and
Timothy H. Edgar
Legislative Counsel
ACLU Washington National Office
June 4, 2003
Senators Kennedy and Murray:
On behalf of the American Civil Liberties Union and nearly 400,000 members, dedicated to defending the Bill of Rights and its promise of due process under law for all persons, including immigrants, I welcome this opportunity to present the ACLU's views at this forum on selective enforcement since September 11, 2001.[1]
When terrorists attacked the World Trade Center and the Pentagon on September 11, 2001, they attacked a nation of immigrants. Among those who died in the attacks were citizens of some 26 foreign countries. The attackers did not distinguish on the basis of citizenship or immigration status. Victims included United States citizens and permanent residents, temporary workers and visitors, and undocumented laborers.[2]
Following these attacks, President Bush and Congress expressed solidarity with the Arab, Muslim, and South Asian immigrant communities and warned against singling out whole communities for the actions of the terrorists. Unfortunately, as we look back on the government's actions toward immigrants over the past twenty months, its actions are in sharp contrast to its words.
Even as the Department of Justice took swift and decisive action to stop hate crimes against Arabs, Muslims, and South Asians, it began a massive preventive detention campaign. This campaign has resulted in the secret detention and deportation of close to 1000 immigrants designated as ""persons of interest"" in its investigation of the attacks. Government officials now acknowledge that virtually all of the persons that it detained shortly after September 11 had no connection to terrorism. While the government told the public not to engage in ethnic stereotyping or to equate immigrants in general with terrorists, its own policies did precisely that.
Under new Department of Justice policies, immigrants today can be arrested and held in secret for a lengthy period without charge, denied release on bond without effective recourse, and have their appeals dismissed following cursory or no review. They can be subjected to special, discriminatory registration procedures involving fingerprinting and lengthy questioning concerning their religious and political views. An immigrant spouse who is abused by her husband must fear deportation if she calls the local police. Asylum-seekers fleeing repressive regimes like those of the Taliban or Saddam Hussein may face mandatory detention, without any consideration of their individual circumstances.
There is a better approach. Instead of automatically viewing non-citizens with inherent suspicion, America should focus its resources on investigating and apprehending those who intend to commit acts of terrorism. America puts itself at greater risk by alienating immigrant communities, making immigrants distrustful and fearful of government.
The government must stop equating immigration with terrorism. Stepping up border screenings in a smart way can be part of a policy to make the United States safer, as I discuss below. Still, improving the ""gatekeeper"" function of immigration agencies is only one part, and not the most important one, of a balanced approach to national security that improves national security while respecting civil liberties.
Terrorism can only be stopped by improving the vulnerabilities in our intelligence system identified by the Joint Inquiry of the House and Senate intelligence committees into the September 11 attacks. Immigration agents can stop terrorists if they have been told for whom to look by intelligence and law enforcement agencies; they should not be told to guess who is a danger on the basis of crude ethnic stereotypes.
Immigrants and new citizens make our country stronger, not weaker. They serve in our armed forces, as high-technology workers helping design the latest security technology, and as translators of critical intelligence information. They provide a bridge to world understanding, helping counter anti-American sentiment. If we isolate immigrants, we isolate ourselves - and make our country more vulnerable to terrorism.
Put simply, target terrorists, not immigrants.
The Fifth Amendment to the United States Constitution provides that no person may be deprived of liberty without due process of law. This provision protects all persons, including immigrants, from arbitrary and unlawful detention by the government.
The government's initial round-up of Arab, Muslim and South Asian immigrants and visitors was only the opening salvo in a coordinated and relentless government effort to remove basic, fundamental checks and balances on its immigration detention and deportation powers. In its initial draft of legislation that became the USA PATRIOT Act, the Bush Administration proposed suspending the ""Great Writ"" of habeas corpus, protected by the Constitution, to allow the summary detention and deportation even of legal immigrants with no review by any federal court. It appeared that those targeted in the round-up would have even the most basic of constitutional rights - the right to challenge in court one's detention by the government- swiftly swept aside.[3]
Our Washington National Office staff worked together tirelessly with members of Congress during the all-too-brief six week period during which Congress considered the USA PATRIOT Act[4] to try to restore some measure of accountability to the legislation. Members on both sides of the aisle worked with us to preserve some measure of due process for immigrants. I want to thank, in particular, Senator Kennedy for registering objections to these draconian immigration detention and deportation powers. Your efforts to work together with Senator Brownback and other Republicans helped limit detention of immigrants without charge to seven days and preserved habeas corpus review in the final version of the USA PATRIOT Act.[5] These changes were among the most important improvements Congress made to the USA PATRIOT Act to preserve civil liberties.
