FO B3 Public Hearing 12-8-03 2 of 2 Fdr- Tab 4- Suggested Questions for Panel Three- Preventive...

8/14/2019 FO B3 Public Hearing 12-8-03 2 of 2 Fdr- Tab 4- Suggested Questions for Panel Three- Preventive Detention- Use

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S U G G E S T E D Q U E S T I O N S F O R P A N E L T H R E E :P R E V E N T IV E D E T E N T I O N : U S E O F IM M I G R A T IO N L A W S

A N D E N E M Y C O M B A T A N T D E S IG N A T I O N S T O C O M B A T T E R R O R I S MDesignated Commissioners: Hamilton and Thompson

BACKGROUND

This panel focuses on two aspects of the Commission's charge to evaluate the lessons learnedwith respect to the government's policies and procedures in responding to the September 11attacks: (1) the arrests and detentions of approximately 750 foreign nationals on immigration lawviolations in connection with terrorism investigations following the attacks; and (2) the detentionby the Department of D efense in the U.S. of two U.S. citizens, and Guantanamo of non-citizens.(The government also detained over forty individuals on material witness warrants and arrestedothers based on federal criminal laws, and state and local laws. The arrests include legalpermanent residents and U.S. citizens who were Arab or Muslim or married to someone ofMiddle Eastern descent.) Foreign civil detainees. Shortly after September 11, 2001, federal law enforcement

authorities, with the stated goal of preventing further terrorist attacks here, began detainingArab and Muslim foreign nationals in what was to become a series of four initiatives: (i)using violations of the immigration laws to detain foreign nationals with possible connectionsto or information about terrorism, including the September 11 attacks; (ii) a VoluntaryInterview Program; (iii) an Absconder Apprehension Initiative; and (iv) a call-in SpecialRegistration program, followed by the National Security Entry-Exit Systems (NSEERS).This panel will focus primarily on the first of these, the so-called "September 11 Detainees."

Non-citizen andU.S. military detainees. Approximately 600 citizens of 43 nationalities areheld at Camp X-Ray, Guantanamo Bay, Cuba. Jose Padilla, a U.S. citizen, was arrested May8,2002 upon his return from Pakistan, in connection with an alleged plot to use aradiological bomb within the United States. President Bush ended Padilla's initial detentionby signing an order declaring him an "enemy combatant" and transferring him to Departmentof Defense custody. Yasir Hamdi, captured in Afghanistan, was transferred fromGuantanamo to a Naval brig in South Carolina when it was discovered he was a U.S. citizen,born in Baton Rouge, Louisiana.

Status of the civil foreign detainees. O f the 751, over 50 0 have been deported. T he Departmentof Justice Inspector General issued a critical report about the mistreatment of this population. The IG's report describes an administrative detention process by which federal authorities

held people who had violated the immigration lawseither by overstaying their visas, byillegally entering the country, or some other immigration violationuntil they were"cleared" by the FBI of terrorist connections. They were held for extended periods withouthaving formal charges brought against them. Bond was denied without individualizeddeterminations. Some were held as material witnesses without charges for lengthy periods,an d then charged with immigration violations. Some were not deported within the 90 day


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apparent statutory deadlineeven when they requested to be deported - because theyhadnot been "cleared." Their ability to obtain legal counsel and communicate with their familieswas curtailed, thereby limiting their ability to contest deportation. Some were subject tomental and physical abuse.Status of military detainees.The Supreme Court has accepted a case to determine whetherpersons held at Guantanamo are to be regarded as within the jurisdiction of U.S. courts forpurposes of filing a habeas petition. The government asserts the authority to arrest andincarcerate indefinitely anyone, including a U.S. citizen, whom the President labels as an enemycombatant. Only limited habeas corpus review is accorded. The two U.S. citizen militarydetainees are the subjects of pending cases in federal appellate courts.

QUESTIONSCIVIL DETAINEESLength of Detention/Congress' Role. Federal authorities have not used the terrorist-specifictools Congress provided in the PATRIOT Act amendments to the immigration laws establishinglengths of time for which to hold without charge foreign nationals who may have terrorist ties. ADepartment of Justice Inspector General report found that some foreign nationals were held forover one month without charges being brought against them. Before Sept. 11: INSregulations required that a determination about whether to charge aforeign national be made within 24 hours of their arrest. There was no statutory requirementfor when formal charges actually had to be brought following that determination. The law

required that a person be removed within 90 days after their final order of removal by anImmigration Judge. Immigration law provided for mandatory detention for persons inremoval proceedings based on their having criminal convictions or on terrorism grounds.

