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

CONDITIONS OF CONFINEMENT AT
THE PASSAIC COUNTY JAIL IN PATERSON, NEW JERSEY

I. INTRODUCTION

Not all September 11 detainees were confined in highly restrictive facilities like the MDC. The majority of the aliens arrested on immigration charges after the September 11 terrorist attacks were not deemed by the FBI to be of "high interest" to its terrorism investigation and therefore were housed in INS detention facilities or state or county jails under contract to the INS to house federal immigration detainees.

The Passaic County Jail (Passaic), located in Paterson, New Jersey, approximately 25 miles from the INS Newark District Office, has been under contract with the INS since 1985 to house federal immigration detainees awaiting processing of their cases.¹³¹ It also houses United States Marshals Service prisoners. The 4-story facility, built in 1956, houses inmates in both medium- and high-security settings and has a capacity of approximately 1,800 beds.

According to INS data, Passaic housed 400 September 11 detainees from the date of the terrorist attacks through May 30, 2002. This represented the most September 11 detainees held at any single U.S. detention facility. Passaic eventually housed 52 percent of all September 11 detainees (400 of 762).

Passaic's total inmate population was approximately 1,600 on September 11, 2001. As September 11 detainees began arriving at Passaic, the total inmate population grew to a peak in late November 2001 of about 1,750 inmates, but never reached the facility's capacity of 1,800. During the period September 2001 through May 2002, the population of non-INS inmates averaged approximately 1,440.

Unlike the MDC, Passaic had confined federal immigration detainees for more than 15 years, and the staff at Passaic was familiar with the INS and issues related to INS detainees. Also different from the MDC, September 11 detainees housed at Passaic were not identified as such by jail staff or segregated from the rest of the prison population. Passaic officials made no distinction between the detainees confined as a result of the September 11 investigation and other INS detainees confined on "regular" immigration charges. Our interviews with September 11 detainees at Passaic confirmed that, while most stated that they did not understand why they were in jail, they were not singled out in any way for exceptional treatment by jail staff because they were or had been subjects of the September 11 terrorism investigation.

As discussed in Chapter 7, MDC officials were instructed by the BOP to treat the September 11 detainees as WITSEC inmates and hold them under very restrictive conditions. In contrast, the INS did not give Passaic specific classification instructions, and Passaic officials treated the September 11 detainees as regular INS detainees. Overall, September 11 detainees at Passaic were given considerably more privileges than detainees at the MDC and were not systematically subjected to the lockdown conditions or the restrictions on their freedom of movement or association experienced by detainees held at the MDC.

This chapter examines the conditions of confinement experienced by September 11 detainees housed at Passaic. As in the chapter on MDC, we address the detainees' housing conditions, access to legal counsel, attorney and social visitation, allegations of physical and verbal abuse, medical services, and opportunities for recreation. We also describe oversight of the Passaic detainees by the INS Newark District.

We developed a sample of 66 September 11 detainees housed at Passaic. The sample included 30 detainees held at Passaic as of April 2002 and 30 additional detainees who were released or transferred prior to April 2002. When we conducted our fieldwork at Passaic in May 2002, 13 of the 30 detainees identified as currently held at Passaic were still there. The other 17 had been released or transferred. We interviewed the 13 detainees who were still confined at Passaic. We also interviewed six detainees held at Passaic who were the subject of media articles, and reviewed files for all 66 detainees in our sample.

II. BACKGROUND ON PASSAIC COUNTY JAIL

The INS has entered into numerous Intergovernmental Service Agreements (IGAs) with county governments across the United States to house federal immigration detainees. Passaic signed an IGA with the INS in January 1985 to house INS detainees; Passaic currently receives $77 per day for each detainee it confines. The INS has developed standards that facilities such as Passaic must follow to be eligible for INS contracts and funding. These standards articulate policies on a wide variety of confinement issues, including detainee telephone access, medical care, and discipline.

The INS Newark District contracted with Passaic and other county facilities in northern New Jersey to hold INS detainees, and had oversight responsibility for the September 11 detainees held at Passaic. In contrast, the INS New York District had no direct oversight of September 11 detainees confined at the MDC because the MDC is a federal prison operated by the BOP.

INS detainees were housed in the medium security portion of the Passaic County Jail. Within that part of the facility, a Special Detention Unit (SDU) of six single-person cells is used when needed to segregate inmates either for their own protection or to punish inmates who commit disciplinary infractions. Inmates confined to the SDU are monitored 24 hours per day by cameras in each cell. In addition, SDU inmates only are permitted to place calls to and receive visits from their attorneys - no social calls or visits are allowed. According to Passaic policy, disciplinary infractions such as assaulting or threatening staff and inmates are usually punishable by confinement in the SDU for 15 to 30 days per incident. Later in this chapter, we discuss the experiences of the few September 11 detainees held in the SDU.

In late April 2001, Edwin Englehardt, the Passaic County Sheriff for 28 years, resigned and then-Undersheriff Ron Fava was elevated to Acting Sheriff. Fava appointed Felix Garcia as Warden to run the Passaic jail. At the time of the terrorist attacks on September 11, 2001, Garcia had operational responsibility for Passaic. In January 2002, Jerry Speziale took office as Sheriff and appointed Charles Meyers as Warden of the Passaic jail.¹³²

III. HOUSING OF DETAINEES

1. Processing of September 11 Detainees

   Upon their arrival at Passaic, similar to other INS detainees, September 11 detainees were searched, fingerprinted, photographed, issued jail clothing, provided with the jail handbook, and placed in a temporary holding cell to await a medical examination and mental health screening by Passaic staff. Generally within 24 hours, the detainees were assigned to a housing unit in the facility.

