IMBALANCE OF POWERS. How Changes to U.S. Law & Policy Since 9/11 Erode Human Rights and Civil Liberties. September 2002 March 2003

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1 IMBALANCE OF POWERS How Changes to U.S. Law & Poliy Sine 9/11 Erode Human Rights and Civil Liberties September 2002 Marh 2003 This report is a digest of a longer version of Imbalane of Powers, available at Imbalane of Powers is an update to Lawyers Committee s A Year of Loss: Re-examining Civil Liberties Sine September 11, whih was published in September 2002.

2 ABOUT US Lawyers Committee for Human Rights Sine 1978, the Lawyers Committee for Human Rights has worked in the U.S. and abroad to reate a seure and humane world by advaning justie, human dignity and respet for the rule of law. We support human rights ativists who fight for basi freedoms and peaeful hange at the loal level; protet refugees in flight from perseution and repression; promote fair eonomi praties by reating safeguards for workers rights; and help build a strong international system of justie and aountability for the worst human rights rimes. William D. Zabel is Chair of the Board of the Lawyers Committee, Tom Bernstein is the President of the Board, Mihael Posner is the Exeutive Diretor, Mihael MClintok is the Diretor of Program, Elisa Massimino is the Diretor of the Washington, D.C. Offie, and Jill Savitt is the Diretor of Communiations. ACKNOWLEDGEMENTS This report was written by: Fiona Doherty, Kenneth Hurwitz, Elisa Massimino, Mihael MClintok, Raj Purohit, Cory Smith, and Rebea Thornton. Others on the Lawyers Committee staff who ontributed to the report were: Eleanor Aer, Heidi Altman, David Danzig, Ali Di Matteo, Zinga Fraser, Sarah Graham, Anwen Hughes, Lauren Knopf, Fiona MKay and Jill Savitt. We wish to thank the ontributors whose funding made this report possible: the John D. and Catherine T. MaArthur Foundation, the Open Soiety Institute, Matthew Dontzin, and The Atlanti Philanthropies, along with fellowship providers Equal Justie Works and the law firm of Cravath, Swaine & Moore. New York Headquarters Lawyers Committee for Human Rights 333 Seventh Avenue, 13th Floor New York, NY USA Washington, D.C. Offie Lawyers Committee for Human Rights 100 Maryland Avenue, NE, Suite 502 Washington, D.C USA Tel: (212) ny@lhr.org Tel: (202) wd@lhr.org This report is available online at Printed opies are U.S.$5. To order a opy, or for more information, all the ommuniations department at (212) Website: by the Lawyers Committee for Human Rights All Rights Reserved Printed in the United States of Ameria

3 IMBALANCE OF POWERS How Changes to U.S. Law & Poliy Sine 9/11 Erode Human Rights and Civil Liberties September 2002 Marh 2003 This report is a digest of a longer version of Imbalane of Powers, available at Imbalane of Powers is an update to Lawyers Committee s A Year of Loss: Re-examining Civil Liberties Sine September 11, whih was published in September 2002.

4 Table of Contents INTRODUCTION i Government s Responsibilities for Seurity Eroding Basi Rights on Multiple Fronts: the Cheks Are Out of Balane Righting the Balane of Powers CHAPTER ONE: OPEN GOVERNMENT The Freedom of Information At The Federal Advisory Committee At The Drafting of Patriot II Protetions for Homeland Seurity Whistleblowers CHAPTER TWO: RIGHT TO PRIVACY Aess to Library and Business Reords Expansion of Powers Under the Foreign Intelligene Surveillane At (FISA) = USA PATRIOT At Amendment = New Proposals for Expanding FISA The Total Information Awareness Projet (TIA) Proposals to Terminate Restritions on Spying by Loal Polie Proposal for a Terrorist Identifiation Database CHAPTER THREE: TREATMENT OF IMMIGRANTS, REFUGEES AND MINORITIES Deline in Refugee Resettlement Disrimination against Haitian Asylum Seekers Protrated Clearane Proess for Credible Asylum Leads to Lengthy Detentions New Restritions on Immigration Appeals INS Is Folded into the New Department of Homeland Seurity

5 Justie Department Poliy of Closing Immigration Hearings Hate Crimes, Disrimination, and Harassment = Speial Registration CHAPTER FOUR: SECURITY DETAINEES AND THE CRIMINAL JUSTICE SYSTEM Enemy Combatants U.S. Citizens with Alleged Links to al Qaeda = José Padilla = Yaser Hamdi Arrests and Trials of Non-Citizens within the United States = Zaarias Moussaoui = Rihard Reid The Military Commissions The Guantanamo Detainees Allegations of Mistreatment by U.S. Interrogators U.S. Law Prohibits Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CHAPTER FIVE: THE UNITED STATES & INTERNATIONAL HUMAN RIGHTS PROTECTION Proseuting National Seurity Cases Revised Standards for New Allies Growing Trend Toward Draonian Anti-Terrorism Laws RECOMMENDATIONS

