Peter A. Schey
War on Terrorism and Civil Liberties
United States agencies involved in protecting the borders have come under criticism since the September 11 attacks on the World Trade Center and Pentagon because almost all 19 of the suspected hijackers easily obtained lawful visas to enter the country and traveled about freely before the attacks, often engaged in activities in violation of their visas.
Ironically, for years immigrants' rights advocates have pointed out the irrational disparity in the Government's allocation of resources to enforce the nation's immigration laws. The Government treats the U.S.-Mexico border as the front-line in a war to preserve the purity and stability of America, while allowing millions of non-immigrants from European, Asian and Middle-Eastern countries to enter on non-immigrant visas or visa waiver programs under virtually no controls, and to engage in activities which violate the terms of their visas with almost total impunity. Low-wage unskilled Mexican and Central American nationals are hunted down as if the survival of the nation as we know it was at stake, while what the INS sometimes classifies as all "other" foreign nationals, may fairly well come and go as they please with almost no fear of apprehension if they overstay their visas or engage in activities inconsistent with their visas.
The suspected September 11 hijackers had no problem obtaining visas. Once here, they had no problem living at addresses other than those they provided the INS, and engaging in a wide range of activities inconsistent with the terms of their visas.
Now there is an investigative maelstrom building in the U.S. in a wide-ranging search for terrorists sweeping mostly through the Middle-Eastern communities. Based on evidence too flimsy to secure indictments or convictions under the 1996 Anti-Terrorism and Effective Death Penalty Act, the U.S. Government has detained over 1,400 people, seized assets of individuals and charities, closed businesses, and frozen bank accounts.
Federal prosecutors possess a wide range of tools to indict and detain immigrants or citizens suspected of terrorist crimes, including the crime of supporting or providing material assistance to terrorists or terrorist groups. Yet, in the five years since it was enacted, no one has been convicted for violating the criminal provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act. Even with 1,400 people arrested and detained in the investigation of the WTC and Pentagon attacks, no one has been charged with terrorism or assisting terrorists under the 1996 anti-terrorist law. The criminal charges brought against a handful of the 1,400 detainees are relatively minor and inconsequential.
In Arizona an immigrant from Djibouti named Malek Mohamed Seif, was recently indicted by a grand jury and charged with making false statements on applications to federal agencies. He was arrested and remains in custody. Seif is not charged with and has denied any involvement in the World Trade Center terrorist attacks. He is suspected of making false statements about his birth place on a Social Security card application, and using his Social Security number on a pilot training medical form. Federal agents were suspicious over his departure from the United States shortly before Sept. 11. However, Seif's attorney says he left the United States briefly to prepare for his wedding in Yemen. Seif voluntarily returned to the United States when he heard the FBI wanted to question him. He was unaware he had been secretly indicted. Upon arriving back in the United States to cooperate with the FBI, he was immediately arrested and detained without bond because of the false statements he allegedly made on his Social Security card application, a crime several million immigrants are guilty of because they need to work.
In New York federal prosecutors won an indictment against a 21-year old Jordanian immigrant studying computer science in San Diego. Osama Awadallah is charged with lying about whether he had ever met one of the suspected hijackers, Khalid Almihdhar. The indictment states that a search of his San Diego home uncovered photos of Osama bin Laden. The indictment further alleges that a piece of paper found in a car at Washington Dulles International Airport registered to alleged hijacker Nawaf Alhazmi contained Awadallah's name and previous phone number.
Alhazmi and Almihdhar, suspected of hijacking the plane that crashed into the Pentagon, lived together in San Diego last year. Awadallah admitted before the grand jury that Alhazmi worked in the same gas station he did in San Diego, but denied knowing Almihdhar. At a second appearance before the grand jury, he corrected his prior testimony, stating he had probably met Almihdhar once or twice through his co-worker Alhazmi. His lawyer asserted Awadallah was simply confused when first questioned about whether he knew Almihdhar. New York Assistant U.S. prosecutor Robin Baker nevertheless announced Awadallah would be prosecuted for "seditious conspiracy to levy war against the United States."
