Testimony of Legislative Counsel Timothy Edgar Before the United States Commission on Civil Rights On Changes in Immigration Detention Practices and the Impact of Proposed Legislation on the Civil Rights and Civil Liberties of Citizens and Immigrants

There are two versions of the legislation currently under debate: S. 1510, the "Uniting and Strengthening America (USA) Act of 2001," which passed the Senate last night, and H.R. 2975, the "Provide Appropriate Tools Require to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001," which passed the House Judiciary Committee last week. The primary differences between the USA Act and the PATRIOT Act are: (1) the surveillance provisions of the PATRIOT Act sunset in two years, while the USA Act's surveillance provisions are permanent, (2) the USA Act authorizes secret searches, while the PATRIOT Act does not, and (3) the PATRIOT Act contains modest, and we believe inadequate, limitations on the most troubling aspect of the legislation, permitting indefinite detention of immigrants, which the USA Act does not have.  

We believe that the detention and removal provisions are the most troubling provisions in the legislation. As we explain below, these provisions presenting three fundamental constitutional problems. First, they permit individuals to be imprisoned in INS facilities not on the basis of evidence, but solely on the basis of an Attorney General certification of the kind of reasonable suspicion that ordinarily would permit no more than a brief "stop and frisk" encounter. Second, these provisions still permit potentially indefinite detention of immigrants who are not terrorists, despite press reports that this problem has been fixed. Third, the Senate bill contains provisions permit immigrants to punished for associational activity with groups our government later chooses to regard as terrorist organizations or terrorist fronts without notice to the immigrant and without an effective defense for truly innocent associations.  

I. From "Secret Evidence" To No Evidence: Anti-Terrorism Legislation Permits Imprisonment of Immigrants Who Are Not Terrorists on the Basis of Suspicion Alone  

Under the proposed legislation sought by Attorney General Ashcroft, even as modified in negotiations with Congress, immigrants who are not charged with a crime or with being deportable as terrorists can be held without evidence. Instead, imprisonment in INS detention facilities will be based on a standard that normally allows for nothing more than a "stop and frisk," rather than on evidence that an immigrant poses a danger to the community or a risk of flight, the standard under current law.  

Madame Chairperson, we believe that the recent sad history of INS proceedings on the basis of evidence not revealed to the defense, which were directed almost exclusively against persons of Arab or Muslim background, dramatically illustrates the dangers of the even greater detention and deportation powers the Attorney General now seeks.  

The Attorney General already has broad detention authority under our immigration laws. Under current law, any non-citizen who is alleged to be in violation of his or her immigration status "may be arrested and detained pending a decision on whether the alien is to be removed from the United States." INA § 236(a). Before the attacks on the World Trade Center and the Pentagon, regulations required the INS to issue a "notice to appear and warrant of arrest" charging grounds of removal within 24 hours of the non-citizen's being taken into custody. Under emergency regulations issued September 20, 2001, this time period was expanded to 48 hours, and, "in the event of an emergency or other extraordinary circumstance . . . an additional reasonable period of time." 66 Fed. Reg. 48334, 48335 (amending 8 C.F.R. § 237.3(d)).  

After charges are filed, a non-citizen who is accused of being deportable or inadmissible on terrorism grounds is subject to mandatory detention. INA § 236(c). However, ordinary immigration charges permit release from custody. INA § 236(a)(2). Release is available when it "would not pose a danger to property or persons, and . . . the alien is likely to appear for any future proceeding." 8 C.F.R. § 236.1(c). Decisions of INS officials on custody and bond issues may be reviewed at a hearing before an Immigration Judge, and appealed to the Board of Immigration Appeals. Id.  

Under existing law, the INS also claims the highly controversial power to use secret evidence to imprison immigrants in deportation cases. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) included provisions the Government relies upon to use secret evidence in ordinary immigration proceedings to deny bond to any detained non-citizen (regardless of whether the person is accused of engaging in "terrorist activity") and to deny various discretionary immigration benefits such as asylum.  

The record of the government's use of this extraordinary power does not inspire confidence.  

First, as George W. Bush has noted, virtually every secret evidence case that has come to public attention has involved a Muslim or an Arab, raising the specter of racial profiling. The ACLU has represented two such non-citizens. One of them, Nasser Ahmed, is a 37-year old Egyptian who was initially denied bond, asylum and withholding of deportation based on secret evidence. The immigration judge who heard the evidence said that he had "no doubt" that Mr. Ahmed would be tortured if returned to Egypt. Mr. Ahmed was held in solitary confinement for over three years, but was eventually released from custody on bond. The immigration judge who ordered his release criticized the INS for using secret evidence -- often in the form of double or even triple hearsay -- when public material showing the same thing could have been used instead, and provided to Mr. Ahmed. In re Nasser Ahmed, No. A90 674 238 (6/24/99).  