After Sept. 11: On Sept. 17, INS regulations were changed to permit charging within 48 hoursor within an additional "reasonable period of time"based on emergency or other"extraordinary circumstances." No record is kept of these charging determinations. Manydetainees were held for longer than 90 days after their final orders of removal ha d beenentered.

USA PATRIOT Act: Provides for mandatory detention for a foreign national whom theAttorney General chooses to certify as a national security danger. The Act requires the AGto either initiate removal proceedings or charge the person criminally within 7days of theirarrest; thereafter, if the person is found removable, but removal "is unlikely in the reasonablyforeseeable future," the AG can continue to detain the person for additional six monthperiods based on a certification by the Attorney General; the Act preserves habeas corpus.The AG has stated that although numerous persons subject to this provision have beendetained since September 11, the AG has not used this provision because "traditionaladministrative bond proceedings have been sufficient to detain these individuals withoutbond."


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1. Has the federal government overemphasized the use of the immigration system as acounterterrorism measure? What are alternative investigative strategies?

2. Wh at steps should be taken to strengthen relations between the Muslims and Arabs in theU.S. and our law enforcement agencies?3. Has our treatment of Muslims in the U.S. following September 11 contributed to aperception that the U.S. is profiling Muslims and fighting a war against Islamic culture?Has it given propaganda advantages to Al Qaeda and other terrorist enemies andcontribute to their ability to recruit?4. One of our great advantages and strengths as a nation is our openness to the world and to

people of all nationalities and cultures. What can we do through our immigration policyto actively promote cultural exchange, education, and economic activities that serve ournational interests in the world?5. One of the side-effects of increased security after September 11, was a significant

decrease in the number of refugees we have admitted to this country. What do you thinkcan be done to return our refugee admissions to previous levels? (Martin and Ting areexperts in this area.)6. Did the Justice Department violate any laws in its lengthy d etentions of the September 11

detainees without charges or after their final orders of removal had been entered?7. During a time of crisis is it acceptable to detain a foreign national for long periods of timewithout charging them?8. Did Congress in passing the PATRIOT Act intend to limit the AG's authority to hold

people w ithout charges for longer than 7 days? W hat authority does the governmenthave to create a non-statutory exception like the vague "emergency or other extraordinarycircumstances" that eliminates any time limit on how long someone can be held prior tobeing charged?

9. Is it acceptable to leave in the virtually unreviewable discretion of the A G thedetermination of for how long a foreign national may be held without formal chargesbeing brought, or should the AG be required to follow the new rules established byCongress?10. Would the PATRIOT Act's 7 day detention provisionif it were applied to all detained

foreign nationals, no t just ones certified by the AGstrike the right balance betweenliberty and security?


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Different rules for U.S. and foreign citizens? The Justice Department IG found serious abusesin the treatment of foreigners detained in connection with the investigation of the attacks ~ longperiods of detention without charges or after proceedings were completed, lack of access tocounsel and family, and physical abuse.

1. Does the constitution set up a different legal standard for the treatment of foreignersin our system of justice? Should it?

Legitimate immigration law enforcement? The IG found that in the cases they examinedclosely, the FBI and INS arrested the foreigner based on real violations of the immigration lawsthat subjected them to removal from the U.S. But since the IG also reported that many wereeffectively denied counsel, it is hard to know if there might have been a basis to contest removal.Many of the foreigners had immigration violations that would not typically have resulted in theirbeing detained before September 11.

1. During a time of crisis, it is acceptable to have a different standard for what constitutes adetainable immigration offense? What if the standard is that they are Muslim and out ofimmigration status, and that is all? Would this not be pure religious profiling?

2. If we were to increase the rate of immigration detentions and removals, how would weprioritize who ought to be removed in order best to reduce the risk of terrorist attacks?

3. Has the federal government overemphasized the use of the immigration system as acounterterrorism measure?

4. What steps should be taken to strengthen relations between the Muslims and Arabs in theU.S. and our law enforcement agencies?

