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[Congressional Record: December 20, 2001 (Senate)]
[Page S13923-S13925]
From the Congressional Record Online via GPO Access []

  Mr. FEINGOLD. Mr. President, I was pleased to hear the Attorney 
General's announcement of the first indictment of a co-conspirator to 
the terrorist attacks on our Nation on September 11. Zacarias 
Moussaoui, who was detained by the FBI for carrying a false passport 
before September 11 and has been in custody since that time, has been 
indicted by a federal grand jury in Virginia. I commend the Justice 
Department, the FBI, and our intelligence services, for their tireless 
work in seeking to bring Moussaoui and other terrorists to justice.
  We have known about Mr. Moussaoui since a few short days after 
September 11, but we still do not know the identities of hundreds of 
other individuals still held in detention, the vast majority of whom 
have no link to September 11 or al-Qaida.
  And so I rise today to speak about the Justice Department's detention 
of these individuals in connection with its investigation of the 
September 11 attacks and the administration's continued refusal to 
provide a full accounting of who these people are and why they have 
been detained.
  On October 31, along with Senator Leahy, Senator Kennedy, 
Representative Conyers, Representative Nadler, Representative Scott, 
and Representative Jackson-Lee, I sent a letter to Attorney General 
Ashcroft requesting basic information about the detention of over 1,100 
individuals in connection with the investigation of the September 11 
attacks. We wanted to know who is being detained and why; the basis for 
continuing to hold individuals who have been cleared of any connection 
to terrorism; and the identity and contact information for lawyers 
representing detainees. We also wanted information regarding the 
government's efforts to seal or close proceedings and its legal 
justification for doing so.
  I thank and commend Senator Leahy, the distinguished Chairman of the 
Judiciary Committee, for his efforts and leadership. Chairman Leahy 
held four oversight hearings on the Justice Department's actions, 
including one hearing that I chaired focusing on the Department's 
detention of individuals. Those hearings culminated with the testimony 
of the Attorney General himself before the Committee.
  I come to the floor today because I remain dissatisfied with the 
Administration's response to our request for information about the 
detainees. Seven weeks after our letter, the Department of Justice has 
given flimsy and contradictory excuses but no convincing legal 
justification for keeping secret the identities of the over 550 people 
it now holds in custody for minor immigration violations.
  In addition, the Department has not yet provided any information on 
perhaps hundreds of additional people who have been detained. These 
people might still be being held on state or local charges, or without 
charges, or they might have been released. Nor has the Department given 
definite information on the number of individuals held as material 
  After our hearings last week, I am more convinced than ever that 
Congress and the American people are entitled to this information to 
assess the Justice Department's assertions that everyone in custody has 
access to legal counsel and is being treated fairly.
  In the days and weeks after the attacks, the Department made 
announcements about the status of the investigation, including tallies 
of the number of individuals detained. In fact, on October 25, the 
Attorney General announced that ``[t]o date, our anti-terrorism 
offensive has arrested or detained nearly 1,000 individuals as part of 
the September 11 investigation.''
  In early November, however, the Department reversed course and 
decided it would no longer publicly release comprehensive tallies of 
the number of individuals detained in connection with the September 11 
investigation and that it would limit its counts to those held on 
federal criminal or immigration violations. Thus, it would no longer 
keep track of those held on state or local charges, nor would it 
indicate how many people have been released after being detained or 
have been held without charges being filed.
  sAccording to some recent news reports relying on sources in 
the Justice Department, other than Zacarias Moussaoui, none of the over 
1,100 individuals who have been detained are believed to be involved 
with the September 11 attacks. It now appears that the Department 
believes that at least Mr. Moussaoui is connected to September 11. And 
only 10-15 of the detainees are believed to have any links to the al-
Qaida organization. Furthermore, according to senior Justice Department 
officials quoted in the press, apart from Moussaoui, not a single one 
of the over 550 people detained on immigration charges is linked to al-
Qaida. This leads us to a simple, critical question: Who are the 
remaining hundreds of people and why have they been detained?
  The Attorney General undoubtedly faces an enormous challenge: He must 
work to find the perpetrators of the September 11 attacks and bring 
them to justice, while, at the same time, protect Americans from future 
attacks. I fully support our law enforcement officials in their 
tireless efforts to leave no stone unturned as they investigate the 
September 11 attacks and strive to protect our nation from future 
  But, as the Attorney General moves forward in our fight against 
terrorism, he has a responsibility to ensure that the constitutional 
foundations of our nation are not eroded. The torch of Lady Liberty 
must continue to shine on our Nation.
  This is not just an abstract or theoretical concern. Our Constitution 
protects the people of this country from the arbitrary or unfair 
deployment of the awesome power of the Federal Government. The Federal 
Government has the power to ruin the lives of innocent people. The 
checks and balances of our Constitution are crucial in protecting the 
governed from an unfair government.
  While the Justice Department recently began releasing some 
information about the people who have been detained on federal criminal 
charges or immigration violations, we still do not have a full picture 
of who is being detained and why. And there are reports that detainees 
have been denied their fundamental right to due process of law, 
including access to counsel, and have suffered serious bodily injury. 
We simply cannot tell if those cases are aberrations or an indication 
of systemic problems, if the Justice Department will not release 
further information about those being held in custody.
  The Attorney General has repeatedly and emphatically asserted that he 
is acting with constitutional restraint. He even went so far as to 
suggest last week that those who question his actions are giving aid 
and comfort to the terrorists. I reject that charge in the strongest 
terms. And I further believe that the Department of Justice has a 
responsibility to release sufficient information about the 
investigation and the detainees to allow Congress and the

