October 26, 2001:
LCHR ON COUNTER-TERROR BILL
The Safeguards it Provides, the Dangers it Presents, and the Need to Monitor its Application in the Months Ahead
For more information email Susan Benesch - [email protected], (202) 547-5692, or see www.lchr.org
The USA PATRIOT bill signed into law today grants unprecedented new powers to the Attorney General to detain non-citizens he certifies as a threat to national security. The Lawyers Committee has closely followed the evolution of these provisions of the bill as it has been considered by Congress over
the last four weeks. Although a number of safeguards that we and others have pressed for have been added to the original proposal put forward by the administration, the final bill still raises several very serious concerns, which we outline below.
IMPORTANT SAFEGUARDS INCORPORATED INTO NEW LAW
The original version of the bill proposed on September 19 by Attorney General Ashcroft would have granted the Attorney General virtually unchecked authority to detain indefinitely any non-citizen he certified as a threat to national security. There was no time limit on such detentions, and the
legislation explicitly stated that the substantive basis for certification could not be reviewed by any court.
The bill signed into law today adds these important safeguards:
- After seven days of detention, the Attorney General must charge a detainee with a crime, initiate immigration procedures for deportation, or release the individual.
- The Attorney General's certification of an individual as a suspected terrorist must be reviewed every six months and either renewed or revoked.
- Individuals who have been ordered deported but are still in detention 90 days after the removal order, and who the government is unlikely to be able to deport in the foreseeable future, may be kept in jail for additional six-month periods only if the government can demonstrate that
their release would endanger national security or the safety of the community.
- The substantive basis for the Attorney General's certification is now subject to judicial review.
- Judicial review can be sought at any federal district court nationwide. In earlier versions of the bill, review was limited to the federal district court in Washington D.C., which would have made it extremely difficult for indigent non-citizens to challenge their detention.
NEW LAW provides inadequate due process protections
Public reporting on the legislation has emphasized "safeguards" created by two elements of the bill: the seven-day limit on detention without charge, and the sunset clause. In fact, neither of these provisions provides adequate safeguards: the risk of indefinite detention begins after the seven-day period, and is still possible under the bill. Additionally, the sunset clause does not apply to the detention provisions at all.
Our continuing concerns:
- In what is likely to be a significant number of cases, the new law will result in long-term detention of non-citizens who have never been charged with a crime but who have violated their immigration status in some way. Long-term detention may result for people who do not have travel
documents or whose countries will not take them back. This will be a likely result if a person has been certified by the Attorney General as a threat to U.S. national security.
- The new law does not provide guidance on what process the Attorney General must follow in making and reviewing the decision to certify an individual as a suspected terrorist. Nor does the law provide guidance to the courts on what evidence they should consider in assessing the reasonableness of the Attorney General's decision, whether detainees will have access to the evidence on which such decisions are based and the standards for review of such evidence.
- In some countries, governments compile lists of suspected "terrorists," a label they attach both to those who have committed acts of indiscriminate violence against innocent people but also to those who are non-violent critics or political opponents of the government. When such lists are given to the U.S. government, they must not be the sole basis for the Attorney General to exercise this broad new detention power or for the courts to uphold the Attorney General's decision.
- These sweeping new detention powers are now a permanent feature of our law. The sunset provisions, which were wisely incorporated into other sections of the USA PATRIOT bill, do not apply to the detention provisions.
Need for close oversight of new law's Implementation
Where we go from here
The USA PATRIOT bill is now law. The Justice Department and the Courts will be involved in implementing it. We urge interested groups and individuals with concerns about the new law to focus on three areas:
- Monitor the Justice Department's implementation process: The Attorney General will need to develop internal guidelines as well as formal regulations to govern both the certification procedure and the semi-annual review of detention cases. Of key concern will be the Attorney General's standard or evidentiary threshold to be used for certifying an individual as a threat to national security.
- Advocate for appropriate methods of judicial review and oversight: The federal courts will have an important role in reviewing the Attorney General's decision to certify and detain individuals as suspected terrorists. Among the important issues that may be contested will be what standards will apply, the extent of evidence the courts will be allowed to review, and whether detainees or their lawyers will have full access to this evidence. Because the new law does not provide for court-appointed counsel in these cases, the burden will fall on the legal profession to provide counsel on these cases.
- Demand ongoing legislative oversight: Because Congress did not provide a sunset clause for the detention provisions of the new law, ongoing legislative oversight is all the more important. Congress should set a reasonable target date when it will closely review how this new detention law is working in practice, with a view towards adding safeguards where necessary.