6 Introdution T his report is a digest of key information in Imbalane of Powers, a book-length report that examines a wide range of ations taken by the United States government in response to the September 11, 2001 attaks on the World Trade Center and the Pentagon. This digest and the full report, Imbalane of Powers (available at over the six-month period of September 2002 to Marh 2003, and update our report entitled A Year of Loss published in September 2002, on the first anniversary of the attaks. GOVERNMENT S RESPONSIBILITIES FOR SECURITY We start from the premise that the U.S. government, like any government, has the right and obligation to protet its people from attaks. We reognize that the ontinued threat posed by al Qaeda and other suh groups is grave. Given the open nature of U.S. soiety and its vast borders, the potential for future violent attaks in the United States ontinues to be extremely high. The risk of suh attaks has not diminished, and may in fat be greater in the oming weeks and months. Mindful of suh risks, we support efforts by the government to take appropriate measures to enhane publi seurity, to gather information about potential attaks, to bring perpetrators of these rimes to justie, and to take preautionary steps to prevent future attaks. The arrests of key al Qaeda suspets like Khalid Shaikh Mohammed are an important aspet of these law enforement efforts. The ontinued efforts to bolster airport seurity, to enhane inspetions of argo oming by ship into the United States, and ongoing efforts to improve oordination and ommuniations among law enforement and intelligene gathering agenies are all reasonable and neessary measures. We see the need for ontinued attention and resoures to support these and other similar efforts aimed at enhaning the protetion of publi seurity. i

7 ERODING BASIC RIGHTS ON MULTIPLE FRONTS: THE CHECKS ARE OUT OF BALANCE At the same time, between September 2002 and Marh 2003, the U.S. government has ontinued to take ations that erode basi human rights protetions in the United States, inluding fundamental guarantees entral to our onstitutional system. Viewed individually, some of the hanges may not seem extreme, espeially when seen as a response to the September 11 attaks. But the omposite piture outlined in this report shows that too often the U.S. government s mode of operations sine September 11 has been at odds with ore Amerian and international human rights priniples. Central among those priniples is the idea of heks and balanes, where a separation of powers among the exeutive, judiial, and legislative branhes of government provides important safeguards. Throughout this report, a pattern emerges in whih ore U.S. values are being undermined by aggressive exeutive branh ations that are usurping the onstitutional powers of the federal ourts and Congress. RIGHTING THE BALANCE OF POWERS The right to have rights is preious and it is at risk in the United States today. Mindful as we are of the serious threats onfronting the United States, we believe it is essential to review, disuss, and debate the range of measures outlined on the following pages as well as others now being proposed and implemented to make sure basi rights are proteted. Some senior offiials in the administration, inluding the attorney general, have sought to ut short a debate of these new laws and poliies. They ontend that suh debates are irrelevant, unneessary, harmful to the war against terrorism, or even disloyal. We strongly disagree. The resolution of these matters will affet the fundamental nature of U.S. soiety, now and for years to ome. As this new alulus of liberty and seurity is forged, a more robust national debate on the issues is essential. As we review the sweeping hanges taken over the last 18 months, we onlude that many of the extraordinary measures now require repeal or substantial refinement by the exeutive branh and, where neessary, by Congress. In other ases we onlude that more ongressional oversight or more ative judiial review of exeutive ations is needed. ii

8 At the end of this report, we provide a series of onrete reommendations aimed at all three branhes of the federal government. With respet to the range of issues raised in this report, a more vigorous publi debate is essential. Among the key questions that warrant greater publi onsideration are these: How permanent are these hanges and when will reent amendments to U.S. laws and praties be repealed? Who will deide this and using what standard? What are the riteria, for example, in determining when detainees now being held in Guantanamo Bay, Cuba, should be permitted to return to their home ountries? Who should make this deision? What is the appropriate role for the federal ourts? Should the ourts, for example, be able to review the fatual basis for detention of individuals deemed by the exeutive branh to be enemy ombatants? What is the proper role for Congress in overseeing the exeutive branh? For example, how losely should Congress monitor new domesti intelligene-gathering proedures and praties? At what stage should Congress begin evaluating informal legislative proposals being formulated in the exeutive branh like the draft PATRIOT II bill? How extensively should these proposals be publily debated? Core U.S. values are being undermined by aggressive exeutive branh ations that are usurping the onstitutional powers of the federal ourts and Congress. How far should the government go in gathering information and intelligene? Should the government have the authority to monitor the medial reords, redit histories, and personal and omputer files of ordinary itizens? iii

9 Should the exeutive branh have the authority to take away the itizenship of Amerians when it onludes that they are supporting terrorist ativities? How broad is the exeutive branh s power in preventing future ats of terrorism? What are the limits of the prevention dotrine? Who sets those limits and based on what riteria? What has been the effet of these new laws and poliies on human rights situations in other ountries? To what extent are efforts by the U.S. government to promote human rights around the world ompromised by these hanges in U.S. law and praties? iv

10 Chapter 1 CHALLENGES TO OPENNESS GOVERNMENT INTRODUCTION A mantle of serey ontinues to envelop the exeutive branh, largely with the aquiesene of Congress and the ourts. The administration s insistene on serey makes effetive oversight impossible, upsetting the onstitutional system of heks and balanes at a time when the exeutive branh is aruing vast new powers. History has demonstrated that periods of national emergeny pose the greatest threat to the onstitutional order. But it is preisely at suh moments that the legislature and judiiary must defend their onstitutional authority and serve as guardians of demoray, ensuring that the balane between liberty and seurity is properly struk. By fostering a ulture of serey, the administration is turning its bak on the very priniples that make demoray flourish. As John Adams warned two enturies ago, liberty annot be preserved without a general knowledge A mantle of serey among the people. ontinues to envelop the The Constitution relies exeutive branh, largely on an informed eletorate to provide the Congress and the ourts. with the aquiesene of ultimate hek against arbitrary government. In the wake of September 11, however, judges and legislators have too often yielded to exeutive demands, without safeguarding their own obligation to oversee exeutive ations and defend the right of the Amerian people to know what their government is doing. 1

