Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York
December 2003
Office of the Inspector General
III. SYSTEMIC ISSUES RELATING TO THE MDC
The June 2003 Detainee Report described various issues related to the treatment of detainees at the MDC, including problems with detainees receiving timely access to counsel, detainees being held under extremely harsh conditions of confinement such as cells being lighted 24 hours a day, detainees being held in lockdown for at least 23 hours a day, detainees being placed in full restraints every time they were moved, and detainees not receiving adequate recreational opportunities.23 Because those issues were discussed in detail in the Detainee Report, we do not repeat them in this report.
In the course of this investigation, however, we found other systemic problems and further information on several issues previously discussed in the Detainee Report regarding the treatment of MDC inmates, which we describe below. These include staff members using a t-shirt taped to the wall in R&D to send detainees an inappropriate message, audio taping detainees' meetings with their attorneys, unnecessarily and inappropriately strip searching detainees, and banging on detainees' cell doors excessively while they were sleeping. In addition, we describe the difficulties we had in obtaining videotapes from the MDC, despite our repeated requests, and our general assessment of the cooperation and credibility of many officers we interviewed.
We found that MDC staff members not only videotaped the detainees' movements when taken from their cells to visit with their attorneys, they also recorded detainees' visits with their attorneys using video cameras set up on tripods outside the attorney visiting rooms. In total, we found more than 40 examples of staff videotaping detainees' attorney visits.24 On many videotapes, we were able to hear significant portions of what the detainees were telling their attorneys and sometimes what the attorneys were saying as well.
It appeared that detainees' attorney visits were recorded intentionally. On one occasion, an officer instructed the detainee not to speak in Arabic with his attorney because the meeting was being videotaped. In another videotape, a lieutenant told the detainee and his attorney that he had been instructed that they were required to speak in English during the visit. We also observed on several occasions that officers lingered outside the attorney visiting rooms and appeared to be listening to the conversations.
Audio taping inmates' meetings with attorneys is prohibited by federal regulation. Chapter 28 C.F.R. § 543.13(e) provides that "Staff may not subject visits between an attorney and an inmate to auditory supervision." On October 31, 2001, the Attorney General signed a directive that permitted monitoring of attorney-inmate meetings only under limited circumstances when the Attorney General approved the monitoring of the conversations and notice was given to the inmate and the inmate's lawyer. 28 C.F.R. § 501.3(d). According to BOP's Office of General Counsel, this authority was not used at the MDC. In a December 18, 2001, memorandum to wardens in the Northeast Region (which includes the MDC), M.E. Ray, the Regional Director, provided specific guidance on videotaping attorney visits for the detainees: "Visits from attorneys may also be visually recorded, but not voice recorded." No BOP or MDC memorandum specifically authorized taping attorney visits for the September 11 detainees or identified reasons to depart from standard BOP policy or the federal regulation.
When interviewed prior to the OIG obtaining all of the videotapes, MDC Warden Michael Zenk told the OIG that, initially, attorney visits were video and audio taped, but in November 2001, after one of the attorneys complained, the video camera was moved far enough away that the audio of the visits was not recorded.25 However, as late as February 2002, conversations between detainees and their attorneys are still audible on many of the tapes. When confronted with this information, Warden Zenk stated that the visits should not have been audio taped. He also said his staff thought moving the camera away from the attorney visiting rooms ensured that the visits would not be audio taped.
Recording the detainees' attorney visits also was not necessary for the MDC's security purposes. The attorney visits took place in non-contact rooms separated by thick glass, and the MDC required the detainees to be restrained in handcuffs, leg restraints, and waist chains during the visits.26 The detainees also were pat searched or strip searched after these meetings.
Taping detainees' attorney visits potentially stifled detainees' open and free communications with legal counsel and discouraged them from making allegations against specific staff members. Nevertheless, in some of the taped conversations, we heard the detainees tell their attorneys detailed allegations about the poor and abusive treatment they had received at the MDC. They described being slammed against the wall, physically abused, verbally abused, and intentionally kept awake at night. Their statements were consistent with what the detainees related to the OIG when they were interviewed months later.
