CASE NO.

09-3074 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________________________ ISMOIL SAMADOV, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. ___________________________________ ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS ___________________________________ BRIEF OF AMICI CURIAE IMMIGRATION LAW SCHOLARS IN SUPPORT OF PETITIONER ___________________________________ ASIM REHMAN Counsel of Record TRACY A. BURNETT NICOLE JACOBY ARSALAN SULEMAN DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 Counsel for Amici Curiae

AMICI CURIAE IMMIGRATION LAW SCHOLARS * David Abraham Professor of Law University of Miami School of Law Wendi Adelson Director, Human Rights and Immigration Law Project Center for the Advancement of Human Rights Florida State University Muneer I. Ahmed Clinical Professor of Law Yale Law School Susan M. Akram Clinical Professor of Law Boston University School of Law Deborah Anker Clinical Professor of Law Harvard Law School Lenni B. Benson Professor of Law New York Law School Gabriel J. Chin Chester H. Smith Professor of Law James E. Rogers College of Law University of Arizona

David Cole Professor of Law Georgetown University Law Center Johanna K.P. Dennis Associate Professor of Law Vermont Law School Niels W. Frenzen Clinical Professor of Law Gould School of Law University of Southern California Paula Galowitz Clinical Professor of Law New York University School of Law

Sameer Ashar Associate Professor of Law The City University of New York School of Law

The academic affiliations of amici curiae are listed for identification purposes only.
i

Kevin R. Johnson Dean University of California, Davis, School of Law Sital Kalantry Associate Clinical Professor of Law Cornell Law School Anil Kalhan Associate Professor of Law Earle Mack School of Law Drexel University

Vanessa H. Merton Professor of Law Pace University School of Law

Nancy Morawetz Professor of Clinical Law New York University School of Law Hiroshi Motomura Susan Westerberg Prager Professor of Law University of California, Los Angeles, School of Law Sarah H. Paoletti Clinical Supervisor and Lecturer, Transnational Legal Clinic University of Pennsylvania School of Law Huyen Pham Professor of Law Texas Wesleyan University School of Law Jaya Ramji-Nogales Assistant Professor of Law Beasley School of Law Temple University Jayesh Rathod Assistant Professor of Law Washington College of Law American University

Harvey Kaplan Adjunct Professor of Law Northeastern School of Law

Beth Lyon Associate Professor of Law Villanova University School of Law

Peter L. Markowitz Assistant Clinical Professor of Law Benjamin N. Cardozo School of Law

Elizabeth McCormick Associate Clinical Professor of Law University of Tulsa College of Law

ii

Sarah Rogerson Clinical Fellow, Immigrant Rights Clinic University of Baltimore School of Law Victor C. Romero Maureen B. Cavanaugh Distinguished Faculty Scholar and Professor of Law Dickinson School of Law Pennsylvania State University C. Mario Russell Adjunct Professor St. Johns University School of Law Natsu Taylor Saito Professor of Law Georgia State University College of Law

Claudia Slovinsky Adjunct Professor New York Law School Jayashri Srikantiah Associate Professor Stanford Law School

Juliet Stumpf Associate Professor of Law Lewis & Clark Law School David B. Thronson Professor of Law William S. Boyd School of Law University of Nevada, Las Vegas Yolanda Vazquez Clinical Supervisor and Lecturer University of Pennsylvania Law School

John A. Scanlan Professor Emeritus Maurer School of Law Indiana University Barbara A. Schwartz Clinical Professor of Law University of Iowa College of Law Ragini Shah Assistant Clinical Professor of Law Suffolk University Law School

Penny M. Venetis Clinical Professor of Law Rutgers School of LawNewark Shoba Sivaprasad Wadhia Clinical Professor of Law Dickinson School of Law Pennsylvania State University

iii

Jonathan Weinberg Professor of Law Wayne State University Michael Wishnie Clinical Professor of Law Yale Law School

Stephen W. Yale-Loehr Adjunct Professor of Law Cornell University Law School

iv

TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT .........................................................1 STATEMENT OF INTEREST BY AMICI CURIAE ..............................................1 ARGUMENT .............................................................................................................2 I. HISTORY AND COURTS HAVE LOOKED UNFAVORABLY UPON THE EXECUTIVES TENDENCY TO TARGET DISFAVORED IMMIGRANT COMMUNITIES AND EXAGGERATE THE THREAT THEY POSE TO NATIONAL SECURITY......................................................................................................2 A. B. C. The Palmer Raids and the Use of Guilt By Association Evidence ................................................................................................6 The Cold War and the Communist Cases ...........................................10 Immigration Enforcement Targeting Arabs and Muslims ..................15 1. 2. II. The Use of Secret Evidence Against Arabs and Muslims........15 The 2001 Terrorist Attacks and Expanded Immigration Enforcement Against Arabs and Muslims ................................17

THE COURT SHOULD MEANINGFULLY SCRUTINIZE THE RECORD TO ENSURE THAT THE EXECUTIVES CASE AGAINST PETITIONER IS GROUNDED IN RELIABLE EVIDENCE, NOT CONJECTURE, SPECULATION OR ASSOCIATIONAL GUILT ..........................................................................25

CONCLUSION........................................................................................................29

TABLE OF AUTHORITIES CASES Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff'd by an equally divided court, 484 U.S. 1 (1987)..........................................27 Ahmed v. Obama, 613 F. Supp. 2d 51 (D.D.C. 2009) .......................................24, 25 Al-Adahi v. Obama, No. 05-280 (GK), 2009 WL 2584685 (D.D.C. Aug. 21, 2009) ......................................................................................24 Al Rabiah v. Obama, No. 02-828 (CKK), 2009 WL 3083077 (D.D.C. Sept. 17, 2009) ......................................................................................24 Al-Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009) .............................25 American-Arab Anti-Discrimination Comm. v. Reno, 883 F. Supp. 1365 (C.D.Cal. 1995)...................................................................................................17 Awad v. Obama, No. 05-CV-2379, 2009 WL 2568212 (D.D.C. Aug. 12, 2009) ......................................................................................24 Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008) ......................................24 Bridges v. Wixon, 326 U.S. 135 (1945) ...................................................5, 11, 12, 13 Cheema v. Ashcroft, 372 F.3d 1147 (9th Cir. 2004)................................................16 Colyer v. Skeffington, 265 F. 17 (D. Mass. 1920), revd in part sub nom. Skeffington v. Katzeff, 277 F. 129 (1st Cir. 1922) ............................................8, 9 Diaz v. Barber, 261 F.2d 300 (9th Cir.1958)...........................................................15 Ex Parte Jackson, 263 F. 110 (D. Mont. 1920) .........................................................9 Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963)......................................14, 27 Grzymala-Siedlecki v. United States, 285 F.2d 836 (5th Cir. 1961) .......................15 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ........................................................4, 5, 29 Heikkila v. Barber, 345 U.S. 229 (1953) ...................................................................5

