Liberty and Justice for Almost All

But civil libertarian critics of the government have claimed the report as their own. The Center for Constitutional Rights, the Lawyers Committee for Human Rights, Human Rights Watch, the American Civil Liberties Union, and Democratic congressional leaders have all claimed vindication for their broad criticisms of the government. ACLU executive director Anthony Romero went so far as to say that the report proved “the war on terrorism quickly turned into a war on immigrants” and suggested that the report might support criminal prosecution of top government officials.

Glenn Fine’s report is good enough that it may, in the long run, be used to reject such false and irresponsible charges. For one thing, it is, at 198 pages, exhaustive and meticulously researched. But where the report ultimately fails is in a lack of moral courage. The inspector general took the easy way out. While insisting that the FBI should have given higher priority to the clearing of detainees, he made no effort to show whether it could have, given the massive demands placed on the agency in the months following the attacks. More narrowly (but just as important in the short run), the inspector general’s office is to be faulted for the broad condemnatory “spin” present in its own six-page press release. It is not surprising that an overly simple and critical morality tale has already become the prevailing interpretation of the (largely unread) document.

IMMEDIATELY after the 9/11 attacks, the FBI received tens of thousands of leads to be investigated. In the course of sifting through this avalanche of information, FBI agents came into contact with 762 individuals who had violated immigration laws. These people were arrested and turned over to the INS. The legality of their detention has never been called into question; the vast majority of them were eventually deported.

A key decision was made to “hold until cleared” all of the immigration violators arrested in connection with the 9/11 investigation. The FBI clearing process took longer than expected, and consequently many of the detainees (at least 565 of them–197 were released on bond) were held longer than usual. On average, it took the FBI 80 days to “clear” a detainee.

The treatment of those detained varied enormously, depending on where they were held. Almost two thirds were held in or near New York–400 at the Passaic County Jail in Paterson, New Jersey, and 84 at the MDC in Brooklyn. While detainees at the Passaic County facility were well treated, those at the Brooklyn MDC were not.

By characterizing the government’s performance as a whole with reference to the failings at the Brooklyn MDC, the civil libertarian critique of the government is in danger of exposing itself for a kind of reverse-McCarthyite fear-mongering. The standard line of these breathless critics–that “the government” held 762 detainees for “months” who did not know the charges against them, did not have access to lawyers, and suffered abuses at the hands of prison officials–is a gross distortion of the truth.

Although the treatment of detainees at the Brooklyn MDC is the most immediately disturbing portion of the report (and the source of any civil liberties violations), the question of the FBI’s delay in clearing detainees is at least as important. An unnecessary delay, in jail, of 80 days (and in a few instances as long as 6 months) is a considerable disruption of a person’s life. The question is whether, first, the “hold until cleared” policy was justified, and, if so, whether the FBI could have been expected to clear these detainees faster.

The “hold until cleared” policy was a natural consequence of the government’s broader security concerns in the months following the 9/11 attacks. David Laufman, chief of staff to the deputy attorney general, states the issue with useful simplicity: “If we turn one person loose we shouldn’t have, there could be catastrophic consequences.” In the wake of September 11, the attorney general had publicly stated that law enforcement would be reoriented to put the prevention of terrorist activity above all other concerns.

Given this broad background of (seemingly uncontroversial) governmental purposes, something like a “hold until cleared” policy is unobjectionable. Indeed, the inspector general’s report never directly calls this formative decision into question and on several occasions explicitly agrees with the attorney general’s “understandable abundance of caution.” But this is a crucial dividing line. If the broad policy of better-safe-than-sorry was sensible, then so was the “hold until cleared” policy. And if this was sensible, then at least some additional delay in the release of detainees was unavoidable.

Unless–unless the FBI could have implemented the “hold until cleared” policy much faster, clearing detainees in, say, a couple of weeks instead of 80 days. But a signal failing of the inspector general’s report is its judgment that the FBI should have moved faster without any effort to address the question of whether it could have.