In sum, we concluded that audio taping attorney visits violated the law and interfered with the detainees' effective access to legal counsel.
Upon arriving at the MDC, consistent with MDC and BOP policy, detainees were strip searched in R&D and provided prison clothing. Also in accordance with MDC policy, the detainees were strip searched in R&D when they returned from court appearances or anytime they left the MDC. Very few of the detainees complained about the strip searches that occurred in R&D. However, many complained about strip searches that occurred in the ADMAX SHU.
Detainees complained that they were strip searched on the ADMAX SHU for no apparent reason, either minutes after they had been thoroughly searched in R&D and immediately escorted by officers to the ADMAX SHU, or when they had not even left the ADMAX SHU. Several detainees also stated that the staff members performing or observing the strip searches laughed at the detainees during the searches. Detainees complained that the strip searches on the ADMAX SHU often were filmed and that sometimes women were present or in the immediate vicinity during the searches. A few detainees maintained that MDC staff members used strip searches as a form of punishment.
In R&D, the strip searches were conducted in a room that contained detainees' prison clothing. The room had small dividers along the wall that blocked viewing from either side. When regular videotaping of the detainees started in October 2001, the video camera operators turned off the video cameras or filmed detainees only above the waist in R&D.
In contrast, on the ADMAX SHU the strip searches were conducted in either the multipurpose medical examination room, which is completely visible to anyone in the main ADMAX SHU corridor and the recreation cells, or in one of the empty cells on the range. Furthermore, many of the strip searches conducted on the ADMAX SHU were filmed in their entirety and frequently showed the detainees naked. Staff members consistently stated in interviews that filming a strip search in its entirety was against BOP policy.27 While on some occasions the filming of the strip search was partially blocked by an officer observing the strip search, this did not appear to be an intentional strategy to give detainees more privacy. In a few videotapes, we heard the officers laughing while observing the strip searches.
It does not appear that the MDC issued written policies regarding when detainees were to be strip searched. According to the detainees and MDC staff, the strip searches on the ADMAX SHU were conducted on the following occasions: (a) always when detainees entered the unit; (b) sometimes when they departed from the unit; (c) often after attorney and social visits on the unit; (d) infrequently after recreation sessions on the unit; and (e) infrequently before medical examinations on the unit.
Staff members informed us that when the detainees arrived on the ADMAX SHU, the detainees had to be strip searched even if they had just been strip searched moments before in R&D.28 Sometimes the same officers who were present for a detainee's strip search in R&D were present for the detainee's strip search on the ADMAX SHU. Several of the videotapes showed detainees' confusion as they futilely tried to explain that they had just been strip searched in R&D.
On the ADMAX SHU, whenever the detainees were outside their cells, they were handcuffed at all times and almost always were placed in leg restraints. As noted above, attorney and social visits were held in no-contact rooms separated by thick glass, detainees were restrained, and the visits were filmed. Nevertheless, detainees often were strip searched after their attorney and social visits. In interviews with the OIG, several officers stated it was standard MDC policy to strip search detainees following attorney or family visits, but they could not point us to any written policy. Yet, even if such searches were consistent with policy, they were applied inconsistently to the detainees and appeared to be unnecessary. Indeed, some staff members told us that the reason attorney and family visiting rooms were on the same floor as the ADMAX SHU was to avoid having to strip search the detainees.
Several detainees alleged that sometimes women were present during strip searches on the ADMAX SHU, which one detainee told the OIG he viewed as an affront to his religious beliefs.29 During several of the videotaped strip searches, female voices can be heard in the background. In addition, one videotape shows a female staff member walking in the vicinity of a detainee undergoing a strip search.
Some detainees complained that the strip searches were used by the MDC staff as punishment. For example, in one videotape four officers escorted one detainee into a recreation cell and ordered him to strip while they berated him for talking too much with other detainees and for encouraging them to go on a hunger strike. We could see no correctional purpose or justification for strip searching this detainee, who had just been taken from his cell, pat searched, and then escorted into the recreation cell by the four officers.
