America's Top-Secret Prisoners

by Gabrielle Banks

Detainees from Afghanistan sit in a holding area in Camp X-Ray, Guantanamo Bay, Cuba, January 11, 2002. As shown here, the captives emerged from their flight wearing blindfolds, masks, earphones, and gloves. Human rights watchers charged that such restraints violated the Geneva Convention

His crime? Overstaying a tourist visa.

Mehmood's is one of hundreds of stories that have prompted concern in the international human rights community about the precipitous round-up of 1200 Muslim and Arab immigrants after the Sept. 11 attacks. The Metropolitan Detention Center (MDC) blocked access to monitors from Amnesty International and other groups. However, a March Amnesty report -- based on visits to Hudson and Passaic county jails in New Jersey and interviews with witnesses of INS detention centers in 26 states -- depicts a pattern of abuse that belies the basic principles of justice. In flat, diplomatic language, the report details the arbitrary imprisonment of hundreds of people who've been denied access to their families and lawyers, and are often prosecuted in secret trials.

The New Jersey facilities hold the majority of INS detainees swept up in the "terror dragnet." According to the most recent Justice Department disclosure, 325 detainees still remain in INS custody -- the vast majority on visa violations. Only one inmate, Zacarias Moussaoui (who was actually detained prior to Sept. 11), is accused of terrorism.

Not surprisingly, many detainees have abandoned any illusions they had about "the land of the free."

"You remove the charm of fairness and justice -- it all seems meaningless if you've been in jail for four or five months," said Sohail Mohammed, who has represented about 15 of the so-called "special interest" detainees. "Prior to 9/11, people would hire attorneys like me to prolong their stay in the U.S. Now they hire attorneys to get out of the county as soon as they can. We should not be holding secret detentions, secret trials, or secret prosecutions here. Those are akin to repressive regimes."

For the past several months, the Justice Department has refused to provide lawyers and immigrants' rights advocates with basic information about the detainees, not even their names. Most detainees are incommunicado without access to valid legal directories; and, lawyers may only visit detainees if they know their names.

Carlos Munoz, Bloomberg Fellow for Human Rights Watch, expressed amazement at the breaches of fundamental rights. "It's amazing that in a democracy you can have secret arrests and people don't have access to detention centers. It's suspicious if a human rights group can't visit the jails. I guess [the Justice Department and the INS] feel confidence the American public is on their side." Human Rights Watch has tracked down and interviewed detainees across the country and will soon release a comprehensive report on its findings.

Rachel Ward, the co-author of the Amnesty report was slightly more delicate in renouncing the detention centers. Her response to the Metropolitan Detention Center in Brooklyn denying access to Amnesty and several other groups was tempered acceptance. "They can deny our request. We're a non-governmental organization. But, obviously, when that happens, it's a concern. Allowing access to outside monitors is important from the point of view of public accountability."

Then, with one far-reaching little memo on Sept. 21, 2001, Chief Immigration Judge Michael Creppy ordered all immigration judges to bar access to the press, public, and family members on cases designated by the Attorney General to be of "special interest" to the FBI. (The AP reported in April that the INS had already conducted at least 700 such secret proceedings.) Attorney General Ashcroft followed up with a fervent warning to the media and other curious parties at a November press conference (quoted by Hanna Rosin in a Washington Post article): "When the United States is at war, I will not share valuable intelligence with our enemies. We might as well mail this list [of detainees] to Osama bin Laden's al Qaeda network."

U.S. Army military police escort a detainee to a cell at Camp X-Ray. The cells, with no walls except for the bars, have been compared to dog kennels

The USA PATRIOT Act, passed in October 2001, gave the government the flexibility to certify individuals as suspected terrorists and detain them up to seven days without charges. Given all the indefinite detentions, it's perplexing that the Department of Justice (DOJ) has not certified a single long-term detainee as a suspected terrorist under the PATRIOT Act.

Instead, the Department is employing an obscure interim administrative rule enacted by the Bush administration to detain inmates indefinitely. The rule extends the amount of time a non-national can be held in INS custody without being formally charged from 24 to 48 hours, "or in the event of an emergency or other extraordinary circumstance in which case the service must make such determinations within an additional reasonable period of time."

In the case of one Saudi the "reasonable" time period translated to a 119-day stint in prison before he was charged with any offense.

When it became clear in the late fall that 99 percent of the "special interest" detainees had done nothing more than overstay a visa or obtain employment with fraudulent identification, advocates jumped into gear. In December, sixteen civil rights groups filed a FOIA (Freedom of Information Act) lawsuit against the Justice Department demanding information about the detainees. And the New Jersey American Civil Liberties Union (ACLU) won a state suit challenging the government's policy of holding secret hearings for 9/11 hundreds of detainees. The DOJ -- which now faces five separate lawsuits challenging the constitutionality of closed hearings in "special interest" cases -- has asked an appeals court to extend the deadline for releasing the names.

When requests for information began to backfire, ACLU's new director, Anthony Romero, came up with an ingenious tactic. He realized that although the INS has no duty to release names to anyone domestically, the agency is obligated to release the information to foreign consulates. So the ACLU began contacting consulates of countries likely to have citizens detained and urging foreign diplomats to contact the DOJ for information. (The majority of the detainees are natives of Pakistan, Egypt, Turkey, Yemen, Tunisia, Saudi Arabia, Morocco, and Jordan.)

