Cite as "AILA InfoNet Doc. No. 02020800 (posted Feb. 8, 2002)"
Resolution on Immigration, National Security, and Civil Liberties
AILA Board of Governors
January 18, 2002
Resolution: As the Congress and Administration take steps to strengthen this nation's national security, AILA supports efforts that balance enhanced security with the fundamental Constitutional guarantees and protections. AILA's position on congressional and administrative initiatives will be based on the achievement of an appropriate balance.
AILA strongly opposes efforts to cut back on the civil liberties of citizens and noncitizens alike including, but not limited to, the following:
· Restricting the release of information, responses to FOIA requests, and establishing closed hearings;
- Military tribunals;
- The monitoring of conversations between detainees and their lawyers;
- The grant to INS of an automatic stay in custody proceedings;
- Incentives, without protections, for aliens who provide information relating to terrorism;
- The identification of 5,000 men for questioning; and
- State and local efforts that discriminate against non-citizens.
Proponent: AILA Executive Committee
Background: In the wake of the September 11 terrorist attacks, both the USA PATRIOT Act's enactment and recent Bush Administration initiatives have greatly expanded the power of government. These initiatives fail to achieve the appropriate balance between enhanced security and our Constitutional guarantees and protections. In the next months and years, our nation will face many challenges. We must stand vigilant and not compromise our freedoms as we strive to enhance our security. Failing to do so will damage our liberty here and our credibility in the world.
THE USA PATRIOT Act grants the Bush Administration some, but not all, of the broad new powers the Administration indicated were necessary to protect national security and prosecute those who committed and will commit terrorist atrocities. While the new law's immigration measures are less restrictive than the proposal the Administration originally had presented to Congress, the 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 permit the indefinite detention of immigrants and noncitizens who are not terrorists.
More recent actions by the executive branch have been equally, if not more, troubling. After passage of the antiterrorism legislation, the Justice Department, without Congressional consultation or approval, issued a series of new measures that expand even further the power of government and erode, or threaten to erode, important Constitutional principles. These initiatives include a change in policy on the release of information about detainees, the interrogation of more than 5,000 Middle Eastern man between the ages of 18 and 33, and three new regulations that undermine important Constitutional protections. Each of these new regulations was implemented even before they were published in the Federal Register and without the usual waiting period for public comment.
Discussion: AILA has worked with and encouraged Congress to undertake oversight hearings on both the implementation of the new antiterrorism law as well as on recent Administration initiatives including the following:
1. New Policies on the Release of Information, Responses to FOIA Requests, and Closed Hearings: The Department of Justice (DOJ) has refused to disclose basic information about the more than 1,200 people detained since September 11. On October 29, AILA, along with other organizations, filed a Freedom of Information Act (FOIA) request with the Justice Department, the FBI, and the INS to challenge the unprecedented level of secrecy surrounding these detentions. Upon the denial of this request, AILA, along with our coalition partners, filed suit. The government justifies the refusal to provide information on grounds that the release of information would harm the investigation of the September 11 attacks and would raise privacy concerns. 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. Reliable reports of violations of due process-failure to provide reasonable access to counsel, constant delays in hearings, failure to release in a timely fashion individuals for whom an immigration judge has set bond, hearings conducted in secret in the name of "protecting the public interest" for individuals who are only charged with technical immigration violations-are heightened by the failure of the Department of Justice to provide the most basic information about the detainees.
In early October, the Attorney General issued an internal memo encouraging efforts to withhold information sought under the FOIA. The memo stated, "When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." This memo followed an earlier memo issued by Chief Immigration Judge Michael Creppy advising that certain cases identified by the Attorney General would be heard separately from all other cases and would be closed to visitors, family, or the press. The restriction of information also included confirming or denying whether such a case is on the docket or scheduled for a hearing. The Department of Justice would determine which cases would be subject to these closed proceedings, with no requirement that a justification be provided. Closed hearings are the hallmark of repressive regimes and should not be taking place in our democracy.
