Following article was written for the Los Angeles Daily Journal
and its other West Coast papers on post 9/11 restrictions on civil
liberties (new INS rules, executive orders, Bush's Military [Tribunals]
United States agencies involved in protecting the borders have
come under criticism since the September 11 attacks on the World
Trade Center and Pentagon because almost all 19 of the suspected
hijackers easily obtained lawful visas to enter the country and
traveled about freely before the attacks, often engaged in activities
in violation of their visas.
Ironically, for years immigrants' rights advocates have pointed
out the irrational disparity in the Government's allocation of
resources to enforce the nation's immigration laws. The Government
treats the U.S.-Mexico border as the front-line in a war to preserve
the purity and stability of America, while allowing millions of
non-immigrants from European, Asian and Middle-Eastern countries
to enter on non-immigrant visas or visa waiver programs under
virtually no controls, and to engage in activities which violate
the terms of their visas with almost total impunity. Low-wage
unskilled Mexican and Central American nationals are hunted down
as if the survival of the nation as we know it was at stake, while
what the INS sometimes classifies as all "other" foreign
nationals, may fairly well come and go as they please with almost
no fear of apprehension if they overstay their visas or engage
in activities inconsistent with their visas.
The suspected September 11 hijackers had no problem obtaining
visas. Once here, they had no problem living at addresses other
than those they provided the INS, and engaging in a wide range
of activities inconsistent with the terms of their visas.
Now there is an investigative maelstrom building in the U.S.
in a wide-ranging search for terrorists sweeping mostly through
the Middle-Eastern communities. Based on evidence too flimsy to
secure indictments or convictions under the 1996 Anti-Terrorism
and Effective Death Penalty Act, the U.S. Government has detained
over 1,400 people, seized assets of individuals and charities,
closed businesses, and frozen bank accounts.
Federal prosecutors possess a wide range of tools to indict
and detain immigrants or citizens suspected of terrorist crimes,
including the crime of supporting or providing material assistance
to terrorists or terrorist groups. Yet, in the five years since
it was enacted, no one has been convicted for violating the criminal
provisions of the 1996 Anti-Terrorism and Effective Death Penalty
Act. Even with 1,400 people arrested and detained in the investigation
of the WTC and Pentagon attacks, no one has been charged with
terrorism or assisting terrorists under the 1996 anti-terrorist
law. The criminal charges brought against a handful of the 1,400
detainees are relatively minor and inconsequential.
In Arizona an immigrant from Djibouti named Malek Mohamed Seif,
was recently indicted by a grand jury and charged with making
false statements on applications to federal agencies. He was arrested
and remains in custody. Seif is not charged with and has denied
any involvement in the World Trade Center terrorist attacks. He
is suspected of making false statements about his birth place
on a Social Security card application, and using his Social Security
number on a pilot training medical form. Federal agents were suspicious
over his departure from the United States shortly before Sept.
11. However, Seif's attorney says he left the United States briefly
to prepare for his wedding in Yemen. Seif voluntarily returned
to the United States when he heard the FBI wanted to question
him. He was unaware he had been secretly indicted. Upon arriving
back in the United States to cooperate with the FBI, he was immediately
arrested and detained without bond because of the false statements
he allegedly made on his Social Security card application, a crime
several million immigrants are guilty of because they need to
In New York federal prosecutors won an indictment against a
21-year old Jordanian immigrant studying computer science in San
Diego. Osama Awadallah is charged with lying about whether he
had ever met one of the suspected hijackers, Khalid Almihdhar.
The indictment states that a search of his San Diego home uncovered
photos of Osama bin Laden. The indictment further alleges that
a piece of paper found in a car at Washington Dulles International
Airport registered to alleged hijacker Nawaf Alhazmi contained
Awadallah's name and previous phone number.
Alhazmi and Almihdhar, suspected of hijacking the plane that
crashed into the Pentagon, lived together in San Diego last year.
Awadallah admitted before the grand jury that Alhazmi worked in
the same gas station he did in San Diego, but denied knowing Almihdhar.
