*UPDATE*
October 10, 2001:
LCHR Concerned That Anti-Terrorism Bill Disregards Civil Liberties
Attorney General may soon get legal power to detain non-U.S. citizens indefinitely
For more information email Susan Benesch - [email protected], (202) 547-5692, or see www.lchr.org
No Clear Standard for Judicial Review
In the wake of September 11, there is an urgent need to prevent attacks
against Americans and ensure public safety. However it is necessary to take
all reasonable steps to safeguard civil liberties in the process.
The Lawyers Committee continues to be deeply concerned about provisions in
proposed counter-terrorism legislation that would place non-citizens in an
open-ended legal limbo and deny these individuals basic due process
protections. Late last week, the House and Senate passed similar bills,
both of which would permit the indefinite detention of non-citizens, on the
order of the Attorney General, and without adequate opportunities to
challenge this detention before a judge.
The Lawyers Committee believes the bills, as drafted, deny basic due process
guarantees and would preclude meaningful judicial oversight of the Attorney
General's powers.
Modest modifications of this proposed legislation would protect basic civil
liberties -without curtailing the Attorney General's ability to use
detention as a tool for law enforcement and public safety. A House-Senate
conference committee would provide the opportunity to amend the bills in
order to guarantee civil liberties and due process protections. However,
there is a risk that no such committee will be convened.
Indefinite Detention
Both the House and Senate versions of the bill would allow the U.S. to hold
non-citizens indefinitely on the authority of the Attorney General:
- The bills allow for indefinite detention, without charge, of
non-U.S. citizens who cannot be deported. This would apply to non-U.S.
citizens who have been ordered deported for any reason (whether or not
related to alleged threats to national security) and even to those who have
been granted relief from deportation by an immigration judge.
- Both bills would make it extremely difficult for such a
person to be released. Under the House bill, anyone who is not deported
within the normal range of time for such proceedings may be detained for
additional periods of up to six months if the individual's release "will not
protect the national security of the United States or adequately ensure the
safety of the community or any person." This is an unreasonably high
standard. It calls for an individual to prove that his or her release - and
activities outside prison - would actually protect national security.
Judicial Review
The proposed legislation limits detainees' access to the courts.
- The Senate bill allows detainees to challenge their
detention only in federal district court in Washington, D.C. The House bill
allows detainees to bring such cases in other federal district courts, but
limits appeals to the United States Court of Appeals in Washington D.C.
This would be a significant obstacle for anyone detained far from
Washington.
- Neither version of the bill provides a right to
court-appointed counsel for indigent detainees.
- It is also not clear that any court would be able to conduct
meaningful review of such cases, since the bills empower 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."
Lack of Debate
In addition, the Lawyers Committee is deeply concerned about the lack of
debate for these bills, considering their importance to the country and the
world.
For instance earlier last week, after careful consideration and committee
debate the House Judiciary Committee unanimously adopted a bipartisan bill
that included provisions to protect civil liberties. But then, in a meeting
that reportedly lasted until 4 a.m. Friday, October 12, Administration
officials persuaded the House leadership to drop their bill in favor of the
Senate-passed version.
ACT NOW
Contact your Members of Congress today and ask them to urge their
congressional leadership to refer the anti-terrorism bills to a joint
House/Senate conference committee.
This legislation has been under almost daily negotiation. LCHR has been
involved throughout the process, urging that critical due process
protections be included. Click here to read our analysis of earlier
versions of the bills. The proposed legislation limits detainees' access to
the courts. Here is a sample letter to Congress:
Dear Member of Congress:
I am deeply concerned about provisions in proposed counter-terrorism
legislation that would place non-citizens in an open-ended legal limbo and
deny these individuals basic due process protections. In addition, the
bill, as drafted, would preclude meaningful judicial review of the Attorney
General's detention powers.
I am also troubled by the process Congress employed to create this
legislation. After careful consideration and debate, the House Judiciary
Committee unanimously adopted a bipartisan bill that included provisions to
protect civil liberties. That bill was dropped, however, in favor of the
version passed by the Senate - a bill that received very limited debate.
Please urge your party's Congressional leadership to refer the
anti-terrorism bills to a joint House/Senate conference committee. The
final bill 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." This standard is
unreasonably high. Prolonged detention of non-U.S. citizens under these
provisions should only be allowed if the Attorney General shows that a
detainee's release would "threaten the security of the United States or the
safety of the community."
- Ensure 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; the senate-passed bill would require any
detainee who wished to challenge detention to bring the case to the U.S.
District Court in Washington D.C. The house-passed bill grants other federal
district courts jurisdiction, but even this provision may be meaningless.
Neither version of the bill provides court-appointed counsel for indigent
detainees.
This legislation requires serious and open consideration so that it both
protects our safety and upholds our values.
Sincerely,
|