In sum, we concluded that it was inappropriate for staff members in the ADMAX SHU to routinely film strip searches showing the detainees naked, and that on occasion staff members inappropriately used strip searches to intimidate and punish detainees. We also questioned the need for the number of strip searches, such as after attorney and social visits in non-contact rooms where the detainees were fully restrained and videotaped.
Many detainees alleged that officers loudly banged on their cell doors in an attempt to wake them up, interrupt their prayers, or generally harass them.30 Under MDC and BOP policy, counts were conducted throughout the day and night, including midnight, 3:00 a.m., and 5:00 a.m.31 During these counts, officers were required to see detainees' "human flesh." See BOP P.S. 5500.09. As a result, officers were permitted to wake detainees up at these times if they could not see their skin.32 According to the officers, during the counts the detainees usually waved their hands from under their blankets, which generally were pulled over their heads to block out the cell lights that were illuminated at all times until at least February 2002.
While several detainees acknowledged to us they understood that the officers were required to conduct periodic counts, these detainees alleged that several officers went beyond what was required for the count by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.
For example, one detainee claimed that officers kicked the doors non-stop in order to keep the detainees from sleeping. He stated that for the first two or three weeks he was at the MDC, one of the officers walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, "Motherfuckers," "Assholes," and "Welcome to America." Similarly, another detainee stated that when officers kicked the doors to wake the detainees up, they said things like, "Motherfuckers sleeping? Get up!" A third detainee also claimed that a few officers made loud noises at night to keep the detainees awake and that these officers appeared to have fun conducting the counts by knocking on the cell doors. Another detainee said that officers would not let the detainees sleep during the day or night from the time he arrived at the MDC in the beginning of October through mid-November 2001.
One detainee's attorney told us that his client stated that every time he fell asleep the officers came and kicked the doors to wake him up. The attorney told us that the detainee said this was not part of the officers' prescribed counts, but that the officers would watch the in-cell cameras and come kick on the doors as soon as they thought the detainee was asleep.
The officers we interviewed denied that they gratuitously or loudly knocked, kicked, or banged on the detainees' doors. One of the officers stated that for the counts, including the ones in the middle of the night, he knocked on the detainees' cell doors and might have used his foot, but he did not kick the doors very hard. This same officer stated that another officer also used his boot to kick cell doors for counts, but he said that neither he nor the other officer ever used expletives with the detainees or said anything inappropriate or unprofessional. Nevertheless, this officer acknowledged that the detainees experienced "sleep deprivation" from a combination of having cell lights illuminated around the clock and the frequent counts. Another officer confirmed that detainees often were awake for the midnight and 3:00 a.m. counts.
Because the detainees were not moved from their cells during the night, staff members were not required to video record nighttime activities. As a result, none of the videotapes we reviewed showed the ADMAX SHU at night or showed the officers conducting counts at night. Due to the lack of videotape evidence and officers' denials, we were unable to substantiate the detainees' allegations that the officers gratuitously banged on the cell doors or woke up detainees unnecessarily. However, the combination of cells being continuously illuminated and the BOP requirement that officers had to see the detainees' skin during each count in the evenings caused detainees to be awakened regularly and suffer from sleep deprivation.
As discussed above, many detainees alleged that staff members slammed or pushed them into the wall in the sally port where they were pat searched upon first arriving at the MDC. Numerous detainees recalled that a t-shirt was taped to a wall and that their faces were pressed against the t-shirt. For example, a detainee told us that staff members put his face right in the t-shirt, like he had to "kiss it."
In 11 videotapes we reviewed of a detainee entering the MDC, the staff members placed the detainee's face or head against or right next to the t-shirt while performing a pat search and exchanging the detainee's restraints.33 The tapes show that the t-shirt was taped to the wall at eye-level near the bottom of the ramp in the sally port, across from where vehicles parked to unload detainees. In large, typed print on the t-shirt below the American flag were the words, "These colors don't run." The t-shirt was taped to the right of a large, red plastic sign reminding law enforcement personnel to lock up their firearms before entering the facility. The t-shirt was noticeable, especially because it seemed clearly out of place against a large block wall that was unadorned, except for the professionally designed plastic sign.
