INDEFINITE DETENTION BASED UPON SUSPICION:
How The Patriot Act Will Disrupt Many Lawful Immigrants’ Lives

By ANITA RAMASASTRY
Friday, Oct. 05, 2001

Though I am a citizen, my husband is an alien — an Irish immigrant who holds a green card. I am scared to death that John Ashcroft might someday sign a piece of paper that would result in his being locked up, detained indefinitely, and possibly deported.

Under currently proposed legislation, if my husband were, for example, simply to write a letter to an Irish newspaper that supports the political party Sinn Fein, or give $51 to a friend found to have ties to the IRA, he might be detained indefinitely. It would make no difference to the government that he is a legal permanent resident of this country, married to a citizen of this country.

If this legislation — the Patriot Act — passes in its current form, immigrants to America, including legal permanent residents, will find themselves deprived of basic rights. The Patriot Act should be amended before we allow a large class of legal immigrants to be treated in ways that no citizen would tolerate, and that violate our Constitution.

Is this how we want to illustrate American justice to the world — due process for citizens, but unfairness and unconcern for immigrants? Indefinite detention upon secret evidence — which the Patriot Act allows — sounds more like Taliban justice than ours.

Our claim that we are attempting to build an international coalition against terrorism will be severely undermined if we pass legislation allowing even citizens of our allies to be incarcerated without basic U.S. guarantees of fairness and justice.

The Patriot Act’s Provisions

It is unclear how a court reviewing such a decision will handle the secret evidence. It is also unclear whether the accused will have access to the evidence — no matter how weak or speculative it might be.

Moreover, the Patriot Act authorizes deportation as well as detention. Specifically, it states that an alien is deportable for contributing funds or material support to a terrorist organization — or for contributing to any non-designated terrorist organization, if the alien knows or reasonably should have known that the funds or material support will further terrorist activity.

Not only will the alien’s future actions be suspect, but his past actions are also fair game. The Patriot Act will be applied retroactively to non-citizens.

Of course, the terrorist attacks of September 11, 2001 are the motivation for such legislation, and the government is reasonable in deciding to take measures to prevent future terrorist acts. But such measures should not include changes in existing immigration laws — which already give the government ample authority.

How Detention Under the Patriot Act Works

The most recent draft of the Patriot Act, circulated this week, contains eerie detention provisions. Pursuant to the Act, once the Attorney General has certified that he has reason to believe that an alien may facilitate acts of terrorism, the alien will be taken into custody, and can be detained initially for seven days.

According to the Patriot Act, during the seven days, the Attorney General must initiate removal (that is, deportation) proceedings, or charge the person with a crime — or else the person must be released. In contrast, an earlier version of legislation proposed in the Senate, the Mobilization Against Terrorist Act (MATA), called for indefinite detention and a presumption of removability.

At first glance, then, the Patriot Act — in contrast to MATA — seems to provide only for limited detention. But appearances are deceiving. Even under the Patriot Act, as long as the Attorney General initiates removal proceedings within the seven-day period, he can continue to detain a person throughout those proceedings and even after they are completed. Indeed, even if an immigration judge concludes that that person is eligible for relief from removal, the Attorney General nevertheless has explicit authority to continue detention.

The current bill is also ambiguous on an important question: What happens when the Attorney General has detained someone as a terrorist and the immigration judge has found that the changes of removability are unfounded? It appears from the current draft of the legislation that the person certified by the Attorney General can be detained indefinitely, until either de-certified by the Attorney General or released by the District Court.

Limited Judicial Review, in the District of Columbia

The legislation includes a provision that states that a suspected terrorist can seek judicial review of his or her case through a habeas corpus petition filed in the United States District Court in the District of Columbia.

According to the Act, the court may review the factual basis of the certification. But that is not particularly comforting, since the grounds for certification are broad and vague: The Attorney General can continue to detain someone believed to be "engaged in any other activity that endangers the national security of the United States." The range of activities that could be held to fit this description is extremely broad.

Moreover, the logic for requiring the review to take place exclusively in D.C., rather than in a local federal court, is unclear, and will necessarily put immigrants to great expense (paying for lawyers’ travel, among other things) and inconvenience. If an immigrant is held in a lockup in Seattle and his friends and lawyer are in Seattle, why will the review have to occur across the country in D.C.?

Finally, it is unclear, under the legislation, how often the D.C. court can review someone’s detention, especially after a person is found to be not removable by an immigration court. Detention that is reasonable at a given time may be unreasonable a month later, if fears do not pan out or national alliances change — yet immigrants may still languish in jail.

A Violation of Constitutional Requirements

Of course, a court might decide that the Constitution requires much more searching procedural safeguards than the Patriot Act provides — and recent Supreme Court precedent shows that is exactly the path a court should take.

Last June, for example, the Supreme Court held in Zadvydas v. Davis that indefinite detention is only constitutional if the person is dangerous; there are "other special circumstances, such as mental illness"; and "strong procedural protections" are offered. The House bill, even as amended, falls short of meeting these three requirements.

The Supreme Court also noted that aliens present in the United States are protected by the due process clause. Based on Zadvydas and other precedents, it is probable, though not certain, that a court will see the proposed indefinite detention included in the Patriot Act, and the bill’s failure to provide any but the most minimal due process, as in conflict with our Constitution.

What makes the new legislation especially troubling is that the government’s current powers to fight terrorism are already strong, especially where non-citizens are concerned.

Under current law, the government can wiretap any person suspected of working for a foreign government or organization. It can also freeze the asset of persons that aid terrorist organizations. Moreover, the government already has the power to detain, and potentially remove, aliens suspected of terrorist activities.

Indeed, in 1996, Congress established an Alien Terrorist Removal Court staffed by five federal district judges. To date, neither the Clinton nor Bush administration has ever used this Court.

Echoes of the Alien and Sedition Acts

Attorney General Aschroft talks about the need for new tools to fight terrorism. Yet the greatest irony about the new legislation is that it looks remarkably similar to legislation enacted in the 18th century — specifically, the Alien and Sedition Acts, notorious in history for their abuse of basic liberties.

For example, in 1798, the Alien Friends Act made it lawful for the President of the United States "to order all such aliens, as he shall judge dangerous to the peace and safety of the United States, or shall have treasonable grounds to suspect are concerned in any reasonable or secret machinations against the government thereof, to depart out of the territory of the United States."

For years, in our law schools, we have pointed to legislation like this as part of a history never to be repeated. Now we threaten to repeat this history, and unlearn its lessons, for the Patriot Act eerily echoes the Alien Friends Act’s exclusive reliance on executive judgment — based upon suspicion alone.

Instead of looking for truly new solutions, we are making the same mistakes more than a century later.

Fortunately, the 1798 provisions were never used and the law included a sunset clause, so that it expired. But the Patriot Act has no sunset provisions.

That means that if the Patriot Act is passed, and the Court chooses not strike it down (or to strike it down only in part), it may stay on the books for many years, long past any time of war or crisis. (Voting to repeal legislation entitled the "Patriot Act" will hardly be a popular move for any Congressperson or Senator, since it seems unlikely any of us will feel entirely safe from terrorism in our lifetimes now.)

The Senate Judiciary Committee will review the Patriot Act and should examine the bill closely. Let us hope that there will be careful deliberation about to the possibility of lengthy — and perhaps indefinite and infrequently reviewed — detentions of lawful permanent residents.

If not, we will be on the brink of passing legislation that is not just unconstitutional, but oppressive of the freedoms of broad categories of people who live in this country legally — including our friends, relatives and colleagues.


Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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