Having committed no crime—indeed, without any claim that there was probable cause to believe he had violated any law—[Osama] Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.... [He was] repeatedly strip-searched, shackled whenever he [was] moved, denied food that complies with his religious needs ... prohibited from seeing or even calling his family over the course of 20 days and then [pressured into] testifying while handcuffed to a chair.
—U.S. District Judge Shira A. Scheindlin of Manhattan, April 30
The unfortunately named Osama Awadallah was not the only one. Not by a long shot. Despite the unprecedented secrecy imposed by Attorney General John D. Ashcroft, evidence has mounted that his Justice Department has put hundreds of harmless Muslim men from abroad behind bars for far too long, treated many of them worse than convicted criminals, and arguably violated their constitutional rights—all without finding enough evidence to charge a single one of those arrested since September 11 with a terrorist crime or conspiracy.
One federal judge has ruled illegal the government's use of the "material witness" statute to incarcerate Awadallah. Another has found unconstitutional Ashcroft's effort to impose blanket secrecy on deportation proceedings. A New Jersey judge ordered release of the names of detainees in that state. (The Justice Department is appealing all of these decisions.) Judges have also questioned other government actions, and the media have published numerous accounts of gratuitous mistreatment and verbal and physical abuse. It's time to shed the sunlight of public hearings on these detentions, which have swept up between 1,100 and 2,000 Muslim foreigners (if not more), the vast majority of whom have eventually been deported or released as harmless.
Congress should call on Ashcroft to explain and justify the incarceration of so many people, for so long, in such harsh conditions, under such unprecedented secrecy, and with so little apparent progress in finding terrorists. I say this as one who believes that the novel dangers we face may warrant novel governmental powers to detain suspected terrorists (for a few days) even when the initially available evidence is too thin to warrant any criminal or immigration charge.
But the Ashcroft detention regime appears more and more disturbing the more we learn about the meager justifications for the vast majority of these detentions and their apparent ineffectiveness in fighting terrorism. Using alleged immigration violations as pretexts, the attorney general has assumed powers that Congress never gave him to lock up apparently harmless people with no real justification beyond possible links to terrorism—and to keep them locked up until the FBI satisfies itself that they are harmless.
Our law has historically shunned such "preventive detention" of people accused of no crime, based on a mere suspicion of possible dangerousness. There have been lamentable exceptions, such as the internment of more than 100,000 Japanese-Americans during World War II. But "in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," the Supreme Court held in 1987. The Court has ruled that no mentally competent citizen can be locked up for more than 48 hours without bond unless he or she is both charged with a crime and shown to present either a risk of flight or a danger to the community. Immigrants and foreign visitors enjoy the same rights, except that they can also be detained based on noncriminal immigration charges—if (and only if) combined with proof of flight risk or dangerousness—until the deportation proceedings have been resolved. ("Unlawful combatants" captured on the battlefield abroad, on the other hand, are properly subject to long-term detention even if implicated in no completed crimes. See my April 27 column.)
Ashcroft proposed a drastic lunge down the preventive detention road in the draft anti-terrorism bill he sent to Congress in September. But Congress balked, and Ashcroft had to settle for a less radical (albeit still controversial) provision authorizing detention of suspected terrorists without charges for no more than seven days. But he has never invoked this new power. Instead, he has ushered in his detain-until-proven-harmless approach by using at least four different rationales—all of questionable legality—to incarcerate Awadallah and hundreds of others for far more than seven days, based on far-from-solid evidence of possible ties to terrorists.
First, the Justice Department has locked up more than 700 people for alleged immigration violations that are not crimes and carry no penalty besides possible deportation. Ashcroft's sweeping secrecy rules make it difficult to gauge the quality of the evidence used to justify most of these detentions. But a growing number of largely uncontradicted accounts by dozens of detainees who have been released suggest that the government had little basis for classifying them either as dangerous or as flight risks. Absent such evidence, they were legally entitled to prompt release pending any deportation proceedings. Instead, many were held for weeks or months.
Second, in at least 87 cases, according to a February 18 New York Times report and a class-action lawsuit by former detainees, the Justice Department continued to incarcerate foreigners charged only with the noncriminal offense of illegally entering or remaining in the United States even after they had agreed to leave or had been ruled "deportable." In the words of Lee Gelernt of the American Civil Liberties Union: "Holding visa violators after the completion of their immigration proceedings solely for the purpose of investigating them criminally is a form of preventive detention, is patently unlawful, and is profoundly at odds with our nation's basic notions of fairness."
Third, in some smaller number of cases, the Justice Department has invoked the federal "material witness" statute as a basis for incarcerating people charged with nothing at all—not even with overstaying their visas—for the supposed purpose of securing their grand jury testimony. Judge Scheindlin ruled that this was a misuse of the statute, which, she found, authorized detaining material witnesses only for criminal trials, not for grand jury testimony. "Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes," she said, "is an illegitimate use of the statute."
Fourth, Justice has apparently detained several dozen foreigners for weeks under a stunningly open-ended September 20 regulation that extends the Immigration and Naturalization Service's power to detain foreigners without charges, during emergencies, from the previous maximum of 24 hours to an indefinite "reasonable" period.
Meanwhile, more and more former detainees have told harrowing tales of being held for weeks or months without explanation and with minimal access to lawyers, family members, or telephones, and of being treated worse than the convicted criminals with whom many have been incarcerated.
Ashcroft's shaky, shifting rationales for cloaking in secrecy the reasons for and details of these detentions, as well as the conditions of confinement, have not impressed the courts. U.S. District Judge Nancy Edmunds of Detroit, for one, held on April 3 that the order closing all deportation proceedings to the public was a clear violation of the First Amendment. This was consistent with our law's traditional abhorrence of unnecessary secrecy—a convenient cloak for abuse—in legal proceedings. Other challenges to Ashcroft's secrecy orders are pending.
Public concern about Ashcroft's detention regime has been muted by the facts that the foreigners cannot vote and that the rest of us have not been affected. But our history shows that "measures initially targeted at noncitizens may well come back to haunt us all," writes David Cole, a leading civil-liberties litigator who teaches law at Georgetown University.
An aggressive, when-in-doubt-detain approach was understandable in the immediate aftermath of September 11, amid fears that hundreds more Al Qaeda terrorists might be plotting new attacks. But after eight months, the record suggests that the 1,100 to 2,000 detentions since September 11 have not netted enough evidence to charge a single person with a conspiracy or other crime involving terrorism. (Zacarias Moussaoui, the alleged "20th hijacker," was in jail on immigration charges for weeks before September 11.) This does not negate the likelihood that Al Qaeda "sleepers" remain at large in this country, or that some may have been among the detainees. (The FBI has linked at least two identified detainees besides Moussaoui to Al Qaeda.) But the record does seem to suggest that we gain precious little safety by detaining so many people based on so little evidence.
Perhaps Ashcroft can show otherwise. Congress should invite him to try.