For Jailed Immigrants, a Presumption of Guilt

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Posted by Sadie from ? ( on Tuesday, June 03, 2003 at 10:42PM :

Published on Tuesday, June 3, 2003 by the New York Times
For Jailed Immigrants, a Presumption of Guilt
by Adam Liptak

The Sept. 11 terror attacks not only turned the nation upside down, but they also inverted the foundation principles of the American legal system.

The report issued yesterday by the Justice Department's inspector general said the nation's law enforcement authorities ceased being consumed with prosecuting violations of the law and tried to put a lid on every possible type of terrorist activity.

The aggressive tactics used against people held on minor immigration violations were, civil libertarians said, a natural result of the department's new approach.

"When it's in this preventive mode," David D. Cole, a law professor at Georgetown University, said of the Justice Department, "it by definition sweeps very broadly and ends up harming hundreds if not thousands of people."

"This illustrates what happens," he added, "when the government throws off the ordinary rules that ensure that we don't lock up people until we have some sound reason to believe they're engaging in some illegal activity."

Others stressed the importance of context.

"We have to acknowledge that we stood the system on its head," said Steven Brill, the author of "After," a study of the nation's reactions to the 9/11 attacks, including that of Attorney General John Ashcroft. "But maybe it was for a good reason. It was a national emergency. Ashcroft's view was that he would rather put 762 people away for some number of months if 2 or 3 of them are guilty or can prove others are guilty."

The report says that the usual presumptions of the legal system were turned upside down in the aftermath of the attacks on Sept. 11, 2001. As a result, people detained on immigration charges were considered guilty until proved innocent and were often held for months after they were ordered released.

At times, the ordinary rules were replaced by no rules or perverse ones, the report said. Some detainees were given the names of lawyers to call but inaccurate phone numbers for them, or the names of lawyers who were unwilling to represent them. They might be given one try to reach a lawyer per week, and a busy signal or wrong number sometimes counted.

These altered understandings of the basic rules of the justice system mirrored, the report said, the Justice Department's new conception of its mission.

"The threat presented by terrorists who carried out the Sept. 11 attacks required a different kind of law enforcement approach," Deputy Attorney General Larry D. Thompson told investigators, as paraphrased in the report. "The department needed to disrupt such persons from carrying out further attacks by turning its focus to prevention, rather than investigation and prosecution."

The report does not say whether the immigration detentions yielded any valuable information. Nor does it, for the most part, take a position on whether the Justice Department acted unlawfully. The department itself was unapologetic. "Our policy," said Barbara Comstock, a spokeswoman, "is to use all legal tools available to protect innocent Americans from terrorist attacks."

The report noted that law enforcement officials faced exceptional challenges after the terrorist attacks and that nearly all of the 762 people detained on immigration charges in connection with them had overstayed a visa, entered the country illegally or committed another immigration violation. But it was critical of the haphazard criteria used to arrest and detain people.

In general, the report found, every aspect of the system conspired to detain for long periods people who might have, at other times, been released on bond while they awaited hearings or quickly deported.

"The war on terror," said Anthony D. Romero, the executive director of the American Civil Liberties Union, "quickly turned into a war on immigrants."

The government used every procedural device at its disposal, the report said, including some of questionable legality, to ensure that people charged with immigration violations in connection with the attacks were not released until the Federal Bureau of Investigation "determined they posed no danger to the United States." They included delays in informing detainees of the charges against them, opposing bond and continuing detention long after judges ordered the detainees deported.

The general policy, which the Justice Department called "hold until cleared," might as well have been called "guilty until proven innocent," civil libertarians said.

"It confirms our worst fears about what was going on," Professor Cole said. "At the highest levels of the Justice Department, the government made a conscious effort to exploit the immigration laws to lock up hundreds of people who ultimately proved to have no connection to terrorism whatsoever."

The conditions under which some detainees were held, the report found, were quite harsh, particularly at the Metropolitan Detention Center in Brooklyn, where 84 people were detained. Detainees and one corrections officer said it was common for officers to slam inmates against walls before videotaping their statements. Some were housed in brightly lighted cells around the clock.

People detained on immigration charges are not entitled to lawyers paid for by the government, and the authorities did not make it easy for them to retain paid or volunteer lawyers. At the Brooklyn center, they were allowed one "legal call" per week. The prison authorities contended that detainees were alerted to this limited right when they were periodically asked, "Are you O.K.?" This was, the authorities said, shorthand for, "Do you want to place a legal telephone call this week?"

Mr. Romero said the report captured the mood of a nation in transition. "The further we have come from Sept. 11," he said, "the more the American public has been willing to ask the tough questions."

Copyright 2003 The New York Times Company

-- Sadie
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