Lawyers share pros and cons of Patriot Act's impact on Arab detainees

Not surprisingly, a panel of distinguished law professors disagreed on the appropriateness of the United States government response to Sept. 11 and subsequent perceived terrorists threats. The setting for such a discussion was a symposium, presented by the Connecticut Law Review held at UConn's West Hartford campus on April 4 for Law School students, practicing attorneys and the general public.

Entitled "Civil Liberties After September 11: A Closer Look at Detention Powers," the purpose of the symposium was to discuss "apparently higher rates of detention of non-citizens, in particular, those of Arab or Muslim background in post 9-11 America."

Civil rights advocates have questioned whether detainees are being provided adequate reasons for their detention and sufficient access to counsel. They have also raised issues regarding the constitutionality of an Act "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) of 2001," enacted by Congress last October.

Robert M. Langer, a partner in the Hartford office of Wiggin & Dana, sponsors of the event, began the four-hour session with an introduction of the panelists, expressing the hope for a "Lively and thought-provoking discussion."

His hopes were quickly fulfilled when the first panelist, Akhil Reed Amar, Southmayd Professor of Law at Yale University, decried the patriot act as over-riding the 4th and 6th amendments through its very first substantive provision (Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism) that has been interpreted by Attorney General John Ashcroft, under Justice Department regulations to allow federal agents to monitor traditionally confidential meetings between inmates (including detainees and those held as witnesses) and their attorneys, whenever Ashcroft determines that "reasonable suspicion exists to believe that an inmate may use the communications with attorneys . . . to facilitate acts of terrorism."

"Confidentiality is key to the lawyer-client relationship," Amar said. "Clients will hesitate to discuss delicate matters with their lawyers if they fear that their secrets will be disclosed." Then he told the assembly, "This act makes use of a meat cleaver when a scalpel was all we needed." Amar's concern is that Ashcroft's interpretation of his authority slights the legislative process and ignores the basic tenets of our democracy that the citizen's views are important.

Amar's main point was "If America is to make so large a change in long-standing practice restricting so venerable a privilege, this change should come from Congress. If it had gone through the legislative process it might have had some checks and balances."

Professor Jan. C. Ting of the Beasley School of Law at Temple University reacted to Amar's presentation by advising Amar "Congress is free to express its will to provide a different outcome, and to me, six months of (Congressional) silence indicates consent." Ting said, "This is not a meat cleaver. It is a very narrow ruling. The monitoring is only to prevent additional crimes and the information (gathered) is not used otherwise."

And so it went back and forth. It was like listening to court TV without a judge to quiet disagreeing attorneys. Law students scribbling notes, erasing, and over striking with each volley and parry. Amar praised and defended the Constitution while Ting elucidated the position that freedom comes with a price. Amar demanded that legislators, the judiciary, and the public have a greater say as set forth in the constitution. Ting tried to end the discussion by quoting Abraham Lincoln, who said during his embattled presidency during the Civil War years, "Of what good is the constitution if the country perishes"?

Associate Dean Jeremy Paul, who initially welcomed those in attendance by saying that he expected "to be thrilled by the (anticipated) intellectual interchange," sided with professor Amar. "Without trying to sound partisan, let me point out there are those who would argue that given the way the present administration got into office, we may find a lack of trust."

Professor Ting, whose resume includes three years service as assistant commissioner at the Immigration and Naturalization Service of the Justice Department, said in his own prepared remarks, "Our traditional rights and privileges have not been swept away in the past six months. . . . But we are still under threats from a group that is, not just willing, but anxious to die." He also pointed out that we must separate our concerns about the rights and privileges of citizens from the rights and privileges of aliens, who do have all the rights of citizens.