   The INS's Detention Standards provide general guidelines for classifying inmates based on various factors, including "current offense, past offenses, escapes, institutional disciplinary history, and violent episodes/incidents." The classification ranges from Level 1 (least serious) to Level 3 (most serious). Under these standards, INS detainees such as the September 11 detainees were classified as Level 1 inmates and could not be housed with Level 3 inmates who had been convicted of acts of physical violence or aggravated felonies such as narcotics trafficking. This stands in contrast with the BOP memorandum, "Guidance for Handling of Terrorist Inmates and Recent Detainees," issued on October 1, 2001, by Michael Cooksey, the BOP's Assistant Director for Correctional Programs, that placed the September 11 detainees held by the BOP under extremely restrictive conditions of confinement.

   Some INS detainees at Passaic were assigned to a unit (pod) with 2-person cells and an associated dayroom, but more often to large dormitory units housing approximately 50 men. The dormitory units served as both sleeping quarters and a dayroom. INS detainees, including September 11 detainees, had most of the same privileges and restrictions as other inmates at the facility, with the exception that jail policy forbade INS detainees from holding jobs in the jail. Beginning in September 2002, however, INS detainees were able to work in the Passaic laundry facility.

   According to INS data, 92 percent of the September 11 detainees held at Passaic (371 of the 400) were arrested in the New York City area. Based on data from the INS and Passaic, the average number of total INS detainees housed at Passaic per week climbed steadily, from about 50 detainees out of a total of 1,596 inmates at the facility prior to September 11, 2001, to 98 by October 6, 2001. The number of INS detainees continued to climb, to 207 on October 20, 2001, to 306 on November 3, 2001, to a high of 417 (out of a total population of 1,777) by early December 2001. During this 3-month period, the number of INS detainees at Passaic increased from 3 percent to 23 percent of the facility's total inmate population. In spite of the dramatic increase in INS detainees, the facility never reached overcrowded conditions because Passaic had a significant number of empty beds prior to September 11.

   Figure 11: Weekly Average Number of INS Detainees Held at Passaic County Jail is not available electronically.

   The steady increase in INS detainees over such a relatively short period of time reduced Passaic's ability to consistently ensure INS detainees were segregated from more serious offenders. Passaic Warden Meyers and Deputy Warden Brian Bendl told the OIG that due to the sudden influx of INS detainees after September 11, detainees were housed alongside sentenced county inmates. Bendl said this happened when Passaic did not have sufficient immigration detainees to fill an entire jail pod or dorm.

   Nine of the 13 September 11 detainees we interviewed at Passaic in May 2002 said they shared dayrooms with sentenced criminal inmates during some portion of their custody at Passaic. The detainees said they knew this through their conversations with the inmates and based on the color of the wristbands worn by different inmates at the facility (according to Passaic staff, federal detainees wore red wristbands while county inmates wore white wristbands). Our review of the Passaic housing records also confirmed that at least 7 of the 13 September 11 detainees we interviewed were housed with sentenced criminal inmates for periods ranging from 1 week to 5 months. Bendl confirmed that Passaic periodically housed September 11 detainees with sentenced inmates, but he said only with inmates serving sentences of less than one year for crimes such as shoplifting, simple assault, and drug possession. We could not confirm this statement because the housing records we reviewed did not contain information about inmates' criminal history.

   All the September 11 detainees we interviewed expressed concern for their safety or were fearful to some degree. One detainee told the OIG that he shared a dormitory with county detainees for five months and did not feel safe. He was eventually moved to a unit with other INS detainees. Another detainee complained about being moved from an INS housing unit to a unit housing county inmates. A third detainee complained about problems he and fellow Muslims were having, not with county inmates but with other INS detainees.

   Case Study 5: We interviewed a September 11 detainee who said that he and other Muslim detainees were being intimidated by two INS criminal aliens, both aggravated felons. He told the OIG that when he and his fellow Muslims quietly conducted afternoon prayers in the common dayroom, these two criminal aliens turned up the volume on the television. When he asked them to turn the volume down, the criminal aliens refused and warned the detainee not to do anything about it. The detainee said he complained to Passaic staff about this problem to no avail. In addition, the detainee said that no assistance was forthcoming from the INS because staff from the INS Newark District had not visited his unit.133 After the detainee raised this issue with the OIG during his interview, Passaic staff moved one of the criminal aliens out of the September 11 detainee's housing unit.

   We saw no evidence that the INS Newark District reviewed the housing assignments of September 11 detainees in Passaic. According to Deputy Warden Bendl and Passaic officers who had regular contact with the Newark District, INS officials did not ask about the detainees' housing assignments. Bendl told the OIG that the INS Newark District left the housing decisions for September 11 detainees to Passaic officials.