11 THE FREEDOM OF INFORMATION ACT Publi aess to information under the Freedom of Information At (FOIA) has delined steadily in the wake of September 11, On Otober 12, 2001, Attorney General Ashroft issued a new FOIA diretive to the heads of exeutive agenies, enouraging the presumptive refusal of requests. Previously, the Department of Justie (DOJ) would defend an ageny s refusal to release information under FOIA only when it ould be argued that releasing the information would result in foreseeable harm. In November 2002, Congress further undermined FOIA by aeding to an expansive new ritial infrastruture exemption in the Homeland Seurity At. Under Setion 214 of the At, ritial infrastruture information voluntarily provided to the Department of Homeland Seurity (DHS) is not subjet to dislosure under FOIA. The term ritial infrastruture enompasses a broad sweep of private and governmental systems that inlude (but are not limited to) teleommuniations, energy prodution, banking and finane, transportation, water systems and emergeny servies. The administration has insisted that the ritial infrastruture exemption is neessary to failitate information-sharing with the government in the wake of September 11. Yet exempting suh information from dislosure aross the board seems ounterprodutive, weakening private-setor inentives to solve problems and implement reforms. For example, the wholesale suppression of information about environmental hazards ould diretly threaten ommunity safety, while the extent of its ontribution to national seurity remains questionable. Not surprisingly, many of the ompanies benefiting from the new exemption had been seeking these kinds of protetions for years. Senator Patrik Leahy (D-VT) alled the exemption a big-business wish list gussied up in seurity garb. He warned that it represented the most severe weakening of FOIA to date. THE FEDERAL ADVISORY COMMITTEE ACT Sine 1972, the Federal Advisory Committee At (FACA) has worked to limit the ability of speial interest groups, ating through advisory ommittees, to influene publi poliy behind losed doors. FACA was enated to ensure that Congress and the publi were aware of the number, purpose, membership, and ativities of advisory ommittees 2

12 set up by the exeutive branh. Under FACA, advisory ommittees must announe their meetings, hold them in publi, provide for the representation of differing viewpoints, and make their materials available to the publi. The Homeland Seurity At authorizes the DHS to reate advisory ommittees that are exempt from FACA. As a result, they will be able to meet in seret, and all of their ativities and reports will be shielded from ongressional and publi srutiny. THE DRAFTING OF PATRIOT II In reent months Justie Department offiials have drafted a new legislative proposal to further expand the administration s USA PATRIOT powers. On February 7, 2002, the Center for Publi Integrity released a leaked opy of the Domesti Seurity Enhanement At of 2003, whih has been niknamed PATRIOT II. In expanding exeutive surveillane and detention powers, PATRIOT II would also enhane the administration s apaity to exerise those powers in seret. For example, the draft bill would require judges to onsider in amera (alone in hambers) and ex parte (onsidering one side only) the government s appliations to submit seret evidene at trial, when so requested by the government. Another provision would prevent grand jury witnesses from disussing their testimony publily even to ontradit false information reported about them in the press. Most signifiantly, the draft bill expliitly authorizes seret arrests, overturning a federal ourt deision requiring the Justie Department to release the names of the hundreds of people detained in the United States in the post- September 11 sweeps. If enated, the draft Patriot II would sweep away important onstitutional heks on exeutive power. 3

13 LAST-MINUTE INCLUSION OF PROTECTIONS FOR HOMELAND SECURITY WHISTLEBLOWERS One enouraging development was ongressional insistene on inluding whistleblower protetion in the Homeland Seurity At. The administration s original draft of the Homeland Seurity At effetively exempted DHS employees from the protetions of the Whistleblower Protetion At (WPA). Senator Charles Grassley (R-IA), o-author of the WPA in 1989, led the fight to ensure that the final version of the Homeland Seurity At inluded strong whistleblower protetions. Senator Grassley s amendment to preserve whistleblower protetions for all DHS employees was inorporated into the final version of At. Congress made lear that the exeutive may not waive, modify, or otherwise affet the protetion of employees from reprisal for whistleblowing. 4

14 Chapter 2 RIGHT TO PRIVACY INTRODUCTION T he right to privay is proteted by the Fourth Amendment to the Constitution, whih limits the government s searh and seizure powers to prevent arbitrary and oppressive interferene by enforement offiials with the privay and personal seurity of individuals. The Constitution protets our right to be left alone, a right whih U.S. Supreme Court Justie Louis Brandeis termed the most omprehensive of rights, and the right most valued by ivilized men. In the wake of September 11, many longstanding prohibitions on government surveillane powers were revoked with little publi disussion or debate. From September 2002 to Marh 2003, Congress and the ourts have made some efforts to hek new proposals to further expand the administration s surveillane powers and its aess to the personal data of U.S. itizens and others. In other instanes, they have allowed further overreahing and serey by the exeutive branh. In the wake of September 11, many longstanding prohibitions on government surveillane powers were revoked - with little publi disussion or debate. One positive assertion of ongressional onern about privay issues involves Operation TIPS, a neighbor-toneighbor spy program proposed by the Justie Department. It was designed to enourage itizens to report on the suspiious ativities of people in their ommunities. Attorney General John Ashroft pressed hard for the establishment of Operation TIPS, but Congress turned him down. The final bill establishing the Department of Homeland Seurity inludes a provision banning Operation TIPS. 5