At a second appearance before the grand jury, he corrected his
prior testimony, stating he had probably met Almihdhar once or
twice through his co-worker Alhazmi. His lawyer asserted Awadallah
was simply confused when first questioned about whether he knew
Almihdhar. New York Assistant U.S. prosecutor Robin Baker nevertheless
announced Awadallah would be prosecuted for "seditious conspiracy
to levy war against the United States."
Despite the flimsiness of the charges against Seif and Awadallah,
they should perhaps be thankful that their cases have been thrust
into the criminal justice system where they have the right to
counsel, bail, a presumption of innocence, and a speedy trial.
The vast majority of post-September 11 suspects have not been
charged with any crimes. Instead, they have been jailed for "questioning"
or as material witnesses, detained on "immigration holds"
(often without any charges that they violated any immigration
laws), had their bank accounts frozen, or their businesses shut
down. Because they have not been charged with any crimes, the
victims of the Government's post-September 11 nation-wide dragnet
have few constitutional protections, and for the most part are
unable to defend themselves because there are no known charges
to defend against.
Some of the 1,400 detainees have been arrested and jailed as
"material witnesses" in the September 11 investigation.
It seems not one of these "material witnesses" has yet
provided any evidence material enough to secure an indictment
against anyone for any involvement in the September 11 attacks.
Yet the Government has done whatever it can to avoid releasing
them. Ahmad Abou El-Kheir, for example, is a 28-year old Egyptian
national arrested days after the WTC attack. He was suspected
of knowing two of the hijackers. He was transported to New York
and jailed as a "material witness." Almost one month
later a federal judge ordered his release. He was then transferred
to a Bronx court on a three-year old warrant involving a minor
disorderly conduct conviction. Once that matter was resolved,
he was transferred to the custody of the INS to face a charge
that he had violated his visa on an earlier visit to the United
States. When he agreed to depart the country, the INS continued
to detain him for deportation, but refused to actually deport
The Government refuses to disclose who it has arrested, why
they have been arrested, or where they are being detained. The
Department of Justice has refused to respond to a Freedom of Information
Act request seeking this information submitted by the Center for
National Security Studies in Washington, DC. It appears the vast
majority of the detainees have no access to representation by
counsel, or access to the federal courts to seek habeas corpus
release. The media has gathered information on a small number
of detainees, and media coverage of their plight has helped some
people to win their release.
Dr. Al-Badr Al-Hazmi, for example, was detained the day after
the WTC attacks and finally released on September 25 after media
articles questioned his arrest and detention. The 34-year-old
Saudi national studying radiology in San Antonio, Texas, is highly
regarded by his colleagues in the medical profession and in his
community. Twice a year he participated in a program offering
free medical treatment to residents of San Antonio. The fact that
he strongly condemned the terrorist attacks made little difference
to the FBI or federal prosecutors. He publicly proclaims "The
teaching of Islam is totally against violence." Following
his release, the FBI refused to explain why he was detained, or
why he was released. His lawyer said "There's not a scintilla
of evidence that Dr. Al-Hazmi did anything wrong. . . . This has
been a terrible mistake." Unfortunately, the mistake is being
repeated hundreds of times over, with most detainees unable to
access lawyers, or the media, to win their release.
Many of the detainees are being held by the INS. Normally,
INS detainees must be charged with a deportable offense within
24 hours of arrest, and the are entitled to have their bail reviewed
by an Immigration Judge and the Board of Immigration Appeals.
However, on September 20, the INS published a new rule in the
Federal Register announcing that immigrants may now be detained
for a "reasonable" length of time without any charges
being filed against them in times of national emergency or "other
extraordinary circumstances." (66 FR 48334). It appears Attorney
General Ashcroft believes the September 11 attacks created an
emergency and extraordinary circumstances permitting immigrants
to be detained for a reasonable period of time--whatever that
means--without being charged with any violation of the Immigration
Act. The INS continues to implement the new "reasonable"
detention without charges rule, even though anti-terrorism legislation
passed by Congress on October 26 requires the INS to file charges
against detained immigrants within "seven days."
