One Year After 9/11: Will The Courts Protect The Rights Of Non-Citizens?
Cyrus D. Mehta
On September 11, 2001, the terrorist attacks on the World Trade Center and Pentagon left almost 3000 people dead. We will forever sympathize with the families of the
victims who one day left home for work and never returned. At the same time, we express grave concerns about the US Justice Department’s actions against non-citizens
since the September 11 attacks.
Even though the Justice Department has commendably warned about punishing those for hate crimes perpetrated against Arab Americans and Muslims living in the US, its
policies towards non-citizens have had the opposite effect. Since September 11, the Department of Justice, under Attorney General John Ashcroft, has chosen to arrest,
detain, and decide the fate of over 1000 people under the veil of secrecy. It has refused to release the names of most non-citizens arrested, in many instances, at traffic
stops or flimsy tips from suspicious neighbors. Most of the non-citizens singled out have been Arab or Muslim men. 1
Government’s Controversial Policies
A report of Human Rights Watch, released in August 2002, documents that many of the arrests were made largely because of the persons nationality and
religion.2 According to this report, not a single person who has been arrested has been involved in the terrorist attack of September 11. Moreover, on
September 21, 2001, Chief Immigration Judge Michael Creppy issued a memorandum specifying that in certain cases “the courtroom must be closed for these cases – no
visitors, no family, and no press.” “This restriction,” the memo continues, “includes confirming or denying whether such a case is on the docket.” The Justice Department
also expanded its powers (through the Immigration and Naturalization Service) to increase from 24 to 48 hours the time INS can detain a non-citizen without charges. This
period may be extended for an unspecified “reasonable” additional time in the event of an emergency or other extraordinary circumstances.3 Another rule
permits INS prosecuting attorneys to override the decision of an Immigration Judge to release a non-citizen on bond in any case in which the INS sets a bond initially at
$10,000 or more.4
The INS also promulgated a rule prohibiting public disclosure by any facility, even if state or privately owned, relating to any immigration detainee being housed on behalf of
These powers have made it easier for the government to engage in the secret arrest and incarceration of as many as 1,200 non-citizens, although the exact number remains
uncertain. These non-citizens were designated as “special interest” cases. The government has apparently used the immigration laws to detain non-citizens in order to
bypass the greater safeguards afforded to people subject to a criminal investigation. The protections, under criminal law, would include a requirement of probable cause for
arrest, the right to be brought before a judge within 48 hours of arrest, and the right to court-approved counsel.
What is even more remarkable about these rules is that they have been utilized more frequently and effectively than the mandatory detention provision, Section 412, in the
USA Patriot Act. Section 412 authorizes the Attorney General to certify a non-citizen when he has “reasonable grounds to believe” that the non-citizen has been “described
in” various anti-terrorism provisions of the Immigration Act. The Attorney General may then detain the non-citizen without a hearing and without a showing that the person
poses a threat to national security or a flight risk. Charges, either criminal or immigration related, which need not relate to terrorism, have to be lodged within 7 days. While
the USA Patriot Act gives the Attorney General broad detention powers, it has not reportedly been used in the “special interest” cases. Instead, the INS custody rule,
expanded through executive fiat rather than through deliberation in Congress, was used to arrest non-citizens without bringing charges for weeks on end. Two Pakistani
nationals were arrested on October 2, 2001, but were not charged with overstaying their visas until 49 days later. In another case, an Israeli national of unidentified ethnicity
was held for 66 days before being charged for illegally entering the country.6
The Justice Department has also made explicit its focus on Muslim men from the Middle East and South Asia. In November 2001, it announced its intention to interview
5,000 young immigrant men, based solely on their age, date or arrival, and the country from which they came.7 In January 2002, the Justice Department
announced that it would prioritize the deportation of 6,000 non-citizens, out of more than 300,000 foreign nationals, who have remained in the country after being ordered
deported. The prioritized efforts would be directed against young men from countries where Al Qaeda support is thought to exist. 8
Courts Have Held Back the Government On Secrecy
The government’s arguments for secrecy have recently been challenged in court by media groups and other organizations who assert that such secrecy violates the press’
and public’s right to access under the First Amendment to basic information regarding individuals arrested and detained since September 11. The decisions appear
promising, but it remains to be seen whether the courts will also protect non-citizens who may individually sue the government for violating their rights. 9 How
the Supreme Court will rule on the secrecy issue and other challenges remains an open question. Historically, the judiciary has always given deference to Congress and the
government to regulate the admission and stay of non-citizens in this country under the plenary power doctrine.10
Fortunately, in the recent challenges (discussed in more detail below) brought by the media against the government’s secrecy policy, the courts have rejected the
government’s arguments justifying secret detention and closed deportation hearings. FBI officials have submitted boilerplate affidavits to the courts to justify the secrecy of
the hearings on grounds that open hearings could lead to setbacks in the government’s terrorism investigations as well as stigmatizing “special interest” detainees should
they ultimately be found to have no connection with terrorism. 11 As deportation can lead to one’s permanent banishment from this country, the openness of
such hearings is vital to ensure that the government is being fair. Also, non-citizens in deportation hearings do not have the same level of rights as a defendant in a criminal
proceeding, and therefore, the media and other public interest groups may be the non-citizen’s only protector against governmental excess. This appears to be the basic
underpinning behind the courts’ decisions.
