As the district court in Center for National Securities Stuches v United States noted, the identity of the detainees is essential to public assessment of the govemment's conduct of its September 11 investigation. That assessment will include consideration of the effectiveness of the government's efforts as well as the extent to which it is abiding by US and international human rights law Morcover, as discussed below, the arrest and detention of INS detainees has been accompanied by persistent allegations of violations of detainees' rights--including arbitrary detention, lack of access to attorneys. physical mistreatment, and harsh detention conditions Without access to the detainees' names and places of detention, the public has a truncated ability to determine how well its govemment has been upholding basic constitutional and human nights. Human Rights Watch's own efforts to verify the treatment of the detainees was substantially hampered by not having the names and places of detention of the detainees.

US Department of Justice v Reporters Committee, 489 U.S. 749,773 (1989).

115 Pechter v Lyons 441 F Supp. 115 (S.D.NY. 1977), p. 118

116 Center for National Security Studies v. U.S. Departiment of Justice

The Sixth Amendment to the US Constitution states. "In all criminal prosecutions, the accused shall enjoy the night to have the assistance of counsel for his defense The fifth and fourteenth amendments guarantee duc process to any person. Under U S. law. immigration detainees have the right to be repre

U.S. constitutional law also affirms the right to counsel during custodial interrogations on criminal matters. In the criminal context, but

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sented by counsel 8 CFR 240.3. Principle 11 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: "A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, Annex. 43 UN. GAOR Supp (No 49) at 298. UN Doc A/43/49 (1988) This principle is derived from article 9 of the ICCPR. which provides that any person deprived of her or his liberty must have an effective opportunity to challenge the lawfulness of their detention before a court In its general comment no. 8, the UN. Human Rights Committee interpreted ICCPR article to include "all deprivations of liberty, whether in criminal cases or in other cases such as immigration control United Nations Human Rights Instruments. Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies. HRI/GEN/1/Rev 4. February 7, 2000, p. 88. para 1.

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In the landmark 1966 case Airanda v Arizona, the Supreme Court ruled that anyone arrested in the course of a criminal investigation shall be afforded certain rights:

The prosecution may not use statements stemming from questioning initiated by law enforcement officers after a person has been taken into custody unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self

incrimination.

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that any thing he said will be used against him in court, he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him

Where an interrogation is conducted without the presence of an attorney and a statement is taken, heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligendy waived his right to counsel Miranda v Arizona, 384 U.S. 436 (1966). On February 26, 2000, the U.S. Supreme Court reaffirmed suspects Miranda rights in two decisions. In US. v. Dickerson, Chief Justice Rehnquist wrote for the majority that law enforcement officers must warn criminal suspects of their rights, including their right

not in immigration proceedings, the night to counsel includes the right to court-appointed counsel if the detainee cannot afford to hire one.

Legal representation is a crucial safeguard to cnable detainees to effectively exercise other nights, including the right against criminal selfincrimination, the right to be charged promptly or released, the right to be brought before a judge to determine the legality of a detention, and the right to not be subjected to torture or other cruel, inhuman, or degrading treatment Effective access to an attorney is particularly important for immigration detainees who may not know their nights or be familiar with complicated US criminal or immigration law procedures Unfortunately, many of the postSeptember 11 detainees were unable to exercise their right to counsel

Custodial Interrogations without
Access to Counsel

"Special interest" detainees were questioned in custody as part of a criminal investigation, even though they were subsequently charged with immigration violations Our research indicates that many were originally questioned by teams of agents from both the FBI and the INS. or were first questioned by the FBI and then by the INS. The questions typically addressed criminal matters as well as the individual's immigration status.

