Critics Say Terror Probe Bends Immigration Laws

In the last year, the Bush administration has made aggressive use of immigration law to arrest and detain more than 1,200 suspects in its terrorism investigation, a legal strategy that has proved effective even as the investigation itself has come up largely empty.

Muslim men have been rounded up, denied lawyers and brought before judges in secret hearings outside the view of the public and the media. Many were held for weeks or months. And in the end, none of these immigrants has been charged with a crime related to the Sept. 11 attacks.

Civil libertarians have been outraged by what they say are police-state tactics. Yet they have been unable so far to win a single case to show that the government violated the law. That’s because immigrants who violate the terms of their visas have few rights under American law.

The government’s basic strategy: If an arrest is challenged, the detainee is simply deported.

“They just deport the person rather than justify holding them,” said Lee Gelernt, an immigration law expert for the American Civil Liberties Union. “It’s a Catch-22. There is no legal ruling because the government moots out the case.”

“We have been scrambling for a way to contest these [detentions], but nobody has come up with a good way to challenge them,” said Jeanne Butterfield, executive director of the American Immigration Lawyers Assn.

Administration officials admit they have used the immigration laws aggressively, and they are proud of it.

“The question you have to ask is: Can we afford to sit back and wait for people to commit a terrorist act ... or instead, should we utilize all the authorities of the U.S. government to intercept and disrupt and deter individuals who may be linked to terrorist organizations?” said Russ Bergeron, a spokesman for the Immigration and Naturalization Service.

From the beginning, Atty. Gen. John Ashcroft chose a strike-first strategy of arresting and holding any person who might have ties to a terrorist group. Immigration law has been the main tool.

Citizens who are arrested must be charged with a crime and, if they face jail time, offered a lawyer. By contrast, noncitizens who are arrested on an immigration violation are not entitled to a lawyer. And even a minor, technical violation can result in their deportation.

“The government has tremendous authority over the lives of immigrants,” said Georgetown University law professor David D. Cole.

INS officials say they have strictly enforced the law but not exceeded it. Most people who enter the country are limited in what they can do and how long they can stay.

“If you come into this country on a 90-day visa, you have violated the conditions of your admission on the 91st day, and you are deportable,” Bergeron said. “If you come in on a visitor’s visa or a student visa and are working, you have violated the conditions of your entry.”

The INS says it arrested and detained 752 immigrants for questioning as part of the Sept. 11 investigation. The vast majority were held on immigration charges, INS officials say.

In some instances, officials found that the immigrants had criminal records. Under a 1996 law, that made them automatically subject to deportation.

These mass arrests and secret detentions seem to conflict with the basic principles of American justice. The Constitution says no person in the United States can be “deprived of liberty ... without due process of law.” The Supreme Court has made clear this right extends to noncitizens. Those who are held in custody can file a writ of habeas corpus asking a judge to hear their case.

In theory, a habeas hearing can put the government on trial. Prosecutors must show that the arrest and detention of a person was lawful.

Civil libertarians question whether FBI agents had evidence to justify arresting many of these immigrants. They also say an immigrant’s right to due process of law is violated when he or she is brought secretly before a judge without a lawyer.

Nonetheless, these basic claims have gone unlitigated. When immigration lawyers have tried to contest the detentions, the government has exercised its broad powers to deport. When the detainee leaves the country, the legal challenge to his detention goes away too.

In April, for example, ACLU lawyers filed a writ of habeas corpus to challenge the continued detention of an Egyptian seaman, Sami Mohammed El Maghrabi Saad. He was arrested at a relative’s home in Staten Island, N.Y., three weeks after Sept. 11 and held in New Jersey county jails.

“No person can be jailed without legal authority, and the Constitution compels the government to release him,” his lawyers told a judge. But rather than try to justify holding him, the INS deported Saad a few weeks later, ending the case.

As a fallback strategy, the civil libertarians have challenged the procedures used by the INS, in particular the secrecy surrounding the hearings and the detainees.

They won their biggest victory on Aug. 26 when a U.S. appeals court ruled that the newspapers in Detroit had a free-press right under the 1st Amendment to cover a bond hearing for Rabih Haddad, a widely known Muslim leader detained after Sept. 11 on the suspicion that his charitable fund-raising might have supported terrorist activities.

Judge Damon J. Keith of the U.S. 6th Circuit Court of Appeals, siding with the ACLU and the Detroit newspapers, said “the public’s interests are best served by open proceedings ... with a vigorous and scrutinizing press.”

He stressed, however, that the case before the appeals court dealt only with whether the hearings can be closed to the public, not whether the government could detain or deport such immigrants.

A federal judge in Washington has ruled that the Freedom of Information Act requires the Justice Department to release the names of those detained as part of the terrorism investigation.

Despite these setbacks, administration lawyers remain confident they can win reversals at the Supreme Court.

But Cole, of Georgetown, argues that the government has bent the law since Sept. 11, even if it has not violated it.

“This has been a classic example of pretextual law enforcement. They have come up with some legal grounds under the immigration law,” he said. “And look at the results after a year. Not a single person charged with being ... involved in a terrorism crime.”