ACTION ALERT

September 20, 2001 English - español

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SUMMARY

The United States government has announced it will extend its powers to arrest immigrants and hold them in detention. The Attorney General's office is also proposing drastic new laws which would restrict the rights of immigrants still more severely, allowing them to be locked up indefinitely without appeal. These laws would also increase government surveillance powers over all US residents and citizens.

The International Gay and Lesbian Human Rights Commission (IGLHRC) is gravely concerned that these measures, represented as a response to the September 11 terrorist attacks in the US, are only the beginning of an effort to limit or even eliminate many civil liberties. IGLHRC's concern grows from its commitment to defending the full range of human rights--but also from its experience in working with the vulnerable and stigmatized, including lesbian, gay, bisexual, and transgender people, immigrants, and people living with HIV/AIDS. We know that an erosion of civil liberties will affect everyone, but those with the least to lose will lose the most. People of color, those who merely "look" like immigrants, and those already marked out by hate will find hate compounded. A policy of government by suspicion simply gives prejudice an official stamp of approval. And other nations may pursue the US example.

IGLHRC urges IMMMEDIATE letters to US officials, urging them not to support these proposals. Human rights must not be added to the roster of terrorism's victims. Legitimate outrage at mass loss of life must not undermine the law. In an hour of crisis, States should protect freedoms, not restrict them. Leaving human beings defenseless against State power is no way to defend them from violence. It shows no strength: it only surrenders to fear.

ACTION

Please call or write IMMEDIATELY to the US President and Attorney General, and to key members of the US Congress. Sample letters are found below.

President George W. Bush
The White House

Washington, DC 20500
Tel.: 1-202-456-1414
Fax: 1-202-456-2461
E-mail: president@whitehouse.gov

Attorney General John Ashcroft
US Department of Justice

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Tel.: 1-202-353-1555
E-Mail: AskDOJ@usdoj.gov

Senator Tom Daschle
Majority Leader, US Senate

United States Senate
Washington, DC 20510
Tel.: 1-202- 224-2321
E-mail: tom_daschle@daschle.senate.gov, or contact through http://daschle.senate.gov/webform.htm

Senator Patrick Leahy
Chair, Senate Judiciary Committee

United States Senate
Washington, DC 20510
Tel.: 1-202-224-4242
E-mail: senator_leahy@leahy.senate.gov

Congressman Dennis Hastert
Speaker of the House of Representatives

US House of Representatives
Washington, DC 20515
E-mail: speaker@mail.house.gov

Congressman F. James Sensenbrenner, Jr.
Chair, House Judiciary Committee

US House of Representatives
Washington, DC 20515
Tel.: 1-202-225-3951
E-mail: judiciary@mail.house.gov

Congressman Richard Gephardt
House Minority Leader

U.S. House of Representatives
Washington, DC 20001
Tel.: 1-202- 225-0100 or 202) 225-2671
Fax: (202) 225-7452
E-mail: gephardt@mail.house.gov

BACKGROUND

In widespread sweeps, the United States Department of Justice has detained numerous immigrants since the September 11 attacks on Washington and New York. Some were accused of violating the terms of their visas. In cases where the visa conditions had clearly been met, however, the Department's Immigration and Naturalization Service (INS) faced a 24-hour deadline to release the detained persons or to charge them with a crime.

Such deadlines are grounded in international human rights standards. The International Covenant on Civil and Political Rights (ICCPR), for example, prohibits arbitrary arrest or detention, and requires that all detained persons-- whether citizens or non-citizens --be brought quickly before a court, "in order that that court may decide without delay on the lawfulness of [their] detention."

On September 18 the Department of Justice changed its rules on immigration detention, effective immediately. The new rules allow the INS to hold immigrants without charges for 48 hours, rather than 24. "In the event of emergency or other extraordinary circumstance," however, this limit could be waived, allowing the INS to hold immigrants virtually indefinitely without a court hearing or any other intervention. The INS could exert this power over any immigrant, refugee, or foreign visitor to the US.

Making these changes is within the legal power of the INS. However, the Department of Justice is also preparing to send a sweeping package of "anti-terrorism" legislation to Congress. One proposed bill already circulating, called the "Mobilization Against Terrorism Act," would restrict immigrants' rights still further. It would allow the Attorney General to lock up immigrants on "certifying" that they were suspected of "facilitating" terrorist activity. The government could order them deported without presenting any evidence. The legislation specifically states that "no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any action taken .. . . to detain an alien" under the act. Immigrants would only have the right to appeal a final deportation order, and only to a single US District Court.

So-called "secret evidence" rules, in effect since 1955, already allow the government to violate due process in immigration cases. The government can present classified information to judges in immigration hearings, while denying the accused or opposing lawyers the right to see it. Over two dozen people--all but one of them Arab or Muslim--were held for extended periods under secret evidence rules between 1992 and 1998. The new proposed legislation would exempt the government from having to present any evidence at all in deportation hearings. It would violate numerous provisions of international law, including Article 13 of the ICCPR, which specifically ensures that "aliens" be protected from arbitrary or extralegal expulsion. The legislation would also cement the denial of habeas corpus to immigrants. That right--the right of a detained person to a hearing before a court which can mandate release--is basic to US constitutional law, as well as international law.