   When we interviewed INS Newark District officials, the two INS Newark detention officers responsible for visiting INS detainees at Passaic told us that they were not certain whether INS detainees were segregated from county detainees. Another INS Newark detention officer we interviewed told us that he thought the INS had no policy for segregating September 11 detainees from county inmates. These responses illustrate that INS Newark District detention officers with responsibility for monitoring INS detainees at Passaic did not ensure that INS policies on classifying and housing INS detainees were followed at Passaic.

2. SDU Housing Reviews

   We found that Passaic and the INS also did not maintain adequate records about September 11 detainees placed in the facility's SDU. According to INS detention standards, each detainee's file should contain a written record explaining the reasons why, and for how long, a detainee was confined in the SDU.

   We did not find any SDU housing records in the files of the September 11 detainees, even though our review of the Passaic SDU Log from September 12, 2001, to May 30, 2002, indicated that eight September 11 detainees were housed in the Passaic SDU for various lengths of time during this period.¹³⁴ Our review of SDU logs showed that:

   • Two September 11 detainees were placed in the SDU for medical isolation, one for chicken pox from October 28 to October 30, 2001, and one for pink eye from December 13 to December 18, 2001.

   • Two September 11 detainees were sent to the SDU for assaulting a third September 11 detainee. The SDU Log records that one was in the SDU from January 8 to January 9, 2002; the other from January 8 to January 18, 2002. In the incident report, the victim stated that the two detainees pulled him out of bed and began hitting and punching him. The assaulted detainee was taken to a local hospital emergency room for stitches.

   • One detainee spent eight days (from December 1 to December 8, 2001) in the SDU. The incident report documents that upon arrival at Passaic, the detainee was instructed to remove his clothing as part of the initial booking process. He refused to obey multiple orders and began to argue with the officer. According to the report, the detainee walked up to the officer, put his finger into the officer's chest, and continued to argue. The officer took his arm and brought him to the ground to handcuff him. After a struggle, another officer handcuffed the detainee. Medical staff who examined the detainee a short time later observed no signs of injury.

   • One detainee spent 24 days in the SDU (from December 18, 2001, to January 10, 2002) based on an FBI request to segregate the detainee. We were unable to determine the reason for the segregation request.

   • One detainee spent his first four days at Passaic in the SDU after being transferred from the MDC on March 25, 2002. The detainee told the OIG that he was segregated because of his physical and mental condition at the time. The detainee stated that when he arrived at Passaic he was depressed, non-communicative, and could not walk after spending six months at the MDC. Passaic officials segregated him from other inmates and detainees until they could assess his condition.

   • A September 11 detainee was placed in the SDU for 14 days (from May 19 to June 2, 2002) for threatening and assaulting a Passaic correctional officer, using abusive language, and for refusing to obey an order.¹³⁵

   An INS Newark District Supervisory Detention Officer told the OIG that Passaic officials did not consistently inform the INS Newark District when INS detainees were placed in the SDU, contrary to instructions from Deputy Warden Bendl and Passaic policy. The only SDU record we found in the INS Newark District files regarding a September 11 detainee was for the detainee who served 14 days in the SDU for threatening and assaulting a correctional officer. After our inspection visit of Passaic in May 2002, the INS initiated a requirement that IGA facilities like Passaic must inform the local INS District office when a detainee is transferred to the SDU.

   When asked about the lack of documentation in September 11 detainee files and the failure to consistently notify the Newark District when INS detainees were moved to the SDU, Bendl said that prior to January 2002 Passaic staff often notified the INS Newark District by telephone about incidents involving INS detainees, including placement of detainees in the SDU. After January 2002, he instructed his staff to fax incident reports involving INS detainees to the INS Newark District, including when a September 11 detainee was housed in the SDU. Bendl offered no explanation as to why, despite his instructions to his staff, the SDU report regarding the detainee transferred from the MDC on March 25, 2002, was not forwarded to the INS Newark District Office.

IV. ACCESS TO LEGAL COUNSEL

We found that September 11 detainees housed at Passaic generally received the same access to counsel as non-September 11 INS detainees. Furthermore, in contrast to detainees held at the MDC, the Passaic detainees generally had no difficulty contacting attorneys or family members, and attorneys and family members had no systemic difficulty locating the detainees or contacting them.

1. Background

   Deputy Warden Bendl told us that if an attorney called or visited Passaic to speak to a specific INS detainee, Passaic staff would confirm for the attorney that the detainee was housed at the facility. Passaic officials said they asked attorneys to schedule appointments to see detainees at least 24 hours in advance. One attorney for a September 11 detainee in our sample stated that when he first contacted Passaic he was told that his client was not being held at the facility when, in fact, he was. When asked about this attorney's experience, Bendl told us he was unaware of the specific incident, but that it likely was due to a simple mix-up. Bendl said some detainees used more than one name and frequently there was confusion among Passaic staff about spelling and name order.¹³⁶

   None of the 13 September 11 detainees we interviewed indicated that their family members were not informed that they were held at Passaic. At Passaic, family and friends were allowed to visit detainees. In contrast, only immediate family members were permitted to visit September 11 detainees confined at the MDC.

   According to Bendl, in January 2002 immigration rights groups began contacting Passaic officials requesting information about September 11 detainees held at the jail. Bendl said Andrea Quarantillo, the INS Newark District Director, ordered Passaic to direct all such inquiries regarding September 11 detainees to the INS Newark District. At the same time, the INS requested that Passaic staff ask attorneys to present copies of INS Form G-28 (the document filed with the INS that indicates an attorney is representing a particular detainee) prior to their visit at Passaic.

