U.S. Commission on Civil Rights

Civil Rights Concerns in the Metropolitan Washington, D.C., Area in the Aftermath of the September 11, 2001, Tragedies

Chapter 5

Implementing the USA Patriot Act of 2001: Civil Rights Impact

Panel Three looked in more detail at the implications of specific government policies and practices instituted after September 11, 2001. Several developments in the fall and winter of 2001 and the spring of 2002 alarmed civil rights advocates.[1] Within days of the attacks, the federal government began to pick up and detain men of Middle Eastern and South Asian descent in a nationwide dragnet, and by November 5, 2001, the U.S. Department of Justice (DOJ) announced that 1,147 people had been detained. The Justice Department refused to provide the most basic information, even to detainees families, about who had been arrested, on what basis, and where they were being held. The detainees included U.S. citizens and legal residents as well as visa holders.[2] In December 2001, a coalition of civil liberties organizations filed a lawsuit seeking the release of information about the detainees.

Sweeping antiterrorism legislation known as the USA Patriot Act was rushed through Congress and signed into law on October 26, 2001. It gave the government broad new powers to detain noncitizens indefinitely and to conduct searches, seizures, and surveillance with reduced standards of cause and levels of judicial review, among other provisions. In addition, on October 31, 2001, the Justice Department published a new regulation allowing the government to eavesdrop on communications between attorneys and their clients without a court order.

Meanwhile, the Justice Department was also using the regulatory process to effect radical changes in the nation's immigration policies and enforcement practices, leading to the use of immigration law as a basis for picking up thousands of individuals and holding them in custody.

On November 9, 2001, Attorney General John Ashcroft announced a plan to interview 5,000 foreign men, ages 18 to 33, who had entered the United States from specified countries after January 1, 2000. The Justice Department directed state and local law enforcement to conduct the interviews, in which the men were questioned about their activities, studies, and travel, and asked to provide telephone numbers of their friends and relatives. While calling on the men to come forward for the voluntary interviews, the government also said that those questioned might be held without bond if investigators developed an interest in them or deported if they had violated immigration laws.

On November 13, 2001, President Bush issued a military order allowing the government to try noncitizens accused of terrorism-related charges in military tribunals, which lack many constitutional protections, rather than civilian courts.

On March 20 21, 2002, teams of federal agents headed by the U.S. Customs Service swept through Muslim homes, businesses, schools, and organizations in Northern Virginia in a series of raids known as Operation Green Quest. The raids frightened and angered the Muslim community as agents broke down doors, handcuffed people, and seized personal property ranging from computers to children's toys. The government maintained that it was searching for evidence of financial flows to terrorists abroad, but Muslim groups vehemently denied such links and protested the tactics used by the agents in conducting the raids.[3]

Speakers on Panel Three included representatives of law firms and civil liberties groups, who discussed the problems faced by affected individuals, including their clients. Other speakers included representatives of the U.S. Department of Transportation and the U.S. Department of Justice.[4] Among the major points made by the speakers:

Laura W. Murphy
Director, Washington office, American Civil Liberties Union

The USA Patriot Act gives extensive new enforcement powers to the federal government. Most of its provisions apply to all federal investigations, not just those related to terrorism. In fact, September 11 gave the government an excuse to ram through a series of proposals that federal law enforcement had unsuccessfully sought for years to bolster routine drug cases and other nonterrorism investigations. Many provisions that Congress rejected when it considered antiterrorism legislation in 1996 subsequently reappeared in the USA Patriot Act.

Under the USA Patriot Act, sensitive information about U.S. citizens obtained through grand jury investigations and wiretaps can be disclosed to intelligence agencies without judicial review.[5] Sneak and peak warrants allow government agencies to conduct searches without telling the subject, so you can't assert your due process and Fourth Amendment rights.[6] The law makes it easier to compel private parties to release documents, including student records and personal financial records, and the government has broader powers to monitor Internet usage. There really isn't meaningful judicial review on many provisions of this law.

The immigration provisions of the act are also very expansive. The attorney general can detain a noncitizen merely because he believes the person may be a threat to national security. A group of us who lobbied on the bill were able to get a reduction in the amount of time the attorney general can detain a noncitizen, but the administration has essentially ignored these restrictions in carrying out detentions since September 11.

