US IMMIGRATION

It is quite understandable that in the aftermath of terrorist attacks on a nation, that the government would take the necessary measures to ensure its people’s security. It is therefore imperative for society to recognize that what may be unreasonable in time of peace and security may be reasonable in time of war and fear. But how far should our leaders go to ensure our safety? It is in this light that close examination of the USA Patriot Act should be seen. This Policy taken in the name of homeland security can easily be regarded as unconstitutional in nature. It is quite evident that this Act undermines the very ideals on which American democracy is built. In fact these policies are limited on many levels and do not necessarily achieve the objective of preventing terrorism; rather it imposes limitations on civil liberties. And it is these limitations, which widely affect our entire society and its people, ranging from our immigrants to our own US born citizens. This paper hopes to give insight on where some of these attacks on our constitution exist. An attack that has left almost no element of lives and its guaranteed freedoms untouched.

Immigrant rights have repeatedly been infringed on since September 11 because of the discriminatory nature of the “USA Patriot Act”. For instance, Section 412 of the Patriot Act permits the attorney general of the United States to detain aliens he merely assumes are threats to national security for up to seven days without bringing charges (CCR 11). Interestingly enough, in the event that the immigrant is charged with “any” crime he/she can be held for a period of indefinite detention. This “limitless” period of detention is maintained regardless of whether the charge is of a terrorist nature or not. Which means that even a minor visa violation is held as a justifiable reason for detention under the Patriot Act. This is a clear violation of the Eight Amendment, which prohibits cruel and unusual punishment such as indefinite detention (Bergen). Furthermore, this section also defies the provisions of the Fourteenth Amendment, which is entitles all persons within the US (including non-citizens) to the due process and the equal protection of the laws (ACLU).

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Critics like David Cole of Georgetown University Law Center, regard the Ashcroft detentions as unconstitutional. Cole expressed his feelings toward the policy by declaring that, "we have violated core constitutional principles, …" (Rosen 2). For example, the case where more than 1000 immigrants were detained after 9/11 without any probable cause to justify their detention was clearly inconsistent with the constitution. According to a Report issued by the Center for Constitutional Rights concerning the “State of Civil Liberties” after 9/11, “…detainees were held without being told of the reason for their detainment. Of 718 cases the government had disclosed, 317 were brought before a judge more than the mandated limit of 48hours after arrest (CCR 12).” This is a clear violation of the liberties of immigrants and is discriminatory in its every essence. In a similar light the article goes on to declare that, “…Thirty-six individuals were provided hearings more than 27 days after arrest, 13 after more then 40days, and 9 after 50days. In at least one case, a detainee did not see a judge until 119 days after being taken into custody (CCR 12).”

In addition to this Section 412 of the Act denies detained immigrants the important rights of access to appointed counsel and lawyer-client privilege (Cassel). These infringements on immigrant rights are highlighted in the Center for Constitutional Rights, Senior Litigation Attorney- Nancy Chang’s analysis of the Patriot Act. Chang declares that evidentially, “Section 412 does not direct the Attorney General either to inform the immigrant of the evidence for which they are being detained, or to provide the non-citizen with an opportunity to contest that evidence at an Immigration Judge hearing or other

administrative review procedure (Chang 8).” These provisions significantly erode due process rights guaranteed to non-citizens under the Fifth Amendment. According to the aforementioned report issued by the Center for Constitutional Rights, post 911 “detainees were sometimes subjected to coercive and involuntary interrogations, and many were not advised of their right to retain an attorney (CCR 12).” These practices violate a fundamental principle of our judicial system – that no person should be subjected to arrest and imprisonment without reason, explanation, and due process of law.

The Patriot Act doesn’t only trample on the rights of immigrants; it also contains unconstitutional elements that infringe ‘Native American’ civil liberties. However, in the words of Mark Carallo, a spokesman with the Department of Justice, “U.S. citizens cannot be investigated under this act (Beeson and Jaffer 15).” But, the “truth” is, Sec 215 of the Patriot Act allows the government to obtain upon request any records or tangible information of US citizens without probable cause (Riba 1). In essence this section allows the government to invade and threaten our privacy. And what makes this even more demeaning is the fact that they can intrude our lives without even providing evidence to justify the investigation. According to the ACLU Report entitled the “Unpatriot Act”, in order to “obtain our personal records, … the FBI does not need to show that you are involved in Terrorism, directly or indirectly, …(Beeson and Jaffer 2&3).” Elaine Cassel in the article named, ‘The Other War: The Bush Administration and the End of Civil Liberties’, gives the reaction of one librarian to the unreasonable nature of this intrusive provision. The author quotes the librarian as saying to a Washington Post reporter, “This law is dangerous . . . I read murder mysteries -- does that make me a murderer? I read spy stories -- does that mean I'm a spy? (Cassel)"

