1/15 USA: Civil Liberties Restoration Act and Other Updates
- Civil Liberties Restoration Act and Other Updates
From: Shoba Sivaprasad
National Immigration Forum
**This e-mail contains the following information:
1) Civil Liberties Restoration Act (CLRA)
- Congressional Leadership
- Hill Advocacy
- Grassroots Advocacy
- Bill Text
2) Other Updates:
- Supreme Court Refuses to Hear Case on Secrecy Surrounding Names and Basic
Information of September 11 Detainees
- Inspector General Issues Analysis of DOJ’s Second Response to
Recommendations in the June 2003 Report on September 11 Detainees
- Editorials From the Washington Post on Government’s Actions to Restrict
Civil Liberties and Due Process Since September 11
If you are receiving this e-mail through a forward, please e-mail me (
ssivaprasad@...) to join this working group.
Shoba Sivaprasad, Esq.
Senior Policy Associate
National Immigration Forum
50 F. Street, NW
Washington, D.C. 20001
main phone: (202)-347-0047
direct line: (202)-383-5991
1) Civil Liberties Restoration Act: Update
As you know, several groups have worked on a legislative proposal known as
the Civil Liberties Restoration Act (CLRA) that would minimize the impact of
some of the most egregious post-9/11 civil liberties violations in effect today.
Leadership on the CLRA: The CLRA will be first introduced in the Senate.
Senator Edward Kennedy (D-MA) has agreed to be the lead sponsor on the CLRA. We
are also reaching out to Senators Patrick Leahy (D-VT), Russell Feingold (D-WI),
and Richard Durbin (D-IL) to serve as original co-sponsors. We expect the
House version of the CLRA to be introduced by Reps. Howard Berman (D-CA) and
Bill Delahunt (D-MA). While the original co-sponsors of the CLRA will be from
senior Democrats, we hope to gain bi-partisan support down the road. In other
words, our intent is to encourage Republican support for the CLRA. Given the
energy around Bush’s recent announcement on immigration reform and the fact that
Congress is out on recess until January 20, we do not expect that Congress
will introduce the CLRA until the end of January or early February (at the
earliest). We will keep you posted on our progress.
Hill Advocacy: D.C. advocates continue to meet with House and Senate offices
to gain support for the CLRA. Once the CLRA is introduced, possible
activities include: 1) Hill briefing for staffers, 2) Briefing with security experts,
scholars, and legal types and/or 3) Press briefing/conference. Hill advocacy
around the CLRA is being spearheaded by Marshall Fitz of the American
Immigration Lawyers Association (AILA). If you have any questions about Hill advocacy
around the CLRA, please e-mail Marshall at (mfitz@...).
Grassroots Advocacy: Taking CLRA “On the Road”- The Forum is leading an
effort to build grassroots advocacy around the CLRA bill and its principles. By
taking the CLRA “on road,” we hope to gather insight and wisdom from impacted
communities. We aspire to incorporate local stories and voices into our
advocacy efforts. In addition, we hope that CLRA can serve as an organizing vehicle
on the wide range of civil liberties/post 9-11 issues. Finally, once the CLRA
is introduced, we hope that advocates can meet with their Members of Congress
to gain support for the bill. When the time is right, the Forum will convene a
nationwide conference call to discuss advocacy around the CLRA. In the
meantime, if you have any questions about grassroots advocacy around the CLRA,
please e-mail me (ssivaprasad@...)
CLRA Bill Text: Once we have received a final version of the CLRA bill from
legislative counsel, we will send you a copy. We apologize for the delay in
getting you the text, but felt that it would be most effective to provide you
with a copy after it was finalized by Hill staff.
Advocacy Materials: AILA and the Forum are putting together CLRA advocacy
packets. For the packets please contact: ssivaprasad@...