Although there have also been other September 11 related challenges, especially against the government’s use of material witness warrants and the designation of US
citizens as enemy combatants, this article is limited to an analysis of decisions concerning non-citizens under immigration law.
The most important such decision to have emerged recently is the Sixth Circuit Court of Appeals decision in Detroit Free Press et. al v. Ashcroft, 2002 WL 1972919
(6th Cir. (Mich.)), recognizing the media’s First Amendment right to access a deportation hearing of a “special interest” detainee. On December 19, 2001, an Immigration
Judge conducted a bond hearing for Rabih Haddad, a “special interest” case. Haddad was subject to removal proceedings, having overstayed his visa. The government further
suspected that Haddad supplied funds to terrorist organizations, but has never charged him for this support under immigration or criminal law. Haddad’s family members,
members of the public, including Congressman John Conyers, and several newspapers sought to attend the hearing. Without prior notice to the public, the courtroom
security officers announced that the hearing was closed to the public. Haddad was denied bail, detained, and has since been in government custody. Subsequent hearings
have also been closed to the public. The plaintiffs, which included Detroit Free Press and Congressman Conyers, sued the government in federal district court to claim a
public right of access to Haddad’s removal hearing under the First Amendment of the US Constitution. The Sixth Circuit Court of Appeals affirmed the lower court’s ruling in
favor of an open deportation hearing. The following introductory remarks of Judge Keith’s opinion, writing for a three-judge panel, are worth noting:
“The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind closed doors. The First Amendment, through a free press, protects the people’s
right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information
rightfully belonging to the people. Selective information is misinformation.” Id. at 2.
Although Congress as well as the government has plenary power over immigration law, and the courts are expected to pay due deference to such plenary power, the Court
distinguished between substantive and non-substantive immigration laws. The difference between a substantive and non-substantive immigration law, according to the Court,
is that substantive immigration law answers the questions, “who is allowed entry” or “who can be deported.” The deferential standard that is accorded under the plenary
power doctrine to substantive immigration law does not necessarily apply to non-substantive immigration law.12 The Creppy memo fell under the category of
non-substantive law and did not deserve the deferential treatment, according to the Court.
The Sixth Circuit Court of Appeals also affirmed the media’s First Amendment right to access a deportation hearing. The US Supreme Court in Richmond Newspapers,
Inc. v. Virginia, 448 US 555 (1980), earlier held that the media had a right of access to a criminal trial. The Detroit Free Press Court applied the Richmond
Newspaper two-prong test of “experience” and “logic” to a deportation hearing. With respect to the “experience” prong of the test, the Court stated that deportation
hearings have always been accessible to the public. A deportation proceeding has the same character as any judicial proceeding in that it is formal, adversarial, and the
non-citizen may defend himself or herself in various ways, including seeking habeas corpus relief. Regarding the “logic” prong of the test, the Court noted that after
September 11 and the massive investigation that followed, open hearings served a “therapeutic” purpose as outlets for “community concern, hostility, and emotions.” Even
though the Court acknowledged that the government had a compelling interest to close deportation hearings, it found that the Creppy memo was not narrowly tailored, and
the government failed to convince the Court why its security concerns could not be addressed on a case by case basis rather than the blanket closure of all deportation
hearings concerning “special interest” detainees. The government’s “mosaic intelligence” theory – where an individual piece of information is not of obvious importance until
pieced together with other pieces of information – was also rejected by the Court as being too speculative.