It is quite obvious that this ridiculous “Patriot Act” has trampled upon the freedom of thought and expression that is so fundamental to our democracy. Section 802 of the Patriot Act, loosely defines a terrorist to include individuals that have no intention of murder or mass destruction. This section defines “domestic terrorism” as anyone engaging in “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; and APPEAR to be intended to intimidate or coerce a civilian population; TO INFLUENCE THE POLICY OF A GOVERNMENT BY INTIMIDATION OR COERCION…. (ACLU ‘Domestic Terrorism’ 1).” The word “appear” in this section leaves the law open to wide interpretation and is subjected to the personal views of government officials. The First Amendment rights of citizens to gather in protest against what they may see as unjust government policies could easily fall under the concept of ‘influencing’ government policy by ‘intimidation or coercion’.

Furthermore, Nancy Chang of the Center for Constitutional Rights aptly comments on this provision by stating that, "… Environmental activists, anti-globalization activists, and anti-abortion activists who use direct action to further their political agendas are particularly vulnerable to prosecution as "domestic terrorists (Chang 3)." This section in actuality turns the observing of our constitutional freedoms into activities that can have us incriminated and labeled a “terrorist”. It would be more rational if the creators of this provision minimized the wide scope of its definition of terrorism. The American Civil Liberties Union Article entitled How the USA PATRIOT Act redefines "Domestic Terrorism" provides a good example of this can be achieved. The Article purports that the section would be more efficient if “domestic terrorism could include acts which “cause serious physical injury or death” rather than all acts that are “dangerous to human life. Doing this would prevent unfair “overlap” and unjust targeting of individuals and organizations, whose actions should not be seen as proponents of terrorism (ACLU ‘Domestic Terrorism’ 3&4).

It would be quite accurate to assert that the USA Patriot Act clearly GOES TOO FAR! It is important for our leaders to recognize that the war on terrorism must not be used as an excuse to trample on our civil liberties and rights. The radical nature of the Patriot Act contravenes the basic human rights that Americans have for over 200 years fought and died to preserve. Policies like those contained in Sec 412 of the Patriot Act has taken our country from one that preserves the civil rights of ALL regardless of nationality, to one where the rights of our immigrants are unreasonably trampled on. Thousands of non-citizens have been rounded up and detained, many for indefinite periods, in violation of constitutional protections. The government has also repeatedly denied detainees’ access to legal representatives, infringing on their rights to due process of law. We have even turned our own American citizens into “victims” of corruptive provisions such as Sections 215 and 802 of the Patriot Act. This Act’s provisions have corruptively waged an attack on the Bill of Rights, in an attempt to abrogate our freedom of speech and expression. This has evidentially created a “new war” between national security and civil liberties in our society. In its efforts to fight terrorism, the government has disregarded its responsibility to maintaining a democratic society. Thus, the framers of these laws need to keep in mind the words of Benjamin Franklin; “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety (Whitehead and Aden).”

Everything in moderation.

BIBLIOGRAPHY

ACLU. “The USA Patriot Act and Government Actions that Threaten

Our Civil Liberties.” American Civil Liberties Union.

5 November. 2004.

Beeson, Ann. and Jaffer, Jameel. “Unpatriotic Acts: The FBI’s

Power to Rifle Through Your Records and Personal Belongings Without Telling

You.” American Civil Liberties Union

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Bergen, Jennifer Van. “Repeal the USA Patriot Act.” 1 April. 2004.

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Cassel, Elaine. “The Other War: The Bush Administration and the End of Civil Liberties” 26 April. 2003. <http://www.ratical.com/ratville/CAH/theOther- War.html > 5 November.2004.

Center of Constitutional Rights. “Erosion of Civil Liberties in the Post 9/11 Era.” The State

of Civil Liberties: One Year Later < -ny.org/v2/reports/docs/Civil_Liberities.pdf >

5 November. 2004.

ACLU Domestic Terrorism. “How the USA Patriot Act Redefines Domestic Terrorism.”

American Civil Liberties Union. 6 December. 2002

5 November. 2004.

Riba, Elisabeth. “The USA Patriot Act: The Response and Responsibility of Library

Management.” July 2002. < http://www.osmond-riba.org/lis/usapatriot.htm >

5 November. 2004.

Whitehead, John W. and Aden, Steven H. “Forfeiting Enduring Freedom for Homeland

Security: A Constitutional Analysis of the USA Patriot Act and the Justice Department's Anti-Terrorism Initiatives.” 2002. <http://www.ratical.com/-ratocal.com/ratville/CAH/CAofUSAPA.html > 5 November. 2004.