2) Other Updates:
a. Supreme Court Refuses to Hear Case on Secrecy Surrounding Names and Basic
Information of September 11 Detainees
On January 12, 2004, the Supreme Court refused to consider a case on the
government’s failure to release the names and other basic data on hundreds of
Arabs and Muslims detained after September 11. Petitioners to the appeal include
the Center for National Security Studies, American Civil Liberties Union,
American-Arab Anti-Discrimination Committee, American Immigration Law Foundation,
American Immigration Lawyers Association, Amnesty International USA,
Arab-American Institute, Asian American Legal Defense and Education Fund, Center for
Constitutional Rights, among others. In its appeal to the Supreme Court, the
petitioners asserted "This Court should grant certiorari to ensure that even
after September 11, the judiciary will continue to fulfill its constitutional and
statutory obligation to provide meaningful review of the exercise of
executive power.” For a history of the case, Center for National Security Studies v.
United States Department of Justice, No. 03-472, and information on secret
arrests, please see the website of Center for National Security Studies at
http://www.cnss.org/%c2%a0 Below is a related clip that appeared in the Washington Post:
Washington Post, Secrecy Allowed On 9/11 Detention, High Court Declines To
Hear Appeal, By Charles Lane, January 13, 2004
The Supreme Court yesterday declined to hear an appeal by civil liberties
groups seeking access to basic data about hundreds of individuals detained by the
federal government after the Sept. 11, 2001, terrorist attacks, a decision
that allows officials to continue withholding the names of most detainees, as
well as other information related to their arrests, indefinitely.
In a brief order released without published dissent, the court turned down a
petition by the Center for National Security Studies, the American Civil
Liberties Union and several media organizations that had argued that the Bush
administration's refusal to release information about the detainees violated the
Freedom of Information Act and the constitutional guarantee of freedom of the
press. The Washington Post Co. filed a friend-of-the-court brief supporting the
Although it sets no precedent, the court's decision is a significant victory
for the Bush administration, which has argued that fighting an unconventional
war against terrorists requires the executive branch to assert broad new
authority to arrest and detain suspected members of al Qaeda -- and to withhold
much information about how it wields that authority so that terrorist
organizations do not learn too much about the government's strategy and tactics.
The decision let stand a 2 to 1 ruling last year by a three-judge panel of
the U.S. Court of Appeals for the District of Columbia Circuit, which found
"reasonable" the administration's claim that terrorist networks could reap
advantage from any disclosure of information about the detainees, even their names.
Kate Martin, director of the Center for National Security Studies, said the
D.C. Circuit's ruling breaks with "200 years of tradition in which arrests have
always been public."
"We have a situation where the government arrested more than a thousand
people in secret, and the courts have let them get away with it," she said.
Attorney General John D. Ashcroft said he was "pleased the court let stand a
decision that clearly outlined the danger of giving terrorists a virtual road
map to our investigation that could have allowed them to chart a potentially
deadly detour around our efforts."
In a brief urging the court to reject the case, Solicitor General Theodore B.
Olson told the justices that the D.C. Circuit correctly recognized that
information about the detainees could be withheld under an exception to the Freedom
of Information Act covering data related to ongoing criminal investigations.
He also noted that FBI and Justice Department officials had testified that
disclosure would let terrorists draw a "road map" of the investigation.
Olson argued that even though the government was not collecting and
disclosing data about the detainees, the detainees or their attorneys were mostly free
to disclose their cases.
"Any secrecy surrounding the arrests is thus the product of private choice,
not governmental dictate," he wrote.
Martin said that was unrealistic, because many of the detainees were Arab or
Muslim men who did not understand their rights and were often held
incommunicado for extended periods or, in the case of material witnesses, subject to gag
orders imposed by courts at the government's request.
She noted that a Justice Department inspector general's report had documented
cases of mistreatment of the detainees by federal officials and that without
a full disclosure of the detainees' names, it will be impossible to hold the
"There is no accountability for the abuses, and secrecy allowed the abuses,"
Martin said. "That's always been the objection to secrecy."
The Justice Department has acknowledged that it detained more than 1,200
people in connection with the investigation into the 2001 attacks.