Secret evidence was also used to detain in Florida without bond Mazen Al-Najjar, a stateless Palestinian. His request for release on bond -- which is commonly granted similarly-situated non-citizens who are likely to appear for their immigration hearings because of their strong family and community ties -- was denied, based on secret evidence. Mr. Al-Najjar was held for three and half years on secret evidence before finally being released.  

The INS also used secret evidence in cases involving seven Iraqis airlifted by the U.S. from northern Iraq who assisted our government in a failed attempt to destabilize the regime in Iraq headed by Saddam Hussein. The INS sought to deny them political asylum based on secret evidence. A legal team including former Director of Central Intelligence R. James Woolsey represents them. Mr. Woolsey, who was himself denied the opportunity to see the evidence against his clients, commented that secret evidence is what "one would expect to find in Iraq, not the U.S." Finally, after years of litigation, the Iraqis were able to negotiate their release.  

As Supreme Court Justice Felix Frankfurter once said, "Secrecy is not congenial to truth seeking. . . . No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72) (Frankfurter, J., concurring).  

Every court that has addressed the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings against a person admitted to the United States, or seeking admission as a lawful permanent resident returning from a trip abroad, unconstitutional under the Due Process Clause of the Fifth Amendment. Just this summer, the Supreme Court reaffirmed that due process "applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001).  

In Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989) the court rejected an attempt by the INS to use secret evidence to exclude a lawful permanent resident from the United States upon his return from a trip abroad. In reaching this decision, the court said, "Rafeedie -- like Joseph K. in Kafka's 'The Trial' -- can prevail . . . only if he can rebut the undisclosed evidence against him, i.e. prove that he is not a terrorist regardless of what might be implied by the government's confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden? ." Id. at 516.  

In American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995), the court rejected an attempt by the INS to deny legalization to two Palestinians it accused of associating with a terrorist organization. In characterizing the INS use of secret evidence in that case, the court said, "One would be hard pressed to design a procedure more likely to result in erroneous deprivations." Id. at 1069 (citations omitted).  

In 1999, a federal district court ordered the release of Hany Kiareldeen after he had been detained for 19 months based on secret evidence that is believed to have been offered by his estranged wife, with whom he was having a custody battle, saying, "The court cannot justify the government's attempt to 'allow [persons] to be convicted on unsworn testimony of witnesses -- a practice which runs counter to the notions of fairness on which our legal system is founded.'" Kiareldeen v. Reno, 71 F.Supp.2d 402, 419 (D.N.J. 1999).  

Rather than learn from these mistakes, the legislation proposed by the Bush Administration compounds them. It eliminates the need for secret evidence by eliminating the need for evidence altogether. The legislation establishes a low threshold for imprisonment of immigrants in INS facilities of "reasonable grounds to believe" that an immigrant "is described" under broad terrorism definitions, or is engaged in any other activity that threatens national security. USA Act § 412; PATRIOT Act § 203. That standard is substantially lower than the probable cause required for an arrest in a criminal case. It is identical to the standard of reasonable suspicion that the Supreme Court has fashioned in the criminal context for a brief, routine "stop and frisk" encounter with the police. See 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).  

Under the legislation, in each of the cases discussed above, the issue of secret evidence would not even arise because the Attorney General would simply sign a certification that he has "reasonable grounds to believe" that the individual poses a danger to national security. Under the legislation, such a certification permits detention for up to seven days without any charge whatsoever - a major expansion of current law -- and permits continued detention without any limit if the INS files charges alleging the individual is out of immigration status. While the legislation permits delegation of this extraordinary detention authority only to the Deputy Attorney General, this reflects no more than current practice at the Justice Department in "secret evidence" cases.  

The only ability to challenge the decision of the Attorney General's certification comes in the form of the constitutionally-compelled remedy of habeas corpus. Even that remedy is greatly restricted, limited only to the District Court for the District of Columbia. Where the standard is simply "reasonable grounds to believe," it is not clear that immigrants will be able to effectively challenge their detention. Immigrants who cannot afford a lawyer will be effectively denied all review, because the Immigration and Nationality Act does not permit the court to appoint counsel at the expense of the government.  

The current investigation by the Department of Justice has resulted in the detention of some 600 individuals, many on immigration-related charges. According to press reports, some four hundred have now been cleared. While the ACLU is still gathering information about those who remain in INS custody, press reports indicate what should be obvious - even with the best intentions, the government makes mistakes.  

