The US Justice Department and its top officials could be open to lawsuits by former immigration detainees for everything from wrongful detentions to physical abuse - and the best evidence may come from the Justice Department itself.
For nearly two years, the Justice Department has rebuffed attempts by outsiders to obtain information about the detainees - even fighting requests to release their names.
But now the department's own Inspector General's Office, which functions as an internal watchdog unit, has shed light on what it characterizes as a flawed process under which 762 foreigners were detained without bond or any criminal charges being introduced against them.
As a result, Attorney General John Ashcroft is likely to face tough questions about whether Congress has ceded too much authority to the Justice Department over surveillance and immigration since Sept. 11. It will give ammunition to critics who are trying prevent the department from further expanding its powers - and may bring at least more attempts at legal action against DOJ.
"It's a very damning report," says David Cole, a Georgetown University law professor, who is co-counsel in a class action suit on behalf of former detainees.
The report charges that the Justice Department failed to distinguish between those detained due to terror-related leads and those arrested by "virtue of chance encounters" with law enforcement.
It confirms some allegations previously made by detainees' lawyers: of detentions for days or weeks under the highest security conditions without any individual risk assessment; of being locked in cells 23 hours a day with lights always on and virtually no contact with lawyers or relatives; of physical and mental abuse ranging from being slammed against walls to ethnic taunts and interrupted prayers.
In addition, the report suggests that the Justice Department was aware its actions might violate legal strictures. The inspector general, Glenn Fine, finds INS lawyers had warned that delays in releases were creating an "increased risk of litigation." When detainees did challenge their detentions, the Justice Department avoided addressing the substantive legal issues surrounding its policies by quickly obtaining FBI clearance for their release, the report suggests.
THE Justice Department defends its actions, saying in a statement that the "most difficult of circumstances" were "fully within the law and necessary to protect the American people." "The law was scrupulously followed and respected while aggressively protecting innocent Americans from another terrorist attack," said spokeswoman Barbara Comstock.
But critics say the report could give new credence to allegations of civil rights violations. "It confirms what we were claiming: They had a conscious policy to hold people without sufficient showings they were dangerous or connected to terrorism, and a conscious policy to hold people long after an immigration case was resolved," says Mr. Cole.
The ACLU's Immigrants' Rights Project says it's "actively assessing claims" that might be brought as a result of the report.
Any such lawsuits may be complicated by the fact that most of the detainees have already left the country, either voluntarily or via deportation for overstaying their visas, says Crystal Williams of the American Immigration Lawyers Association.
For instance, David Leopold says he represented 11 Israeli 20-somethings who were rounded up from their apartments at night by armed federal agents. They were held in county or municipal jails for three to five weeks before being allowed to leave. Mr. Leopold says his clients initially considered a civil rights suit but instead jumped on a plane. "These kids were so traumatized ... they were just relieved to get out of here and go back to Israel," he says. Cole says the detainees' status as foreigners may limit the political impact of the report as well.