The September 11 Detainees:
A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks

June 2003
Office of the Inspector General

OIG RECOMMENDATIONS

We recognize the tremendous challenges the FBI, INS, BOP, and other Department components faced as they responded to the September 11 attacks and mobilized to prevent additional attacks during a chaotic period. We also recognize the dedication exhibited by many Department employees in response to the attacks. Without diminishing their contributions in any way, we believe the Department can learn from the experience in the aftermath of the September 11 attacks, and we therefore offer a series of recommendations to address the issues we examined in our review.

I. UNIFORM ARREST AND DETAINEE CLASSIFICATION POLICIES

The FBI New York Field Office and its Joint Terrorism Task Force (JTTF) aggressively pursued thousands of PENTTBOM leads in the weeks and months after the terrorist attacks. Many leads that resulted in an alien's arrest on immigration charges were quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant. However, we found the FBI and INS in New York City did little to distinguish the aliens arrested as the subjects of PENTTBOM leads or where there was evidence of ties to terrorism from those encountered coincidentally to such leads with no indication of any ties to terrorism.

The FBI's New York Field Office took an aggressive stance when it came to deciding whether any aliens arrested on immigration charges were "of interest" to its terrorism investigation. Witnesses both inside and outside the FBI told us that the New York FBI interpreted and applied the term "of interest" to the September 11 investigation quite broadly. Consequently, all aliens in violation of their immigration status that the JTTF encountered in the course of pursuing PENTTBOM leads - whether or not the subjects of the leads - were arrested, classified as September 11 detainees, and subjected to the full FBI clearance investigation, regardless of the factual circumstances of the aliens' arrest or the absence of evidence connecting them to the September 11 attacks or terrorism. This contrasted with procedures used elsewhere in the country, where aliens were assessed individually before being considered "of interest" to the terrorism investigation and therefore subject to the full FBI clearance investigations.

Moreover, the FBI's initial "interest" classification had an enormous impact on the detainees because it determined whether they would be housed in a high-security BOP facility like the MDC or in a less restrictive setting like Passaic. In addition, the decision to label an alien a "September 11 detainee" versus a "regular immigration detainee" significantly affected whether bond would be available and the timing of the detainee's removal or release.

1. We believe the Department and the FBI should develop clearer and more objective criteria to guide its classification decisions in future cases involving mass arrests of illegal aliens in connection with terrorism investigations. For example, the FBI could develop generic screening protocols (possibly in a checklist format) to help agents make more consistent and uniform assessments of an illegal alien's potential connections to terrorism. These protocols might require some level of evidence linking the alien to the crime or issues in question, and might include an FBI database search or a search of other intelligence and law enforcement databases.

   In addition, the FBI should consider adopting a tiered approach to detainee background investigations that acknowledges the differing levels of inquiry that may be appropriate to clear different detainees of connections to terrorism. For example, a more streamlined inquiry might be appropriate when the FBI has no information that a detainee has ties to terrorism, while a more comprehensive background investigation would be appropriate in other cases.

2. The FBI should provide immigration authorities (now part of the Department of Homeland Security (DHS)) and the BOP with a written assessment of an alien's likely association with terrorism shortly after an arrest (preferably within 24 hours). This, in turn, would assist the immigration authorities in assigning the detainee to an appropriate detention facility and the BOP in determining the appropriate security level within a particular facility. In addition, the FBI should promptly communicate any changes in its assessment of the detainee's connection to terrorism so that the DHS and BOP can make appropriate adjustments to the detainee's conditions of confinement.

3. The FBI did not characterize many of the September 11 detainees' potential connections to terrorism and consequently they were treated as "of undetermined interest" to the terrorism investigation. In these cases the INS, in an understandable abundance of caution, treated the alien as a September 11 detainee subject to the "hold until cleared/no bond" policies applicable to all September 11 detainees. This lack of a characterization by the FBI also resulted in prolonged confinement for many detainees, sometimes under extremely harsh conditions. Unless the FBI labels an alien "of interest" to its terrorism investigation within a limited period of time, we believe the alien should be treated as a "regular" immigration detainee and processed according to routine procedures. In any case, the DHS should establish a consistent mechanism to notify the FBI of its plans to release or deport such a detainee.