   In the spring of 2002, INS Headquarters issued at least two policies affecting dissemination of information on September 11 detainees. An April 8, 2002, memorandum from the INS's Office of General Counsel (OGC) to all INS detention facilities, including contract facilities like Passaic, requested that facilities notify the OGC of any requests for information that could disclose the identities of September 11 detainees. In addition, in May 2002 Passaic Warden Meyers received a copy of an interim INS rule regarding release of information on INS detainees. This interim rule, effective on April 17, 2002, stated that detention facilities such as Passaic "shall not release information" on September 11 detainees and that requests for public disclosure of such information will be directed to the INS. These two policies continued the restrictions on the extent to which Passaic could release information on September 11 detainees to the media, immigration advocacy groups, or anyone other than individual detainees' family, friends, or legal counsel. According to Quarantillo, the INS Newark District released the detainees' locations to detainees' attorneys and family members if they requested.

2. Legal Telephone Calls

   The INS's policy on telephone access for immigration detainees states that contract facilities such as Passaic "shall permit immigration detainees to make direct calls" to obtain or consult with legal representatives.¹³⁷ Further, the policy states that, "the facility shall enable all detainees to make calls to the INS-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party." However, Passaic's inmate handbook states that all calls by detainees must be collect, including calls to legal counsel. We found that all detainee calls made to attorneys, except for those facilitated by the Passaic ombudsman (discussed later), were collect calls.¹³⁸

   Image 6: This image depicts telephones in one of the Passaic dayrooms used by September 11 detainees. Photograph dated May 24, 2002.

   Five of the 13 September 11 detainees we interviewed at Passaic told the OIG that their attorneys' offices did not accept collect calls. Warden Meyers and two other Passaic employees confirmed that several attorneys would not accept collect calls from September 11 detainees. A Passaic ombudsman also told us that he was aware that INS detainees were having problems contacting attorneys on the INS pro bono list in the days after September 11, 2001, because some attorneys would not accept collect calls.

   To address this problem, beginning on September 28, 2001, Passaic officials permitted September 11 detainees to place direct calls to their attorney or consulate free of charge from the facility ombudsman's office. According to an ombudsman, he would schedule a time for the detainee to come to his office to make a legal call at no cost to the detainee or the person being called after receiving a written request from a detainee.¹³⁹

   We interviewed two correctional officers who served as ombudsmen at Passaic. One had served as ombudsman for five years, while the other served in this position from September 2001 to February 2002. Both said they made rounds in the units once a day, told the detainees they were available for assistance in making legal telephone calls, and collected written requests from detainees who wanted to place calls. In addition, they said requests to use the telephone could be transmitted to them through other Passaic staff. The ombudsmen told the OIG that they permitted numerous detainees to place legal calls from their office because the detainees had no money or their attorneys would not accept collect calls. The ombudsmen also said they assisted interested detainees in contacting their consulates. Detainees we interviewed confirmed that the ombudsmen facilitated their legal calls.

3. Pro Bono Attorney List

   We found that pro bono attorney lists were not consistently provided to September 11 detainees housed at Passaic, as required by INS regulations, although lists were posted at the jail.

   According to INS regulations, INS officers who processed the September 11 detainees were responsible for providing each detainee upon arrest "with a list of the available free legal services . . . located in the [INS] district."¹⁴⁰ The INS Newark Assistant District Director for Investigations told the OIG that INS staff provided detainees with pro bono attorney lists when they were processed in the INS Newark District and before they were sent to detention facilities such as Passaic.

   As discussed in Chapter 7, the Executive Office for Immigration Review (EOIR) is responsible for maintaining lists of pro bono attorneys who offer free legal services to immigration detainees in each INS District. According to federal regulations, each INS facility, including Passaic, is also required to "promptly and prominently post" the pro bono attorney lists "in detainee housing units and other appropriate areas."¹⁴¹

   According to Warden Meyers and Deputy Warden Bendl, Passaic employees posted laminated copies of the pro bono attorney lists in the detainees' dayrooms and in the law library at Passaic. However, Bendl stated that it was not facility policy to give each detainee a copy of the pro bono list. He also acknowledged that not all the units in which the INS detainees were housed posted the lists.

   Four of the 13 September 11 detainees we interviewed stated they never received a list of pro bono attorneys either from the INS or Passaic staff. Three other detainees said they saw a posted list, two said they obtained lists from immigration judges at their hearings, one said he had a list from another New Jersey facility from which he was transferred, and one did not recall if he received a list.

   Three of the 13 September 11 detainees we interviewed already had attorneys when they arrived at Passaic, and three additional detainees contacted their families who arranged to hire attorneys. The other seven detainees said they depended upon the pro bono list or word of mouth from other detainees to find legal representation.

   None of the eight legal organizations on the list of pro bono attorneys provided to Passaic officials by the INS Newark District listed toll free numbers.

4. Legal Rights Presentations

   We found that Passaic took steps to ensure that September 11 detainees were aware of and able to attend legal rights presentations. In addition, we found that the INS Newark District was generally responsive to organizations seeking to conduct legal presentations at Passaic.

   First, according to Deputy Warden Bendl, all INS detainees who entered Passaic after November 2001 were shown a video informing them of their rights at the facility, including their legal rights. This video was provided by the INS Newark District and shown after the detainees' initial processing at the facility.