The administration has also done other things of concern since the USA Patriot Act was enacted. It has issued regulations allowing government agencies to eavesdrop on attorney-client conversations without going to court to get a warrant. This applies to anyone in federal custody, not only those related to the September 11 investigation.

The government has also issued a military order calling for military tribunals for those detained in connection with September 11. Moreover, they are asserting the right to detain noncitizens at Guant namo indefinitely even without bringing them before a tribunal, and to continue to detain people who have been acquitted by a tribunal.[7] So the government is flouting some provisions of the USA Patriot Act in its treatment of the detainees at Guant namo. We have to fight hard to make habeas corpus available to people in custody under the USA Patriot Act; there is a strong feeling in Congress that habeas affords detainees the opportunity to bring frivolous claims, and we very much disagree with that.

In the current environment, the courts are unlikely to strike down the USA Patriot Act. So we have to look at cases where the law is applied in a way that violates constitutional rights, but this is difficult because much of the information the government is using is considered classified. Judges are reluctant to go up against the government when the government says it has classified information that provides a reason to detain an individual. So, we are engaged in painstaking litigation around detention policies under the Freedom of Information Act, but the attorney general has said he will deny FOIA requests that pertain to September 11. The constant allegations that future terrorist acts are being planned make it very difficult to get any provisions of the Patriot legislation repealed; it will require a long-term effort to bring pressure on Congress. We want the United States to be safe but also to maintain its liberties.

Before September 11 we were making tremendous headway toward repealing the secret evidence provisions of the 1996 antiterrorism law, but this progress came to a halt after the attacks. Also, Congress was poised to pass antiracial profiling legislation, a bill that was developed with the input of civil liberties organizations, but that effort was also derailed and profiling is now being done much more. People are singled out, especially at airports and borders, because they are immigrants, have foreign-sounding names, are dark skinned, look foreign, or look like Muslims. This includes Sikhs because police can't tell the difference.[8]

Malea Kiblan
Immigration attorney, Kiblan & Battles

I have been retained by the Embassy of Saudi Arabia to secure legal assistance for their nationals who have been detained. Probably more than 2,500 people have been detained since September 11; their families and friends have reported them missing. Even now, I am not sure whether we know all their names, as the government will not confirm the identities of those in custody even to their attorneys. That is clearly interference with the individual s right to counsel.

Some regulatory changes made by Attorney General Ashcroft are even more alarming than the provisions of the USA Patriot Act. Many people are being detained on extremely technical immigration visa violations, and immigration judges will not release a person so long as the FBI expresses an interest in that individual. For example, in one case a student who forgot to sign an I-20 immigration form was picked up and has been in detention for six weeks. In its statement to the immigration court arguing to keep the young man in custody, the FBI says it has been unable to rule out the possibility that he is somehow linked to or possesses knowledge of the terrorist attacks. If that doesn't suggest to you that people are being assumed guilty until proven innocent, I don't know what will. There is absolutely no allegation of any concrete fact that would relate this student in any way to the events of September 11.

In other cases, students fall out of status when they transfer schools and the paperwork is not done properly. People are being picked up on technical traffic violations as well. Bonds are being set very inconsistently.

I'm not as concerned about singling out young men from the Middle East for extra scrutiny at airports, but I am concerned about the large net cast by the so-called voluntary interviews, and about holding people in custody on technical visa violations. This is only being done to people who are Arab or Muslim profiling of the worst sort.

Immigration proceedings are being conducted behind closed doors, closed to the public, with no reason given.[9] The attorney general also has promulgated a new regulation that says detention facilities cannot release any information about the detainees who they are or where they are being held. Some people are being held on material witness warrants with no evidence that they know anything about September 11. Also, people are being shuttled back and forth, from a material witness warrant to criminal charges to an INS warrant, in order to keep them in detention. Judges are reluctant to release someone when the government says it has classified evidence that the person is a threat to national security, even though no evidence is presented.

