Policy Altered on Terrorism Detentions

Immigrants detained in terrorism investigations can no longer be held indefinitely without evidence, the Department of Homeland Security said Tuesday, announcing a new policy to prevent abuses of authority.

After the Sept. 11, 2001, attacks, hundreds of men -- mainly from the Middle East -- were arrested because of alleged minor immigration violations and jailed for months, some under harsh conditions.

Widespread complaints from detainees, their relatives and civil rights groups prompted an investigation by the Justice Department inspector general’s office. Last summer, that office issued a report criticizing the government for failing to uphold basic standards of due process, including physical abuse and mistreatment at a federal facility in Brooklyn, N.Y.

The new policy is intended to correct those problems and create a system of “checks and balances,” said Asa Hutchinson, the Homeland Security Department’s undersecretary for border and transportation security.

“This is not a fine-tuning, it’s a very significant correction,” he told reporters.

Civil rights groups applauded the changes. “There will be no more blanket detentions of whole classes of aliens,” said Kareem Shora, legal advisor to the American-Arab Anti-Discrimination Committee. “We welcome this step as a very positive one.”

But the Justice Department remained steadfast in its defense of the detentions. Officials said that the policy was lawful and that authorities could not risk allowing any suspects to flee the country.

At the time of the terrorist attacks, both the FBI and the immigration service were under the umbrella of the Justice Department. Now immigration is part of Homeland Security.

More than 760 immigrants were swept up in connection with the FBI’s investigation of the attacks. The detainees were held an average of 80 days, and most were ultimately deported to their home countries. Many have told their stories to Arabic-language media, reinforcing negative perceptions of the United States in Muslim countries.

Homeland Security’s new policy limits the conditions under which an individual detained on immigration charges during a terrorism investigation can be held. Many immigration violations -- for example, an expired visa -- are civil, not criminal, and do not require lengthy detention.

Existing rules had already set some limits: Authorities had 48 hours to decide whether to charge an immigrant detainee and whether to allow the person to post bond, and the detainee had to be notified of any charges within 72 hours. But those rules allowed exceptions in cases of “emergency or other extraordinary circumstance.”

The new policy clarifies what is considered an emergency and sets up several levels of periodic reviews to ensure that detainees do not languish behind bars indefinitely.

Emergency conditions include a terrorist attack, natural disaster, riots and power failures, according to a Homeland Security memo outlining the new policy.

If deadlines are missed for any reason, authorities must notify a detainee of charges “as soon as practicable,” the memo says.

Decisions to hold a detainee because of a “compelling law enforcement need” must be approved by senior supervisors and cannot be made by immigration enforcement agents. Long-term detention cases of 180 days or more must be referred to headquarters.

The new policy also requires independent review by Homeland Security lawyers of any FBI request to hold an individual on immigration charges pending a terrorism investigation.

Immigration “personnel and attorneys must carefully study the underlying facts in each case and make assessments as to both the necessity for detention and the appropriate conditions of confinement in every case,” the policy memo says. “This will ensure that [Homeland Security] can make the proper recommendations to the immigration courts on bond, detention and removal.”

The Justice Department’s inspector general found that a root cause of the problems with the Sept. 11 detainees was the length of time it took the FBI to sort out whether those arrested had any terrorist links. The determination was initially expected to take just a few days, but that stretched into months because the clearances were not a high priority for the FBI.

“Before, we were deferring to what another agency was saying,” Hutchinson said. “Immigration basically acquiesced with the decision-making, or lack of decision-making, by another agency. That resulted in a very serious problem, and we’re correcting that.”