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Last Thursday, March 6, 2003 at a hearing of the Commerce, Justice and State Subcommittee of the House Appropriations Committee regarding the FY 2004 Appropriations for the Department of Justice, Congressman Jose E. Serrano (D-NY) expressed concern about whether the Justice Department's global efforts to confront terrorists, including the rounding up of suspected illegal immigrants in this country, threatened civil liberties. The exchange between Congressman Serrano and the Attorney General, John Ashcroft, is reprinted as follows:
REP. SERRANO: Mr. Attorney General, can you tell me to date how many people have been detained or arrested within our country as a result of the September 11th investigation; on average, how long are these individuals being held; how many have you released; and how long you think these types of detainments will continue?
(Pause.)
ATTY GEN. ASHCROFT: I think I have some data on that, and I'm not sure I can satisfy all of those. To date, the INS has detained 766 aliens who have been or are being investigated in connection with the September 11th attacks. The vast majority of those, about 489 -- now, first of all, the people who were detained were people who were violators.
We didn't detain people who were not in violation. The vast majority of those, 489 have been deported on immigration charges or have left the country voluntarily, saying "Don't bother to deport us, we're on our way out." Currently there are only 29 aliens of this category that remain in INS custody.
As you well know, INS maintains in custody large numbers of individuals, but not related necessarily to the 9/11 sort of concerns. Of those 29 that remain in INS custody, only three have been identified by the FBI as individuals that it has a continuing investigative interest in.
Now, of the individuals who -- aliens who remain in the country, most are no longer of an investigative interest. They fall into these three categories: aliens in criminal proceedings who are the subject -- or subject to convictions, those who were accused of criminal activity and were convicted, they are being detained; aliens who remain in immigration proceedings and are pursuing relief from removal -- in other words, been ordered to be removed and have not -- and are appealing that; or three, aliens who have succeeded in obtaining relief from removal or lawful immigration status, and therefore they just are free in the culture. There are only 29 that remain in custody; only three are the subject of any interest on that part of FBI as it relates to the 9/11 attacks.
REP. SERRANO: Now, all the ones you mention seem to have a relationship to an immigration issue. And I correct in that, or is it that INS has been given the opportunity to be the one that apprehends these people? In other words, I want to know why it's INS. And if not only INS, then are there other people detained, arrested at this point who don't qualify under some INS criteria for detainment? I mean, I know of one who we'll get to in a second who is an American citizen, but there are -- are there other people who are not INS- detained, if you will?
ATTY GEN. ASHCROFT: There are individuals who have been detained for committing crimes, and they are --
REP. SERRANO: Related to September 11th.
ATTY GEN. ASHCROFT: Well, related to terrorism.
REP. SERRANO: Right. Okay.
ATTY GEN. ASHCROFT: Take, for example, the so-called shoe bomber. And take, for example, the American Taliban individual. These individuals have been convicted of criminal activity on our -- and are serving sentences. And there are individuals who are detained as a result of conviction for criminal activity as well. I'm not in a position to name all the individuals, but, again, I'd be happy to try and develop the information for you that might help you be aware of what numbers there are.
My staff just hands me that there have been 212 criminal charges brought to date, 108 convictions or guilty pleas to date, based on criminal charges and not INS charges.
REP. SERRANO: And these criminal charges are related to terrorism.
ATTY GEN. ASHCROFT: Well, these are individuals that we believe were related to terrorism. The criminal charges are not always. Some of the criminal charges are related, for example, to document fraud. Some of the document fraud for which they were -- these individuals were charged were related to documents that were provided to terrorists.
REP. SERRANO: Right.
ATTY GEN. ASHCROFT: So document fraud is not always terrorism- related, but certainly can be terrorism-related.
REP. SERRANO: Mr. Attorney General, what I'm trying to get at here is that there are many instances where you hear Americans say -- and the media, for that matter, the press -- that we're not sure that we know the number of people that are being held in this country related to our war on terrorism.
And I think that -- I don't need to say this, but I'm going to say it anyway -- we're not asking these questions in any way, shape or form supportive of anybody who is caught up in this situation.
ATTY GEN. ASHCROFT: I understand that.
REP. SERRANO: But we are -- all should be supportive of everybody's civil rights and civil liberties. So with that in mind, then, what I'm trying to find out from you is, are there people detained related to perceived or understood or suspected terrorist activities that are not the usual names we heard or we've read about? Because the ones you gave me, who are nameless and shall remain nameless, seems to be a lot of people related to overstaying visas and what country of origin or what organizations they might have belonged to.
ATTY GEN. ASHCROFT: Oh, we've had individuals who have been convicted of crimes against Arab Americans and crimes -- hate crimes that related to 9/11, but certainly they're not the names you would expect of --
REP. SERRANO: No, I'm speaking about people who are, quote, "rounded up," how many people are being held, and these are the people I'm interested in. I'm not -- you know, I'm glad you convicted the other ones and I do seriously commend you for that, but -- yes, that's related to 9/11, but it's not related to the war on terrorism; you know, who is suspected of having a link to al Qaeda or to terrorists who's being detained in this country at this moment.
And by the way, I think my question is totally proper in view of your opening statement where you say that the one thing we should not ever do again is what happened to Japanese Americans, for instance, during World War II. Now, there are some folks who don't know but are concerned that maybe this is happening. And so I'll throw in also -- again, having prefaced my comments by saying that we're not here in defense of anybody -- there is an American citizen -- I believe his name is Jose Padilla -- who is held, and from what we understand, he was arrested, he's still detained, he hasn't seen a lawyer, and he hasn't been charged. Now again, after September 11th, and being a New Yorker, we sort of focus on "get the bad guys," but I know that there is a little, terrifying thought about my walking down the street and being arrested and no charges brought, and this has been now, what, close to a year?