The attorney general is asking people to come forward for voluntary interviews with the FBI and then, when they do, arresting them for minor visa violations or charging them with lying.[10] That doesn't encourage voluntary compliance. Some of the supposed false statements may actually be due to misunderstandings or translation problems.

As an Arab American I recognize that the government has an obligation to protect us after what happened on September 11, and that task isn't easy for government officials. But the attacks had super devastating consequences for the Arab and Muslim communities in the United States, including people who are lawful permanent residents and U.S. citizens. All of us want to see the people responsible for September 11 brought to justice, but the government is implicating every single person of Arab or Muslim origin or belief, treating them as guilty unless they can prove themselves innocent. That is absolutely contrary to the American system of justice and the United States Constitution.[11]

Kelli M. Evans
Civil rights attorney, Rehlman Associates

My firm is currently representing four individuals who were removed from flights following September 11, not for any legitimate security reasons, but because of their Arab appearance.

In order to be effective, an airline security system must avoid bias and stereotyping. Bias may cause you either to read too much into innocent behavior or, alternatively, to ignore behavior that is objectively suspicious. Bias may explain why Richard Reid, a non-Arab man with explosive devices protruding from his shoes, was allowed to board a plane despite his erratic behavior and unusual travel patterns, while law-abiding individuals have been removed from flights.

Airline discrimination is not as bad as hate crimes or detentions, but it is more widespread and is feared by millions of law-abiding Americans who want to travel by air. We've fielded calls from Americans of all backgrounds who have been discriminated against by airlines since September 11 because they appear to be Arab. Some were not allowed to travel solely because airline employees or passengers were uncomfortable having them on board. Some were moved to seats in the back of the plane. In some cases, they were detained by law enforcement.

Discrimination has a chilling effect on entire communities. It does not make us safer because a security profile that relies on race or ethnicity casts too wide a net and distracts attention from more accurate predictors, such as travel patterns and behavior.

Some people have suggested that Federal Aviation Administration (FAA) regulations permit the pilot to bar someone from a plane for any reason, but this is incorrect. Various laws and regulations prohibit airlines and their employees from discriminating against individuals on the basis of race, ethnicity, national origin, or religion. These laws include 42 U.S.C. 1981 (1994), which prohibits racial discrimination in contracts and has been held to apply to airline discrimination, as well as numerous specific laws relating to air travel.

The U.S. Department of Transportation has issued fact sheets since September 11 clearly stating that singling out Arab, Middle Eastern, South Asian, and Muslim people because of their ethnicity or religion is unlawful.[12] However, these laws are not being adhered to by the airline industry.

There is a continuing lack of standardized security policies, procedures, and training for airline pilots and flight crews. Because of this, there are as many different airline security systems as there are planes in our skies. After September 11 Congress passed the Aviation and Transportation Security Act, directing the FAA in consultation with the new Transportation Security Administration (TSA) to give airlines detailed guidance, and requiring the airlines to develop programs to train their employees in security procedures.[13] It is essential that these new security policies and procedures address civil rights concerns. The government should require the airlines to develop written policies for how they will do this.

In sum, the Department of Transportation has unequivocally confirmed that discrimination based on race, ethnicity, national origin, and religion is illegal, but the airlines have failed to convert this guidance into operational policy and procedure. The FAA and the TSA should ensure that the airlines train their pilots and flight crews on these policies. We can and must make air travel safer without compromising America's values of equality and fair treatment.[14]

Raj Purohit
Legislative counsel, Washington office, Lawyers Committee for Human Rights

In the months after September 11, more than 1,100 people were detained, mostly Arab and Muslim men. The authorities have refused to disclose their identities and places of detention, leaving families and advocates to struggle for information about those still in custody, as well as about the many who have been deported. As of April 12, 2002, more than 300 remain in custody. The majority of the detainees were held on immigration violations, primarily visa overstays, which the INS would not have prosecuted before last September.

Even in the face of the devastating terrorist attacks, there has been opposition both inside and outside the government to proposals to curtail civil rights, which has lessened the negative content of some of these measures.