Despite the flimsiness of the charges against Seif and Awadallah, they should perhaps be thankful that their cases have been thrust into the criminal justice system where they have the right to counsel, bail, a presumption of innocence, and a speedy trial. The vast majority of post-September 11 suspects have not been charged with any crimes. Instead, they have been jailed for "questioning" or as material witnesses, detained on "immigration holds" (often without any charges that they violated any immigration laws), had their bank accounts frozen, or their businesses shut down. Because they have not been charged with any crimes, the victims of the Government's post-September 11 nation-wide dragnet have few constitutional protections, and for the most part are unable to defend themselves because there are no known charges to defend against.
Some of the 1,400 detainees have been arrested and jailed as "material witnesses" in the September 11 investigation. It seems not one of these "material witnesses" has yet provided any evidence material enough to secure an indictment against anyone for any involvement in the September 11 attacks. Yet the Government has done whatever it can to avoid releasing them. Ahmad Abou El-Kheir, for example, is a 28-year old Egyptian national arrested days after the WTC attack. He was suspected of knowing two of the hijackers. He was transported to New York and jailed as a "material witness." Almost one month later a federal judge ordered his release. He was then transferred to a Bronx court on a three-year old warrant involving a minor disorderly conduct conviction. Once that matter was resolved, he was transferred to the custody of the INS to face a charge that he had violated his visa on an earlier visit to the United States. When he agreed to depart the country, the INS continued to detain him for deportation, but refused to actually deport him.
The Government refuses to disclose who it has arrested, why they have been arrested, or where they are being detained. The Department of Justice has refused to respond to a Freedom of Information Act request seeking this information submitted by the Center for National Security Studies in Washington, DC. It appears the vast majority of the detainees have no access to representation by counsel, or access to the federal courts to seek habeas corpus release. The media has gathered information on a small number of detainees, and media coverage of their plight has helped some people to win their release.
Dr. Al-Badr Al-Hazmi, for example, was detained the day after the WTC attacks and finally released on September 25 after media articles questioned his arrest and detention. The 34-year-old Saudi national studying radiology in San Antonio, Texas, is highly regarded by his colleagues in the medical profession and in his community. Twice a year he participated in a program offering free medical treatment to residents of San Antonio. The fact that he strongly condemned the terrorist attacks made little difference to the FBI or federal prosecutors. He publicly proclaims "The teaching of Islam is totally against violence." Following his release, the FBI refused to explain why he was detained, or why he was released. His lawyer said "There's not a scintilla of evidence that Dr. Al-Hazmi did anything wrong. . . . This has been a terrible mistake." Unfortunately, the mistake is being repeated hundreds of times over, with most detainees unable to access lawyers, or the media, to win their release.
Many of the detainees are being held by the INS. Normally, INS detainees must be charged with a deportable offense within 24 hours of arrest, and the are entitled to have their bail reviewed by an Immigration Judge and the Board of Immigration Appeals. However, on September 20, the INS published a new rule in the Federal Register announcing that immigrants may now be detained for a "reasonable" length of time without any charges being filed against them in times of national emergency or "other extraordinary circumstances." (66 FR 48334). It appears Attorney General Ashcroft believes the September 11 attacks created an emergency and extraordinary circumstances permitting immigrants to be detained for a reasonable period of time--whatever that means--without being charged with any violation of the Immigration Act. The INS continues to implement the new "reasonable" detention without charges rule, even though anti-terrorism legislation passed by Congress on October 26 requires the INS to file charges against detained immigrants within "seven days."
To further strip immigrants of their due process rights to liberty and to defend against charges brought against them, on October 31 the Department of Justice issued another new rule granting the INS an automatic stay of any decision by an Immigration Judge or the Board of Immigration Appeals to release an immigrant on a reasonable bail. (66 FR 54909). Under the new rule, the stay of release will remain in effect until the Attorney General reviews the case and determines whether he believes release is appropriate. This could take months or years.
The Government is using other non-criminal sanctions against Middle-Eastern groups and individuals that make mounting a defense difficult to impossible. Around the country federal agencies, including the Treasury Department, are investigating Islamic American nonprofit groups and freezing some of their assets, including eight of the largest Muslim charities in the United States. Each of the eight Islamic nonprofit charities targeted condemned the attacks on the World Trade Center and Pentagon, and six have solicited funds for the victims of the attacks. The Treasury Department states that it obtains information from foreign governments, the FBI, CIA, State Department and its own investigations. But it refuses to divulge any evidence in support of its actions against the Islamic charities.
