Yesterday’s papers carried news of the Justice Department Inspector General’s report “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 attacks.” Here is the Washington Post story on the report, with a link to the PDF version of the report.
Tomorrow’s Star Tribune carries an editorial on the report: “Shameful / FBI, INS abused Sept. 11 detainees.” I’ve been reading the report as time permitted over the past two days, and my sense is that the Strib editorial is based on the Post’s editorial yesterday, “In denial on detention,” rather than a reading of the 198-page report itself.
I am not an expert on the substantive legal issues addressed by the report and ask you to take the following comments with that necessary grain of salt. I state with confidence, however, that it is nearly impossible to understand the issues based on the news accounts of the report. The news accounts of course highlight the report’s dramatic findings of abuse and mistreatment of September 11 detainees. Buried beneath the surface of these accounts is the limited nature of the scope of the issues in dispute.
The report addresses the situation of 762 post-September 11 detainees. Every one of these detainees was either inadmissible to the United States or was deportable by virtue of immigration violations, and 505 of the 762 have in fact been deported. The report does not find that any one of the 762 was improperly arrested; the report does not find that any one of the 762 was improperly detained following his arrest. Rather, in perhaps the most serious finding of wrongdoing, the report finds that before January 2002 the government illegally continued to hold some detainees after they had received final removal orders or voluntary departure orders pending FBI clearance investigations.
Deputy Attorney General Larry Thompson responded to a draft of the report. He wrote that the period after the September 11 attacks was one of tremendous intensity, as the Departmentwas required to alter its central mission in order to prevent further acts of terrorism; his staff was required to respond , in a crisis atmosphere, to hundreds of novel legal issues; had to shoulder a monumental task and an enormous workload; and had a great number of other responsibilities during this period as part of a comprehensive effort to protect the United States from further acts of terrorism.
The report quotes Thompson (at page 109) as follows: “The detention of those illegal aliens suspected of involvement with terrorism was paramount to that mission. My staff understood that the immigration authorities of the Department should be used to keep such people in custody until we could satisfy ourselves – by the FBI clearance process – that they did not mean to do us harm.
“Given those circumstances, I respectfully submit that it is unfair to criticize the conduct of the members of my staff during this period. In light of the imperative placed on these detentions by the Department, I would not have expected them to reconsider the detention policy in the absence of a clear warning that the law was being violated. It is clear in the Draft Report that this did not occur until January 2002. When the issue was squarely presented, it is apparent that they promptly did the right thing; they changed the policy.”
Perhaps the native good sense of the American people has caused them to intuit the common sense underlying Thompson’s statement. It is otherwise difficult to explain the general lack of public interest in the report despite the best efforts of the elite media to whip up a storm.
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