Un-American Activities

The Times of London last May published a letter to the editor from Tony Willoughby of Willoughby & Partners, a firm of solicitors. “The head of IT [information technology] at our law firm,” he wrote,

is a Muslim. He is a gentleman in every sense of the word. His fanaticism, if he has any, is restricted to cricket. Last Sunday he went on a business trip to California. On arrival at Los Angeles he was detained and interrogated on suspicion of being a terrorist….

For the first 12 hours he was refused access to a telephone. After 16 hours, not having been given any food, he asked if he could have some. He was given ham sandwiches and, when he explained that he could not eat pork, was told: “You eat what you are given.” He did not eat. He was eventually escorted back to the airport in handcuffs and deported.

Mr. Willoughby wrote to American officials seeking an explanation. He got back what he calls “a fobbing-off letter”—and his firm’s laptop computer, which had been confiscated at the airport. Its data had been wiped out.

That is a mild example, very mild, of what has happened to the US government’s treatment of aliens since September 11, 2001. Mr. Willoughby’s colleague was evidently picked out, treated with contempt, and denied entry to this country because of his religion and, possibly, his ethnic antecedents; his family came to Britain, decades ago, from Pakistan. But in a sense he was lucky. He was not detained for months in secret, prevented from calling a lawyer, humiliated and beaten by prison guards. All those things have happened to aliens swept off American streets at the order of Attorney General John Ashcroft.

The harsh treatment of aliens since September 11 has had little political attention. Relatively few Americans know or care much about it. In this powerful book, Enemy Aliens, David Cole shows why we should care, as a matter not only of humanity but of self-interest. He lays out the Bush administration’s policies in the way they can best be understood, in their impact on individual aliens. His tone is measured, his legal hand sure. He lets the facts speak, and the result is gripping. Cole gives the most convincing view that I have read of the legal and bureaucratic threats that now face immigrants and visitors to America. But then he goes on to make an even more important point. The repressive measures that President Bush and Attorney General Ashcroft first took against aliens are now being applied to citizens.

For the last two years more than 650 men and boys have been held in an American prison camp in Guantánamo Bay, Cuba. They were seized in Afghanistan and are described by the US as “illegal combatants” attached to the Taliban or al-Qaeda. The Third Geneva Convention, to which the United States is a signatory, provides that their status must be determined by a “competent tribunal.” But the Bush administration has declined to apply the convention or provide any independent process to check whether the prisoners were in fact fighting in Afghanistan or, as has been claimed for a number of them, were ordinary people just caught up in the fighting. Vice President Cheney said the prisoners were “devoted to killing millions of Americans.” But officials now concede that no leading figures in the Taliban or al-Qaeda are in Guantánamo. The prisoners have included boys as young as thirteen.

The Guantánamo detainees have not been allowed to consult lawyers. Efforts to bring habeas corpus actions on their behalf have been turned down by US courts on the ground that Guantánamo is not US territory. When an action was brought in British courts on behalf of a British citizen in Guantánamo, the Master of the Rolls, Lord Phillips, said, “We find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the US government on territory that the United States holds…under a long-term treaty.” He called it “objectionable” that a prisoner had no chance to challenge the legitimacy of his detention “before a court or tribunal.”

Donald Rumsfeld, the secretary of defense, said recently that the Guantánamo prisoners would be held until the war on terrorism is over—which may be years or decades from now. Some may be tried before military tribunals, he said, but “our interest is in not trying them and letting them out. Our interest is in—during this global war on terror—keeping them off the streets, and so that’s what’s taking place.”

The treatment of the Guantánamo prisoners may be regarded as an extreme in US policy toward noncitizens: they are held in indefinite detention, kept incommunicado and without access to counsel, with no hearing to determine whether they were in fact enemy combatants. But exactly the same is being done now to two American citizens, Yasser Hamdi and Jose Padilla.

Padilla was born in Brooklyn, was brought up in Chicago, became a gang member, and was convicted several times. In prison he converted to Islam. After travel abroad he was arrested at O’Hare Airport, Chicago, on May 8, 2002. He was flown to New York by Justice Department agents, who served him with a warrant as a material witness before a grand jury investigating the terrorist attack on the World Trade Center. A federal judge set a hearing on the warrant and appointed a lawyer for him, Donna Newman. But two days before the hearing, Padilla was flown to a Navy brig in South Carolina and held as an “enemy combatant.” There he remains.

