By the winter of 2001, hundreds of dark-haired men became immigration detainees, prisoners doing time for a hideous crime that none of them had committed. The domestic roundup was linked to a broader hunt, one of international proportions. Congress hadn’t declared war. “But we are at war with an enemy that has flagrantly violated the laws of war,” the Bush administration responded. “They do not wear uniforms. They hide in caves abroad, and among us here at home.”  Thus, George W. Bush issued an order proclaiming that non-citizens, including legal residents, may be taken into military custody to be judged without public trial or jury, but by military commissions that may issue death sentences through a two-thirds vote. Bush’s administration later posited that even a citizen may be classified as a combatant and detained without access to a lawyer or the courts. According to a Newsweek report, Bush administration officials considered dubbing other citizens enemy combatants -- including an Ohio truck driver and a group of people from Oregon.  In the summer of 2004, Yaser Hamdi was freed from prolonged detention without being charged with terror-related activity, but through this case the Supreme Court gave backhanded support to Bush’s military order.  Most startling of all, Hamdi was obliged to give up U.S. citizenship. 
Those without citizenship were kept -- pun oddly appropriate -- at bay. It was January of 2002 when U.S. authorities began transporting captives from abroad to a military base in Guantánamo Bay, Cuba, to cage them in wire mesh. People from around 40 countries would linger indefinitely; some of them children and teens.  The base still holds some 550 captives; only four have been charged with crimes.  Former hostage Terry Waite stated: “This continued detention of people in Guantánamo Bay is doing fundamental harm to the image of America overseas, and in fact, in my opinion, ... is likely to increase terrorism by sending more people to the extreme edges.” 
Such clarity is in short supply in the midst of the continuing “war on terrorism.” Illustrating the vague quality of the U.S. perspective, Michael O’Neill, former general counsel to the Republicans on the Senate Judiciary Committee, opined that terrorism falls somewhere on the spectrum between “shoplifting from Neiman Marcus” and “I declare war against the United States, and I’m a sovereign nation.” 
Crime and punishment
September’s crime demanded punishment. It came, dressed as intelligence-gathering. Well before the hideous photos emerged from Abu Ghraib, reporters had stated that interrogation techniques used by U.S. officials abroad included covering suspects with black hoods for hours at a time; battering them senseless; withholding basic needs such as human contact, sleep, food, water, clothing, and light; and denying medical help.  In early 2003, two Bagram prisoners recounted being chained by their hands to the ceiling in isolation cells.  In the interest of evading legal accountability, as a former intelligence official put it, “There was a debate after 9/11 about how to make people disappear.” 
The question was
not confined to debates. In June 2003, authorities arrested a 23-year-old
U.S. citizen who was studying in Saudi Arabia -- and who remains, at the
time of this writing, detained there without charges. A petition for habeas
corpus filed by Ahmed Abu Ali’s parents includes “well-supported
allegations” that the student’s arrest and detention have been carried out
at the behest of the U.S. government.
 Within days of the arrest, agents from the
Federal Bureau of Investigation (F.B.I.) raided Abu Ali’s home in Virginia,
seeking evidence of a terrorist conspiracy. Abu Ali’s parents later heard
news that their son, a U.S. citizen, has faced torture. In response to the
parents’ filings, the U.S. government has taken the position that a U.S.
citizen simply loses the right to a hearing once in the hands of a foreign
authority. “[F]ar from trying to protect Abu Ali,” commented human rights
lawyer Joanne Mariner, “the American government may have simply outsourced
his abuse.” 
In late 2003, a team of intelligence officers left Guantánamo for Iraq to teach interrogation techniques.  Abuse tantamount to torture -- including rapes, use of attack dogs, and photographing dead Iraqi detainees -- was subsequently ordered by Army intelligence officers, CIA agents, and private contractors. 
Reports of severe maltreatment and humiliation have been aired worldwide by former and current detainees.  Yet in December of 2005, despite worldwide pressure and the signatures of 271 members of the British and European Parliaments as amici on behalf of the detainee, the U.S. declined to expedite a challenge to the trial planned for Salim Ahmed Hamdan -- and potentially, by extension, for hundreds of other Guantánamo detainees. In November, U.S. District Judge James Robertson in Washington, D.C. ruled unconstitutional a Military Commission’s war crimes trial for the Yemeni plaintiff. Hamdan’s lawyers subsequently asked to skip the appeals court and have the Supreme Court decide. The Bush administration told the court there was no legal reason to expedite Hamdan’s case. The Supreme Court could still agree to hear it, but it might now be delayed until the autumn term of 2005. 
