Analysis of the Second Response by the Department of Justice to Recommendations in the Office of the Inspector General's June 2003 Report on the Treatment of September 11 Detainees

January 2004
Office of the Inspector General

November 21, 2003 MEMORANDUM   TO: Clark Kent Ervin Acting Inspector General   FROM: Asa Hutchinson Under Secretary for Border and Transportation Security   SUBJECT: Response to the U.S. Department of Justice Office of Inspector General Report, 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. Our core mission at the Department of Homeland Security is not just to protect America's assets-our buildings and airports and power plants-but to protect America and our way of life. We are committed to ensuring that as we take aggressive measures to improve our nation's security, we will implement those measures in ways that respect our civil rights and civil liberties. In this context, the Department of Homeland Security (DHS) takes very seriously the findings and recommendations contained in the Department of Justice Inspector General's report (DOJ OIG report) regarding September 11 detainees. Of course, the report analyzes events that took place before the formation of our Department. Nevertheless, the report is highly relevant to our work. As you know, DHS assumed many of the immigration functions that were, during that critical time period, part of the Justice Department. We are working closely with our outstanding colleagues in DOJ as we manage together this major reorganization of the federal government. The two agencies working together to establish effective means of coordination and communication in a number of areas, including with regard to situations involving aliens of interest to terrorism investigations. As described in this memorandum, we have taken significant steps to remedy concerns identified by the Inspector General regarding the handling of aliens in the aftermath of September 11. Some of our actions preceded the findings by the Inspector General while others were developed after careful review of the report and recommendations. Moreover, we consider this and on-going process-long after we have addressed the recommendations by the Inspector General in this report we will continue to review our policies and procedures to ensure that we carefully respect the civil rights and civil liberties of all people in the United States. I. BACKGROUND On June 2, 2003, the DOJ OIG issued the report, "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of September 11 Attacks." The OIG report examined the treatment of seven hundred and sixty-two aliens detained in connection with DOJ's terrorism investigation. The report identified concerns with respect to: the length of the detainees' confinement; the process to clear individual detainees of a connection to the September 11 attacks or terrorism in general; bond determinations; the removal process and the timing of removal; and conditions of confinement, including access to legal counsel. The DOJ OIG made twenty-one recommendations to DOJ and DHS related to the issues discussed in the report. On June 17, 2003, you sent me a memorandum stating that the DHS Office of Inspector General (DHS OIG) would monitor the recommendations made by the DOJ OIG to ensure that DHS takes appropriate and corrective action. On August 4, 2003, I provided you with DHS's interim responses to the OIG report. By memorandum on July 21, 2003, the Deputy Attorney General, on behalf of the Attorney General's office, the Federal Bureau of Investigation (FBI), and the Bureau of Prisons (BOP), provided the DOJ OIG with responses. On September 4, 2003, the DOJ OIG sent a letter and report to DOJ and DHS analyzing each agency's responses to the recommendations. The analysis noted that both agencies are taking the OIG recommendations and taking steps to address many concerns raised by the report. While the DOJ OIG concluded that DHS responses adequately addressed some recommendations, it rightly concluded that additional information is necessary to address others. The purpose of this memorandum is to provide that additional information. II. SUMMARY OF DHS ACTIONS TO ADDRESS THE OIG REPORT Well in advance of the release of the OIG Report, DHS and its Border and Transportation Security Directorate (BTS) had initiated a series of actions and policy changes that address several of the OIG's findings and recommendations. The OIG report served as an additional catalyst for a reevaluation of policies and practices surrounding the detention of aliens in the context of events of national impact. Over the past several months, we have carried out a comprehensive internal review of immigration-related operations in DHS. Working at my direction, the review has been led by C. Stewart Verdery, Jr., the Assistant Secretary for Border and Transportation Security Policy and Planning; Daniel W. Sutherland, the Department's Officer for Civil Rights and Civil Liberties; and, Victor X. Cerda, the Acting Legal Advisor for BTS's Immigration and Customs Enforcement Bureau (ICE). As part of this review, we met with and considered the views of a coalition of civil rights and civil liberties groups that expressed concerns about the government's handling of the investigations and detentions of aliens in the period following September 11. We also received insight from scholars who have studied the post-September 11immigration measures. While we provide a specific response for each of the OIG's recommendations, our actions fall into five broad categories. First, we are diligently working to improve coordination between DHS and DOJ. Many of the issues discussed in the OIG report relate to issues of communication between the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS) in the weeks and months following September 11, 2001.1 It is critical to remember how devastating the events of September 11 were to those who were responsible for enforcing our nation's laws. Numerous government locations