Some of the 762 mostly Middle Eastern men detained on immigration charges after the September 11 attacks "appear to have been arrested more by virtue of chance encounters or tenuous connections to a … lead rather than by any genuine indications of a possible connection with or possession of information about terrorist activity," concludes Justice Department Inspector General Glenn A. Fine in his 200-page report, released on June 2, on the detentions.

"For example, on September 15, 2001, New York City police stopped a group of three Middle Eastern men in Manhattan on a traffic violation. The men had the plans to a public school in their car. The next day, their employer confirmed that the men were working on construction at the school and that it was appropriate for them to have the plans. Nonetheless, they were arrested and detained as September 11 detainees."

Among other "significant problems" that Fine documents: "The FBI in New York City made little attempt to distinguish between aliens who were subjects of the FBI terrorism investigation … and those encountered coincidentally to a [terrorism-related] lead"; the Justice Department’s "hold until cleared" policy for all such people resulted in an average detention of 80 days, mainly because the FBI clearance process "was understaffed and not given sufficient priority"; the government continued to detain "aliens with final orders of removal who wanted and were able to leave the country," but whom the FBI had not gotten around to clearing. The 84 detainees assigned to the federal Metropolitan Detention Center in Brooklyn, N.Y., were "locked down" for at least 23 hours a day with their cell lights on all night; shackled with handcuffs, leg irons, and heavy chains every time they were taken outside their cells; limited to so few phone calls that many were unable to retain lawyers or reach their families; and subjected to "a pattern of physical and verbal abuse by some correctional officers."

What says Attorney General John D. Ashcroft to these men-very few, if any, of whom turned out to have any connection to terrorist activities? Through Justice Department spokeswoman Barbara Comstock, he said this: "We make no apologies for finding every legal way possible to protect the American public from further terrorist attacks…. Those detained were illegal aliens." This was reminiscent of Ashcroft’s response when asked in late November 2001, by Newsweek magazine, whether the government should apologize to nonterrorists who had been incarcerated for months, many under harsh conditions, for overstaying their visas. "No," Ashcroft responded. "The United States of America does not apologize to law violators."

On the other side of the political spectrum, Georgetown law professor David Cole, a leading civil libertarian, recently wrote in The Washington Post: "The inspector general’s report illustrates what happens when the government adopts a `preventive’ law enforcement strategy, as Ashcroft has so proudly done since the terrorist attacks. The justice system is generally backward-looking. The presumption of innocence and due process require objective evidence that an individual has actually done something wrong before he can be stuck in a prison cell."

The inspector general’s report, and the reactions of Ashcroft and Cole, suggest that neither our leaders nor their civil-libertarian critics have yet come to grips with the utterly novel problem presented by September 11’s demonstration that a handful of determined terrorists can murder thousands of Americans-perhaps millions, once they get atomic weapons-in a flash. It is a problem for which even our vocabulary is inadequate. When the most precise noun to describe people like those three unlucky Middle Eastern construction workers is "suspect," that word, with its probably-a-criminal connotation, is stretched too thin.

Stalked by the deadliest terrorists in history, we are armed with legal rules calibrated largely for dealing with drug dealers, bank robbers, burglars, and ordinary murderers, and we are stuck in habits of mind that have not yet fully processed how dangerous our world has become. "The old adage that it is better to free 100 guilty men than to imprison one innocent describes a calculus that our Constitution-which is no suicide pact-does not impose on government when the 100 who are freed belong to terrorist cells that slaughter innocent civilians and may well have access to chemical, biological, or nuclear weapons," in the words of Harvard Law School’s Laurence H. Tribe.

Civil libertarians such as Cole ignore this reality when they condemn Ashcroft for pushing the Justice Department and the FBI to focus on preventing future terrorist acts instead of looking backward. Ashcroft is quite right to do this. He is also right to understand that sometimes this calls for preventive detention of people who are very probably harmless, but who seem a lot more likely to be international terrorists than you, me, or your typical Middle Eastern immigrant. Not only does Al Qaeda’s capacity to inflict catastrophic carnage dwarf any previous domestic-security threat; its martyrdom-seeking "sleeper" agents are trained to avoid criminal activities that might arouse suspicion until they strike. The careful ones will not be arrested on criminal charges until after their mass murders, if at all.

But Ashcroft seems dangerously indifferent to a corollary reality: When you "preventively detain" people-the vast majority of whom you know will probably prove harmless-you are no more justified in treating them as criminals than if they were school children involuntarily quarantined because they might possibly be infected with SARS.

You should not presume them all guilty. You should not treat them-or talk about them-as criminals or "suspected terrorists," and thus lump a group, almost all of whom are not terrorists, together with admitted Qaeda members such as Zacarias Moussaoui. You should not let the sluggish FBI bureaucracy leave men locked up for months after their harmlessness has become clear to the agents handling their cases.

And you should not stigmatize as "law violators," and thus somehow deserving of such treatment, people who have done nothing worse than overstaying their visas or the like. Yes, they violated immigration law. But such violations are not criminal offenses-for good reason. No moral stigma should attach to those of the world’s tired, its poor, its huddled masses yearning to breathe free who seek to share in the bounty of America. Even those of us who support stricter enforcement of immigration laws-out of fear that a flood of poor immigrants may dilute our prosperity-should recognize that ours is fundamentally a selfish impulse. It gives us no standing to pass moral judgment on "illegal aliens." They come to America to make better lives for themselves and their families, by washing dishes at our restaurants, cleaning our homes and hotel rooms, and doing other dirty jobs that Americans won’t take. They come for the same reasons that our ancestors came. And they deserve the same respect.

"Every time I have brought this up in Republican circles," says a Bush backer whose parents immigrated legally, "people have accused me of not respecting the law. Shame on us as a country, that we have let 9/11 wound us so deeply as to allow xenophobia to rise to these levels. Shame on us as Republicans, that we have not been able to surpass political fear and enact new immigration laws that can weed out terrorists at the border and allow economic refugees a chance to make a new and legal life here while assisting our economy."

The point is not that Ashcroft was wrong to detain probably harmless people based on any scintilla of a sign that they might possibly be terrorists. Although detention for minor immigration violations is highly unusual, it was justified by the unprecedented nature of the post-9/11 emergency. When officials came across an illegal immigrant who had shared living quarters with one of the 19 hijackers, and another who had a vast collection of photos of the twin towers and anti-American "holy-war" propaganda, for example, it made sense to lock them up first and ask questions later. It also made sense to hold them until they were cleared, if any legally valid pretext could be found for holding them.

Ashcroft does not owe anyone an apology for these policies. He does owe apologies to several hundred people for holding them far longer than necessary. He also owes apologies to at least 84 people for the unduly harsh conditions at the Metropolitan Detention Center. And he owes apologies to all (or almost all) 762 detainees for his implication-in tarring them as "law violators"-that they deserved to be treated like terrorists.

Ashcroft had the legal power to detain these people, as he has stressed, because they had violated immigration laws. But having the power does not mean never having to say you’re sorry.