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Bar Association Assails US on Detainees: Lawyer group demands to know why immigrants held after 9/11 have no counsel

14 August 2002

The American Bar Assn., the nation's largest lawyers' group, on Tuesday condemned the government's secret detention of hundreds of immigrants after Sept. 11, demanding to know who has been held and why many detainees have not received legal representation.

In Norfolk, Va., meanwhile, a federal judge also sharply criticized the Bush administration, saying it has mistreated a U.S. citizen, Yaser Esam Hamdi, by detaining him for months without charges or access to a lawyer.

The administration, the Pentagon and the Justice Department have staunchly defended their actions, saying the secret detentions were needed because the nation is at war with an unseen enemy: terrorists who aim to strike again and are hiding within the U.S. borders.

The Justice Department, for instance, has appealed last week's ruling that it release the names of more than 1,100 people detained since the attacks on the World Trade Center and the Pentagon, arguing that doing so would put the nation at risk of additional terrorist attacks.

But the ABA, which has 408,000 members, and U.S. District Judge Robert Doumar in Norfolk, expressed significant objections Tuesday to the administration's detainee policies, suggesting that the government was trampling the rights of immigrants and U.S. citizens alike in waging its self-described war on terrorism.

The association, which consists of prosecutors, defense attorneys, judges and legal experts, wields enormous influence in Washington and in legal circles throughout the country. It issued its resolution at its annual conference in Washington after a short debate and voice vote.

"It is essential that we not tamper with the most fundamental freedoms," said Esther F. Larden, a Georgetown University law professor who heads the ABA's Coordinating Committee on Immigration Law. "At the most difficult times, when our freedoms are tested, we speak out to preserve the rule of law, to preserve our core values and to preserve our national heritage."

U.S. Solicitor General Theodore B. Olson attended the meeting at a packed downtown hotel but did not address the group. Several lawyers spoke in defense of the government, but the legal body appeared to support the resolution overwhelmingly.

The ABA formally opposed the "incommunicado detention of foreign nationals in undisclosed locations" and urged that the constitutional and legal rights of immigrants be protected.

It also issued a series of recommendations for the Justice Department and its Immigration and Naturalization Service.

The ABA said authorities should immediately disclose the names, detention facilities and charges against detainees, and ensure their immediate access to lawyers. Also, it said the government should promptly charge detainees or release them, and provide them with prompt hearings before immigration judges "with meaningful administrative review and oversight."

It also urged the government to hold public hearings in detainee cases, except in rare instances in which the nation's security is believed to be at risk if information about terrorist plots is disclosed. The group also urged the INS to create a set of standards regarding the detention of such immigrants.

Immigrants were swept up by the hundreds in the dragnet that followed the Sept. 11 attacks, when the FBI and other law enforcement agents interviewed thousands of people and chased leads all over the United States.

Many of those detained remained in federal detention facilities long after authorities had determined that they played no role in Sept. 11 or any other terrorist conspiracy. Such detentions, and the secrecy in which the detainees were held, prompted an outcry from a broad array of civil and human rights groups, as well as legal and constitutional scholars, and led to a lawsuit against the government.

Last week, U.S. District Judge Gladys Kessler in Washington ruled that the government must turn over the names of the detainees, saying there was no justification for such blanket secrecy.

Nearly all of the detainees have been released from custody. Most already have been deported for immigration violations, and none has been charged with involvement in terrorist acts or conspiracies.

In a related measure, the ABA delayed deliberation of a proposed recommendation on the government's classification of Americans as enemy combatants.

So far, only two U.S. citizens are believed to be held by the military as combatants: Hamdi and Jose Padilla, who is accused of conspiring with members of Osama bin Laden's Al Qaeda network to detonate a low-level radioactive, or "dirty," bomb in the U.S. Both men are being held without charges or access to attorneys.

In Hamdi's case, the federal judge in Norfolk said Tuesday that he was "concerned" that the government was trying to "punish" Hamdi, perhaps in an effort to pressure him into talking.

Hamdi has been held in solitary confinement since his capture in Afghanistan, where the government alleges he was an armed soldier in the Taliban army.

Doumar has already given the government a deadline to turn over information to justify its continued detention of Hamdi, who was born in Louisiana but moved at a young age to Saudi Arabia.

The government has refused to do so, saying Doumar does not have the right to review anything but one declaration from a U.S. official as to why Hamdi has been classified as an enemy combatant.

Doumar repeatedly sided with Hamdi on Tuesday. During a two-hour hearing, he said, for instance, that the government's declaration said Hamdi was only "associated" with the Taliban, not fighting with them.

Separately Tuesday, Dennis W. Archer, a former mayor of Detroit, became the first African American president-elect of the ABA, which until 1943 banned membership by blacks. Archer, 60, a former Michigan Supreme Court justice, is a past president of the competing National Bar Assn., which was founded in 1925 by African American lawyers who were refused membership in the ABA.

The group also chose another black lawyer, Robert Grey Jr. of Richmond, Va., to succeed Archer as president in 2004.

Josh Meyer, Washington
Published in the Los Angeles Times © 2002 Los Angeles Times

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