vi

I.N.S. v. St. Cyr, 533 U.S. 289 (2001)........................................................................5 In re Ferenci, 217 F. Supp. 714 (E.D. Pa. 1963).....................................................15 In re Guantanamo Bay Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005)........25 In re Hamide and Shehadeh, Nos. A 19 262 560 & A 30 660 528 (IJ Dec. Jan. 29, 2007) ........................................................................................20 In re Nasser Ahmed (N.Y. EOIR, Immigr. Ct. May 1, 1996)..................................16 In re Kwong Hai Chew, 278 F. Supp. 44 (S.D.N.Y. 1967) .....................................15 In re Samadov, No. A 79-729-711 at 12-14 (IJ Dec. Aug. 2, 2005) .......................27 Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999) ...........................................17 Knauff v. Shaughnessy, 338 U.S. 537 (1950) ..........................................................14 Korematsu v. United States, 323 U.S. 214 (1944).....................................................4 Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) ..........................25 Kwock Jan Fat v. White, 253 U.S. 454 (1920) ..........................................................6 Larsson v. INS, 321 F.2d 541 (9th Cir. 1963)..........................................................15 Rafeedie v. I.N.S., 795 F. Supp. 13 (D.D.C. 1992) ..................................................17 Rowoldt v. Perfetto, 355 U.S. 115 (1957)....................................................12, 13, 27 Scales v. United States, 367 U.S. 203 (1961) ..........................................................12 Scythes v. Webb, 307 F.2d 905 (7th Cir. 1962) .......................................................15 Shaughnessy v. Mezei, 345 U.S. 206 (1953)............................................................14 Skinner v. Rainway Labor Executives Assn, 489 U.S. 602 (1989) .........................5 Title v. INS, 322 F.2d 21 (9th Cir. 1963) .................................................................51 United States ex rel. Pon v. Esperdy, 296 F. Supp. 726 (S.D.N.Y. 1969) ..............15 Yusupov v. Attorney Gen., 518 F.3d 185 (3rd Cir. 2008) ..............................2, 26, 28

vii

STATUTES Alien Act of October 16, 1918, Pub. L. No. 65-221, 40 Stat. 1012 ..........................6 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (1952) .......................................................................................10, 11 INA 241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv)...................................2, 26, 28 Internal Security Act of 1950, Pub. L. No. 81-831, 64 Stat. 987 (1950)...........10, 11 Johnson-Reed Act, Pub. L. No. 68-139, 43 Stat. 153 (1924) ....................................7 Uniting & Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) ..........................................................19 OTHER AUTHORITIES 200 Caught in New York, N.Y. Times, Nov. 8, 1919, at 1 ........................................7 Administrative Comment, Indefinite Detention Without Probable Cause: A Comment on the INS Interim Rule 8 C.F.R. 287.3, 26 N.Y.U. Rev. L. & Soc. Change 397 (2000-2001) ..............................................................................3 Am. Civil Liberties Union, Sanctioned Bias: Racial Profiling Since 9/11 7 (Feb. 2004) .........................................................................................................20 Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. Davis L. Rev. 1137 (2008) ..........................3 Appoints F.A. Wallis Immigration Chief, N.Y. Times, Apr. 30, 1920, at 17 ............8 Atty Gen. A. Mitchell Palmer on Charges Made Against Dept of Justice by Louis F. Post and Others: Hearings Before the H. Comm. on Rules, 66th Congress, 2d Sess. (1920).....................................................................................9 Charges of Illegal Practices of the Dept of Justice: Hearings Before a Subcomm. of the S. Comm. on the Judiciary, 66th Cong., 3d Sess. (1921) .........9 Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, (1995)..................................................................................................................14
viii

Charles H. McCormick, Seeing Reds: Federal Surveillance of Radicals in the Pittsburgh Mill District, 1917-1921 (Univ. of Pitt. Press 1997) ................7, 9 Chisun Lee, An Examination of 38 Gitmo Detainee Lawsuits, ProPublica, July 22, 2009.......................................................................................................24 Constantine Panunzio, The Deportation Cases of 1919-1920 (Federal Council of the Churches of Christ in America 1921)...........................................7 Daphne Eviatar, Another Gitmo Detainee Wins in Federal Court; Score Is Detainees 31, United States 8, Wash. Indep., Nov. 20, 2009.............................24 David Cole, 9/11 and the LA 8, The Nation, Oct. 9, 2003 ......................................19 David Cole, Enemy Aliens, 54 Stan. L. Rev. 953 (2002) ..........................................4 David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (The New Press 2003) ....................... 6, 7, 8, 10, 16, 17 David Cole, No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint, 75 U. Chi. L. Rev. 1329 (2008)........................10 David Cole, Secrecy, Guilt by Association, and the Terrorist Profile, 15 J.L. & Rel. 267 (2000-2001)..........................................................................17 Developments in the Law: The Law of Prisons: V. Plight of the TempestTost: Indefinite Detention of Deportable Aliens, 115 Harv. L. Rev. 1915 (2002)....................................................................................................................3 Felix Frankfurter, The Case of Sacco and Vanzetti (1927) .......................................9 Frederick .A.O. Schwarz & Aziz Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press 2007). .........................5 Geoffrey R. Stone, Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton & Co. 2004). ...........................................................................3, 21 Harlan Grant Cohen, Note: The (Un)Favorable Judgment of History: Deportation Hearings, the Palmer Raids, and the Meaning of History, 78 N.Y.U. L. Rev. 1431 (2003) ....................................................................6, 7, 8

ix

Hiroshi Motomura, Immigration Law After A Century Of Plenary Power: Constitutional Norms And Statutory Interpretation, 100 Yale L.J. 545 (1990)..................................................................................................................12 Hon. Paul Brickner & Meghan Hanson, The American Dreamers: Racial Prejudices and Discrimination As Seen Through the History of American Immigration Law, 26 T. Jefferson L. Rev. 203 (2004).......................................19 Human Rights Watch, Presumption of Guilt: Human Rights Abuses of PostSeptember 11 Detainees (2002)..........................................................................22 Human Rights Watch & Am. Civil Liberties Union, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11 (2005).............................................................................................................22 Jaya Ramji-Nogales, A Global Approach to Secret Evidence: How Human Rights Law can Reform our Immigration System, 39 Colum. Hum. Rts. L. Rev. 287 (2008)...........................................................17 Joby Warrick, A Blind Eye to Guantanamo? Book Says White House Ignored CIA on Detainees Innocence, Wash. Post, July 12, 2008....................23 Jonathan L. Hafetz, The First Amendment and the Right of Access to Deportation Proceedings, 40 Cal. W. L. Rev. 265 (2004)...................................4 Katharine Q. Seelye, A Nation Challenged: Captives; Detainees Are Not P.O.W.'s, Cheney and Rumsfeld Declare, N.Y. Times, Jan. 28, 2002, at A6 .......................................................................23 Mark Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data (Feb. 8, 2006)......................................................................................................23 Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273 ..........................................................................4 National Popular Government League, To the American People: Report Upon the Illegal Practices of the United States Department of Justice (1920)....................................................................................................................9

