Attorney General John D. Ashcroft has issued orders that allow FBI agents and U.S. marshals to detain foreign nationals for alleged immigration violations in cases where there is not enough evidence to hold them on criminal charges, according to Justice Department officials and a copy of the rules.
The regulations, issued in December but not announced publicly, significantly breach the wall that has long separated federal law enforcement agents from immigration officers, who previously were the only personnel authorized in most circumstances to detain people in the country illegally.
Justice Department officials characterized the authority as a valuable tool in the war on terrorism for FBI agents and U.S. marshals, who have complained that overtaxed immigration officers have sometimes been difficult to locate during sensitive investigations.
The order could be put into wide use this week, when the FBI launches a wartime contingency plan that will include interviews with thousands of Iraqi nationals living in the United States, officials said. Dozens of those immigrants, including some believed to be sympathetic to Iraqi President Saddam Hussein, are likely to be arrested on suspicion that they have violated immigration laws, sources familiar with the pending operation said.
"There's no intent here to turn the FBI into an immigration agency," one FBI spokesman said. "It's really intended for counterterrorism cases, and is meant to give us the authority to arrest or detain until [Homeland Security] officers can arrive . . . . This is another useful tool at our disposal."
The change marks the latest attempt by the Justice Department to involve police and other criminal enforcement officers in immigration matters, which have traditionally been handled by officers of the former Immigration and Naturalization Service and by special administrative courts within the Justice Department. The INS was broken into pieces earlier this month and moved into the new Department of Homeland Security.
Historically, the functions of law enforcement agents and immigration officers have been kept separate in part to encourage illegal immigrants to report crimes without fear of detention or deportation.
Police in Florida and South Carolina are participating in a pilot program that allows them to make immigration arrests, and Justice Department lawyers concluded in a legal opinion issued last year that states and cities have the "inherent authority" to do so. But many police departments have said they do not want that authority.
Several immigration advocates condemned the change as the latest in a series of federal counterterrorism tactics that have unfairly targeted immigrants. Since the Sept. 11, 2001, attacks, the Justice Department has conducted a dragnet that ensnared hundreds of immigrants, launched an effort to arrest more than 300,000 who have ignored deportation orders, and is photographing and fingerprinting visitors from 25 countries, almost all of them predominantly Muslim.
"It's part of a pattern that we're seeing in which what may be minor violations of immigration law are used as a pretext for preventive detention," said Bill Frelick, an immigration policy expert at Amnesty International.
Judy Golub of the American Immigration Lawyers Association also questioned whether Ashcroft was overstepping his authority, saying Congress and the public should have been notified of the change.
The Dec. 18 order authorizes "special agents of the FBI to exercise the functions of immigration officers for the purpose of . . . investigating, determining the location of and apprehending any alien who is in the United States in violation of the Immigration and Nationality Act" or other immigration laws, according to a copy obtained by The Washington Post.
The FBI has drafted guidelines to ensure that the authority is used "only in appropriate situations, such as when the public safety requires prompt action before [Homeland Security] agents can arrive," a senior Justice official said in a statement. Several FBI and Justice Department officials also said they intend to use the powers only in counterterrorism cases.
But Ashcroft's order appears to include no such restrictions. Those covered by the order include, but are not limited to, visiting foreign nationals who must register with immigration officials as part of a government effort to fingerprint and photograph visitors from countries believed to have a significant al Qaeda presence.
Staff researcher Madonna Lebling contributed to this report.