ACLU's Memo to Interested Persons on the Civil Liberties Record of Designate Michael Chertoff

ACLU's Memo to Interested Persons on the Civil Liberties Record of Designate Micheal Chertoff

Secretary of Homeland Security Designate Michael Chertoff and Civil Liberties

To: Interested Persons
From: American Civil Liberties Union, Washington Legislative Office
Re: Michael Chertoff and Civil Liberties
Date: Jan. 28, 2005

Introduction

Michael Chertoff, President George W. Bush's nominee to succeed Tom Ridge as chief of the Department of Homeland Security, has an accomplished record as a jurist and attorney.

He also, however, has been an active and uncompromising proponent, even before 9/11, of national security policies that push, or breach, the outer limits of what is permissible under the Bill of Rights.

Since 9/11, moreover, he has been an even stronger supporter of these policies, especially during his service as assistant attorney general in charge of the Justice Department's ("DOJ") Criminal Division. Chertoff, for instance, was a member of the attorney general's inner circle that vetted and helped design the original USA Patriot Act. He also reportedly came up with the idea of revising internal guidelines at DOJ to allow the FBI to send undercover agents into religious, social and political gatherings without evidence of wrongdoing.

And, perhaps most significantly, he was the real force behind the pretextual detention of hundreds of Arab and Muslim men during the 9/11 investigation using minor immigration violations that would not normally warrant detention.

Although the American Civil Liberties Union, as a matter of long-standing policy, cannot endorse or oppose cabinet nominees, it does have an obligation to investigate and publicize the civil liberties records of nominees to positions with great sway over fundamental freedoms. Few positions are as significant in this context as the Homeland Security Secretary.

DHS and Civil Liberties

While it is only two-years-old, the Homeland Security Department controls a veritable alphabet soup of national security agencies, many of which directly impact civil liberties policies today. These include:

• The Transportation Security Administration ("TSA");
• U.S. Citizenship and Immigration Services ("USCIS");
• U.S. Immigration and Customs Enforcement ("ICE");
• The Border and Transportation Security ("BTS") Directorate;
• The United States Secret Service ("USSS"); The Homeland Security Directorate of Science and Technology, which includes the Homeland Security Advanced Research Projects Agency ("HSARPA");
• The Federal Emergency Management Agency ("FEMA");
• And, the Information Analysis and Infrastructure Protection ("IAIP") Directorate, which is responsible for disseminating threat intelligence to local, state and federal law enforcement.

In addition, the Homeland Security Department, given its youth and the ever-present threat of international terrorism, may expand its authority in the coming years, either through legislation, bureaucratic wrangling or force of leadership. Most notably, given the limited intelligence function granted DHS, the replacement of the Director of Central Intelligence with a new, cabinet-level Director of National Intelligence could also affect the mandate and power of DHS.

As such, the constitutional demands on the Homeland Security Secretary are similar to those on the attorney general: to enforce the law??s, protect public safety and uphold the Constitution. None of these mandates are expendable, no matter what the "threat matrix" shows.

The following memorandum details the ACLU's points of concern in Chertoff's public record, and suggests avenues of inquiry for his confirmation hearing. We hope the Senate will explore these and other matters before voting to confirm Chertoff.

The 9/11 Detainees

Immediately after the 9/11 attacks, the FBI launched the most extensive criminal investigation in American history, called "PENTTBOM," an acronym for the Pentagon-Twin Towers-Bombing. One of the government's investigative tactics, formulated at the highest levels of the Department of Justice,[1] involved the aggressive, pretextual detention of persons of interest to the investigation.[2]

Of all the civil liberties infringements since 9/11, including the Patriot Act and other highly visible controversies, the events surrounding the PENTTBOM investigation detentions are the most detailed and documented. Author and journalist Stephen Brill, moreover, reported that Chertoff was given primary authority over these detentions, and "would make all decisions on who was released and even who was held in solitary."[3] Brill names former INS Commissioner James Ziglar as a source, along with two people who were in a series of meetings with Attorney General John Ashcroft, Deputy Attorney General Larry Thompson and Chertoff.[4]

This is obviously a key topic for further Senate inquiry. To that end, it is worth summarizing the findings of the 198-page June 2003 DOJ inspector general report, which examined the detention controversy in great detail.