15 ACCESS TO LIBRARY AND BUSINESS RECORDS The government has ahieved muh of its data gathering by demanding that retailers, libraries, shools, internet servie providers, and others turn over lient information. Setion 215 of the USA PATRIOT At requires libraries, bookstores and other venues to turn over on demand business reords, douments, and other items the FBI has delared neessary for an ongoing investigation related to international terrorism or landestine intelligene ativities. This invasion of privay is exaerbated by a new law that makes it a rime to reveal that the FBI has seized ustomer reords. This means, for example, that a librarian who speaks out about being fored to reveal a patron s book seletions an be subjet to proseution. Librarians and booksellers have been outspoken about the potentially hilling effet these new measures ould have on freedom of expression and inquiry. The Amerian Library Assoiation s Freedom to Read Foundation (FTRF) and the Amerian Booksellers Foundation for Free Expression (ABFFE) joined the ACLU and Eletroni Privay Information Center in an Otober 24, 2002 lawsuit brought to request information on subpoenas issued to bookstores and libraries under the USA PATRIOT At. EXPANSION OF POWERS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) Congress enated the Foreign Intelligene Surveillane At (FISA) in 1978 to reate a separate legal regime for the gathering of foreign intelligene information, as opposed to domesti law enforement information. FISA grants the FBI exeptional authority to monitor foreign powers and their suspeted agents in ounterintelligene operations within the United States. In using this authority, the FBI is exempt from the traditional Fourth Amendment requirements appliable to riminal investigations. Beause of the extraordinary sope of these powers, Congress limited the irumstanes under whih they ould be used. The FBI ould use its FISA powers only for the purpose of gathering foreign intelligene information. The Foreign Intelligene Surveillane Court implemented proedures to enfore this limitation and to ensure that the information obtained through FISA searhes and surveillane was not used seretly in riminal proseutions. 6

16 USA PATRIOT ACT AMENDMENT At the urging of the administration, however, Congress signifiantly expanded the government s FISA powers shortly after September 11, Under Setion 218 of the USA PATRIOT At, the FBI an now seek FISA warrants when the gathering of foreign intelligene is merely a signifiant purpose of the warrant a slight hange in wording that has far-reahing impliations. The administration immediately argued that the FBI ould now seek a FISA warrant when the government s primary purpose was the gathering of information for domesti riminal investigations. This interpretation would mean that FISA, whih was enated to failitate the gathering of foreign intelligene information, ould now be used as a way to sidestep Fourth Amendment requirements in regular riminal investigations. The Foreign Intelligene Surveillane Court did not agree with the administration s position. In May 2002, the seret FISA ourt issued its first ever publi opinion, unanimously finding that the administration s interpretation of the amendment would turn the entire purpose of FISA on its head. The Department of Justie appealed the deision to the Foreign Intelligene Surveillane Court of Review. On November 18, 2002, the Court of Review overruled the FISA ourt s deision, determining that Congress had intended to relax the barriers between riminal law enforement and foreign intelligene gathering when it passed the USA PATRIOT At. It held that the government ould now lawfully use its extraordinary FISA powers in riminal investigations, so long as those investigations had some purpose of gathering foreign intelligene information. A librarian who speaks out about being fored to reveal a patron s book seletions an be subjet to proseution. 7

17 THE ADMINISTRATION S NEW PROPOSALS FOR EXPANDING FISA The Department of Justie has drafted new proposals to expand its FISA powers still further. One proposal in the PATRIOT II draft would signifiantly inrease the sope of FISA by altering the definition of a foreign power to over individuals (inluding U.S. itizens and permanent residents) suspeted of engaging in international terrorism, but who have no known links to any foreign government or to any group engaged in international terrorism. Another PATRIOT II proposal would allow the government to sidestep the FISA ourts altogether in a greater range of irumstanes, using its FISA powers without any judiial review. THE TOTAL INFORMATION AWARENESS PROJECT (TIA) The proposed Total Information Awareness Projet (TIA), direted by retired Admiral John Poindexter at the Information Awareness Offie (IAO) of the Defense Advaned Researh Projets Ageny is intended to allow the government to utilize data-mining to aggregate and analyze all publi and private ommerial database information to trak potential terrorists and riminals. Many of the most intimate, personal details of the daily lives of all Amerians would be subjet to surveillane and ataloging by the federal government. The program aims to develop a omprehensive data profile of itizens and non-itizens alike, drawing on databases and publi and private reords of all kinds. As envisioned, TIA would enable the federal government to ollet omprehensive personal data on ordinary people inluding driving reords, high shool transripts, book purhases, medial reords, phone onversations, , and logs of internet searhes. Members of Congress from aross the politial spetrum expressed grave onerns about the program inluding Senators Grassley (R-IA), Collins (R-ME), Feinstein (D-CA), Harkin (D-IA), Inouye (D-HI), Shumer (D-NY) and former Representatives Armey (R-TX), and Barr (R-GA). Former House Majority Leader Dik Armey ommented that TIA is the only thing that is sary to me. A broad range of groups, inluding CATO, ACLU, the Free Congress Foundation, and the Eagle Forum, have also raised questions about the privay and onstitutional impliations of TIA. These groups onur with the olumnist William Safire, who observed that [TIA] is not some far-out Orwellian senario. It is what will happen to your personal freedom in the next few weeks if John Poindexter gets the unpreedented power he seeks. 8