In practice, the FBI has used administrative proceedings under the immigration law as a proxy to detain and interrogate terrorism suspects without affording them the rights and protections that the US criminal system provides Among those protections is the night to have an attorney present during custodial interrogations. including free legal counsel if necessary.

to remain silent. In California Attorneys for Criminal Justice (CCJ, v. Butts, the Supreme Court upheld a ruling by a federal count in Los Angeles that police interrogation after a suspect has requested an attorney or invoked his or her night to remain silent violates a person's rights under Miranda.

Other differences between administrative and criminal cases are the deadlines for charging and count on crsight Under US law, thosc dcLained for crimes have to be charged and brought before a judge

Even though immigration detainees do not have the right to free counsel in connection with immigration proceedings, they should be granted court-appointed representation when they are interrogated about matters related to a criminal investigation.

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An example of the blurring of the distinction between criminal and administrative processes is the case of Avub Ali Khan Khan, a citizen of India was arrested along with Mohammed Jaweed Azmath aboard an Amtrak train near Fort Worth, Texas, on September 12, 2001 Authoritics found box cutters, hair dye, and $5,500 in cash in their possession, according to press reports. Law enforcement agents told reporters that they were key suspects in the investigation of the September 11 attacks. Despite apparently being a terrorism suspect, Khan was held in custody solely for overstaying his visa. As an INS detainee, he did not have the right to a court-appointed attorney and he remained unrepresented for fifty-seven days During this time, he "signed all kinds of papers, and was questioned ad nauseum without an attorney.* according to a public defender who was later assigned to him The lawyer said that his client was brought before an immigration judge only on November 8, 2001, almost two months

within forty-eight hours of arrest. Those detained for immigration violations can be held without charges for an undefined reasonable period of time" in the event of an "emergency and may not be brought before an immigration judge for weeks after their arrest. depending on how full the docket in the disinct is

2 Scc Two Men with Box Cutters Arc Removed From Train In Texas, Associated Press. September 14. 2001. Ross E. Milloy with Michael Moss. "More Suspects Are Detained In Search for Attack Answers." New York Times. September 26, 2001. Dan Eggen. Terrorist Hijacking Probc Slows in US TM Washington Post. October 19, 2001. and Laune P. Cohen and Jesse Pesta. "US demies accusations from jailed man that he had no counsel access to phone." Wall Street Journal, November 5, 2001.

Walter Pincus Silence of 4 Terror Probe Suspects Poses Dilemma for FBI,” Washington Post, October 21, 2001

Human Rights Watch telephone interview with attomey Lawrence Ferell. New York, New York, May 14, 2002.

after his arrest. Khan has been held in restricted confinement at the Special Housing Unit at the Metropolitan Detention Center since September 2001. Both Khan and Azmath were indicted on credit card fraud charges in December 2001.

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123

The constitutional right to counsel exists only during custodial criminal interrogations. A person does not actually have to be held in a police station or arrested for the interrogation to be considered "custodial." US courts have looked to the circumstances of the questioning to determine if a reasonable person would believe he or she had been effectively deprived of his or her freedom in a significant way and could not freely walk away from the law enforcement agents sccking information Many postSeptember 11 detainees were originally questioned in their homes or places of work and subsequently taken to FBI or INS offices for further questioning. We have no way of knowing whether many of them believed they had a choice about whether to answer the questions posed to them. We suspect that many did not realize that when the FBI came to their houses, including in the middle of the night, they could refuse to let them in or refuse to answer questions. We also suspect many would have believed they were not free to leave when they were taken to FBI or INS offices

Our research indicates that the FBI frequently questioned persons in custody without informing them of their "Miranda nights," ie. their right to remain silent. to have an attorney present during their questioning, and to have an attorney appointed for them if they cannot afford one Human Rights Watch interviews with INS detainees and their attomeys indicated that in some instances detainees were informed of their

123 The Sixth Amendment to the US Constitution says "In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel." See next note for the Supreme Court's interpretation of this constitutional night.

124 The Supreme Court has defined custodial interrogation as follows "By custodial interrogation, wo mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona.