ATTY GEN. ASHCROFT: Let me try and say some things that I hope will be helpful. No people have been detained who have not been charged by the Justice Department.
REP. SERRANO: Mr. Padilla has been charged?
ATTY GEN. ASHCROFT: Mr. Padilla is not held by the Justice Department. And I would be happy to address that issue, and I will.
Everyone who has been -- no one has just been "rounded up." Individuals have not been detained unless they were the subject of an express, specific violation. Individuals detained by the Justice Department, either the former part of the Justice Department until last Monday, INS -- or last Saturday, INS, or in the Justice family of enforcement agencies, they all have access to attorneys. And the only people who were detained and were not the subject of a specific charge are individuals who were detained in what was called a material witness warrant, where a circuit court judge decides, in accordance with a provision of the law, that a person is a valuable component of a criminal justice proceeding and is held in order to make sure that their contribution to the proceeding is protected and preserved. That's all judicially supervised by the courts.
Now let me go to the Jose Padilla situation. Jose Padilla is being detained as an unlawful enemy combatant. Individuals who are a part of a war effort against a country, in other words, those taken as enemy combatants, are traditionally not the subject of specific charges, are not the subject of judicial proceedings; they are not taken by the judicial process; they are held as a result of the military process. People who are taken on the battlefield or who are involved in battlefield endeavors or activities are eligible to be taken not by the Justice Department but by the president in exercise of his Article II powers to protect the country in time of war. There are, I believe, two individuals in that category in addition to the -- who are American citizens that I know of. And I believe one is Mr. Hamdi and the other is Mr. Padilla. Mr. Hamdi was intercepted on the battlefield in the -- what is the traditional theater of operations. Mr. Padilla was intercepted in the United States of America.
REP. SERRANO: Let me just say something to you that perhaps you already know. The perception -- and our profession, unfortunately, is driven a lot by perception -- our service -- the perception is that the Justice Department is overseeing all of this. So that is what people think. So if I ask you, it's because we would never think of asking a military person during a civilian rule, as we have in this country, if they're holding someone -- and I certainly hope the military doesn't hold anybody, because that's what makes us different from other countries. Now --
ATTY GEN. ASHCROFT: Well, the military has always held combatants who were intercepted in the process of fighting against the country.
REP. SERRANO: That's true; in the battlefield, for the most part; hardly ever on the streets of Brooklyn or Waukegan, Illinois, or L.A.
ATTY GEN. ASHCROFT: Well, I think it's hard to say that New York was not a battlefield --
REP. SERRANO: I understand that.
ATTY GEN. ASHCROFT: -- and with all due respect, I think the battlefield is a nontraditional battlefield in the war against terror.
REP. SERRANO: Right. I understand. And in a nontraditional situation, we have to be careful that we don't commit nontraditional civil liberties and civil rights violations.
ATTY GEN. ASHCROFT: And I accept that, too.
REP. SERRANO: And again, I'm not discussing that in this case. I am concerned that this becomes some sort of a pattern. Now, I will close, because obviously, I'm not going to get any further here. I only regret at this moment -- and I've never said this -- that I'm not in Mr. Rogers or Mr. Wolf's head at this moment, because they know the law, I don't; I'm not a lawyer. And I'm not going to put words in their mouth or thoughts in their head, but I've got to believe that if you're a lawyer, you've got to be concerned that there are American citizens detained without charges.
Again, I could care less about the individual, but about the thought of walking down the street during a difficult time. And I remind you that there must have been members of Congress or somebody asking these same questions during Second World War, and the answer they got back is, "Chicago is a battlefield," and, you know, "Ohio is a battlefield," and "San Francisco is a battlefield." And now, we all realize that that was wrong.
And so, that's my concern. Not the individual, but the idea of being detained without charges and not being able to see a lawyer scares the hell out of me, Mr. Attorney General.
ATTY GEN. ASHCROFT: Well, may I just respond to that additionally.
First of all, it's a very serious matter. Whether or not American citizens could be detained as enemy combatants is not a novel thing that hasn't been considered by the highest court in the United States. It has been considered by the highest court. And the Supreme Court, in the Second World War, indicated that it didn't matter what citizenship you held, if you were an enemy combatant, you could be detained as an enemy combatant.
And as a matter of fact, the Quirin case, was a group of individuals who sought to disrupt the United States with acts of sabotage. A group of Germans that came ashore were joined by an American to use explosives to disrupt this country. And in that case, I believe it's fair to say that the court ruled very clearly that one's citizenship does not keep one from being identified as an enemy combatant.
I really want to agree with you, and that is that this is -- we have only one individual so treated, who was intercepted in the United States and then is maintained as an enemy combatant. And I take that very seriously. I have looked at the law very carefully on it. And this is being litigated, as a matter of fact, right now, so I'm limited as to what I can say. But the matter of Mr. Padilla is on appeal, after having been ruled and considered by the courts.
So this is not something that it is a matter that is being taken indifferently. We are aware that this is a matter of serious concern, and I thank you, and I respect your concerns and I respect the concerns of every American that is concerned about freedom.
REP. SERRANO: Let me just close, Mr. Chairman, by simply saying, history will judge us all for this period of time. And as one who started off by saying I like you, I want history to judge you as the one, who during a very difficult period, tried to strike a balance, and not one who allowed people to get carried away to a point where we hurt ourselves and threw away our Constitution.
Thank you, Mr. Chairman.
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