Donald Trump’s pick to be FBI director was at the center of a controversial immigrant detentions in the immediate wake of 9/11, when dozens of people were spirited away to maximum security prisons and kept from communicating with their families and lawyers––sometimes for weeks.
A government watchdog report shows Christopher Wray and an associate at the Justice Department directed the Bureau of Prisons to keep detainees from having access to lawyers for as long as possible––a move civil liberties advocates find worrisome, and which casts light on how the man who may soon helm the FBI views the relationship between Constitutional rights and national security.
On September 11, 2001, Wray was working in the Deputy Attorney General’s office in downtown Washington D.C. After the attacks, government lawyers rushed to find what steps they could take to try to forestall any other potential attacks. One of the most controversial moves was by the Immigration and Naturalization Service (a now-defunct agency whose responsibilities were passed on to the Department of Homeland Security). The INS detained more than 700 people who the FBI suspected could have been linked to the 9/11 attacks. According to the watchdog report, issued by the Justice Department’s inspector general in April 2003, almost all were men, mostly from Pakistan, Egypt, Turkey, Jordan, India, and Yemen. They had all committed some sort of immigration violation, either staying longer than their visas allowed or entering the U.S. illegally.
That report noted that if those men had been arrested just because of the immigration violations, they either wouldn’t have been detained at all or would have been put in immigrant detention centers with access to visitors and attorneys. Instead, though, they were put in maximum security prisons and, at first, couldn’t communicate with their family or lawyers. It was a “communications blackout,” according to the report. The detainees’ families and lawyers didn’t know where they were or why they had been locked up.
And that’s how Wray wanted it.
The director of the Bureau of Prisons, Kathy Hawk Sawyer, told investigators that Wray and his colleagues directed her to restrict the detainees’ communication as much as was legal.
“Hawk Sawyer also told the OIG that she had conversations with David Laufman and Christopher Wray from the Office of the Deputy Attorney General, in which she was told to ‘not be in a hurry’ to provide the September 11 detainees with access to communications––including legal and social calls or visits––as long as the BOP remained within the reasonable bounds of its lawful discretion,” the report read.
With that blessing, Bureau of Prisons officials kept the detainees from having any communication with the outside world. Some of the detainees were in the communications blackout for weeks, unable to talk to their families or lawyers, even by sending or receiving letters.
Officials with the Bureau of Prisons told the inspector general that they did let detainees send mail so their families could know where they were being held. But the investigators wrote in the report that they had reason to believe that wasn’t true.
Some of the detainees were held in such secure conditions that prison officials didn’t even know they were there. Three attorneys went to the prisons where their clients were held, only to be told by staff that their clients weren’t there––because the staff truly believed they weren’t, as a result of blackout that Wray backed.
That decision drew scorching criticism from civil liberties advocates. In court filings, government lawyers said advocates didn’t need access to the detainees because those detainees could communicate with their lawyers. But, in many cases, they couldn’t.
“The government repeatedly told the courts in the aftermath of September 11 that it was not necessary to provide public access to the detainees because the detainees had full access to the outside world,” Lee Gelernt, who heads the ACLU’s Program on Access to the Courts, told The Daily Beast. “That turned out to be false, as the Justice Department’s own internal investigation revealed.”
Human Rights Watch criticized the 9/11 detentions as violating the “fundamental constitutional and human rights of detainees,” including the right “to have prompt access to an attorney.”
But others defend the move, including Juliette Kayyem, a DHS official during Obama’s presidency.
“Reading limited rights for these detainees in the post-9/11 aftermath does not strike me as outside of mainstream legal norm,” she told The Daily Beast. “Obviously people were critical of it, but I knew that world, and of all the extremities that were going on in the post-9/11 world, this does not strike me as in the Top 10, or even outside the norm.”
That isn’t a consensus view. Karen Greenberg, who heads the Center on National Security at Fordham University School of Law, said the communications blackout violated detainees’ rights.
“Is it usual?” she said. “No. It is not usual, it is not lawful. But the law was redefined in many ways, at least in terms of practice––or suspended, is what i would say––when it came to the War on Terror.”