SUGGESTED QUESTIONS FOR PANEL THREE:

PREVENTIVE DETENTION: USE OF IMMIGRATION LAWS

AND ENEMY COMBATANT DESIGNATIONS TO COMBAT TERRORISM

Designated Commissioners: Hamilton and Thompson

BACKGROUND

This panel focuses on two aspects of the Commission's charge to evaluate the lessons learned
with respect to the government's policies and procedures in responding to the September 11
attacks: (1) the arrests and detentions of approximately 750 foreign nationals on immigration law
violations in connection with terrorism investigations following the attacks; and (2) the detention
by the Department of Defense in the U.S. of two U.S. citizens, and Guantanamo of non-citizens.
(The government also detained over forty individuals on material witness warrants and arrested
others based on federal criminal laws, and state and local laws. The arrests include legal
permanent residents and U.S. citizens who were Arab or Muslim or married to someone of
Middle Eastern descent.)

• Foreign civil detainees. Shortly after September 11, 2001, federal law enforcement
authorities, with the stated goal of preventing further terrorist attacks here, began detaining
Arab and Muslim foreign nationals in what was to become a series of four initiatives: (i)
using violations of the immigration laws to detain foreign nationals with possible connections
to or information about terrorism, including the September 11 attacks; (ii) a Voluntary
Interview Program; (iii) an Absconder Apprehension Initiative; and (iv) a call-in Special
Registration program, followed by the National Security Entry-Exit Systems (NSEERS).
This panel will focus primarily on the first of these, the so-called "September 11 Detainees."

• Non-citizen and U.S. military detainees. Approximately 600 citizens of 43 nationalities are
held at Camp X-Ray, Guantanamo Bay, Cuba. Jose Padilla, a U.S. citizen, was arrested May
8,2002 upon his return from Pakistan, in connection with an alleged plot to use a
radiological bomb within the United States. President Bush ended Padilla's initial detention
by signing an order declaring him an "enemy combatant" and transferring him to Department
of Defense custody. Yasir Hamdi, captured in Afghanistan, was transferred from
Guantanamo to a Naval brig in South Carolina when it was discovered he was a U.S. citizen,
born in Baton Rouge, Louisiana.

Status of the civil foreign detainees. Of the 751, over 500 have been deported. The Department
of Justice Inspector General issued a critical report about the mistreatment of this population.

• The IG's report describes an administrative detention process by which federal authorities
held people who had violated the immigration laws—either by overstaying their visas, by
illegally entering the country, or some other immigration violation—until they were
"cleared" by the FBI of terrorist connections. They were held for extended periods without
having formal charges brought against them. Bond was denied without individualized
determinations. Some were held as material witnesses without charges for lengthy periods,
and then charged with immigration violations. Some were not deported within the 90 day
 apparent statutory deadline—even when they requested to be deported - because they had
not been "cleared." Their ability to obtain legal counsel and communicate with their families
was curtailed, thereby limiting their ability to contest deportation. Some were subject to
mental and physical abuse.

Status of military detainees. The Supreme Court has accepted a case to determine whether
persons held at Guantanamo are to be regarded as within the jurisdiction of U.S. courts for
purposes of filing a habeas petition. The government asserts the authority to arrest and
incarcerate indefinitely anyone, including a U.S. citizen, whom the President labels as an enemy
combatant. Only limited habeas corpus review is accorded. The two U.S. citizen military
detainees are the subjects of pending cases in federal appellate courts.

QUESTIONS

CIVIL DETAINEES

Length of Detention/Congress' Role. Federal authorities have not used the terrorist-specific
tools Congress provided in the PATRIOT Act amendments to the immigration laws establishing
lengths of time for which to hold without charge foreign nationals who may have terrorist ties. A
Department of Justice Inspector General report found that some foreign nationals were held for
over one month without charges being brought against them.

• Before Sept. 11: INS regulations required that a determination about whether to charge a
foreign national be made within 24 hours of their arrest. There was no statutory requirement
for when formal charges actually had to be brought following that determination. The law
required that a person be removed within 90 days after their final order of removal by an
Immigration Judge. Immigration law provided for mandatory detention for persons in
removal proceedings based on their having criminal convictions or on terrorism grounds.

