Patriotic or unconstitutional? The mandatory detention of aliens under the USA Patriot Act.

• Author: Sinnar, Shirin

INTRODUCTION I. STATUTORY ANALYSIS: THE USA PATRIOT ACT IMMIGRATION PROVISIONS A. Section 412: Mandatory Detention of "Certified" Aliens B. The Effect of Section 412 II. THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT III. PROCEDURAL DUE PROCESS A. Is There a Protected Liberty Interest? B. What Process Is Due? 1. The procedures of USA Patriot Act section 412 2. Supreme Court precedent 3. Applying the Mathews test IV. SUBSTANTIVE DUE PROCESS A. Level of Scrutiny B. Mandatory Detention of Criminal Aliens C. A "Special Justification "for Detention? 1. The case of terrorism 2. The excessiveness of section 412 CONCLUSION INTRODUCTION

The USA Patriot Act, enacted seven weeks after the September 11 attacks, granted the federal government sweeping new powers to expand surveillance, curtail financing, and deport aliens in connection with terrorist activity. (1) The first major piece of legislation to respond to apparent weaknesses in U.S. national security, the statute expanded the range of aliens who could be excluded or deported from the United States on terrorism-related grounds, while reducing the procedural protections available to them. Under the new law, immigrants "certified" as threats to national security must be held in government custody without bond pending deportation proceedings and removal from the country. Detention could become indefinite for those aliens found to be deportable but whom other countries decline to accept.

As the USA Patriot Act went into effect, several hundred immigrants remained in government detention under a separate emergency order (2) allowing them to be held without charge for an extended period. The lengthy detention of so many aliens, few of whom were suspected of involvement in the terrorist attacks, generated concern that efforts to protect national security in the wake of September 11 had infringed on the constitutional rights of noncitizens. (3) In 2002, civil liberties organizations mounted several legal challenges on behalf of individuals detained after September 11, including a class action lawsuit asking a federal district court to declare the detention of a group of Muslim men unconstitutional. (4)

Numerous legal scholars have addressed the tension between national security and civil liberties posed by new government policies since September 11. In immigration scholarship, law review articles have addressed the mass detention of noncitizens, (5) the use of racial profiling in immigration enforcement, (6) and expanded secrecy in immigration proceedings. (7) Yet no article published to date has closely analyzed the mandatory detention provisions of the USA Patriot Act or subjected them to detailed constitutional scrutiny.

This Note argues that the USA Patriot Act's provisions for certification and mandatory detention contravene the Fifth Amendment's guarantee of due process of law. By denying noncitizens the opportunity for meaningful review of the certification decision, and by authorizing the detention of aliens on substantively inadequate grounds, the USA Patriot Act raises serious constitutional concerns under both the procedural and substantive prongs of the Due Process Clause. Part I of this Note describes the changes to immigration law presented by sections 411 and 412 of the USA Patriot Act, focusing on the establishment of a new "certification" process that triggers mandatory detention for noncitizens. Part II explains that the Due Process Clause of the Fifth Amendment, applicable to citizens and aliens alike, provides a constitutional basis for challenging section 412. Part III presents the procedural due process claim. The Note argues that mandatory detention of certified aliens implicates a protected liberty interest under the Due Process Clause, and that the procedures of section 412 most likely do not pass constitutional muster. Moving to the substantive due process claim, Part IV argues that section 412 wrongfully authorizes the detention of aliens who pose neither a danger to the community nor a risk of flight. This argument draws support in part from recent federal appeals court cases that have invalidated the mandatory detention of aliens convicted of particular criminal offenses.

The argument presented is circumscribed in two ways. First, this Note focuses on the detention of aliens pending the completion of removal proceedings. Therefore, it does not address the additional constitutional problems posed by the potentially indefinite detention of aliens following a final deportation order. Second, the discussion focuses on aliens who have already "entered" the United States and who are accordingly subject to removal based on "deportability" rather than "inadmissibility" under the Immigration and Nationality Act (INA). (8)

Courts will grapple with all of these questions in the coming years as aliens are detained under the USA Patriot Act and other laws. The resolution of these issues will bear on the vitality of American civil liberties at a time of national insecurity.