Office of the Inspector Gen., U.S. Dept of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (2003) ...................................................................................18, 20, 21, 22 Rachel Swarns, Programs Value in Dispute as a Tool to Fight Terrorism, N.Y. Times, Dec. 21, 2004 .................................................................................21 Regin Schmidt, Red Scare: FBI and the Origins of Anticommunism in the United States, 1919-1943 (Museum Tusculanum Press 2000) ............................7 Richard G. Powers, Secrecy and Power: The Life of J. Edgar Hoover (Free Press 1987) ..................................................................................................7 Stuart Taylor, Jr., Falsehoods About Guantanamo, Natl J., Feb. 4, 2006, at 13.................................................................................23 Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, 14 Geo. Immigr. L.J. 51 (1999-2000) ...........................16 Susan M. Akram & Maritza Karmely, Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction without a Difference?, 38 U.C. Davis L. Rev. 609 (2005)......................................................3, 16, 18, 22 Susan Sachs, Traces of Terror: The Detainees; Cost of Vigilance: This Broken Home, N.Y. Times, June 4, 2002 ...........................................................20 The Red Assassins, Wash. Post, Jan. 4, 1920, at 26...................................................8 The War on Terrorism: Immigration Enforcement Since September 11, 2001: Hearing Before Subcomm. on Immigration, Border Sec., and Claims Comm. on the Judiciary, 108th Cong. 8 (2003) ....................................20 Tom Lasseter, Day 1: Americas Prison for Terrorists Often Held the Wrong Men, McClatchy Newspapers, June 15, 2008.....................................................23

xi

CORPORATE DISCLOSURE STATEMENT Amici curiae Immigration Law Scholars are not a corporate entity for which a corporate disclosure statement is required. (See Fed. R. App. P. 26.1.)

STATEMENT OF INTEREST BY AMICI CURIAE Amici curiae Immigration Law Scholars are legal scholars and historians from a diverse range of U.S. law schools who teach and study in the area of immigration law and history. Amici write to bring to this Courts attention historical and contemporary practices demonstrating that, particularly in times of crisis, the Executive Branch has periodically overstated national security threats posed by non-citizens and used the looser evidentiary and procedural standards of immigration law to detain or remove large numbers of particular categories of disfavored immigrant populations. Amici are concerned that the case against Petitioner may be, like past cases where the Executive has cast non-citizens as national security threats, based on highly attenuated or guilt by association evidence. Mindful of the Executive Branchs historical conduct and the importance of the Judiciarys role in our constitutional system of separation of powers, amici urge the Court to carefully scrutinize the evidence in this case to ensure that the significant judgment to deny withholding of deportation and asylum is not based on conjecture or guilt by association, but is instead based on reliable

and substantial evidence that comports with well established Supreme Court precedent and this Courts stringent test in Yusupov v. Attorney General, 518 F.3d 185, 197, 201-202 (3rd Cir. 2008), rather than on fear or conjecture. All parties have consented to the filing of this amicus brief, which is respectfully submitted in support of the Petitioner pursuant to Federal Rule of Appellate Procedure 29(a). ARGUMENT I. HISTORY AND COURTS HAVE LOOKED UNFAVORABLY UPON THE EXECUTIVES TENDENCY TO TARGET DISFAVORED IMMIGRANT COMMUNITIES AND EXAGGERATE THE THREAT THEY POSE TO NATIONAL SECURITY Immigration laws related to national security, such as INA 241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv) invoked in this case, can be useful tools against individuals who present a bona fide threat to our nation. In invoking such laws, the Executive has historically insisted and will likely insist in this case that it is uniquely positioned to evaluate the asserted security threat a non-citizen poses. However, the historical record demonstrates that particularly in times of perceived crisis or wartime, the Executive often has overplayed or exaggerated national security threats and enforced such immigration laws in an overly

aggressive and regrettable fashion against politically disfavored immigrant populations.1 The indiscriminate round-up of perceived radicals in the 1919 Palmer Raids, the political response to suspected Communist Party members in the 1940s and 1950s, and the recent post-9/11 detention and removal measures focused exclusively on Arabs and Muslims powerfully illustrate this historical lesson. In each of these circumstances, the Executive Branch, motivated by intense political pressure to respond aggressively,2 circumvented criminal procedural protections such as probable cause based on suspicion and used immigration law3 to succumb

See Geoffrey R. Stone, Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism 5, 283-307, 528-29 (W.W. Norton & Co. 2004). Stone, supra note 1, at 5. Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. Davis L. Rev. 1137, 1204-05 (2008) ([T]he federal government has increasingly sought to recast its day-to-day, civil immigration enforcement efforts as enforcement priorities implicating national security. In a number of instances since 2001, the government has relied upon civil immigration proceedings--including the availability of prolonged detention and less stringent time limits within which to charge individuals being held--to investigate cases in which its actual objectives were in fact simultaneously civil and criminal.). See also Administrative Comment, Indefinite Detention Without Probable Cause: A Comment on the INS Interim Rule 8 C.F.R. 287.3, 26 N.Y.U. Rev. L. & Soc. Change 397 (2000-2001); Susan M. Akram & Maritza Karmely, Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction without a Difference?, 38 U.C. Davis L. Rev. 609, 686-87 (2005); Developments in the Law: The Law of Prisons: V. Plight
3

2 3

to popular suspicions and prejudices against certain disfavored immigrant groups. Yet in each of these circumstances, the arrest, deportation and detention of thousands of immigrants has eventually been discredited and demonstrated to have been based on faulty or exaggerated assertions of danger, xenophobia, and attenuated theories of associational guilt, rather than upon concrete, reliable or legally sufficient evidence specific to the individual.4 The Judiciary, based in part on these historical lessons and elementary separation-of-powers principles, has played with some regrettable exceptions, see, e.g., Korematsu v. United States, 323 U.S. 214 (1944) an important role in constraining the Executives demands for broad deference in its judgments about

of the Tempest-Tost: Indefinite Detention of Deportable Aliens, 115 Harv. L. Rev. 1915, 1925-31 (2002); Jonathan L. Hafetz, The First Amendment and the Right of Access to Deportation Proceedings, 40 Cal. W. L. Rev. 265, 265-66 (2004).
4

See, e.g., David Cole, Enemy Aliens, 54 Stan. L. Rev. 953 (2002); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273. The Supreme Court has observed this trend even in the context of the governments authority to detain enemy combatants: Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004).
4

threats that individuals pose to national security.5 In the immigration context, while political branches have broad power to regulate immigration, the courts historically have engaged in a review of immigration matters and imposed basic constitutional and normative evidentiary requirements to ensure that the Executives basis for removing certain non-citizens is legally sufficient and grounded in substantial and reliable evidence.6 Thus, courts have long recognized
5

As Justice Souter has explained, For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nations entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that the constant aim is to divide and arrange the several offices. Hamdi, 542 U.S. at 545 (Souter, J., concurring). As Justice Thurgood Marshall wrote: History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases, and the Red scare and McCarthy-era internal subversion cases, are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it. Skinner v. Rainway Labor Executives Assn, 489 U.S. 602 (1989) (Marshall, J., dissenting) (internal citations omitted). See also Frederick .A.O. Schwarz & Aziz Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press 2007).

