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2005-6 Civil Liberties Topic Guide

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Some of the authority that the Attorney General – the chief law officer of the federal[1] government claims for making such detentions without charge of un-naturalized aliens or U.S. citizens not engaged in direct hostile action against U.S. forces is found in the PATRIOT Act.  Under the PATRIOT ACT, the Attorney General has expansive powers to indefinitely detain non-citizens and individuals who are identified as contributing directly or indirectly to terrorist operations.  As long as the Attorney General has “reasonable grounds” to believe that person at issue is “described in” the anti-terrorism provisions of the law, the individual is subject to indefinite detention (Cole, 2003, p. 65). 

Chang (2002) explains that the authority to detain non-citizens springs from Section 411 of the PATRIOT Act that authorizes the attorney general to detain noncitizens that he has “reasonable grounds to believe” are involved in terrorism as long a seven days without charging him or her with an immigration or criminal violation (p. 64).  Although the seven day window to charge seems reasonable, the government often claims that there are necessary circumstances that prevent a charge from being issued within that time period.  Cole argues that the PATRIOT Act’s definition of “terrorism” is so broad for immigration purposes that even individuals who have provided “humanitarian” assistance to these groups could be deemed a terrorist.   Individuals detained under this authority do not necessarily have to be certified as “enemy combatants.”

The authority to detain non-citizens does not stem exclusively from the PATRIOT Act, however.  Some authority also springs from changes made shortly after September 11^th.  On September 17, 2001, well before the PATRIOT Act was passed, the Code of Federal Regulations was amended to permit indefinite detention of aliens without arrest or bringing charge against them. 

Immigrant Rights Clinic, New York University School of Law, New York University Review of Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 398

The amendment to 8 C.F.R. 287.3(d), effected September 17, 2001, published in 66 Fed. Reg. 10,390 (Sept. 20, 2001) [hereinafter "amended rule" or "amended regulation"], has gone a long way toward creating this fear. In times of "emergency or extraordinary circumstance," as the current situation un-doubtably has been called, the INS now may detain individuals indefinitely following a warrantless arrest without bringing any charges against them. The amended rule provides no definition of emergency or extraordinary circumstance nor any explanation of how long "an additional reasonable period" of detention may be.

It is important to note that many individuals, particularly unnaturalized aliens, who are subject to indefinite detention have been charged with a crime – usually a minor immigration violation (most of those detained are immigrants). Chang (2002) explains that if a non-citizen is “certified” as a terrorist and charged with an immigration violation – he or she is “subject to mandatory detention without release on bond until either he is deported from the Untied States or the attorney general determines that he should no longer be certified as a terrorist” (p. 64).   Change continues to explain that “Section 412 does not direct the Attorney General to notify the non-citizen of the evidence on which the certification is based, or to provide him with an opportunity to contest that evidence, either at an immigration judge hearing or through other administrative review procedure” (p. 64). 

Another source of authority to detain is the Creppy Memorandum, which was issued by a U.S. Immigration Judge – Michael Creppy.  Acting under “direct instruction from Attorney General Aschroft, Creppy issued a sweeping order that excludes normal due process rights from cases deemed of “special interest.” U.S. Court of Appeals Judge Edward Becker, writing the decision for the court in North Jersey Media Group, Inc. v. Ashcroft, explained the terms of the Creppy Memorandum:

Chief Immigration Judge Creppy issued a memorandum (the “Creppy Directive”) implementing heightened security measures. The Directive requires immigration judges “to close the hearing[s] to the public, and to avoid discussing the case[s] or otherwise disclosing any information about the case[s] to anyone outside the Immigration Court:” It further instructs that “[t]he courtroom must be closed for these cases – no visitors, no family, and no press,” and explains that the restriction even “includes confirming or denying whether such a case is on the docket or scheduled for a hearing.” In short, the Directive contemplates a complete information blackout along both substantive and procedural dimensions. (Becker, 2003, pp. 310-311)

According to Muzaffar Chishti, director of the Migration Policy Institute, more than 600 cases have been designated for this special treatment under the Creppy Memorandum:

In our report we found that at least six hundred cases were classified as “special interest” cases. The courts barred access to records of the persons in detention, closed their deportation hearings and the cases were not listed on the immigration docket. Such practices not only violate the rights of the individual detainees, they also violate important First Amendment rights of the press to have access to public hearings. As we maintain in our report, there certainly can be situations when secrecy may be warranted, but it must be allowed only on a case by case basis, and only by judicial intervention. (Chishti, America After 9/11, 2003, pp. 86-87)[2]

The rationale for detention without charge is basically an argument in favor of preventive detention – detaining someone in order to prevent him or her from committing a crime. The government contends that if these individuals are released they could commit terrorist acts or support the commission of terrorist acts. In 2003, in Denmore v. Kim, the Supreme Court upheld a statute – a law passed by a legislature   mandating preventative detention during deportation proceedings of foreign nationals, even if the person posed no risk of flight or danger to the community (Cole, 2003, p. 224).

Unnaturalized immigrants – immigrants who do not yet have their citizenship but are in the United States – are usually detained under one of the previously discussed authorities. 