• After Sept. 11: On Sept. 17, INS regulations were changed to permit charging within 48 hours
or within an additional "reasonable period of time" based on emergency or other
"extraordinary circumstances." No record is kept of these charging determinations. Many
detainees were held for longer than 90 days after their final orders of removal had been
entered.

• USA PATRIOT Act: Provides for mandatory detention for a foreign national whom the
Attorney General chooses to certify as a national security danger. The Act requires the AG
to either initiate removal proceedings or charge the person criminally within 7 days of their
arrest; thereafter, if the person is found removable, but removal "is unlikely in the reasonably
foreseeable future," the AG can continue to detain the person for additional six month
periods based on a certification by the Attorney General; the Act preserves habeas corpus.
The AG has stated that although numerous persons subject to this provision have been
detained since September 11, the AG has not used this provision because "traditional
administrative bond proceedings have been sufficient to detain these individuals without
bond."
1. Has the federal government overemphasized the use of the immigration system as a
counterterrorism measure? What are alternative investigative strategies?

2. What steps should be taken to strengthen relations between the Muslims and Arabs in the
U.S. and our law enforcement agencies?

3. Has our treatment of Muslims in the U.S. following September 11 contributed to a

perception that the U.S. is profiling Muslims and fighting a war against Islamic culture?
Has it given propaganda advantages to Al Qaeda and other terrorist enemies and
contribute to their ability to recruit?

4. One of our great advantages and strengths as a nation is our openness to the world and to
people of all nationalities and cultures. What can we do through our immigration policy
to actively promote cultural exchange, education, and economic activities that serve our
national interests in the world?

5. One of the side-effects of increased security after September 11, was a significant
decrease in the number of refugees we have admitted to this country. What do you think
can be done to return our refugee admissions to previous levels? (Martin and Ting are
experts in this area.)

6. Did the Justice Department violate any laws in its lengthy detentions of the September 11
detainees without charges or after their final orders of removal had been entered?

7. During a time of crisis is it acceptable to detain a foreign national for long periods of time
without charging them?

8. Did Congress in passing the PATRIOT Act intend to limit the AG's authority to hold
people without charges for longer than 7 days? What authority does the government
have to create a non-statutory exception like the vague "emergency or other extraordinary
circumstances" that eliminates any time limit on how long someone can be held prior to
being charged?

9. Is it acceptable to leave in the virtually unreviewable discretion of the AG the

determination of for how long a foreign national may be held without formal charges
being brought, or should the AG be required to follow the new rules established by
Congress?

10. Would the PATRIOT Act's 7 day detention provision—if it were applied to all detained
foreign nationals, not just ones certified by the AG—strike the right balance between
liberty and security?
Different rules for U.S. and foreign citizens? The Justice Department IG found serious abuses
in the treatment of foreigners detained in connection with the investigation of the attacks ~ long
periods of detention without charges or after proceedings were completed, lack of access to
counsel and family, and physical abuse.

1. Does the constitution set up a different legal standard for the treatment of foreigners
in our system of justice? Should it?

Legitimate immigration law enforcement? The IG found that in the cases they examined
closely, the FBI and INS arrested the foreigner based on real violations of the immigration laws
that subjected them to removal from the U.S. But since the IG also reported that many were
effectively denied counsel, it is hard to know if there might have been a basis to contest removal.
Many of the foreigners had immigration violations that would not typically have resulted in their
being detained before September 11.

1. During a time of crisis, it is acceptable to have a different standard for what constitutes a
detainable immigration offense? What if the standard is that they are Muslim and out of
immigration status, and that is all? Would this not be pure religious profiling?

2. If we were to increase the rate of immigration detentions and removals, how would we
prioritize who ought to be removed in order best to reduce the risk of terrorist attacks?

3. Has the federal government overemphasized the use of the immigration system as a
counterterrorism measure?

4. What steps should be taken to strengthen relations between the Muslims and Arabs in the
U.S. and our law enforcement agencies?

