Of all the new security measures adopted by the Bush administration since September 11, the most draconian involve the detention and interrogation of aliens. In his dragnet effort to uncover evidence of terrorism, Attorney General John Ashcroft has authorized the detention of some 1,100 noncitizens. Some have been held for months and--thanks to recently passed legislation--may be held indefinitely. Critics call the Ashcroft detentions unconstitutional. "We have violated core constitutional principles," says David Cole of Georgetown University Law Center, pointing to new laws and regulations that allow the government to detain aliens without bail; deport or exclude them because of their political associations; and eavesdrop on their conversations with their attorneys.
Some of these measures may indeed violate principles of procedural fairness, free speech, and privacy. But they don't violate the Constitution. Over the last 50 years the Supreme Court has imposed few constitutional restraints on the ability of Congress and the president to detain, exclude, and deport aliens in ways that would be grossly unconstitutional if applied to citizens. As a result, Ashcroft has virtually unlimited legal discretion in his treatment of aliens. But that doesn't mean he shouldn't be stopped; only that judges aren't the people to stop him. Although it may be difficult in the current environment, our elected representatives in Congress are the only officials authorized to determine the fate and defend the interests of mistreated aliens. It's a role Congress has been reluctant to play in the past. But Congress may be the only hope we've got.
The most sweeping of the laws and regulations passed in the wake of September 11 are those that authorize the indefinite detention of aliens whom Ashcroft designates as suspected terrorists. Most significantly, on November 14, the Immigration and Naturalization Service adopted a regulation allowing the detention of aliens whom the government wants to deport but no other country will admit. If the attorney general, in consultation with the State Department, believes that their cases raise significant "national security or terrorism concerns," the aliens can be locked up indefinitely.
The regulation is an attempt to respond to the Zadvydas case, decided by the Supreme Court last June. Before then, the Court had repeatedly held that Congress has virtually unlimited power to deport, exclude, or detain immigrants at the border. In Zadvydas, however, Justice Stephen Breyer, writing for the 5-4 majority, held that in the 1996 immigration reform act, Congress hadn't intended to authorize the indefinite detention of aliens who couldn't be deported because their home countries wouldn't allow them back. (In fact, Congress probably had intended to authorize the detentions; Breyer stretched the language of the law to avoid a constitutional conflict.) But even though Breyer intervened on behalf of aliens' rights, his opinion included an important loophole: It stressed that Congress and the president might have more leeway to detain aliens indefinitely in cases involving "terrorism or other special circumstances where special arguments might be made for forms of preventative detention and for heightened deference to the judgments of the political branches with respect to matters of national security."
The new INS regulations exploit this loophole for all it's worth. They allow John Ashcroft and Colin Powell unilaterally to detain any deportable alien whose release would have "serious adverse foreign policy consequences," in the government's opinion. And although the regulations give the government tremendous discretion to define a foreign policy crisis, it's hard to imagine that the Supreme Court would raise constitutional objections. This is particularly true in light of the USA Patriot Act, passed in October, in which Congress explicitly authorized the attorney general to detain "suspected terrorists" indefinitely in special circumstances. This time, there's no ambiguity about congressional intent.
Another element of the USA Patriot Act allows the deportation not only of convicted terrorists, but of any alien who provides financial support to a "terrorist organization," broadly defined as a group of people who threaten to use weapons. "I would guess that somebody who writes a check to the organizations that raise money for the IRA might be brought within this," says Peter Schuck of Yale Law School. "That's troubling, but it's hard to see how it could be more precisely defined." Schuck suggests that judges might interpret the law to say that the IRA contributor can't be convicted as a terrorist unless he knows more about how the IRA operates than it takes to write a check. But once again, it's a mistake to rely on the courts: In the past, the Supreme Court has been extremely deferential to Congress in cases involving the deportation of unpopular aliens.
In the 1950s, for example, Congress passed the McCarran-Walter Act, which allowed the government to exclude and deport aliens who advocated communism. The Supreme Court upheld the attorney general's right to deport aliens who were members of the Communist Party, suggesting that Congress has the right to treat aliens in ways that would violate the First Amendment if applied to citizens. The Court held that an alien couldn't use his lack of knowledge about the Communist Party's goals as a defense. It also held that aliens could be detained without bail while the government decided what to do with them. These cold war precedents may doom any legal challenges to a regulation issued by the INS in October allowing the Justice Department to lock up aliens while appealing an immigration judge's decision to release them on bail.