2. Military Tribunals: On November 13, President Bush issued a military order on the "Detention, Treatment, and Trial Of Certain Noncitizens In The War Against Terrorism." Citing his authority as Commander in Chief, the President authorized the creation of military tribunals to try noncitizens alleged to be involved in the al Qaeda network or in international terrorism against the U.S. This order raises serious concerns. The institutions of a democracy have time and again proven themselves strong enough to prosecute and bring to justice drug traffickers, mafia kingpins, terrorists like Timothy McVeigh and those responsible for the 1993 World Trade Center and the Kenyan and Tanzanian Embassy bombings. Our institutions are strong enough to bring to justice any terrorists responsible for the heinous crimes of September 11, and these institutions should have the opportunity and take on the responsibility of trying noncitizens arrested in this country and charged with terrorist activities. It is fundamentally unfair to have a situation in which two individuals, one a citizen and the other a noncitizen, who are arrested for the same crime in the U.S. are then tried in different judicial forums-one subjected to a secret military trial on the basis of his alienage and the other given a criminal trial in federal court because he is a U.S. citizen. Especially since September 11, the American people have demonstrated the necessary courage and will to serve on juries and to prosecute terrorist acts. Internationally, the U.S. long has supported international tribunals to try war criminals and has opposed the use of secret tribunals as they have been used by oppressive regimes around the world. We should lead by example and, in the process, gain legitimacy in the eyes of the world.
Congress, civil libertarians, the press, and reportedly the military's own lawyers (concerned particularly about the denial of basic due process protection for defendants) have raised concerns. The order creates military tribunals with sweeping powers to prosecute any noncitizen, including those living in this country, if the president has "reason to believe" that such an individual is or was a terrorist or "conspired to commit acts of international terrorism" against the U.S. or even threatened to cause injury to the nation. Under the order, the President has sole authority to determine whom the military tribunals shall prosecute, and the "reason to believe" standard is lower than the level of evidence required by probable cause. The order denies those prosecuted by the military tribunals an appeal to any court. Even more ominous, the President's order allows the trials to take place in secret, and allows the use of classified information against the defendant, which neither the defendant nor his attorney will be able to confront or refute, with no requirement for the government to produce any exculpatory evidence it may have. The tribunals act as both judge and jury, with three military officers forming the tribunal. The ranking officer presides as judge, but also votes on the guilt or innocence of the defendant. It takes only two votes of the three officers to convict. A mere majority vote can sentence the defendant to death.
The military tribunals provide the Justice Department with a way around many of the provisions of the USA PATRIOT Act, which limits the conditions and time under which individuals may be detained. As such, the Executive Order attempts to authorize what the Congress rejected in the Administration's initial antiterrorism proposal. AILA and other advocacy groups, in addition to many members of Congress, have opposed this usurpation of congressional and judicial authority. Reports on the preliminary rules for these tribunals developed by the Defense Department suggest that some concerns may be addressed. However, these rules are being drafted without congressional input and have yet to be made public.
3. The Department of Justice begins 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. Such eavesdropping on protected attorney-client communications 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.
According to a summary published in the October 31 Federal Register, the monitoring can be conducted without a court order whenever the Attorney General certifies "that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism." Such certification will last 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.
Other than vague and general assertions that these new measures are necessary to protect the public and will apply to only a limited number of people, the DOJ has not demonstrated the need for these rules to protect against attorneys who may help to facilitate future or ongoing criminal activity. Under existing law, federal authorities can seek appropriate remedies under the well-established "crime-fraud" exception to attorney-client privilege. In a closed-door hearing before a federal judge, and in the absence of the offending attorney, the court can take immediate and effective actions, including ordering the monitoring of communications if necessary. Other options include removing the attorney from the case and initiating criminal proceedings against attorneys. These procedures ensure judicial review in the narrow band of cases where an attorney is abusing the attorney-client privilege, protect legitimate attorney-client communications, and ensure that authorities have the power to investigate and prevent criminal activity without obstruction.
4. New Regulation Grants INS an Automatic Stay in Custody Proceedings: On October 29, the DOJ began enforcing new regulations that allow INS to obtain an automatic stay of an immigration judge's order releasing many immigration detainees from custody, whether on bond or without bond. This new regulation that provides for automatic stays of the bond decisions of immigration judges violates fundamental protections provided by the Constitution regarding the separation of powers and the independence of the judiciary.
