Tuesday, November 14, 2006

"We" Are Now "They"

If you are an immigrant in the United States, you can now be arrested and detained indefinitely, with no legal rights whatsoever -- even if you are in this country legally:

Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.

It just happened to Ali Saleh Kahlah Al-Marri:

Al-Marri, who was a legal immigrant living with his family in Peoria before being detained, is the first detainee to fall under the new federal law. Legal immigrants used to be able to contest their imprisonment in court; the administration now has the power to remove the accused from the criminal justice system and turn them over to the military. And the administration is most certainly exercising that power now.

"It's pretty stunning that any alien living in the United States can be denied this right," said Jonathan Hafetz, an attorney for Al-Marri. "It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention."

The Bush administration maintains that al-Marri is an al Qaeda sleeper agent, based on evidence that only administration officials have seen. Maybe al-Marri is guilty, maybe he's not, but we won't know because the Bush gang won't give him a chance to defend himself.

Indeed, Al-Marri, who vehemently denied the accusations, was set to go to trial in July 2003 -- right up until he was declared an "enemy combatant." His trial was cancelled, he was removed from the process, and was turned over [to] the military, where he was denied the right to counsel and was held with [no] charges against him.

It's important to be clear on exactly what has happened to Al-Marri, and what can and will happen to any of the millions of foreign nationals who are living in or visiting the United States in compliance with the law:

The [Military Commissions Act] authorizes the administration to detain any non-citizen (at least) as an enemy combatant and does not require that they be charged with any crime nor given an opportunity to prove their innocence. That includes resident aliens and foreigners who have legally entered the U.S.:

"It's pretty stunning that any alien living in the United States can be denied this right," said Jonathan Hafetz, an attorney for Al-Marri. "It means any non-citizen, and there are millions of them, can be whisked off at night and be put in detention."

This is not a case of someone being detained on a battlefield or even overseas, nor is it the case of someone who entered the country illegally. He was in the U.S. legally and was detained while sitting at home. And just as he was about to start his criminal trial, the President essentially cancelled the trial and ordered him detained indefinitely and incommunicado.

Jack Balkin hears echoes of a time gone by, when another group of people were found to be outside the protection of the Constitution because of their non-citizen status:

In Dred Scott v. Sanford, Chief Justice Taney argued that blacks had no rights which the white man was bound to respect. Non-citizens living in the United States are certainly not held in slavery, but Taney's infamous phrase is still eerily apt: Because of the Military Commissions Act of 2006, the U.S. government can snatch any non-citizen living in the United States at any time, anywhere, and hold them indefinitely without the right of habeas corpus and without any of the criminal procedure protections afforded by the Bill of Rights.

Think it's a stretch?


4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States.

5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or citizens.' Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being 'citizens' within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.

7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens, as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

9. The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

Emphasis mine.

Back when I was an active member of Amnesty International, I wrote letters to government officials in countries like Argentina, the Soviet Union, China, South Africa, trying to rescue political prisoners from abuse by countries that had stripped these prisoners of all legal and human rights. Now the United States is one of those countries.

And rest assured, every single one of the governments I wrote to, defended their violations of the norms of human and legal rights the same way: It's necessary to do this for the safety of the nation.

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