To further strip immigrants of their due process rights to
liberty and to defend against charges brought against them, on
October 31 the Department of Justice issued another new rule granting
the INS an automatic stay of any decision by an Immigration Judge
or the Board of Immigration Appeals to release an immigrant on
a reasonable bail. (66 FR 54909). Under the new rule, the stay
of release will remain in effect until the Attorney General reviews
the case and determines whether he believes release is appropriate.
This could take months or years.
The Government is using other non-criminal sanctions against
Middle-Eastern groups and individuals that make mounting a defense
difficult to impossible. Around the country federal agencies,
including the Treasury Department, are investigating Islamic American
nonprofit groups and freezing some of their assets, including
eight of the largest Muslim charities in the United States. Each
of the eight Islamic nonprofit charities targeted condemned the
attacks on the World Trade Center and Pentagon, and six have solicited
funds for the victims of the attacks. The Treasury Department
states that it obtains information from foreign governments, the
FBI, CIA, State Department and its own investigations. But it
refuses to divulge any evidence in support of its actions against
the Islamic charities.
The Islamic Center in Tucson, set up by students at the University
of Arizona in 1971, was seemingly targeted by the U.S. Government
because Wa'el Hamza Jalaidan, now believed to be a strategist
for Bin Laden, served as the Center's president some sixteen years
ago. The Government ignores the fact that sixteen years ago it
was funding Bin Laden to fight the Soviets in Afghanistan.
In October and November the assets of over 150 groups and individuals
have been frozen. On November 7 2001, U.S. Customs agents carried
out a series of raids on businesses that transfer funds back home
for immigrants. Assets of nine businesses and individuals were
frozen. One of the main businesses targeted, the al-Barakaat network,
is used by Somali immigrants to send money to relatives in Somalia.
Ahmed Nur Ali Jim'ale, the chairman of the al-Barakaat group,
told the Associated Press in Mogadishu, Somalia, "This is
all lies, we are people who are hard working and have nothing
to do with terrorists." The small office of Barakaat Enterprise
in Columbus, Ohio, mostly used by immigrants to cash checks and
send money home, was sealed off by federal agents and a notice
posted on its window stating: "All property contained in
this building is blocked pursuant to an Executive Order of the
President on Sept.
23 of this year under the authority of the International Emergency
Economic Powers Act."
The use of secret evidence is yet another tool in increasing
favor with federal law enforcement officials since the September
11 attacks. The FBI and INS have for several years relied upon
secret evidence to detain Middle-Eastern immigrants. Mazen Al
Najjar, a 44-year old Palestinian who earned his doctorate in
engineering at the University of South Florida, was arrested during
a 1995 FBI raid of USF's World and Islam Studies Enterprise, a
campus think-tank where he worked as the executive director. No
criminal charges were filed against Al Najjar, but he was turned
over to the INS and jailed until last December on the basis of
evidence the Government refused to divulge. He was set free by
a federal court in Miami which concluded that his detention violated
the due process clause of the Fifth Amendment.
Al Najjar's experience does not bode well for the over one
thousand detainees picked up in the wake of the September 11 attacks.
Despite repeated set backs in the federal courts, the Government
will undoubtedly continue relying upon flimsy secret evidence
to detain people without ever filing criminal charges against
them. Hundreds of detainees will languish in jails across the
United States without legal counsel or the resources to access
the federal courts to defend their constitutional rights. Families
will be torn apart and thrown into economic chaos as breadwinners
are locked up on the basis of secret evidence that would never
hold up in a court of law applying traditional due process principles.
In court filings the Government justifies detention of its
post-WTC attacks prisoners on the ground its investigation is
on-going and complex. FBI affidavits advise judges that detainees
should not be released before the Government can "exhaust
all avenues" of its investigation. The affidavits argue that
"the business of counter-terrorism intelligence gathering
in the United States is akin to the construction of a mosaic."