The Islamic Center in Tucson, set up by students at the University of Arizona in 1971, was seemingly targeted by the U.S. Government because Wa'el Hamza Jalaidan, now believed to be a strategist for Bin Laden, served as the Center's president some sixteen years ago. The Government ignores the fact that sixteen years ago it was funding Bin Laden to fight the Soviets in Afghanistan.
In October and November the assets of over 150 groups and individuals have been frozen. On November 7 2001, U.S. Customs agents carried out a series of raids on businesses that transfer funds back home for immigrants. Assets of nine businesses and individuals were frozen. One of the main businesses targeted, the al-Barakaat network, is used by Somali immigrants to send money to relatives in Somalia. Ahmed Nur Ali Jim'ale, the chairman of the al-Barakaat group, told the Associated Press in Mogadishu, Somalia, "This is all lies, we are people who are hard working and have nothing to do with terrorists." The small office of Barakaat Enterprise in Columbus, Ohio, mostly used by immigrants to cash checks and send money home, was sealed off by federal agents and a notice posted on its window stating: "All property contained in this building is blocked pursuant to an Executive Order of the President on Sept. 23 of this year under the authority of the International Emergency Economic Powers Act."
The use of secret evidence is yet another tool in increasing favor with federal law enforcement officials since the September 11 attacks. The FBI and INS have for several years relied upon secret evidence to detain Middle-Eastern immigrants. Mazen Al Najjar, a 44-year old Palestinian who earned his doctorate in engineering at the University of South Florida, was arrested during a 1995 FBI raid of USF's World and Islam Studies Enterprise, a campus think-tank where he worked as the executive director. No criminal charges were filed against Al Najjar, but he was turned over to the INS and jailed until last December on the basis of evidence the Government refused to divulge. He was set free by a federal court in Miami which concluded that his detention violated the due process clause of the Fifth Amendment.
Al Najjar's experience does not bode well for the over one thousand detainees picked up in the wake of the September 11 attacks. Despite repeated set backs in the federal courts, the Government will undoubtedly continue relying upon flimsy secret evidence to detain people without ever filing criminal charges against them. Hundreds of detainees will languish in jails across the United States without legal counsel or the resources to access the federal courts to defend their constitutional rights. Families will be torn apart and thrown into economic chaos as breadwinners are locked up on the basis of secret evidence that would never hold up in a court of law applying traditional due process principles.
In court filings the Government justifies detention of its post-WTC attacks prisoners on the ground its investigation is on-going and complex. FBI affidavits advise judges that detainees should not be released before the Government can "exhaust all avenues" of its investigation. The affidavits argue that "the business of counter-terrorism intelligence gathering in the United States is akin to the construction of a mosaic." And, the Government "is gathering and processing thousands of bits and pieces of information that may seem innocuous at first glance. We must analyze all that information, however, to see if it can be fit into a picture that will reveal how the unseen whole operates." The problem for the vast majority of detainees is that there is no evidence linking them to the as yet undiscerned and little understood "unseen whole" the investigation is struggling to piece together.
The most recent weapon added to the arsenal in the war against terrorism is the Military Order issued by President Bush on November 13. Under this executive order, people suspected of being terrorists, or supporting terrorists, in acts which "cause injury to" or have an "adverse effect[ ]" on the United States' national security, foreign policy, or economy, may be arrested by the military and "tried for violations of the laws" by "military tribunals" established by the Secretary of Defense. The military order applies to all persons who are not citizens of the United States, wherever they may be found. The military tribunals may be conducted anywhere the President or Secretary of Defense choose. Any evidence having "probative value to a reasonable person" may used in such tribunals, seemingly including confessions obtained by torture or threats of torture or death. Conviction may take place based upon a vote of two-thirds of the officers appointed to serve as judges in a tribunal.
A person held for such a tribunal or convicted in one "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly ... in any court of the United States, any court of any foreign nation, or any international tribunal." Convictions and sentences may be reviewed only by the President, or if he so designates, the Secretary of Defense. Sentences may include "life imprisonment or death."
While the military tribunals will have jurisdiction over persons suspected of involvement in international terrorism, the term terrorism is nowhere defined in the Military Order. However, under the Anti-Terrorism and Effective Death Penalty Act, terrorism is defined as the use of any force or violence to achieve a political aim. Thus, for example, a pro-democracy freedom fighter seeking to overthrow the theocratic royal family dictatorship in Saudi Arabia by blowing up an oil rig, could be arrested by U.S. special forces, brought before a secret U.S. Military Tribunal somewhere overseas, charged with terrorism that adversely effected U.S. foreign policy and its economy, and sentenced to death and executed. Similarly, a lawful permanent resident alien living in the United States who "aided or abetted" the Kosovo Liberation Army which fought the security forces of former Yugoslav President Slobodan Milosevic could be convicted and sentenced to death in a secret trial conducted by a Military Tribunal somewhere in the United States.