The USA Patriot Act grants unprecedented new powers to the attorney general to detain noncitizens whom he certifies as a threat to national security, with minimal judicial review or due process safeguards. Civil rights organizations did succeed in adding a number of limitations to the bill. For example, the attorney general's certification of someone as a security threat is subject to judicial review, which may be sought in any federal district court. After seven days of detention, the government must either charge a detainee with a crime, initiate deportation, or release the person. The certification of a person as a suspected terrorist must be reviewed by a federal court every six months and either renewed or revoked. However, even these safeguards do not provide adequate protection against arbitrary detention. For instance, the seven-day limit on detention without charge is longer than the standard required by international law. And after the seven-day period, the risk of detention and deportation remains for those ordered deported but who in practice cannot be returned to their home countries.

A key concern is the evidentiary threshold for certifying someone as a threat to national security. There are disturbing indications that the attorney general can rely heavily on secret evidence in making such determinations, which will be impossible to challenge in a review procedure. The law provides no guidance to the attorney general on procedures to follow in certifying someone as a suspected terrorist, nor to the courts regarding evidence they should consider in reviewing the certification.

While authority for long-term detentions was one of the most controversial issues in the debate on the USA Patriot Act, even before the law's adoption the government was already using new immigration regulations to detain noncitizens. New INS regulations issued in September 2001 allow noncitizens to be held without charge for 48 hours and longer in the event of extraordinary circumstances, which are left undefined.[15] These INS regulations go well beyond the provisions of the USA Patriot Act. This is one of the most troubling aspects of the investigation by DOJ. Detainees are being held on immigration violations but interrogated by the FBI about criminal-related matters; yet because they have not been charged criminally, they have no right to a lawyer.

There should be public discussion about critical issues such as how many people are in custody and for how long; have the detainees been certified as terrorists; what is the basis for the long-term detention of individuals without charge; and what is the reason for prolonged detention even after a deportation order has been granted.[16]

Paul K. Martin
Counselor, Office of the Inspector General, and acting special counsel for civil rights/civil liberties, Department of Justice

The Office of the Inspector General investigates complaints of civil rights or civil liberties abuses by U.S. Department of Justice employees, including those in the FBI, the INS, the Bureau of Prisons, and others. It is an independent entity within the Justice Department that reports both to the attorney general and to Congress. The USA Patriot Act, Section 1001, directs the Office of the Inspector General to (a) receive and review complaints of civil rights or civil liberties abuses by DOJ employees; (b) advertise on the Internet and through the media to let the public know how to file a complaint; and (c) report to Congress twice a year on implementation of this particular section of the act.[17] The Patriot legislation did not expand the authority of the Office of the Inspector General; we've always had the responsibility to investigate civil rights or civil liberties allegations. An earlier House of Representatives version of the bill contained much broader language that would have given the inspector general in the Justice Department wide responsibility for investigating ethnic and racial profiling as well, but these provisions were deleted from the final bill.

To date we have received about 350 complaints related to activities under the USA Patriot Act, but the majority deal with state or local agencies or other federal agencies, not with Justice Department employees. Currently we have seven open investigations, most dealing with allegations of physical abuse. They are potentially criminal cases, but if we cannot substantiate the criminal charges we'll pursue them as administrative cases. We have also received complaints about verbal abuse by correctional officers, discrimination by the INS, including racial profiling, rude treatment by INS inspectors, inmates not being permitted to practice the Muslim religion, detainees being held without access to attorneys, unlawful or warrantless searches, and detainees not being permitted to observe Ramadan while in INS custody.

In addition to investigating individual allegations, the Office of the Inspector General plans to conduct inspections or audits that examine systemic issues that we're seeing. Several weeks ago we initiated a review of the civil rights and civil liberties protections that were afforded to detainees in Department of Justice custody after September 11. Specifically, we're looking at federal detainees housed in the Passaic County jail in Paterson, New Jersey, and at the Metropolitan Detention Center in Brooklyn, New York. Our review will examine the detainees right to counsel, the timeliness of presentation and disposition of charges, and physical detention conditions.