18 In February 2003, Congress inluded in an omnibus spending bill a Senate-passed provision, sponsored by Senator Wyden (D-OR), that temporarily banned all funding for TIA until the program ould be further explained and its impat on ivil liberties assessed. Under this provision, TIA will reeive no funds until the Attorney General, Diretor of Central Intelligene and Seretary of Defense provide a detailed report to Congress, within 60 days of passage of the bill, on the use of TIA. PROPOSALS TO TERMINATE RESTRICTIONS ON SPYING BY LOCAL POLICE Last year, Attorney General Ashroft unilaterally lifted restritions on domesti spying by the FBI. These restritions were put in plae following revelations that the government had onduted oppressive surveillane on Martin Luther King, Jr. and other ivil rights leaders deemed subversive. Many state and loal law enforement agenies, some with disturbing histories of similar abuses, are party to ourt-supervised onsent derees arising out of legal hallenges to these praties. These onsent derees prohibit illegal spying by polie departments, and as suh the Justie Department argues that they inhibit effetive ooperation with the federal spying now permissible under the new guidelines. As envisioned, TIA would enable the federal government to ollet omprehensive personal data on ordinary people. The draft Domesti Seurity Enhanement At of 2003 (PATRIOT II) would abolish virtually all of these onsent derees and effetively prevent future onsent derees to oversee prohibitions on spying by loal polie fores. Attorney General Ashroft has said that the prohibitions against polie spying are a reli. Yet when asked at a reent Senate Judiiary hearing whether he ould provide a single example of an instane where suh a onsent deree interfered with a terrorism investigation, he said, I annot. 9

19 CREATING A TERRORIST IDENTIFICATION DATABASE Another PATRIOT II bill proposal with far-reahing impliations for privay rights is the reation of a Terrorist Identifiation Database. This proposal would authorize the administration to ollet the DNA of anyone onsidered a suspet and of any non-itizens deemed to have any form of assoiation with a terrorist organization. Even those merely suspeted of terrorist involvement would be required to submit DNA samples for inlusion in the database. One ould be labeled a suspeted terrorist for assoiation of any kind with a group designated as a terrorist organization. Non-ompliane with requirements to surrender samples to the DNA database would be a rime punishable by up to one year in prison and a $100,000 fine. 10

20 Chapter 3 TREATMENT OF IMMIGRANTS, REFUGEES AND MINORITIES INTRODUCTION T he Bush Administration has repeatedly delared that the war on terrorism would not be a war on immigrants, but some immigrant ommunities ontinue to bear the brunt of the Justie Department s anti-terrorism initiatives. In these minority ommunities, itizens and non-itizens alike feel under siege. Their fears are legitimate there are a number of ways their rights are at risk. A entral feature of the administration s domesti antiterror ampaign has been the monitoring, registration, and deportation of immigrants although none of those deported have been shown to have any onnetions to terrorism. The minority ommunities most seriously affeted by the new measures, prinipally Arab and Muslim ommunities, have inreasingly been living in fear. Doors have been losed to visitors and immigrants alike from many parts of the world, and the United States traditional welome to refugees fleeing perseution has faltered. Meanwhile doors have been losed to visitors and immigrants alike from many parts of the world, and the United States traditional welome to refugees fleeing perseution has faltered. Asylum seekers fae enormous new obstales to finding safety in the United States, and even those refugees who were leared for resettlement in the United States fae indefinite delays in amps overseas. 11

21 DRAMATIC DECLINE IN REFUGEE RESETTLEMENT CONTINUES The United States humanitarian ommitment to provide shelter for refugees from around the world who annot return safely to their home ountries has long been a soure of pride for Amerians. It serves as a reminder of the ountry s founding as a haven for the perseuted. Held up as a model for other ountries, the program has provided a new life in safety and dignity for hundreds of thousands of refugees over the last two deades. Faith-based and other resettlement groups work with the U.S. government to welome these refugees into the Amerian ommunity in a unique private-publi partnership. In the last 18 months, refugee admissions into the U.S. have dropped dramatially, from an average of 90,000 refugees resettled annually to an antiipated level of less than 15,000 this year. President Bush authorized the resettlement of 70,000 refugees from overseas during the last fisal year (whih ended September 30, 2002), but a threemonth suspension of the program immediately after September 11 and ontinued delays due to new seurity proedures meant that only 27,058 refugees ame into the ountry. In Otober 2002, the President authorized resettlement of 70,000 refugees for the urrent fisal year. Instead of investing in the staff and infrastruture needed to reah this number, the administration announed that it atually intends to resettle only 50,000 refugees during this fisal year. So far, even that number seems optimisti. As of February 2003, refugee resettlement groups estimated that, if the refugee proessing rate does not improve, only 13,000 refugees would be resettled this year an histori low. In a September 2002 letter to President Bush a bi-partisan group of 40 members of Congress urged the President to ontinue the United States long and proud tradition of being a safe haven for those fleeing perseution and tyranny. DISCRIMINATION AGAINST HAITIAN ASYLUM SEEKERS In Otober 2001, the INS issued regulations granting its trial attorneys (the proseutors in immigration proeedings) the power to overrule an immigration judge who deides, over INS objetions, to order the release on bond of an INS detainee. The regulations, issued without notie or omment, were said by the Justie Department to be neessary in order to prevent the release of aliens who may pose a threat to national seurity. 12

