In the roiling wake of Sept. 11, 2001, U.S. Attorney General John Ashcroft vowed to marshal the full might of the federal government to root out “the terrorists among us.” The roundup that followed, conducted with wartime urgency and unusual secrecy, led to the detention of at least 1,100 people suspected of having ties to terrorist groups.
The government’s effort, however, has produced few, if any, law enforcement coups. Most of the detainees have since been released or deported, with fewer than 200 still being held.
But the campaign sparked fiery demonstrations by immigrant rights groups, including several in Chicago, and provoked a sprawling legal battle that is redefining the delicate balance between individual liberties and national security.
At issue is the key question lawmakers have been grappling with since the terrorist attacks: Just how far can America go in the name of protecting itself? The interests of national security, the debate goes, must be weighed against constitutional guarantees, the safety of 280 million citizens squared against the rights of a few, or a few thousand, individuals.
Thus far, the Bush administration’s approach on this issue has been clear: It hasn’t let civil liberties concerns stop in its tracks as it vigorously enforced immigration law—to conduct what the attorney general termed a “preventative campaign of arrest and detention.”
The strategy has raised the ire of many critics, who charge that the government is exploiting the immigration system to conduct investigations that disregard the rights normally guaranteed in criminal proceedings.
“There’s no question that immigration laws were used as a pretext for holding people while the government was figuring out what to do with them,” said Tim Payne, an attorney who chairs the Chicago chapter of the American Immigration Lawyers Association. “In the criminal context, you can only hold somebody for so long before charging [him or her] with a crime. But, if you got somebody who had an immigration violation, then the government can hold them much longer.”
Government officials say they have strictly enforced the law—but not exceeded it.
“We have done everything within the bounds of our statutory authority,” said Jorge Martinez, spokesman for the U.S. Justice Department. “These individuals have violated our immigration laws, and we have the authority to arrest and detain them—plain and simple.”
According to Justice Department figures released last month, federal agents held 765 of the post-Sept. 11 detainees on immigration charges. Another 134 people were charged with relatively minor crimes not directly linked to terrorism.
Critics question whether there was sufficient evidence to justify many of the arrests. Most cases, they say, involved Arab or Muslim men who were arrested in fairly haphazard ways—at traffic stops or through tips from suspicious neighbors, for example.
Nonetheless, their claims have not been tested in court. When immigration lawyers have contested the detentions, the government has exercised its broad powers to deport. And when a detainee leaves the country, the legal challenge is automatically dropped.
As a fallback strategy, lawyers have fought rules requiring that the cases be heard in secret and leveraged those challenges into attacks on what they call unconstitutional “preventive detentions.”
The government, however, asserts that immigration hearings are not really trials but are merely administrative hearings that can be closed at will.
Critics say the difference is purely cosmetic. “The consequences of any such proceeding are detention and deportation, which are as severe as any criminal sanction,” said Fred Tsao, immigration and citizenship director at the Illinois Coalition for Immigrant and Refugee Rights.
In an affidavit submitted in several court cases, the government outlined another reasoning behind the secrecy: “Bits and pieces of information that may appear innocuous in isolation … will allow the [terrorists] to build a picture of the investigation and to thwart the government’s attempt to investigate and prevent terrorism.”
So far, some courts have stopped short of endorsing the government’s rationale.
In August, for example, a U.S. appeals court ruled that Detroit’s newspapers had a right under the First Amendment to cover a bond hearing for Rabih Haddad, a Muslim cleric from Ann Arbor, Mich. Haddad co-founded the Global Relief Foundation, a Muslim charity based just outside Chicago, in southwest suburban Bridgeview.
The U.S. Court of Appeals for the Sixth Circuit stressed, however, that the case dealt only with whether the hearings can be closed to the public, not whether the government could detain or deport Haddad, who’s charged with overstaying his tourist visa.
Noel Saleh, a Detroit attorney who represented Haddad, said his client’s predicament was a somber case study of what is wrong with America’s immigration system.
“Unfortunately, the system has always been used as a political tool—a convenient way of getting rid of people without having to prove anything,” he said.