These draconian measures come in a context of increasing hatred and violence directed at Arabs, Muslims, Sikhs, and people of color, in the United States and elsewhere. Political leaders have rightly condemned the attacks: but these proposals endorse the unreasoning fear behind the violence. They give open license to profiling. They affirm that US law distinguishes deeply among the inhabitants of US soil, that the difference between citizens and non-citizens is not one simply of papers, but of personhood: that basic rights inhere in US passport holders, but can be stripped from others.

Already the terrorist attacks in the US have fed fear of immigrants worldwide. US legislation may provide examples to other countries. Australia's nationalist government, for example, has exploited the September 11 assault to muster support for long-planned, xenophobic legislation which would remove outlying islands from the country's migration zones. By declaring those islands legally separate from the Australian mainland, the government could thus deprive refugees landing there of the right to a legal hearing on their asylum claim. Such a move violates the internationally recognized right to asylum, and makes a mockery of Australia's obligations under the 1951 UN Convention Relating to the Status of Refugees.

Immigrants are not the only victims of fear, however. The rights of US citizens are also threatened by the "Mobilization Against Terrorism Act." The Act would increase the government's powers to wiretap and monitor phone and e-mail conversations. It also offers broad definitions of the term "engage in terrorist activity," including "to commit an act that the actor knows, or reasonably should know, affords material support . . . to any organization . . . or individual whom the actor knows, or reasonably should know, has committed or plans to commit any terrorist activity" [emphasis added].

That certain acts are terrorism is unequivocally clear. The September 11 attacks can bear no other name. However, in the absence of a clear legal definition of terrorism, innocent people can easily be dragged into a net of suspicion. The United Nations' Special Rapporteur on Terrorism and Human Rights, Ms. Kalliopi Koufa, has noted in a recent report that "the definition problem is the major factor in the controversy regarding terrorism"--and that "high political stakes [are] attendant upon the task of definition." Too extensive a use of the term, too encompassing a concept of involvement, can criminalize any political activity the State frowns upon. Britain's 1974 "Prevention of Terrorism Act," passed in response to Irish Republican attacks, exhibits the dangers. Defining terrorism simply as the "use of violence for political ends," the Act is a standing threat to any political organization which appears to endorse, or is even inadvertently associated with, violence. The Act also shows the perverse durability of supposed "temporary," "emergency" legislation. Designed to expire in one year, it has routinely been renewed and even expanded by successive UK governments. Similarly, Egypt still retains "emergency security" legislation passed after the 1981 assassination of President Anwar el-Sadat. Its special courts, which provide no right of appeal, have been used to try such recent threats to the security of Egypt as heavy metal fans and gay men. (See IGLHRC and Human Rights Watch July 2001 statement, "Emergency Court Trials for Homosexual Suspects," at http://www.iglhrc.org/news/press/pr_010703.html).

Present US law itself offers inconsistent definitions of terrorism. The Federal crime of terrorism is defined, for example (,cite>18 USC Sec. 2332b), as specified offenses against persons or property which are "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." However, present immigration law (8 USC Sec. 1182)--the basis on which aliens are identified as suspects in "terrorist activity"--has a broader definition of terrorism, specifying comparable acts but omitting the stipulation of motive. It is incumbent on US officials and lawmakers to punish terrorism. It is equally important, in this crisis, that they consider clearly the nature and limits of the crime, and devise definitions consistent in their application and effect.

Finally, it is crucial that responses to terrorism unite societies, not divide them, and overcome hatred, rather than feed it. To stigmatize immigrants and foreigners, to foster discrimination and xenophobia, is self-defeating. To praise basic freedoms in rhetoric while denying them in practice is self-destructive. The UN Commission on Human Rights stated in a recent resolution that all efforts against terrorism must stand "in strict conformity with international law, including human rights standards." This is not a brake on such efforts. It is a condition of their success. Terrorism strikes at basic rights, including the right to life. It can only be defeated when that assault is blunted--when all human rights are affirmed, respected, protected, and enjoyed.

INTERNATIONAL LAW

The right to equality before the law is affirmed in Article 7 of the Universal Declaration of Human Rights (UDHR) and in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The right to freedom from arbitrary arrest and detention is affirmed in Article 9 of both the UDHR and ICCPR.

The ICCPR in its Article 13 affirms the right of aliens not to be expelled from a State, "except in pursuance of a decision reached in accordance with law," as well as the right of an alien in such a case to "submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority."

The right to freedom from arbitrary interference with privacy is affirmed by the UDHR in its Article 12 and by the ICCPR in its Article 17.

The US ratified the ICCPR in 1992. The UDHR is considered part of customary international law and is binding on all member States of the United Nations.

OTHER RESOURCES

A PDF copy of sections of the proposed "Mobilization Against Terrorism Act" can be downloaded by clicking at http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/terror_draftlegislation.pdf

The "Progress Report" of the UN's Special Rapporteur on Terrorism and Human Rights (June 27, 2001, document no. E/CN.4/Sub.2/2001/31) can be downloaded in PDF or Word formats by clicking at http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/fc5f9a4ce1424921c1256aa40056d061?Opendocument

The UN Commission on Human Rights' 2001 resolution on "Human Rights and Terrorism" can be found by searching for document no. E/CN.4/RES/2001/37 at http://www.unhchr.ch/huridocda/huridoca.nsf/Documents?OpenFrameset

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