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U.S. Detention of Aliens in Aftermath of September 11 Attacks
Published online by Cambridge University Press: 10 March 2017
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- Type
- Contemporary Practice of the United States Relating to International Law
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- Copyright © American Society of International Law 2002
References
Page 471 Note 1 See Murphy, Sean D.. Contemporary Practice of the United States, 96 AJIL 237, 251–55 (2002)Google Scholar; see also U.S. Dep’t of Justice Press Release on Attorney General Ashcroft Provides Total Number of Federal Criminal Charges and INS Detainees (Nov. 27, 2001), at <http://www.justice.gov/ag/speeches/2001/agcrisisremarks11_27.htm>; Lewin, Tamar, Accusations Against 93 Vary Widely, N.Y. Times, Nov. 28, 2001 Google Scholar, at B6; Wilgoren, Jodi, Swept Up in a Dragnet, Hundreds Sit in Custody and Ask, “Why?” N.Y Times, Nov. 25, 2001,Google Scholar at B5; Eggen, Dan, Many Held on Tenuous Ties to Sept. 11, Wash. Post, Nov. 29, 2001,Google Scholar at A18.
Page 471 Note 2 United States of America: Memorandum to the US Attorney General—Amnesty International’s Concerns Relating to the Post 11 September Investigations, Amnesty Int’l Doc. AMR 51/170/2001, at 1-7,12-14 (Nov. 2001), at <http://www.amnesty.org>.
Page 471 Note 3 These rights are contained, inter alia, under article 9 of the International Covenant on Civil and Political Rights (ICCPR), ratified by the USA in 1992; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted by consensus by the United Nations (UN) General Assembly in 1988; and the Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and Treatment of Offenders. [Editor’s Note: The footnotes from the original Amnesty International document (starting with 2 and ending with 23) have been retained.]
Page 471 Note 4 The Human Rights Committee (which monitors states’ compliance with the ICCPR) has stressed that “all persons arrested must have immediate access to counsel”. The Body of Principles states that access to a lawyer may be restricted in the most exceptional circumstances “to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority to maintain security or good order” but that even here, this should not be delayed beyond a few days. The UN Special Rapporteur on Torture has recommended that, as torture is most frequently practised during incommunicado detention,”... incommunicado detention should be made illegal and persons held incommunicado should be released without delay. Legal provisions should ensure that detainees should be given access to legal counsel within 24 hours of detention.”
Page 471 Note 5 Article 9(4) of the ICCPR states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the detention and order his release if the detention is unlawful.”
Page 472 Note 11 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act [of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001)].
Page 472 Note 12 Definitions of terrorism for which non-nationals can be detained or deported under the Act are extremely broad and include membership of, or any “material support” for, any foreign or domestic organization designated as a “terrorist organization” by the Secretary of State or any group that publicly endorses acts of terrorism; and membership or support for (including soliciting funds) any group not designated as “terrorist” but deemed to support terrorism in some way. In the latter cases, the onus [is] on the non-national to prove that his or her assistance was not intended to further terrorism.
Page 472 Note 13 Principle 11 (1) of the Body of Principles states: “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.” This applies to all detainees, whether or not held on a criminal charge. Article 9(3) of the ICCPR states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or release.”
Page 472 Note 14 Members of the Human Rights Committee have questioned whether detention for 48 hours without being brought before a judge is not unreasonably long (Report of the HRC, vol. 1 (A/45/40), 1990, para. 333, Federal Republic of Germany); in a death penalty case, the Committee ruled that a delay of one week from the time of arrest before the detainee was brought before a judge was incompatible with Article 9(3) of the ICCPR: “anyone arrested or detained in a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power...” (McLawrence v. Jamaica, UN Doc. CCPR/C/60/D/702/1996). The European Court of Human Rights has ruled in a UK case that detaining a person for four days and six hours before bringing him before a judge was not prompt access (Brogan et al., United Kingdom, 29 November 1988, 145b Ser. A33 at 62).
Page 472 Note 15 The Act provides that “in general” judicial review of any action or decision made under Section 236(A), including judicial review of the merits of the Attorney General’s certification, is available “exclusively in habeas corpus proceedings” (Section 236(A) (a)7(b)).
Page 473 Note 21 Article 5 of CERD calls on states to “... guarantee the right of everyone without distinction as to race, colour, or nationality or ethnic origin, to equality before the law”, including “equal treatment before the tribunal and all other organs administering justice” and the “right to security of person and protection by the state against violence or bodily harm, whether inflicted by government officials or by any individual group or institution”. Article 26 of the ICCPR states “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Page 473 Note 22 The rule “requires that privileged information not be retained by the government monitors and that, apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge.”
Page 473 Note 23 Principle 18(4) of the Body of Principles states: “Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.” Principle 8 of the Basic Principles on the Role of Lawyers states: “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within the sight, but not within the hearing, of law enforcement officials.”
Page 475 Note 3 U.S. Dep't of Justice Press Release on Testimony of Attorney General John Ashcroft Before the Senate Committee on thejudiciary (Dec. 6,2001) (prepared remarks), a«http://www.justice.gov/ag/testimony/2001/ 1206transcriptsenatejudiciarycommittee.htm>.
Page 475 Note 1 See Katharine Q. Seelye, First "Unlawful Combatants" Seized in Afghanistan Arrive at U.S. Base in Cuba, N.Y. TIMES, Jan. 12, 2002, at A7.
Page 475 Note 2 See Katharine Q. Seelye, Rumsfeld Lists Outcomes for Detainees Held in Cuba, N.Y. TIMES, Feb. 27, 2002, at A10. Most of the detainees reportedly are Saudi nationals. See John Mintz, Most Detainees Are Saudis, Prince Says, WASH. POST, Jan. 29, 2002, atA12.
Page 475 Note 3 See T. R. Reid, U.S. Pressed on.Detainees' Treatments ASH. POST, Jan. 17, 2002, at A15;John Mintz, Treatment of Detainees in Cuba Questioned, WASH. POST, Jan. 16, 2002, at A13.
Page 475 Note 4 See Katharine Q_. Seelye, On Defensive, General Says Prisoners Get Mats, Even Bagels, N.Y. TIMES, Jan. 17, 2002, at A14; Katharine Q. Seelye, Rumsfeld Defends Treatment by U.S. of Cuba Detainees, N.Y. TIMES, Jan. 23, 2002, at Al.