LETTER OF BARBARA COMSTOCK, DIRECTOR OF PUBLIC AFFAIRS,
To the Editor:
I write in response to the Time magazine article of May 12, 2003 entitled, “The War Comes Back Home.” The piece included a number of inaccuracies as described below:
TIME: "What is allowed: Immigrants with no terrorist links can be detained indefinitely."
REALITY: False. The immigrants in question were aliens in the country illegally. Illegal aliens have no right to remain in the country, or to walk free during removal proceedings. Currently, there are approximately 400,000 illegal aliens in the U.S. who absconded after being ordered deported, and an estimated 8 million others in the country illegally. If these aliens or others who are illegally in the country are questioned or stopped for an investigative purpose, they may be detained. The Supreme Court recognized more than a century ago in Wong Wing v. United States that illegal aliens can be detained until they are deported. Indeed, in 1996 Congress saw that criminal aliens were being released in large numbers only to commit more crimes and passed a statute making detention of criminal aliens mandatory -- a statute that was held to be constitutional by the Supreme Court in April in Demore v. Kim. As the Justice Department Inspector General reported in February, there is a dramatic difference in the percentage of aliens who are successfully deported when they are detained (94%) versus when they are not detained (13%). Since only a handful of these approximately 750 detainees are still detained in connection with active investigations, the assertion that they are being detained “indefinitely” is unsupported by facts.
TIME: "Thousands were jailed and then let go. Only a few have been charged."
REALITY: False. As your own article acknowledges, "about 750 foreign nationals" were detained. "Thousands" would imply two or three thousand for which there is no basis in fact. All were in the country illegally, and all were charged with immigration and/or criminal charges. In addition, most of them -- approximately 500 to date -- have been deported, not "let go" or "released." That an alien was deported rather than prosecuted does not mean that the alien had no knowledge of or connection to terrorism. In many cases, the best course of action to protect national security may have been to remove potentially dangerous individuals from the country and ensure that they could not return. In other cases, an individual may have been deported on grounds seemingly unrelated to terrorism, if the assertion of specific terrorism charges could have compromised ongoing investigations or sensitive intelligence matters.
TIME: “What they can do: If you are suspected of terrorist links, law enforcement can access your records, conduct wiretaps and electronic surveillance, search and seize private property and make secret arrests - all without a warrant.”
REALITY: False. The federal government must obtain a court order to conduct electronic surveillance and/or to search and seize private property. If the matter concerns national security, the government obtains this court order from the FISA court after demonstrating, through a showing of probable cause, that the subject of the surveillance or search is a foreign power or an agent of a foreign power -- e.g., that he “knowingly engages” in "sabotage or international terrorism," or is preparing to do so, on behalf of an international terrorist group. Because "international terrorism" is defined to require conduct that violates U.S. criminal law -- or would violate U.S. law if committed in this country -- the showing required to wiretap a U.S. citizen under FISA's terrorism provisions is actually more demanding than under ordinary criminal terrorism laws. Moreover, specially created oversight committees of both Houses of Congress have been given authority to conduct regular and extensive oversight of the government's use of FISA.
TIME: “The war on terrorism may be launching a legal revolution in America. The changes pose these questions: How necessary are some of the reforms? Have John Ashcroft and the Justice Department unraveled constitutional protections in trying to ensure our safety?”
REALITY: Time and again, the Department has successfully defended legal challenges including:
üEnemy combatants authority - SUSTAINED
üGuantanamo Bay detention authority - SUSTAINED
üFISA information sharing authority - SUSTAINED
üPresident’s authority to freeze assets of purported charities that fund terrorists - SUSTAINED
üRegistration and detention of high-risk aliens who have violated immigration laws - SUSTAINED
If the story was going to talk about a "legal revolution," would it be too unreasonable to expect a factual acknowledgement and discussion of the actual outcome of the legal challenges to date in this "legal revolution?" All of this information was both publicly available and provided in detail to reporters covering the Department. The only reference to this overwhelmingly successful record of the Department in court was a perfunctory sentence near the end of the story: “In the vast majority of terrorism cases, judges have sided with the government against the objections of prisoners or their counsel.” Furthermore, the article quotes an Arcata, California city council member, David Meserve, as if he were a constitutional authority saying, “The Patriot Act is unconstitutional.” In fact, no provision of the Patriot Act has been held unconstitutional by any court in the country. The Patriot Act was voted on 98-1 in the Senate and House of Representatives voted 357-66 to approve it.
TIME: “Time and again, people rounded up after 9/11 have not been permitted to talk to lawyers. Civil libertarians are especially uneasy about the legal no man’s land at the U.S. naval base at Guantanamo Bay, Cuba where more than 600 captives from the war in Afghanistan are still being held and have not been accorded prisoner-of-war status.”