Meanwhile, Pentagon planners have requested $25 million to build a 200-cell, mortar-and-steel prison, called Camp 6, to fortify Guantánamo’s Camp Delta; and the Army is creating a full-time, 324-member Military Police Internment and Resettlement Battalion to replace the temporary force at the base.  Indeed, just after the Pentagon lodged the first charges against two Guantánamo detainees, U.S. military officials said that those convicted in tribunals would serve their sentences -- even when the “war on terrorism was deemed to be over” -- and suggested that those who weren’t convicted might be held indefinitely “if it was thought they might launch new attacks on U.S. interests.” 
Regarding terrorism suspects held indefinitely in Britain in the aftermath of the infamous September, David Blunkett, at that time the Home Secretary, called insistence on suspects’ rights “airy-fairy.”  Shortly thereafter the White House legal counsel asserted in a memo that the Geneva Conventions should not regulate the conduct of U.S. soldiers or CIA interrogators. “As you have said,” wrote Alberto Gonzales to Bush, “the war against terrorism is a new kind of war.” Gonzales concluded: “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”  With respect to Arab and Muslim suspects, core protections for human rights and civil liberties are, it would seem, positively passé.
Middle-eastern asylum-seekers, who, under international law, are due respect and protection, have strained to see any light coming from the lamp beside the golden door. In 2002, the U.S. Congress placed immigration enforcement into the new Department of Homeland Security; in early 2003, the department’s Operation Liberty Shield mandated detention for anyone who arrives from a country designated as harbouring terrorists and applies for asylum at a U.S. port of entry without valid entry documents, although arrival sans documents is a common situation with asylum seekers.  Detainees, even if they happen to be fleeing persecution abroad, can linger in jail cells for months or even years.
Non-citizens with any legal irregularities are subject to being recast by the Bush administration as security threats. In recent months, the government has invoked national security to hold scores of undocumented Brazilian émigrés, claiming that the influx poses a threat by consuming resources at the southwest border.  And most asylum-seekers from Haiti have been taken into custody since Attorney General Ashcroft began invoking anti-terrorist regulations to subject whole groups of asylum seekers arriving by sea to mandatory detention. 
The U.S. comprises under 5% of the planet’s human population; yet its prisons contain about 25% of the world’s detainees.  Some have been charged under criminal laws, others as undocumented migrants. Immigration law is civil, not criminal; hence the government claims it need not provide lawyers to those who violate it. And yet, as Justice Brandeis wrote, its penalties can deprive a person of “all that makes life worth living.” 
The mingling of immigration law enforcement and private prison corporations began two decades ago. Robert Kahn explains:
The U.S. Justice Department began to privatize the immigration prison system at the same time the Reagan White House privatized the war against Nicaragua. The Laredo prison opened in March 1985 on a contract with the Corrections Corporation of America. It was the first U.S. immigration prison built to imprison infants and children -- “with the cribs right in the cells,” the INS district director said. All prisoners, including babies, had their body cavities searched before and after each meeting with a legal representative. The only way to avoid being strip-searched was not to ask to see a lawyer. 
Corrections Corporation of America (CCA) hired a former Bureau of Prisons director, J. Michael Quinlan, who now handles business opportunities for federal, state, and local government.  Irving Lingo, CCA’s chief financial officer, told attendees at the Deutsche Bank Global High Yield Conference in October of 2003 that only 6.1% of a $50 billion U.S. detention market had so far been outsourced, showing that private companies have “barely scratched the surface.”  As international tensions expand opportunities for profit, CCA’s overlap with the military becomes especially noteworthy. Company co-founder Tom Beasley attended West Point and worked for the U.S. Army in Vietnam, the Panama Canal Zone, and Nicaragua.  Chief development officer Lieutenant Colonel William Baylor has taught at the Army’s Command and General Staff College, including a course in 2001 on “Sudan and its terrorist regime.” 
Halliburton subsidiary Kellogg Brown & Root, or KBR, has been doing business with the U.S. military since World War II. At Guantánamo, the company oversaw South Asian workers as they welded the cells of Camp Delta from steel shipping containers. Notably, U.S. Vice President Richard Cheney was chief executive of Halliburton from 1995 to 2000, and has been scheduled, even subsequent to the invasion of Iraq, to receive substantial deferred compensation from the company.  If a company fails, beneficiaries can lose deferred salary payments, but Halliburton successfully negotiated no-bid contracts with the administration in which Cheney plays a leading role. At the same time that the value of Halliburton’s contracts is rising -- to $10.77 billion as of December 2004 -- audits have catalogued widespread, systemic overbilling in Iraq, including KBR’s bills for “significant unsupported costs” which will cost taxpayers $1.82 billion. 
Wackenhut (now “GEO Group”)
advertises itself as “an industry leader and pioneer in the privatization of
facilities throughout the world” and “the largest publicly traded company
engaged solely in the business of managing correctional and detention
facilities.” It operates in the U.S.,
Canada, South Africa, Australia and New Zealand.