II. INTER-AGENCY COOPERATION ON DETAINEE ISSUES

The INS relied on the FBI to provide evidence about the detainees that it could use in bond and removal proceedings. When this information was not forthcoming in a timely manner, the INS had to request multiple continuances in bond hearings and other immigration proceedings in an effort to maintain the detainees in custody. In many of these cases, the INS's arguments against granting bond to the Immigration Court were based on little more than the fact the detainees were arrested in connection with PENTTBOM leads.

4. Unless the federal immigration authorities, now part of the DHS, work closely with the Department and the FBI to develop a more effective process for sharing information and concerns, the problems inherent in having aliens detained under the authority of one agency while relying on an investigation conducted by another agency can result in delays, continuing conflicts, and concerns about accountability. At a minimum, we recommend that immigration officials in the DHS enter into an Memorandum of Understanding (MOU) with the Department and the FBI to formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. An MOU should specify a clear chain of command for any inter-agency working group. Further, the MOU should specify information sharing and reporting requirements for all members of such an inter-agency working group.

III. FBI CLEARANCE PROCESS

While we appreciate the enormous demands placed on the FBI in the aftermath of the terrorist attacks, we found the FBI did not adequately staff or assign sufficient priority to its process for clearing September 11 detainees of a connection to terrorism. Agents responsible for clearance investigations often were assigned to other duties, which substantially delayed the completion of detainee clearance investigations. Even after the clearance decisions were centralized at FBI Headquarters, FBI officials failed to provide sufficient resources to complete the detainee clearance process in a timely manner. The FBI took, on average, 80 days to clear a September 11 detainee.

5. We believe it critical for the FBI to devote sufficient resources in its field offices and at Headquarters to conduct timely clearance investigations on immigration detainees, especially if the Department institutes a "hold until cleared" policy. The FBI should assign sufficient resources to conduct the clearance investigations in a reasonably expeditious manner, sufficient resources to provide timely information to other agencies (in this case, additional FBI agents to support the SIOC Working Group), and sufficient resources to review in a timely manner the results of inquiries of other agencies (in this case, completed CIA checks). In addition, FBI Headquarters officials who coordinated the detainee clearance process and FBI field office supervisors whose agents were conducting the investigations should impose deadlines on agents to complete background investigations or, in the alternative, reassign the cases to other agents.

6. We understand the resource constraints confronting the Department in the days and weeks immediately following the September 11 attacks. We also recognize that decisions needed to be made quickly and often without time to consider all the ramifications of these actions. However, within a few weeks of the terrorist attacks it became apparent to many Department officials that some of the early policies developed to support the PENTTBOM investigation were causing problems and should be revisited. Examples of areas of concern included the FBI's criteria for expressing interest in a detainee and the "hold until cleared" policy. We believe the Department should have, at some point earlier in the PENTTBOM investigation, taken a closer look at the policies it adopted and critically examined the ramifications of those policies in order to make appropriate adjustments. We recommend that the Department develop a process that forces it to reassess early decisions made during a crisis situation and consider any improvements to those policies.

IV. NOTICES TO APPEAR

Under federal regulation, the INS was required to decide whether to file immigration charges against an alien within 48 hours of his arrest. However, the regulation contained no requirement with respect to when the INS must notify the alien or Immigration Court about the charges. No statute or regulation explicitly stated when the INS was required to serve the Notice to Appear (NTA) on the alien or the Immigration Court. We found the INS did not consistently serve September 11 detainees with NTAs within its stated goal of 72 hours after arrest. Part of the delay can be traced to the INS's practice in the first several months after the terrorist attacks to having all NTAs reviewed for legal sufficiency at INS Headquarters. Another factor was the miscommunication that resulted when detainees arrested in New York City were transferred to the INS Newark District without having been served NTAs. INS Newark District officials assumed the detainees had been served in New York, while INS New York District officials incorrectly assumed that INS Headquarters had forwarded the NTAs to the INS Newark District for service. These delays affected the detainees' ability to obtain legal counsel and postponed the detainees' opportunity to seek a bond re-determination hearing.

7. We recommend that the immigration authorities in the DHS issue instructions that clarify, for future events requiring centralized approvals at a Headquarters' level, which District or office is responsible for serving NTAs on transferred detainees: either the District in which the detainee was arrested or the District where the detainee is transferred.

8. We recommend that the DHS document when the charging determination is made, in order to determine compliance with the "48-hour rule." We also recommend that the DHS convert the 72-hour NTA service objective to a formal requirement. Further, we recommend that the DHS specify the "extraordinary circumstances" and the "reasonable period of time" when circumstances prevent the charging determination within 48 hours. We also recommend that the DHS provide, on a case-by-case basis, written justification for imposing the "extraordinary circumstances" exception and place a copy of this justification in the detainee's A-File.