[[Page S13924]]

American people to decide whether the Department has acted 
appropriately and consistent with the Constitution. It is not disloyal 
to view the government's assertions with skepticism. It is the American 
  Just before Thanksgiving, in response to our October 31 letter, the 
Department provided copies of the complaints or indictments for about 
46 people held on federal criminal charges. It also provided similar 
information on about 49 people held on immigration violations, but 
edited out their identities. Then, three weeks ago, the Attorney 
General announced the number and identities of all persons held on 
federal criminal charges and the number, but not the identities, of 
persons held on immigration charges. The total number of detainees is 
roughly 600 individuals. But the Department continues to refuse to 
identify the over 550 persons held for immigration violations, or 
provide the number and identity of persons held without charge, the 
number and identities of persons held on state or local charges, or 
even the number of material witnesses.
  In statements to the press and in the Attorney General's and his 
associates' testimony before Congress, the Justice Department has cited 
a number of reasons for its refusal to provide additional information.
  Very troubling is the Department's assertion that those being held 
for immigration violations have violated the law and therefore ``do not 
belong in the country.'' Without full information about who is being 
detained and why, we cannot accept blindly this suggestion that each 
and every immigration detainee does not deserve to be in the country. 
Do all of these immigration violations merit detention without bond and 
deportation? I doubt it, as the hearing on detainees the Judiciary 
Committee held showed that some are very minor violations, which under 
normal circumstances can be cleared up with a phone call or by 
completing some additional paperwork.
  Another reason the Attorney General has cited for refusing to 
disclose information about detainees is that he does not want to aid 
Osama bin Laden in determining which of his associates we have in 
custody. Yet, the Attorney General and Assistant Attorney General 
Michael Chertoff have said nothing prevents the detainees from ``self- 
identifying.'' This, it strikes me, entirely undercuts the argument 
that giving out this information will help bin Laden. If the Justice 
Department really thought it would, it would never permit self-
identification and would not have released the names of those 93 
individuals who have been charged with Federal crimes.
  Nor would the Department have released the name of Zacarias Moussaoui 
and the basis for his detention. The public has known about Moussaoui 
and his alleged role in September 11 and al-Qaida since shortly after 
the attacks. The Department never tried to keep his identity or why he 
was being detained a secret or try to prevent its disclosure.
  Moreover, the claim that detainees can self-identify rings somewhat 
hollow, since we heard during the hearing on detainees that some of 
these individuals have been denied access to lawyers or family, for 
days or weeks at a time. Ali Al-Maqtari, a Yemeni national married to a 
U.S. citizen, testified that for most of the nearly two months he was 
detained, he was allowed only one phone call, of no more than 15 
minutes, per week. He was never charged with perpetrating, aiding or 
abetting terrorism or with any crime whatsoever, and was eventually 
released on bond.
  Dr. Al Bader Al-Hazmi was held incommunicado--denied access to his 
lawyer or family--for seven days. After nearly two weeks in detention, 
Dr. Al-Hazmi was released with no charges filed against him.
  Tarek Mohamed Fayad is an Egyptian national and dentist residing in 
California. He was picked up by the FBI on September 13 and then 
transferred to the Brooklyn Detention Center in New York City, where he 
remains to this day. According to the Wall Street Journal, it took his 