1. STATUTORY ANALYSIS: THE USA PATRIOT ACT IMMIGRATION PROVISIONS

   The USA Patriot Act expands the substantive grounds on which aliens can be excluded or deported for reasons of terrorism (section 411) and establishes a new mechanism for certifying and detaining aliens pending removal (section 412). Section 412, the focus of this Note, raises constitutional problems in part because section 411 expands the range of aliens who can be excluded or deported on terrorism-related grounds. The new criteria cover not just individuals who plot or undertake acts of terrorism, but also individuals who are more remotely affiliated with proscribed organizations.

   Before the USA Patriot Act, the United States Secretary of State designated certain groups as "foreign terrorist organizations" in a specific procedure under section 219 of the INA. (9) That statute limited designation to foreign groups that engaged in terrorism and that threatened U.S. national security or the security of U.S. nationals. Section 219 provided for advance notice to Congress, publication of designations in the Federal Register, and a procedure for renewing designations. The USA Patriot Act retains the section 219 designation procedure but in addition attaches immigration consequences to involvement with two other types of organizations. First, it establishes a second type of "designated" organization. Under the new law, the Secretary of State, in consultation with the Attorney General, may now designate any organization, domestic or international, as a terrorist group after finding that the organization commits, incites, prepares, plans, gathers information for, or provides material support toward terrorist activities. (10) The names of these organizations would be publicized, providing notice of the designation to potential participants. Second, the statute also penalizes involvement with undesignated organizations. Section 411 broadens the concept of terrorist organizations to include any group that the government deems to be a "group of two or more individuals, whether organized or not" that engages in committing, inciting, or planning a terrorist activity. (11) There is thus no advance designation of this category of organization.

   The statute then makes inadmissible or deportable any alien who has raised funds, solicited members, or provided material support to any of these groups--or is likely to do so in the future. (12) In the case of an undesignated organization, an individual can escape liability only if he can meet the burden of proving that he did not know, and reasonably should not have known, that his solicitation for funding or membership would further the group's terrorist activity. For designated organizations, the statute does not differentiate according to the intent of an individual in raising funds, soliciting members, or funding the organization; even if the individual sought to support only the lawful humanitarian or social efforts of an organization with both lawful and unlawful activities, he or she may be excluded or deported. The statutory changes particularly affect individuals involved with broad-based organizations that engage both in lawful conduct (for instance, political struggle and social work) and in violent activities. (13)

   The statute specifically makes the application of the section 411 amendments retroactive: It extends to actions taken by an alien before, on, or after the date of enactment of the new law. The new provisions apply to all aliens seeking admission on or after the law's enactment, and to all present and future removal proceedings of aliens already present. (14) There is one exception to retroactivity. An individual who fundraised, solicited members, or provided material support for a designated terrorist organization prior to its designation will not be liable, (15) but only if that organization does not qualify under the new category of undesignated terrorist organizations established in section 411. (16) Under that provision, a noncitizen who made a donation a decade ago for the humanitarian activities of a group not previously designated in any published government list, but now considered a terrorist group, may be deported for that contribution.

   1. Section 412: Mandatory Detention of "Certified" Aliens

      Section 412 of the USA Patriot Act provides for the certification of aliens suspected of terrorist involvement and for their mandatory detention until removal from the United States. Under that section, the Attorney General may certify an alien if he has "reasonable grounds to believe" that the alien falls under any of the security-based grounds for deportation in the INA, or that the alien otherwise endangers U.S. national security. (17) Under the INA, a noncitizen can be excluded or deported for national security reasons, including involvement in espionage, the attempted overthrow of the government by unlawful means, or terrorist activities. Now, any alien whom...