With respect to the advertising provisions in the act, we have conducted an active outreach program through the media to publicize the complaint procedure to potentially affected communities.[18]

Blane Workie
Trial attorney, Office of Aviation Enforcement and Proceedings, Office of the General Counsel, Department of Transportation

Three agencies within the Department of Transportation can receive complaints from members of the public who feel they've been discriminated against in air travel.[19] The newly created Transportation Security Administration handles complaints about the new federal security screeners. The Federal Aviation Administration investigates complaints against airport personnel, such as airport police. The Office of the General Counsel, which includes the Aviation Enforcement Office, receives complaints against air carrier personnel. We thoroughly investigate every complaint that we receive. However, we are statutorily limited in the remedies we can pursue.

Since September 11, we have received 30 complaints from persons alleging they were denied boarding or removed from aircraft because of their Arab, Middle Eastern, South Asian, Muslim, or Sikh appearance. We have also received 107 complaints of such discrimination by airlines prior to boarding. Most of the complaints were received before January 2002, so there has been a significant reduction in recent months.

The TSA is forming a federal security screening force whose preparation includes training in nondiscrimination. In addition to the screening at checkpoints, people can be selected at the ticket counter for additional security by CAPS, the computer assisted passenger screening system. The computer makes the selection based on predetermined criteria, which takes the subjectivity out of it.

Congress has mandated by statute that the new federal screeners hired and trained by the TSA be U.S. citizens. I understand that there is pending litigation on this issue.[20]

The enforcement office has reminded the airlines that federal law prohibits them from discriminating against passengers on the basis of race, color, national origin, religion, sex, or ancestry. We have also asked the major airlines to provide us information on all instances in which someone was denied boarding or removed from a plane since September 11, so we can compare that with the number of complaints we've received. We have met with representatives of the affected communities to hear their concerns, and we have done outreach in public forums to let people know how to file complaints. We haven't probed for violations using testers wearing headscarves, but this is a good idea that should be considered. We have done this kind of testing for passengers with disabilities I myself have been at an airport in a wheelchair, to see how disabled passengers are treated but we have not done it with respect to head coverings. I definitely do think it's a possibility.

We maintain a database where each new complaint is entered. Public perceptions of delay in responding to complaints may reflect the complexity of certain investigations, in which we have to interview many parties and it may take months or longer to close a case. But we can always advise complainants of the status of their case.[21]

Kathleen A. Connon
National external program manager, Office of Civil Rights, Federal Aviation Administration, Department of Transportation

The FAA Office of Civil Rights investigates complaints about airports and airport personnel. Airports receive federal monies, so they must abide by federal civil rights laws. Because the FAA has the power to withdraw grant monies, airports are usually quick to comply with whatever the FAA wants them to do.

There are currently only two complaints pending against airport employees for discrimination, and both airports are working with us to retrain their personnel. The reason there have been so few complaints coming to our office is that only a few of the personnel you see in airports, mainly airport police officers, are actually employees of the airport itself. The screeners at security checkpoints are not airport employees; until recently, they were employees of private security companies contracted by the airlines. Complaints about them go to the Aviation Enforcement Office within DOT.

We require airports to have a sign at each checkpoint advising travelers of their rights. We have also sent fact sheets identifying discriminatory practices to airports and required them to advise their employees of these practices.[22]

[1] A more detailed summary, ACLU Backgrounder: Chronology of the Assault on Civil Liberties Since September 11, is available from the American Civil Liberties Union.

[2] Statement of Kate Martin, director, Center for National Security Studies, before the Judiciary Committee of the United States Senate, 107th Cong., 1st session, on DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism, Nov. 28, 2001, <http://judiciary.senate. gov/te11280lf-martin.htm> (Jan. 4, 2002).

[3] Tom Jackman, Raids Held in Terror Probe, Washington Post, Mar. 21, 2002; Tom Jackman and Brooke A. Masters, More Sites Raided in Probe of Terrorism, Washington Post, Mar. 22, 2002; In Anti-Terrorist Raids, Issues of Tact and Tactics, Washington Post, Apr. 11, 2002; Brooke A. Masters, Va. Muslim Groups Want Property Back, Washington Post, May 3, 2002.