REALITY: First, people were not “rounded up” after 9/11. FBI investigators conducted standard investigatory procedures in areas where the 19 hijackers had lived and worked. They spoke with their family, friends, associates, and others who had some contact with them. They investigated tens of thousands of tips from the public. In the course of this investigation when the FBI encountered individuals who were in the country illegally, such individuals were detained under the law. Second, these individuals were provided access to lawyers - as evidenced by some of the lawyers you quoted in your own article. Those who could not afford a lawyer were given lists of lawyers who could provide free legal services. In fact, the overwhelming majority of the 9/11 immigration detainees were represented by counsel during removal proceedings.
Nevertheless, the legal position of the 9/11 immigration detainees bears no similarity to the status of detainees in Guantanamo Bay who are members of al Qaeda or the Taliban, and who were detained - usually in battlefield situations -- overseas. This juxtaposition of the two displays a remarkable ignorance of the legal difference between military detainees held outside the borders of the U.S. and immigration detainees held inside our nation. Furthermore, the detention of illegal enemy combatants in Guantanamo has been sustained -- both the 9th Circuit and the D.C. Circuit courts have dismissed legal challenges. The Guantanamo Bay detainees have not been accorded prisoner of war status because they are illegal enemy combatants who do not fight under Geneva Convention rules that would merit such treatment. Even lawful POWs have no right to lawyers to challenge their military detention under international law. There has never been any time in our entire history when any President has had a policy of providing lawyers to illegal enemy combatants or even legal POWs. The article displays a fundamental misunderstanding of military detention that falls under the President’s Article II war powers, as opposed to our judiciary system which is under Article III of the Constitution. Fortunately, the courts -- largely ignored in this piece supposedly exploring the "legal revolution" -- are more familiar with this historical record.
TIME: “The government justifies this on the grounds that it needs to question them, but most of the interrogations are over.”
REALITY: False. The government justifies detaining illegal enemy combatants who were fighting our soldiers in Afghanistan under long-standing precedent and international laws of war. Detained individuals who fought with Al Qaeda or the Taliban did not belong to an army that fought wearing uniforms or under a chain of command, and they intentionally targeted innocent civilians - women and children. Their detentions are consistent with long-existing precedents that allow the detention of enemy forces so they cannot rejoin those fighting against you. The article implies once we get information out of an al Qaeda operative telling us how they would like to kill us, the next logical step would be to release them to go carry out such operations -- or at the least bring in lawyers to facilitate their release.
TIME: “A federal judge in Manhattan has ruled that Padilla must be allowed to meet with his lawyers in order to challenge his enemy-combatant status. But the government maintains that no court has the authority to review that classification. Federal prosecutors have taken a similar position in the case of Yaser Esam Hamdi, a Louisiana-born man who came into U.S. custody after he was captured in Afghanistan, allegedly fighting for the Taliban. He has been declared an enemy combatant as well, held in a Navy prison in Virginia and prevented from seeing attorneys.”
REALITY: This summary completely ignores the key question under review by the courts- whether the government can detain enemy combatants in times of war -- and significantly omits the government’s success on that key issue in both cases. On the main issue under legal review, both the Fourth Circuit in the Hamdi case and the District Court in the Padilla case have clearly said the government has the long-established authority to detain individuals designated as enemy combatants. While the auxiliary counsel issue continues to be litigated in the Padilla case following the order of one federal judge that access to counsel is required, a unanimous Fourth Circuit decision in the government’s favor on this issue has been public for months in the Hamdi case.
TIME: "On arrival, Joseph petitioned for asylum as a political refugee. An immigration judge okayed his request, and an appeals board supported the judge, ruling that Joseph was neither a danger to the community nor a flight risk."
REALITY: The immigration judge never okayed the alien's asylum application. The alien was denied bond, and sought a redetermination hearing. During the hearing, the INS presented declarations from the Coast Guard, Departments of Defense and State, and INS Headquarters to support its position that the alien should continue to be detained while the asylum petition was considered, primarily for national security reasons. The immigration judge disagreed with the government’s position and ordered Joseph released on a bond of $2,500. The INS appealed to the Board of Immigration Appeals (BIA), which dismissed the appeal after finding that they could not consider the broad national security interests articulated by the INS without a legal opinion from the Attorney General expressly allowing these concerns to be taken in account. The Attorney General issued an opinion stating that national security considerations clearly constitute a reasonable foundation to deny release on bond.
All this means is that if government lawyers present national security concerns to immigration judges about an alien who has been apprehended entering the country illegally, the judges can now consider those concerns in deciding whether to release the individual on bond or not. To conclude otherwise--that immigration judges must simply ignore national-security evidence -- would endanger not only Americans, but also those aliens whose lives might be placed in jeopardy in the future. Decisions on whether or not to detain aliens during the adjudication process will continue to be made by immigration judges.