Detaining foreign terror suspects difficult
Peacetime immigration laws not suitable for wartime
Editor's note: In collaboration with the hard-hitting Washington, D.C., newsweekly Human Events, WorldNetDaily brings you this special report every Monday. Readers can subscribe to Human Events through WND's online store.By Joseph A. D'Agostino
© 2001 Human Events
Even though the United States is now in a congressionally authorized war against foreign terrorists who attacked American soil, from American soil, the Republican-controlled House of Representatives is refusing to give the Justice Department unilateral power to detain foreigners, illegally in the United States, who are suspected of involvement in terrorism.
Meanwhile, a spokesman for the Immigration and Naturalization Service confirmed a statement made to Human Events by Rep. Tom Tancredo, R.-Colo., that there are more than 250,000 illegal aliens in the United States who have already been ordered deported by an immigration judge, but who remain in the United States anyway. Tancredo is chairman of the Congressional Immigration Reform Caucus.
The anti-terrorism bill that was approved unanimously by the House Judiciary Committee Oct. 3 would force the attorney general to release illegal aliens detained during the department’s terrorism investigation after only seven days unless the Justice Department could establish one of three conditions in federal court.
- The first would be to charge the illegal alien with a non-immigration-related crime – for which probable cause would have to be presented in court – and to ask the judge not to release the suspect on bail.
- The second would be to demonstrate to a federal judge that the illegal alien was a material witness to a criminal case and was a threat to flee.
- The third would be for the attorney general to “certify” that there are “reasonable grounds” to believe that the illegal alien is involved in terrorism, a certification that the illegal alien could immediately challenge in court.
There is a major problem with this last option: If the only evidence the Justice Department has to demonstrate “reasonable grounds” that an illegal alien is involved in terrorism comes from foreign intelligence sources – or even friendly foreign intelligence agencies – it would be difficult, maybe impossible, and certainly imprudent and injurious to the U.S. war effort to use that evidence in court. For example, if the Saudi or Egyptian governments, which are now under pressure from domestic Islamic extremists, had covertly provided the Justice Department with the only evidence that demonstrates an illegal alien was an agent of Osama bin Laden’s al-Qaida organization, how could the department present this information to a court without compromising the foreign government or its intelligence sources?
Because of difficulties such as this, the Justice Department had asked for a law that would allow it to detain illegal aliens for as long as deportation proceedings against these aliens may run.
Additionally, Atty. Gen. John Ashcroft argued in congressional testimony that it would sometimes be necessary to detain suspect aliens against whom terrorism charges could not be brought – not because there wasn’t evidence that they were terrorists, but because revealing that evidence would compromise the ongoing investigation to round up other terrorists still at large.
The bottom line: On the issue of whether the Justice Department can detain illegal aliens suspected of terrorism, the only real difference between the law as it stood before Sept. 11, and the law as it will stand if the House of Representatives has its way, is that before Sept. 11 the Justice Department could keep a suspect illegal alien for two days before going to a federal court. Now it would be able to keep him for seven days.
Even so, the House bill sunsets automatically after two years – which means the two-day deadline will snap back into place in 2003, when America may still be deeply at war with terrorists and the Justice Department may still be in the midst of an investigation aimed at rolling up agents of al-Qaida planted here with orders to kill Americans.
The illegal alien detention provisions in the Democrat-controlled Senate version of the anti-terrorism bill are essentially the same as those in the House version, although the Senate is not insisting on sunsetting the provisions.
As a House Judiciary Committee aide explains it, the House bill will allow Justice to keep an alien for seven days for any reason. Then, he said, Justice would have to file some kind of criminal charge, which could include an immigration charge, in order to hold the alien longer. The alien could then go to the U.S. District Court for the District of Columbia, which would require the government to show “reasonable grounds” for its decision to certify the alien as a terrorist suspect. It would then be up to the court to decide if the government met this standard and whether or not to release the alien.