had to be evacuated, including law enforcement offices and immigration detention facilities. When anthrax was mailed to several government facilities, the work was made even more difficult. Throughout these weeks and months, federal investigators, intelligences analysts, detention officers, prosecutors, and judges performed under extremely difficult circumstances. America is proud of the heroic and courageous work done by our country's law enforcement community. While recognizing the incredible work done during that time period under difficult circumstances, it is appropriate to make changes in policy to ensure that our communications and coordination are improved in case such an event is repeated. One of the critical items that we are addressing is coordination between DOJ, primarily the FBI, and DHS's law enforcement officers and attorneys. DHS is discussing with DOJ a proposed memorandum of understanding (MOU) that would improve our coordination and flow of communications. Our discussions are centering on the need for a concrete set of procedures to handle a large-scale influx of alien detainees who may present national security risks. We believe that these new policies and procedures would significantly improve coordination between these agencies with regard to the detention of aliens during times of national impact. Second, we will institute changes in policy to ensure that aliens who are arrested are informed of the charges against them in a timely fashion.2 The OIG concluded that immigration officials did not promptly serve some of the detainees with documents explaining the charges filed against them. According to the OIG Report, at least twenty-five percent of detainees were held more than three days without being provided a reason for their arrest. DHS is taking steps necessary to formalize the process for ensuring that aliens are promptly informed of the charges against them. As explained below, we will soon issue guidance aimed at formalizing the practice of providing service to the alien of a notice of charges within 72 hours of the time an alien has been arrested and detained. If specific "extraordinary circumstances" are present, the charging decision and notice to the alien can be served within an additional short period of time. The guidance will define what is intended by extraordinary circumstances and provide that the notice be served as soon as practicable. A related issue is the OIG's concern that immigration headquarters office and field offices were not sufficiently coordinated with respect to which office was responsible for issuing the notices of charges. As explained below, DHS will issue procedures that will localize the initial clearance of the Notices to Appear. The procedures will also state that local offices will be responsible for serving the Notices to Appear in all but a limited number of cases-cases involving national security and related grounds. We are confident that this division of responsibilities will ensure a more timely and efficient process of notifying aliens that are detained of the charges against them. Third, we are committed to ensuring the DHS independently reviews the individual circumstances of each case in which the FBI requests detention solely based upon information regarding an alien's possible association to terrorism. Directions have been give that DHS officers and attorneys carefully study the underlying facts in each case and make assessments as to both the necessity for detention and the appropriate conditions of confinement in every case. By doing so, the agency will properly exercise its responsibilities concerning the arrest and detention of aliens. This will also ensure that ICE can make the proper recommendations to the immigration courts on bond, detention and removal. This independent assessment is essential because ICE attorneys are officers of the court and must have confidence in the representations made to the court. Fourth, we have already taken strong steps toward monitoring and oversight of the conditions of confinement for detainees. ICE's Detention and Removal Office (DRO) issued a new "detention standard" in July 2003 that ensures that immigration and customs enforcement officials visit detainees regularly to monitor conditions of confinement and address concerns. The OIG has concluded that this detention standard resolves the recommendations related to conditions of confinement. Nevertheless, we are committed to revisiting our detention practices to ensure that they are both strong and fair. This review of our detention policies is on-going. The Officer for Civil Rights and Civil Liberties will continue to work closely with DRO on this project. Finally, we are committed to strengthening our efforts to conduct post-order custody reviews. The OIG recommended that DHS improve efforts to review the cases of those aliens detained for more than 90 days after receiving final orders of removal. We will ensure that post-order custody reviews are conducted consistently, and, as described below, will issue new guidance to ICE field offices to guarantee that these reviews are completed. By strengthening our policies and practices in these five primary areas, we believe that DHS furthers its goals of strengthening national security and upholding the rule of law. III. SPECIFIC RESPONSES TO THE DOJ OIG RECOMMENDATIONS The following are DHS's specific responses to recommendations that apply to areas in which DHS has jurisdiction. Enhancing Communications and Coordination RECOMMENDATION 1: 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. 