According to the new regulation, the INS simply completes a form (EOIR-43) indicating the agency is considering appealing the judge's order. The INS then has 10 days to decide whether to appeal. Meanwhile the judge's release order is stayed and the person cannot be released. If the INS appeals the immigration judge's order by filing a Notice of Appeal within 10 days, the stay of the judge's order continues indefinitely, until the Board of Immigration Appeals decides the merits of the appeal. It is not unusual for Board of Immigration Appeals to take months before making a decision on a case.
The new rule applies to all cases where the INS initially set a bond of at least $10,000 or no bond (under the regulations, the INS initially determines the bond amount). The rule previously applied only to cases where these bond amounts applied AND the detainee was subject to mandatory custody for conviction of an aggravated felony. The new rule has no such restriction, so the INS will be granted automatic stays even in cases involving minor immigration violations.
5. Department of Justice Announces Incentives for Aliens who Provide Information Relating to Terrorism: The DOJ on November 29 announced a plan to encourage foreign nationals to come forward with information about terrorists by offering them help to obtain legal status. Under the "Responsible Cooperators Program," noncitizens who have "useful and reliable information" about terrorists would be offered "incentives:" the use of the S nonimmigrant status, deferring action on placing non-citizens into removal proceedings, and granting parole in the public interest.
While this announcement may mark a tactical change from "a stick to a carrot" approach, this initiative is dramatically flawed because it offers insufficient protections to people who come forward. For instance, the S visa, commonly called the "snitch visa," allows people to remain in the U.S. for up to three years if they provide information that has "substantially contributed to the success of an authorized criminal investigation or the prosecution of an individual." However, to be eligible for an S visa the person must waive his or her right to a removal hearing and right to contest any removal action, including his or her detention pending deportation or removal. In return for the waiver of these fundamental rights, the person is not offered any assurances that he or she will be granted permission to apply for permanent residency. The availability of the visa and an avenue to permanent status remains in the unreviewable discretion of law enforcement officials. If the DOJ is serious about creating incentives for individuals to come forward, it is necessary for the agency to provide specific written and enforceable assurances.
6. The Department of Justice Identifies 5,000 Men for Questioning, Interviews Many, and Reports it will Seek Out Additional People to
Interview: In a November 9 memo to all U.S. Attorneys and members of the Antiterrorism Task Force, Attorney General John Ashcroft noted that the Task Force would conduct interviews of 5,000 men between the ages 18 to 33 who entered the United States since Jan. 1, 2000, on student, business or tourist visas. Justice Department officials indicated that the men are likely to be Arab or from the Middle East. Upon completion of these interviews, the Attorney General has indicated the DOJ may seek to conduct additional interviews.
The decision to interrogate these men has alarmed civil rights leaders and been the subject of criticism within the law enforcement community. While this questioning may assist the DOJ to compile information critical to the current investigation, every care must be taken to assure that the questioning is voluntary, that individuals be afforded the opportunity to have counsel present if they desire, and that no aura of suspicion is cast which would instill fear and distrust within the very individuals and communities whose cooperation the DOJ seeks in its investigation. An over-wide net runs the danger of amounting to discriminatory profiling. Care must be taken to assure that the proper balance is maintained between legitimate law enforcement and overzealous sweeping fishing expeditions.
While the memo emphasizes that interviews will be voluntary, it also states that questioners "should feel free to use all appropriate means of encouraging an individual to cooperate, including reference to any reward money." The memo states that enforcing immigration laws is important. Information gathered in the interviews is to be entered into an electronic database. In addition, those interviewed who are found to have any irregularities in their immigration status could be subject to detention and deportation.
The questioning, interviewing or seeking out of people to interview or interrogate based on religion, ethnicity, or nationality without any reasonable belief that the individuals questioned or sought to be questioned have done anything wrong or have any information related in any way to criminal or terrorist activity without insuring the right to counsel or other basic rights should not be allowed.
7. State and local efforts discriminate against non-citizens depriving them of fundamental benefits and rights, including obtaining drivers licenses and the right to marry.
Implementation: If adopted, this resolution will guide AILA members and staff in advocacy efforts directed at legislative changes, promulgation of regulations, efforts with the media, and work with Congress, the Administration, INS, DOS, DOL, and other government agencies.