   Second, Passaic detainees were given legal rights presentations by immigration groups. These "Know Your Rights" presentations are designed to inform INS detainees about U.S. immigration law and INS procedures. According to INS standards, attorneys and legal groups who wanted to conduct a legal presentation at Passaic were required to submit a written request and an agenda to INS Newark District Director Quarantillo. When approved, INS Newark District officials notified Passaic staff, who in turn contacted the requesting organization to arrange a date and time for the presentation. According to Newark District officials, no requests were refused.

   Bendl said legal presentations to detainees were limited generally to one hour, but could be extended at the discretion of Passaic staff. Detainees were required to sign up for the sessions 24 hours in advance and newly arrived detainees were given preference. According to Bendl, the number of detainees who could attend was limited only by the capacity of Passaic's chapel, the room where the presentations were held, which held approximately 200 people. None of the 13 September 11 detainees we interviewed at Passaic complained about a lack of legal rights presentations or said they were not permitted to attend such presentations.

   The American Friends Services Committee conducted the first legal rights presentation at Passaic on March 10, 2002, after submitting a request in mid-February to the INS Newark District. Quarantillo said that beginning in March 2002 and lasting for several months, legal rights groups made presentations at Passaic an average of "every other week." Between March and May 2002, Passaic officials blocked out two hours every Tuesday for legal rights presentations, and Bendl said between 20 and 70 detainees attended each session.

V. ALLEGATIONS OF PHYSICAL AND VERBAL ABUSE

Unlike at the MDC, we did not find evidence of a pattern of physical abuse of September 11 detainees at Passaic. Eleven of the 13 detainees we interviewed during our site visits said they were not subjected to any physical abuse while at Passaic.¹⁴² The twelfth September 11 detainee at Passaic who we interviewed claimed that he was physically abused by correctional officers at Passaic. See Case Study 6 below. The thirteenth detainee we interviewed, who transferred to Passaic from the MDC, refused to discuss the issue with us. He told the OIG, however, that his situation at Passaic was "tolerable" compared to his situation at the MDC.

With regard to allegations of verbal abuse, 3 of the 13 Passaic detainees we interviewed said that on several occasions Passaic staff verbally harassed them with ethnic slurs.

Passaic officials told the OIG that any complaints of physical or verbal abuse are referred to the Passaic Internal Affairs Division. The Passaic Internal Affairs Division officer responsible for receiving such referrals said that except for the incident described in Case Study 6, his office received no complaints from September 11 detainees about physical or verbal abuse.

Case Study 6: On May 23, 2002, we interviewed a September 11 detainee at Passaic who had a black eye and walked with a limp, which he said resulted from a series of altercations with Passaic correctional officers on the evening of May 19, 2002. According to incident reports and the Passaic SDU log, at 4:30 p.m. the detainee, who was supposed to receive a vegetarian meal, took a food tray with chicken. When a correctional officer ordered him to return it, an argument ensued and the officer notified the Sergeant on duty. At 5:30 p.m., the Sergeant took the detainee to his cell and told him to gather his belongings because he was going to be taken down to the first floor to be assigned to a different housing unit for using abusive language toward a correctional officer. The Sergeant and a Lieutenant who escorted the detainee alleged that in a corridor on the first floor the detainee assaulted the Sergeant. By contrast, the detainee told us that the Sergeant initiated the hostilities by threatening him for talking back to the Sergeant. Officers forced the detainee to the floor, handcuffed his arms behind his back, and took him to the SDU because he continued to yell threats at them. At 6:40 p.m., medical staff examined the detainee who, according to the medical records, was lying on the floor alert, able to speak, with no shortness of breath. The detainee said that his chest hurt, but he refused any treatment or medication. Medical staff prescribed Tylenol and scheduled him to see the doctor in the morning. The medical department noted the detainee did not appear to have difficulty breathing because he was very loud and vocal. When the detainee returned to his cell, he began yelling and kicking the door. At about 8:15 p.m., two other officers visited the detainee's cell to discuss the incident report. According to the officers, the detainee was belligerent, uncooperative, and verbally abusive. He took the incident report from the officers and refused to give it back. The detainee was ordered repeatedly to place his hands outside the cell to be handcuffed, but he refused to do so. One officer advised the detainee that if he did not cooperate, he would be sprayed with mace. The detainee still did not return the report or allow the officers to handcuff him. The officers sprayed him with mace, entered the cell, handcuffed him, and retrieved the incident report. The detainee was taken to the shower to rinse his face and then to the medical department because he claimed he was having difficulty breathing. According to the detainee, the officers wanted him to sign a paper, but he refused because they would not let him read it. He said the argument escalated and several officers entered his cell to subdue him. During the ensuing struggle, the detainee said someone pushed him to the floor; pressed a knee against his neck, making it difficult for him to breathe; kicked him in the side; pepper-sprayed him; and punched him in the eye. As a result of the incident, the detainee claimed he suffered severe back pain, a badly swollen black eye, chest pains, and injuries that prevented him from standing, required him to use a wheelchair, and resulted in a permanent limp. Subsequent to the incident, the detainee's left eye became badly swollen and he complained of chest and back pain. By 12:41 a.m. on May 21, 2002, the detainee complained that he could not move his legs. According to an incident report, Passaic staff placed him in a wheelchair, took him to the Passaic medical department where he was examined, and sent him to a local hospital emergency room for evaluation. The hospital emergency room discharge report recorded the detainee's complaint that he could not move his right leg and observed that his left eye was blackened and swollen shut. He was x-rayed, given pain medications, and referred to an ophthalmology clinic. The doctors who examined the detainee determined he was in good health and had no spinal or back injuries. According to the detainee, several days after his visit to the hospital guards brought a dog from Passaic's canine unit into his SDU cell when he informed officers that he was unable to get out of bed. He alleged that the guards told him that if he did not get out of bed by the next day, they were going to "let the dog loose." Passaic officers told us that it is not unusual to make rounds with dogs, including in the SDU area, but denied that they threatened to use the dogs on the detainee. The OIG's Investigations Division investigated the incident and presented the evidence in the case to the Civil Rights Division, which declined criminal prosecution. The OIG is currently conducting an ongoing administrative investigation of the matter.