The Judiciary Committee aide argued that the House bill is a big improvement over the current system, which allows both more discretion and many more courts to intervene in such cases.
INS Communications Director Russ Bergeron explained that, under current law, if immigration charges are filed against an alien who has been detained, that alien remains in custody until his initial appearance before a judge.
“The time lag depends on the caseload of the area,” he said. “Usually it is a few days or a week or two.”
At the initial hearing, the judge can set a bond or release the alien on his own recognizance, Bergeron said. The exceptions: when the INS can demonstrate that the alien might flee, when the identity of the alien is not known, or when he is considered “a threat to the public or to national security,” said Bergeron. All this, of course, is up to the discretion of the judge.
“The INS district office can say, ‘We are going to hold you without a bond,’” said Bergeron. But an immigration judge can overturn that decision if the alien so requests, and the INS might have to present evidence to justify its detention of the alien. “That detention is subject to the review of a judge,” Bergeron said. If the government’s reasons for suspicion are classified, it can present evidence in secret (risking a security leak), but “the judge can demand that a non-classified summary of the evidence be given to the alien,” Bergeron said. “If the government cannot provide a summary, the judge can release the alien,” he said.
The Judiciary Committee staff member said that, under the new House bill, the District Court could require the release of classified information or decide to reject information given to law enforcement by a foreign government that had obtained it in a manner considered unconstitutional here (that is, like wiretapping its own citizens without a warrant). It’s up to the judge, he said.
House Judiciary Committee Spokesman Jeff Lungren said that Ashcroft’s original proposal never would have passed the Judiciary Committee regardless of the wishes of Judiciary Chairman Jim Sensenbrenner, R.-Wis. “There was a lot of opposition to the detention provision from all angles,” he said. “I think most members were against the provision. Also, keep in mind you have to go through the Democratic Senate.”
Senate Judiciary Committee Chairman Patrick Leahy, D.-Vt., has publicly stated his opposition to Ashcroft’s original detention proposal. In addition, some conservative Republican members of the House committee came out against the proposal. Representatives Bob Barr, R.-Ga., Jeff Flake, R.-Ariz., Darrell Issa, R.-Calif., and Chris Cannon, R.-Utah, signed a letter to House leaders opposing that provision among others.
Bergeron said that in the past some aliens have been detained for over a year because they were considered threats to national security. He recalled a case concerning six Iraqis and another concerning a Saudi. But “all these individuals eventually won release from custody,” he said. “As far as I know, the Iraqis are still in Nebraska and the Saudi is still in Florida.”
Bergeron also said there are “250,000 to 300,000 aliens in the United States with outstanding warrants of deportation.” These are illegal aliens who have gone entirely through the legal deportation process and have been formally ordered by a judge to be deported, but who remain in the United States anyway because of lax enforcement by the federal government.
“Those aliens who are not criminal and even some who are criminal are released by the judge on bond before their final hearing,” he said. “At the final hearing, the judge often releases the alien after ordering him to be deported. Then the INS sends him a letter saying when he will deported. Sometimes the alien does not show up for his deportation.”
Why are things done this way? “That’s a question you would have to put to legal experts and immigration courts, which are not part of INS,” he said.
Right now, said spokesman Dan Nelson of the Justice Department, no one is being held on terrorism charges. The 614 people now being detained by the Justice Department in its investigation of the Sept. 11 attacks are all being held for one of three other reasons: for being illegal immigrants, for violating a non-immigration law unrelated to terrorism, or because a court has allowed their detention as a material witness who is likely to flee.
Bergeron said that the 614 people now in custody could be released soon if judges are not convinced, by possibly classified evidence, that they are a threat to national security. According to the ACLU, the government must show probable cause before obtaining a material witness warrant. After hearing arguments from a detainee’s attorney, a judge can always decide to release someone held on such a warrant.
These immigration laws, say critics, were made in time of peace, and now is a time of war.
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