For the last sixteen months Ms. Newman has been trying to speak with Padilla, her client. A federal trial judge decided that she should be able to do so for the limited purpose of getting any facts casting doubt on his designation as an enemy combatant. But the Justice Department objected even to that, saying that any contact with a lawyer might hurt the effort to extract information from Padilla by destroying the desired “atmosphere of dependency and trust between the subject and interrogator.” The case is now before the US Court of Appeals for the Second Circuit, in New York. A lawyer involved, not Donna Newman, told me it was “still hard to accept that we are having to argue that an American citizen, picked up at O’Hare Airport, has a right to see his lawyer.”

The Padilla case illustrates, Cole says, that “what we do to foreign nationals today often paves the way for what will be done to American citizens tomorrow.” In Padilla’s case and Hamdi’s, the transition came unusually fast. But it is virtually inevitable at some point, Cole argues: “The rights of all of us are in the balance when the government selectively sacrifices foreign nationals’ liberties.”

What citizens have to lose was made dramatically clear when, last February, a private organization, the Center for Public Integrity, published a leaked draft of Justice Department legislation called the Domestic Security Enhancement Act. The legislation would provide that any American who supports the activities (even peaceful ones) of an organization the government designates as terrorist presumptively loses his or her citizenship. The citizen would become an alien. The attorney general could order all such unfortunate souls—and all lawful resident aliens—deported if their presence in the country was inconsistent with our “national defense, foreign policy or economic interests.” It would be the most sweeping grant of unreviewable power to deport people since the ill-starred Alien Act of 1798, passed in a time of hysteria over French Jacobin terrorism, which authorized the President to deport “all such aliens as he shall judge dangerous.” That statute expired after two years.

The Domestic Security Enhancement Act, so-called, has never emerged as an official Bush administration proposal. But the fact that it reached the stage of a full draft says much about the state of mind of the Bush administration’s lawyers—and about the folly of believing that we citizens can remain safe while rights are systematically assaulted. I thought I followed these things fairly closely, but I did not really appreciate the scope of what the Bush administration has done to non-citizens until I read this book.

Soon after September 11, Attorney General Ashcroft began a program of mass detention of assertedly suspect aliens in the country, targeting mainly Muslims and Arabs. At first the Justice Department issued a weekly running total of the number detained. But when it reached 1,182, on November 5, 2001, the department went silent, refusing to disclose any numbers.

Secrecy pervaded this dragnet program. The names of those detained and the places of their detention were kept secret. On Ashcroft’s orders, all hearings before immigration judges on cases listed as of “special interest” to the anti-terror effort were closed. But in fact, Cole says, the government did not use classified information in the hearings. The detainees were almost all charged with technical violations of immigration law, such as a visiting student failing to inform the government of a change of courses. The real purpose of using the draconian measure of extended detention for such minor violations was to get people who Ashcroft’s agents thought might be terrorists off the streets and investigate them. Some were held for months, under degrading conditions.

Anser Mehmood, a Pakistani who had overstayed his visa, was arrested in New York on October 3, 2001. The next day he was briefly questioned by FBI agents, who said they had no further interest in him. Then he was shackled in handcuffs, leg irons, and a belly chain and taken to the Metropolitan Detention Center in Brooklyn. Guards there put two more sets of handcuffs on him and another set of leg irons. One threw Mehmood against a wall. The guards forced him to run down a long ramp, the irons cutting into his wrists and ankles. The physical abuse was mixed with verbal taunts.

After two weeks Mehmood was allowed to make a telephone call to his wife. She was not at home and Mehmood was told that he would have to wait six weeks to try again. He first saw her, on a visit, three months after his arrest. All that time he was kept in a windowless cell, in solitary confinement, with two overhead fluorescent lights on all the time. In the end he was charged with using an invalid Social Security card. He was deported in May 2002, nearly eight months after his arrest.

Mehmood’s saga is described in another book just published, Tainted Legacy, by William Schulz, the director of Amnesty USA.¹ The story exemplifies the Ashcroft program’s use of immigration law as a pretext for lengthy imprisonment.