The Patriot Act also authorizes Congress to exclude from the United States any aliens who "endorse or espouse terrorist activity" or who "persuade others to support terrorist activity or a terrorist organization." In 1953 the Supreme Court upheld similar exclusions. In a famous case, a Romanian alien named Mezei, who had lived in the United States for 25 years, went home to visit his dying mother; when he tried to return, he was detained on Ellis Island for almost two years on grounds that his admission would be "prejudicial to the public interest." The Supreme Court held that he wasn't even entitled to judicial review of the decision not to release him on bail. Harry Kalven, the great First Amendment scholar at the University of Chicago, summed up the Court's attitude toward exclusion and deportation of suspected Communists this way: "The rule was that there were absolutely no limits on the power of Congress to exclude aliens. Neither inhibitions against gross racial discrimination, against interference with freedom of speech and association, against breaking up the family, nor restraints dictated by notions of basic procedural fairness could stay the hand of the government."
All this would be easier to swallow if the government had to prove that the aliens it was indefinitely locking up really did threaten national security. Unfortunately, because deportation hearings are considered civil--not criminal--proceedings, immigrants have none of the rights available in criminal trials: to appointed counsel, to the exclusion of illegally seized evidence, to have the government prove their dangerousness beyond reasonable doubt.
A detained alien does have the right to a lawyer--if he can afford one. But in his most appalling decision of all, Ashcroft has undermined this right as well. On October 30 the attorney general approved a rule allowing federal agents to eavesdrop on conversations between federal inmates and their lawyers whenever "reasonable suspicion exists to believe that an inmate may use the communications with attorneys ... to facilitate acts of terrorism." Even though an inmate's conversation with his lawyer can't be used against him by a criminal prosecutor, the presence of federal monitors will severely inhibit the ability of detainees--innocent as well as guilty--to speak candidly with their lawyers and receive necessary legal advice.
The Ashcroft rule isn't only an egregious incursion on privacy--it will also bring little in the way of increased security. After all, lawyers already can't help their clients commit new crimes, and they have an ethical obligation to report threats of terrorism or violence. Under the so-called "crime/fraud exception" to the attorney-client privilege, if the government has probable cause to believe that a client is using a lawyer to advance an illegal scheme, it can get a court order or even set up a sting operation. Moreover, as Akhil Reed Amar of Yale Law School suggests, there are less-intrusive ways of ensuring that the most dangerous suspects don't use their lawyers to further terrorist schemes: Lawyer-client conversations could be videotaped and reviewed by impartial judges, for example, rather than by partisan government lawyers.
But although the Ashcroft eavesdropping scheme is unnecessary and indefensible, it doesn't violate the right to counsel. The Sixth Amendment protects the attorney-client privilege only in a criminal prosecution, while most of the aliens who will have their conversations spied on by John Ashcroft will never be charged with a crime.
If the courts won't protect aliens from John Ashcroft, who can? The answer, for better or worse, is Congress. The Bush administration has shown little restraint in the domestic war against terrorism. And like any risk-averse federal agency, the INS is resorting to dragnets to protect itself against the charges of negligence that will inevitably follow if more aliens commit terrorist acts. As Schuck suggests, Congress should carefully oversee the Justice Department's enforcement of the new laws and regulations authorizing the detention of aliens. The Constitution, after all, gives Congress, rather than the president, plenary authority over immigration. One of the many unfortunate features of Ashcroft's decision to permit eavesdropping on attorney-client conversations is that it was announced without consulting Congress. Vermont Senator Pat Leahy is sufficiently exercised by Ashcroft's failure to consult Congress on a range of issues, including the establishment of military courts, that he has scheduled oversight hearings. If Congress remains jealous of its prerogatives to determine the fate of aliens, perhaps its oversight will restrain an administration unwilling to restrain itself.
Unfortunately, history does not offer much cause for optimism. "The communist deportation cases supply almost experiment evidence of how little Congress itself is disciplined by the traditions of political tolerance," wrote Harry Kalven. "They suggest that Congress, when freed from constitutional restraints, will pursue the logic of security relentlessly."
In an even more famous abdication, Congress failed to object to the detention of Japanese-Americans during World War II. It took 43 years for Congress to recognize its error. The Civil Liberties Act of 1988 issued an apology and $20,000 to each of the Japanese-American citizens and resident aliens interned during World War II. "We know we're going to regret this," says Alex Aleinikoff, a former general counsel of the INS under President Clinton. "Probably now is the time we should be saying to the detained aliens, 'We know we're taking something from you and we should pay you later.'" Better yet, of course, would be not to detain them unreasonably in the first place.