[4] Invitations were issued to several offices within the Justice Department in order to have panelists who could address the department's antiterrorism policies as well as those who could explain the department's efforts to respond to civil rights and civil liberties concerns. Among those invited, the Civil Rights Division, the Office of the Inspector General, and the Community Relations Service all sent representatives. However, the Office of Intergovernmental and Public Liaison, which communicates DOJ policies to the public, declined to participate.

Panelists from the Civil Rights Division, the Office of the Inspector General, and the Community Relations Service did not address the question of whether the antiterrorist policies and procedures being carried out by the department are necessary and effective. These panelists said this question could only be answered by staff of the Office of Intergovernmental and Public Liaison office.

[5] USA PATRIOT Act, Pub. L. No. 107-56 203, 115 Stat. 272 at 279 (2001).

[6] USA PATRIOT Act, Pub. L. No. 107-56 213, 115 Stat. 272 at 286 (2001).

[7] Guant namo Bay Naval Base, a U.S. facility located in eastern Cuba, is where the U.S. government has been holding and interrogating combatants captured in the Afghanistan war.

[8] Laura Murphy, summary of testimony before the District of Columbia, Maryland, and Virginia Advisory Committees to the U.S. Commission on Civil Rights, community forum, Annandale, Virginia, April 24 25, 2002, transcript, pp. 183 90, 224, 227 29, 232 34 (hereafter cited as Forum Transcript).

[9] Attorney General Ashcroft has instituted new procedures for designated cases in immigration court, that is, those believed to be related to national security. These procedures require judges to hold the hearings individually, close the hearings to the public, and avoid disclosing any information about the cases to anyone outside the immigration court. Memorandum from Chief Immigration Judge Michael J. Creppy to all immigration judges and court administrators, Cases Requiring Special Procedures, Sept. 21, 2001.

[10] Under 18 U.S.C. 1001 it is a crime to make material false statements to a federal investigative agency.

[11] Summary of testimony by Malea Kiblan, Forum Transcript, pp. 190 99, 225 27, 261 69.

[12] See U.S. Department of Transportation, Federal Aviation Administration, Guidance for Screeners and Other Security Personnel, <http://www.faa.gov/acr/Screeners.doc> (Oct. 27, 2002).

[13] The Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597, was signed into law on November 19, 2001, and created the Transportation Security Administration, among other provisions.

[14] Summary of written testimony by Kelli Evans, read into the record by Chester Wickwire, Forum Transcript, pp. 199 207.

[15] 8 C.F.R. 287.3(d) (2001).

[16] Summary of testimony by Raj Purohit, Forum Transcript, pp. 208 17, 230 31.

[17] USA PATRIOT Act, Pub. L. No. 107-56, 1001, 115 Stat. 272 at 391 (2001).

[18] Summary of testimony by Paul Martin, Forum Transcript, pp. 218 22, 256 57.

[19] See Department of Transportation, Aviation Consumer Protection Division, Air Travel Civil Rights Problems: Where to File Complaints, Oct. 2, 2002, <http://airconsumer.ost.dot. gov/DiscrimComplaintsContacts.htm> (Oct. 24, 2002).

[20] The firing of noncitizens from their jobs as security screeners has been an issue of concern. Under the Aviation and Transportation Security Act, the new Transportation Security Administration was charged with replacing private screeners with federal employees at the nation's airports by November 19, 2002, a task that required hiring more than 44,000 people. The law requires the new screeners to be U.S. citizens, have a high school diploma or one year of experience as a screener, and speak English. As a result, thousands of experienced screeners who are not U.S. citizens lost their jobs. Some lawmakers have supported a change to allow legal U.S. residents to apply for TSA jobs ( Security Jobs, Not Job Security, Washington Post, Oct. 4, 2002). In November 2002, in a case that could have nationwide implications, a federal judge in Los Angeles ruled the ban on noncitizen screeners unconstitutional and issued a preliminary injunction allowing nine noncitizen screeners to apply for federal screener jobs. Sara Kehaulani Goo, Agency Meets Deadline for Airport Screeners, Washington Post, Nov. 19, 2002.

[21] Summary of testimony by Blane Workie, Forum Transcript, pp. 235 42, 247 54, 258 60.

[22] Summary of testimony by Kathleen Connon, Forum Transcript, pp. 242 49.