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The Taylor Case

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The USA PATRIOT Act: (cont. page 5)
What's So Patriotic About Trampling on the Bill of Rights?

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      2. Detention at the Attorney General's Decree

At the same time that Section 411 vastly expands the class of immigrants who are removable on terrorist grounds, Section 412 vastly inflates the Attorney General's power to detain immigrants who are suspected of falling into that class.65 Upon no more than the Attorney General's unreviewed certification that he has "reasonable grounds to believe" that a non-citizen is engaged in terrorist activities or other activities that threaten the national security, a non-citizen can be detained for as long as seven days without being charged with either a criminal or immigration violation.66 This low level of suspicion falls far short of a finding of probable cause, and appears even to fall short of the "reasonable and articulable suspicion" that supports a brief investigatory stop under the Fourth Amendment.67

If the non-citizen is charged with an immigration violation, he is subject to mandatory detention and is ineligible for release until he is removed, or until the Attorney General determines that he should no longer be certified as a terrorist.68 While the immigration proceedings are pending, the Attorney General is required to review his certification once every six months.69 However, Section 412 does not direct the Attorney General either to inform the non-citizen of the evidence on which the certification is based, or to provide the non-citizen with an opportunity to contest that evidence at an Immigration Judge hearing or other administrative review procedure. Instead, Section 412 limits the non-citizen's ability to seek review of the certification to a habeas corpus proceeding filed in federal district court, appeals from which must be filed in the Court of Appeals for the District of Columbia.70 Since habeas proceedings are civil rather than criminal in nature, the government has no obligation under the Sixth Amendment to provide non-citizens with free counsel in such proceedings.71

Even where a non-citizen who is found removable is deemed eligible for asylum or other relief from removal, Section 412 does not permit his release.72 Further, in the event that the non-citizen is found removable, but removal is "unlikely in the reasonably foreseeable future"-most likely because no other country will accept him-he may be detained for additional periods of six months "if the release of the alien will threaten the national security of the United States or the safety of the community or any person."73 Only habeas review of such a determination is available under Section 412.74

The Due Process Clause "applies to all 'persons' within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent."75 Yet, Section 412 exposes immigrants to extended, and, in some cases, indefinite, detention on the sole authority of the Attorney General's untested certification that he has "reasonable grounds to believe" that a non-citizen is engaged in terrorist activities. It remains to be seen what evidentiary safeguards, if any, the Attorney General will build into his regulations implementing Section 412. It also remains to be seen how rigorous federal court habeas reviews of such certifications will be and to what extent the courts will demand that the Attorney General base his certification on objective evidence. Nevertheless, it is hard to avoid the conclusion that the Act will deprive non-citizens of their liberty without due process of law.76

      3. The Political Implications of the USA PATRIOT Act for Immigrants

In short, immigrants who engage in political activities in connection with any organization that has ever violated the law risk being certified as terrorists, placed in mandatory detention, and removed, whether on a technical immigration violation or on terrorism grounds. Immigrants cannot protect themselves from such risks by simply avoiding association with organizations that have been designated as "terrorist organizations" because the Act broadens that term to include undesignated groups. Nor can immigrants protect themselves from such risks by limiting themselves to activities that are protected by the First Amendment, such as soliciting membership for, soliciting funds for, and providing material support to, a "terrorist organization" towards the goal of furthering the organization's lawful ends, because the Act broadens the term "engage in terrorist activity" to include these activities. Ironically, in the post-USA PATRIOT Act world, immigrants who are intent on avoiding such risks should refrain from any associations with organizations that could potentially be deemed terrorist, even if their association is strictly confined to activities that further the humanitarian and peace-oriented goals of the organization, such as training members of such a organization on how to present international human rights claims to the United Nations, representing such an organization in peace negotiations, and donating humanitarian aid to such an organization.


Our commitment to the Bill of Rights and to the democratic values that define this nation has been put to the test by the events of September 11. Already, Congress and the Administration have demonstrated their eagerness to sacrifice civil liberties in hopes of gaining an added measure of security. The task of upholding the Bill of Rights-or acquiescing in its surrender-will soon fall to the judiciary, as lawsuits testing the constitutionality of the USA PATRIOT Act wind their way through the courts.

In what we have come to regard as some of the most shameful episodes in our history, the judiciary has consistently bowed to the wishes of the political branches of government in times of crisis by finding the state interest in national security to be paramount to all competing interests. During World War I, the Supreme Court upheld the conviction of socialist Eugene Debs for expressing his opposition to World War I, refusing to recognize his non-violent, anti-war advocacy as speech protected by the First Amendment.77 More recently, following the bombing of Pearl Harbor during World War II, the Supreme Court upheld an Executive Order mandating the internment of more than 100,000 Japanese-Americans and Japanese immigrants based solely on their ancestry, refusing to recognize their preventive detention as a violation of the Equal Protection Clause.78

The extent to which the judiciary will defer to the Administration's views on the troubling First and Fourth Amendment issues presented by the USA PATRIOT Act, will tolerate ethnic and ideological profiling by the Administration as it implements the Act, and will allow the due process rights of immigrants in detention to be eroded remains to be seen. Certainly, the more anxious the times become, the more likely the judiciary will be to side with the Administration-at least where judges are convinced that the measures are vital to the national security, are not motivated by discriminatory intent, and tread as lightly as possible upon civil liberties. The recent words of Supreme Court Justice Sandra Day O'Connor, who so often figures as the swing vote on pivotal decisions, do not hold out hope for a vigorous defense of our political freedoms by the judiciary. Following a visit to Ground Zero, where the World Trade Centers once stood, the Justice bleakly predicted, "We're likely to experience more restrictions on personal freedom than has ever been the case in this country."79

(Page 5)

Viewing Page: 1 | 2 | 3 | 4 | 5 | Endnotes

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September 11th | Low Power Radio | Victory Against Human Rights Violators
The USA Patriot Act | Toward A More Perfect Democracy | A Blow Against Racial Profiling