The Sixth Circuit Court of Appeals ruling came shortly after a similar positive ruling from a lower court, in North Jersey Media Group, Inc. v Ashcroft, 2002 WL
1163637 (D.N.J.), affirming the media’s First Amendment access to a deportation hearing. The federal district court in Newark, NJ, also rejected the government’s
arguments in support of closed hearings. Noting that if an appeal is taken, the transcript of the proceedings below would nevertheless be disclosed, the Court concluded
that the dictates are not narrowly tailored to serve the government’s interests because they do not advance those interests. Furthermore, there is nothing in the Creppy
memo that would prevent this information from being disclosed by the “special interest” detainee or by the lawyer. Also, to the extent that the closure of the proceedings is
said to serve the interest of insulating the detainee from humiliation or stigma, its mandate sweeps too broadly because it does not permit the individual to elect such
The government appealed to the Third Circuit Court of Appeals, seeking a stay of the District Court’s order. The Third Circuit Court of Appeals has agreed to review the
decision, but did not issue the stay. The government then turned to the U.S. Supreme Court, which without comment, granted the government’s emergency request for a
stay. The fact that the Supreme Court granted the stay without any reason may not bode well if this case and other cases are finally heard by the nation’s highest court.
In Center for National Security Studies, et al v. US Department of Justice, Civil Action No. 01-2500 (available at http://news.findlaw.com/hdocs/docs/terrorism/cnssvdoj080202ord.pdf), several
organizations sued the government for its failure to reveal the names of detained non-citizens under a Freedom of Information Act request. The federal district court in
Washington, D.C. held that “secret arrests are ‘a concept odious to a democratic society’ and profoundly antithetical to the bedrock of values that characterizes a free and
open one such as ours.” It once again rejected the government’s rationale that releasing the names would deter the detainee from cooperating, that it would lead to a
setback in the government’s investigation and that the release of information would allow terrorist organizations to interfere with pending proceedings by creating false and
misleading evidence. The Court ordered that the government release the names of the detainees as well as the names of the detainees’ lawyers. However, it upheld the
government’s request to withhold the dates of arrests, detention, and release as well as the location of arrest and detention.
Judiciary’s Future Role
It is hoped that the courts will continue to protect the rights of non-citizens since September 11. The Detroit Free Press case makes abundantly clear that the courts
will pay greater scrutiny to the non-substantive aspects of immigration law. Most of the Justice Department rules and policies, like the Creppy memo, could be characterized
as non-substantive, and under the current trend, the courts will likely strike them unconstitutional as more non-citizens bring challenges against them. Even if the
government argues that the plenary power may be applicable over September 11 related rules involving substantive immigration law, it is time to cast this spurious doctrine
aside. It was first formulated in the Chinese Exclusion Case13 more than a hundred years ago under the shadow of a racist and nativist mood against
Chinese immigrants. It was reaffirmed during the “red scare” under the McCarthy era.14 There is nothing explicit in the Constitution that gives the government
or the Congress plenary, or unreviewable power, over immigration matters.15
The government also reaffirms that it is acting lawfully against non-citizens. For instance, Mr. Viet D. Dinh, Assistant Attorney General at the Justice Department, has
acknowledged that the government has utilized all available information, investigative techniques and legal authorities to disrupt terrorist activity. He goes on to state that
whatever techniques have been used “are legally permissible under applicable constitutional, statutory and regulatory standards.”16 However, the regulations
and policies promulgated by the Justice Department under which it has carried out its secret detentions may not pass constitutional muster, as the courts have declared
with respect to closed hearings under the Creppy memo.
Unlike a conventional war, President Bush’s “war” against terror is undefined and may go on forever. The courts must remain steadfast in safeguarding the rights of
non-citizens, as new Justice Department rules, such as the alien registration rule to be inaugurated on September 11, 2002, will continue to result in due process violation of
people of certain nationalities. This rule will require the registration, fingerprinting and photographing of certain non-citizens who are nationals of countries with significant
Muslim population. At present, it applies to nationals of Iran, Iraq, Libya, Sudan and Syria, but is likely to expand to other nationals too. The rule would require the
registered person to report within 30 days, annually and every time before departing the US. Any violations with respect to compliance, however inadvertent, would result in
this person losing status, being imminently deportable and having his or her name being entered into a federal criminal database.17
Ethnicity can never be used as a proxy for individualized suspicion or guilt. Not too long back in our history, the Supreme Court in Korematsu v. United States, 323
US 214 (1944), applied a similar military emergency rationale to uphold the exclusion of citizens and non-citizens of Japanese ancestry from the West Coast. It was
belatedly realized, causing great embarrassment to the government, that the military justification was based on racial prejudice and the Korematsu decision, and
others concerning Japanese Americans, have never held an honored place in our history. The judiciary should never allow the government to go down the same path again.