Immigration law authorizes detention of aliens in deportation cases to make sure they can be deported if that is ordered; it gives officials no power to hold someone for investigation. In the Ashcroft program, many aliens were held for months after they were ordered deported or even, in some cases, after they agreed to leave. Using the immigration process to hold people in this lawless way had the advantage, from Ashcroft’s point of view, that immigration detainees do not have the right to appointed counsel that is guaranteed to poor defendants in criminal cases. Eighty percent of immigration detainees have no lawyers.

It may seem hard to believe that aliens with no connection to terrorism were held so arbitrarily or treated as badly as Anser Mehmood was. But that picture was confirmed by a highly critical report published last June by the Justice Department’s inspector general. The report said FBI agents, in detaining aliens in the sweep after September 11, had made little effort to distinguish real terrorist suspects from men picked up by chance. It found that many had been left to languish for months, in unduly harsh conditions, and without access to lawyers or family members. The inspector general, Glenn A. Fine, told the Senate Judiciary Committee that his investigators had particular concerns about verbal and physical abuse suffered by detainees at the Metropolitan Detention Center in Brooklyn. Guards, he said, slammed inmates against the walls and told them, “You’re going to die here.” The inspector general’s report said the guards there discouraged access to lawyers in an ingenious way. They told the detainees they could make a “legal telephone call” once a week, and informed them of the time for a call by asking a prisoner “Are you O.K.?” That was supposedly shorthand for “Do you want to make a legal call this week?”

Another Ashcroft program required visitors from twenty-five countries, all predominantly Muslim except North Korea, to register and be fingerprinted on arrival, and to report back to the authorities in forty days. A prominent Pakistani editor, Ejaz Haider, ran afoul of this rule. Invited to Washington by the State Department, he was given an office in the Brookings Institution. He was walking into the building one day when two armed men in plainclothes stopped him. They said they were government agents and were taking him to jail because he had failed to report after forty days. (Haider said the State Department had told him he did not have to.) But he was lucky. The director of Brookings’s South Asia program, Stephen Cohen, intervened. He got word to the foreign minister of Pakistan, who happened to be in Washington that day and was a friend of Haider’s; he took the matter up with Ashcroft and Secretary of State Colin Powell, and Haider was released. Others, without those high contacts, would have been detained and deported. Stephen Cohen said, “I never thought I’d see this in my country: people grabbed on the street and taken away.”

As of last May, 2,747 aliens had been detained under the special registration program that nearly ensnared Ejaz Haider. Putting them together with those picked up in the first Ashcroft program after September 11, and with another special detention effort, Cole estimates that at least five thousand people have been detained. Four have been charged in connection with terrorism; of those, two were acquitted, one pleaded guilty, and one was convicted of support of unspecified terrorism.

That immigration law should have been misused as a pretext for preventive detention has a certain historical logic to it. The processes of American immigration law have long been marked by arbitrariness. And the Supreme Court has declined to impose constitutional restraints on some injustices that it would surely condemn elsewhere in the law, reasoning that the Constitution gives Congress “plenary power” over immigration. The Court has allowed Congress to impose what amounts to ex post facto law against aliens, making lawfully admitted immigrants deportable for conduct that was not grounds for deportation when they engaged in it. The Immigration Act of 1996 made all kinds of past criminal offenses, many of them minor, grounds for deportation. Mary Anne Gehris, who was brought to this country as an infant and then lived for decades in Georgia, was arrested for pulling another woman’s hair in a dispute over a boyfriend. She pleaded guilty. Years later she was served with a deportation order for that offense.

Mary Anne Gehris was saved from deportation when her case was publicized; the Georgia Board of Pardons and Paroles pardoned her, commenting that it thought the federal government had better things to do, and the Immigration Service backed off. Many others have been removed from the country, and from their families, for offenses committed before the 1996 act was passed.