Most officers we interviewed who were involved in escorting detainees through R&D either specifically denied seeing the t-shirt or said they did not recall a t-shirt on the wall in the sally port area. A few officers said they remembered a t-shirt or flag on the wall in the sally port. While several claimed that the t-shirt was innocuous and merely a patriotic gesture, three staff members told us they were troubled by how the t-shirt was being used.
One of the three staff members worked in R&D and remembered that the t-shirt was placed on the wall in mid-September 2001, several days after the detainees began arriving at the MDC. He said that when the detainees were pat searched, officers leaned them into the wall and placed their faces against the t-shirt. The R&D staff member believed the purpose of the t-shirt was to send a message to the detainees. He did not know when the t-shirt was taken down, although he remembered seeing it on the floor once before it was placed again on the wall.
The second staff member, a lieutenant, told us that he was disturbed when he observed officers abusing the t-shirt by using it to "acclimate detainees to the MDC" and send a message to them. He said that when the detainees were in front of the t-shirt, the officers roughed them up and "manhandled" them more aggressively than necessary. He said he brought his concerns about the t-shirt to the attention of a senior MDC management official, and he thought the t-shirt finally was taken down after he reported it.34
The third staff member, also a lieutenant, said he thought the t-shirt was "inappropriate and unprofessional." He claimed that he took the t-shirt down and threw it on the ground on five separate occasions, but staff members kept placing it back up on the wall. The lieutenant said he finally threw it in the trash before mid-November 2001.
We found, however, that in the earliest and latest videotapes that we viewed - in early October 2001 and mid-February 2002 - the t-shirt was displayed in the sally port where the detainees entered the institution. We observed the t-shirt on the wall in every video of the sally port during this time period. These videotapes contradict staff members' denials that the t-shirt existed and the lieutenant's claim that he took the t-shirt down five times and finally threw it away before mid-November 2001.
These videotapes further show that the way staff members used the t-shirt leaves little doubt that its placement was intentional. For example, in one videotape a staff member loudly ordered a detainee to, "Look straight ahead!" while he firmly pressed the detainee's upper torso into the wall and the t-shirt so that the detainee's eyes were directly in front of the phrase, "These colors don't run." Several other videotapes also indicate that the officers intentionally placed the detainees against the wall on or near the t-shirt.
Three videotapes of the lieutenant who claimed that he removed the t-shirt from the wall on five separate occasions showed him leading and pressing detainees against the t-shirt when he was searching them. This lieutenant never appeared uncomfortable with the t-shirt or the way in which it was used, as he maintained in his interview with us. For example, in one videotape he ordered a detainee to lift his head up twice until the detainee was looking directly at the flag and the phrase on the t-shirt.
In our view, the way in which the t-shirt was used by staff members was highly unprofessional. See BOP P.S. 3420.09 ("It is essential to the orderly running of any Bureau facility that employees conduct themselves professionally.") We also did not find credible staff members' claims that they lacked knowledge about the t-shirt, especially when we subsequently viewed videotapes showing several of these same officers in front of the t-shirt frisking detainees.
Shortly after the September 11 attacks, BOP Headquarters sent out a national directive to all regional directors to install video cameras in each September 11 detainee's cell.35 Some MDC staff members told the OIG that the cameras were installed in the detainees' cells by mid-October 2001, although we learned from other staff members that the cameras were not operating in the cells until February 2002, which is the date on the earliest cell tape the MDC provided us.36 A senior MDC official confirmed to us that the cell cameras in the ADMAX SHU were not operational until early February 2002.37 He attributed the delay to logistical and electrical problems.
We determined that the MDC began on October 5, 2001, to videotape the movements of the detainees with handheld camcorders. The impetus for this practice was that a detainee complained to a judge on October 4, 2001, that he had been physically abused by staff members upon entering the MDC the previous day. According to an October 18, 2001, memorandum issued by a senior MDC management official, the purpose of taping detainee movements was to address "serious security concerns." In a memorandum dated October 9, 2001, the BOP Northeast Regional Director instructed all wardens in the region, which included the MDC warden, to videotape any movement of September 11 detainees outside their cells. The memorandum stated that the videotape policy was intended to deter unfounded allegations of abuse by the detainees. The memorandum also directed the wardens to preserve the videotapes indefinitely.