See I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001) (Because of [the Suspension Clause], some judicial intervention in deportation cases is unquestionably required by the Constitution. (quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953)); Bridges v. Wixon, 326 U.S. 135, 150-53 (1945) (invalidating finding of Communist Party membership based in part on hearsay admitted in violation of INS regulations in light of due process protections).
5

that, while the Executive enjoys great power over the immigration domain, [i]t is the province of the courts . . . to prevent abuse of this extraordinary power. Kwock Jan Fat v. White, 253 U.S. 454, 464 (1920) (reviewing detention under the Chinese Exclusion Laws). This judicial vigilance is just as necessary today. A. The Palmer Raids and the Use of Guilt By Association Evidence On May Day morning, 1919, conspirators triggered a series of bombings targeting dozens of public figures, including Attorney General Mitchell Palmer. Motivated in part by long-simmering suspicion of Bolsheviks and left-wing radicals in the countrys midst, and buoyed by an enraged publics demands for action, Palmer launched a series of nationwide raids aimed at detaining and removing large numbers of non-citizen radicals from the United States. 7 The first raids, which took place on November 7, 1919, were based on guilt by proxy: they were directed exclusively at non-citizen associates of left-wing groups instead of individuals actually suspected of conducting the attacks. Under the authority of the Alien Act of October 16, 1918, Pub. L. No. 65-221, 40 Stat. 1012, which permitted deportation of any alien believing in the violent overthrow of the government, the Justice Department adopted a broad rule providing that mere association with
7

Harlan Grant Cohen, Note: The (Un)Favorable Judgment of History: Deportation Hearings, the Palmer Raids, and the Meaning of History, 78 N.Y.U. L. Rev. 1431, 1454-55 (2003); David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism 117-18 (The New Press 2003).
6

certain left-wing organizations sufficed to establish deportability, regardless of whether the individual had ever actually attended any meetings.8 Even automatic members individuals unwittingly enrolled in the Communist Party en masse were targeted.9 Fueled in large part by prevailing racist and nativist sentiments,10 the raids focused on Russian and Eastern-European immigrants. Over 1,000 individuals, primarily non-citizens, were arrested in the November raids, most without warrants11 and often through violent means.12 On December 21, 1919, 249 non-citizens were loaded onto a ship popularly dubbed the Soviet Ark and deported to Russia.13 None of those deported were shown
8

Charles H. McCormick, Seeing Reds: Federal Surveillance of Radicals in the Pittsburgh Mill District, 1917-1921 155-58 (Univ. of Pitt. Press 1997); Cohen, supra note 7, at 1458. Cole, Enemy Aliens, supra note 7, at 121; Constantine Panunzio, The Deportation Cases of 1919-1920 56-57 (Federal Council of the Churches of Christ in America 1921). Richard G. Powers, Secrecy and Power: The Life of J. Edgar Hoover 73 (Free Press 1987) (quoting Palmer describing aliens lopsided faces and misshapen features as marks of the unmistakable criminal type). In 1924, nativist sentiments were once again codified in the Johnson-Reed Act, Pub. L. No. 68-139, 43 Stat. 153, which put new restrictions on the immigration of Asians and Eastern-Europeans.

10

11

Regin Schmidt, Red Scare: FBI and the Origins of Anticommunism in the United States, 1919-1943 268 (Museum Tusculanum Press 2000). See 200 Caught in New York, N.Y. Times, Nov. 8, 1919, at 1. Cohen, supra note 7, at 1460.
7

12 13

to have been perpetrated or involved in planning the bombings; in fact, the bombers were never discovered.14 Nevertheless, the Executive received the public approbation that often accompanies such an undifferentiated response to a national threat. There is no time, the Washington Post urged, to waste on hairsplitting over infringement of liberties.15 Officials who opposed the mass deportations were pressured to resign.16 More raids followed, resulting in the arrest of up to 10,000 individuals.17 While in the minority, several courts not directly subject to extreme political pressure carefully scrutinized the Executives actions.18 Judge George Anderson, ruling on the habeas petitions of numerous detainees, issued a detailed opinion that brought to light the Executives mob tactics, rejecting the principle of associational guilt and ordered the detainees released.19 In Montana, Judge

14 15 16 17 18 19

Cole, Enemy Aliens, supra note 7, at 118. The Red Assassins, Wash. Post, Jan. 4, 1920, at 26. See Appoints F.A. Wallis Immigration Chief, N.Y. Times, Apr. 30, 1920, at 17. Cole, Enemy Aliens, supra note 7, at 120. Id. at 124. Colyer v. Skeffington, 265 F. 17, 43, 79-80 (D. Mass. 1920), revd in part sub nom. Skeffington v. Katzeff, 277 F. 129, 133 (1st Cir. 1922). The First Circuit reversed Judge Andersons ruling as to certain detainees, holding that the Communist Party was an organization advocating the overthrow of the government by force or violence. Katzeff, 277 F. at 133. The Circuits reversal
8

George Bourquin, granting a detainees writ of habeas, wrote that [a]ssuming petitioner is of the so-called Reds [,] he and his kind are less a danger to America than are those who indorse or use the methods that brought him to deportation.20 Prominent jurists concurred. In May of 1920, a group of legal scholars, including Felix Frankfurter, Zachariah Chafee, and Roscoe Pound, issued a report concluding that [American] institutions have been seriously undermined by Palmers ruthless suppression.21 Supreme Court Justice Charles Evans Hughes described the raids as the worst practices of tyranny.22 Attorney General Palmer soon found himself called before Congress to defend his conduct.23 Ultimately,

did not affect Judge Andersons ruling as to other detainees who had not been afforded due process and a fair hearing. See Colyer, 265 F. at 79-80.
20

Ex Parte Jackson, 263 F. 110, 113 (D. Mont. 1920). Other courts rejected the governments methods less publicly. For example, in New York, Judge Knox ordered the government to provide particularized evidence of involvement in radical activities against a detainee. Unable to do so, the government dropped the case. McCormick, supra note 8, at 177-78. National Popular Government League, To the American People: Report Upon the Illegal Practices of the United States Department of Justice 7 (1920). Felix Frankfurter, The Case of Sacco and Vanzetti 43 n.1 (1927). See Atty Gen. A. Mitchell Palmer on Charges Made Against Dept of Justice by Louis F. Post and Others: Hearings Before the H. Comm. on Rules, 66th Congress, 2d Sess. (1920); Charges of Illegal Practices of the Dept of Justice: Hearings Before a Subcomm. of the S. Comm. on the Judiciary, 66th Cong., 3d Sess. (1921).
9

