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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.

  1. 1

    Tainted Legacy: 9-11 and the Ruin of Human Rights (Thunder’s Mouth, 2003).

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