After wardens complained about the difficulties of storing and purchasing vast quantities of videotapes, the policy of preserving the videotapes indefinitely changed when a new regional director, M.E. "Mickey" Ray, issued a memorandum on December 18, 2001, which stated that videotapes had to be retained for only 30 days. After 30 days, videotapes had to be recorded over or incinerated. The only exception was for tapes showing "use of force" incidents and incidents where a detainee alleged abuse; these tapes had to be kept for two years and preserved as evidence in the SIS safe.
During the course of our investigation, we made several requests to MDC officials for videotapes. However, the officials' responses to our requests were inconsistent and inadequate. In response to each of our requests, we obtained additional videotapes that we previously had been told were destroyed or reused.
When the OIG first initiated an investigation of the detainee abuse allegations in October 2001, we requested all tapes for the detainees from the date they first arrived to a date in November 2001. The MDC provided the OIG with 14 tapes and indicated that tapes from other dates had been taped over or destroyed.38
In the spring of 2002, the OIG requested from the MDC all videotapes of the detainees from September 2001 to April 2002. Warden Zenk told the OIG that copying such a large number of tapes would be onerous, that the MDC already had given the OIG all the tapes relating to abuse allegations from detainees, and that the MDC received permission in December 2001 to begin recycling or destroying tapes. Warden Zenk and the OIG staff agreed that the MDC would give the OIG nine days of videotapes that related to allegations of abuse raised by detainees interviewed by the OIG. However, the OIG received tapes for only six days, totaling approximately 45 tapes.
In June 2003, the OIG again specifically requested all the videotapes pertaining to all detainees. In response, the MDC provided us with eight tapes from the SIS safe that had not been provided previously.
In early July 2003, we met with an MDC Special Investigative Agent (SIA) and asked for a further explanation of the MDC's procedure for handling and storing videotapes. The SIA mentioned a storage room, only accessible to the SIS staff, in which he thought there still might be videotapes of the detainees from October and November 2001. We requested that he send us those and any other videotapes of the detainees that we did not already have. After about a month, we still had not received the requested tapes, and we contacted Warden Zenk to ask about the tapes. He referred us to a former SIA who previously had been responsible for the videotapes and had since transferred to the BOP regional office. We asked the former SIA for an inventory of the tapes in the storage room.
Despite frequent prompting, we did not receive an inventory from the MDC until August 13, 2003, approximately five weeks from the time we first asked for the videotapes in the storage room. The inventory was largely unhelpful in that it listed over 2,000 tapes, mostly from April 2002 through August 2002, and it was unclear whether the tapes were from in-cell or handheld cameras. The earliest tapes listed on the inventory were from February 17, 2002.
On August 20, 2003, we visited the MDC to make sense of the inventory and visit the storage room where the tapes were located. The SIA we met with in July escorted us to the storage room that was located in a second building of the MDC. Upon entering the room, we immediately observed a significant number of boxes of videotapes lining much of the wall. The boxes were clearly marked in large handwriting, "Tapes" with dates beginning on October 5, 2001, and continuing to February 2002. These tapes were the only ones omitted from the August 2003 inventory of tapes that had been provided to us by the MDC staff. The SIA said that he did not know why these tapes were not included on the inventory. We took the 308 newly discovered videotapes to review.39 These 308 tapes provided much of the evidence discussed in this report corroborating many of the detainees' allegations. Many of the tapes contradicted statements of MDC staff members about the treatment of the detainees.
Discovering such a substantial number of videotapes so late in our investigation also caused a significant delay in our ability to complete this report. Moreover, even with these newly discovered tapes, significant gaps existed in the MDC's production of videotapes. For example, we received less than 15 tapes that depicted the detainees being brought into the MDC, either for the first time or when they returned from court appearances or other meetings.40 In addition, many tapes start or stop in the middle of detainees' escorts. There also are no tapes from some "use of force" incidents, even though these tapes should have been preserved for two years under BOP policy. MDC officials could not explain these omissions.