lawyer one month before she was able to locate and talk to him.
  Unfortunately, there could be many more cases like these three I have 
mentioned. But if the Justice Department will not tell the public who 
is in detention, we can never know the circumstances of their cases.
  It is apparent that the option of `self-identification' is not a real 
option. Indeed, it borders on the fanciful to suggest that all the 
detainees are in a position to self-identify. Rather, there are serious 
questions about whether the Department has denied those detained their 
due process rights, including access to counsel.
  The Department has also said that it is prohibited by law from 
disclosing the information. But when I questioned both Assistant 
Attorney General Chertoff and later the Attorney General himself, they 
admitted that there is no law that provides for a blanket prohibition 
on the disclosure of information about individuals who have been 
  The Attorney General cited a section of the Privacy Act, as 
justification for not providing this information. The Privacy Act, 
however, only applies to citizens and legal permanent residents. It 
does not apply to aliens who are not legal permanent residents. From 
the information provided by the Department thus far, we know the vast 
majority of the detainees are not permanent residents.
  Furthermore, case law under the Freedom of Information Act explicitly 
allows the government to release private information about even 
citizens and legal permanent residents where that information reflects 
on the performance of the agency.
  And that's exactly why this information has been requested. There are 
serious questions about whether individuals who have been detained have 
been denied their constitutional right to due process of law. And the 
kind of information we have requested will help Congress evaluate 
whether the Justice Department has deprived any detainee of his or her 
constitutional rights. We seek this information not to embarrass or 
harass the detainees but to provide oversight of the Justice 
Department's treatment of them.
  To make matters worse and further thwart public or congressional 
scrutiny of the Department's actions, we also learned during the 
oversight hearings that the Attorney General has taken the 
extraordinary step of closing all immigration proceedings involving 
about 550 of the 1,100 or more individuals who have been detained. This 
means no visitors, no family and no press are allowed. As Mr. Al-
Maqtari's attorney Michael Boyle has said, this secrecy taints the 
proceedings, even when, in cases like Mr. Al-Maqtari's, the FBI has 
cleared the immigrant of any link to terrorism whatsoever. This should 
give us all pause. People innocent of any connection to terrorism are 
being branded terrorists and being evaluated in secret proceedings. 
This is not right.
  In sum, the various reasons cited by the Department for not 
disclosing information about the detainees are contradictory and lack 
legal justification. I once again urge the Administration to release 
basic information about the people now held in federal custody, except 
for the identities of material witnesses. And the Administration should 
also give us whatever help it can in identifying people who may be held 
in state custody. Rather than expending its resources trying to keep 
these detentions secret, the Administration should show that it has 
confidence in what it is doing by opening up its actions to public 
  This is not simply a question of constitutional rights, it is a 
question of effective law enforcement. It became clear during our 
hearing on the detainees that the roadblocks to individuals consulting 
with counsel not only cause great hardship to the detainees and violate 
their rights, but also hinder the investigation and waste the resources 
of law enforcement on people who have no connection with terrorism. As 
Mr. Goldstein, an attorney for Dr. Al-Hazmi, testified:

