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The Use of US Immigration Enforcement and "Enemy Combatant" Designations after the September 11 Attacks - David A. Martin

The United States responded vigorously to the terrorist threats to the world community that became vividly apparent on September 11, 2001. Some of those responses have been admirable and successful and worthy of continuation. Others are more questionable, either hampering true progress in the battle against terrorism or ignoring the vital need to protect core liberties no matter what the challenge. Some, but certainly not all, of the recent uses of immigration enforcement tools fall into the questionable category. And the current mode of application of the notion of "enemy combatant" or "unlawful combatant" to this new type of struggle poses serious threats to human rights and fundamental liberties – threats that government officials responsible for the policy seem not to treat with sufficient seriousness. There is a role for such a category of combatants, and the Administration is right to work to adapt some of the measures authorized by the law of war to this novel kind of struggle against non-state adversaries. But the government should strive to develop the doctrine in a way that observes precise limits, in order to preserve liberty and to honor the national commitment to human rights for all persons.

I. Use of the Immigration Laws

A. Introduction: the Role of Immigration Controls and the Need to Sustain Support in the Immigrant Community

Because the September 11 attacks were carried out by foreigners admitted to the United States for temporary purposes, some of whom had violated the terms of their admission, frustration with the immigration control machinery was a widespread popular reaction. There are many problems with that machinery, and it would be good to use the spur of the September 11 attacks to repair it systematically, overcome the enduring national ambivalence about illegal migration, and begin to enforce the stated rules more effectively – amending those rules if they are judged to reach too severe a result in certain categories of cases. Unfortunately, that seems not to be happening. Instead the government has selectively applied some enforcement tools with great severity, while continuing to toy with other proposals (for ill-designed amnesties or guest worker programs) that might compound the problem of mixed signals about immigration violations.

A sense of perspective about the use of immigration enforcement tools is badly needed. Immigration enforcement by itself could eliminate a significant portion of the foreign terrorist threat only if a country were to shut its borders and expel all aliens. That the United States possesses that power and, for the most part, that legal authority probably feeds popular frustration and anger at the work of its immigration control agencies. But much of that anger has been and remains unfair. The United States has not shut its borders and should not do so. Immigration, both temporary and permanent, serves many vital national interests. It is an indispensable part of US tradition and identity as a nation. The United States will always want to admit foreigners in fairly high numbers, just as its citizens increasingly want to travel abroad for purposes of business, tourism, study, and the like. As long as the nation sustains a system that includes a high volume of admissions of aliens, it will run risks. Absolute certainty in immigration control comes only with absolutely closed borders.

Given the many reasons for a high-volume admission system, even in the wake of September 11, immigration responses to terrorism will always be secondary. It is far more effective to capture, try, and sentence terrorists than simply to exclude or deport them. Immigration tools remain important, because sometimes the best that one can do with the evidence available is to remove a potentially dangerous person from US soil. Nonetheless, it will rarely be immigration enforcement as such – visa interviews or questioning at the border or internal immigration investigations – that develops the crucial information. Such information will continue to come primarily from terrorism-specific investigations and intelligence, and the main players for these purposes will continue to be the FBI, the CIA, and related agencies. Although the United States must develop a better system to apply any such leads more reliably at the time when immigration decisions (visa issuance, border admission, or deportation) are made, one must remain realistic about the agencies that are best positioned to acquire such information initially.

A major source of intelligence along these lines is the immigrant community itself, which includes naturalized citizens and their families. An immigrant community that is supportive of US government enforcement will let the authorities know of suspicious activity. It will applaud targeted efforts to find and either convict or remove dangerous persons. All immigration-enforcement responses to terrorism should be crafted with careful attention to sustaining that support and minimizing adverse reaction among the immigrant community or the segments of it that are under primary scrutiny. Some of the enforcement measures undertaken after September 11, particularly the call-in registration targeted at male nationals from specific Middle Eastern and South Asian countries, have been counterproductive in this respect. The blanket rule for closing the immigration hearings of persons on a list of special-interest aliens (whose exact criteria were unclear) compounded this alienation.