21

22 23

thousands of immigrants were detained, but not one was charged with involvement in the bombings.24 B. The Cold War and the Communist Cases With World War II and the Cold War that followed, the political branches exploited heightened anti-Communist fears and broadly targeted politically unpopular immigrants through national security statutory provisions. By the middle of 1939, Congress was considering more than 100 anti-immigrant proposals.25 In the early 1950s, with the passage of the Internal Security Act of 1950 (The McCarran Act) and the Immigration and Nationality Act of 1952 (The McCarran-Walter Act), Congress adopted some of the most extensive ideological deportation and exclusion provisions in its history.26 The legislation required Communist organizations to register with the Attorney General, prohibited citizenship and allowed for deportation of members of Communist groups.27
24

David Cole, No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint, 75 U. Chi. L. Rev. 1329, 1347-48 (2008). Cole, Enemy Aliens, supra note 7, at 130. Internal Security Act of 1950, Pub. L. No. 81-831, 64 Stat. 987 (1950); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952). Internal Security Act of 1950 7, 22; Immigration and Nationality Act of 1952 212, 241, 313.
10

25 26

27

In response to the new rules, and notwithstanding the Executives claimed entitlement to deference, the Supreme Court closely scrutinized the evidence proffered to support removal on national security grounds and imposed meaningful legal limits on the Executives removal authority. In the following cases, the Court confirmed that the Executives characterization of a person as dangerous was frequently distorted by prevailing fears about currently disfavored groups and, under a permissible interpretation of the statute, could not be supported by a reasonable interpretation of the evidence. First, in Bridges v. Wixon, 326 U.S. 135 (1945), an early Cold War case, the Court overturned the deportation order for Harry Bridges, a labor organizer with abstract sympathy for some Communist party principles, because the Executives evidence did not prove that he was meaningfully affiliated with the Communist Party or its violent aims. 326 U.S. at 156-57. Notwithstanding the national security context and Congresss desire[] to have the country rid of those aliens who embraced the political faith of force and violence, id. at 147, the Court recognized that the hardship of deportation undergirded its duty to carefully review the evidence presented against Bridges.28 In spite of the Executives heated

28

326 U.S. at 149 ([W]here the fate of a human being is at stake the presence of the evil purpose may not be left to conjecture); id. at 165 (Murphy, J., concurring) (Deportation, with all its grave consequences, should not be sanctioned on such weak and unconvincing proof of a real and imminent threat to our national security. Congress has ample power to protect the United States
11

allegations about Bridges proclivities, the Court independently examined the evidence against him in the record and found that [i]nference must be piled upon inference to conclude that Bridges actually believed in the revolutionary aims of the groups whose aid and assistance he employed. Id. at 148. The Court thus imposed a requirement that the Executive demonstrate meaningful affiliation between the individual and the proscribed group, and held that an individual, like Bridges, who cooperates with such an organization only in its wholly lawful activities cannot by that fact be said as a matter of law to be affiliated with it under a permissible interpretation of the statute.29 The Court also found that the evidence of Bridges alleged Communist Party membership was unconvincing because it was based on unsworn witness statements admitted into evidence in contravention of the Board of Immigration Appeals (BIA) own rules and in violation of Bridges due process rights.30 Concluding that the Executive had not

from internal revolution and anarchy without abandoning the ideals of freedom and tolerance.).
29

Id. at 143 (emphasis in original). See also Hiroshi Motomura, Immigration Law After A Century Of Plenary Power: Constitutional Norms And Statutory Interpretation, 100 Yale L.J. 545, 565-66 (1990) (noting constitutional underpinnings to rule). In a subsequent decision, the Supreme Court cited to Bridges and Rowoldt v. Perfetto, 355 U.S. 115 (1957), in applying the meaningful association standard, rather than mere associational guilt, in the criminal context. Scales v. United States, 367 U.S. 203, 222 (1961). 326 U.S. at 151-56 (The [BIAs] rules are designed to protect the interests of the alien and to afford him due process of law.).
12

30

met the evidentiary burden to deport Bridges, the Court explained that where the liberty of an individual is at stake . . . [m]eticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness. Id. at 154. In subsequent years, the Court continued to develop important evidentiary limitations on the Executive when non-citizens were labeled threats to national security. In Rowoldt v. Perfetto, 355 U.S. 115 (1957), the Court reversed the deportation order of a non-citizen where the only evidence leading to his deportation was his own testimony that he joined the Communist Party, paid dues, attended meetings, worked in a Communist bookstore, and terminated his membership after a year. 355 U.S. at 116-21. Rather than take the immigrants testimony as proof positive that he was a deportable Communist Party member, and notwithstanding the national security implications of Internal Security Act cases, the Court reaffirmed the solidity of proof that is required for a judgment entailing the consequences of deportation. Id. at 120. After carefully reviewing the record, the Court concluded that the dominating impulse to his affiliation with the Communist Party may well have been wholly devoid of any political implications, id., and that, therefore, the government did not meet its burden of proving that he was deportable under the statutory requirements of the Internal Security Act. Id. at 121.
13

In Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963), the Court overturned a deportation order that was based solely on the testimony of two government witnesses who stated that the non-citizen was a dues-paying Communist Party member who had attended some Party meetings. 374 U.S. at 474-78. The Court found the testimony to be extremely insubstantial, id. at 476, noting that the governments case relied entirely on the non-citizens failure to produce or elicit evidence. Id. at 479. Explaining that deportation is a drastic sanction, one which can destroy lives and disrupt families, the Court held that a holding of deportability must therefore be premised upon evidence of meaningful association more directly probative than a mere inference based upon the aliens silence. Id. at 479.31 Bridges, Rowoldt, Gastelum-Quinones, and the numerous cases that followed,32 reveal the Supreme Courts recognition that the Judiciary has an

31

Even in cases during this era where the Executive convinced a divided Court that certain aliens could be excludable as a threat to national security, see Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (4-3 decision); Shaughnessy v. Mezei, 345 U.S. 206, 215 (1953) (5-4 decision), the Executives asserted harm was later proven demonstrably exaggerated. See Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 963-64, 983-84 (1995). See, e.g., Title v. INS, 322 F.2d 21, 23-25 (9th Cir. 1963); Larsson v. INS, 321 F.2d 541, 541 (9th Cir. 1963) (per curiam); Scythes v. Webb, 307 F.2d 905, 907 (7th Cir. 1962); Grzymala-Siedlecki v. United States, 285 F.2d 836, 840 (5th Cir. 1961); Diaz v. Barber, 261 F.2d 300, 300-01 (9th Cir.1958); United States ex rel. Pon v. Esperdy, 296 F. Supp. 726, 730 (S.D.N.Y. 1969); In re Kwong
14

32

obligation in a system of separation of powers to closely scrutinize Executive judgments in cases brought before the courts, even when the Executive claims to be acting in the interest of national security. C. Immigration Enforcement Targeting Arabs and Muslims As terrorism has emerged as the principal national security concern in the post-Cold War era, heightened immigration enforcement has been deployed against the latest group of unpopular non-citizens Arabs, Muslims, and those perceived to be such. Armed with new immigration enforcement tactics as well as evidentiary rules that gave the government powerful leverage in immigration proceedings, the Executive continued to inflate the alleged threat posed by certain disfavored non-citizens and took action against individuals with no demonstrable connection to terrorist activity. The Executives overreaction would later be exposed by the Judiciary, the public, and the Executives own internal watchdog. 1. The Use of Secret Evidence Against Arabs and Muslims

In the last two decades, the Executive has aggressively employed the use of secret evidence in proceedings to detain and remove Arab and Muslim noncitizens.33 Once the Secret Evidence rule is invoked, the non-citizen and counsel

Hai Chew, 278 F. Supp. 44, 46, 50-51 (S.D.N.Y. 1967); In re Ferenci, 217 F. Supp. 714, 716-17 (E.D. Pa. 1963).
33

Cole, Enemy Aliens, supra note 7, at 51-53, 73-81.

