been conducted or whether they have been open. He insists that those detained for immigration violations have access to phones and can contact attorneys.
"Any time a detainee enters an INS facility, they are informed that they have the right to counsel, they can contact their consulate for their nation of origin and they also are provided with a list of free legal services and a handbook that lists their rights and responsibilities," said Nelson. He adds that detainees have access to attorneys, law libraries and material needed to defend their case, and and every reasonable effort is made to provide information in their language.
This policy differs sharply with what civil liberties groups say they are hearing from attorneys and family members of detainees. "Some significant number of the [the detainees] are having enormous difficulty contacting attorneys," said Lucas Guttentag, director of the Immigration Rights Project of the National ACLU. He adds that very few legal services organizations that can provide counsel have open access to detainees. "The question is how many detainees are getting jailed and held for weeks and weeks without representation?"
Guttentag says he has heard of detainees held for a week before being able to contact an attorney and then then losing contact again for weeks after being transferred to a new holding facility. He also said there are people who, while attempting to leave the country after overstaying their visas, have been detained at the airport before departure. There have been additional accounts of detainees permitted to make a single phone call to an unresponsive legal aid organization and then waiting a week to make another one.
"Incommunicado becomes an undefined term," said Guttentag. "As a practical matter, they are being denied reasonable access to lawyers."
A Quiet Expansion of Detention Policies
While the USA Patriot Act expands the power of immigration laws, the existing material witness statute is being used to secretly detain others swept up in the anti-terrorism investigations. A federal judge can issue a material witness warrant to hold someone who prosecutors say may have valuable information about a crime and who is at risk for fleeing the country. Material witnesses are entitled to an attorney and a judicial hearing, but much of the information about material witnesses detained in the anti-terrorism investigations has been sealed by judges at the request of prosecutors.
The material witness statute includes no time limit on how long people can be held, a fact that deeply concerns Martin. "If it is going to be evoked in this situation," she says, "we need to know when it is being evoked, what criteria they are using and whether or not is is being used as a proxy for preventative detention on mere suspicion, because that is not the intent of the laws."
Martin's FOIA request asks for the names of lawyers representing those detained as material witnesses, a list of courts asked to enter orders sealing any of the proceedings, the orders that have been entered, and the legal authority that the government relied on in seeking the order. The ACLU and the Lawyers Committee for Human Rights also signed the FOIA request.
As for those detainees arrested on state and local charges unrelated to the Sept. 11 attacks, Nelson says that information is available from law enforcement agencies in the jurisdictions where suspects were detained. He said the names of those arrested on federal charges are available from "two or three binders" of paper records publicly available at the Justice Department in Washington D.C. But Nelson said he could not confirm how many people had been arrested or where and said there was no master list of those arrested on criminal charges.
Civil liberties groups says they recognize that the government has a legitimate interest in keeping some information about the terrorism investigation confidential. Martin believes there is a role for secrecy in terms of withholding information on anticipated war plans and the details of terrorism investigations. But Shapiro points out that no civil liberties organizations are asking for details of the investigation, names of informants or classified information. Rather they are requesting that basic facts on detainees should be made available so that the public can judge how the FBI is conducting their investigation.
Pressing For More Information
If there is no satisfactory reply to the FOIA request, Massiminio says the Lawyers Committee for Human Rights and other civil liberties organizations will sue the government for information about detainees. She said those groups will closely monitor for potential civil liberties violations and people should stay vigilant and continue to pressure the government for more information. "People ought not to throw up their hands and say there is nothing they can do," says Massimino. "Oversight is the key."
Massimino says she is particularly concerned about those who have had any contact with the 46 organizations the State Department has labeled as terrorist organizations. She says people (not just detainees) may have supported these groups with the understanding that they were humanitarian or educational organizations.
But they could now be swept up in the government's new detention policies, which are based on a very broad definition of what constitutes terrorism. "What it means under the new powers is that you could be a terrorist and not know it," said Massimino. "It is going back to the McCarthy era where it is guilt by association, which is what we have been edging towards since Sept. 11."
Ann Harrison is a San Francisco journalist who writes regularly for SecurityFocus.com and BusinessWeek.com.