continued . . . United States, by Amnesty International
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In the two months following the September 11 attacks, more than 1,200 non-US nationals were taken into custody in the USA, in nationwide sweeps for possible suspects. Partial data released by the government last November revealed that most were men of Arab or South Asian origin detained for immigration violations. Another 100 or so were charged with criminal offenses, none directly relating to the events of 11 September.
Six months on, some 300 people arrested in the post 9.11 sweeps are believed to remain in the custody of the Immigration and Naturalization Service (INS); an unknown number of others have been deported or released on bail, sometimes after months in custody. This report examines the circumstances of these detentions.
There continues to be a disturbing level of secrecy surrounding the detentions, which has made it difficult to monitor the situation. To date, the government has provided only limited data, which includes neither the names nor the places of detention of those held in post 9.11 INS custody, and immigration proceedings in many such cases have been ordered closed to public scrutiny. However, AI has gathered information from various sources, including a recent visit to two jails identified as housing detainees and extensive interviews with attorneys, detainees, relatives and former detainees.
AI's findings suggest that a significant number of detainees continue to be deprived of certain basic rights guaranteed under international law. These include the right to humane treatment, as well as rights essential to protection from arbitrary detention, such as the right to be informed of the reasons for the detention; to be able to challenge the lawfulness of the detention; to have prompt access to and assistance from a lawyer; and to the presumption of innocence.
According to immigration attorneys, many post 9.11 detainees have been charged with routine visa violations for which they would not normally be detained. While technically in INS custody, some have been held for weeks or months pending security "clearance" by the Federal Bureau of Investigation (FBI), a process shrouded in secrecy. Lack of information given to detainees or their attorneys as to why they are being held has made it difficult for them effectively to challenge their detention.
AI recognizes that governments need to be vigilant in investigating potential "terrorist" links. However, the secrecy surrounding the current proceedings creates the potential for abuse. There is also concern that the immigration system is being used to hold non-nationals on flimsy evidence pending broad criminal probes, without the safeguards which are present in the criminal justice system.
For example, unlike people detained in the context of criminal procedures, INS detainees have no right to court-appointed attorneys. Contrary to assertions made by Attorney General Ashcroft in November 2001 that all INS detainees had the opportunity to seek legal assistance through pro-bono legal service providers if necessary, AI has learned that many detainees have been without access to lawyers for far longer than was initially reported. This is of particular concern given that some are being simultaneously investigated by the FBI and subjected to lengthy-and possibly indefinite-detention.
The INS has broad powers to arrest and detain people for suspected immigration violations and has been given further powers since September 11. This includes the power to detain people without charge for up to 48 hours or for a further undefined period in "an emergency, or in other extraordinary circumstances." This latter power is broader than the provision under anti-terrorist legislation passed by Congress, which allows the Attorney General to hold certified "terrorist" suspects for up to seven days without charge. Data examined by AI reveals that scores of people picked up in the post 9.11 sweeps were held for more than 48 hours, and several for more than 50 days, before being charged with a violation.
Another regulation allows the INS to override Immigration Judges' decisions to grant bail in certain cases, thus reducing the power of the courts to oversee and rule on continued detentions. This regulation also undermines the principle of the separation of powers between the executive and the judiciary.
AI also remains deeply concerned that, although they are not charged with crimes, many post 9.11 detainees are held in punitive conditions in jails, sometimes alongside people charged or convicted of criminal offenses. AI has received reports of cruel treatment, including prolonged solitary confinement, heavy shackling of detainees during visits or court appearances, and lack of adequate outdoor exercise. There have also been allegations of physical and verbal abuse.
The Justice Department promulgated new detailed INS standards in late 2000, covering better attorney access and improved conditions, which were due to be introduced over time to all facilities housing INS detainees. However, these standards are still not being fully applied or adequately monitored, and many of the conditions under which 9.11 detainees are detained appear especially punitive.
Other issues addressed in the report include deportations and asylum cases. There are concerns that some detainees risk being deported to countries where they would be subjected to serious human rights abuses. The manner in which some detainees have been removed-one man, for example, was put on a plane without proper clothing or any of his possessions, and two people were deported without their families being informed-is also of concern.
- Excerpted with permission from the March 14, 2002 report, "Amnesty International's Concerns Regarding Post September 11 Detentions in the USA." Read the full report at www.amnesty.org.
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