15

are prohibited from reviewing, and effectively denied the opportunity to rebut, the evidence supporting the Executives charge against the non-citizen. Between 1996 and 2001, all but one of the approximately twenty-five immigration cases in which the government sought to use secret evidence against non-citizens involved Arabs or Muslims.34 No doubt recognizing that the use of secret evidence affords tremendous power to the Executive Branch in what is supposed to be an adversarial process, courts have imposed significant limitations on its use, such as ordering the government to produce the evidence to the court,35 and requiring in camera review and declassification of secret evidence.36 In many cases, following declassification or in camera review, immigration courts have determined that the non-citizen was not a national security threat.37 In doing so, the courts exposed serious concerns about the integrity of secret evidence, such as the inclusion of information that was

34

Akram & Karmely, supra note 3, at 617. The other case involved a Sikh from India. See Cheema v. Ashcroft, 372 F.3d 1147 (9th Cir. 2004). See Akram & Karmely, supra note 3, at 618 n.33 (citing In re Nasser Ahmed (N.Y. EOIR, Immigr. Ct. May 1, 1996)); see also Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, 14 Geo. Immigr. L.J. 51, 84-86 (1999-2000) (discussing In re Nasser Ahmed). Kiareldeen v. Reno, 71 F. Supp. 2d 402, 413-14 (D.N.J. 1999). See generally David Cole, Secrecy, Guilt by Association, and the Terrorist Profile, 15 J.L. & Rel. 267, 274-75 (2000-2001). See Cole, Secrecy, supra note 36, at 270-75.
16

35

36

37

already public38 and the use of unreliable sources.39 Some federal courts have found that the use of secret evidence violates the constitutional due process rights of non-citizens.40 In most of the reported cases, the individuals who were alleged threats are now living free.41 2. The 2001 Terrorist Attacks and Expanded Immigration Enforcement Against Arabs and Muslims

The attacks on September 11, 2001 set in motion another wave of federal immigration measures targeting Arab and Muslim non-citizens. Within days of the attacks, Attorney General John Ashcroft pledged to employ aggressive arrest and detention tactics in the war on terror, and directed the Department of Justice (DOJ) to use every available law enforcement tool to pursue terrorism suspects.42 Immigration law figured prominently in this strategy. Scholars

38 39

See id. at 274-75. Cole, Enemy Aliens, supra note 7, at 171-72; Jaya Ramji-Nogales, A Global Approach to Secret Evidence: How Human Rights Law can Reform our Immigration System, 39 Colum. Hum. Rts. L. Rev. 287, 308 (2008). See Kiareldeen, 71 F. Supp. 2d at 413-14; American-Arab Anti-Discrimination Comm. v. Reno, 883 F. Supp. 1365, 1377 (C.D.Cal. 1995). Moreover, courts have struck down the exclusion provisions of the McCarran-Walter Act as unconstitutional. See e.g., Rafeedie v. I.N.S., 795 F. Supp. 13, 18-20, 22-23 (D.D.C. 1992). See Cole, Secrecy, supra note 36, at 269. Office of the Inspector Gen., U.S. Dept of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges
17

40

41 42

estimate that between 2,000 and 5,000 individuals, almost all Arab and Muslim,43 were arrested, detained, interrogated or deported as a result of these measures; the vast majority was not charged with any terrorism-related crime.44 Much of what the Executive did occurred in stealth; however, when presented with challenges to executive detention or removal actions, courts scrutinized the evidence presented by the Executive and, in many cases, found it insufficient to support the executive action, let alone the hyperbolic rhetoric motivating it. On October 26, 2001, Congress passed the USA PATRIOT ACT. Section 411 of the Act authorized the Executive to deport, or deny entry to, foreign nationals who provide even innocent support to groups fitting an expansive definition of terrorist organization.45 While facially silent as to ethnicity, the Acts provisions have been disparately applied to Arab and Muslim communities.46

in Connection with the Investigation of the September 11 Attacks 12 (2003), available at http://www.justice.gov/oig/special/0306/full.pdf. [hereinafter OIG Report].
43 44 45

Akram & Karmely, supra note 3, at 620. Id. at 621, 631-32. Uniting & Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001); USA Patriot Act 411 & 412, 8 U.S.C. 1182 & 1226. See, e.g., Hon. Paul Brickner & Meghan Hanson, The American Dreamers: Racial Prejudices and Discrimination As Seen Through the History of American Immigration Law, 26 T. Jefferson L. Rev. 203, 231 (2004).
18

46

Once again, the government used insufficient evidence to target a disfavored group under this new Act. In a 2003 case involving the attempted deportation of two Palestinians under section 411 who were previously subject to unsuccessful removal attempts based on secret evidence, the Executives evidence did not withstand scrutiny.47 The immigration judge found that the government failed to present clear, unequivocal, and convincing evidence of the mens deportability, commenting that [t]he attenuation of these proceedings, which long predated section 411, is a festering wound on the body of these respondents, and an embarrassment to the rule of law.48 Aside from the PATRIOT ACT, the Executive has implemented a range of post-9/11 immigration enforcement measures targeting Arabs and Muslims. Many of these programs were beyond the jurisdiction of the courts but were otherwise exposed as discriminatory, ineffective in identifying potential terrorists, and rife with errors. For example, immediately following the attacks, the Federal Bureau of Investigation (FBI) launched the massive PENTTBOM investigation in order to identify individuals linked to terrorism.49 The Executive began
47

David Cole, 9/11 and the LA 8, The Nation, Oct. 9, 2003, available at http://www.thenation.com/doc/20031027/cole. In re Hamide and Shehadeh, Nos. A 19 262 560 & A 30 660 528 at 9-10, 11 (IJ Dec. Jan. 29, 2007), available at http://www.adc.org/PDF/LA8.pdf. OIG Report, supra note 42, at 1.
19

48

49

investigating certain immigration violations which it admits had not been typically pursued in the past in order to detain individuals against whom criminal cases otherwise could not be brought for lack of evidence.50 While some people were put through standard INS procedures, individuals deemed of interest could be administratively detained until the FBI cleared them of terrorist connections.51 The of interest designation was emblematic of the Executives overreact[ion] to the perceived dangers of wartime.52 According to the DOJs