The Supreme Court reversed, making two important holdings:  1) The habeas statute doesn’t distinguish between U.S. citizens and foreign nationals held in federal custody, and 2) the habeas write acts upon the person who holds the prisoner, not the prisoner himself.  This means the courts have jurisdiction over persons held in federal custody regardless as to where they are held.

Most recently, in January of 2005, in Clark v. Martinez, the Supreme Court ruled 7-2 that the federal government cannot indefinitely imprison immigrants who cannot be deported. This decision also limited detention of immigrants to no longer than six months:

In a defeat for the Bush administration, the Supreme Court ruled Wednesday that the government may not indefinitely imprison immigrants who cannot be deported, even if they are in the country illegally. The high court’s 7-2 ruling means that about 920 immigrants, most of them Cubans, may be eligible to be released, according to the Homeland Security Department’s Immigration and Customs Enforcement agency. The detainees in question entered the country illegally, 747 of them as part of the 1980 Mariel boatlift from Cuba. Most of the 747 committed crimes and completed prison sentences, yet remain in custody because attempts to deport them to Cuba have been blocked by Cuba’s refusal to take them back.  In 2001, the Supreme Court limited how long a legal immigrant could be detained to a reasonable period of time, usually six months, if deportation was not foreseeable. Wednesday’s ruling expanded that ruling to illegal immigrants. Civil liberties and human rights advocates applauded the latest ruling. “It adds to the growing list of Supreme Court rulings affirming the rights of noncitizens and overturning the Bush administration’s overreaching claims,” said Lucas Guttentag, director of the ACLU Immigrants’ Rights Project, whose organization filed written arguments in court. “It points to the crucial role of judicial oversight over executive decisions.” (Shogren, 2005, p. A24)

There are a number of interesting issues to consider as a result of these decisions.  First, it has generally become accepted as a matter of law that the executive branch does have the authority to indefinitely detain some enemy combatants without charge.  The issue of the authority of the government to indefinitely detain enemy combatants arose in the Hamdi case, but the court decided that the government did have the authority to detain enemy combatants.  As stated, this is a logical, rationale conclusion since the military must be able to detain enemy combatants on the battlefield without charging them.  Since the battlefield of the war on terror includes the U.S., and U.S. citizens have the potential to be terrorists, indefinite detention of said enemy combatants also makes sense.  The concern expressed by litigants, and by the Supreme Court, however, is that since the geographic location of the battlefield has not been specifically defined and that the war on terrorism could go on indefinitely, almost anyone could be labeled by the government as an enemy combatant and subject to indefinite detention. 

Second, courts are willing to assert jurisdiction outside the continental United States.  They did in Hamdi and Rasul despite arguments that Guantanamo Bay is outside the sovereign authority of the United States and on December 16, 2004, “U.S. District Judge John D. Bates ruled that United States courts had jurisdiction in the case of Ahmed Abu Ali, a U.S. citizen jailed in Saudi Arabia as a terrorism suspect” (INTERNATIONAL LAW ENFORCEMENT REPORTER, February 2005, p. 26).

Third, the courts are not likely to permit indefinite detention.  This is not only a limiter to affirmative harm claims, but also suggests that choosing the courts as an agent of action in the plan may be desirable because the courts are actively involved in policing the potential abuse of executive power.

The fourth interesting thing to consider is that most of the literature published from this day on will move the debate forward beyond the Supreme Court’s important decisions. In other words, rather than rehashing the debate about whether or not the President should have the authority to detain all individuals without charge (the case of Padilla will make its way through the courts), it will focus on proposals for determining such things as how to define the “battlefield,” when detentions should be “reviewed” (since the war is indefinite), and how detainees should be treated.  Negatives may wish to exploit this literature to defend counterplans that potentially avoid abuses of detention without charge without removing the authority of the President to detain without charge.  A recent (2005) article in the Legal Times explains: 

Amid the uproar over the possible responsibility of White House Counsel Alberto Gonzales in the abuse of many "enemy combatants," a substantial consensus on the need for congressional rules to govern the detention of such people is quietly emerging among experts, including moderate conservatives, moderate liberals, and even some strong libertarians. The underlying issue one of the most vexing posed by the war against terrorism is when to detain suspected terrorists who seem bent on committing mass murder but who cannot be criminally tried because critical evidence is inadmissible, inconclusive, or too sensitive to be publicly disclosed. The emerging consensus is not over what the detailed rules should be, but rather over the need for President George W. Bush to stop making them up as he goes along, and to start working with Congress. "The president has the power to detain enemy combatants, including U.S. citizens, until the end of the relevant conflict," stresses Goldsmith. Katyal and most other experts agree. But, Goldsmith adds, "because of the novel issues raised by this conflict, it would be prudent for the president to bring Congress on board in designing and legitimizing procedures appropriate for the identification and long-term detention of enemy combatants, especially those held in the United States. Trade-offs between liberty and security, and attendant accountability for errors of over- or underprotection of liberty or security, should rest with the political branches and not . . . with the courts” (January 10, p. 52)

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