V. RAISING ISSUES OF CONCERN TO SENIOR DEPARTMENT OFFICIALS

Department officials established the "hold until cleared" policy believing that the FBI's clearance process for September 11 detainees would take just a few days. However, in many cases the clearance process stretched on for months and created dilemmas for INS attorneys who handled bond and removal proceedings. The slow pace of the FBI's background investigations, coupled with the lack of individualized evidence connecting specific detainees to terrorism, left INS attorneys with little evidence to argue for continued confinement of the detainees.

The evidence indicated that attorneys in the INS's Office of General Counsel made efforts to raise with some Department officials the issue of whether the INS could refuse to accept bond set by an Immigration Judge when the Government failed to appeal or block a detainee's departure from the country when he had received a final removal order. Yet, when these efforts were unsuccessful, INS officials did not raise the issue at higher levels in the Department or submit their legal concerns in writing until months later.

9. We recommend that Offices of General Counsel throughout the Department establish formal processes for identifying legal issues of concern - like the perceived conflict between the Department's "hold until cleared" policy and immigration laws and regulations - and formally raise significant concerns, in writing, to agency senior management and eventually Department senior management for resolution. Such processes will be even more important now that immigration responsibilities have transferred from the Department to the DHS.

VI. BOP HOUSING OF DETAINEES

At least 84 September 11 detainees arrested on immigration charges in connection with the September 11 investigation were confined at the MDC. The BOP housed these detainees in its ADMAX SHU under extremely restrictive conditions. While the BOP played no role in deciding which detainees were "of interest" or "of high interest" to the FBI, once detainees were transferred to one of its facilities the BOP assumed responsibility for the detainees' conditions of confinement.

The BOP combined a series of existing policies and procedures that applied to inmates in other contexts to create highly restrictive conditions of confinement for September 11 detainees held at the MDC and other BOP facilities. For example, the BOP initially designated September 11 detainees as witness security (WITSEC) inmates, a categorization that restricted public knowledge of and access to the detainees. This designation frustrated efforts by detainees' attorneys, family members, consular officials, and even law enforcement officers to determine the detainees' location, given how tightly information about WITSEC inmates is held. In addition, the BOP's initial communications blackout and its policy of permitting detainees one legal call per week (coupled with arbitrary policies on whether reaching an answering machine counted as the legal call), severely limited the detainees' ability to contact and consult with legal counsel.

10. We recommend that the BOP establish a unique Special Management Category other than WITSEC for aliens arrested on immigration charges who are suspected of having ties to terrorism. Such a classification should identify procedures that permit detainees' reasonable access to telephones more in keeping with the detainees' status as immigration detainees who may not have retained legal representation by the time they are confined rather than as pre-trial inmates who most likely have counsel. In addition, BOP officials should train their staff on any new Special Management Category to avoid repeating situations such as when MDC staff mistakenly informed people inquiring about a specific September 11 detainee that the detainee was not held at the facility.

11. Given the highly restrictive conditions under which the MDC housed September 11 detainees, and the slow pace of the FBI's clearance process, we believe the BOP should consider requiring written assessments from immigration authorities and the FBI prior to placing aliens arrested solely on immigration charges into highly restrictive conditions, such as disciplinary segregation in its ADMAX SHU. Absent such a particularized assessment from the FBI and immigration authorities, the BOP should consider applying its traditional inmate classification procedures to determine the level of secure confinement required by each detainee.

12. We found delays of days and sometimes weeks between when the FBI notified the BOP that a September 11 detainee had been cleared of ties to terrorism and when the BOP notified the MDC that the detainee could be transferred from its ADMAX SHU to the facility's general population, where conditions were decidedly less severe. We recommend that BOP Headquarters develop procedures to improve the timeliness by which it informs local BOP facilities when the detention conditions of immigration detainees can be normalized.

13. We found evidence indicating a pattern of physical and verbal abuse by some MDC corrections staff against some September 11 detainees. While the OIG is continuing its administrative investigation into these matters, we believe MDC and BOP management should take aggressive and proactive steps to educate its staff on proper methods of handling detainees (and inmates) confined in highly restrictive conditions of confinement, such as the ADMAX SHU. The BOP must be vigilant to ensure that individuals in its custody are not subjected to harassment or more force than necessary to accomplish appropriate correctional objectives.

