How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants

Section 412 of the final version of the anti-terrorism legislation, the Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (H.R. 3162, the "USA PATRIOT Act") permits indefinite detention of immigrants and other non-citizens. There is no requirement that those who are detained indefinitely be removable because they are terrorists.

Section 412 requires that immigrants "certified" by the Attorney General be charged within seven days with a criminal offense or an immigration violation (which need not be on terrorism grounds).

However, immigrants who are found not to be deportable for terrorism, but have an immigration status violation, such as overstaying a visa, could face indefinite detention if their country refuses to accept them. Detention would be allowed on the Attorney General's finding of "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security, and detention could be indefinite upon a determination that such an individual threatens national security, or the safety of the community or any person. Sec. 412, adding new INA section 236A(a)(3) and (a)(6).

What amounts to a life sentence should at a minimum be based on clear proof at a hearing, not on a certification of merely the level of suspicion that normally allows only a brief stop and frisk on the street. See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) (permitting "stop and frisk" based on "reasonable grounds to believe" criminal activity was afoot and suspect could be armed).

The Supreme Court held in Zadvydas v. Davis, 121 S. Ct. 2491 (2001), that a law allowing indefinite detention of immigrants who could not be deported would pose a "serious constitutional problem." Id. at 2498. The Supreme Court did not allow the government to hold such immigrants, even those who the government said were dangerous and who did not have a right to remain in the United States, if their deportation was not likely in the "reasonably foreseeable future."

The Zadvydas Court did not address indefinite detention of persons ordered removed on terrorism grounds. Id. at 2499. But the Court made clear in its analysis that preventive detention would not be allowed in the absence of "strong procedural protections." It explicitly indicated that indefinite detention would not be allowed "broadly [for] aliens ordered removed from many and various reasons, including tourist visa violations." Id.

Section 412 fails the constitutional test set forth in Zadvydas. Under the final version of the bill, immigrants who are ordered removed but cannot be deported in the reasonably foreseeable future are entitled to reviews, at least each six months, of whether they continue to pose a danger. Section 203, adding new INA section 236A(a)(6). But there is no requirement that indefinite detainees ever be given a trial or a hearing in which the government would have to prove that they are, in fact, terrorists. Nor would other important procedural protections apply, such as the requirement of proof beyond a reasonable doubt (in criminal proceedings) or proof by "clear, convincing and unequivocal evidence" (in deportation proceedings). Instead, indefinite detention would apply merely on the basis of vague and unspecified allegations of threats to national security.

Last Updated - October 23, 2001