Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 01111659 | Dated November 16, 2001
As we take steps to increase national security and mourn the loss of the thousands killed in the recent terrorist attacks, the American Immigration Lawyers Association (AILA) is deeply concerned about recent government actions. 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, those steps must not trample on the Constitution and on those basic rights and protections which make American democracy so unique and precious and gives us needed legitimacy within our country and in the world.
The Department of Justice is engaged in a critically important law enforcement effort. AILA supports every effort to identify, prosecute and bring to justice the perpetrators of the heinous crimes of September 11, 2001. However, the arrest and continued detention of more than 1000 individuals in the wake of September 11 concerns us. Reliable reports of violations of due process-failure to provide 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 shred of information about the detainees. Who is being detained? What is the nature of the charges? How many detainees remain unrepresented by counsel? These and other questions remain unanswered two months after the initial arrests and despite repeated inquiries and the filing of formal FOIA requests. This silence is unacceptable.
The announcement by President Bush that military tribunals will be convened to try suspected non-citizen terrorists, both in the U.S. and abroad, is alarming and unprecedented in the absence of a Congressional declaration of war and, with no input from Congress, appears to be an end run around the legislative branch of government. The democratic 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. The American people have demonstrated in the weeks since September 11 that they have ample courage to serve on juries and to prosecute and judge such acts. In the international arena, the U.S. has long supported international tribunals to try war criminals such as Slobodan Milosovic and opposed the use of secret military tribunals as they have been used by repressive regimes around the world. We should lead by example and strengthen international institutions, not undermine them.
The interim regulations the Administration subsequently issued which provide for eavesdropping without warrant on protected attorney-client communication, and which also provide for automatic stays of immigration judge bond decisions, violate fundamental protections provided by the Constitution of the separation of powers, the independence of the judiciary and the right to counsel.
Finally, the announcement this week that 5,000 individuals have been identified for questioning (males between the ages of 18 and 33 who entered the U.S. after January 1, 2000 and who came from countries where terrorist acts were planned or committed) also is cause for concern. While this questioning may assist the Department of Justice 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 Department of Justice 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.
In the next months and years, our nation will face many challenges. We must stand vigilant and not compromise our freedoms. Doing so will damage our liberty here and our credibility in the world.
1ME1002A Statement 11-16-01
Cite as AILA Doc. No. 01111659.