Some five individuals initially named as hijackers of the four planes commandeered on September 11, 2001 turned out to be alive and well, victims of confusion over names and apparent identity theft by the terrorists. Likewise, Dr. Al-Badr Al-Hamzi, a San Antonio physician, was mistakenly arrested and detained for almost two weeks while he was questioned about various circumstances that caused the government to suspect his involvement in Osama bin Laden's terrorist network. He was released when the government realized he was entirely innocent.  

Madam Chairperson, the danger of the proposed legislation could not be more dramatically illustrated than by the case of Dr. Al-Hamzi. Government officials apparently had "reasonable grounds" to suspect Dr. Al-Hamzi, based on a number of circumstances he was later able to explain to their satisfaction. Under the proposed legislation, Dr. Al-Hamzi could have been imprisoned on the basis of these grounds alone.  

Of course, we would not need constitutional protections if every government official were as willing to admit a mistake as those who decided to release Dr. Al-Hamzi. But we know that liberty cannot depend on the good faith of those who have the power to put us in jail. II. Proposed Anti-Terrorism Legislation Would Permit Indefinite Detention Of Immigrants Who Are Not Terrorists.  

The proposed legislation also permits indefinite detention of immigrants who are not terrorists, contrary to the Supreme Court's decision in Zadvydas v. Davis, 121 S. Ct. 2491 (2001). While the legislation does require 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), this does not, as has been widely reported, solve the indefinite detention problem. The bill still permits indefinite detention.  

Immigrants who are found not to be deportable for terrorism, but have an immigration status violation, such as overstaying a visa, would face indefinite detention if their country of origin refuses to accept them. Very few governments are willing to accept immigrants our government has labeled as terrorists. Detention would be allowed simply on the Attorney General's original finding of "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security. USA Act § 412, adding new INA § 236A(a)(3).  

Under this provision, individuals who are not terrorists, including those whom an Immigration Judge determines were not terrorists after a hearing, could still be held if the Attorney General chooses not to revoke their certification - a certification which can be based not only on terrorism, but also on vague and unspecified allegations of danger to national security.  

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." Id.  

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" such as periodic reviews, and that proceedings must place the burden of proof on the government. 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. The proposed legislation fails all of these tests.  

Section 203 of the House anti-terrorism bill, the PATRIOT Act, as amended in the House Judiciary Committee, contains provisions which, if clarified, would at least partially address these concerns about indefinite detention. Under the House Judiciary Committee bill, immigrants who are ordered removed on terrorism grounds 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). The Senate bill should adopt the House bill's approach of requiring six month reviews, and should make clear that indefinite detention is limited to those found deportable or inadmissible on terrorism grounds.  

Even if these protections were adopted, the Attorney General's request for indefinite detention authority would be greatly troubling. Without these protections, the legislation represents a major disaster for the due process rights of non-citizens.  

III. Proposed Anti-Terrorism Legislation Allows For Detention And Deportation Of People Engaging In Innocent Associational Activity Both the Uniting and Strengthening America Act ("USA Act") and the House anti-terrorism bill (the PATRIOT Act) permit detention and deportation of non-citizens who provide assistance for lawful activities of any group the Secretary of State has designated as a foreign terrorist organization under INA § 219. While section 219 of the Immigration and Nationality Act permits designation of foreign groups with various procedural safeguards, section 411 of the USA Act permits designation of both foreign and domestic groups without those procedural safeguards.  

The Senate bill also allows for detention and deportation of individuals who provide lawful assistance to groups that are not designated as terrorist organizations. It then requires the immigrant to prove a negative: that he did not know, and should not have known, that his assistance would further terrorist activity. USA Act § 411, amending INA § 212(a)(3)(B).  

The Senate language creates a very serious risk that truly innocent individuals could be deported for truly innocent association with political groups that the government later chooses to regard as terrorist organizations. There would be no notice. These concerns could be ameliorated by adopting the House Judiciary Committee approach, which, for undesignated groups, requires the government to show that an immigrant knew or should have known that the assistance would further a terrorist activity. PATRIOT Act § 201, amending INA §§ 212(a)(3)(B) and 237(a)(4)(B). The House approach would nonetheless give the government broad power to attack the infrastructure of terrorism. Under the House bill, the government could prohibit fundraising of any kind for virtually any group it chooses to designate as a terrorist organization, and could also attack material support for any terrorist activity regardless of whether it is conducted by a terrorist organization.  

The danger of putting the burden of proof on the immigrant, as the Senate bill does, is greatly exacerbated by overbroad terrorism definitions. The bill amends the definition of terrorist activity to include the use of a "weapon or other dangerous device . . . to cause substantial damage to property," even if such damage created no danger of injury. USA Act § 411, amending INA § 212(a)(3)(B). Under the definition groups such as World Trade Organization protestors who engage in minor vandalism, abortion foes who engage in civil disobedience, or protestors at Vieques, Puerto Rico who damage a fence, would be deemed terrorist organizations. Likewise, purely humanitarian assistance to the Northern Alliance, foes of the Taliban and foes of Osama bin Laden, could be transformed into assistance to a terrorist organization.  