Other times, detainees were given Miranda warnings but when they asked for an attorney, they were reportedly told that they would get one only after the interrogation. Some detainees said that they were pressured to answer "just a few questions right away and not wait to obtain an attorney. For example, two FBI agents went to the workplace of a Palestinian civil engineer and said they wanted to ask him some questions. He declined to talk to them without a lawyer present. The agents told the man that if he insisted on having a lawyer, they would have to open a "full investigation He was asked whether he possessed weapons and about the September 11 attacks. The man asked for a lawyer again. He said he was afraid he could be “misquoted" without an attorney present. The agents said, this is America. This would never happen." A few days later, FBI and INS agents went to the man's workplace again and arrested him for overstaying his visa Even though the man was legally in the country at the time, he spent twenty-two days in prison. None of the "special interest" detainees interviewed by Human Rights Watch had an attorney present dur

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125 Human Rights Watch telephone interviews with Bah Issclou, Florida. November 6, 2001, and Dennis Clare. his attorney, Louisville, Kentucky. October 23 and 31, 2001. The three other Mauntanans were Sidi Mohammed Ould Bah, Sidi Mohammed Ould Abdou, and Cheikh Melainine Ould Belal. They were all arrested on September 12 and charged with unmigration violations. They were released on bond. Issclou on October 10, and the others at the end of October. 126 Human Rights Watch interview with Palestinian civil engineer. Paterson, New Jersey December 20, 2001 and email communication with his attorney, Claudia Slovinsky, May 24, 2002. The detainee's name has been withheld upon request.

ing FBI or INS interrogations regarding the terrorist attacks.

A striking case of the FBI's refusal to respect the right to counsel is that of Osama Awadallah, a lawful permanent resident of the United States and a citizen of Jordan. An old phonc number of Awadallah's was found in the car abandoned by Nawaf Al-Hazmi, one of the September 11 alleged hijackers, and the FBI subsequently began an investigation of Awadallah 127 On September 20, 2001, a team of eight FBI agents and local police went to Awadallah's apartment in San Diego. When Awadallah returned home in the early afternoon, the agents told him they wanted to ask him a few questions at the FBI office. Awadallah asked if they could talk to him at his apartment but they insisted that he be interviewed at their offices and told him that they would drive him there. When Awadallah insisted he be allowed to go to his apartment to pray, he was permitted to go to the apartment followed by the agents; he was patted down and the agents made him keep the bathroom door open while he went to urinate and wash before praying When he was taken to the FBI office around 3:00 p.m., Awadallah repeatedly expressed his concern that he not miss a computer class that began in a few hours Two agents questioned Awadallah for about six hours and told him they believed he had information regarding the events of September 11. At onc point when he asked about getting to his class, the agents told Awadallah that he would have to stay with them until the interview was finished. Although these circumstances clearly indicate a custodial interrogation. Awadallah was never advised of his right to an attorney.

When the interview ended at 11:00 that night, Awadallah agreed to take a lie detector test the following morning. The next morning. after he took the test, FBI agents accused him of

1* The phone number was that of a residence where Awadallah had lived briefly two years carlicer. The FBI investigations subsequently established that Awadallah had no connections with or knowledge about the September 11 attacks or terrorist activities, but that he had met Al-Hazmi and another alleged hijacker at work and at the local mosque two years earlier when they lived in San Diego, California.

lying on some of the questions and then told him that he was one of the terrorists" Awadallah attempted to stand up, but the agents ordered him to sit down and don't move." He then asked to call his lawyer, but the agents refused his request. They continued to question him. even though Awadallah repeated several times that he had to leave for Friday prayer The agents told him he was going to miss Friday prayer and that they were going to fly him to New York. Awadallah again demanded to call a lawyer because it was his right, but the agents said, "[h]ere you don't have rights." The FBI subsequently secured a warrant for Awadallah's arrest as a material witness. Later he was charged with perjury for lying to a grand jury. He spent eight-three days in prison before being released on bail