The detainees fit into three categories: those arrested on suspicion of being
involved in terrorism and then detained for immigration violations; those
arrested and held on federal criminal charges; and those held as material
Those in the latter two categories were entitled to government-supplied
defense lawyers, but alleged immigration-law violators subject to deportation
proceedings had to find their own legal counsel.
Since 2001, the government has released the names of about 100 criminal
defendants but withheld their citizenship status, arrest and detention dates and
locations, and release dates.
The government has acknowledged that 762 people had been held on immigration
charges but withheld their names, their attorneys' names, and facts about
their arrests and release.
For about 50 named material witnesses, the government has released no data.
That leaves about 300 "for which we never got a clear explanation," Martin
The government has said the vast majority of the detainees have been deported
or released, with the exception of a few material witnesses.
b. Inspector General Issues Analysis of DOJ’s Second Response to
Recommendations in the June 2003 Report on September 11 Detainees
Last week, the DOJ's Inspector General issued an analysis of the DOJ’s second
response to Recommendations in the June 2003 Report on the September 11
Detainees. (http://www.usdoj.gov/oig/special/0401/final.pdf) The appendix to
this analysis contains a memo by DHS Under Secretary Hutchinson, entitled,
Response to the U.S. Department of Justice Office of Inspector General Report, The
September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration
Charges. (DHS Memo) The DHS Memo addresses a number of due process related
issues, among them detention without charge, service of notice, and the Bureau of
Immigration and Customs Enforcement’s new detention standards. While the DHS
memo identifies the right issues, the solutions fall short. Proposals in the
Civil Liberties Restoration Act (CLRA) and recommendations by the DHS Civil
Rights and Civil Liberties Committee to DHS address these issues. For more
information about these efforts, please e-mail me (ssivaprasad@...
c. Editorials from the Washington Post on Government’s Actions to Restrict
Civil Liberties and Due Process Since September 11
Washington Post, …While Abuses Are Confirmed, January 5, 2004
THE LATEST REPORT from the Department of Justice's inspector general on the
treatment of immigration detainees rounded up after Sept. 11, 2001, is among
the most disturbing to date. Elaborating on a chapter of an earlier report, it
documents a pattern of physical and other abuses of inmates at the Bureau of
Prisons' Metropolitan Detention Center in New York and apparent obstruction of
the inspector-general's efforts to bring these to light. The report by
Inspector General Glenn A. Fine is particularly upsetting because of the relatively
large number of guards involved -- as many as 20 -- and the severity of some of
the abuses alleged. Even in a moment of national crisis, with passions running
high, there is no excuse for such behavior. The department must take strong
action to make sure those responsible are not given further opportunities to
mistreat people held in federal custody.
Mr. Fine's report largely validates complaints from the 84 inmates held at
the Brooklyn facility, which was used to house immigration detainees of
particular interest to the 9/11 investigators -- none of whom, save Zacarias
Moussaoui, was ultimately charged with terrorist crimes. According to videotapes and
other evidence, Bureau of Prisons officers slammed inmates against walls,
pressed their heads against walls, bent their hands and wrists into painful
positions, lifted them off the floor by the restraints used to bind them, stepped on
their leg chains so as to trip them and left detainees in their cells in
restraints for hours at a time -- all in violation of bureau rules. Guards also
taped detainees' conversations with their lawyers, thereby impeding their right to
consult counsel. They verbally abused them and used strip searches and
restraints as punishments. And guards hung a T-shirt on a wall with an American flag
and the words "These colors don't run" on it -- and pressed inmates' faces
against it while searching them. The abuse apparently greatly diminished after
the Bureau of Prisons began videotaping the movement of inmates. The fact that
the videotapes nonetheless contain so much evidence of gross misbehavior
suggests that serious abuses may have been pervasive before the cameras showed up.