22 This new power was not limited to ases in whih a detainee was suspeted of terrorist or riminal ativity. It was applied to many Arab and Muslim non-itizens detained in the wake of September 11, leading to prolonged detention. This national seurity regulation is now being invoked, at the diretion of the White House, to prevent the ourt-ordered release of Haitian asylum seekers. Following the Deember 2001 arrival in South Florida of a boat bearing nearly 200 Haitian men, women, and hildren, the INS instituted a blanket poliy of detaining and denying parole to all Haitian asylum seekers. In late Otober 2002, a seond boat of Haitian asylum seekers arrived in Florida. Beause this group made it to shore before enountering the INS, they were entitled to seek a bond hearing in front of an immigration judge. The INS invoked the Otober 2001 regulation to prevent the ourt-ordered release on bond of Haitians. In opposing their release, the INS argued that the detention of these aliens has signifiant impliations for national seurity. In an extraordinary step, the U.S. Coast Guard, Department of State, and Department of Defense all submitted delarations in immigration ourt whih reportedly laim that Haitian migration onstitutes a threat to U.S. national seurity. In the last 18 months, refugee admissions into the U.S. have dropped dramatially, from an average of 90,000 refugees resettled annually to an antiipated level of less than 15,000 this year. PROTRACTED CLEARANCE PROCESS FOR THOSE WITH CREDIBLE ASYLUM CLAIMS LEADS TO LENGTHY DETENTIONS Asylum seekers with redible laims for asylum, even those whose laims have been verified by the INS, are rarely released from detention. But under a new government poliy, even those who have been found eligible for release by the INS or by immigration judges now fae 13

23 lengthy and unneessary detention, in some ases for months or even longer. The government has refused to provide the poliy in writing, but it has an impat on asylum seekers and others from speifi ountries, inluding Somalia, Pakistan, Saudi Arabia, Iran, and Iraq. In effet, it seems to require that a presumed onnetion to terrorism be disproved before final release is approved. This poliy, initiated after September 11, has left large numbers of people languishing in jail, inluding hildren, the sik and the elderly. NEW RESTRICTIONS ON IMMIGRATION APPEALS The Board of Immigration Appeals (BIA) was reated in 1940 to be a wathdog over immigration ourts. In September 2002, the Justie Department issued new regulations that drastially urtail the authority of the BIA. Under the new regulations, the majority of ases reviewed by the BIA now will be deided by a single board member, rather that by a three-judge panel. The regulation also expands the types of ases in whih the BIA an issue a summary affirmane, a kind of rubber stamp ruling that upholds the immigration judge s deision but does not provide any reasons for doing so. Finally, the rule also prohibits a de novo review of an immigration judges fatual findings exept where those findings are learly erroneous. This feature of the new rules will severely limit the ability of the BIA to exerise its responsibilities as an appellate body. In addition to minimizing the review proess itself, the regulations require the BIA to eliminate the urrent baklog of thousands of ases by Marh 2003, after whih time the number of board members will be redued from 23 to 11. Attorney General Ashroft has intimated that produtivity will be one of the fators he will onsider in determining who keeps their positions on the board. On February 28, five judges on the Board were told they would be relieved of their duties. INS IS FOLDED INTO THE NEW DEPARTMENT OF HOMELAND SECURITY Effetive Marh 1, 2003, the Immigration and Naturalization Servie (INS) was dissolved, and its enforement and servies funtions were transferred to the new Department of Homeland Seurity (DHS). The INS is one of 22 federal agenies and departments that will be folded into DHS, a department that provides frontline defense against terrorism in the United States. DHS is now the government ageny that will issue work permits to immigrants, adjust their status to permanent res- 14

24 ident, naturalize them as itizens, and grant asylum to those seeking protetion from perseution. Yet these funtions are not mentioned in the legislation as part of the mission of the department. As one ommentator suggested, Plaing all of INS s funtions into a department foused primarily on national seurity suggests that the United States no longer views immigrants as welome ontributors, but as potential threats viewed through a terrorist lens. Historially, efforts to ensure that asylum seekers were treated fairly often were undermined by the fat that the enforement divisions of the INS, and some INS distrit offiials, did not understand the speial needs of asylum seekers. This problem will likely be exaerbated under the new struture. JUSTICE DEPARTMENT POLICY OF CLOSING IMMIGRATION HEARINGS NOW RIPE FOR SUPREME COURT REVIEW Less than two weeks after the September 11 attaks, the A new poliy instruts Justie Department immigration judges to instituted a new poliy bar aess by the publi, of holding ertain the press, and family speial interest members to immigration deportation hearings ourtrooms in ases of in seret. The poliy speial interest to the was set out in a Attorney General. September 21, 2001 Memorandum from Chief Immigration Judge Mihael Creppy, whih instruted immigration judges to bar aess by the publi, the press, and family members to immigration ourtrooms in ases of speial interest to the Attorney General. This poliy was hallenged in federal ourt by media and other groups. A three-judge panel of the U.S. Court of Appeals for the Sixth Ciruit, saying that demoraies die behind losed doors, held that the blanket poliy was unonstitutional. In a separate ase hallenging the 15

