Aliens

Since the SEPTEMBER 11TH ATTACKS on the United States in 2001, the status of aliens physically within the United States or its territories has been decidedly more tenuous. Aliens (non–citizens owing political allegiance to another country) are generally afforded certain fundamental rights and protections under the U.S. Constitution. For example, the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT states, in relevant part, that "no person shall be deprived of life or liberty without due process of law." But other constitutional provisions reserve certain fundamental rights to citizens only; for example, the FIFTEENTH and NINETEENTH AMENDMENTS guarantee the right "of citizens of the United States" to vote.

INTERNATIONAL LAW uses the term "alien enemy" to indicate a person who is the subject or citizen of a nation hostile to, or at war with, the nation in which the alien is found. The significance is that the person becomes, in time of war, impressed with the character of the enemy. However, the problem for many aliens in the United States is that, while their homeland may not be in a declared war with the United States, it may harbor terrorists or contribute to TERRORISM in a manner that renders the distinction moot. How, then, does the United States treat aliens from those countries? As author Roberta Smith noted in her 1997 law journal article, "America Tries to Come to Terms With Terrorism: The United States Anti-Terrorism and Effective Death Penalty Act of 1996 v. British Anti-Terrorism Law and International Response":

"The Fundamental question facing the United States, a democratic society … is how can they constrain terrorism without jeopardizing their value systems (e.g., protecting constitutional and CIVIL RIGHTS such as prohibitions against unreasonable SEARCHES AND SEIZURES, and protection of free speech)."

Prior to 2001, alleged terrorist attacks on the United States or on U.S. property included the 1993 bombing of the World Trade Center in New York City; the 1995 bombing of the Murrah Federal Building in Oklahoma City; the 1998 bombings of U.S. embassies in Kenya and Tanzania; the 1999 rocket shelling of U.S. buildings in Islamabad, Pakistan; and the 2000 attack on the U.S.S. Cole. Mostly in response to the Oklahoma bombing, Congress in 1996 passed the Antiterrorism and Effective Death Penalty Act (AEDPA), P.L. 104-132 (codified in scattered sections of 18 U.S.C.), and the Illegal Immigration and Reform and Immigration Responsibility Act (IIRIRA), P.L. 104-208 (codified as amended at 8 U.S.C. 1101). The AEDPA amended immigration laws and streamlined deportation procedures for aliens charged with terrorism.

Before these acts were passed, excludable aliens (those whose right to enter the United States was questioned by the Immigration and Naturalization Service [INS] prior to entry) were distinguished from deportable aliens (those whose entry into the United States was found to be illegal, or whose right to stay in the United States had terminated), and different correlative rights were attached to each. That distinction closely paralleled the terms of distinction between nonimmigrant aliens and illegal aliens. However, the AEDPA and IIRIRA muddied those distinctions, granting power to act against both illegal and immigrant aliens who fell under the acts' criteria.

For aliens, the distinction between punishable acts of terrorism and the constitutionally protected rights of association with, or support for, groups that historically advocate or engage in violence, was becoming increasingly nebulous. The AEDPA and IIRIRA permitted terrorism charges to be brought against an alien for any alleged association with an organization designated as terrorist by the SECRETARY OF STATE. Moreover, charges of terrorism could rest entirely on confidential reports not disclosed to the subject alien. Likewise, the IIRIRA limited JUDICIAL REVIEW in deportation cases, even when the challenge to deportation rested on First or Fourteenth Amendment constitutional grounds.

Nonetheless, the U.S. Supreme Court, in Reno v. Arab Anti-discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d. 940 (US 1999), allowed the challenged AEDPA to stand. The Court again confronted AEDPA issues in Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 249, 150 L.Ed.2d. 653 (US 2001), where a narrow majority ruled that deportable aliens with criminal records could not be detained indefinitely when their countries of nationality refused their return. The decision reaffirmed that Due Process Clause protections still existed for this narrowly defined class of persons who faced deportation.

In the wake of the September 2001 attacks, Congress passed the all-encompassing USA PATRIOT ACT (formally, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), H.R. 3162 (October 2001). The act, like the AEDPA, affects and amends several other provisions in the U.S. Code. Over 100 pages long, the act contains over 150 sections under ten titles. Of significance to aliens, Section 412 of the act provides for mandatory detention of suspected aliens. Aliens are suspect under the act for any of seven enumerated causes for detention. Further, certain aliens may be held for seven days without being charged and might possibly be detained indefinitely if deemed not removable. The section provides for limited judicial review of such detentions.

The act also required enhanced communications and sharing of data between the FBI, the JUSTICE DEPARTMENT, and the STATE DEPARTMENT, making it easier to watch and track individuals. The Immigration and Naturalization Service (INS) feeds information into the FBI's crime database, particularly concerning aliens who have received final deportation orders but failed to show for their exit trip. Any subsequent entry of that person's name or data in any other legal system, even for minor traffic offenses, will trigger arrest and deportation. In 2002, the Justice Department announced that younger Middle Eastern men from nations with active al Qaida cells who have ignored deportation orders would be expelled first.

Another key provision of the act was the implementation of an electronic tracking system affecting foreign students. It also began intense review of visa applications of scientists, engineers, and students in technical fields. Many foreign students accepted into scientific or academic programs were ultimately denied visas. The Patriot Act also prohibited illegal aliens, among others, from having access to "select agents" that could be used for harmful purposes.

Following the release of information that seven of the 19 terrorists who boarded planes on September 11, 2001, held drivers' licenses from the Commonwealth of Virginia (although they were illegal aliens), many states began enacting laws to limit the issuance of drivers' licenses to those aliens whose immigration status was legal. Approximately 12 states had similar laws by the end of 2002 (California, Colorado, Florida, Iowa, Kentucky, Louisiana, Minnesota, New Jersey, Ohio, Pennsylvania, South Carolina, and Virginia).

In June 2003, an official U.S. Justice Department report from its inspector general was critical of the detainment of several aliens in the wake of the September 2001 attacks. The 198-page report cited major delays in informing the detainees of the reasons for their detention and criticized the unwritten "no bond" policy of detention. The report also mentioned harsh conditions of confinement and instances of verbal and physical abuse.