"Terrorists will decide when, where, and how to attack," said Ting. "Our only defense is to find them, remove them, imprison them, or kill them. . . . "The U. S. has made a reasoned response to the Sept.11 attack" and "has fulfilled its responsibilities with restraint," he said. "My problem is not with what we have done but with the fact that we have not done enough." He concluded his own presentation by saying "History shows us that the prosecution of war has had an impact on civil liberties, but never a lasting impact. . . . "Besides," he finished, "If we lose this war, no civil liberties will survive." Shades of Lincoln filled the room!

After a refreshment break, during which informal but intense discussion of the points raised were debated ad hoc, the second session began with a presentation by Professor Sadiq Reza, an American-born Muslim of Indian Heritage and a graduate of both Princeton University and Harvard Law School, who now teaches courses in criminal law and procedure at New York Law School.

Reza said there are hundreds of detainees in America whose detentions have been surrounded by extreme secrecy. "These people's basic rights have been violated, including the right to be informed of the reasons for the detention, to have prompt access to a lawyer, to be able to challenge the lawfulness of the detention and to be presumed innocent until proven otherwise," he said. Some are held as material witnesses, some on criminal charges but most are held because they simply failed to comply with some immigration law. "They won't even identify the people that are being held," protested Reza.

Reza has no sympathy for terrorists. He watched the World Trade Center towers crash from his Battery Park Apartment and sat out two months when the New York Law School, only seven blocks from ground zero, remained closed for two weeks without utility service.

But he has great sympathy for detainees whom the Department of Justice will not even identify. Reza complains that the Justice department will not even release detailed information on the detentions as requested under a Freedom of Information Act (FOIA) lawsuit filed by Amnesty International and other human rights groups. The Justice Department has argued that the detainees have the right of privacy. Reza pleaded, "Privacy should be an individual decision." The essence of Reza's presentation was a passionate plea backed by a strong case for reversal of the present Department of Justice policy on detainees.

Sameer M. Ashar, professor of law at New York University School of Law, followed Reza to the podium. Ashar, a graduate of Swathmore College and Harvard Law School, teaches an Immigrants Rights Clinic in which students provide direct legal representation to immigrants and immigrant organizations. In litigation matters, students enrolled in the clinic handle cases at all stages of legal proceedings, from initial client interviews through fact development, interviewing witnesses, drafting pleadings, counseling, negotiation, discovery, motion practice, and trial. The students act as the lawyers on the case, handling court appearances, negotiations, and other matters.

Ashar described the details of one client, a 58-year-old Pakistani immigrant, who had been in the country less than one year as of Sept. 11. He was arrested in November as he emerged from his room in the basement of a Brooklyn Mosque. According to Ashar, the client has been held without charges, shuffled from jail to jail in New York and New Jersey without notice to his counsel and denied bail, pending the results of an ineffective investigation in which no leads pointing to the individual have been developed.

Ashar said this is only one of what Amnesty International says is "More than 1,200 non-U.S. nationals - mainly men from Muslim or Middle Eastern countries - taken into custody in sweeps for possible suspects. Of these, some 300 are believed "to remain in Immigration and Naturalization Service (INS) detention, and an unknown number have been deported or released on bail, often after months in custody."

There has been lax enforcement of Immigration Law by the INS for years, but now they are "using the war on terrorism to justify unchecked enforcement policies," said Ashar.

"No government should be accepted on the basis of faith and trust. We have a Constitution because we want government to be accountable." This was the basic message delivered by John E. Finn, professor of government at Wesleyan University where he teaches constitutional law, civil liberties and jurisprudence. He also has first- hand experience with the abuse of civil liberties. He was once beaten by a British police officer in Northern Island, who apologized profusely when he learned Finn had an American passport. "I didn't know you were American; I thought you were Irish," was the officer's explanation. Finn said, "He must have been the only guy in the country that couldn't figure out I was an American."

Finn, still distressed over that incident, found his own government's reaction to Sept. 11 "profoundly distressing and disturbing."

"Wars are unpredictable," he said but quickly added, "But life can be made orderly through the promulgation of rules." He pointed out the dangers of the concentration of power in the executive branch minus the legislative and judicial oversight that is normally in place. "Every good Constitution says that government power must be limited and must be shared," Finn said.

