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Dissecting Attorney General Ashcroft’s Testimony
by Cyrus D. Mehta

Following are the excerpts of Attorney General John Ashcroft before the Senate Judicial Committee on Thursday 6, 2001. We present a different point of view.

Ashcroft: We need honest, reasoned debate, and not fear-mongering. To those who pit Americans against immigrants and citizens against noncitizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.

It is only because various civil liberties and immigrant rights groups have exposed the wholesale detention of noncitizens that we are hearing having a debate in the first place. Contrary to Ashcroft’s assertions, raising questions about the detention of noncitizens are not “tactics” to “aid terrorists.” In fact, it is quite the opposite. Our country is strengthened if the same laws and protections apply to all. If America continues to detain noncitizens under a veil of secrecy, it will only give fuel to this country’s enemies to further cast aspersions on its ability to bring the true perpetrators of the September 11 attacks to justice. Even the New York Times Editorial (December 7, 2001) is of the opinion that the Attorney General’s actions will instead “stoke anti-Americanism” and “give pause to many of our friends.”

Senior enforcement officials have said that of the more than 1,200 detentions, only 10 to 15 are suspected as Al Qaeda sympathizers, and that the government has yet to find evidence indicating that any of them had knowledge of the September 11 attacks or acted as accomplices. Most have been arrested based on widespread ethnic profiling, and their needlessly long detention is based on suspicion rather than concrete evidence.

Ashcroft: Our efforts have been crafted carefully to avoid infringing on constitutional rights while saving American lives. We have engaged in a deliberate campaign of arrest and detention of law breakers. All persons being detained have the right to contact their lawyers and their families. Our respect for their privacy and concern for saving lives motivates us not to publicize the names of those detained.

The Attorney General’s statements hide the realities that noncitizens face while imprisoned in the immigration system. In many cases, detainees have been limited to only one collect call per week and are denied visits from even close family members. This severely limits their ability to find an attorney to represent them.

Furthermore, on September 21, Chief Immigration Judge Michael Creppy issued a memo instructing immigration judges to hold certain hearings separately, to close these hearings to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside the immigration court. Detainees under INS custody can be shifted to remote detention centers, far away from family, friends and lawyers.

These restrictions also prevent court officials from divulging information as to whether such as case is on the docket or scheduled for a hearing. It is very difficult for lawyers representing these clients to find out about cases.

On September 20, a day before Immigration Court proceedings could be made secret, the Attorney General gave the INS authority to detain a noncitizen for an unspecified period of time “in the event of an emergency or other extraordinary circumstances,” without even providing a time limit to lodge charges against the noncitizen. This exceptionally vague and open-ended provision allows detention without reason for virtually any period of time, with no recourse or explanation, and it could be based for no better reason than that someone within the government thinks that the noncitizen looks suspicious.

Even if those detained are violators of immigration laws, there is no justification to hold these people indefinitely and be subject to secret hearings.

On October 29, the Department of Justice gave the INS even further powers to keep noncitizens detained. Even if an impartial judge were to release a noncitizen during a removal hearing on bond, the INS could simply indicate that it is considering appealing the judge’s order and invoke an automatic stay of that order. Once the INS appeals the decision, it is not unusual for the Board of Immigration Appeals to take months, even years, to decide a matter.

Ashcroft: We have the authority to monitor the conversations of 16 of 158,000 federal inmates and their attorneys because we suspect these communications could facilitate acts of terrorism. Each such prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and to save American lives.

Attorney-client confidentiality is among the most fundamental principles of due process and fairness in an adversarial legal system. There are few relationships accorded this level of protection under the law, thereby attesting to its importance in the American legal system. To take away attorney-client privilege is to deprive individuals of their Sixth Amendment right to counsel. How effective can an attorney be in zealously representing a client if he or she is obligated to share their communications? Would we tolerate such a curtailment of due process for U.S. citizens?

The Department of Justice’s need to eavesdrop on attorney-client communications is to protect against attorneys who may help facilitate future or ongoing criminal activity. Under existing law, federal authorities can seek appropriate remedies under the well-established “crime-fraud” exception to attorney-client privilege. In a closed-door hearing before a federal judge, and in absence of the offending attorney, the court can take immediate and effective actions, including ordering the monitoring of communications if necessary. Other options include removing the attorney from the case and prosecutors are always free to initiate criminal proceedings against attorneys where appropriate. These procedures also ensure judicial review in the narrow band of cases where an attorney is abusing the attorney-client privilege, protect legitimate attorney-client communications, and ensure that authorities have the power to investigate and prevent criminal activity without obstruction.

Ashcroft: We have asked a very limited number of individuals, visitors to our country holding passports from countries with active Al Qaeda operations, to speak voluntarily with law enforcement. We are forcing them to do nothing. We are merely asking them to do the right thing, to willingly disclose information they may have of terrorist threats to the lives and safety of all people in the United States.

A Department of Justice memo instructs officials on how to conduct interviews. The guidelines contain several questions that not only compel the interviewee to reveal information about his own immigration status and immigration history, but also require him to implicate friends, family or acquaintances. It encourages the interviewers not familiar with INS laws and regulations, to contact the INS if they suspect that a particular individual may be in violation of federal immigration laws. The guidelines state, “those officials (of the INS) will advise you whether the individual is in violation of immigration laws and whether he should be detained.”

There is no question that law enforcement authorities in this country have a right to conduct an investigation of possible terrorist cells in the United States. However, sweeping interrogations of mainly Arab and Muslim men based solely on what one can only presume to be their ethnicity and recent immigrant status (as if all others are exempt from engaging in such activities) raise serious issues about the legitimacy and ultimate efficacy of the investigation.

It is important that Congress passes laws to enhance the government’s powers rather than the Attorney General promulgating new regulations and policies through executive fiat. When Congress passes a law, various constituencies can effectively advocate their positions through elected representatives. Although Ashcroft had initially proposed sweeping powers of detention to Congress, most were watered down after they were deliberated in both the chambers of Congress, resulting in the USA Patriot Act.

We face difficult challenges ahead in apprehending the true perpetrators of the heinous crimes of September 11. While doing so, it must be realized that America is a nation of immigrants, with a constitution and due process rights, that protects them from arbitrary government intrusion. This is central to who we are as a country, and explains our success as a people and a nation to the rest of the world. We need to protect the rights of people that make up this diversity and reject the excessive measures instituted by Ashcroft’s Department of Justice.

About The Author

Cyrus D. Mehta, a graduate from Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration & Nationality Committee of the Association of the City Bar of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or