The Origins of the Detainee Roundup

According to the inspector general's report, almost 1,200 citizens and non-citizens were detained and questioned in the two months following the attacks. DOJ used a variety of legal authorities to justify these detentions, including material witness warrants (discussed in more detail below) and criminal charges. Most non-citizens, however, were held for civil immigrations violations. In total, according to the report, 762 male immigration detainees were placed on an "INS Custody List" in the 11 months after the attacks.[5]

Notably, because immigration charges are civil, not criminal, the detainees were not entitled to government-appointed counsel.

None were ever charged with a terrorism-related crime.[6]

The vast majority of these 762 men were Middle Eastern, South Asian or North African; close to half were from Pakistan or Egypt.[7] Most were detained in New York and New Jersey,[8] by FBI-led terrorism task forces following up leads that were often "quite general in nature."[9]

An FBI agent interviewed by the IG's office, for instance, said that as a matter of policy any person with an immigration violation who was in the company of an individual identified in a lead would be taken into custody.[10] Also, aside from such wrong-place-at-wrong-time arrestees, the individualized leads that prompted detention as a "September 11 detainee" were also frequently vague and indeterminate. For instance:

• One detainee was taken into custody after he mentioned in casual conversation with a tipster that he would like to learn how to fly an airplane.[11]
• Three Middle Eastern men were held as 9/11 detainees even though their employer verified that building plans discovered by the police in their car were there because they were working on a construction crew at a school.[12]
• A Muslim man in his 40s was held as a 9/11 detainee because an acquaintance wrote a letter to law enforcement saying the man had made "very general," "anti-American" comments.[13]
• Several others were taken into custody on tips that they were Arabs or Muslims keeping odd schedules.[14]

Inconsistencies in the Justification for the Detentions

Once in custody, all but a few of these detainees were held for minor civil immigration violations, including visa overstays, entering the country without inspection or invalid documentation.[15] DOJ officials have asserted that holding these men under such charges was not out of the ordinary. Chertoff, for instance, told the Senate Judiciary Committee in November 2001 that "nothing that we are doing differs from what we do in the ordinary case or what we did before September 11th."[16]

Alice Fisher, Chertoff's deputy at the time, made comments to the IG's office that bring this statement into question. "[T]he Department was detaining aliens on immigration violations that generally had not been enforced in the past," she said.[17] Chertoff, moreover, said more recently that, "No one has the right not to be prosecuted for breaking the law, even if the law is rarely enforced."[18] Brill reports that senior DOJ officials, including Chertoff, were operating under the premise that taking the detainees in custody, "wasn't to prosecute them but to prevent them, which meant that violating the kinds of rules pertaining to searches and interrogation that would get evidence thrown out of courts wasn't that important."[19]

The IG report finds, "It is unlikely that most if not all of the individuals arrested would have been pursued by law enforcement authorities for these immigration violations but for the PENTTBOM investigation."[20]

Brill describes this investigative sea change in more dramatic terms. In response to FBI Director Robert Mueller's concerns that the FBI was not used to detaining persons against whom they had no real evidence of criminality, Attorney General Ashcroft replied that the new paradigm of "prevention" required the FBI to "round up anyone who fit the profile."[21]

Indeed, Brill reports that Ashcroft actually instructed FBI Director Mueller to "question and question hard," "any male from eighteen to forty years old from Middle Eastern or North African countries whom the FBI simply learned about."[22] Chertoff was then to take any of these men with civil immigration infractions into custody.[23]

Procedural Problems While in Custody

In addition to the vague grounds for taking many of the detainees into custody, the IG report highlighted a series of serious procedural deficiencies in the DOJ's detention policy.

Most notably:

• Only 60 percent of the 9/11 detainees received notice of the reason for their detention (formally known as "notices to appear" or NTAs), within the 72-hour goal set by headquarters. The average length of time for service of an NTA was seven days, and many were not told why they were in custody for many weeks.[24] These delays hindered detainees' ability to obtain proper legal counsel (as they did not know the specific charges against them) as well as their ability to receive bond or be released.[25]
• FBI and INS officials told the IG about an official "hold until cleared" policy, which required the detention without bond of those men on the INS Custody List until the FBI had formally cleared them.[26] Normally, a non-citizen held for such civil violations would likely be entitled to release on bond while awaiting a hearing in front of an immigration judge. Although the policy was never committed to paper, the IG report makes it clear that it had been communicated to agents in the field,[27] and that they were aware it had been blessed in discussions "at the highest levels of the Department."[28]
• INS attorneys, moreover, reported to the IG that the FBI frequently was unable to provide any specific evidence to support their opposition to bond for the detainees, requiring the filing of multiple continuances or of vague declarations of the general security interest in keeping these men imprisoned. As a result, the detainees often languished in prison while the broken process unduly delayed processing, removal or release.[29]
• The FBI process for clearing detainees of any suspected connection to terrorism, moreover, was not expeditious. The bureau cleared less than 3 percent of the 762 detainees within three weeks of arrest. More than a quarter took longer than three months. The average length of time between arrest and clearance was 80 days, and the median 69.[30] The IG report attributed these delays to a variety of reasons, including assigning FBI agents performing the clearances to additional duties, as well as general disorganization and a lack of resources dedicated to the task.[31] The delays in clearances resulted in, among other things, the continued detention of non-citizens who had received final removal orders or were willing and able to leave the country.[32]

