…With Liberty and Justice for All
Alfred P. Carlton Jr., President
American Bar Association
Next week, the Senate Judiciary Committee will take up one of the most controversial elements of the war on terrorism, the use of immigration laws as part of the investigations into the September 11th attacks. This hearing, called in response to a report on the systematic mistreatment of immigrants detained during those investigations, presents a vital opportunity for our nation to reexamine the use of immigration laws in the war on terrorism.
The report in question-issued not by a civil liberties watchdog, but by the Inspector General of the Department of Justice-is truly disturbing. It details the treatment of 762 foreign detainees swept up in the post September 11 investigations. In the process, it echoes many of the concerns expressed by the American Bar Association last August.
According to the report, many of these detainees were kept in lockdown 23 hours a day in cells lit at all times. They were denied access to counsel and their families. The government refused even to reveal their identities, and fought court orders requiring them to do so. After being unduly denied bond, most of the detainees were not released for months, even after it became clear that they had no connection to terrorism, because the Justice Department refused to release or deport them until they were cleared by the FBI. The clearance process, which should have taken a few days, took an average of 80 and as many as 244 days to complete.
As troubling as these findings are, they are but one piece of a larger pattern of abuse. In fact, one could argue that the systematic violation of these peoples' basic rights has been one of the most troubling casualties of the war on terrorism. In the last 21 months, those rights have been subject to sweeping changes that have chipped away at some of our most cherished principles. The right to a full, fair and open hearing, the right to have charges filed in a timely manner, the right to legal representation and to confidential conversations with counsel-these are but a few of the basic civil liberties being denied to immigrants.
September 11 changed a great deal about this country. It caused many of us to rethink the balance between personal liberties and national security, and rightfully so. But we must never forget that it is in times like these that the principles crafted by our Founding Fathers, the freedoms upon which our democracy is based, are most important.
Some have suggested that these problems do not represent an assault on our freedoms because they primarily affect immigrants. But this flies in the face of more than a century of court rulings. Most recently, the Supreme Court reaffirmed in 2001 (in Zadvydas v. Davis) that due process applies "to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."
The equality of this protection, the fact that every person who steps foot on our soil is protected by the Constitution, has been one of the great hallmarks of our democracy. Erode this freedom even slightly, and it easily crumbles completely.
Of course, while we must do everything we can to protect our nation from terrorism, we need not trample civil liberties in the process. There are plenty of lawful ways to detain and prosecute terrorists without impeding upon innocent peoples' liberties. These protections do not impede law enforcement, nor do they protect terrorists; they are simply intended to protect innocent people who have been wrongly accused.
Now that these problems have come to light, we have a responsibility to prevent future abuses. With law enforcement officials pledging to implement many of the Inspector General's recommendations, and with the Department of Homeland Security now responsible for enforcing immigration laws, we hope the government will promptly implement standards to ensure that these abuses end, and that we never again deny large groups of people the promise of the Pledge of Allegiance: "liberty and justice for all."