       Dr. Al Hazmi's attorneys had notified the appropriate law 
     enforcement agencies and the Department of Justice in 
     writing, requesting the whereabouts of their client and 
     expressing their desire to communicate with him. Despite 
     these efforts--and despite Dr. Al Hazmi's repeated requests 
     to consult with his counsel--Federal authorities stonewalled 
     and continued to interrogate Dr. Al Hazmi in the absence of 
     his counsel.

  Mr. Goldstein added:

       By denying Dr. Al-Hazmi access to his retained counsel, 
     Federal law enforcement officials not only violated my 
     clients rights,

[[Page S13925]]

     they deprived themselves of valuable information and 
     documentation that would have eliminated many of their 
     concerns. Their obstructionism prolonged the investigative 
     process, wasting valuable time and precious resources.

  I was gratified that a number of my colleagues expressed concern 
about the treatment of Mr. Al Maqtari and Mr. Al-Hazmi, and 
particularly about the difficulties they had in communicating with 
counsel. I have focused in recent weeks on the issue of access to 
counsel because I believe this issue is at the center of how our 
justice system is treating these detainees. This is the issue that 
takes the concern over the fate of the detainees from an abstract 
debate over civil liberties versus security to a very specific and very 
important inquiry about how our government actions affect the lives of 
hundreds of people.
  What happened to Mr. Al Maqtari and his wife Tiffany had a severe 
impact on their well being. What has happened to hundreds of other 
detainees has similarly affected them. We are not just engaged in a 
hypothetical law school exam question or a mock crisis where we each 
play a role. We are talking about taking the liberty of real people, 
with real families and real lives. It is not enough to say that some 
liberties have to be sacrificed in these difficult times. Rather, we 
must be able to determine whether the actions of the Department have 
been reasonable, and whether the sacrifices that are being requested 
are justified.
  That is where lawyers come in. With a lawyer, a detainee can much 
more readily answer concerns about his behavior, provide documents to 
show his whereabouts during crucial periods, and generally provide 
information to show that he is not a terrorist. Lawyers can help 
determine whether the extreme step of detention without bond is 
warranted. And they can explain what is going on to the detainee and 
the public. I asked the Attorney General at our hearing to take steps 
to ensure that everyone under detention who wants a lawyer can obtain 
one. And I asked him to determine how many of the detainees are not 
represented by counsel. I hope he will follow through on our 
discussion. It is essential that anyone who is being held have counsel 
and be able to communicate with counsel.
  The Attorney General has said reasoned discourse should prevail. I 
agree. But in order to have that reasoned discourse, the Justice 
Department should provide Congress and the American people with enough 
information to promote a fair and open dialogue and make our oversight 
meaningful. Our hearings showed that not all the detainees have 
adequate access to counsel. They showed, at least, that the Congress 
has reason to test and examine the Administration's assertions that 
everyone's constitutional rights are being respected in this 
investigation. By continually saying in the face of this evidence that 
we should take its assertions about the treatment of the detainees on 
faith, the Administration furthers the appearance that it has something 
to hide.
  I hope that we are not in some sense following those who rounded up 
over 120,000 Japanese Americans and thousands of German and Italian 
Americans during World War II. The rhetoric we hear today rings awfully 
familiar. We must not return to the time when immigrants who provided 
so much to our nation were suddenly branded ``enemy aliens'' and 
deprived of their liberty and other fundamental rights.
  Let us not repeat these mistakes of history. I again call on the 
Administration to fulfill its responsibility to protect the 
Constitution in its pursuit of liberty and justice for all. It can 
begin by identifying those now held in Federal Custody and providing 
the other information requested in our October 31 letter.