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On Nov. 2, the Justice Department may be forced to charge, deport or release many of the 952 people detained as part of its investigation into the terrorist attacks on the United States. Though the DOJ gained broad powers under the anti-terrorism bill signed into law on Oct. 26 by President George W. Bush, it also became constrained by its new seven-day limit on detentions. The new law, according to a DOJ official, Senate legislative aides and immigration lawyers, trumps a more expansive rule quietly put in place by the U.S. Immigration and Naturalization Service on Sept. 17. Enacted under the agency’s rule-making power, it allows detention without charge for an indefinite “reasonable period of time” in “the event of an emergency or other extraordinary circumstance.” The INS says the rule was needed “to ensure that the Service has sufficient time, personnel and resources to process cases — including establishing true identities” in connection with the Sept. 11 attacks. Civil liberties groups counter that it was used as a catchall to hold the bulk of the current detainees. DOJ officials offer differing accounts. The INS, which is part of the Justice Department, says only 168 of the 952 detainees are being held on immigration violations, and that most have been charged with a crime. But an official at Main Justice says most of the 952 detainees are in fact being held under the INS rule. “This interim regulation in essence allows for the indefinite holding of immigrants without charge,” says Nancy Chang, a senior litigation attorney at the Center for Constitutional Rights in New York. Chang says the new law trumps the INS rule. “Within seven days, they may have to decide whether to charge people,” agrees Nadine Wettstein, a staff attorney at the American Immigration Law Foundation in Washington, D.C. “We are not just picking them up and not charging them,” bristled a senior DOJ official with knowledge of immigration-related detentions. But the official conceded that there is an “apparent inconsistency” between the INS rule and the new law. The official explained that continued detention of some people may depend on which city they are in, the INS docket there and whether the detainee is challenging the detention or seeking bond. This official claimed that most, if not all, INS detainees have been charged. A U.S. Senate aide who helped draft the new bill says the new law trumps the INS rule, but adds that the DOJ may argue that the seven-day provision does not apply to those already detained. Once charged under the new law, however, detainees found by Attorney General John Ashcroft to be engaged in terrorist activities can be held for six months. ALREADY MOBILIZING Since the DOJ recently conceded that relatively few of the 952 detainees are considered material witnesses, civil rights lawyers have been trying to learn more about the majority being held. “We are concerned that a number of individuals are being held for an extended period of time without charge,” says Chang. Her group and several other civil liberties groups plan to file a Freedom of Information Act (FOIA) request in the coming days demanding that the DOJ make public the identities of detainees and the legal grounds for their detention. Joining the Center for Constitutional Rights in the filing will be the American Civil Liberties Union (ACLU), the Center for National Security Studies and the National Lawyers Guild, Chang says. One DOJ official says that many of the detainees are being held for reasons unrelated to the Sept. 11 attack. “Once Sept. 11 happened, we were discovering people who were out of [immigration] status and committed other crimes,” the official says. The FOIA effort follows an Oct. 17 letter to Ashcroft from the ACLU requesting the release of cursory information about the detainees — their identities, ethnicity and access to counsel. Also requested was information as to whether judges in secret proceedings had issued gag orders. Justice Department spokeswoman Susan Dryden says the agency is reviewing the letter. Chang says that there has been an effort by the groups to collect information from various defense attorneys representing the detainees, but that gag orders in the majority of those cases prevent defense lawyers from commenting on their clients’ cases. The ACLU alleges that the DOJ may be purposely preventing detainees from obtaining counsel. Another lawyer, with the National Lawyers Guild Immigration Project, says that many defense attorneys are reluctant to talk about the detentions “until they see what position the DOJ will take on the cases.” The American Immigration Lawyers Association has gathered data on about 50 detainees represented by its members. Nadine Wettstein, director of the group’s legal action center, says “a lot of these people have technical immigration violations — maybe it was a student visa and they didn’t take the right course load.” Wettstein says that once charged or subject to deportation procedures, detainees will appear before a judge. “The person has a right to a bond hearing and an immigration hearing unless they admit the charges,” she says. Once charged, “it means there is an end, because there is a process that people will go through.” Lucas Guttentag, director of the ACLU’s Immigration Rights Project, worries that the bulk of detainees have not even been charged yet, and thus have not been brought before a judge or had counsel made available to them. The implication of the INS interim rule, he says, “is that they are holding people without charging them with immigration violations. That would raise even more profound problems than that which were thought to be occurring, which is people were being charged and detained” indefinitely.

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