14. BOP and MDC officials anticipated that some September 11 detainees might allege they were subject to abuse during their confinement. Consequently, they took steps to help prevent or refute such allegations by installing cameras in each ADMAX SHU cell and requiring staff to videotape all detainees' movements outside their cells. Unfortunately, the MDC destroyed the tapes after 30 days. We recommend that the BOP issue new procedures requiring that videotapes of detainees with alleged ties to terrorism housed in ADMAX SHU units be retained for at least 60 days.

15. We recommend that the BOP ensure that all immigration detainees housed in a BOP facility receive full and timely written notice of the facility's policies, including procedures for filing complaints. We found that the MDC failed to consistently provide September 11 detainees with details about its Administrative Remedy Program, the formal process for filing complaints of abuse.

16. Some MDC correctional staff asked detainees "are you okay" as a way to inquire whether they wanted their once-a-week legal telephone call. Detainees told the OIG that they misunderstood this question and, consequently, unknowingly waived their opportunity to place a legal call. We recommend that the BOP develop a national policy requiring detainees housed in SHUs to affirm their request for or refusal of a legal telephone call, and that such affirmance or refusal be recorded in the facility's Legal Call Log.

17. We recommend that the MDC examine its ADMAX SHU policies and practices in light of the September 11 detainees' experiences to ensure their appropriateness and necessity. For example, we found that while the MDC offered September 11 detainees exercise time in the facility's open-air recreation cell, they failed to provide suitable clothing during the winter months that would enable the detainees to take advantage of this opportunity. In addition, we found that the MDC kept both lights on in the detainees' cells 24 hours a day for several months after they had the ability to turn off at least one of the cell lights.

VII. OVERSIGHT OF DETAINEES HOUSED IN CONTRACT FACILITIES

18. INS Newark District staff conducted insufficient and irregular visits to September 11 detainees held at Passaic. We also found that Passaic officials did not always inform Newark staff when detainees were placed in the SDU and that Newark officials did not always maintain required records for SDU detainees. Consequently, Newark staff was unable to consistently monitor detainee housing conditions, health issues, or resolve complaints. We recommend that the DHS amend its detention standards to mandate that District Detention and Removal personnel visit immigration detainees at contract facilities like Passaic frequently, with special emphasis on those detainees placed in SDUs, in order to monitor matters such as housing conditions, health concerns, and complaints of abuse. District visits should include an interview of and a review of the records for detainees housed in SDUs. We further recommend that the DHS issue procedures to mandate that contract detention facilities transmit documentation to the appropriate DHS field office that describes the reasons why immigration detainees have been sent to SDUs.

19. We recommend that DHS field offices conduct weekly visits with detainees arrested in connection with a national emergency like the September 11 attacks to ensure that they are housed according to FBI threat assessments and BOP classifications (or other appropriate facility classification systems). In addition, the DHS should ensure that the detainees have adequate access to counsel, legal telephone calls, and visitation privileges consistent with their classification.

VIII. OTHER ISSUES

20. How long the INS legally could hold September 11 detainees after they have received final orders of removal or voluntary departure orders in order to conduct FBI clearance checks was the subject of differing opinions within the INS and the Department. A February 2003 opinion by the Department's Office of Legal Counsel concluded, however, that the INS could hold a detainee beyond the normal removal time for this purpose. That issue is also a subject in an ongoing lawsuit.

Regardless of the outcome of the court case, we concluded that the Department failed to turn its attention in a timely manner to the question of its authority to detain such individuals. Where policies are implemented that could result in the prolonged confinement of illegal aliens, we recommend that the Department carefully examine, at an early stage, the limits on its legal authority to detain these individuals.

21. The INS failed to consistently conduct Post-Order Custody Reviews of September 11 detainees held more than 90 days after receiving final orders of removal. These custody reviews are required by immigration regulations to assess if detainees' continued detention is warranted. We understand that under Department policy in effect at the time, the INS was not permitted to remove September 11 detainees until it received FBI clearances. We believe the INS nevertheless should have conducted the custody reviews, both because they are required by regulation and because such reviews may have alerted Department officials even more directly that a number of aliens were being held beyond the 90-day removal period. We recommend that the DHS ensure that its field offices consistently conduct Post-Order Custody Reviews for all detainees who remain in its custody after the 90-day removal period.