The bill entitled Uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism (USA Patriot Act) Act of 2001' has been often quoted as a justification for the enactment and/or continuation of legislation which sacrifice basic civil liberties for the cause of national security.

It is necessary to investigate in greater detail in regards to the components of this act to ensure that it is not wrongfully used or quoted to justify legislation in other countries. Of particular relevance to Malaysia and Malaysians is the clause in the act that allows for indefinite detention which has been compared to our very own ISA.

The Patriot Act covers a wide range of measures aimed at increasing the security of the United States against terrorism. Among them are: the increase of funding for counter terrorism exercises; enhanced surveillance procedures; anti-money laundering, counterfeiting and terrorist financing procedures; greater ease in reporting suspicious financial activities; border protection; enhanced immigration provisions; providing for victims of terrorism; removing of obstacles in the investigation of terrorist activities; and increase information sharing between various government agencies.

The clause on detention without trial appears in Subtitle B of Section IV entitled Protecting the border and it is this section which merits closer investigation.

Detention without trial by INS

First of all, we must note that detention without trial already existed in the United States prior to the passing of the Patriot Act.

The Immigration and Naturalisation Services (INS) detains and holds immigrants and non-citizens for a variety of factors.

According to Lucas Guttentag, a civil rights attorney and law professor, An immigrant can be detained if they are in violation of the immigration laws, and if there is evidence that they are a danger to national security, or will not appear at their immigration hearing. That has always been part of the law.(1)

Asylum seekers and other refugees and immigrants are held by the INS while their cases are being processed and reviewed by the INS. Most of these refugees, political and economic, are housed in jails often being mixed with convicted criminals because of the lack of jail space. Such detention rules can be found in many other countries but the treatment of such individuals while in the custody of the local immigration authorities varies.

Immigrants or non-citizens who have committed crimes that are deemed deportable under US law are also held under the INS. The range of deportable crimes has greatly increased under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Prior to the 1996 legislation, crimes resulting in deportation were limited to murder, rape, and other serious felonies. With IIRIRA, minor drug offences, some cases of drunk driving, shoplifting, and any conviction carrying a sentence of one year or longer, whether or not the sentence was suspended or actually served, require deportation. (2)

After an individual is ordered removed, the INS has 90 days to remove him or her. However, repatriation is difficult to accomplish for some individuals, such as those without nationalities or persons born in countries that do not have repatriation treaties with the United States (such as Cuba and Vietnam). Prior to the Supreme Court's ruling in Zadvydas v Davis , 121 S Ct 2491 (2001), the INS had been holding such persons under the "post-removal detention statute", sometimes indefinitely. In Zadvydas , the court ruled that such persons may be detained only for "periods reasonably necessary to bring about [their] removal from the US".(3)

Immigrants charged under the immigration laws can be allowed legal representation. But unlike a US citizen charged in a civil or criminal court, an immigrant does not have the right to a court-appointed attorney. So unless the immigrant in question has the final resources to hire a lawyer or to obtain the free services of one (both questionable given the large number if immigrants to the United States), it is likely that they will end up having to forgo legal representation.

According to Guttentag again, Under the law, a person charged under the immigration laws is allowed to have an attorney, if they can afford to pay one, or if there's a free lawyer available to represent them. But unlike a person charged with a crime, there is no right to a court-appointed attorney.(1)

In Malaysia, immigrants are housed in refugee camps while the immigration authorities are processing their cases.

More scope

So whats different now with the introduction of the US Patriot Act?

There are two concerns in regards to the Patriot Act which have been raised and which are relevant to Malaysia:

(a) increase in the scope of the definition of terrorist and terrorist activities; and

(b) extra powers conferred to the attorney-general in detaining non-citizens suspected of involvement in terrorist activities.

The new law expands the definition of "terrorist" by adding new grounds of inadmissibility for representatives of foreign terrorist organisations that publicly endorse terrorist activity and that the US secretary of state determines undermine US efforts to reduce terrorist activity.