Abusive Conditions of Confinement

The conditions of confinement were also criticized by the IG's report, though it does not say that Chertoff was directly involved or responsible for the conditions criticized. As mentioned though, he was reportedly the DOJ official responsible for the pretextual detentions in the first place.

The 762 detainees examined by the report were split among various detention facilities based upon which category of "interest" they were put into. Those classified as "high interest" were held in high-security prisons across the country. The IG report looks in detail at the confinement experience at the Metropolitan Detention Center ("MDC") in Brooklyn, New York, which held 84 of the 184 high interest detainees. Those non-citizens held on immigration violations and classified as "of interest" or of "undetermined interest" were held at lower-security facilities.[33] Chapter Eight of the report examines the detentions at the Passaic County Jail in New Jersey, which held 400 of the 762 detainees.[34]

Significantly, the report concludes that the FBI criteria for designating detainees as "high interest," "of interest" or "undetermined interest" were ad hoc and arbitrary. Typically, the arresting agent would make this determination.[35]

Regarding the conditions of confinement in Brooklyn, the report concludes:

• After taking custody of the detainees from the FBI, the Bureau of Prisons ("BOP"), a DOJ agency, held the high-security detainees incommunicado for a period of several weeks by imposing a complete "communications blackout." During this time, detainees could not communicate with the outside world at all, and family members and attorneys were unable to learn where or why the detainees were being held.[36]
• The BOP initially labeled all PENTTBOM detainees as "witness security," or WITSEC, inmates, a classification usually reserved for people who agree to testify for the government. For the 9/11 detainees, however, the WITSEC classification meant that their families and attorneys were often unable to find out where they were being held, even after the communications blackout. It also resulted in MDC personnel mistakenly telling family members that their relatives were not being held at that facility when the opposite was true.[37]
• MDC inmates were severely hindered in their ability to obtain legal counsel. Even though most entered without having retained an attorney, they were permitted only one legal phone call a week, and the pro bono lists provided by the government often contained obsolete or inaccurate contact information.[38]
• Interviewees for the IG report said that officials from the deputy attorney general's office told the BOP to "not be in a hurry" to provide detainees with communications access, including the ability to contact a lawyer or family.[39]
• Detainee access to foreign consular officials faced similar limitations. BOP officials classified telephone contact with diplomatic personnel as "social calls," and permitted inmates only one a month.[40]
• The "evidence indicates" a pattern of abuse, both physical and verbal, by some MDC guards.[41] A supplemental IG report, released in December 2003, confirmed this abuse at the MDC. Notably, the report was the product of an IG review of 300 videotapes, initially thought destroyed by BOP officials, containing surveillance footage from MDC cameras. Though the footage graphically showed the physical and verbal abuse of detainees, many of the inmates told IG interviewers that the abuse "dropped off" significantly after the introduction of the cameras.[42]
• The BOP instituted excessively restrictive detention policies, including lockdown for 23-hours a day, round-the-clock cell lighting and shackling and heavy escort during any time spent outside of the cell.[43]

Although the IG report found that the Passaic detentions were "significantly less harsh"[44] than those at the MDC, the detainees there still had to contend with the procedural deficiencies that unduly lengthened their detention. The report also faulted the INS for not visiting the facility more often to assess the conditions of confinement.[45]

Chertoff's Knowledge of the Clearance Delays

It is worth mentioning that Chertoff is mentioned several times throughout the IG report. According to the report, an attorney in the Terrorism and Violent Crime Section ("TVCS") of the DOJ's Criminal Division, which Chertoff led, raised concerns with his superiors in late September 2001 that the FBI was devoting insufficient resources to clear the detainees in a timely manner.[46] In response, a senior TVCS official drafted a memorandum for Chertoff's signature requesting the deployment of at least one FBI agent per field office to promptly interview detainees held in that district, and nothing that only one person was assigned