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. RECOMMENDATION 2: The FBI should provide DHS with a written assessment of an alien's likely association with terrorism shortly after arrest and preferably within 24 hours, and promptly communicate any changes in their assessment. RECOMMENDATION 3: 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 the routine procedures. The DHS should establish a consistent mechanism to notify the FBI of its plans to release or deport such a detainee. RECOMMENDATION 4: At a minimum, we recommend that immigration officials in the DHS enter into a 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 information sharing and reporting requirements for all members of such an inter-agency working group. Response: DHS is currently discussing with DOJ a memorandum of understanding (MOU) that could set forth the process for coordination and communications during periods of time in which the country dealing with events of national impact. DHS believes that our discussions with DOJ will fully address the issues raised by these recommendations by describing a consistent procedure for the handling of "special interest" cases. Our discussions currently focus on the need to formalize policies, responsibilities, and procedures that will guide DHS, and particularly ICE, and FBI in the case of events of national impact involving alien detainees. DHS also foresees the formation of an interagency working group consisting of FBI and BTS officials that would meet regularly and share information during such periods. Our discussions should produce a clear chain of command and include a mechanism to resolve any dispute that cannot be resolved by the inter-agency working group. With these new policies and procedures, we believe that the OIG's concerns will have been addressed. We will report to you on progress in entering into a new set of procedures and policies with DOJ. Notice of Charges RECOMMENDATION 7: Immigration authorities should issue instructions that clarify, for future events requiring centralized approvals at a Headquarters' level, which District Office is responsible for serving Notices to Appear (NTA) on transferred detainees. Response: DHS agrees with the need for comprehensive instructions to clarify, for future events requiring centralized approvals at the headquarters' level, how NTAs shall be served on transferred detainees. Based on past experience, ICE had decided to establish procedures to localize the initial clearance of NTAs in the field offices. Further, local ICE offices will be responsible for serving NTAs in all but a limited number of cases involving national security and related grounds. This guidance will be disseminated to the field. RECOMMENDATION 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 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." We also recommend that the DHS provide, on a case-by-case basis, written justification for imposing the "extraordinary circumstances" exception. Response: We are committed to ensuring that DHS officials make determinations to charge an individual as expeditiously as possible after arrest and within 48 hours, and that they serve formal charges on an alien (the Notice to Appear) who is being detained within 72 hours of the time he or she is arrested. At the same time, we believe that there is a need to retain flexibility in the process based on unique and extraordinary circumstances that may develop. Therefore, DHS will issue new guidance to the field that incorporates the following elements: A determination will be made within 48 hours of the arrest as to whether the alien will be continued in custody or released on bond or recognizance and whether a notice to appear (NTA) and warrant of arrest will be issued. The charging determination and the date of service of the NTA, if any, shall be documented in the alien's official file. Service of the NTA on the alien shall be made within 72 hours of the arrest. These parameters need not be applied in the event of an emergency or other extraordinary circumstance, in which case a determination will be made as soon as possible. An emergency or other extraordinary circumstance exists in the following narrow circumstances: if there is a significant infrastructure or logistical disruption such as a weather emergency or terrorist act(s), or, there is a compelling law enforcement need. Procedures and a form to annotate the charging determination and service of the NTA will be developed and disseminated to the field. This guidance will be issued along with the final policies and procedures negotiated with the DOJ. Issues of Concern During Times of National Impact RECOMMENDATION 9: As we create the new Department, we are very mindful of the need to provide effective lines of communication. In order to implement the spirit of this recommendation, we will take two steps. First, we will not hesitate to communicate through proper channels within DHS and to our colleagues within DOJ regarding issues of mutual concern. The proposed policies we are discussing with DOJ would identify key senior positions within each Department that will be responsible for resolving any issues between the components that have not been resolved in the due course of business. Second, DHS's leadership will encourage employees throughout the organization to raise issues of concern. We will make it clear that during a time of events of national impact, employees throughout the organization may raise issues of concern to either the DHS General Counsel or the Department's Officer for Civil Rights and Civil Liberties. Both of these officials report directly to the Secretary for Homeland Security, and therefore can present issues to the senior leadership of the Department. Both of these officials will also ensure the confidentiality of the identity of those who raise such concerns. This mechanism will promote a free flow of communication about critical issues that face the Department during times of crisis. Detention Standards RECOMMEDATION 18: We recommend that the DHS amend its detention standards to mandate that District Detention and Removal personnel visit immigration detainees at contract facilities. We further recommend that the DHS issue procedures to mandate that contract detention facilities transmit documentation to the appropriate DHS field office that describes why immigration detainees have been