Spouses and children of such non-US citizens deemed inadmissible on terrorism-related grounds are also inadmissible, except for those who did not know or reasonably would not have known of the terrorist activity as well as spouses and children who have renounced terrorist activity.

The new law also accords the secretary of state unreviewable authority to designate as a "terrorist organisation" any foreign or domestic group simply by publishing such a designation in the Federal Register.

Minus procedural safeguards

One of the law's most controversial features is its expansion of the definition of "terrorist activity", which is a ground of inadmissibility and deportability. It expands the definition to include soliciting funds or providing material support to a group the secretary of state has designated as a terrorist organisation, even if such contributions were made without intent to further terrorist goals.

Under the new law, soliciting funds and providing material support to terrorist organisations that are not officially designated are deportable offences unless the contributor can prove that he or she did not know and should not reasonably have known that the solicitation would further the organisation's terrorist activity. However, some of the new grounds of inadmissibility do not apply to actions taken before the law's enactment with respect to a group that had not been designated as a terrorist organisation by the secretary of state at the time.(4)

The secretary of state can designate groups either under existing section 219 of the Immigration and Nationality Act (INA) or under a new provision created by section 411 of the USA Patriot Act. While existing INA section 219 permits designation of foreign groups with various procedural safeguards, Section 411 of the USA Patriot Act adds a new provision to INA section 212(a)(3)(B) that permits designation of foreign and domestic groups, without those procedural safeguards.

Under this new power, the secretary of state could designate any group that has ever engaged in violent activity a "terrorist organisation"  whether it be Operation Rescue, Greenpeace, or People for the Ethical Treatment of Animals. The designation would render the group's non-citizen members inadmissible to the United States, and would make payment of membership dues a deportable offence. Under the bill, people can be deported regardless of whether they knew of the designation and regardless of whether their assistance had anything to do with the group's alleged terrorist activity.(5)

AGs extra powers

According to the American Civil Liberties Union (ACLU), detention would be allowed on the attorney-general's finding of "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security, and detention could be indefinite upon a determination that such an individual threatens national security, or the safety of the community or any person.(6)

According to the National Immigration Law Center (NILC), the act authorises the attorney-general to certify a non-citizen as a terrorist if the attorney-general has reasonable grounds to believe the individual is engaged in any activity that endangers the national security of the United States. Any non-citizen who the attorney-general certifies as a terrorist may be taken into custody and must remain in custody until his or her removal from the United States. The individual may be kept in custody irrespective of his or her eligibility for relief from removal.

The attorney-general's authority to certify a non-citizen as a terrorist may be delegated only to the deputy attorney-general. The attorney-general may detain a non-citizen certified terrorist up to seven days before charging him or her with a criminal offence. Failure to charge within that period requires the non-citizen's release from custody.(4)

According to Guttentag, What's new about what Congress is considering now is that the power to detain would be based on mere suspicion. The detention would be mandatory, and the detention could be indefinite.(1)

Notes

(1) 'ACLU's Lucas Guttentag: Immigrants and civil liberties', CNN.Com , Oct 17, 2001

(2) INA Sections 212(a), 237(a) and 238(a)

(3) The Supreme Court, Zadvydas v Davis , 121 S Ct 2491 (2001)

(4) 'Antiterrorism Act expands detention and removal authority, benefits immigrants hurt by Sept 11 events', Immigrants' Rights Update , Vol 15, No 7, Nov 16, 2001 (National Immigration Law Center)

(5) 'How The Usa-Patriot Act allows for detention and deportation of people engaging in innocent associational activity', ACLU

(6) 'How The Usa-Patriot Act permits indefinite detention of immigrants who are not terrorists', ACLU

Part II

will be published tomorrow

ONG KIAN MING was headed for glorious riches as a management consultant before too much of the good life got to him. He's now working at a think tank focusing on nation building, civil liberties and minority representation issues. He also has a column every Monday in the New Straits Times called 'Chisel and Stone' which he co-writes with his boss.

He can be reached at im_ok_man@yahoo.com. The opinions and content of this article are his alone.