25 same poliy, the Third Ciruit Court of Appeals ruled 2-1 in favor of the government. The majority upheld the seret hearing poliy beause it found no onstitutional right of aess by the press to deportation hearings, espeially in ases that impliate national seurity, as the government has alleged all so-alled speial interest ases do. These rulings reate a onflit between the Third and Sixth Ciruits. The issue is likely to end up at the U.S. Supreme Court. On behalf of newspapers hallenging the losed hearings poliy, the Amerian Civil Liberties Union filed a petition for ertiorari on Marh 3, 2003, requesting the U.S. Supreme Court to review the Third Ciruit ase. HATE CRIMES, DISCRIMINATION, AND HARASSMENT Aording to the federal government, hate rimes against Muslims and people of Middle Eastern ethniity in 2001 inreased dramatially over the previous year. The FBI s Uniform Crime Reporting Program released its report in November 2002 doumenting 481 hate rimes against Arabs and Muslims in the United States during 2001, up signifiantly from the 28 ases reported in Reports from other groups, inluding the Amerian Arab Anti- Disrimination Committee, the Counil on Amerian-Islami Relations, and Human Rights Wath onfirm the severity of the baklash suffered by Arabs and Muslims in the United States after September 11. Inidents inlude employment disrimination, airport profiling, verbal harassment, vandalism, physial assaults and at least three murders. The Justie Department has brought federal riminal harges against a number of individuals in onnetion with hate rimes against Arab Amerians, Muslim Amerians, Sikh Amerians, South-Asian Amerians, and those pereived to be members of these ommunities. These are important initiatives, but they do not ounterat other offiial government poliies that target immigrants and help to reate a limate of disrimination. SPECIAL REGISTRATION The National Seurity Entry-Exit Registration System (NSEERS), ommonly known as Speial Registration, has aused widespread onern within affeted immigrant ommunities, primarily among Arabs and Muslims. Under this program, men and boys over 16 years of age from 25 ountries must report to the INS where they will be photographed, fingerprinted, and interviewed under oath. Failure to omply with requirements of the program is a deportable offense. 16

26 The Speial Registration program has two parts. The first part requires visitors from ertain ountries to be fingerprinted, photographed and interviewed upon arrival in the United States, at the airport or border. The seond and more ontroversial part requires temporary visitors already in the United States to report to INS offies around the ountry for registration pursuant to all-in proedures designed by the Department of Justie. The program has resulted in the detention of nearly 1,200 people and has sparked new fears in Muslim ommunities that they are being targeted by the Justie Department. In Deember 2002, the INS in Los Angeles detained approximately 400 men and boys from Iraq, Iran, Libya, Sudan and Syria during the first phase of implementation of the all-in proedures. Many people have questioned the effiay of the Speial Registration program. It reates a substantial new burden on government bureauray to aurately reord and store data that is unlikely to ontribute to ombating terrorism. In light of the problems reated by this program, and the lak of lear benefits, some members of Congress have requested that the Justie Department suspend the NSEERS program until Congress an review it. In January, the Senate voted to prohibit funding for NSEERS, but the provision was stripped out of the bill in the House-Senate onferene ommittee. 17

27 Chapter 4 SECURITY DETAINEES AND THE CRIMINAL JUSTICE SYSTEM INTRODUCTION P roseution of the war against terrorism in Afghanistan and elsewhere has resulted in the detention by the United States of itizens of at least 43 other ountries. Approximately 650 of these people ontinue to be held at military detention failities on the U.S. naval base at Guantanamo Bay, Cuba. At the same time U.S. law enforement operations have led to the arrest and detention of others, inluding several Amerian itizens. At least two Amerians, José Padilla and Yaser Hamdi, are being held indefinitely, without harge or trial, as enemy ombatants. In a few ases, these seurity detainees have been taken before the ordinary riminal ourts to fae proseution for riminal offenses. Federal proseutors and ourts generally have dealt effetively with the hallenges posed by these proseutions, balaning the requirements of seurity and justie. Yet administration offiials have suggested that the fair trial standards of U.S. federal ourts are too demanding for some high profile proseutions to proeed without endangering seurity. While the law ontemplates further measures to safeguard witnesses Partiularly troubling has been the government s inlusion of U.S. itizens within the ategory of enemy ombatants, while rejeting debate on the appropriateness of the term. and evidene in sensitive trials to meet the needs of both seurity and justie, these options have not been vigorously pursued. To the ontrary, administration soures have suggested that they may be fored to transfer these ases to speial military ommissions outside both the ivil and the ordinary military justie systems. 19

28 On a parallel trak, the Bush Administration ontinues to refine the struture of a proposed emergeny military ourt system now being established pursuant to a military order issued by President Bush in November These speial ourts ould try non-united States itizens, inluding those urrently being held without harge or trial. At the same time administration spokesmen have suggested that detainees now being proseuted before the federal riminal ourts may be removed from these ourts jurisdition. In that ase they would be given new trials before military ommissions under proedures that would severely urtail fair trial guarantees. ENEMY COMBATANTS The largest ategory of individuals in detention omprises the so-alled enemy ombatants. These are individuals treated not as ivilians, but as members of either al Qaeda or the Taliban, and as partiipants in an armed onflit against the United States. The administration has designated these men as unlawful ombatants, or enemy ombatants, rather than as prisoners of war, for the express purpose of denying them the rights that ombatants normally reeive. Under international humanitarian law, ombatants in armed onflit who are aptured by the enemy may be held in detention until the essation of ative hostilities. In this instane, the administration onstrues this term to mean the end of the war against terrorism. Partiularly troubling has been the government s inlusion of U.S. itizens within the ategory of enemy ombatants, while rejeting debate on the appropriateness of the term. By unilaterally imposing the enemy ombatant label on itizens it suspets of terrorist ativities, the exeutive branh is attempting to bypass all riminal proedures and onstitutionally mandated protetions. In these ases unpreedented in U.S. legal history the administration has reserved for itself the authority to deny those so labeled, regardless of itizenship, all legal rights and remedies, whether under international human rights or humanitarian law, U.S. riminal law, the Uniform Code of Military Justie, or the U.S. Constitution. 20

