November 29, 2001                                                    

Over the next several weeks, the U.S. Congress is holding hearings on the sweeping and unprecedented new powers the Attorney General has been given in the wake of the brutal attacks of September 11. The Attorney General’s exercise of these new powers has raised concerns about fairness and due process.  A number of Members of Congress have voiced these concerns about these powers.  

As Congress weighs the scope of the Attorney General’s powers against U.S. traditions of fairness and due process, Human Rights First strongly urges the following specific recommendations on dealing with the detention of foreigners: 

1.      The Attorney General must demonstrate that people’s rights are being protected, chief among them access to counsel.  

The Attorney General has said that the Justice Department is committed to upholding the rights of those who are detained. Human Rights First has received reports, however, that some detainees have been given only limited opportunities to seek legal counsel and that some detainees remain unrepresented. At a detention center in Brooklyn, for instance, detainees held in a special unit have been told they can only make one telephone call a week to find legal counsel.  Other detainees, held in various local jails in New Jersey, remain unrepresented. This problem is particularly acute for immigration detainees who, unlike those charged with crimes, are not entitled to free government-funded legal representation. 

Human Rights First has more than 20 years of experience in immigration cases.  We have seen that, quite frequently, individuals in detention on immigration charges do not understand the nature of their rights and how to exercise them. At a minimum, the Attorney General must assure that those who are detained have meaningful access to lawyers and family members.  

“Having rights and being able to exercise them are two different things,” said Elisa Massimino, director of the Washington office of Human Rights First.  “We know the Attorney General’s statement is a bit hollow for detainees who don’t speak English and don’t know that they have rights to assert.” 

2.      The Justice Department must create an internal review process – in addition to submitting to oversight by congress.  

Under the new counter-terrorism law, the role of courts has been severely limited.  To address this, the Justice Department should set up an internal review process at a senior level to make sure these new powers – among them prolonged detention and certification as a suspected terrorist – are only used in cases that warrant them.  

The Justice Department must also act in good faith and inform the public about those in detention.  At a minimum, the Justice Department should make sure there is public discussion about critical issues such as:  how many people are in custody and for how long? Have any detainees been certified as terrorists? Are any of those in custody going to be sent to military tribunals? 

3.      INS regulations that are inconsistent with the USA-Patriot Act should be rescinded. 

The authority for long-term or indefinite detention was one of the most controversial issues in the debate on the counter-terrorism legislation passed by Congress in October. Recently, the Department of Justice has asked for public comments on a series of new regulations that seek to give the INS substantial additional powers to detain non-citizens – even those who are in no way suspected of involvement with terrorism – for lengthy and unlimited periods.  These regulations go well beyond provisions of the USA-Patriot bill.  

“The provisions of the new law grant unprecedented and, in our opinion, overly broad powers to detain.  The new law ought to be the limit; there ought not to be an end run by regulation around the law,” said Massimino. “These regulations attempt to undercut the will of the Congress and are outside the scope of agency authority.” 

Two of the regulations at issue are: 

§         Regulations issued on September 20 (66 Fed. Reg. 48334). This regulation authorized an increase in the time to charge non-citizens to 48 hours and, in cases of "extraordinary" circumstances or an "emergency," to some unspecified greater "reasonable" period of time. As a result, the INS could detain a non-citizen who has committed no crime – and who is not in any way suspected to be a danger to anyone – for an unspecified period of time without even charging the non-citizen with an immigration violation. The regulation does not limit this power to high level officials; it could allow individual INS officers to decide whether there is an "extraordinary" or "emergency" situation. 

§         Regulations issued on October 31 (66 Fed. Reg. 54909).  Under these regulations, an INS trial attorney is allowed, in essence, to overrule an immigration judge's decision to release a detainee on bond. There is no requirement that the individual be suspected of a crime or terrorist activity.  As the appeal process is very prolonged, non-citizens will remain detained for substantial periods of time. 

“These regulations amount to attempts by the INS to seize extraordinary powers that will apply to all detainees – using the September 11^th tragedy as an excuse,” said Massimino. “These regulations should be pulled.”