The OIG received three other complaints related to allegations of physical or verbal abuse of September 11 detainees housed at Passaic. In one case, a detainee alleged that unidentified officers verbally abused him when he arrived at the facility in October 2001. He also alleged that unidentified officers deprived him of adequate recreation, medical care, and food, and placed handcuffs on him so tightly and for such a long time that it caused damage to his wrist. The detainee's medical records disclosed no report of injuries to his wrist. The Civil Rights Division declined prosecution in June 2002, and the OIG referred the allegations to the INS. It is unclear what further investigative actions the INS plans to take.

In the second case, a September 11 detainee informed the INS that while he was held at Passaic from October 2001 to April 2002, he was not provided adequate medical care, recreation, diet, or living conditions. He also alleged that unidentified officers hit, verbally abused, and threatened him, although he did not identify specific incidents. The detainee's medical records contained no evidence of the injuries he claimed he suffered. The INS also did not find any records of complaints filed by the detainee while he was at Passaic. The INS did not interview the detainee before he was removed to Morocco on July 8, 2002. However, in October 2002 the INS conducted an official review of Passaic's conditions of confinement to assess the detainee's allegations that Passaic failed to provide adequate medical care, recreation, diet, or living conditions. The INS gave Passaic "acceptable" ratings in each of these categories.

Finally, a September 11 detainee alleged that when he was transferred to Passaic in October 2001, an unidentified officer dragged him by his neck to a room and kicked him in the ankles, feet, and groin. He also alleged he was verbally abused by officers. The Civil Rights Division declined prosecution of the case. The OIG referred the allegations to the INS, and the INS referred the case to local INS management. Local INS management reviewed the detainee's medical records, but it appears that they did not investigate the matter further.

VI. OTHER ISSUES

1. Medical Care

   Our review found that Passaic provided September 11 detainees with the medical and dental screenings required by INS standards. These standards require facilities like Passaic that house federal immigration detainees to provide "24-hour, 7 days per week emergency medical and dental care." According to the Passaic Medical Director, Passaic has three shifts of medical staff to provide round-the-clock coverage with a staff nurse conducting rounds in each unit every eight hours. In addition, the Medical Director said the nursing staff collects written requests for medical treatment from detainees daily and provides treatment based on a "priority of need." These written requests for treatment are similar to the "copout system" used at the MDC, which we discuss in Chapter 7.

   According to Warden Meyers, September 11 detainees arriving at Passaic were examined initially by a nurse practitioner and received a follow-up exam by a doctor. Based on our interviews and a review of Passaic's medical files, we determined that all 66 September 11 detainees in our Passaic sample, including the 13 detainees we interviewed, received an initial health screening at Passaic upon their arrival and a physical examination within the 14-day time frame prescribed by INS standards.

   Our review of requests for medical attention submitted by 12 of the 13 September 11 detainees we interviewed found that Passaic medical staff were responsive to these written requests for treatment.¹⁴³ According to Passaic records, these 12 detainees filed 34 requests for medical treatment. We found that 47 percent of the requests (16 of the 34) were fulfilled within 2 to 3 days and 70 percent (24 of the 34) were fulfilled within one week.

   Two September 11 detainees we interviewed complained about untimely medical care at Passaic. We reviewed their medical records and found that one of the detainees had submitted two undated medical request forms and received treatment on both occasions, but we were unable to determine the timing of the treatment in relation to the requests. The other detainee said he complained of a toothache and was seen by medical staff four days later. He later complained of back pains and was seen eight days later.

2. Hunger Strikes

   INS regulations applicable to the September 11 detainees at Passaic recognize a hunger strike when a detainee has refused food for 72 consecutive hours. According to Bendl, Passaic staff generate an incident report each time an INS detainee refuses a meal. A copy of each incident report is then sent to the Passaic medical staff and the INS Newark District. In the case of a detainee missing one meal, the INS Newark District files the Passaic incident report in the detainee's detention folder.