Commentator Jennifer Van Bergen pinpointed the irony of this bureaucratic glitch in an article for Truthout.com: "If national security concerns prevent the U.S. government from revealing such information to its own lawmakers and citizens, how is it that it can reveal this information to nations like, say, Pakistan?"

Many battles are being fought to poke holes in the government's secrecy around the detentions. The court proceedings of Muslim cleric Rabih Haddad in Detroit were cloaked in so much secrecy, The Independent (UK) reported, "that even Haddad has been barred from attending; he has had to watch them on video from his jail cell, without the right of participation." A great deal of publicity and support from Representative John Conyers (D) and other prominent figures may have made the difference for Haddad.

In April, U.S. District Judge Nancy Edmunds declared the Creppy memo unconstitutional. Opening Haddad's case, she said, would not cause irreparable harm to national security. This decision may have set a precedent for 9/11 cases. However, the DOJ is appealing several cases, across the nation, to protect against information leaks.

In a plea to maintain confidentiality in a New Jersey case in early May, U.S. Attorney Michael Lindeman told the federal courtroom, "This is the most important national security investigation in U.S. history. . . . Details you and I might think are innocuous" would allow foreign investigators to "piece together a picture" of where the U.S. terror probe is heading.

Immigration attorney Sandra Nicholls, whose office is near ground zero in Manhattan, has a different take. She looks down on the pit everyday and she has the same concerns as other Americans, but as the weeks turn into months she does not believe the INS detainees are actually being investigated. After representing several 9/11 clients at INS hearings, Nicholls has concluded that "special interest" detentions only create a false sense of security for Americans seeking resolution.

The latest ruling in the New Jersey case indicates that the DOJ may be losing ground on the secrecy issue. On May 29, U.S. District Judge John W. Bissell rejected the "national security" argument for holding secret hearings in "special interest" cases.

Last month's INS escapade involved accidentally handing over to the General Accounting Office the "top secret" list of 9/11 detainees Senator Russ Feingold (D) and Congressman Conyers had requested. "We're fighting all these court battles to not give this out," a Justice Department source told the New York Daily News. "[Ziglar] will get reamed out" for this, he said.

On Martin Luther King Day 2001, Desis Rising Up and Moving (DRUM) and several other community groups in New York and New Jersey kicked off a "Stop the Disappearances" campaign to demand INS accountability. Since then, DRUM has compiled a list of more than 100 missing persons associated with Sept. 11 sweeps. "We still get numerous reports of abuses and bad conditions," said DRUM organizer Monami Maulik.

DRUM hopes to locate more of the missing through the voluntary "Know Your Rights" trainings the ACLU and the American Friends Service Committee offer in prison facilities. "It's more difficult to organize in immigrant communities. Most of the people we work with are low-wage undocumented workers who are specifically targeted from certain jobs," Maulik said. DRUM's documentation indicates that recent INS raids have rounded up immigrants employed at restaurants, corner stores, gas stations, and cab companies. "They're working to silence political dissent -- from immigrants and other disenfranchised communities -- to a war abroad."

Anser Mehmood is now one of the plaintiffs in a class action lawsuit against John Ashcroft, FBI Director Robert Mueller, INS Commissioner Ziglar, and the warden and guards of MDC. The civil rights suit, brought by the Center for Constitutional Rights, alleges Muslim detainees have been subjected to "unreasonable and excessively harsh conditions." The international press reported in April that immigration lawyers anticipate approximately 100 detainees (and former detainees) will file similar allegations.

An Iranian detainee at the Wackenhut facility in Denver suffered what may have been a stroke in solitary confinement. He received no treatment for three months in spite of his symptoms. And Muhammed Butt, a Pakistani detained on visa violation, died of a heart attack at Hudson county correctional center in New Jersey. According to an investigative report by Anne-Marie Cusac of The Progressive, Butt's cellmate told Human Rights Watch monitors Butt had requested medical attention many times in the 10 days prior to his death. He banged on the door to no avail the day he died.

Unfortunately, the Justice Department's investigation into a mounting number of civil rights violations in INS detention has prompted retaliation from prison guards. On May 24, The Washington Post reported that immediately after the DOJ interviews, MDC guards stepped up their verbal and physical abuse of detainees. MDC inmates organized a hunger strike to protest the new round of harassment.

The sun sets on Camp X-Ray's first day, January 11, 2002

From so close a vantage point, it's hard to assess the historical repercussions of 9/11 detention. Regardless of any remedies the courts may provide, many estimate the damage has been done. "Surely, in 21st century America the INS can do better than saying if you're Arab, you're a suspect. These practices are counterproductive and send a chill through the entire Arab-American and American Muslim community," Congressman Conyers wrote in a press release.

Sohail Mohammed concurs. "Fifty years later we realized we made a mistake with Japanese Americans, and 50 years down the line we'll be saying the same to American Muslims. We should be promoting rule of law, rather than lawlessness. Once determination is made about the cases, we should keep the detainees or leave them -- not just hold them without any charges. It seriously undermines the democratic process we espouse around the world."