Two more immigration enforcement programs the Absconder Apprehension Initiative (AAI) and the National Security Entry-Exit Registration System (NSEERS) similarly were touted as national security measures but instead targeted primarily Arab and Muslim non-citizens with simple immigration violations. Under the AAI, as many as 1,139 individuals were arrested or deported. The War on Terrorism: Immigration Enforcement Since September 11, 2001: Hearing Before Subcomm. on Immigration, Border Sec., and Claims Comm. on the Judiciary, 108th Cong. 8, 14 (2003) (statement of Michael Dougherty). These individuals were not charged as terrorists, but were people with established community roots: the neighborhood grocer, families with schoolchildren, and . . . the spouses or parents of American citizens. Susan Sachs, Traces of Terror: The Detainees; Cost of Vigilance: This Broken Home, N.Y. Times, June 4, 2002, at A15. Under the NSEERS Special Registration program, 83,310 non-citizens were registered and 13,740 were placed in deportation proceedings in the first year. American Civil Liberties Union, Sanctioned Bias: Racial Profiling Since 9/11 7 (Feb. 2004), available at http://www.aclu.org/national-security/racial-profiling-911-report. Not a single non-citizen subject to registration was publicly charged with terrorism. Rachel Swarns, Programs Value in Dispute as a Tool to Fight Terrorism, N.Y. Times, Dec. 21, 2004 (quoting former INS Commissioner James Ziglar).
50 51 52

OIG Report, supra note 42, at 13, 39-41. Id. at 40. Stone, supra note 1, at 5.
20

Inspector General, the of interest designation was applied in an indiscriminate and haphazard manner,53 with detainees arrested more by virtue of chance encounters . . . rather than by any genuine indications of a possible connection with or possession of information about terrorist activity.54 Detention was often based on vague and anonymous leads regarding Arabs and Muslims engaged in otherwise lawful activity.55 At least 762 non-citizens, consisting almost entirely of adult Muslim men who were citizens of, or born in, Middle Eastern or South Asian countries,56 were detained under the PENTTBOM program. Although no individual was publicly charged with a terrorist crime,57 many PENTTBOM detainees were held in restrictive lockdown, without access to family or lawyers for extended periods of time.58 The erroneous application of the of interest designation and the wrongful detention of these individuals is consistent

53 54 55 56

OIG Report, supra note 42, at 70. Id. at 41-42, 70. Id. at 16-17. Id. at 20-21; Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees 10 (2002), available at http://www.hrw.org/legacy/reports/2002/us911/USA0802.pdf. See Akram & Karmley, supra note 3, at 631. OIG Report, supra note 42, at 112-14.
21

57 58

with the governments admitted errors in arresting and detaining certain individuals under the criminal material witness statute.59 Because of the secrecy of the PENTTBOM programs and issues such as the denial of counsel and formal hearings, there was little opportunity for courts to scrutinize the Executives detention abuses as they were happening. Yet the demonstrably exaggerated and overwrought claims by the Executive regarding the threat posed by Muslim and Arab immigrant populations underscores the importance of the exercise of meaningful judicial scrutiny of evidence proffered by the Executive in national security cases such as this one, where judicial review is statutorily compelled. This principle is amply supported even in the context of judicial review of military detentions of so-called enemy combatants imprisoned in Guantanamo Bay. The predictable, early boast by the Executive Branch that Guantanamo detainees were all terrorists, or the worst of the worst,60 has been disproven by

59

Human Rights Watch & Am. Civil Liberties Union, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11 1-2 (2005), available at http://hrw.org/reports/2005/us0605/. Joby Warrick, A Blind Eye to Guantanamo? Book Says White House Ignored CIA on Detainees Innocence, Wash. Post, July 12, 2008, available at http://www.washingtonpost.com/wpdyn/content/article/2008/07/11/AR2008071102954.html (quoting a 2002 statement by then-Defense Secretary Donald H. Rumsfeld); see also Katharine Q. Seelye, A Nation Challenged: Captives; Detainees Are Not P.O.W.'s, Cheney and Rumsfeld Declare, N.Y. Times, Jan. 28, 2002, at A6 (quoting
22

60

commentators61 and the courts. Even in a wartime context where the Executive has been afforded great deference, courts have found the governments evidentiary basis for detention insufficient in a remarkable 31 out of 39 cases.62 Those courts have consistently maintained their obligation to carefully scrutinize the Executives proffered evidentiary basis for the detention and rejected government conclusions based on conjecture, speculation, or guilt by association.63 Courts have also

Secretary Rumsfelds characterization of detainees as among the most dangerous, best trained, vicious killers on the face of the earth.).
61

See Mark Denbeaux et al., Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data (Feb. 8, 2006), available at http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf; see also Tom Lasseter, Day 1: Americas Prison for Terrorists Often Held the Wrong Men, McClatchy Newspapers, June 15, 2008, available at http://www.mcclatchydc.com/detainees/story/38773.html; Stuart Taylor, Jr., Falsehoods About Guantanamo, Natl J., Feb. 4, 2006, at 13. See Daphne Eviatar, Another Gitmo Detainee Wins in Federal Court; Score Is Detainees 31, United States 8, Wash. Indep., Nov. 20, 2009, http://washingtonindependent.com/68609/another-gitmo-detainee-wins-infederal-court-score-is-detainees-31-united-states-8; see also Chisun Lee, An Examination of 38 Gitmo Detainee Lawsuits, ProPublica, July 22, 2009, http://www.propublica.org/special/an-examination-of-31-gitmo-detaineelawsuits-722. See e.g., Al Rabiah v. Obama, No. 02-828 (CKK), 2009 WL 3083077, at *1, *19 (D.D.C. Sept. 17, 2009) (governments cumulative evidence surprisingly bare and certain inferences from evidence incredible or def[ying] logic); Al-Adahi v. Obama, No. 05-280 (GK), 2009 WL 2584685, at *15 (D.D.C. Aug. 21, 2009) (observing government allegations cannot rest on mere conjecture, with no hard evidence to support it.); Awad v. Obama, No. 05-CV-2379, 2009 WL 2568212, at *6 (D.D.C. Aug. 12, 2009) (governments evidence gossamer thin); Ahmed v. Obama, 613 F. Supp. 2d 51, 56 (D.D.C. 2009) (rejecting the governments proffered mosaic theory of evidence because the kind and
23

62

63

repeatedly rejected a claimed authority to detain that is based on little more than guilt by association. As one court observed: Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi's conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations[.]64 * * * As powerfully stated by Judge Marilyn Hall Patel when granting Fred Korematsus coram nobis petition and vacating his conviction, [the Supreme Courts decision in Korematsu v. United States] stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, amount of evidence which satisfies the intelligence community in reaching final conclusions about the value of information it obtains may be very different, and certainly cannot govern the Courts ruling); Boumediene v. Bush, 579 F. Supp. 2d 191, 197 (D.D.C. 2008) (granting habeas writ because central piece of evidence from informant was not supported with enough information to adequately evaluate the credibility and reliability of this sources information.).
64

