Detainment Questions

Can I interview a detainee?

Detainees are being held either in jails, INS detention facilities, or military bases. Although the

Supreme Court has held that there is a presumptive right of access to criminal proceedings, it has

not extended that presumption to all law enforcement facilities.

If the detainee is in a federal prison, reporters must get permission from the Federal Bureau of

Prisons to obtain access to the detainee. The BOP may deny access if they feel there is a safety or

security concern. The decision to grant access is entirely within the BOP's discretion.

If the detainee is in an INS facility, then reporters must obtain permission from the INS. The INS

issues manuals that explain its policies and procedures. One manual outlining its detention

standards, including visitation, states:

"To better inform the public about INS detention operations, facilities shall permit

representatives of the news media and non-governmental organizations to have access to non-classified and non-confidential information about their operation; given appropriate notice, to

tour facilities; and, with permission from INS and the detainees, to interview individual

detainees."

Thus, the INS would, in theory, permit interviews in its facilities. However, it may restrict the

hours of visitation and place limits on what may be brought into the facility. Any journalist who

seeks access to INS detainees should review the INS manual, which is available from the

agency's website (www.ins.gov).

However, the INS has limited facilities, and it therefore contracts out to local jails to hold

detainees. If an INS detainee is held in a local jail, then a reporter needs permission from the

local jail. The INS manual quoted above states that its policies apply to Contract Detention

Facilities, but local policies may nevertheless interfere with access. Some states have statutes that

allow access to any inmate who asks to speak to the press. In such states, a reporter has a better

chance of obtaining access than in a state where decisions are left in the hands of local sheriffs.

Regardless of ordinary policies, it seems that the INS has limited access to detainees in some

circumstances. The Milwaukee Journal-Sentinel reported that, for a while, the INS cut off all

access to immigration detainees, even by lawyers or family members. After the September 11th

attacks, the INS ordered local jails in Wisconsin, Illinois and Indiana holding INS detainees to

cut off all access indefinitely. However, the order was lifted within a week.

One practical problem in obtaining access to INS detainees is that the press does not necessarily

know who has been detained. Although the Attorney General has released the names of persons

charged with federal crimes, he has not released the names of the 548 people held to date on

immigration charges. They have been identified only by a number and country of origin.

However, any alien who is arrested has the right to contact their consulate. It may be helpful to

call consulates to see whether they have information about the identities of their citizens who

have been detained.

If the detainee is being held on a military base, such as the detainees at the base in Guantanamo

Bay, Cuba, reporters would need permission from the U.S. military.

What is being done to provide the public with more information?

The following is a chronological description of efforts made to obtain information and the

information officially released.

In the two months following the attacks, the Justice Department refused to release specific

information about detainees. Groups estimated that more than 1,000 people had been detained,

but it was unclear who they were, why they had been detained, or whether any had been released.

On Oct. 12, Ashcroft issued a memorandum urging government agencies to deny Freedom of

Information Act requests whenever there was any possible basis for denying the request.

On Oct.17, the American Civil Liberties Union sent a letter, pursuant to the Freedom of

Information Act, to Ashcroft, asking for information about the detainees.

On Oct. 29, 2001, a coalition of civil rights groups filed a FOI Act request to obtain information

about the detainees. The request asked for the names of the detainees, the charges against each of

them, the dates of detainment, and the detainees' location. The groups involved in the request

included the Center for National Security Studies, Amnesty International, the American

Immigration Lawyers Association and various Arab and Muslim organizations.

Later that week, six members of Congress asked the Justice Department to release information

about the detainees. In a letter to Ashcroft, Senators Russell Feingold (D-Wisc.), Patrick Leahy

(D-Vt.), and Edward Kennedy (D-Mass.), joined by Reps. Jerrold Nadler (D- N.Y.), Sheila

Jackson-Lee (D-Tex.), and Robert Scott(D-Va.), expressed concern about the secret nature of the

detainments.