It has been over 100 years since a U.S. President sought to establish Military Tribunals for crimes not committed during a declared state of war. In Ex parte Milligan, 71 U.S. 2 (1866), the Supreme Court addressed the habeas corpus petition of Lambdin Milligan, an Indiana lawyer who allegedly joined a secret group planning to free Confederate prisoners. Milligan and others were arrested, tried, convicted and sentenced to death by military officers. The Supreme Court unanimously concluded that "the power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety." The Court observed that "[b]y the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people." The Court reviewed the constitutional protections afforded defendants in criminal cases, and pointed out that the authors of these protections "foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law."
Finally, the Court concluded that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority." As long as the federal courts were "open and their process unobstructed," the president possessed no right to circumvent their jurisdiction by authorizing the use of military tribunals. While Milligan was a citizen, and President Bush's Military Order targets only non-citizens, no federal court has ever held that non-citizens charged with crimes are entitled to less constitutional protections than citizens.
Administration officials defend President Bush's Military Order on the basis of a more recent Supreme Court decision which refused to interfere with the execution of six German nationals who entered the U.S. in 1942 to commit acts of sabotage. On June 13, 1942, four Germans landed on a beach near Amagansett, Long Island, New York, carrying explosives to be used in sabotage of American defense-related production. On June 17, 1942, a similar group landed on Ponte Vedra Beach, near Jacksonville, Florida. Within two weeks the saboteurs were arrested, and within a month tried before a Military Commission, found guilty, and six non-cooperating defendants sentenced to death. Meeting in a special session, the Supreme Court rejected an appeal that the Germans were entitled to be tried in a civil court. The Court decided that "lawful combatants" during a declared war were entitled to be detained as prisoners of war. However, "unlawful combatants"--those who enter the territory of a state at war to engage in acts of sabotage, are subject to trial and sentence by military courts. While Administration officials have justified President Bush's Military Order on the ground that "terrorists" are the functional equivalent of "unlawful combatants," they ignore the fact that the German saboteurs case was decided in the context of a war declared by Congress. Under Article 1, section 8 of the Constitution, it is the Congress which has authority to declare war. While the President may declare a "war" on drugs, or on terrorism, that is hardly the same thing as the Congress, under its Constitutional mandate, issuing a declaration of war. There is no precedent for a President, by executive order, to establish military tribunals to hold secret trials for persons suspected of crimes during an undeclared "war" on a perceived evil, no matter how great that evil may be.
The attacks of September 11 were major crimes against humanity. Shortly after the attacks took place, President Bush and other top U.S. officials called for "justice," and repeatedly stated the perpetrators and those who aided them should be "brought to justice." But over the following weeks the calls for justice turned to calls for revenge and war. The rules of justice were tossed out as the President called for Bin Laden's capture, "dead or alive," just like those old "Wild West posters," the President said. The rules of justice were tossed out as hundreds of innocent people were jailed without charges, access to legal counsel, or access to the courts. The rules of justice were abandoned when likely hundreds or thousands of innocent Afghanis were killed in the war to topple those who oppressed them, and, of course, to find Bin Laden. The rules of justice have been suspended as the U.S. Government uses the United Nations in an effort to patch together a post-Taliban government, but makes clear it will act unilaterally and in secret when it arrests, tries and sentences suspected terrorists in its new Military Tribunals.
In short, the U.S. Government's response to the September 11 terrorist attacks has not been one which embraces the Constitution, or the rule of law, or application of well-established international law. Instead, the response has ultimately relied upon raw military and police powers, largely unchecked by the judiciary or traditional notions of due process of law. In his inaugural address in 1961, President John Fitzgerald Kennedy said "In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger... The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it, and the glow from that fire can truly light the world." While the Government's response to the September 11 attacks has been energetic, it has shown little faith in or devotion to the principles laid out in the Constitution. As a consequence, thousands of innocent people have suffered in order to revenge thousands of others killed by terrorists who abided by no constitution or rules of justice.