Al-Mutairi v. United States, 644 F. Supp. 2d 78, 96 (D.D.C. 2009); see also Ahmed, 613 F. Supp. at 63-65 (rejecting charge as little more than guilt by association); In re Guantanamo Bay Detainee Cases, 355 F. Supp. 2d 443, 474-76 (D.D.C. 2005) (government must demonstrate more than a detainees mere association with asserted dangerous groups).
24

legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused. Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984). History demonstrates that the Executive has frequently overstated the threat posed by non-citizens when seeking to enforce the immigration laws against disfavored non-citizens in times of national crisis. At the same time, this history reinforces the important institutional role the Judicial Branch plays in ensuring that Executive judgments are properly supported by sufficient, probative evidence, rather than the innuendo and forms of undifferentiated guilt by association that frequently motivates the political branches to act in the first place. This history remains relevant today. II. THE COURT SHOULD MEANINGFULLY SCRUTINIZE THE RECORD TO ENSURE THAT THE EXECUTIVES CASE AGAINST PETITIONER IS GROUNDED IN RELIABLE EVIDENCE, NOT CONJECTURE, SPECULATION OR ASSOCIATIONAL GUILT This Courts decision in Yusupov v. Attorney General interpreted INA 241(b)(3)(B)(iv) consistent not only with this countrys non-refoulement obligations under international law, but also in a manner that appropriately restrains the Executives authority to classify aliens as dangerous based on little more than speculation, fear, or guilt by association. Under Yusupovs

25

interpretation of 241(b)(3)(B)(iv), the Executive must demonstrate that Petitioner is (not may be) an actual (not theoretical) danger to the security of the United States, and this finding must be supported by reasonable, substantial, and probative evidence. 518 F.3d at 197, 201-02. This rule is consistent with Rowoldt and subsequent cases, that have found that, in order to deport an individual on national security grounds, substantial reliable evidence not speculation, innuendo, or attenuated associational guilt is required as a matter of law.65 Petitioner is now asking this Court to review the BIAs evidentiary finding that there are reasonable grounds to believe that Petitioner is an actual danger to the security of the United States. Consistent with judicial history and the Judiciarys role in our separation of powers scheme, this Court should carefully scrutinize the evidence presented by the Executive to ensure that it is, in fact, reasonable but not speculative, substantial but not nominal, and probative but not immaterial. The Executive has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where

65

See Gastelum-Quinones, 374 U.S. at 477-40; Rowoldt, 355 U.S. at 120.

26

those statutory and constitutional boundaries are. Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff'd by an equally divided court, 484 U.S. 1 (1987). Although amici are not intimately familiar with the record, the evidence outlined in this Courts opinion in Yusupov and the BIAs judgment on remand, coupled with the fact that Petitioner is a Muslim who was investigated by the FBI just one year after 9/11, appears similar to the circumstances of other Muslim and Arab non-citizens who have in recent years been subject to the aggressive use of the Executive removal and detention power. In addition to the national security measures discussed supra, the national security exception under INA 241(b)(3)(B)(iv) may be just one more enforcement tool that the Executive sought to apply against members of a currently disfavored and politically unpopular group. Here, much of the governments evidence against Petitioner emails, videos, and other computer files from a refurbished computer shared by various roommates, and Department of Homeland Security testimony about the conduct of petitioners roommates does not appear to be linked directly to Petitioner. It is notable that the only apparent evidence that is specific to Petitioner an extradition request from his native Uzbekistan, and a related Interpol notice was, based on substantial record evidence, viewed by the Immigration Judge as proof that Petitioner would face persecution by the Uzbek government in light of his status as
27

a dissident, Independent Muslim.66 There appears to be a dearth of reliable evidence which directly connects Petitioner himself to any proscribed or suspicious conduct or to any dangerous group that seeks to harm the United States. Amici thus urge the Court to hold the Executive to the appropriate legal evidentiary standards set forth in Yusupov and enforced in the Communist Party cases and their progeny. Amici likewise urge the Court to consider historical patterns of immigration enforcement and the Executives tendency to amplify asserted threats to national security see Hamdi, 542 U.S. at 545 (Souter, J., concurring) when assessing the Executives direct or implicit request for deference in to its judgment in this case. History and contemporary events have demonstrated that the Executives insistence on broad deference in times of crisis often masks what is an otherwise insufficient evidentiary basis to detain or remove an individual. In light of the Courts important institutional role in our system of separation of powers, the Court should exercise appropriate skepticism about the Executives claims to ensure, at a minimum, that the use of this national security provision is limited to cases based on reliable and legally sufficient evidence, not mere conjecture or attenuated supposition. In so doing, it will act in accordance with the highest traditions of the Judiciary.

66

Yusupov, 518 F.3d at 191 n.9, 194; In re Samadov, No. A 79-729-711 at 12-14 (IJ Dec. Aug. 2, 2005).
28

CONCLUSION For the foregoing reasons, amici curiae respectfully request that this Court carefully scrutinize the evidence in this case to ensure that there is a sufficient factual and legal basis to believe that Petitioner is an actual danger to the security of the United States.

Dated: December 3, 2009 New York, NY /s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars

29

CERTIFICATE OF BAR MEMBERSHIP I do hereby certify that I am a member of the Bar of this Court in good standing. /s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars

CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS I do hereby certify that this brief complies with the type-volume limitation of Fed. R. App. Pr. 32(a)(7)(B). This brief contains 6,705 words, excluding the parts of the brief exempted by Fed R. App. P. 32(a)(7)(B)(iii) and Local Rule 29.1(b). The brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6). This brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman with a 14 point font.

/s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars

CERTIFICATION THAT ELECTRONIC COPY IS IDENTICAL TO THE PAPER COPY FILED I do hereby certify that the electronic version of this brief being filed on December 3, 2009, is identical to the paper copy of the brief filed on December 3, 2009.

/s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars

CERTIFICATION AS TO ANTI-VIRUS SCANNING I do hereby certify that the electronic version of the brief being filed on December 3, 2009, has been scanned for viruses on this date, by way of Symantec AntiVirus with all virus definitions updated as of this date, and found to be clean of viruses. /s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars

CERTIFICATION OF SERVICE I, Asim Rehman, Esq., hereby certify that I have arranged for service of two copies of the foregoing BRIEF OF AMICI CURIAE IMMIGRATION LAW SCHOLARS IN SUPPORT OF PETITIONER by Federal Express and by means of electronic service on each of the following counsel, each of whom is a Filing User pursuant to L.A.R. 113.2: Baher Azmy Anjana Malhotra SETON HALL LAW SCHOOL CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700 Counsel for Petitioner Lyle D. Jentzer United States Department of Justice Office of Immigration Litigation Civil Division 450 5th Street NW Washington, DC 20004 Counsel for Respondent

I further certify that I have caused one original and nine copies of the foregoing brief to be sent by Federal Express to the Clerk of the Court at the following address: Office of the Clerk United States Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1790 Dated: December 3, 2009 /s/ Asim Rehman ASIM REHMAN Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 Ph: (212) 909-6000 Fax: (212) 909-6387 Counsel of Record for Amici Curiae Immigration Law Scholars