AILA Issue Paper - Immigration, Security, and Civil Liberties

Cite as "Posted on AILA InfoNet at Doc. No. 21ip2001 (May 30, 2002) ."

THE ISSUE: Both Congress and the Administration have taken steps to greatly expand the power of government in the wake of the September 11 terrorist attacks. Many of these initiatives fail to achieve the appropriate balance between enhanced security and our Constitutional guarantees and protections. While our nation is facing many challenges, we must not compromise our freedoms as we strive to enhance our security. Doing so will damage our liberty here and our credibility in the world. 

BACKGROUND: In response to the terrorist attacks, Congress with little deliberation passed the USA PATRIOT Act. This new law includes several troubling provisions. It casts such a broad net that it will allow for the detention and deportation of people engaging in innocent associational activity and Constitutionally protected speech, and will permit the indefinite detention of immigrants and noncitizens who are not terrorists. 

Unilateral actions taken by the Department of Justice (DOJ) have been equally, if not more, troubling. Without congressional consultation or approval, the DOJ has issued a series of new measures that expand even further the power of government and erode, or threaten to erode, important Constitutional principles. These actions threaten our fundamental Constitutional guarantees and protections that set our nation apart from others. While every step must be taken to protect the American public from further terrorist acts, our government also must not trample on the Constitution and on those basic rights and protections that make American democracy so unique.

AILA'S POSITION: Since September 11, thousands of individuals have been arrested and detained in the U.S., despite law enforcement acknowledging that they have no connection to terrorism. These actions waste valuable law enforcement resources on people who pose no threat to our national security, and violate the fundamental principle of our judicial system. AILA is deeply troubled by the following practices:

Holding people in jail without charges: Despite a clear statement from Congress in the USA PATRIOT Act that even suspected terrorists must be charged within 7 days of their arrest, the Attorney General has issued new regulations that authorize the INS to hold any noncitizen in custody for an unspecified period of time without charging the person with an offense. The rule is unlimited in its application, and can be applied to any noncitizen regardless of the circumstances surrounding his or her arrest. Under these regulations, the INS has held people in custody for weeks, and even months, without bringing charges against them. This rule violates the fundamental principle of our judicial system-that no person should be subject to arrest and imprisonment without reason, explanation, and due process of law.

Closing immigration hearings and refusing to disclose basic information on the detainees: Without providing any rationale or justification, the DOJ has ordered immigration judges to conduct certain hearings separately from all other cases and to exclude visitors, family, and the press. Even though these cases involve no classified evidence, the record of these proceedings will not be released and court officials may not confirm or deny whether such a case is on the docket or scheduled for a hearing. The Justice Department has also refused to disclose basic information about the more than 1,200 people detained since September 11. Such silence, months after the initial arrests and despite repeated inquires, is unacceptable. We still do not know who is being detained, where they are being held, the nature of the charges against them, and how many remain unrepresented by counsel. The immigration process should be open to the public unless a judge has determined that there is a compelling reason to keep out the public or withhold information. Secret hearings are the practice of repressive regimes, not open and democratic societies.

Punishing innocent associations and Constitutionally protected speech: The USA PATRIOT Act includes provisions that:
    • Authorize the Attorney General (AG) to arrest and detain noncitizens based on mere suspicion, and require that they remain in detention "irrespective of any relief they may be eligible for or granted." (In order to grant someone relief from deportation, an immigration judge must find that the person is not a terrorist, a criminal, or someone who has engaged in fraud or misrepresentation.) When relief from deportation is granted, no person should be subject to continued detention based merely on the Attorney General's unproven suspicions.
    • Require the AG to bring charges against a person who has been arrested and detained as a "certified" terrorist suspect within seven days, but the law does not require that those charges be based on terrorism-related offenses. As a result, an alien can be treated as a terrorist suspect despite being charged with only a minor immigration violation, and may never have his or her day in court to prove otherwise.
    • Make material support for groups that have not been officially designated as "terrorist organizations" a deportable offense. Under this law, people who make innocent donations to charitable organizations that are secretly tied to terrorist activities would be presumed guilty unless they can prove they are innocent. Restrictions on material support should be limited to those organizations that have officially been designated terrorist organizations. 
    • Deny legal permanent residents readmission to the U.S. based solely on speech protected by the First Amendment. The laws punish those who "endorse," "espouse," or "persuade others to support terrorist activity or terrorist organizations." Rather than prohibiting speech that incites violence or criminal activity, these new grounds of inadmissibility punish speech that "undermines the United States' efforts to reduce or eliminate terrorist activity." This language is unconstitutionally vague and overbroad, and will undeniably have a chilling effect on constitutionally protected speech. 
    • Authorize the AG and the Secretary of State to designate domestic groups as terrorist organizations and block any noncitizen who belongs to them from entering the country. Under this provision, the mere payment of membership dues is a deportable offense. This vague and overly broad language constitutes guilt by association. Our laws should punish people who commit crimes, not punish people based on their beliefs or associations.
Monitoring conversations between detainees and their lawyers: Beginning on October 30, the DOJ has been able to monitor mail and other communications between lawyers and clients who are in federal custody, including people who have been detained but not charged with any crime. Based solely on the suspicions of the Attorney General, the monitoring can be conducted without a court order for up to one year, and is not subject to judicial review. The new regulations also expand the definition of "inmate" to cover anyone "held as witnesses, detainees or otherwise" by INS agents, U.S. marshals or other federal authorities. Eavesdropping on protected attorney-client communications without a court order violates fundamental protections provided by the Constitution regarding the right to counsel. This measure compromises lawyers' ability to provide effective counsel and limits the rights of detainees to confer with their lawyers in confidence. 

Holding people in custody even after an immigration judge has found them eligible for release: The Attorney General recently issued new regulations that will require people in immigration proceedings to remain in custody even though an immigration judge has found them eligible for bond. In its rationale for the new regulation, the DOJ has not asserted that immigration judges or the Board of Immigration Appeals (BIA) were abusing their power or unnecessarily denying motions to stay a bond redetermination. Rather, the DOJ, by arguing that the new regulation will "avoid the necessity for a case-by-case determination of whether a stay should be granted in particular cases," completely eviscerates the longstanding roles of an immigration judge in making bond determinations and the BIA in reviewing those decisions. When important liberty interests are at stake, a case-by-case review is exactly what the principles of our judicial system demand. Making the INS the chief prosecutor and the chief judge on the issue of releasing people from jail is a violation of the fundamental principle of due process.

21IP2001
05/30/02



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