I do not know what sorts of valuable information, if any, have been generated by the call-in registration regime or the blanket closure of these hearings. I seriously doubt whether the harvest has been enough to offset the alienation those actions fed. Selectively thorough registration at the border, in contrast, does not apply solely by nationality, can be fine-tuned more readily, potentially casts a better calibrated and less discriminatory net than the call-in registration, and is more likely justifiable. It should not be ruled out as a tool in the struggle against terrorism. But any such controls should focus as much as possible on individual characteristics and not on group generalizations that may serve to alienate resident communities whose support is esssential.

B. Immigration Detention

1. Framework for detention and the validity of using immigration charges as part of anti-terrorism efforts

Detention is a legitimate response to evidence of an immigration violation, as part of the process aimed at removing the violator from the United States. The Immigration and Nationality Act clearly authorizes detention, even for what are generally seen as garden-variety immigration violations (visa overstay violations or entrance without inspection (EWI)). Before September 11, 2001, the US system had evolved over many decades to a point where detention during proceedings became the exception, not the rule. Most aliens charged with immigration violations either were never detained or had an opportunity to seek release on bond or on personal recognizance. All but arriving aliens – those whose right to enter is challenged right at the border – have also had a chance to seek a reduction in the bond set by the immigration authorities, in an expedited procedure before an immigration judge known as "bond redetermination." The standard criteria for release have been the same as in the pre-trial criminal justice context: an assessment of flight risk and dangerousness. This salutary evolution in immigration practice, however, gave no one an entitlement to release, particularly given that in almost all removal proceedings the evidence of an immigration violation is solid – indeed is uncontested in the vast majority of immigration cases.

Some commentators and judges have suggested that the most common immigration charges (overstay, entrance without inspection) are merely "technical" or are sometimes used as a pretext to deport or detain persons that the government wants removed from US territory for other reasons. Both these views should be rejected. Insisting that people come in through established procedures rather than entering surreptitiously, and also insisting that those who enter properly abide by the terms of their admission, are both fundamental to the system and should not be considered technicalities. Those whose immigration violations are unearthed because of enforcement actions started for other purposes, such as steps against terrorism, have no legitimate complaint if they are then placed into removal proceedings (and much less so if they are picked up because they already have a deportation order issued against them). In the proceedings, of course, they should be given a full opportunity to put forward any defense or request for relief from deportation that may be available.

For these reasons, in the wake of the September 11 attacks, the government was justified in using immigration charges as a basis for detention, and to deny release on bond based on evidence that the respondents might be involved in terrorism, even if the person was not charged under one of the terrorism-related grounds of removal. It is important to be clear about this point. Sometimes the government decides to file only immigration charges rather than criminal charges, despite serious evidence of criminal wrongdoing. It may not be clear, for example, that the evidence of crime amounts to proof beyond a reasonable doubt. Or some of the key evidence may come from an informant or wiretap or other intelligence method that the government decides not to reveal, but instead to preserve in order to obtain ongoing information. When the immigration agency is seeking only deportation as the ultimate sanction, it is simply good government to file only the simplest and most straightforward charge – typically an overstay or EWI charge, which can be proven from government records or the absence thereof. Such charges are rarely even contested. Terrorism charges pose, in contrast, significant challenges of case management and proof. They were among the most difficult and challenging cases that the Immigration and Naturalization Service (INS) had to deal with during my tenure there as General Counsel in the mid-1990s. There is simply no point in adding those complications if there is another easily provable charge. The person's removal from the country is the same whether the charge is overstay or terrorism.

