Weighing aliens' rights in face of terrorism

October 17, 2001|By Gregory Kane

OUR HOUSE of Representatives, facing the admittedly unenviable dilemma of what to do with aliens suspected of terrorist activity, has tried to adopt "compromise" legislation.

How, you might ask, can legislators compromise when terrorists seek to kill us? That's because terrorists, almost by definition, have no Constitution to preserve, protect, defend or cherish.

Our congressional representatives do. While the rest of us can scream and holler for suspects to be held indefinitely in the aftermath of Sept. 11, it's the legislators' job to be thoughtful and deliberate, to consider what the constitutional ramifications are of rounding up people and suspending habeas corpus.

A quick review of a high school civics lesson - you know, that stuff you swore you would never use again - might be in order. Habeas corpus is "any of various writs ordering a person to be brought before a court; specifically, a writ requiring that a detained person be brought before a court to decide the legality of the detention or imprisonment."

That definition comes from Webster's New World College Dictionary. Article I, Section 9 of the Constitution says clearly that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

We have been invaded. Public safety does indeed require a suspension of habeas corpus. Article I of the Constitution delineates the powers of Congress. It is our legislators - not President Bush or Attorney General John Ashcroft - who decide if and when habeas corpus will be suspended.

About 700 or so suspects are being held as a result of the investigation into the Sept. 11 terrorist attacks. Congress has neither suspended habeas corpus nor challenged Bush and Ashcroft to release the suspects. But they do have a compromise.

The House Judiciary Committee has determined that the suspects can be held seven days without being charged. Before we chide our representatives too severely for "compromising" in the face of one of the most clear and present dangers in our history, perhaps we should consider what the total legislative package says.

Such was provided by 2nd District Rep. Robert Ehrlich. The "compromise" is actually a series of measures regarding terrorism and immigration law. Title II of the legislation is called "Aliens Engaging in Terrorist Activity." Subtitle A concerns the "Detention and Removal of Aliens Engaging in Terrorist Activity."

Under the old statutes, aliens were inadmissible or deportable only if they used explosives or firearms. The new act would eliminate that specificity and expand it to include any object used as a weapon. This covers the knives and box-cutters used to hijack the jets that crashed into the World Trade Center's twin towers and the Pentagon and the one that crashed into the western Pennsylvania woods.

The new act would make inadmissible any alien who "endorses or espouses" terrorism and deportable any aliens who are "representatives of terrorist organizations so designated by the Secretary of State."

Here's what Section 203 says of that prickly matter of detention without trial:

"Under the current regulatory regime, the Immigration and Naturalization Service can detain an alien for 48 hours before making a decision as to charging the alien with a crime or removable offense. ... [This] Act provides a mechanism whereby the INS can detain a suspected terrorist alien for seven days before charging. If no charges are filed, the alien must be released."

If the alien is released and does no harm, fine. What if the alien is released and goes on to commit an act that takes scores, if not thousands, of lives?

What if suspects released know of terrorist plots and were about to break on Day 8 or 9 or 10? Some legislators will claim that the law, our Constitution and commitment to preserving habeas corpus compel us to set them free. But the law also says under what circumstances we must take extraordinary measures to preserve our safety - and our lives.

Ehrlich's hectic schedule rendered him unavailable for comment on the compromise legislation, but he has promised to speak at a later date. Until then, all Americans must ponder this conundrum: Detention without trial is indeed repugnant, but - as was proved Sept. 11 - there are things far worse.

And as we ponder, we should write, fax or e-mail our congressional representatives the following question: Will Congress find the belly to suspend habeas corpus should America be hit with another round of terrorist attacks?

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