In the days and weeks after the terrorist attacks of September 11, 2001, each time Attorney General John Ashcroft made a public appearance he would preface his remarks by announcing how many “suspected terrorists”—many of them foreign nationals picked up on minor immigration violations—the government had detained. By early November, just seven weeks after the attacks, the official number stood at 1,182. Ashcroft’s message was clear. The Justice Department had matters under control, and was preventing another attack by keeping more than one thousand suspects off the streets.
In June 2003, the Justice Department’s inspector general issued an extensive report on the federal government’s treatment of immigrants locked up as “suspected terrorists” following September 11. The report found that in the first year of the investigation of September 11, more than seven hundred foreign nationals had been swept up, often on no charges at all, and placed in preventive detention under immigration law auspices. By order of Attorney General Ashcroft, their identities were kept secret. Also by order of the attorney general, more than six hundred of those detained were tried in secret immigration proceedings, closed to members of their families, the public, the press, and even members of Congress. The prisoners were initially held incommunicado, and thereafter limited to one phone call per week. At the Metropolitan Detention Center in Brooklyn, where eighty-four of the prisoners were kept, guards tried to deny them even that right by treating an affirmative response to the question “you doing all right?” as a waiver of their right to make their weekly phone call.
Immigration law permits detention of foreign nationals while they await the outcome of their deportation proceedings, but generally only if there is evidence that they are dangerous or pose a risk of flight. The government lacked such evidence about most of those rounded up on immigration charges after September 11, so it contrived various strategies for delaying the hearings that would reveal how little evidence it had. When detainees were able to get hearings, and immigration judges started ordering some released, Ashcroft issued a regulation permitting his immigration prosecutors to keep detainees in prison despite the judge’s release order, simply by filing a notice of appeal—without regard to whether the appeal had any merit. (Several federal courts have since declared that regulation unconstitutional.) When many of the immigrants agreed to leave the US, the Justice Department refused to let them go, keeping them locked up for months without any legitimate basis in immigration regulations while the FBI apparently tried to satisfy itself that they were not terrorists. Many detainees were brutally beaten. Today not one of these over seven hundred detainees stands convicted of a terrorist crime.
The inspector general’s report of 2003 was a strong indictment of “the Ashcroft raids.” It found not only deliberate and systematic abuses of basic human rights, but also that the sweeps had done nothing to further our security. What was Ashcroft …