BOSTON, Oct. 29 (UPI) -- The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct terrorism, or USA Patriot Act signed by President George W. Bush late Friday, contains measures that should give civil libertarians pause.
In its immigration-related provisions, the act continues a pattern of targeting Arab and Muslim non-citizens that began in the 1980s. Placed inside the context of of prior laws and policies, the continuing threat to the civil liberties of Arabs and Muslims can readily be seen.
Two points of particular concern are the expanded definition of a terrorist organization and the culpability for associating with such an organization, and the grant of new authority for indefinite immigration detention.
The major problem with these provisions -- as, indeed, with much of the act itself -- is its serious encroachment of Constitutional protections, particularly those under the First Amendment.
The first provisions permit detention and deportation of non-citizens providing assistance to groups designated by the Secretary of State as "terrorist organizations."
Further, the act expands provisions of the 1996 legislation establishing the authority for the Secretary of State to make such designations and to detain and deport individuals for supporting such groups.
The Patriot Act goes further than existing law. Under its provisions, the secretary of state can designate any group that has ever engaged in violent activity a terrorist organization including groups like Greenpeace or Operation Rescue.
Associating with designated groups makes non-citizens ineligible to enter the United States and deportable if they are already here. This is problematic under due process and First Amendment guarantees.
Under the act, an individual can be deported if they did not know the group was designated as a terrorist organization, and whether any assistance provided pertained to alleged terrorist activity.
More serious is the provision giving the INS authority to detain an individual indefinitely, even if the person has prevailed in his underlying claim for immigration relief.
Arabs and Muslims were already singled out under successive terrorist organization provisions of prior immigration law. Since the 1980s, they have been the focus of provisions in the law for detention and deportation on the basis of guilt by association.
The longest-running guilt-by-association case is the "LA-8" case (American-Arab Anti-Discrimination Committee v. Meese), now heading into its 15th year, although it has been before the United States Supreme Court. In 1999, with Justice Antonin Scalia writing for the majority, the court ruled that the provisions of a 1996 law speeding up the immigration process and taking it away from the federal courts could not be reviewed by the federal courts.
It began with the highly-publicized arrests of seven individuals of Palestinian origin and one Kenyan. FBI and INS agents arrested the eight in their homes, workplaces and schools, and placed them in maximum security jails. The charge against them was that they were affiliated with a group that advocated terrorism.
Within a month, the immigration judge hearing the case ordered all eight released from custody because the INS refused to disclose the evidence it claimed proved their terrorist affiliations.
In the ensuing years, as this case has wound its way through the courts, the case against them has been shown to be nothing more than that they read or distributed pro-Palestinian literature.
However, the substance of the charges was undisclosed for years because the INS proceeded to litigate its case on the basis of evidence it refused to divulge to the LA-8 or their counsel, a practice that has since become known as using secret evidence.
Since the LA-8, the INS brought at least two dozen additional cases to detain and deport non-citizens on the basis of secret evidence.
In these 24 cases, the targets are all Arabs or Muslims.
The INS has spent hundreds of thousands of dollars litigating claims that the individuals were so dangerous and the nature of the evidence against them so classified that it could not reveal or release it.
Every federal court that has been able to review the use of secret evidence to deport has found it unconstitutional. Moreover, when evidence was finally produced, it has turned out to be fraught with errors, hearsay, bias, innuendo -- to say the least. Those charged remained in detention for anywhere from one and one-half years to four years during the litigation process. All of the individuals whose cases have concluded were exonerated.
Congressional efforts to repeal the use of secret evidence did not succeed before the Patriot Act passed, making the threat to Arab and Muslim civil liberties more serious. The act, which provides for indefinite immigration detention and the use of secret evidence to detain and deport, reinforces and expands upon the worst aspects of the status quo.
[Susan M. Akram is Associate Professor at Boston University School of Law, teaching immigration and refugee law, and is co- counsel for Anwar Haddam, one of the secret evidence defendants].
