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The Statue of Liberty. Photo courtesy of Lia Chang Archive.
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The USA PATRIOT Act: Sowing Terror to Fight Terror?
By Shirley Lin
Special to AsianWeek
A few days before his tourist visa expired, the FBI visited Ahmed*, a Muslim from Jordan, to question him about a former neighbor in Jordan. Then, just after his visa expired, the FBI agents returned and accused him of aiding the Sept. 11 hijackers, and detained him in a New Jersey jail for eight months. During Ahmed’s deportation hearings, the government never brought formal criminal charges against him and kept the proceedings closed to family, visitors and the press.
What’s more, according to Ahmed’s defense attorney, Sin Yen Ling of the Asian American Legal Defense and Education Fund, “We weren’t allowed to challenge any evidence because we didn’t have access to the witnesses to cross-examine them, or even see what evidence the FBI held against him.” He has since been deported to Jordan.
Ahmed’s secret hearing was one of hundreds that have been held since the government stepped up counter-terrorism efforts after Sept. 11. Equipped with new provisions of the USA Patriot Act (USAPA), the omnibus anti-terrorism law sped through Congress and signed by President Bush after the attacks, the government is no longer required to furnish evidence to defendants or open deportation hearings of terrorism suspects to the public. The Act specifically grants the executive branch sweeping new powers to conduct surveillance and gather intelligence, expand the definition of terrorist activity and its penalties, and shield its findings from the accused and the American public.
Last October, Attorney General John Ashcroft declared the new regulations “vital to preventing, disrupting or delaying new attacks,” noting that “it is difficult for a person in jail or under detention to murder innocent people or to aid or abet in terrorism.” But constitutional lawyers and immigrant rights advocates call the USAPA a direct affront to the Bill of Rights, which protects non-citizens and citizens in the U.S. alike. Foremost among their concerns are denial of due process, infringement of First Amendment rights and secret searches, especially with respect to new immigrants.
In the months immediately following Sept. 11, the government launched a nationwide dragnet that resulted in the detention of at least 1,100 immigrants, mainly from Middle Eastern and South Asian countries. That the government has not yet charged a single detainee with terrorism alarms many civil rights groups. Like Ahmed’s, all deportations have been based solely on routine immigration violations.
According to Ahilan Arulanantham, a staff attorney at the American Civil Liberties Union’s Immigrant Rights Project, “What that shows is that the government is really under the guise of a terrorism investigation engaging in the selective enforcement of immigration laws against the people of these particular religious and national groups. This is a serious, troubling civil rights concern.”
The USAPA radically expanded the definition of terrorist activity to include anyone who engages in acts “dangerous to human life” or “appear to be intended … to influence the policy of a government by intimidation or coercion” — definitions that could describe activists at, say, an environmental protest.
“We find [the provisions] troubling because if applied, they could result in punishing people for expressing their political beliefs,” Arulanantham added.
Despite repeated requests from the Senate and House Judiciary Committees, which are responsible for monitoring the law’s application, Attorney General Ashcroft and the Department of Justice have routinely evaded or challenged attempts to disclose information about the nature and extent of its activities.
Said David Carle, an aide to Senate Judiciary Committee Chair Patrick Leahy: “The Justice Department has made the Committee’s jurisdiction of this department very difficult because of lack of cooperation, sharing of information and answering questions. There have been dozens of oversight hearings since last fall, sending letters of requisition for information. The committee will continue to do what it can.”
The very nature of the activities the USAPA has cloaked it from meaningful oversight. To date, the public has been given only glimpses of the law in effect — primarily through external challenges to the USAPA. Repeated court orders to the government to release the names and locations of detainees since Sept. 11, for example, have been countered by government appeals.
The USAPA also authorizes the Immigration and Naturalization Service to detain people without any charges for up to seven days, and then indefinitely if the Attorney General has “reasonable grounds to believe” that the person poses a risk to national security.
Ashcroft has declined to make that certification even for a single case of an immigrant detainee, says Arulanantham, who is aware of cases of people held indiscriminately after their cases had been concluded or ordered released on bond.
The Department of Justice has even sought to expand the Act’s reach. On May 17, a federal court responsible for approving efforts to spy on suspected terrorists under the Foreign Intelligence Surveillance Act (FISA) refused to grant the Department of Justice greater surveillance powers. Citing over 75 instances where the FBI misled the court in search warrants and wiretap applications, the court believed the Justice Department would misuse the USAPA, which has already relaxed standards for obtaining warrants for counterintelligence investigations by eliminating the need to show probable cause.
Jameel Jaffe, an attorney in the ACLU’s Technology and Liberty Program, called the court ruling “a rejection of a blatant power grab by the attorney general.” Said Jaffe: “FISA is an exception, and what the government is trying to do now is expand the exception as well as the rule in disregard of the Fourth Amendment.”
But the most forceful rebuke to the Department of Justice came on Aug. 26, when a federal appeals court in Cincinnati ruled that the government cannot hold secret deportation hearings for those suspected of having links to terrorists. Stating that “democracies die behind closed doors,” the three-judge panel echoed orders by trial court judges in New Jersey and Washington to open hearings and release information about these cases.
While some of the USAPA’s surveillance provisions, such as warrant-free federal “sneak-and-peak” searches and surreptitious access to business records, will expire in 2005, others will remain on the books. Opponents of the USAPA say they refuse to wait four years for unconstitutional laws.
Said Jaffe: “[After Sept. 11], Congress was justifiably panicked, [but] now a little time has passed. Every indication is that the government already has too much power and is already abusing the power that we’ve given it.”
For the past year, the Coalition for the Human Rights of Immigrants (CHRI) has been working with Muslim, Middle Eastern and South Asian groups to inform community members of their legal rights, given the groups’ advocacy on behalf of detainees and recent reports of joint FBI-INS raids of Pakistani communities in the New York City area. The group cites limited information as a major obstacle to their efforts.
“The Patriot Act is giving powers to the authorities to target immigrants using terrorism as an excuse,” said Leslie Wood, a CHRI volunteer. “They’re using immigration violations to make sweeps in communities, disrupting families by taking away breadwinners and targeting people because of their immigration status. The law was passed so quickly, we’re just beginning to see the impact it’s going to have on our lives.”
* Names have been changed for anonymity.
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