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Ashcroft's power to detain without charges continues without oversight

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© St. Petersburg Times
published May 5, 2002

While acrid smoke from the wreckage of the World Trade Center towers was still lingering in the air, Congress and the Justice Department were haggling over broad, new powers that Attorney General John Ashcroft wanted -- needed -- to fight the terrorist menace and protect American lives.

Although leaders in Congress were cowed into bow-and-scrape timidity by Ashcroft's demand that they act ASAP on his requests lest another terror attack go unaverted, lawmakers did draw the line at one point. They refused to give Ashcroft the power to hold immigrant terror suspects indefinitely.

When the USA Patriot Act passed in October, it authorized long-term immigrant detentions at the attorney general's say-so but included at least some due process: Immigrants could not be held more than seven days without charge or the start of deportation proceedings; and every six months the attorney general had to review the terror-suspect certifications and report to the judiciary committees in Congress. It was one way Congress could provide some oversight and accountability.

Well, the first certification report was submitted to Congress last month. It was a six-line, thumb-your-nose letter written by an assistant attorney general indicating that not a single immigrant has been certified as an alien terrorist. Not one.

Now, anyone who hasn't been holed up in a Skinner box the last seven months might find this curious. What about those 104 immigrants still sitting in jails and detention centers around the country as detainees of the Justice Department? These aliens are surely being treated as terrorist suspects. In violation of every tradition of American justice, their incarceration has been steeped in secrecy. We don't know who they are or why they are being held, and it is all being justified as necessary for national security.

So why hasn't the department certified at least some of them as alien terror suspects under the USA Patriot Act? Apparently, Ashcroft didn't have to. He found he could lock immigrants up secretly and for long periods without this new statutory power. Ashcroft has simply written himself new regulations that incorporate all the USA Patriot Act detention powers and more, but without the pesky requirement that he report to Congress.

For months, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and other congressional leaders have been asking for detailed information on the detainees; and so far the squirely Ashcroft has sent them only nonresponsive responses. Ashcroft clearly doesn't want to be answerable to anyone for the hundreds of souls he has locked away since Sept. 11; and Congress, and the media, have allowed him to get away with it.

The USA Patriot Act requires charges to be filed within seven days of detention. But Justice Department records indicate that "people have been held for weeks and months without charge," according to Tim Edgar, legislative counsel for the American Civil Liberties Union. One man was held for 119 days without charge -- essentially a political prisoner of our executive branch.

How could this be? Well, days after the terrorist attacks, Ashcroft simply changed the rules regarding the amount of time an immigrant could be held before being charged. It had been 24 hours. He changed it to 48 hours plus an additional "reasonable time" in the event of an emergency situation. The "reasonable time" standard is meaningless enough to provide cover for whatever the department wants to do.

Other rule changes Ashcroft and his underlings have put in place include:

Giving the department an automatic override of an immigration judge's order to release an alien. Regardless of the judge's findings, immigrants may now remain incarcerated at the discretion of their prosecutors.

Closing immigration hearings for all Sept. 11 detainees and sealing all records about their cases. (A federal appeals court in Cincinnati recently said it will probably set this rule aside in particular cases.)

Forbidding nonfederal institutions from releasing information on Immigration and Naturalization Service detainees. Ashcroft rushed this emergency rule into effect after a New Jersey state court judge ordered that the name of every inmate incarcerated in state jails be made public. New Jersey Superior Court Judge Arthur D'Italia had called the secret arrests and detentions "odious to a democracy."

Ashcroft is increasingly emboldened by the silence of Congress and the media to this series of outrages carried out in the people's name. Why isn't every media outlet demanding to know about the 1,200 people picked up after Sept. 11 and the 104 immigrants still held in secret detention? Why does the public seem to care so much more about Chandra than whether public officials uphold our national principles?

The answer is Ashcroft's ticket to ride.

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