Tightening Immigration Raises Civil Liberties Flag
Resolutions expanding the power to
detain and expel lawful residents deemed national security risks cause some
By JONATHAN PETERSON and PATRICK J. McDONNELL, Times Staff Writers
September 23, 2001 LA Times
Arab-Americans Complain of Profiling (September 25, 2001)
WASHINGTON -- Amid an outpouring of national unity, some members of Congress have quietly begun to resist the administration's tough new security measures aimed at noncitizens, voicing particular concerns about jailing even
permanent legal immigrants without charge for indefinite periods.
While there is broad support for new security powers in the
wake of the terrorist attacks, some lawmakers have misgivings about parts
of the sweeping White House proposal, which includes new authority to detain
and expel lawful
residents deemed national security risks. Some fear the enshrining of guilt by association as a basis of detention and deportation.
"We must deport people who are intent on harming the United
States, and that may require amending our immigration laws," Sen. Patrick
Leahy (D-Vt.), chairman of the Senate Judiciary Committee, told The Times.
"But we need to
ensure that any expanded powers we give to the government are based on the use of evidence, not mere suspicion. We should not brand legal permanent residents as terrorists, and detain them indefinitely without giving them the chance to clear their names before a court."
At issue in the widening debate are civil immigration proceedings, not criminal cases against suspected terrorists.
Senate Judiciary Committee staffers planned to huddle with Justice Department officials all weekend in a scramble to complete legislation on a range of measures. Among the items being debated are proposals to:
* Mandate that U.S. authorities jail and deport any noncitizen whom the attorney general certifies as a threat under broad new definitions of terrorist groups. Those targeted for alleged terrorist associations would have no right to a hearing before an immigration judge.
* Allow deportation of legal U.S. residents found to support even the lawful activities of an organization that had ever used or threatened to use a weapon against a person or property.
* Broaden the grounds on which foreigners and their families may be denied admittance to the United States for suspected terrorist links, such as aiding a group that U.S. authorities say endorses terrorism.
Last week, Atty. Gen. John Ashcroft imposed new powers to hold noncitizens in detention for an unspecified period of time, without filing charges against them, due to "emergency or other extraordinary circumstances." Dozens of Middle Eastern nationals are already being held under these new rules.
Lawmakers and others who favor immigration restrictions applaud the administration plan and say the attacks have exposed huge gaps in immigration controls.
"Porous borders cause enormous problems and completely prevent our ability to maintain any kind of security," said Rep. Thomas G. Tancredo (R-Colo.), chairman of the Congressional Immigration Reform Caucus.
The new examination of immigration procedures underscores how the terrorist attacks have forced an agonizing reappraisal of the balance between cherished civil liberties and public safety requirements.
"Right now, I look at these questions through the prism of probably more than 7,000 people killed--and real, palpable fear of more assaults of an unspeakable nature," said Rep. Howard L. Berman (D-Mission Hills), a longtime advocate of immigrant rights.
"I'm trying to come to a sensible approach, an appropriate balance," he said.
Fears of Bias, False Accusations
Nonetheless, critics say the measures could subject law-abiding
immigrants to discrimination or allow for false accusations. Some say standards
are vague. For example, the attorney general would be able to certify someone
deportable for terrorist ties if officials have "reason to believe" the individual is a threat to national security.
Civil libertarians note that wartime fears have led to extreme crackdowns on immigrants in the past.
The most notorious example, of course, is the detention of thousands of Japanese Americans, many of them U.S. citizens, during World War II. That period also saw record numbers of Italian immigrants signing up for U.S. citizenship, fearing a similar backlash against them.
"It is a recurring theme in United States history that when threats have been perceived, there has been a pattern of harsher enforcement against people who are not American citizens, or who are perceived as not being fully 'American,' " said Hiroshi Motomura, a professor at the University of Colorado School of Law.
More recently, terrorist acts in 1993--including the bombing of the World Trade Center and a shooting rampage outside CIA headquarters in Virginia--contributed to a broad 1996 crackdown on immigrant rights. Among other changes, the laws made it easier to deport anyone allegedly linked to terrorism and mandated the quick expulsion of political asylum seekers deemed bogus.
The attorney general's new rules substantially expand the government's authority to jail noncitizens residing legally in the United States. Those who could be affected include both temporary residents, such as foreign students and businessmen, and "green card" holders living and working here full time.
The rules double the amount of time--from 24 to 48 hours--that officials may hold foreign nationals without releasing them or formally charging them with a violation of immigration law.
More significantly, however, the new guidelines allow immigration authorities--under "emergency or other extraordinary circumstances" to extend the 48-hour deadline for an unspecified "additional reasonable period of time." In practice, attorneys say this could go on indefinitely.
Provision Extends Power to Detain
Under current law, the government may hold without bond any noncitizen with a status violation if authorities determine the person is a threat to national security or a flight risk. The new regulation extends that de facto power of indefinite detention to all noncitizens, even those with clean immigration records.
"Almost by definition, this is a way for the government to go after people against whom it doesn't have enough proof to charge criminally," said David Cole, a professor of constitutional law at Georgetown University Law Center.
Earlier this year, the Supreme Court suggested that immigrants facing deportation should not be held for longer than six months. But that decision did not apply to cases involving allegations of terrorism.
Under the Bush administration plan, Cole said, a legal immigrant could be deported today for having made a donation during the 1980s to the African National Congress, which was then engaged in military and political opposition to apartheid.
The proposals go well beyond existing use of secret evidence--concealed
from immigrants and their lawyers--which was expanded in 1996 and has been
widely assailed as a weapon to deport Middle Easterners with no connection
"The attorney general wants to go from using secret evidence to basically using no evidence--just his certification," said Timothy Edgar, legislative counsel with the ACLU in Washington. He compared the plan to the indefinite detention schemes adopted by the British in Northern Ireland, which critics say led to dragnets sweeping up many innocent people and increased support for paramilitary groups.
Others are taking a different view: "The defense of this nation begins with the defense of its borders," Tancredo said. The Colorado congressman vowed that further tough proposals to protect against wrongdoing by noncitizens were in the works.