Guilt by association is generally forbidden under the First Amendment and the history of McCarthyism shows the very real dangers of abuse. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (leaders of NAACP cannot be held liable for violent acts engaged in during course of NAACP-led boycott absent evidence that leaders specifically intended the violence); United States v. Robel, 389 U.S. 258 (1967) (federal government cannot deny security clearance for work in national defense facility on basis of membership in Communist Party, absent evidence that individual specifically intended to further the Party's illegal ends); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (members of Communist Party cannot be denied passports absent evidence of specific intent to further Party's illegal ends).  

At the very least, if association with a group is to be a deportable offense, the government should notify non-citizens of which groups to avoid. Notice cannot be assumed because of the extraordinary variety of groups that could be labeled terrorist organizations under the definition of terrorism in the bill. Because of these problems, the defense allowed in the USA Act, requiring the immigrant to show he did not know, and reasonably should not have known, that his lawful assistance to a group not designated as a terrorist organization would nevertheless further "terrorist activity," puts an unreasonable burden on the immigrant and would certainly lead to unjust detention and deportation.  

The Justice Department argues that it can be trusted to exercise its prosecutorial discretion wisely. It says it would detain and deport only those who materially support groups that common sense dictates are terrorist groups. Similar claims were made about the RICO statute, adopted to fight organized crime, but which has been used in recent years against abortion opponents, and even against the Clinton Administration and the Republican political organizations. That history shows that discretion is not a reliable solution when a statute, read literally, permits innocent associations to be made unlawful in circumstances that Congress did not intend to reach.  

Finally, section 411 of the USA Act should be amended to ensure that speech protected by the First Amendment does not result in the detention or deportation of returning lawful permanent residents. The USA Act permits immigrants to be found "inadmissible" for advocacy that the Secretary of State determines undermines our anti-terrorism efforts, see Section 411, amending INA section 212(a)(3)(B), even if the advocacy does not meet the test adopted by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (advocacy can be banned only if it represents "incitement to imminent lawless action"). It does not make this a ground of deportation because of First Amendment concerns. The bill must be amended so that a lawful permanent resident who makes a controversial speech cannot be barred from returning to his family after taking a trip abroad.  

IV. Proposed Anti-Terrorism Legislation Expands Secret Searches in All Criminal Cases, Weakening Essential Fourth Amendment Protections. Finally, I would like to briefly address the issue of secret searches, also known as "sneak and peak" searches, which allow officers to conduct a physical search without giving notice to the party whose property is being searched.  

Section 213 of the Uniting and Strengthening America Act ("USA Act") would allow law enforcement agencies to delay giving notice when they conduct a search. This means that the government could enter a house, apartment or office with a search warrant when the occupant was away, search through her property and take photographs, and in some cases seize physical property and electronic communications, and not tell her until later.  

The Fourth Amendment protection against unreasonable searches and seizures requires the Government to both obtain a warrant and to give notice to the person whose property will be searched before conducting the search. The notice requirement enables the person whose property is to be searched to assert his or her Fourth Amendment rights. For example, a person with notice might be able to point out irregularities in the warrant, such as the fact that the police are at the wrong address, or that the warrant is limited to a search for a stolen car; therefore, the police have no authority to be looking in dresser drawers. The Supreme Court recently affirmed that notice is a key Fourth Amendment protection. See Richardson v. Wisconsin, 520 U.S. 385 (1997). However, it has not ruled on the constitutionality of secret searches.  

The major rationale for requiring a warrant before conducting a search is to ensure that a neutral and detached third person -- usually a magistrate -- will review a warrant prior to issuance. The invasion of privacy must be held to a minimum. In a covert search warrant, there are often no limitations on what can or will be searched. Any protections afforded by a warrant are meaningless when the searching officer has complete and unsupervised discretion as to what, when and where to search and the individual owner is not provided notice so cannot assert and protect his or her rights.  

The government already has the authority, in limited situations, to delay notification, for searches of some forms of electronic communication. It must show the judge that if the person to be searched is given notice, one of the five things will happen -- (1) an individual's physical safety will be endangered, (2) someone will flee prosecution, (3) evidence will be tampered with, (4) potential witnesses will be intimidated and, (5) an investigation would be jeopardized or a trial unduly delayed. To extend this very limited authority to every single criminal case would seriously erode the notice protection. Law enforcement agents will seek to delay notification whenever it is to their advantage to do so. Over time, the delayed notice "exception" would become the rule and would deal another serious blow to the privacy protections afforded by the Fourth Amendment.  

V. Conclusion