A Letter to the Ombudsman From U.S. Immigration and Customs Enforcement

May 19, 2008

Deborah Howell
Ombudsman
The Washington Post
1150 15th St. NW
Washington, D.C.
20071

Dear Ms. Howell,

I write to lodge a formal complaint about the series of articles published this week in The Washington Post about detention healthcare. Disguised as objective investigative journalism, these adversarial articles are misleading and highly editorial in nature. I respectfully request that your office make an inquiry into this case of unethical reporting.

As an initial matter, I should highlight that U.S. Immigration and Customs Enforcement (ICE) is committed to ensuring the safety and well being of the hundreds of thousands of individuals who come through our detention facilities each year. We make every effort to enforce all existing standards and, whenever possible, to improve upon them. We want to know when our standards are not being met, so that we can take immediate action to correct deficiencies. Accordingly, it is a tremendous help to us, to those in our custody, and to the country when legitimate concerns are brought to our attention. That said, last week's articles written by Dana Priest and Amy Goldstein are more harmful than helpful.

Before the series went to press, our dealings with Ms. Priest and Ms. Goldstein caused us to suspect that ICE and the Division of Immigration Health Services (DIHS) were about to be unfairly treated by the media. Our correspondence with them began on Tuesday, April 29, when Ms. Goldstein called the ICE Office of Public Affairs (OPA) to put us on notice that she and Ms. Priest would soon publish a "lengthy and comprehensive" story on "ICE detention." The conversation was cryptic, but we were told they would be sending us some questions later that week.

On Friday, May 2, Ms. Goldstein and Ms. Priest called OPA to inform us that the story would involve "detainee healthcare." Asked if they had been secretly planning to publish a surprise, or "gotcha" story, Ms. Goldstein said they were not and they legitimately wanted ICE's input and information. They indicated that some of their questions would involve specific detainees, and OPA advised that, absent privacy waivers, ICE would be limited in its ability to respond to specific allegations. They said they would look into the privacy matter. After the phone call, Ms. Priest, and her partners at CBS "60 Minutes," began sending complex and specific questions via email, with a quick deadline of Wednesday, May 7. Regrettably, they secured no waivers on the individuals about whom they were asking in advance of the deadline. I should note that they did eventually secure two waivers after the series began to run, however their tardiness made it impossible for ICE to respond appropriately.

To meet the demand, we asked staff to work on the questions over the weekend and late into the nights. In time for the May 7 deadline, we provided our responses, limited as they were due to the lack of privacy waivers and the difficulty obtaining all of the relevant information involved within such a short period of time. OPA spent the following days responding to follow up questions and ensuring the media had all the facts and circumstances they needed for a balanced story. Surprisingly, though, no one interviewed any ICE officials.

On Saturday evening, May 10, Ms. Priest and Ms. Goldstein informed us that an undisclosed number of articles would begin running the following day. Ms. Priest said their theory was that the detention population has grown faster than the government's ability to adequately manage detainee needs and that the medical care is "wholly inadequate." They would be using a number of cases to tell their story. In an effort to gauge balance, OPA asked Ms. Priest if it would reference the numerous cases wherein the detainees readily admit their lives were saved by ICE medical intervention, or the cases of exceptional health care or non-routine procedures that have been performed for ICE detainees. Ms. Priest responded curtly, "No, that isn't the focus of our story . . . I'm not going to debate our story with you, we are focusing on the deplorable care that detainees receive." It was abundantly clear that an objective story on detainee medical care was not their goal.

Notwithstanding that Ms. Priest and Ms. Goldstein effectively put us on notice that their articles would be imbalanced, frankly we were shocked with what actually went to press. In addition to omitting important and known circumstances and context, the authors distorted and misrepresented the facts in the cases and stories they cited. They misled the public to a significant degree, and by doing so, they worked a disservice to the country.

We have numerous concerns that you can review on our website, at www.ice.gov, but it is appropriate to highlight certain examples that demonstrate an egregious, and in some cases willful disregard for factual accuracy.

Consider the following representations made in Sunday's article about detainee rights and general conditions of detention. Ms. Priest and Ms. Goldstein hyperbolically claim that ICE "detainees have less access to lawyers than convicted murderers in maximum-security prisons, and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay, Cuba." They say, "about 33,000 people are crammed into these overcrowded compounds on a given day, waiting to be deported or for a judge to let them stay here." Finally, there is the claim that "some compounds never allow detainees outdoor recreation; others let them out onto tiny dirt patches once or twice a week."

Their comparisons on detainee rights are reckless, at best. All individuals who are detained while in administrative removal proceedings are notified of their right to counsel which, by statute, cannot be at the expense of the government. We provide them with a list of pro bono representatives as a matter of practice when they are notified of the basis for being placed in removal proceedings. All facilities are required to abide by the ICE National Detention Standards. Under these standards, attorneys are entitled to, and receive, more access than any other visitor to ICE facilities. Indeed, all of our facilities permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on weekdays. In no way can this arrangement be compared to the access "convicted murderers" have to their lawyers. Given the exceedingly comprehensive nature of the ICE National Detention Standards, which were developed in consultation with a number of immigrants' advocacy groups and the American Bar Association, and which afford detainees such things as family visitation, free calls to consulates, pro bono legal services, and the Inspector General, it is hard to imagine how the treatment of detainees can be, in any way, objectively compared to Guantanamo Bay.