On Nov. 8, 2001, the Justice Department announced that it would no longer release a total tally

of persons detained in the September 11th investigation. It stated that it would release the number

of people charged with violating immigration laws and the number of people held in federal

custody, but it would not try to track the number of people detained and later released.

On Nov. 26, Ashcroft said that he would not name all persons detained in the terrorism

investigation for two reasons. First, he argued that releasing names would invade the privacy of

the persons detained and possibly result in a "blacklist." Second, he said that he did not want to

release the names because it would help Osama bin Laden determine whether his aides were in

custody.

Shortly thereafter, the Justice Department released some information. On Nov. 28, the

Department of Justice released the names of persons charged with federal crimes in connection

with the September 11th investigation. The list also identified the charges against each person.

With regard to INS detainees, the Justice Department revealed the nationality of each of the 548

detainees and the nature of their immigration violations, but they referred to each detainee by

number, rather than by name. These two documents are not available on the Internet, but may be

obtained by calling the Department of Justice's public affairs office.

In early December, a coalition of groups, including the Reporters Committee for Freedom of the

Press, filed a lawsuit in Washington, D.C., against the Department of Justice, alleging that the

agency violated the FOI Act by refusing to respond to the requests for records that had been filed.

The suit also claims that the Justice Department violated the First Amendment and common law

right of access to court records by refusing to release court records pertaining to cases arising

from the September 11th investigation. This suit is still pending.

According to The New York Times, the ACLU in December sent a letter to the consulates of the

ten nations with the most citizens detained. The letter offered the ACLU's services to help the

consulates deal with the American legal system. It was designed to be part of a strategy to

aggressively pursue information about the detainees. The Times reported that the ACLU had

previously met with FBI head Robert Mueller, but Mueller had refused to provide any

information about the detainees.

In mid-January, in response to the lawsuit, Ashcroft said that many of the INS detainees had

either been deported or released. He estimated that there were only about 450 INS detainees still

being held. However, the New Jersey Law Journal reported that attorneys representing the

detainees estimate that there are about 600 INS detainees in New Jersey, and many of them are

still being held in secret. The Department of Justice has said that it had charged 117 immigrants

with crimes unrelated to the September 11th attacks, and it is unclear whether those charged are

the same detainees being held in New Jersey. The Department of Justice has been unwilling to

clarify who is being held, where they are, and on what charges.

On Jan. 22, the ACLU's New Jersey Chapter filed a lawsuit in New Jersey, seeking the names of

INS detainees held in county jails. The lawsuit, filed in Hudson County Superior Court, relies on

New Jersey law, which requires the names of persons in jail and the dates of their confinement to

be open to public inspection.

On Jan. 28, The Detroit Free Press and the Ann Arbor News filed a lawsuit in federal court in

Michigan challenging the closure of immigration proceedings. The next day, the ACLU filed

another lawsuit in Michigan to challenge the closure of immigration proceedings. The ACLU's

lawsuit was filed on behalf of two newspapers, the Detroit News and the Metro Times, and Rep.

John Conyers (D-Mich.). Conyers and the two papers complained because they had been

excluded from the deportation hearing of Rabih Haddad, a Muslim community leader suspected

of raising money for terrorist activities.

Both lawsuits, each filed in the federal District Court in Detroit, allege that the immigration

proceedings relating to Rabih Haddad should be open to the public. The Free Press' suit asks for

access to all future proceedings and for copies of transcripts of all past proceedings. The ACLU's

suit focuses on Judge Creppy's order to close all immigration proceedings, claiming the order is

unconstitutional. The ACLU has argued that there is a presumptive right of access to such

proceedings, and the policy stated in Creppy's order is unconstitutional. Elizabeth Hacker, the

immigration judge in the Haddad case, allegedly relied upon Creppy's order to close the Haddad

proceeding. The defendants in both lawsuits are Ashcroft, Creppy and Hacker.