   We obtained and reviewed incident reports on the 66 detainees in our Passaic sample from September 20, 2001, to May 23, 2002. Of the 66 detainees in our sample, three refused to eat a meal, which warranted an incident report. Of the three detainees who missed meals, two were in the Special Detention Unit (SDU) at the time they declared themselves to be on a hunger strike. However, these two detainees each missed only two consecutive meals, and therefore their actions did not qualify as hunger strikes according to INS regulations. One detainee stated he could not eat any food that contained milk by-products, and the second detainee said he was unjustifiably placed in the SDU for 30 days. According to an incident report, a third detainee stated that he was on a hunger strike because the INS left him at Passaic for eight months, during which time he should have been removed from the United States. He said that he was not upset with Passaic staff and that his dispute was with the INS. Beginning the third day of the detainee's hunger strike, Passaic medical staff began monitoring his medical condition daily. His hunger strike lasted eight days.

3. Recreation

   Passaic has two rooftop gyms for outdoor recreation. In addition, Passaic has two indoor exercise areas: a weight room and a recreation/exercise room. We could not determine whether September 11 detainees were afforded the required recreation time. The INS Detention Standard for Recreation requires that, weather permitting, contract facilities like Passaic shall make outdoor recreation available for detainees at least one hour a day, five days a week, at a reasonable time of day. Passaic officials we interviewed asserted that all detainees were scheduled for one hour of recreation daily. However, 6 of the 13 September 11 detainees we interviewed stated that they were offered the opportunity to go to the outdoor gym only every few weeks. Seven of the 13 detainees told the OIG that they were offered recreation only 3 times a week.

   From the Passaic records, we could not determine whether the September 11 detainees were scheduled for recreation and whether they actually received recreation. When asked about the claims some detainees made about not receiving adequate recreation time, Deputy Warden Bendl and two correctional officers cited the limited size of the gyms, the lack of correctional officers to oversee movements of detainees to and from the gyms, and weather as the three factors that prevented detainee access to the outdoor recreation facilities as often as scheduled.

VII. INS NEWARK DISTRICT MONITORING OF SEPTEMBER 11 DETAINEES

We found that the INS Newark District did not sufficiently monitor September 11 detainees housed at Passaic, despite claims by INS Newark District management about the frequency and duration of their visits to Passaic.

The INS Newark District primarily monitored September 11 detainees at Passaic by sending INS Detention and Removal (D&R) staff to visit the facility. The INS did not have formal standards dictating how often INS Newark District staff were required to visit September 11 detainees at Passaic, according to David Venturella, the Deputy Executive Associate Commissioner of the INS's Office of Detention and Removal. According to the IGA between Passaic and the INS, Passaic agreed to allow "periodic inspections" of its facility by the INS to ensure that a "minimally acceptable level of services" was provided to INS detainees. According to a supervisory detention officer (SDO) at the INS Newark District, these inspections are conducted annually by jail inspectors from the INS Newark District Office of D&R.

The INS Newark Assistant District Director for Detention and Deportation told the OIG that the purposes of these visits included communicating with detainees on their cases, hearing detainee complaints, observing jail conditions, discussing matters of mutual interest with Passaic management, and serving INS documents on September 11 detainees.¹⁴⁴

An INS Newark District SDO told the OIG that the INS Newark District's unofficial goal was to have an officer from its Office of D&R visit facilities with more than 100 INS detainees, such as Passaic, every day.¹⁴⁵ According to the SDO, facilities with less than 100 INS detainees were supposed to be visited by an INS Newark District D&R officer at least one to three times every other week. The INS Newark Assistant District Director for Detention and Deportation said that INS Newark District staff visited Passaic at least three days per week and spent approximately six hours at the facility each visit. According to INS Newark District officials, 11 INS removal officers - 10 of whom were detailed from the INS New York District - conducted the site visits to county jails in the INS Newark District, including Passaic, from October 2001 to May 2002.

We evaluated the frequency of visits to Passaic by INS Newark District staff from the weeks ending January 19 to March 2, 2002, a 7-week period during which Passaic consistently housed more than 100 INS detainees.¹⁴⁶ During this period, INS Newark District staff should have visited Passaic daily (five days per week), according to the INS Newark District. However, we found that INS District Newark staff visited Passaic daily in only 1 week during this 7-week period. After the INS detainee population slipped below 100 during the week ending March 9, 2002, we found that INS Newark District staff generally attained their goal of visiting Passaic 1 to 3 times every other week. However, no INS Newark District staff visited Passaic from April 28 to May 12, 2002.

With respect to the length of their visits, our analysis determined that INS Newark District staff spent an average of from 0.5 to 3 hours at Passaic during the 7-week period described above, contrary to the INS's claim that INS Newark District staff generally spent six hours at Passaic during each visit. In fact, we estimated that INS Newark District staff spent less than two hours per visit at Passaic during this 7-week period.

In addition, we found that the INS Newark District failed to prepare required reports for all incidents involving September 11 detainees reported by Passaic staff. Under INS regulations, INS Newark District officials should have sent reports on more serious detainee issues - such as hunger strikes or assaults involving prison guards - to officials at INS Headquarters in Washington, D.C., but we found that this did not occur.

VIII. OIG ANALYSIS

The Passaic County Jail housed 400 September 11 detainees from the date of the terrorist attacks through May 30, 2002, which represented the most September 11 detainees held at any single detention facility. Unlike most of the detainees housed at the MDC, who were considered of "high interest" to the Department's PENTTBOM investigation, most of the detainees sent to Passaic were considered by the FBI to be "of interest," "of undetermined interest," or "no longer of interest."

