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September|October 2003
The IG By Lincoln Caplan


The IG

By Lincoln Caplan

IN THE TWO YEARS SINCE 9/11, the U.S. government has made protecting Americans against terrorism a priority, but often at the expense of individual rights, as lawyers both inside and outside the government have pointed out. The most effective response has been a 198-page report issued last spring by an obscure official in the Justice Department, the inspector general. The IG's report describes the detention of 762 illegal immigrants, in connection with the investigation into the attacks on the Pentagon and the World Trade Center.

The IG, a lawyer named Glenn Fine appointed by Bill Clinton, acknowledged that the overwhelming majority of the detainees were arrested on valid immigration charges, though charges that "in a time and place other than New York City post-September 11" would have resulted in much lighter treatment. Otherwise, however, he found "significant problems" in how the FBI and the INS arrested, imprisoned, and cleared detainees for release.

The government "made little attempt to distinguish" between possible terrorists and those caught by chance in the dragnet. It treated detainees as the opposite of what they were, classifying them as inmates whose cooperation with the government had put their lives in jeopardy and made it necessary to guard information about their identity, whereabouts, and status. Law enforcement officers as well as lawyers and family members had a hard time finding, let alone visiting, inmates.

Detainees were kept under a hold-until-cleared standard, "based on the belief, which turned out to be erroneous, that the FBI's clearance process would proceed quickly." The process took an average of 80 days per detainee, and detention was about as pleasant as it sounds; one prison officer said in an affidavit that detainees were regularly slammed against walls.

None of the 762 detainees was charged as a terrorist. But in testimony before Congress about the report, Attorney General John Ashcroft said that he and his colleagues "make no apologies" for the government's conduct. Instead, he asked for even greater authority to detain suspected terrorists. A week later, though, to much less fanfare, the Justice Department announced that it would implement changes recommended by the IG, including a plan to use stricter standards for identifying suspected terrorists. In July, the IG released a second report, identifying 34 "credible" complaints of civil rights violations by Justice employees against Muslim and Arab immigrants in detention centers. A department spokeswoman said that the "allegations will be thoroughly investigated."

IN THE AMERICAN SYSTEM OF CHECKS AND BALANCES, Congress is supposed to keep the Executive Branch from abusing its power. The combination of Republican control of both elected branches of government and the nation's wartime mentality means that Ashcroft's vigilance has rarely been checked or balanced. But the inspector general has the authority to step into the breach. While his report is imperfect—as the political scientist Thomas Powers has noted, the report concluded that "the FBI should have moved faster" but neglected the question of whether it could have—Glenn Fine did what other government officials have failed to do.

Twenty-five years ago, when Congress passed the Inspector General Act over opposition from the Executive Branch and put IGs in place at a dozen federal departments, the goal was to root out fraud, waste, and abuse in the wake of Watergate. The scholar Robert Behn sarcastically called the post the "latest invention for institutionalizing distrust." Initially, there was talk of making IGs lone wolves appointed for 10-year terms so that they would be buffered from politics and could attack wrongdoing without any concern about ruffling feathers. Instead, they ended up as quasi-independent gumshoes who are picked by the president (and can be fired by him as well) and who report to Congress and the heads of their agencies.

Sometimes an IG—the one from NASA who set up a sting to bust illegal sales of lunar mementos, for example—comes across like the lead character in Gogol's 19th-century satire The Inspector General: It would be a mistake to call him an important government official. But with 57 IGs now providing oversight at 59 agencies, their work has led to tens of thousands of criminal convictions and hundreds of millions of dollars in savings.

And IGs make findings that force the government to live up to its own standards. During the Clinton Administration, it was an investigation by the IG at Justice that led to a shake-up in the FBI lab after it had mishandled evidence in major cases, including the 1993 bombing of the World Trade Center. An IG's review may be less effective than the check of one branch of government against another, but it's better than no check at all. Institutionalizing distrust was exactly what the Constitution's framers had in mind.

Lincoln Caplan is the editor and president of Legal Affairs.

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