Laudable use of the law

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The detentions and deportations of 762 illegal aliens suspected of terrorism links in the wake of the September 11, 2001, abominations marked one of law enforcement's finest hours.

The villainies were acts of war against the United States. The president's maximum self-defense powers were triggered. He exercised magnificent restraint and moderation, and stayed scrupulously within the Constitution.

The law enforcement process that occasioned the removals of the 762 illegals was untroublesome. Based on credible intelligence, the Federal Bureau of Investigation interviewed (but did not arrest) persons who could have been connected with September 11 or global terrorism. An Immigration and Naturalization Service agent accompanied the FBI to determine immigration status.

The suspect was released if the FBI expressed no terrorism investigative interest and his immigration status was impeccable. On the other hand, aliens were arrested when evidence of illegal status surfaced. They were held even after deportation orders had ensued until the FBI, in consultation with the Central Intelligence Agency, cleared the alien of complicity in terrorism. Any shorter detention periods would have risked releasing aliens to commit terrorist crimes against the United States. The Constitution is not a suicide pact.

The presence of each of the 762 detainees was illegal, an astonishing example of enforcement perfection. None had been singled out because of government animus toward Arabs or Muslims. Release on bond before deportation proceedings was uniformly opposed by the Justice Department. Experience showed that 87 percent of released detainees absconded, a figure that climbed to a frightening 94 percent for aliens from nations that sponsor terrorism.

The INS and the FBI acted with admirable swiftness in notifying detainees of the outstanding immigration charges against them and investigating criminal terrorism links before permitting deportation. Approximately 60 percent of the detainees were served with noticed of the immigration violations within three days of arrest; approximately 22 percent received notice between four days and 31 days after initial detention; and, a minuscule 3.1 percent received less punctual notifications. All the delays were ascribable to logistical or bureaucratic management vexations; none were sparked by animus toward the detainees or government maneuvering to deny the aliens fair and reliable deportation hearings.

Ditto for the clearance delays before the deportations. The average wait for a September 11 detainee before clearance by FBI headquarters was an unalarming 80 days; the median delay was 69 days; the shortest clearance time was eight days, and the longest 244. None of the delays were ill-motivated. The bulk were caused by a shortage of FBI agents at field offices preoccupied with more urgent counterterrorism tasks.

The detainees were citizens of more than 20 countries. Approximately 33 percent, or 254, were citizens of Pakistan; 111 were Egyptian; nine were Iranian; six were Afghan; and, 29 were citizens of Israel, the United Kingdom, or France.

In order to appreciate the exemplary Justice Department's behavior that culminated in the unerring detentions and deportations of 762 illegal aliens, fix your memory on September 11, 2001.

Four civilian aircraft are hijacked by 19 aliens of Middle Eastern descent, 15 from Saudi Arabia. Some might have earlier been deported for technical immigration violations. The aircraft are employed as weapons in a terrorist war against the United States to murder approximately 3,000 civilians. It is unknown whether complementary terrorist attacks are impending against the White House or Congress. It should be recalled that President Abraham Lincoln's assassination by John Wilkes Booth was part of a larger plot to murder Vice President Andrew Johnson and Secretary of State William Seward in hopes of shattering the national administration.

The September 11 detentions and deportations, nevertheless, have been counterfactually likened to the World War II concentration camps of 120,000 Japanese-American citizens. But the differences were monumental. The detainees were illegal aliens who had violated immigration laws; their deportations were not based on race, religion, or ethnicity; and, their detentions before deportation ordinarily lasted less than three months. The relocated Japanese-Americans were legally present in the United States; they had violated no laws; they were selected solely because of ancestry; they were detained for years; and, enjoyed no opportunity for release despite irreproachable records of loyalty.

-Last month, the Justice Department inspector general, Gerald A. Fine, issued a voluminous report styled, "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks." Major newspapers alleged the IG's report chronicled government "abuses." But the report eschews that term, and generally describes enforcement irregularities as "problems." Indeed, the report corroborates the Justice Department's unstinting respect for the rule of law and moderation at a time of maximum peril by the nature of its criticisms.

Emblematic of the alleged deficiencies were exercise periods in cold morning hours; too much lighting; counting detainee voice mail to attorneys as an effective communication; inaccurate telephone numbers on pro bono attorney lists; neglect to hand out grievance complaint forms; and, taunts like "you're going to die here."

Is there any other country in the history of mankind that would flagellate itself over such trivial hardships for illegal aliens during wartime?

Bruce Fein is a founding partner of Fein & Fein.