Finn is also concerned that the trend is not likely to be temporary. He noted that the law has a "sunset provision" but added, "What congressional critter will vote to repeal it?"

A surprise and unannounced addition to the panel was Former Dean Hugh Macgill who teaches Constitutional Law and Torts at UConn Law School. A frequent television commentator on legal issues, especially those involving the Supreme Court, Macgill seemed anxious to add his thoughts to the discussion. Ever the instructor, Macgill explained the difference between "discretion and prerogatives," "martial law" vs. the "rule of law," "support" for a government vs. "trust" in that government, the role of a president vs. a commander in chief, and the need for we citizens to be shown "a demonstration of necessity" and not just an "assertion of necessity."

Although obviously in sharp disagreement with many of the panelists and present administration policies, he said in times of crisis we must support our government. Then he quickly added, "We owe the administration our support, not our admiration and love." He made his feelings quite clear with his comment, "This is not an administration that is inclined to release information. This does not inspire confidence in the administration's judgment and wisdom."

MacGill's final comment, "If this war is going to last forever let us at least learn as we go and make changes, including some of those relating to civil liberties." This brought a quick retort from Professor Reza, who said, "American citizens are not willing to sacrifice their civil liberties. They are only willing to sacrifice other people's civil liberties."

Attendees remarked that the symposium certainly met its goals of a lively and thought-provoking discussion. Yet there were barely any hints of unanimity among the panelists or its audience. There was agreement on the need for more discussions and for increased homeland security. No one present disputed Professor Ting's observation that "With our open borders, we are an easy target. Osama bin Laden has told his group to search for easy targets."

Becoming a more difficult target while respecting the rights of those within its borders is the obvious challenge facing the United States today.

"a panel of distinguished law professors"

A collection of white collar criminals: perjurers, liars for hire, thieves, exploiters, and societal parasites of every description.

Who cares what these vermin think about anything?

I don't see what the issue is. A small group of people, belonging to another group of people, that is Al Quida of the Arab's has committed crimes against a much larger group of people and have declared they will do such acts again, if given the opportunity. These acts are patently unconstitutional against their victims. I see no precedent for extending civil law to a group that is by nature and admission violently unconstitutional.

Military law is the appropriate authority for this minority. To grant them the rights of "the accused" under the Bill of Rights is unconstitutional by reason that it undermines the constitution.

In summary, it is unconstitutional to be constitutional to any terrorist of Arab descent.

Some are held as material witnesses, some on criminal charges but most are held because they simply failed to comply with some immigration law.

And the difference is?

" This brought a quick retort from Professor Reza, who said, "American citizens are not willing to sacrifice their civil liberties. They are only willing to sacrifice other people's civil liberties."

That's bloody well right, Reza, and don't you forget it. We (Americans) are willing to sacrifice your (Arabs) civil rights, to protect ours from your destructive natures.

Live with it, Raghead!

Please forgive my moderation. It was a pitiful attempt at "compassion". I won't let it happen again.
(satire off)

Cheers, Buck.

The biggest problem with the so-called 'Patriot Act' is that it will be used against Americans in the not too distant future.

Imagine somebody like Janet Reno having the Patriot Act at their fingertrips (I apologize if I give anybody nightmares).

Thanks Vance, a good thought provoker. I found some Lincoln discussion of individual rights vs business pressures, specifically which northern businesses would profit from confiscating "insurrectionists" of Virginia.

But, if you're reading this, anything here provoking open minds attracts the Jerry Springer school of screaming zealots, as you can see. And yet they'll scream when the next administration does unto them with Big Brother.

Amazing how folks here are for bigger, stronger, stricter Big Government when it porks someone else's dog

P.S. If it's your thing, Duke Law had an interesting taped lecture on ethics/governing coporate boards/Enron. It's filed on their website.

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