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Homeland Security

Washington File

02 June 2003

Justice Department Reviews Treatment of Alien Detainees

(FBI official refutes allegations of insufficient priority) (1200)
By Stuart Gorin
Washington File Staff Writer
Washington -- The Justice Department's Office of the Inspector General
(OIG) issued a report June 2 saying it found "significant problems" in
the treatment of aliens being held on immigration charges in
connection with the investigation of the September 11, 2001, terrorist
attacks in the United States.
The report says while the OIG recognizes the tremendous challenges
authorities faced as they mobilized to prevent additional attacks
during a chaotic period, the Justice Department "can learn from the
experience." The OIG made a series of recommendations to address the
issues it examined.
In response, Barbara Comstock, the Justice Department's director of
public affairs, said the report is fully consistent "with what the
courts have ruled over and over -- that our actions are fully within
the law and necessary to protect the American people."
Those detained were illegal aliens, Comstock said, all of them charged
with criminal violations or civil violations of federal immigration
"Detention of illegal aliens is lawful," she added. "We detained
illegal aliens encountered during the September 11 terrorist
investigation until it was determined they were not involved in
terrorist activity, did not have relevant knowledge of terrorist
activity, or it was determined that their removal was appropriate."
Speaking to journalists on background, an official of the Federal
Bureau of Investigation (FBI) said he respectfully disagreed with some
of the inspector general's findings, including allegations that the
FBI did not adequately staff or assign sufficient priority to its
process for clearing the detainees of a connection to terrorism.
The FBI official said thousands of investigators were on the job
around the clock and needed time to resolve issues. He added that
investigating the anthrax letters scare that faced the nation in the
wake of the September 11 attacks added to the investigators' burden.
The FBI is "not apologetic," the official added, about detaining the
aliens and enforcing the law, in an atmosphere of trying to prevent
additional terrorist attacks. He pointed out that a second wave of
terror could come from people who fit the description of those being
The OIG report stated that in connection with the terrorism
investigation, 762 aliens were detained for various immigration
offenses, including overstaying their visas and entering the country
The report said that the FBI made little attempt to distinguish
between aliens who were subjects of the terrorism investigation and
those encountered coincidentally, and that the Immigration and
Naturalization Service (INS) did not consistently serve the detainees
with notice of the charges under which they were being held within its
stated goal of 72 hours.
The report also said some detainees alleged physical and verbal abuse
by correctional officers at the Metropolitan Detention Center in New
The OIG spent one year from March 2002 to March 2003 conducting
interviews with law enforcement officials, detainees and
representatives of human rights organizations in preparing its report.
The recommendations made in the report include developing uniform
arrest and detainee classification policies, improving information
sharing among federal agencies on detainee issues, improving the FBI
clearance process, clarifying procedures for processing detainee
cases, revising Federal Bureau of Prisons procedures for confining
aliens arrested in immigration charges who are suspected of having
ties to terrorism, and improving oversight of detainees housed in
contract facilities.
Comstock issued the following statement regarding the OIG report:
"The Justice Department believes that the Inspector General report is
fully consistent with what courts have ruled over and over -- that our
actions are fully within the law and necessary to protect the American
people. Our policy is to use all legal tools available to protect
innocent Americans from terrorist attacks. We make no apologies for
finding every legal way possible to protect the American public from
further terrorist attacks.
"The Inspector General report clearly recognizes the Department was
operating under the most difficult of circumstances. Under these
unprecedented and extraordinary circumstances, the law was
scrupulously followed and respected while aggressively protecting
innocent Americans from another terrorist attack.
"Those detained were illegal aliens. They were all charged with
criminal violations or civil violations of federal immigration law,
such as: eluding previous deportation orders; staying past the
expiration date on their visas; entering the country illegally without
inspection; or, entering the country illegally with invalid
immigration documents.
"Detention of illegal aliens is lawful. We detained illegal aliens
encountered during the 9/11 terrorist investigation until it was
determined they were not involved in terrorist activity, did not have
relevant knowledge of terrorist activity, or it was determined that
their removal was appropriate. The Report includes the legal analysis
by the Office of Legal Counsel (OLC) that determined it is completely
lawful to detain aliens after a removal order (both within and beyond
the 90-day removal period) to investigate whether they are involved in
terrorism. OLC is the office at the Justice Department that considers
and sets forth the definitive legal position of the Department of
Justice to resolve any legal differences between components of the
"The Department's Office of Legal Counsel concluded that:
1. The Department may detain an alien for the full 90 day statutory
'removal period' even if the Department could remove the alien more
quickly, despite the belief of some individuals within the INS that
the Department must act with 'reasonable dispatch'; and
2. The Department may take more than 90 days to remove an alien, even
when the alien could be removed within 90 days, if the delay is
related to investigating whether the alien has ties to terrorism or
many other legitimate purposes related to effecting national
immigration laws and policies.
"There is no automatic right of an illegal alien in our country to be
released on bond during removal proceedings. This is considered to be
'discretionary relief.' It would have been irresponsible to release
from custody or remove from the country illegal aliens who were
believed by the FBI to be connected to the September 11 attacks or to
terrorism. We could not take the risk that we might release or
inadvertently remove an alien who was involved in or had knowledge of
the attacks.
"Illegal aliens who are not detained, flee. A report by the Inspector
General issued this past February demonstrates that aliens who are not
detained usually flee and elude deportation. The report noted that 94%
of detained aliens were deported; while only 13% of non-detained
aliens were deported.
"The February Inspector General report found that high risk aliens
were particularly unlikely to be found in order to be deported:
-- Only 6% removed of those ordered deported from countries that are
state sponsors of terrorism;
-- Only 35% removed of those with criminal records;
-- Only 3% removed of those who were denied asylum.
-- Despite recommendations from the 1996 report, over 5 years later
the Inspector General found the INS still remained 'ineffective at
removing nondetained aliens.'
"As we stated from the start, our policy was to use all legal tools
available to protect the American people from additional terrorist
attacks. The consequences of not doing so could mean life or death."
The entire OIG report can be viewed at:
The September 11 Detainees [PDF 13.2 Mb]
(The Washington File is a product of the Bureau of International
Information Programs, U.S. Department of State. Web site:

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