Nonetheless, evidence of involvement in terrorism or crime may well be highly relevant in deciding whether the person should be released pending completion of the process, because it can shed light on both flight risk and dangerousness. To exclude such evidence from the proceedings that set or review release terms, simply because the precise immigration charge does not embrace such bad acts, would be misguided. For this reason, the system has always allowed the government to use evidence that reaches beyond the precise ground of deportation as a basis for determining whether continued detention is justified. Hence, INS (now reorganized into the Department of Homeland Security (DHS)) properly used evidence of terrorist involvement in establishing the initial release terms, if any, and INS also properly presented such evidence to the immigration judge in a bond redetermination proceeding to defend its initial decision on detention. This basic system design, governing both charge and detention decisions, is sound. But it must make adequate provision for the government occasionally to use confidential information in this process – and also to build in safeguards that can substitute for the normal informed adversarial confrontation when that happens. (I address those issues briefly in the Part II below.)

2. Limiting principles

To say that it is proper to use immigration detention as part of the national response to terrorism and that the basic system design is sound does not entail approval of all uses of detention in the immediate aftermath of September 11. This system still must be run with sense that immigration detention is a serious intrusion on liberty, to be kept to the minimum justified by the facts of the specific case. The Supreme Court reminded the executive branch of these values in a ruling handed down just a few weeks before September 11, 2001. In Zadvydas v. Davis, a decision that placed limits on lengthy immigration detention, the Court began its substantive discussion with this affirmation: "Freedom from imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects." The government's use of detention after September 11 often fell short of this standard. An important report by the Inspector General (IG) of the Department of Justice spelled out these shortcomings. Many times the Department, although initially justified in its use of detention, did not follow through with needed measures to file charges in a timely fashion, to keep detention to a minimum, or to release or deport promptly those whose continued detention should not have been seen as justifiable.

3. The time for filing charges and making an initial custody determination.

Until late 2001, the regulations required a determination on charges and on custody or release within 24 hours of the warrantless arrest of an alien. That regulation properly reflected the sense that immigration arrest and detention constitute a serious intrusion on liberty, and so must be subject to prompt review and justification. Within a week after the September 11 attacks, the regulation was amended to extend the period to 48 hours, and the regulation allowed an escape hatch in the event of "an emergency or other extraordinary circumstance," in which case the determination is required within "an additional reasonable period of time." An extension to 48 hours may well have been justifiable, particularly in the circumstances prevalent immediately after September 11, when law enforcement agencies were under additional pressure and there was a particular need to establish an alien's true identity and to check databases for any additional terrorism-related information. But the escape hatch allowing for delayed charges in some circumstances was apparently misused. The IG report found several cases in which aliens remained detained for up to several weeks without charges being filed.

For the future, it would be better to restore a firm and fixed deadline, no later than 48 hours after arrest, and preferably 24 hours, for the initial custody or release decision. Escape hatches, especially ones bounded only by vague terms like "reasonable period" simply invite sloppy implementation and departure from the limiting principles that should govern the use of detention. The system worked for decades with a 24-hour deadline, and the nation has now had over two years since September 11 to develop more expeditious ways to share relevant information on identity and terrorist involvement. Although there is apparently a long way to go before the data-sharing system reaches a satisfactory level of implementation, the exception for emergency or other extraordinary circumstance should now be repealed.

4. The detention provisions in the USA PATRIOT Act

The USA PATRIOT Act also addressed the issue of pre-charge detention, and the choices Congress made in that context are highly instructive. Section 412 of that Act added a new § 236A to the Immigration and Nationality Act (INA). It allows the Attorney General to make a special certification that an alien who is covered by the terrorism and related national-security grounds of removal should be detained essentially throughout deportation proceedings. The Administration's original legislative proposal would have been far more sweeping, providing not only for detention on the basis of such a certification, but also for essentially the rejection of any defenses to deportation for an alien so certified. Wisely, the Department of Justice quickly retreated from that position and thereafter focused only on creating a new detention power.

Congress debated this detention provision carefully and trimmed it to its current dimensions, adding several additional safeguards. Congress specifically provided that such a certification must be done personally by the Attorney General or Deputy Attorney General, and may not be delegated to any other official. This requirement focuses personal responsibility in a Cabinet-level official for actions that run the risk of serious breach of personal liberties. Even with that personal involvement, Congress mandated that immigration or criminal charges must be filed within seven days after certification or else "the Attorney General shall release the alien."