June 19, 2006
The Mercury News

Court Decision Strips Foreigners' Rights

'In essence, he authorized a repeat of the Japanese internment'

by David Cole

"What will they do to us if there is another attack? Will they intern us like they interned the Japanese?"

That is the most common question I get when speaking about counterterrorism policies and civil liberties to Arab and Muslim audiences. Until Wednesday, I assured them that such a response was unthinkable. The Japanese internment during World War II is so widely recognized as morally, legally and ethically wrong, I told them, that it could not possibly be repeated.

But after a decision by a federal judge in New York, I'm no longer confident that I can be so reassuring. Dismissing a case challenging the detention of Arab and Muslim foreign nationals in the weeks after Sept. 11, U.S. District Judge John Gleeson ruled that it is constitutionally permissible to round up foreign nationals on immigration charges based solely on their race, religion or country of origin. What's more, he said they can be detained indefinitely, even after they have agreed to be removed to their home countries.

In essence, he authorized a repeat of the Japanese internment -- as long as the internment is limited to foreign nationals charged with visa violations (a group that at last count numbered about 11 million people).

The case, Turkmen vs. Ashcroft, was filed on behalf of Arab and Muslim foreign nationals swept up on the pretext of immigration charges in the weeks after Sept. 11. Many initially were arrested on no charges at all -- only to be served with immigration papers days, weeks or sometimes months later. All were arrested in secret and hundreds were tried in closed hearings that even their family members were not allowed to attend. . . .

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DAVID COLE, a law professor at Georgetown University and a volunteer attorney with the Center for Constitutional Rights, was co-counsel to the plaintiffs in Turkmen vs. Ashcroft. He wrote this article for the Los Angeles Times.

Joe W. (Chip) Pitts III, "Tough Patriot Act Followed by 40 Nations," Washington Post, September 14, 2003

Suzanne Goldenberg, "More Than 80,000 Held by US Since 9/11 Attacks," Guardian, November 18, 2005

Editorial: "The Abuse Can Continue: Senators won't authorize torture, but they won't prevent it, either," Washington Post, September 22, 2006

[Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts.--Editorial: "Rushing Off a Cliff," New York Times, September 28, 2006]

R. Jeffrey Smith, "Many Rights in U.S. Legal System Absent in New Bill," Washington Post, September 29, 2006

Martha Mendoza, "1 Man Still Locked Up From 9/11 Sweeps," Associated Press, October 14, 2006

Scott Horton, "Pulitzer Prize-winning Photojournalist Completes One Year in U.S. Military Custody in Iraq," Harper's Magazine, April 12, 2007

David Cole, "Less Safe, Less Free: Why America Is Losing the War on Terror," New Press (February 2, 2009)

[ . . . take the government's aggressive focus on Arab and Muslim immigrants in the wake of the 9/11 attacks. By its own accounts, it locked up over 5,000 foreign nationals in preventive detention in the first 2 years after 9/11, sought out 8,000 Arab and Muslim men for FBI interviews, and called in 80,000 Arab and Muslim foreign nationals for special registration, fingerprinting and photographing. The idea was that we might find a terrorist. But the government's record in this regard is 0 for 93,000. Not one of these men has been convicted of a terrorist offense.

Q. But doesn't the government claim that it has indicted over 400 people in terrorism-related cases and convicted over 200?

A. It does, but those statistics are misleading. First, none of them are those foreign nationals that we referred to above. Second, the vast majority of these cases actually had no terrorism charge at all - they mostly involve minor charges of credit card fraud and the like. The Justice Dept's own Inspector General found that the statistics were misleading and that many cases had no terrorism ties whatsoever. The Washington Post and New York Times looked at all these cases and found that only 39 individuals were convicted of any terrorism charge. And virtually all of them were for the crime of "providing material support" to a proscribed organization, not for engaging in or conspiring to engage in any kind of actual terrorism.--"Questions and Answers for David Cole and Jules Lobel"]

[In a harshly worded ruling handed down Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals called the government's use of material witnesses after Sept. 11 "repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."

. . . "Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world," Judge Milan D. Smith Jr., for the majority. "We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history."--"Court Says 9/11 Witnesses Can Sue Ashcroft: Former Student Filed Lawsuit Claiming Civil Rights Were Violated," Associated Press, September 4, 2009]

[The suit charges that the detainees were kept in solitary confinement with the lights on 24 hours a day; placed under a communications blackout so that they could not seek the assistance of their attorneys, families, and friends; subjected to physical and verbal abuse; forced to endure inhumane conditions of confinement; and obstructed in their efforts to practice their religion.--William Fisher, "Ashcroft's Post-9/11 Roundups Spark Lawsuit," antiwar.com, September 28, 2010]