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,