29 U.S. CITIZENS WITH ALLEGED LINKS TO AL QAEDA JOSÉ PADILLA José Padilla, a Brooklyn-born U.S. itizen, was arrested on May 8, 2002, at Chiago s O Hare airport, on arrival from Pakistan. Administration spokesmen said the arrest was based on information obtained from the interrogation of Abu Zubaydah, a senior al Qaeda leader in U.S. ustody. The administration asserts that Padilla had ontat with al Qaeda in Pakistan and may have been part of a plot to bomb an unspeified target in the United States. Padilla was held for one month as a material witness, in onnetion with this alleged plot to reate and detonate a onventional explosive ontaining radioative materials in an urban area a dirty bomb. In June 2002 he was transferred to military ustody based on a presidential determination that he was an enemy ombatant. In June 2002, Padilla s lawyers filed a petition for habeas The administration orpus, asserting their has reserved for itself lient s right to meet the authority to deny with his legal representatives. On ombatants, regardless of those labeled enemy Deember 4, 2002, itizenship, all legal Judge Mihael rights and remedies. Mukasey affirmed Padilla s right to onsult with his attorneys. In response to the government s motion for reonsideration, Judge Mukasey reiterated his order on Marh 11, 2003, ordering the government to allow Padilla to meet with his lawyers. Judge Mukasey has supported the government s assertion that the law does not bar Padilla s onfinement. He also gave broad deferene to the government s fatual determinations. Judge Mukasey determined that the ourt s responsibility was to deide two things: 1) whether there was some evidene that the President was exerising his onstitutional power in onluding that Padilla was engaged in a mission on behalf of an enemy with whom the United States is at war, and 2) whether subsequent events have mooted that evidene. 21

30 On February 7, 2003, Padilla s lawyers filed a Memorandum of Law ontesting the appropriateness of the some evidene standard. The Memorandum highlights the fat that [t]here has never been a ase, in nearly a entury of federal jurisdition, in whih the government has asked a ourt to find some evidene based on a reord in whih the laimant had no right to partiipate. YASER HAMDI Yaser Hamdi was taken into U.S. ustody during the war in Afghanistan. He was turned over to U.S. fores in Afghanistan after surrendering to Northern Alliane fores headed by warlord and alleged war riminal Abdul Rashid Dostum. One aptured, he was transferred to the Guantanamo Naval Base. When U.S. authorities realized that Hamdi was a U.S. itizen, born in Louisiana, he was transferred to a U.S. military base in Virginia, where he ontinues to be held inommuniado. In April 2002, Hamdi was designated an enemy ombatant. In May 2002, a publi defender in Virginia filed a petition for habeas orpus on Hamdi s behalf. On August 16, 2002, federal Judge Robert Doumar ordered the government to produe the underlying fatual evidene supporting its determination that Hamdi was an unlawful enemy ombatant. He also required the sreening riteria utilized to determine the status of Hamdi and details of those who had made the determination. Judge Doumar ritiized the inadequay of a two-page affidavit the Mobbs delaration that the government used to justify Hamdi s designation as an enemy ombatant. Delaring that he would not be a rubber stamp for the government, Judge Doumar ruled that the delaration s assertion that Hamdi was affiliated with a Taliban military unit and reeived weapons training was not suffiient to justify Hamdi s detention. On January 8, 2003, the Fourth Ciruit Court of Appeals vaated Judge Doumar s deision, rejeting the need for any meaningful review of the basis of Hamdi s ontinued detention. The ourt went even further than the administration s own lawyers, who had oneded that a ourt was probably entitled to require the government to provide some evidene to support its onlusion that a detained itizen was an enemy ombatant. Under the Fourth Ciruit s ruling the government only has to show that the detainee was in the zone of ombat. In the war against terrorism, President Bush has stated that the enemy is global, the entire world is the battlefield, and the war will ontinue 22

31 until international terrorism has been defeated. Using this frame of referene, if the Fourth Ciruit deision in the Hamdi ase stands, there will be little room for the ourts to review the basis for detentions made pursuant to this universal and near permanent state of war. Hamdi s lawyer has said that he will seek review of this deision by the U.S. Supreme Court. ARRESTS AND TRIALS OF NON-CITIZENS WITHIN THE UNITED STATES ZACARIAS MOUSSAOUI Zaarias Moussaoui was arrested on August 16, 2001 in Minnesota. Instrutors at a flying shool he attended were suspiious of him beause he paid for his $8,000 flight lasses in ash and expressed unusual interest in flying big airplanes and the fat that a plane s doors ould not be opened during flight. Initially held on immigration harges, he was in INS ustody on September 11, On Deember 11, 2001, Moussaoui was indited in Virginia on harges of onspiray related to the September 11 attaks. Moussaoui aknowledges being a disiple of Osama bin Laden and a member of al Qaeda, but he denies any involvement in the September 11 plot. If onvited, he faes the death penalty. The Fourth Ciruit Court of Appeals rejeted the need for any meaningful review of the basis for Yaser Hamdi s ontinued detention. On January 30, 2003, Judge Leonie Brinkema ordered the government to give Moussaoui aess to alleged September 11 mastermind Ramzi bin al-shibh. In the Moussaoui inditment, bin al- Shibh, a Yemeni national and senior leader of al Qaeda, is named as an unindited o-onspirator. The government has appealed this order. They argue that making bin al-shibh available to attorneys working with Moussaoui, let alone putting him on the witness stand, would upset the deliate dynamis of bin al-shibh s interrogation, and 23