1 Adam Liptak, Neil Lewis & Benjamin Weiser, After September 11, A Legal Battle On the Limits of Civil Liberty, New York Times, August 4, 2002.
2 See generally, Presumption of Guilt, Human Rights Abuses of Post-September 11 Detainees, Human Rights Watch, Vol. 14, No. 4(G) – August
3 66 Fed. Reg. 48,334 (September 20, 2001). The 48 hour rule improperly reads the case law as allowing for 48 hours regardless of special circumstances. In
County of Riverside v. McLaughlin, the U.S. Supreme Court carefully explained that it did not hold “that the probable cause determination in a particular case passes
constitutional muster simply because it is provided within 48 hours.” 500 U.S. 44, 56(1991). Procedures may still be deemed unreasonably delayed if, for example, there are
“delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.”
4 66 Fed. Reg. 54,909 (Oct. 31, 2001).
5 67 Fed. Reg. 19508 (Apr. 22, 2002). In ACLU of New Jersey v. County of Hudson, 2002 WL 1285110 (NJ Super. A.D. June 12, 2002), the NJ Superior
Court held that the federal rule preempted any inconsistent New Jersey state public disclosure laws under the federal preemption provision of the US Constitution, Article 6,
which declares that “the laws of the United States…shall be the supreme law of the land..anything in the constitution or laws of any State to the contrary notwithstanding.”
6 Dan Eggan, Delays Cited in Charging Detainees, Wash. Post, Jan 15, 2002.
7 See Memorandum For All United States Attorneys, All members of the Anti-Terrorism Task Forces From the Deputy Attorney General: Guidelines for the
Interviews Regarding International Terrorism, dated November 8, 2001, posted November 27, 2001 at:http://www.detroitfreepress.com/gallery/2001/intervies/01memo1124.htm.
8 Dan Eggen &Cheryl W. Thompson, U.S. Seeks Thousands of Fugitive Deportees: Middle Eastern Men Are Focus of Search, Wash. Post, Jan. 8,
2002, at A1.
9 See Complaint filed on April 17, 2002, in Turkmen v. Ashcroft, 02-CV-02307-JG (E.D.N.Y 2002), available at http://news.findlaw.com/hdocts/docs/terrorism. Turkmen, a Turkish national, was given voluntary departure on
October 31, 2001, but was kept in custody for nearly four months, until the FBI ensured he was innocent.
10 See Eg., United States ex. Rel. Knauff v. Shaughnessy, 338 U.S. 537 (“whatever the procedure authorized by Congress is, it is due process as far
as an alien denied entry is concerned”); But see, Zadvydas v. Davis, 533 U.S. 678 (2001), where the Supreme Court held that “the Due Process Clause applies to ‘all
persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary or permanent.”
11 See eg., Affidavit of James S. Reynolds, Chief of the Terrorism Crimes Section, submitted in Detroit Free Press v. Ashcroft, 195 F. Supp. 2d
937 (E.D. Mich. 2002).
12 The Court cited the following cases in support of non-deferential review over non-substantive immigration law: Kwock Jan Fat v. White, 253 US 454
(1920)(reversing order of deportation of person claiming citizenship based on secret evidence, the Court did not pay due deference to the government’s interpretation of due
process); Landon v. Plasencia, 459 US 21(1982)(a resident non-citizen, returning from a brief trip abroad, was entitled to due process, including a hearing regarding
the charges underlying the attempt to exclude him); INS v. Chadha, 462 US 919(1983)(Congressional veto over any decision by the Attorney General that allowed a
deportable alien to remain in the US violated the Presentment Clause); Zadvydas v. Davis, 533 US 678 (2001)(Court read an implicit reasonableness limit to post
removal detention statute to avoid “serious constitutional problems”).
13 130 U.S. 581 (1989).
14 See eg. United States ex rel Knauff v. Shaughnessy, supra, note 10.
15 Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion And Its Progeny,: 100 Harvard Law Review 853
16 Viet Dinh, Freedom and Security after September 11, 25 Harvard Journal of Law and Public Policy 399, Spring 2002.
17 67 Fed. Reg. 52583-52593 (July 6, 2002).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American
Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the
Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted
at 212-425-0555 or email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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