Strategic value as "preventive" counterterrorism? Of the about 600 people who had closed
hearings because they were deemed of special interest, none were charged with terrorism
violations, although some of these may have actually been deported based on their terrorist ties.
The Department of Justice has vigorously defended its actions as part of its new mission to
prevent another terrorist attack, as well as to investigate the September 11 attacks. Law
enforcement has always had a deterrent purpose. Prosecutors select charges that will convey a
message to other potential criminals. For example, investigators arrest active violent gang
members for minor offenses to stop violence from escalating. Investigators typically will arrest
conspirators before the bomb goes off, as they did when they arrested individuals plotting to
bomb New York's landmarks in 1993. Preventive strategies, however, do not typically include
rounding up large numbers of people not known to be a threat.

1. Based on the information available, do you think that the mass arrests and extended
detentions were effective preventive law enforcement and helped prevent another terrorist
attack?

2. Has our treatment of Muslims in the U.S. following September 11 contributed to a

perception that the U.S. is profiling Muslims and fighting a war against Islamic culture?
 3. Has it given propaganda advantages to Al Qaeda and other terrorist enemies and
contribute to their ability to recruit?

4. One of our great advantages and strengths as a nation is our openness to the world and to
people of all nationalities and cultures. What can we do through our immigration policy
to actively promote cultural exchange, education, and economic activities that serve our
national interests in the world?

Secret arrests and closed hearings. The Department of Justice has kept secret the names of
those arrested in the first few months of the attacks. The Chief Immigration Judge upon order of
the Attorney General also issued a blanket order closing all deportation hearings of these
individuals. Since the first wave of arrests, government officials have revealed the name of a
number of new detainees.

1. What is the argument for a blanket closure of the names and case status of those arrested
in the first wave of arrests following September 11?

2. How is the circumstance of a potential informant different from mob informants whom
we try openly but whose role as a confidential informant is kept secret?

3. If a prosecutor can go to court and make a compelling showing that in a particular case an
individual's name should not be released, and that the proceedings involving him should
be sealed, is there a need for blotting out all information about the existence of all of the
immigration cases?

Torture and other human rights violations. International human rights law limits the
deportation of people who face grave human rights violations upon return. Article 3 of the
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
prevents the U.S. from returning people who may face torture if deported to their countries of
origin. The U.S. is committed to adhering to this bar.

1. The Convention Against Torture and other human rights agreements do not provide clear
guidance on what the U.S. should do if the government seeks to deport someone who
may pose a danger to this country or to other countries because of terrorist ties but who
faces torture if returned. What do you think should be done?

MILITARY DETAINEES

Non-U.S. citizens held at Camp X-Rav. Guantanamo Bay

1. The Supreme Court has accepted a case to decide whether U.S. courts have jurisdiction to
hear a claim filed by a foreign detainee held by our military in Guantanamo Bay, Cuba. Do
you think the answer is yes or no?
2. If the Supreme Court decides that there is jurisdiction, what relief would detainees seized in
Afghanistan be entitled to and on what grounds? Would they be entitled to more than what
they are accorded under the Geneva Convention—a hearing on the battlefield by three
officers establishing that they are combatants?

3. If the individual detained by the military is not a member of the Taliban's military forces, but
is an Al Qaeda operative living in Afghanistan, who did not fight for the Taliban, does that
exclude him from the protections of the Geneva Convention?

U.S. citizens arrested in the U.S.

4. If the government argues that it can arrest Mr. Padilla at the airport in Chicago, and designate
him an enemy combatant and detain him in a military prison, does this imply the military
could have decided instead to simply shoot him at the airport?

5. If Mr. Padilla is entitled to a hearing, should it be in a civil court or a military court?

U.S. citizens seized upon or near the battlefield in Afghanistan

Yasir Hamdi's father has filed a case on Hamdi's behalf, challenging his detention. The
government maintains he is a POW, and although entitled to file a habeas petitions, he is not
entitled to a lawyer. The case is pending in the 2d Circuit Court of Appeals.

6. Are all U.S. citizens entitled to some due process? Under U.S. law? International law?

7. If so, and a U.S. citizen is found on or near the field of battle, what kind of process do you
have to give him? Should he be given a military hearing under Article 5 of the Geneva
Convention? Should he be permitted to review the Article 5 determination in an Art. 3
court?

8. Are all U.S. citizens entitled to due process in a non-military tribunal, no matter what the
circumstances of their apprehension?