Unfortunately, even before Congress had finished its work on the USA PATRIOT Act, the Department of Justice began, through a series of unilateral regulatory and policy changes, to dismantle many of the safeguards that ensure detention and deportation decisions remain within the rule of law.
While some of these erosions to due process have been justified by the government as directed against possible terrorists, almost all affect every immigrant. Here are just a few:
Mandatory Detention. As a result of a recent Attorney General opinion, In re D-J-, the government can now designate whole categories of immigrants, such as Haitians or asylum-seekers from the Arab and Muslim world in ""Operation Liberty Shield,"" to be subject to mandatory detention while often lengthy and protracted immigration charges are resolved. [6] Where mandatory detention is involved, the government simply abandons an individual hearing altogether, deciding instead on the basis of immutable characteristics, usually national origin, that particular groups of non-citizens can be locked away even if they present no danger and are likely to appear at future proceedings. While the Supreme Court just recently upheld, in limited circumstances, mandatory detention in the case of certain legal residents who are deportable as a result of criminal convictions,[7] the Attorney General's opinion goes much further. Under his view, the Department of Justice can, without Congress's approval, strip whole categories of non-citizens of a right to a bond hearing simply by citing generalized ""national security"" concerns that have nothing to do with the risk to security posed by the individual subject to detention.
As a result of this new policy, a Haitian fleeing political turmoil and persecution from left-wing or right-wing death squads, or a women from Iran fleeing persecution on account of her gender, will face detention with no ability to obtain release on bond while their cases for asylum are heard. The new opinion says the government can lock up asylum-seekers not because they pose a risk of flight or danger, but in order to deter others from seeking freedom from persecution. This policy is inhumane and violates international law.[8]
Lengthy Detentions Without Charge. Non-citizens residing in the United States today live in constant fear of arbitrary arrest and deportation. As a result of a regulatory change unilaterally approved by the Bush Administration,[9] non-citizens can be arrested without charge by immigration officials and held for what the Department of Justice calls a ""reasonable time"" but which, in practice, has resulted in numerous detentions that have lasted weeks and weeks.[10] While this flies in the face of the seven-day limit Congress imposed in section 412 of the USA PATRIOT Act, the position of the Department of Justice is that the USA PATRIOT Act's seven-day limit has no application to persons it arrests under its pre-existing detention authority.
Holding Immigrants Ordered Deported. For months, many immigrants caught in the government's post-9/11 dragnet could not obtain release from detention even if they gave up on challenging their deportation. The Department of Justice implemented, for all ""special interest"" detainees, a ""clearance"" procedure in which the INS was prohibited from implementing deportation orders until detainees had been cleared by Department of Justice investigators.[11] There is no statutory authority for using immigration detention in this way. The Supreme Court has upheld the government's power to detain immigrants for the purpose of removing them from the country,[12] not as an end-run around the due process protections of the criminal laws. The ACLU assisted immigration attorneys from around the country by drafting model habeas corpus pleadings to force the Department to release or deport individuals who had given up on fighting their deportation. Rather than defend its actions in court, the Department simply sped up its clearance process for any immigrant who was fortunate enough to obtain an attorney who filed such a challenge.[13]
Selective Enforcement of Obscure Immigration Infractions. Not content with its claimed power to hold immigrants without charge for a ""reasonable time"" that could last weeks or months, the Department of Justice has also combed the statute books to uncover previously obscure and exceedingly minor immigration status infractions to enforce against otherwise law abiding immigrants. In addition to the stories you will hear today, another extraordinary example of selective enforcement is the arrest of Thar Abdeljabar, a traveling Palestinian salesman with a wife and five children. Mr. Abdeljabar and his wife are both lawful permanent residents, and two of his children are United States citizens. Mr. Abdeljabar was arrested because police were suspicious of his carrying cash and a map with circled cities that he uses for his work. He was questioned but not charged by the FBI, only to be charged by INS with a failure to file a change of address form within ten days of moving.[14]
This extraordinary decision, which violated the government's own prosecution guidelines, was followed by an announcement that the Department of Justice would enforce this previously obscure law at its discretion,[15] prompting an avalanche of change of address forms that overworked INS employees were now expected to process. An immigrant is not safe if he or she complies with the change-of-address law, however. According to press reports last year, the INS has over 200,000 unfiled and unprocessed change of address forms among 2 million documents lost or forgotten by the government at a records storage facility outside Kansas City, Missouri.[16] Each one of those 200,000 law abiding immigrants is at risk of deportation because of sloppy INS record keeping and a draconian enforcement mindset.
While an Immigration Judge dismissed the case against Mr. Abdeljabar, others caught in the government's dragnet in the future will have to face an immigration hearings appeals system whose independence and authority are increasingly under assault by this Administration.
