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Letter to Attorney General John Ashcroft

September 28, 2001

The Honorable John Ashcroft
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

Dear Attorney General Ashcroft:

As the United States considers the most effective means to address urgent law enforcement concerns arising from the September 11 attacks, we write to caution against ill-considered changes to U.S. law and policy that would erode basic rights to personal liberty. Under the Immigration and Nationality Act, the Immigration and Naturalization Service (INS) already has broad powers to act against non-citizens inside the United States who are believed to be involved in terrorist activity. The danger to the United States posed by terrorist activities should not be used as a justification to expand those powers in ways that undermine the rights to liberty and due process of law possessed by citizen and non-citizen alike.

The right to liberty and security of person is guaranteed under the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a state party. Article 9 of the ICCPR provides that everyone "has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention." To ensure freedom from arbitrary detention, Article 9 further provides that anyone "who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

We are concerned that a new INS rule and the proposed Anti-Terrorism Act of 2001 (the Act) violate internationally guaranteed rights by permitting indefinite administrative detention of non-citizens without meaningful judicial review. The detention of non-citizens for questioning or suspected terrorist activity during a national emergency is not by itself a violation of international human rights law. But such restrictions on the right to personal liberty must be subject to prompt, meaningful and substantive review by a judicial or other independent authority. Unfortunately, neither the new INS rule nor the Act guarantees detainees judicial review of the basis for, or necessity of, their detention.

Detention of Non-Citizens for Questioning

An administrative rule announced on September 17 (66 Fed. Reg. 48,334, September 20, 2001) expands the period the INS may detain immigrants for questioning from twenty-four to forty-eight hours. While a limited extension may be reasonable, we are concerned by a provision under the new rule that would allow the period of detention to be extended "in the event of an emergency or other extraordinary circumstances." The rule sets no upper limit for the period of detention in such circumstances and would appear to permit indefinite detention. Furthermore, there is no provision for judicial review of the detention, regardless of how long it continues. Because indigent aliens in administrative detention are not provided legal counsel, those detained for indefinite periods may effectively be denied access to counsel. In addition, there are already reports that legal counsel for persons detained have had difficulty locating their clients.

Detention of Non-Citizens as Suspected Terrorists under the Anti-Terrorism Act of 2001

We are extremely concerned about provisions affecting non-citizens in the proposed Anti-Terrorism Act of 2001. The bill would confer unprecedented powers on the Attorney General to indefinitely detain non-citizens without providing an opportunity to challenge that detention in a fair, meaningful hearing. Under the Act, the Attorney General would be authorized to certify and then to detain any alien - including asylum-seekers, legal permanent residents, and refugees - who he "has reason to believe may commit, further, or facilitate" terrorist activities or other acts that endanger national security. Our specific concerns are as follows:

1) The Act lends itself to arbitrary or abusive application. The Attorney General is granted authority to certify and detain any non-citizen if he "has reason to believe" they may commit or assist in terrorist acts or "endanger[] the national security of the United States" (section 202). This unilateral authority is very broad, and the national security language in particular has no clear meaning and is nowhere defined. This is too low an evidentiary standard to justify a serious deprivation of liberty, particularly one that may entail lengthy and even indefinite detention without meaningful judicial review.

2) The Act does not require the INS to provide detailed, specific and personalized reasons for the certification and consequent detention of any non-citizen. If aliens are not provided with what are, in essence, the specific "charges" against them, they will not be able to demonstrate their "innocence" or otherwise meaningfully challenge the legitimacy of their detention.

3) The Act permits indefinite detention. Indefinite confinement based on a unilateral administrative determination violates the fundamental prohibition against arbitrary detention under international human rights law. Should a non-citizen engage in unlawful activities, he or she should be charged and prosecuted. If after a reasonable period of time there is insufficient evidence for such prosecution, the detention must be terminated, whether or not followed by deportation.

4) The Act expressly attempts to foreclose judicial review of the factual basis for detention and does not provide for other independent review. The only review possible would be the limited one available upon a habeas corpus petition - and the Act even seeks to restrict that by limiting the filing of habeas petitions to the U.S. District Court for the District of Columbia. Even if permitted, judicial review would in any event be hampered by the absence of any objective yardstick by which to evaluate the legal basis for the detention.
Recommendations

The right to liberty of the person is too important to be entrusted to the unreviewable discretion of any single government authority. While we recognize the need for effective measures to combat terrorist activities, those measures must be crafted to ensure a proper balance between national security concerns and basic freedoms and the international obligations of the U.S. The new INS administrative rule and the certification and detention provisions of the Anti-Terrorism Act fail to reflect that balance.

Any administrative detention - whether for purposes of questioning or because of the detainee's suspected unlawful activities - should be subjected to a prompt substantive review by a judicial or other independent authority. The right of access to legal counsel should be ensured. The detainee should have the right to challenge the detention in such a hearing on such grounds as error, arbitrariness, or insufficient justification for the hardship imposed by confinement. In the case of detentions following certification under the Act, the detainee should be able to challenge the underlying certification decision that triggered the detention.

In the case of detention following certification, a hearing should occur promptly. Prior to such a hearing, the Attorney General should provide the detainee with specific, detailed and objective reasons for the certification. If the detention is approved and continues for a prolonged period, additional hearings should be held on a periodic basis. In any event, no detention should be permitted to continue indefinitely.

We believe that the Bush Administration and members of Congress can develop anti-terrorism measures that fully respect the right to personal liberty. We urge you to amend the administrative rule governing the detention of non-citizens for questioning to permit timely judicial review. In addition, we urge you to work with Congress to modify the proposed Anti-Terrorism Act to ensure its scope is no broader than necessary, that the activities that can trigger certification and detention are clearly, carefully and narrowly delineated, that judicial or other independent review of the detention be permitted, and that the detention be limited to a reasonable finite period.

Personal liberty is of importance to everyone who lives in the United States, citizens and non-citizens alike. To be free from arbitrary detention is a fundamental tenet of both U.S. constitutional law and international human rights law. In the weeks and months ahead the U.S. government will be taking actions that will have important implications both at home and around the world. Personal liberty must not become one of the casualties.

Sincerely,

Kenneth Roth
Executive Director

Cc: Director Robert Mueller, Federal Bureau of Investigation
Deputy Attorney General Larry Thompson
Commissioner James Ziglar, Immigration and Naturalization Service
Assistant Attorney General Ralph F. Boyd, Jr., Civil Rights Division
Senator Patrick Leahy, Chair, Senate Judiciary Committee
Senator Orrin Hatch, Ranking Member, Senate Judiciary Committee
Representative James Sensenbrenner, Chair, House Judiciary Committee
Representative John Conyers, Jr., Ranking Member, House Judiciary Committee