David Cole is an ideal person to write about the treatment of aliens because he is a master of the history of immigration law as well as its current applications. A professor at the Georgetown University Law Center, renowned for his teaching of constitutional law, he is also intensely active as a lawyer in immigration and constitutional matters. His role in leading cases goes back to the flag-burning cases in the Supreme Court in 1989 and 1990. His immigration work, at trial and on appeal, has given him painful lessons in the relentlessness of the government when it targets aliens. For example, government lawyers have tried for years to use secret evidence in deportation cases, arguing that disclosure would endanger national security. Cole has represented thirteen clients against whom the government tried that tactic. In several cases judges had decided against the alien but ordered the secret evidence disclosed. Each time it turned out to be little more than guilt by association; the alien was able to answer, and the judges changed their minds. Other judges found the use of secret evidence unconstitutional.

But that was before September 11, 2001. Since then, judges have been more amenable to the use of secret evidence in immigration cases. One court, the US Court of Appeals for the Third Circuit, volunteered that it was “not inclined to impede investigators in their efforts to cast out, root and branch, all vestiges of terrorism in our homeland.”

The use of secrecy by the government to seek legal advantage has of course not been limited to immigration matters. One extraordinary example of secrecy is the provision of the USA Patriot Act that empowers government agents to subpoena any person’s records at a university, telephone company, bookstore, or public library simply by certifying that the records are needed for an investigation of international terrorism. The act also makes it a crime to inform the customer or patron about the subpoena, or tell anyone else. Timothy Lynch of the Cato Institute has observed that it would be an offense to write to a newspaper about such a subpoena or telephone your Congressman. So far the act has not been challenged in court, and it remains unclear whether the provision would be found to violate the First Amendment’s guarantee of freedom of speech and press.

The Cato Institute is a libertarian group, often identified with conservative positions on taxation and government programs generally. The American Civil Liberties Union, the Center for Constitutional Rights (with which David Cole is associated as a lawyer), and other longtime opponents of repressive government measures are no longer alone in criticizing President Bush and Attorney General Ashcroft on post-9/11 policies. Some on the right have become strong critics, questioning provisions of the Patriot Act in particular.

The requirement that public libraries have to tell the government about their patrons’ reading habits has aroused what is probably the most outrage. John Ashcroft was so irritated by criticism of the provision that he recently mocked and condemned the American Library Association, one of the critics, for what he called “baseless hysteria.” The association and other critics, he said, believe the FBI “wants to know how far you have gotten on the latest Tom Clancy novel.” Ashcroft later announced that the FBI had so far made no use of the library provision. But a number of public libraries around the country (including my own in West Tisbury, Massachusetts) have stopped keeping records on who borrows what books. They no doubt believe that Section 215 means what it says and may be used in future.

The public’s hostile reaction to spying on library patrons supports one of David Cole’s premises: that Americans are much more sensitive to concerns about civil liberties when citizens are the target of government action. Ashcroft’s TIPS program to have private citizens spy on their neighbors was quickly overruled by Congress.

The Patriot Act, rushed through Congress after September 11, before members even had a chance to read it, would not have passed in its present form, I believe, if Americans had understood how it might affect them. But there is, as Cole says, a double standard. We pay much less attention when the government says it is only aiming at noncitizens. But they come next for citizens, to paraphrase Pastor Niemoller, and what has been done to aliens makes action against citizens thinkable.

On November 13, 2001, President Bush issued an order providing for military commissions to try noncitizens suspected of terrorism or harboring terrorists. (So far, no such trials have taken place, but there have been reports that some of the Guantánamo prisoners may be tried by military commissions.) The order had no application to American citizens: a provision that doubtless muted any critical public reaction. But there is no prohibition against extending it to citizens—not in law or in the practice of the administration.

The imprisonment of two citizens without trial as enemy combatants points the way to such an extension. In the Hamdi and Padilla cases government lawyers have relied on a precedent: the Supreme Court’s 1942 decision in Ex parte Quirin, upholding the conviction by military commission of Nazi saboteurs landed on our shores by submarine. One of those saboteurs was an American citizen, the government argues, so there is no bar to special measures against citizens in wartime.

The detentions of Padilla and Hamdi as “enemy combatants” are also reportedly being used to give leverage to government lawyers so they can exert pressure in other matters. The reports are that lawyers for some people facing criminal charges related to terrorism are being told that if their clients do not plead guilty, they may be transferred to military jurisdiction and held as enemy combatants. That would be a rather effective inducement to plead guilty: Who would choose indefinite detention in solitary confinement without trial rather than a term in an ordinary prison?