And, the Government "is gathering and processing thousands
of bits and pieces of information that may seem innocuous at first
glance. We must analyze all that information, however, to see
if it can be fit into a picture that will reveal how the unseen
whole operates." The problem for the vast majority of detainees
is that there is no evidence linking them to the as yet undiscerned
and little understood "unseen whole" the investigation
is struggling to piece together.
The most recent weapon added to the arsenal in the war against
terrorism is the Military Order issued by President Bush on November
13. Under this executive order, people suspected of being terrorists,
or supporting terrorists, in acts which "cause injury to"
or have an "adverse effect[ ]" on the United States'
national security, foreign policy, or economy, may be arrested
by the military and "tried for violations of the laws"
by "military tribunals" established by the Secretary
of Defense. The military order applies to all persons who are
not citizens of the United States, wherever they may be found.
The military tribunals may be conducted anywhere the President
or Secretary of Defense choose. Any evidence having "probative
value to a reasonable person" may used in such tribunals,
seemingly including confessions obtained by torture or threats
of torture or death. Conviction may take place based upon a vote
of two-thirds of the officers appointed to serve as judges in
A person held for such a tribunal or convicted in one "shall
not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly ... in any court of the United States,
any court of any foreign nation, or any international tribunal."
Convictions and sentences may be reviewed only by the President,
or if he so designates, the Secretary of Defense. Sentences may
include "life imprisonment or death."
While the military tribunals will have jurisdiction over persons
suspected of involvement in international terrorism, the term
terrorism is nowhere defined in the Military Order. However, under
the Anti-Terrorism and Effective Death Penalty Act, terrorism
is defined as the use of any force or violence to achieve a political
aim. Thus, for example, a pro-democracy freedom fighter seeking
to overthrow the theocratic royal family dictatorship in Saudi
Arabia by blowing up an oil rig, could be arrested by U.S. special
forces, brought before a secret U.S. Military Tribunal somewhere
overseas, charged with terrorism that adversely effected U.S.
foreign policy and its economy, and sentenced to death and executed.
Similarly, a lawful permanent resident alien living in the United
States who "aided or abetted" the Kosovo Liberation
Army which fought the security forces of former Yugoslav President
Slobodan Milosevic could be convicted and sentenced to death in
a secret trial conducted by a Military Tribunal somewhere in the
It has been over 100 years since a U.S. President sought to
establish Military Tribunals for crimes not committed during a
declared state of war. In Ex parte Milligan, 71 U.S. 2 (1866),
the Supreme Court addressed the habeas corpus petition of Lambdin
Milligan, an Indiana lawyer who allegedly joined a secret group
planning to free Confederate prisoners. Milligan and others were
arrested, tried, convicted and sentenced to death by military
officers. The Supreme Court unanimously concluded that "the
power of punishment is alone through the means which the laws
have provided for that purpose, and, if they are ineffectual,
there is an immunity from punishment, no matter how great an offender
the individual may be or how much his crimes may have shocked
the sense of justice of the country or endangered its safety."
The Court observed that "[b]y the protection of the law,
human rights are secured; withdraw that protection and they are
at the mercy of wicked rulers or the clamor of an excited people."
The Court reviewed the constitutional protections afforded defendants
in criminal cases, and pointed out that the authors of these protections
"foresaw that troublous times would arise when rulers and
people would become restive under restraint, and seek by sharp
and decisive measures to accomplish ends deemed just and proper,
and that the principles of constitutional liberty would be in
peril unless established by irrepealable law."
Finally, the Court concluded that "The Constitution of
the United States is a law for rulers and people, equally in war
and in peace, and covers with the shield of its protection all
classes of men, at all times and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the
wit of man than that any of its provisions can be suspended during
any of the great exigencies of government. Such a doctrine leads
directly to anarchy or despotism, but the theory of necessity
on which it is based is false, for the government, within the
Constitution, has all the powers granted to it which are necessary
to preserve its existence, as has been happily proved by the result
of the great effort to throw off its just authority." As
long as the federal courts were "open and their process unobstructed,"
the president possessed no right to circumvent their jurisdiction
by authorizing the use of military tribunals. While Milligan was
a citizen, and President Bush's Military Order targets only non-citizens,
no federal court has ever held that non-citizens charged with
crimes are entitled to less constitutional protections than citizens.
