9/11 Detainees’ Treatment Casts a Deep Shadow

Morton H. Halperin is director of the Washington office of the Open Society Institute. Ken Gude is a policy analyst at the Center for National Security Studies, the named plaintiff in the Freedom of Information Act lawsuit to compel the government to identify the Sept. 11 detainees.

The abuses against the immigrant detainees who were rounded up after Sept. 11 have been amply detailed in a report released by the Justice Department’s inspector general.

Many of the detainees were kept in unnecessarily harsh confinement, denied access to counsel and family and not informed of the charges against them for weeks or months. Some were beaten. They were automatically denied bail and many were jailed even though they were never charged with any serious crime. The inspector general’s report also confirms that many of those detained were never suspected of terrorism but were simply caught up in the wide net cast after 9/11.

But the ultimate abuse, in our opinion, was the shroud of secrecy ordered by Atty. Gen. John D. Ashcroft over the entire process.


On Sept. 20, 2001, he directed the department’s chief immigration judge to keep secret all information about the detainees. As a result, the government refused to disclose the names of those arrested and then closed their hearings to the public. This made any outside review of the Justice Department’s actions virtually impossible; the department was not accountable to anyone outside the government until the inspector general’s report was released this month.

And the report is only the tip of the iceberg. The inspector general examined the cases of only 119 out of the 762 aliens detained.

Before the report’s release, Ashcroft repeatedly asserted that at no time were the rights of the detainees violated. He told the Senate Judiciary Committee on Dec. 6, 2001, that “all persons being detained have the right to contact their lawyers and their families.” That claim was false. The inspector general “found that the Bureau of Prisons’ decision to house Sept. 11 detainees in the most restrictive confinement conditions possible severely limited the detainees’ ability to obtain, and communicate with, legal counsel.”

The attorney general has also claimed that the uncompromising application of punitive detention before trial was justified because it targeted suspected terrorists. But the inspector general said the FBI made little or no effort to distinguish between detainees who were the subjects of the Sept. 11 investigation and those who were encountered by investigators “coincidentally.” That failure caused the prolonged and extremely harsh detention of individuals whom the government never suspected of terrorist activity.

Remarkably, even in the face of a 198-page report detailing numerous rights abuses, the Justice Department still maintains that the law was “scrupulously followed and respected.”

Where in the law does it allow for the physical abuse of individuals in government custody?

The government remains stubbornly determined to keep secret the identities of the detainees. It has appealed a federal court’s order to release the names; the appeals court’s decision is pending. And it is clear from the Justice Department’s “no apologies” response to the inspector general’s report that it is not taking seriously the findings or recommendations.

Congress should demand that the Justice Department release the names of the detainees, and it should act to prohibit secret arrests and secret hearings in the future. Unfortunately, at the House Judiciary Committee hearing, members never even addressed the secrecy of the arrests.

In his opening statement on June 5, the attorney general very powerfully read aloud names of those who were murdered on Sept. 11. I hold out hope that at some appearance before some congressional body, some attorney general will read aloud names of those who were detained, jailed and beaten in the aftermath of that tragic day.