As discussed previously, we confirmed many of the detainees' allegations by reviewing the tapes, even though the detainees alleged that the abuse dropped off precipitously after video cameras were introduced. Several detainees said that officers referred to the cameras as the detainees' "best friend." Conversely, the videotapes did not refute any of the detainees' allegations. It is also apparent from our review of several hundred tapes that the officers were cognizant of the presence of the cameras. In one tape, the camera operator reminded an officer who was berating a detainee that the tape was running, which caused the officer to control himself immediately. On another videotape, when an officer was holding the head of a detainee firmly against the wall, a lieutenant appeared to notice the video camera and quickly swatted away the officer's hand from the detainee's head.
We also heard a lieutenant twice order someone to turn the camera off when he was discussing matters with other officers that he apparently did not want videotaped. A few minutes after giving his instruction to turn off the tape and apparently not knowing that the audio was still running, this lieutenant suggested how the officers could break some detainees' hunger strikes: "We'll cure them . . . I want them to stay on a hunger strike. Don't cure anybody; let 'em stay. Let's get a team. Let's go with a tube. The first guy that gets that tube shoved down his throat, they'll be cured!" He then stated, "We're going hard," to which another officer responded, "Outstanding!" The lieutenant repeated his statement, "We're going hard."
Sometimes staff members' remarks caught on the audio portion of the videotape substantiated certain allegations by detainees about conditions in the MDC. For example, detainees complained continually that they were deprived of adequate opportunities to make legal calls. In an off-camera remark, one of the lieutenants can be heard stating that the MDC official responsible for giving the detainees their legal calls often waited to provide legal calls until just before a detainee was scheduled to go to court. This confirmed that the official was not regularly offering detainees legal phone calls as required.
The videotapes also led us to conclude that several officers lacked credibility in their interviews with the OIG. In our interviews, most staff members, particularly ones still employed by the BOP, denied all detainees' allegations of physical and verbal abuse. In many cases, the staff members were adamant that neither they nor anyone else at the MDC engaged in any of the alleged misconduct.
Because of the delay in the MDC's providing us the videotapes, for almost all interviews of MDC staff members we did not have the benefit of the MDC videotapes. Upon viewing them after the interviews, we saw that some staff members engaged in the very conduct they specifically denied in their interviews. This finding caused us to question the credibility of these staff members and their denials in other areas for which we did not have videotape evidence.
For example, three staff members stated in OIG interviews that they did not press compliant detainees against the wall because that would be inappropriate. In viewing videotapes, however, we saw these same officers pressing compliant detainees into walls. In addition, three other staff members denied that they, or anyone else, had bent or twisted detainees' arms, hands, fingers, or thumbs. Again, we observed on videotapes these same staff members twisting compliant detainees' arms, hands, wrists, or thumbs. Another former officer told us he never saw any officer bend detainees' wrists or pull their thumbs, but in one videotape we saw him bend a compliant detainee's fingers in a way that seemed very painful and did not appear to serve any correctional purpose. Similarly, a lieutenant asserted that he never saw or heard about staff members slamming, pushing, pressing, or firmly placing detainees against the wall, but in a videotape we observed that this lieutenant witnessed staff members forcefully ram a compliant detainee into the wall.41 In a memorandum he submitted after the incident, the lieutenant described the incident by writing, "The staff placed [the detainee] on the wall until they gained complete control of the inmate and resumed the escort."
Further, another lieutenant claimed to be very disturbed by the t-shirt taped to the wall, but in several videotapes he led detainees right to the t-shirt and exchanged their restraints while officers pressed them against the t-shirt. In another example, an officer adamantly asserted to us that staff members never cursed in front of the detainees. Yet, the videotapes showed several instances when staff cursed in front of this officer and the detainees. In addition, we noted one incident where this officer reminded a colleague that the camera was recording when the colleague cursed about and harassed a detainee.