The detentions and deportations of immigrants deemed of ""special interest"" to the government were accomplished under an unprecedented veil of secrecy. The secret detentions left spouses, children, classmates and employers to wonder where they had been taken, and who would be next. The Department of Justice refused to identify the detainees, arguing that doing so might jeopardize national security. The secrecy alarmed us and other human rights groups, and, together with the Center for National Security Studies, we filed a federal lawsuit seeking their names under the Freedom of Information Act. The United States District Court ruled in our favor, saying that ""[s]ecret arrests are 'a concept odious to a democratic society,' and profoundly antithetical to the bedrock values that characterize a free and open one such as ours.""[17] The government's appeal in that case was argued on November 18, 2002; a decision has not yet been issued.
In a further effort to deny information to the public and press, the Justice Department closed deportation hearings in ""special interest"" cases. The government refused to release this basic information even to members of Congress. Rep. John Conyers, Jr., was even barred entry to a routine immigration hearing involving a ""special interest"" detainee, despite his status as Ranking Member of the House Judiciary Committee, with oversight of the Department of Justice, the agency conducting the hearing.
On behalf of Rep. Conyers among others, the ACLU challenged the secret deportations, arguing that transparency and accountability are essential to the workings of American democracy. While the ACLU does not contest that the government may close hearings, or parts of hearings, on a case-by-case basis where the judge finds that closure is necessary for national security, these cases are different because they involve a blanket policy of closing all ""special interest"" hearings without any judicial findings. The U.S. Court of Appeals for the Sixth Circuited agreed with the ACLU, declaring that a blanket policy of secret deportation hearings was unlawful, saying, ""Democracies die behind closed doors.""[18] In a second lawsuit, the U.S. Court of Appeals for the Third Circuit sided with the government.[19] The Supreme Court has decided not to hear our appeal of that case, but the government may be backing off the ""secret hearings"" policy.
Concerned that the secret hearings were a cover for civil liberty abuses, the ACLU initiated an ambitious effort to identify the people affected. Working with the Human Rights Commission of Pakistan (HRCP), the ACLU located twenty-one detainees who had been deported to Pakistan, or who had left the United States voluntarily to avoid indefinite detention. These are the stories you won't hear today. The interviews were heart-breaking. These Pakistani immigrants were not terrorists; instead, they came to the United States for the same reason previous generations of immigrants who had come to our shores. They had been salesmen, housewives, and cab drivers - most with children and homes in America, grateful to be in a country where they could achieve a better life and live in freedom.
Their detention put an end to all that. They described the anxiety-ridden days, which turned into weeks, and then into months - culminating in deportation. Few had been charged with crimes, and several had been deprived of access to counsel. In some cases, the United States government ignored the plight of their United States citizen children born in this country. Back in Pakistan, these American children, unable to speak the local language, were miserable and failing at school. The plight of these families was featured on Cable News Network (CNN), National Public Radio and on the front page of The New York Times.
While the government has been eroding basic due process rights, and casting a veil of secrecy over immigration detention and removal, it has also undercut mechanisms of accountability that ensure its actions remain within the rule of law. As the ACLU discussed in written testimony before the Immigration Subcommittee of the House Judiciary Committee last year, new regulations undercut the authority and independence of the Executive Office of Immigration Review (EOIR), the agency charged with providing an administrative check on immigration agents' actions.[20]
These changes prompted the National Association of Immigration Judges (NAIJ) to warn of ""disturbing encroachments on judicial independence"" and to advocate, as part of the reform of INS and the creation of the Department of Homeland Security, an independent immigration court.[21] Unfortunately, while the final version of the Homeland Security Act of 2002 left EOIR within the Department of Justice, it omitted important provisions to enhance EOIR's authority and independence.[22] As a result, EOIR will not be able to effectively resist Department of Justice efforts to seriously erode its judges' ability to oversee life-and-death decisions concerning detention, deportation, and asylum.
As a result, Department of Justice policies that sideline EOIR will continue to erode accountability for unlawful government action. These include:
Nullifying Release Orders. What rights do detainees have in their immigration hearings, whether closed or open, to obtain release from prison? As a result of policies approved by the Department of Justice, far fewer. Responding to questions concerning its blanket detention policy in September 11 ""special interest cases,"" the government promulgated new regulations allowing it automatically to prevent any order from an Immigration Judge allowing a detainee release on bond from going into effect.[23] Even if the detainee can persuade the Board of Immigration Appeals to affirm the release order, the government can still keep a detainee in prison while it certifies the request to the Attorney General. No standards govern the granting of a stay in these cases; it is simply at the discretion of the government. These new ""automatic stay"" rules effectively render bond hearings meaningless in individual cases at the request of the government. Habeas corpus challenges to the use of these automatic stay orders are pending in the courts.