Strategic value as "preventive" counterterrorism? Of the about 600 people who had closedhearings because they were deemed of special interest, none were charged with terrorismviolations, although some of these may have actually been deported based on their terrorist ties.The Department of Justice has vigorously defended its actions as part of its new mission toprevent another terrorist attack, as well as to investigate the September 11 attacks. Lawenforcement has always had a deterrent purpose. Prosecutors select charges that will convey amessage to other potential criminals. For example, investigators arrest active violent gangmembers for minor offenses to stop violence from escalating. Investigators typically will arrestconspirators before the bomb goes off, as they did when they arrested individuals plotting tobomb New York's landmarks in 1993. Preventive strategies, however, do not typically includerounding up large numbers of people not known to be a threat.

1. Based on the information available, do you think that the mass arrests and extendeddetentions were effective preventive law enforcement and helped prevent another terroristattack?

2. Has our treatment of Muslims in the U.S. following September 11 contributed to aperception that the U.S. is profiling Muslims and fighting a war against Islamic culture?


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3. Has it given propaganda advantages to Al Qaeda and other terrorist enemies andcontribute to their ability to recruit?

4. One of our great advantages and strengths as a nation is our openness to the world and topeople of all nationalities and cultures. What can we do through our immigration policyto actively promote cultural exchange, education, and economic activities that serve ournational interests in the world?

Secret arrests and closed hearings. The Department of Justice has kept secret the names ofthose arrested in the first few months of the attacks. The Chief Immigration Judge upon order ofthe Attorney General also issued a blanket order closing all deportation hearings of theseindividuals. Since the first wave of arrests, government officials have revealed the name of anumber of new detainees.

1. What is the argument for a blanket closure of the names and case status of those arrestedin the first wave of arrests following September 11?2. How is the circumstance of a potential informant different from m ob informants whom

we try openly but whose role as a confidential informant is kept secret?3. If a prosecutor can go to court andmake a compelling showing that in a particular case an

individual's name should not be released, and that the proceedings involving him shouldbe sealed, is there a need for blotting out all information about the existence of all of theimmigration cases?

Torture and other human rights violations. International human rights law limits thedeportation of people who face grave human rights violations upon return. Article 3 of theConvention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishmentprevents the U.S. from returning people who may face torture if deported to their countries oforigin. The U.S. is committed to adhering to this bar.

1. The Convention Against Torture and other human rights agreements do not provide clearguidance on what the U.S. should do if the government seeks to deport someone whomay pose a danger to this country or to other countries because of terrorist ties but whofaces torture if returned. What do you think should be done?

MILITARY DETAINEESNon-U.S. citizens held at Camp X-Rav. Guantanamo Bay1. The Supreme Court has accepted a case to decide whether U.S. courts have jurisdiction to

hear a claim filed by a foreign detainee held by our military in Guantanamo Bay, Cuba. Doyou think the answer is yes or no?


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2. If the Supreme Court decides that there is jurisdiction, what relief would detainees seized inAfghanistan be entitled to and on what grounds? Wou ld they be entitled to more than whatthey are accorded under the Geneva Conventiona hearing on the battlefield by threeofficers establishing that they are combatants?3. If the individual detained by the military is not a member of the Taliban's military forces, bu tis an Al Qaeda operative living in Afghanistan, who did not fight for the Taliban, does thatexclude him from the protections of the Geneva Convention?U.S. citizens arrested in the U.S.4. If the government argues that it can arrest Mr. Padilla at the airport in Chicago, and designatehim an enemy com batant and detain him in a military prison, does this imply the m ilitarycould have decided instead to simply shoot him at the airport?5. If Mr. Padilla is entitled to a hearing, should it be in a civil court or a military court?U.S. citizens seized upon or near the battlefield in AfghanistanYasir Ham di's father has filed a case on Hamdi's behalf, challenging his detention. Thegovernment maintains he is a POW , and although entitled to file a habeas petitions, he is notentitled to a lawyer. The case is pending in the 2d Circuit Court of Appeals.6. Are all U.S. citizens entitled to some due process? Under U.S. law? International law?7. If so, and a U.S. citizen is found on or near the field of battle, what kind of process do youhave to give him? Should he be given a military hearing under A rticle 5 of the Geneva

Convention? Should he be permitted to review the A rticle 5 determination in an A rt. 3court?8. Are all U.S. citizens entitled to due process in a non-military tribunal, no matter what thecircumstances of their apprehension?

FO B3 Public Hearing 12-8-03 2 of 2 Fdr- Tab 4- Suggested Questions for Panel Three- Preventive...

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