An advertisement in the September 2003
employment section of the Gazette, “the authorized publication for
members of the military services stationed at Naval Base Guantánamo Bay,”
solicited applications for jobs with Wackenhut at Guantánamo.
 In August of 2004, the company name appeared
in a eerie report: A New York journalist told of some 200 people working
for a dollar a day “under the radar” in Wackenhut’s building in Queens.
 Under the radar is under the Justice
Department’s very nose: The Executive Office for Immigration Review in
Queens is listed as “Queens Wackenhut Facility (Jamaica, NY).”
 Some of these detainees were reportedly
collected in the aftermath of September 2001, yet still had not been charged
with crimes or terrorism-related activities.
Given current trends, these and similar names will be central to the Homeland Security Department’s prosecutorial emphasis.  Government agencies have not found consistent or clear evidence of cost savings in private prisons,  but the industry has successfully nurtured political relationships.  The American Legislative Exchange Council, or ALEC, has furthered the effort by assiduously promoting corporate-sponsored legislation that guarantees a flow of detainees. CCA business development director Brad Wiggins and Brian Nairin of the National Association of Bail Insurance Companies have co-chaired ALEC's Criminal Justice Task Force, which proposes crime legislation,  and by the early 1990s ALEC was pressing its policies in Pennsylvania -- with the assistance of William Barr, Attorney General from the first Bush administration.  Through his Special Session on Crime, called immediately after his inauguration in January 1995, Pennsylvania governor Tom Ridge oversaw a legislative session that produced more than three dozen new crime bills -- many based on ALEC proposals -- and channelled more than $87 million in state funding for the expansion of public prisons and juvenile detention. Tom Ridge held the post from 1995 -- when the state’s corrections budget was approximately $600 million -- to 2001, when the legislature approved a Corrections Department budget exceeding a billion dollars.  Ridge also implemented a $2.3 million, state-of-the-art data system preferred by the F.B.I. 
After the September 2001 attacks, George W. Bush nominated Tom Ridge to head the new Department of Homeland Security. Bush is a self-styled “wartime president” and detention is packaged as an inevitable corollary of wartime. Yet the connections between economic interests and those who formulate detention policies enables us to transcend the view of political incarcerations as a war effort, and to see them as part of a dynamic set into motion before the fatal Tuesday in September of 2001.
Lee Hall teaches immigration law as a member of the Adjunct Faculty of Law at Rutgers University in Newark, New Jersey, and can be reached at email@example.com.
Other Articles by Lee Hall
“Military Commissions: Testimony of Secretary of Defense Donald H.
Rumsfeld and Deputy Secretary of Defense Paul Wolfowitz Before the
Senate Armed Services Committee (Dec. 12, 2001)
 Michael Isikoff and Daniel Klaidman, “The Road to the Brig,” Newsweek (26 Apr. 2004) at 26.
 Don Van Natta, Jr., “Interrogations: Questioning Terror Suspects In a Dark and Surreal World,” New York Times (9 Mar. 2003).
 Dana Priest and Joe Stephens, “Pentagon Approved Tougher Interrogations,” Washington Post (May 9, 2004).
 See “Research Paper 02/52: Detention of Suspected International Terrorists – Part 4 of the Anti-Terrorism Crime and Security Act 2001,” House of Commons Library (16 SEP. 2002) www.parliament.uk/commons/ lib/research/rp2002/rp02-052.pdf, noting that Blunkett was quoted in the Daily Telegraph on 12 November 2001 as dismissing critics’ concerns about the detention of suspected international terrorists and the denial of habeas corpus by saying, “We could live in a world which is airy fairy, libertarian, where everybody does precisely what they like and we believe the best of everybody, and then they destroy us.” The House of Lords clearly renounced this perspective in 2004 with an eight-to-one ruling -- but their decision carries no authority to strike down the anti-terror legislation under which the detentions continue; by the time of the decision, some detainees had been held without charge or trial for three years and at least three had gone insane. Robert Verkaik and Andrew Grice, “Law Lords Condemn Blunkett’s Terror Measures,” The Independent (17 Dec. 2004) http://news.independent.co.uk/uk/legal/story.jsp?story=594088.
Newsweek has linked a copy of the Memo, “Decision Re Application of the
Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and
the Taliban,” dated 25 Jan. 2002. See
 Susan Carroll, “Terror ties? No, But U.S. Detaining Brazilians,” Arizona Republic (25 Feb. 2004).
 See www.correctionscorp.com/officers.html.
 Rep. Henry A. Waxman, “Fact Sheet: Halliburton’s Iraq Contracts Now Worth over $10 Billion” (9 Dec. 2004): www.truthout.org/mm_01/5.120904A-1.pdf.