sent to SDUs. RECOMMENDATION 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. In addition, the DHS should ensure that the detainees have adequate access to counsel, legal telephone calls, and visitation privileges consistent with their classification. Response: The DHS interim response to the DOJ OIG provided detailed information on ICE's new Detention Standard on Staff-Detainee Communication. The Central goal of this new standard is to ensure that ICE personnel monitor detention conditions and to promptly address concerns that arise. The standards also include specific timeframes during which officers must respond to certain enumerated detainee requests. As noted above, the DOJ OIG concluded that Recommendations 18 and 19 were "closed" after determining that the new detention standard fully addressed the issues raised by these recommendations. A copy of the detention standard is attached. DHS is committed to ensuring that DRO closely monitor the implementation of the directives in the detention standards, including the new standard on staff-detainee communications. We will pay careful attention to inspections and audits performed by those inside and outside the organization. Detainees in DHS-controlled facilities are required to have access to counsel, telephone calls, and visitation privileges. The Officer for Civil Rights and Civil Liberties will continue to work closely with DRO to strengthen facilities inspections and ensure that access to counsel is fully afforded. Removal Issues RECOMMENDATION 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. We recommend that the Department carefully examine the limits on its legal authority to detain these individuals. Response: We are committed to strengthening our efforts to conduct post-order custody reviews. We will ensure that post-order custody reviews are conducted consistently and effectively, and, as described below, will issue new guidance to ICE field offices to guarantee that these reviews are completed. With regard to the legal opinion issued by the DOJ's Office of Legal Counsel, it is critical to remember the role that office plays in the federal government. The Office of Legal Counsel's role is much broader than providing legal advice within its own agency; in certain important circumstances, the Office is responsible for providing legal advice to the entire Executive Branch. Given this context, the DOJ Office of Legal Counsel's opinion will continue to govern DHS's policies and practices in this area. RECOMMENDATION 21: The Department of Homeland Security needs to ensure that its field offices consistently conduct Post-Order Custody Reviews (POCRs) for all detainees who remain in its custody after the 90-day removal period. Response: We agree with this recommendation, and have taken steps to ensure effective coordination and communication with regard to post-order custody reviews (POCRs). Under the new ICE field structure, ICE Headquarters management officials have control of field elements that are charged with completing POCRs, and have established a clear chain-of-command. This new chain of command, coupled with improved coordination between DOJ and DHS, and current ongoing training for our field personnel, should ensure that POCRs are completed in a timely manner in the future. ICE is confident these actions will result in greater accountability and responsiveness. Under the current ICE practice for detained aliens with either a final order of removal or voluntary departure, where there is a FBI interest, ICE promptly notifies FBI of the pending removal action and asks the FBI to provide within a specific timeframe information indicating why the alien should remain in custody. This request is typically made at the point that ICE has a travel document in hand and is in a position to move the alien. In summary, DHS will take strong action to carefully monitor each individual situation in which an alien remains in custody after the 90-day removal period. IV. CONCLUSION Over the past several months, the Department of Homeland Security has undertaken a close review of policies, regulations and procedures. The DOJ OIG report has served as a helpful tool in this process. The activities related to arrest, detention, litigation, and removal for which we are responsible will be carried out under a streamlined process should an event of national impact occur in the future. By implementing the policy changes outlined above, DHS intends to move forward in ways that support national security while honoring the rule of law.

1. At the time, the FBI and INS were both part of the Department of Justice. Under the Homeland Security Act of 2002, the INS was replaced by three new organizations that are part of the Department of Homeland Security: The Bureau of Immigration and Customs Enforcement (ICE), the Bureau of Customs and Border Protection (CBP), and the Bureau of Citizenship and Immigration Services (CIS). The first two are part of the Border and Transportation Security Directorate, and the third reports directly to the Deputy Secretary of Homeland Security.

2. At several places in this memorandum, we prefer to policy changes that we will soon put in place. It is our judgment that we should issue to the field all policy changes at one time. If we issue policy directives in a piecemeal fashion, it might serve to confuse rather than guide DHS employees as they carry out their duties. Therefore, when DHS concludes its negotiations with DOJ regarding an MOU, a comprehensive set of guidance will be issued to the field. We are committed to concluding these negotiations in the immediate future. The comprehensive guidance will discuss, at a minimum, the terms of the new policies and procedures established with respect to DOJ; the procedures for ensuring that aliens are informed of the charges against them in a timely fashion; the procedures for localizing the initial clearances of Notices to Appear; and, the procedures for robust post-order custody reviews.