Limiting Administrative Review. Under the popular but misleading banner of reforming the backlogs in the administrative appeals system at the Board of Immigration Appeals (BIA), the Department of Justice has implemented new rules that undermine review of adverse decisions by immigration judges.[24] Today, non-citizens' ability to appeal an immigration judge's decision has been limited by rules that refer most appeals to a single Board member and put strict time limits on appeals decisions that, if not met, result in automatic dismissal of an appeal. Under the new system, Board Members feel pressured to dispense ""justice"" after spending only minutes on immigrants' appeals.[25] In addition, the BIA's role as an impartial decisionmaker in interpreting immigration laws has been threatened because of an ill-considered decision to dismiss half the Board on the basis of no objective standards. Fears that Board members, fearing dismissal, would hesitate to fulfill their duty to question government action have been realized, as the first Board members selected for dismissal have been those most friendly to immigrants. [26]
Immigrants represent an extraordinary resource for the United States in its efforts to combat terrorism. Terrorism is a global problem that requires cooperation not just among governments, but among communities that increasingly straddle borders and cultures. Noting that an intelligence intercept warning of an impending terrorist attack that was received September 10, 2001 was not translated until September 12, Congress's own Joint Inquiry into the attacks of September 11, 2001, identified a critical need to hire more translators with knowledge of Arabic, Urdu, Farsi, and other foreign languages.[27]
Likewise, to encourage cooperation in solving crime and terrorism, law enforcement officials have worked hard to win the trust of immigrant communities. Yet these efforts have been seriously undermined by a series of ham-handed policies likely to further alienate immigrants from the United States government. These include:
Use of Local Law Enforcement to Enforce Immigration Laws. Under new legal opinion that erases decades of practice by the Department of Justice, the Department's Office of Legal Counsel has asserted that state and local law enforcement officials have, in certain circumstances, an ""inherent power"" to enforce the civil provisions of the immigration laws. In other words, state and local police can arrest non-citizens who are suspected of violating no criminal law, but simply of overstaying a visa or committing some other civil violation of their immigration status. When this policy was first announced, a firestorm of controversy erupted, with opposition coming not only from advocates for immigrants and civil liberties, but also from chiefs of police and local officials who rejected the invitation of the Department of Justice to become immigration enforcement officers. Likewise, prominent conservative leaders, including Grover Norquist of the Americans for Tax Reform, and David Keane of the American Conservative Union, expressed opposition to the new policy, fearing the precedent of allowing state and local enforcement of a federal regulatory program. Nevertheless, despite the initial signals from the Bush Administration that it intended to adopt this policy only with respect to suspected terrorists, it has gone forward with opening up the federal criminal database - the National Crime Information Center (NCIC) - to a wide array of immigration infractions, and insisted that state and local police should arrest those listed in the NCIC.
""Voluntary"" Interviews of Arab and Muslim Males. The Department of Justice has implemented a program to question, without any particularized suspicion, thousands of Arab and Muslim men in an allegedly voluntary but, in reality, highly coercive manner. A memorandum giving guidance on how to conduct interviews instructed the interviewers to ask about sensitive, First Amendment protected activities such as religious practice, mosque attendance, and the interviewee's feelings towards the United States government. In addition, interviewers were instructed to ask questions designed to elicit information without any relevance to terrorism but which was relevant to immigration status, and to refer any person who agreed to a voluntary interview to the INS if there was an immigration status violation. This policy resulted in a number of immigration status arrests, which are virtually certain to lead all immigrants to hesitate, for fear of deportation, before sharing possibly vital information concerning terrorism with the federal government.
Special Registration of Arab and Muslim Males. Following an intense internal debate, and over the objections of the Department of State, the Department of Justice embarked on a selective registration program for males from certain countries that plainly amounts to discriminatory profiling. ""Special registration"" requires the fingerprinting of visitors from specified Arab and Muslim countries, their registration with local immigration offices, and, at the discretion of the government, detailed interviews that have involved questions about First Amendment protected activities, including religious and political practices and beliefs. This selective program sends a chilling message to the entire Arab and Muslim world at a time when America needs allies more than ever before. A series of inadequately publicized deadlines for the registration of temporary residents resulted in mass confusion and arrests. Problems have included conflicting advice about who must register and widespread denials of the statutory and constitutional rights of registrants to have an attorney (at their own expense) accompany them through the registration process.
Security Sweeps that Target Undocumented Workers, Not Terrorists. ""Operation Tarmac"" and similar security sweeps are designed to ensure that workers in sensitive industries, such as airports, are properly vetted. While verifying the identity of such workers may be a legitimate goal, its implementation has result in mass arrests not of terrorists, but of undocumented workers. In an address before the American Bar Association on April 24, 2003, Assistant Attorney General Viet Dihn admitted that ""Operation Tarmac"" had not resulted in the arrest of even a single individual of ""special interest"" to the government's terrori