Administration officials defend President Bush's Military Order
on the basis of a more recent Supreme Court decision which refused
to interfere with the execution of six German nationals who entered
the U.S. in 1942 to commit acts of sabotage. On June 13, 1942,
four Germans landed on a beach near Amagansett, Long Island, New
York, carrying explosives to be used in sabotage of American defense-related
production. On June 17, 1942, a similar group landed on Ponte
Vedra Beach, near Jacksonville, Florida. Within two weeks the
saboteurs were arrested, and within a month tried before a Military
Commission, found guilty, and six non-cooperating defendants sentenced
to death. Meeting in a special session, the Supreme Court rejected
an appeal that the Germans were entitled to be tried in a civil
court. The Court decided that "lawful combatants" during
a declared war were entitled to be detained as prisoners of war.
However, "unlawful combatants"--those who enter the
territory of a state at war to engage in acts of sabotage, are
subject to trial and sentence by military courts. While Administration
officials have justified President Bush's Military Order on the
ground that "terrorists" are the functional equivalent
of "unlawful combatants," they ignore the fact that
the German saboteurs case was decided in the context of a war
declared by Congress. Under Article 1, section 8 of the Constitution,
it is the Congress which has authority to declare war. While the
President may declare a "war" on drugs, or on terrorism,
that is hardly the same thing as the Congress, under its Constitutional
mandate, issuing a declaration of war. There is no precedent for
a President, by executive order, to establish military tribunals
to hold secret trials for persons suspected of crimes during an
undeclared "war" on a perceived evil, no matter how
great that evil may be.
The attacks of September 11 were major crimes against humanity.
Shortly after the attacks took place, President Bush and other
top U.S. officials called for "justice," and repeatedly
stated the perpetrators and those who aided them should be "brought
to justice." But over the following weeks the calls for justice
turned to calls for revenge and war. The rules of justice were
tossed out as the President called for Bin Laden's capture, "dead
or alive," just like those old "Wild West posters,"
the President said. The rules of justice were tossed out as hundreds
of innocent people were jailed without charges, access to legal
counsel, or access to the courts. The rules of justice were abandoned
when likely hundreds or thousands of innocent Afghanis were killed
in the war to topple those who oppressed them, and, of course,
to find Bin Laden. The rules of justice have been suspended as
the U.S. Government uses the United Nations in an effort to patch
together a post-Taliban government, but makes clear it will act
unilaterally and in secret when it arrests, tries and sentences
suspected terrorists in its new Military Tribunals.
In short, the U.S. Government's response to the September 11
terrorist attacks has not been one which embraces the Constitution,
or the rule of law, or application of well-established international
law. Instead, the response has ultimately relied upon raw military
and police powers, largely unchecked by the judiciary or traditional
notions of due process of law. In his inaugural address in 1961,
President John Fitzgerald Kennedy said "In the long history
of the world, only a few generations have been granted the role
of defending freedom in its hour of maximum danger... The energy,
the faith, the devotion which we bring to this endeavor will light
our country and all who serve it, and the glow from that fire
can truly light the world." While the Government's response
to the September 11 attacks has been energetic, it has shown little
faith in or devotion to the principles laid out in the Constitution.
As a consequence, thousands of innocent people have suffered in
order to revenge thousands of others killed by terrorists who
abided by no constitution or rules of justice.
Peter Schey is the President of the Los Angeles-based Center
for Human Rights and Constitutional Law. He has served as lead
counsel in numerous class action cases against the INS, and writes
a monthly column on human rights and immigrants for the Los Angeles
and San Francisco Daily Journal.