The Passaic detainees had much different (and significantly less harsh) detention experiences than those at the MDC for a variety of reasons. First, Passaic staff - unlike staff at the MDC - had more than 15 years' experience handling INS detainees, and was familiar with INS procedures related to immigration detainees. Second, September 11 detainees were treated similarly to "regular" INS detainees housed at Passaic and were not singled out for more restrictive detention. Unlike the September 11 detainees at the MDC, they were not locked down 23 hours a day, were not placed in four-man holds during movement, and had much more liberal phone call and visitation privileges. Highly restrictive confinement conditions were the exception rather than the rule for September 11 detainees at Passaic, in stark contrast to the MDC where all detainees were confined in the facility's ADMAX SHU.

September 11 detainees at Passaic had more independence and flexibility to obtain and communicate with legal counsel. Attorneys representing Passaic detainees did not experience the same level of difficulty experienced by attorneys seeking to visit their MDC detainee-clients. However, Passaic's policy of permitting detainees to place only collect telephone calls initially hampered their ability to consult with legal counsel. To their credit, Passaic officials quickly realized the difficulty some September 11 detainees were experiencing in obtaining legal counsel and, on September 28, 2001, took steps to address this problem by providing detainees access to a telephone in a staff member's office to place legal telephone calls free of charge.

We found that Passaic and INS Newark District officials also took steps to educate September 11 detainees about the immigration process by permitting various immigration groups to conduct "Know Your Rights" presentations at the facility. In addition, Passaic officials permitted regular visits by family members and friends of September 11 detainees, unlike at the MDC where only visits by immediate family members were permitted.

Our review did not find a pattern of physical and verbal abuse against September 11 detainees held at Passaic by correctional officers. The majority of detainees we interviewed stated they had not experienced any such abuse. With regard to allegations of verbal abuse, 3 of the 13 September 11 detainees we interviewed alleged that Passaic staff verbally harassed them, primarily by using ethnic slurs. The Passaic officers we interviewed denied making such remarks. While any such slurs are offensive and unacceptable, we found that the level of these allegations at Passaic was markedly different from the pervasive complaints we heard from detainees confined at the MDC.

We also concluded that Passaic staff provided appropriate medical and dental screenings and facilitated adequate access to medical services for the September 11 detainees. We found that Passaic medical staff was responsive to written requests for treatment by the detainees. The Passaic detainees were offered recreation opportunities, although not with the frequency specified by both INS and Passaic standards.

Finally, we found that INS Newark District staff conducted insufficient and irregular visits to September 11 detainees at Passaic, and the number and lengths of these visits were significantly less than INS District management claimed. We also found that INS Newark District staff was not receiving all Passaic incident reports or reviewing available documentation during visits to the facility. Consequently, we question whether the INS Newark District was adequately monitoring the conditions of confinement experienced by September 11 detainees at Passaic. We believe the INS Newark District should have made more effort to monitor the September 11 detainees, especially since the detainees were housed at a non-INS facility, which reduced the INS's interaction with the detainees.

In sum, we found that the conditions of confinement for September 11 detainees at Passaic were significantly less harsh than those experienced by detainees at the MDC.

131. Two other contract facilities in the INS Newark District - the Hudson County Jail and the Middlesex County Jail - also housed September 11 detainees.

132. Garcia was promoted to Undersheriff in January 2002, but subsequently left his position and was not on staff at the time of our site visit to Passaic in May 2002.

133. We discuss INS Newark District oversight issues later in this chapter.

134. The SDU Log records the names of the inmates in the SDU, the date they entered the SDU, the infraction they were charged with, the release date, and any special problems or restrictions.

135. This incident is discussed in Case Study 6 in this chapter.

136. Bendl also said that particularly in the months immediately following the September 11 attacks, many detainees were being transferred in and out of the facility and there was confusion over the correct names of the detainees. If an attorney or family member called to find out if a detainee was being held at Passaic, Bendl said they might have been told "no" if the name the caller provided did not correspond exactly to the name on file at Passaic, even though the detainee may have been present.

137. INS Detention Standard, "Telephone Access," September 20, 2000.

138. Detainees' access to telephones differed somewhat depending on where a detainee was housed at Passaic. All telephones were located in the dayrooms. Dayroom access for the detainees in the dormitories was unrestricted. Therefore, these detainees could use the telephones anytime during the day. However, dayroom access for the detainees in the 2-man cells that comprised pods was more restricted. These detainees could use the telephones from 8:00 a.m. to 11:00 p.m.

139. The ombudsman makes daily rounds in the housing units and serves as a liaison between the inmates and facility staff to address any problems.

140. 8 C.F.R. § 287.3(c).

141. INS Detention Standard, "Visitation," September 20, 2000.

142. These reports are significantly different than what we heard at the MDC, where 12 of the 19 September 11 detainees we interviewed told us they were subjected to some form of physical abuse.

143. Passaic could not provide the treatment record for one of the 13 detainees.

144. When the INS changed the name of the Office of Detention and Deportation to the Office of Detention and Removal, it did not change personnel titles.

145. A review of INS data determined that Passaic housed a weekly average of more than 100 INS detainees from October 7, 2001, to March 2, 2002.

146. The length of visits by INS Newark District staff for the weeks beginning March 3, 2002, and April 14, 2002, was unclear in Passaic records and therefore was not included in our analysis.