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In a subsequent court casc. Awadallah claimed that he had been unlawfully seized by FBI agents. As the court pointed out, "a consensual encounter ripens into a seizure, whether an investigative detention or an arrest, when a reasonable person under all the circumstances would believe he was not free to walk away or otherwise ignore the police's presence." Rcviewing the facts, the court concluded Awadallah was clearly not 'free to ignore the FBI and had in fact been "scized"—and, indeed, that the seizure was unlawful because the agents did not have probable cause or even reasonable suspicion to believe that Awadallah had committed a crime. Based on this and other findings of unlawful government conduct, the court dismissed the indictment against him. Although the question of Awadallah's right to an attorcy was not raised in the case, the court's finding that he had been "seized" by the FBI when he was questioned indicates that he should have been told his rights and given access to an attor

where Hughes was assigned. Without being told why, they were placed in locked, separated rooms at the basc. Hughes for five and a half hours, and Al-Maqtari for about nine hours. Then they were interrogated separately for two to three hours without counsel present and without breaks until early in the morning. During their detention they were not given water or food, except for some cookies Al-Maqtari received during his interrogation. At the outset of the questioning, their interrogators-onc INS, three FBI. and six or seven army officers-told them that they were not arrested. Al-Maqtari replied. "I wished." He told Human Rights Watch he did not feel free to leave. The interrogators did not inform Al-Maqtari or Hughes of their night to have an attorney present. AlMaqtari described the interrogation in testimony presented to the Senate Judiciary Committee:

The investigators said many, many times that our marriage was fake, and that Tiffanay must be married to me bccause I was abusing her. These accusations were totally false and very painful for me. They also made many negative remarks about Islam, things like Islam being the religion of beating and mistreating women. One acted out a fist hitting his hand, another said my wife had written a letter saying that I beat her, which I knew was false, and another insisted he would beat me all the way to my country because I mistreated my wife... The interrogators were so angry and wild in their accusations that they made me very frightened for what might happen to me.

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Before being released on bond, Al-Maqtari was detained for fifty-two days, mostly in solitary confinement, charged with ten days of "unlawful presence" in the country. The army encouraged Hughes to take an honorable discharge, and she did so on September 28, 2001 131

130 November 29, 2001 hearing before the Senate Judiciary Committee.

131 Human Rights Watch telephone interviews with Ali Al-Maqtari and Tiffanay Hughes. New Haven, Connecticut November 29, 2001, and with Michael

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The U.S. Supreme Court has repeatedly upheld the rights of individuals not to be subjected to coercive interrogations. In Haley v. Ohio, a concurring opinion stated: "An impressive scries of cases in this and other courts admonishes of the temptations to abuse of police endeavors to secure confessions from suspects, through protracted questioning, carried on in secrecy, with the inevitable disquietude and fears police interrogations naturally engender in individuals questioned while held incommunicado, without the aid of counsel and unprotected by the safeguards of a judicial inquiry." Haley v. Ohio. 332 US. 596 (1948). In Stone v. Powell, the Supreme Court said: "A confession produced after intimidating or cocrcive interrogation is inherently dubious. If a suspect's will has been overbome. a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability. Stone v. Powell.

138 International standards prohibit law enforcement officials from conducting coercive interrogations. Principle 21 of the UN. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: "No detained person while being interrogated shall be subject to violence. threats or methods of interrogation which impair his capacity of decision or his judgment." Interrogators are banned from using torture to clicit information from people in their custody.

Article 7 of the ICCPR prohibits anyone from being subjected to torture or to cruel. inhuman, or degrading treatment or punishment. In 1994 the United States ratified the Com ention against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment. Article 2 of the convention states: "No exceptional circumstances whatsoever. whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The definition of torture contained in article 1 of the convention is broader than physical abuse, and includes "any act by which severe pain or suffering. whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person infor