Also unpardonable is the lack of assistance the inspector general's office
received in conducting the probe. The videotapes were not forthcoming for
months; officials claimed they had been destroyed. Numerous officers denied seeing
any abuse -- only to be later shown on the tapes engaging in the very abuses
they insisted did not happen.
The Justice Department had previously declined to prosecute any of the
officers involved for lack of evidence. Following the report's release, however, a
department spokesman said prosecutors had reopened the matter in light of the
new videotape evidence the inspector general uncovered; they are also examining
possible obstruction of justice. Whether or not the evidence against any
individual will support a criminal case, the people involved in such misbehavior
have no business working with inmates. Attorney General John D. Ashcroft must
make sure that his department responds firmly and promptly.
Washington Post, Silence on the Hill . . . , January 5, 2004
IT IS A MATTER of grade-school civics that in American democracy laws are
made by the legislative branch. Article I of the Constitution, after all, begins
with the arresting statement that "All legislative powers . . . shall be
vested in a Congress of the United States." Yet ever since it passed the USA
Patriot Act after the events of Sept. 11, 2001, Congress has stood by in an alarming
silence while a fabric of new law governing the balance between liberty and
security has been woven by the other two branches of government. Many
Republican members profess to be fully content with the Bush administration's handling
of the war on terrorism here at home. Many Democrats, meanwhile, are happy to
snipe from the sidelines but offer little in the way of constructive
alternatives. Both parties harbor a few honorable exceptions. But in the main, the
parties are united in their desire not to sully their hands by engaging seriously
in deciding the shape of the law. They are content not to do their jobs but
instead to let the Bush administration do what it pleases and take the political
and judicial heat for it all.
Congress's abandonment of the field was especially startling in the year just
past -- a year that presented an array of issues that cried out for
legislative attention yet received none. Most pointedly, Congress has had nothing to
say about how captured enemy combatants ought to be treated, either domestically
or abroad. So as U.S. citizens have been held without charge or trial or
access to lawyers, Congress has not lifted a finger to put constraints on the
executive branch. While the administration has built a detention facility at
Guantanamo Bay, Cuba, without describing any sort of public process for inmates,
Congress has shrugged. Alleged enemy combatants, after all, don't tend to be an
organized constituency of campaign donors who can garner congressional
Yet in absenting itself from the policymaking process, Congress does not
merely fail to protect American liberty. It also fails to aid the executive branch
in fighting terrorism. As several recent court decisions show, the courts
will be far more likely to uphold executive actions that burden people's freedom
when Congress has clearly acted in support of the president. The legislature's
refusal to create reasonable statutory schemes that thoughtfully balance
liberty and security forces the administration to appear in court relying on old
precedents, rather than new law. The result, in the long run, could be that
judges, in protecting freedom, will tie the government's hands in ways that
unduly burden the war.
This risk has been particularly apparent in the case of Zacarias Moussaoui,
where a desperate need has been shown for creative legislation to ensure that
federal courts are capable of trying high-profile terrorist cases. Right now,
courts are tied in knots by the problem of what to do when an accused terrorist
wants to call as a witness high-level al Qaeda operatives captured overseas.
This is a problem for which an engaged legislature could offer a solution. Yet
Congress is content to let the courts decide the matter -- and the result
could either damage the 6th Amendment right of the accused to call witnesses in
his favor or make it exceptionally difficult for the government to isolate
important detainees abroad. The courts may craft a reasonable compromise, but why
should Congress leave that essentially legislative effort to the judiciary?
To some extent, the administration itself deserves blame for the
legislature's passivity. Rather than inviting congressional involvement, it foolishly
discourages it -- both out of an ideological attachment to executive power and out
of an allergy to any kind of legal restraint on its conduct. But Congress is
not supposed to legislate only with the administration's permission. America,
after all, is not a parliamentary democracy where the government sets the
legislature's agenda. Congress is supposed to be an equal branch of government,
and it ought to be both aggressively overseeing the administration's work and
actively exploring what laws would enhance American freedom and security. It
ought not be giving its powers away.
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