There is indeed in the report itself an abundance of evidence to suggest that the 80-day delay, while undoubtedly a cause of difficulty for the individuals suffering through it, was the result of an extraordinary set of circumstances that no police organization could have faced without letting slip some if not many of the balls it was forced to juggle. The FBI, having to reorient its entire mission and reassign agents to new and unfamiliar tasks, had to devise new policies (like “hold until cleared”) on the fly. Following up on hundreds of thousands of 9/11 leads (96,000 came in the first week alone), the FBI struggled with widely reported manpower shortages. The clearance process, complex and time-consuming, was not something that could be turned over to other law enforcement agencies. Moreover, soon the 9/11 investigation was compounded by related challenges: the anthrax scare, an airliner crash in Queens, the kidnapping of Daniel Pearl, security preparations for the Winter 2002 Olympics in Salt Lake City. In this context, it is crucial to note that 86 percent of the 762 detainees were arrested in the first three months after 9/11.

Was the 80-day delay avoidable? Strictly speaking the answer is of course yes. If the FBI had assigned more agents to clearing detainees they would have been cleared faster. But the inspector general’s report has not done the kind of full analysis needed to justify the broad criticisms it makes of the FBI’s performance. For example, it makes no attempt to analyze authoritatively the FBI manpower situation.

THE INSPECTOR GENERAL’S report does a better job of treating the two prison facilities, though here too critics have distorted its results. The crucial point is that the vast majority of detainees were well treated. As to the Brooklyn facility, policy decisions that isolated and restricted the 9/11 detainees beyond what was justified might to some extent be mitigated by the Brooklyn MDC’s inexperience in handling INS detainees. But other abuses suggest that even these general policy decisions were the product of something worse than mere bureaucratic inexperience and ineptitude. For months, the lights in detainees’ cells were kept on 24 hours a day. Required to inform detainees of their right to an attorney, prison guards would instead ask only, “Are you okay?” There is no reason to doubt the inspector general’s conclusion that there was a “pattern” of verbal and physical abuse of detainees at the Brooklyn MDC facility.

But the treatment of these 84 is not indicative of the treatment of the rest of the 762. At the Passaic facility, which held 400, even the detainees said they were well treated. Prison officials there provided detainees with lists of pro bono attorneys and showed a video detailing their rights. The American Friends Service Committee was permitted to make “Know Your Rights” presentations to the detainees over the course of several months. Telephones were freely available to detainees for contacting lawyers, family members, and friends and for arranging visits (which were permitted). When pro bono attorneys would not accept collect calls, officials let the detainees use prison phones free of charge.

This is hardly a picture of authoritarian indifference to civil liberties. The Brooklyn MDC facility was probably ill-suited to the task of holding immigration detainees and clearly failed to treat these individuals in a humane way, but responsibility for the abuses that took place there lies squarely on the shoulders of those responsible for running that institution. When seen in the context of conditions at the Passaic County Jail, the Brooklyn MDC appears an anomaly and not an indication of systemic failure.

One other important fact that emerges from the report is the lively debate within the government over detainees’ civil liberties that took place during the months following the September 11 attacks. At an institutional level, the INS called on the FBI to clarify procedures and to address delays in clearing detainees; officials at the Department of Justice often had to craft some compromise between the differing legal and institutional mandates of these two agencies responsible for implementing government policy. The Office of the Inspector General was itself a player in this debate. Charged (under the USA Patriot Act no less) with responsibility for civil liberties violations, the Office of the Inspector General launched its investigation in March 2002. The office asked probing questions of every important official involved, and there is no indication in the report that those responsible ever tried to hinder or stonewall its investigation. The report does not describe an administration bent on abusing the civil liberties of noncitizens. It shows instead a necessarily messy but unflinching living-out of the tensions between liberty and security that any government would have faced under the circumstances.

But it is ultimately up to the administration to make the case for itself. If there is one civil libertarian criticism that has a ring of truth to it, it is that the government is overly secretive and defensive about its exercise of authority. This report is an excellent illustration of how the government needlessly feeds the paranoid conspiracy theorizing of its critics. The report reveals an eminently defensible record–not spotless, but certainly defensible.

In the debate between liberty and security the government needs to go beyond wrapping itself in the mantle of security. Such a posture (though probably popular with voters) has grave limitations. The ownership of the liberty card by the government’s opponents (as suggested by their ownership, thus far, of this report) is the price the administration pays for not launching its own liberty offensive.

Thomas Powers teaches constitutional law at the University of Minnesota, Duluth.