October 10, 2001:

LCHR Concerned that New Senate Bill Would Permit Indefinite Detention of Non-Citizens

For more information email Susan Benesch - beneschs@lchr.org, or see www.lchr.org

No Clear Standard for Judicial Review

The Lawyers Committee for Human Rights is deeply concerned that a counter-terrorism bill introduced in the Senate on Thursday could pass as early as this week, without consideration in committee. The bill, called the "Uniting and Strengthening America Act of 2001" (S. 1510) would permit indefinite detention of non-U.S. citizens, without a clear provision for judicial review. The new Senate bill, like its House counterpart, would make it legal to detain non-U.S. citizens without charge for up to seven days - a longer period than U.S. law has ever permitted. The Lawyers Committee is deeply concerned that this bill contains provisions that would easily lead to the extended detention of innocent people: a severe and unnecessary infringement of the right to liberty.

Indefinite Detention

Section 412 of the Senate bill would allow for indefinite detention without charge in the following two cases. First, if a lawful permanent resident is 'certified' as a suspected terrorist, detained, and charged with being deportable but granted relief from removal, the lawful permanent resident could still be detained indefinitely. The bill states explicitly that such a person must be imprisoned "irrespective of any relief from" deportation, even if such relief is duly granted by a U.S. immigration judge.

Second, non-U.S. citizens could be held indefinitely under this bill if they are ordered deported but their country of origin will not take them back. This could be the case even if the United States' reason for deporting the person has nothing to do with suspicion of terrorism.

Judicial Review of Detention Greatly Limited

Both the Senate and House bills would also severely limit detainees' access to the courts. Only the U.S. District Court for the District of Columbia could review the grounds for detention, regardless of where the detainee was being held. In many cases, this would be a major obstacle for detainees seeking judicial review, especially since the bills do not entitle them to court-appointed counsel.

Even if a detainee managed to find counsel to challenge his or her detention in the U.S. District Court for the District of Columbia, it is not clear that the court would be able to conduct meaningful review, since the Senate bill simply empowers the Attorney General to detain non-U.S. citizens if he has "reasonable grounds to believe" they are involved in terrorist activity. The bill does not explain what evidence, if any, would be available to the court for review, or what would constitute "reasonable grounds."

House and Senate Bills Compared

In some respects, the Senate bill grants even more sweeping detention powers to the executive branch than the counterterrorism bill (the PATRIOT Act of 2001) that passed the House Judiciary Committee last week. For example, the Senate bill would permit the Attorney General to delegate the power to certify someone as a suspected terrorist to the Commissioner of the Immigration and Naturalization Service, a power that leads to mandatory, immediate detention. The House bill reserves the power to certify to the Attorney General and the Deputy Attorney General. Given the grave consequences of such certification, the Lawyers Committee believes that the new power should be restricted to higher-ranking officials, in order to promote accountability.

ACT NOW:

The Senate bill may go to the floor for a vote this week. The House bill was voted out of the Judiciary Committee last week and is also likely to be voted on by the full House this week.

Contact your Senators and urge them to take action on the following:

S. 1510 should explicitly rule out the possibility of indefinite detention of non-citizens who cannot be deported. The House version of the bill permits the Attorney General to extend detention for additional periods of six months after an order of deportation upon showing that a detainee's release "will not protect the national security of the United States or adequately ensure the safety of the community or any person." Although this standard is unreasonably high, the Senate bill fails even to include this safeguard. Prolonged detention of non-U.S. citizens under these provisions is justifiable only if the Attorney General shows that a detainee's release would "threaten the security of the United States or the safety of the community."

S. 1510 must allow detainees access to federal courts nationwide. Both the House and Senate bills limit meaningful access to the federal courts to challenge the Attorney General's certification of non-U.S. citizens as suspected terrorists, and detention orders. Those detained have very limited recourse to challenge their detention and may appeal their case only to the U.S. District Court in Washington D.C. While the Senate bill does permits judicial review of the certification of an individual as a suspected terrorist, the review doesn't mean much if you can't get access to the court. Indigent detainees who are being held in other parts of the country, in effect, will be denied access to the courts.