A similar possibility exists in the prosecution of Zacarias Moussaoui, a French citizen who is charged with conspiring with al-Qaeda in the September 11 attacks. Moussaoui has asked to take the depositions of several top al-Qaeda figures who are being held by the American military, asserting that they would exculpate him. Over strong government objections, federal district judge Leonie M. Brinkman in Alexandria, Virginia, ordered the depositions to go ahead. The government refused to provide access to the al-Qaeda prisoners, and the judge may now sanction the government by, for example, dismissing the indictment of Moussaoui. A dismissal can be appealed. If it stands, the government has hinted that it will drop the criminal prosecution in a regular court and try Moussaoui before a military commission, which would be expected to deny an application to interview the al-Qaeda prisoners. If so, the commissions would be shown, graphically, to be unable to protect a most basic right of a defendant—the right to produce exculpatory evidence.

What hope is there of effective resistance to the Bush administration’s attacks on civil liberties? Resistance can come from Congress, from the press and public, and from the courts. In all those there are at least stirrings, signs of unease about where the country is being taken.

A Congress under Republican control is naturally reluctant to tangle with President Bush, not least on terrorism. And Bush is still pressing for sweeping legal authority, asking Congress the other day for amendments to the Patriot Act to let federal agents demand private records, and compel testimony, without the approval of a judge or even a federal prosecutor. Members may be reluctant, too, to disagree with John Ashcroft, who does not hesitate to play the treason card against critics. Not long after September 11 he said that “those who scare peace-loving people with phantoms of lost liberty…only aid terrorists…. They give ammunition to America’s enemies, and pause to America’s friends.” But there are some regrets about the breadth of the Patriot Act on Capitol Hill, some new concerns about civil liberties among Republicans as well as Democrats.

The press seemed to some of us to be in a kind of stunned silence for a period after September 11. But some reporters are asking questions now, and writing about some of the injustices imposed in the name of fighting terrorism. Books on the subject of threats to freedom are appearing in considerable numbers.²

The courts present an uncertain picture to date: one federal appeals court strikes down the Ashcroft policy of secret deportation hearings, for example, and another upholds it. Probably the most important decision has come from the conservative Court of Appeals for the Fourth Circuit, in the Hamdi case. The court upheld Hamdi’s indefinite detention without counsel as an enemy combatant, emphasizing that Hamdi, unlike Padilla, was arrested on the battlefield in Afghanistan. The opinion said the case of an American citizen arrested inside this country—Padilla’s case—would present very different issues.

Courts are traditionally reluctant to stand up to the executive branch when military and security questions are involved. Hugo L. Black, the great libertarian justice, wrote the Supreme Court’s opinion in 1944 in Korematsu v. United States, upholding the removal of Japanese-Americans from the West Coast and their confinement in desert camps because the military feared—wrongly—that they might be disloyal. The difference is that the war on terrorism, unlike all the other wars that have set back civil liberties in America, is endless in prospect. We cannot foresee a moment when the government will apologize for the injustices it imposed, as it finally did to the Japanese-Americans. Judges might take that as a reason to step in now. The organized bar has begun to speak out firmly against such policies as the detention without trial or counsel of supposed enemy combatants.

None of us should underestimate the pressure on President Bush and his people after September 11 to prevent another terrorist attack on this country. For all our concern about ethnic stereotyping, it was all but inevitable that officials would focus on aliens in this country who came from backgrounds similar to those of the September 11 terrorists. What was not inevitable—not necessary—was that officials should act in an arbitrary, even lawless way.

Commitment to law has been the great secret of America’s rise to wealth and power, and a main reason for the world’s admiration of our system. Law binds us all, great and small: so we believed. The Bush administration’s abandonment of legal norms—the disregard of the Geneva Convention in Guantánamo, the order for trial by military commissions—has cost us dearly not only in our own values but in the world’s estimate of us. At a moment when we need allies around the world to join us in resisting terrorism, we have made too many think we are not really committed to law.

That is the ultimate argument of David Cole’s remarkable and fascinating book. We must respect the humanity of aliens lest we devalue our own. And because it is the right thing to do.