Immigrants urged to be alert to loss of liberties
• The United States has a strong tradition of protecting individual rights, but it also has a long history of imposing restrictions on foreigners who are viewed as threats, a law professor says.
BY MARION DAVIS
Journal Staff Writer
PROVIDENCE
-- Daniel Kanstroom can tell his clients pretty clearly what U.S. drug laws allow and forbid, and what will happen to violators. Possess aspirin? No problem. Possess cocaine? Go to prison.
But when it comes to the USA-Patriot Act, the antiterrorism law passed after the Sept. 11 attacks, Kanstroom can only tell the immigrants who seek his advice to watch out.
Could they be targeted for having an Arab name? Maybe. For being Muslim? Perhaps. For having friends who are critical of the United States, or for donating money to a Muslim charity? Quite possibly.
"I would say yes, you should be concerned," Kanstroom told an African Muslim yesterday who asked if he might be called for questioning one of these days for fitting a certain profile.
"The way these laws are being enforced is very discretionary, and it's been very secretive," Kanstroom added. "The best thing I can say is, get a good lawyer. And it pains me to have to answer your question this way, because it's not right."
Kanstroom, a professor at the Boston College Law School and director of the college's Immigration and Asylum Project, spoke about immigrants' new legal concerns yesterday as part of a series of events at the Providence Public Library titled "Safe and Free: Civil Liberties Since September 11."
Kanstroom said the United States has a strong tradition of protecting individual rights, well beyond what many other countries do, but it also has a long history of imposing restrictions on foreigners who are viewed as threats, starting with the 1798 Alien and Sedition Acts.
Those particular acts lapsed, and are widely condemned now, but the U.S. Supreme Court has repeatedly supported crackdowns on immigrants that would not pass constitutional muster if applied to U.S. citizens, Kanstroom said.
Take the Scott Act, passed in 1888 in response to a large wave of Chinese immigration that had led to race riots in California. The law banned Chinese immigration, and even barred Chinese people from reentering the United States if they had left the country temporarily.
One Chinese immigrant filed suit, but the Supreme Court ruled that the government's power to control immigration is plenary, part of its basic sovereignty, and not subject to constitutional review.
That view has prevailed ever since, Kanstroom said. Over time, some rights have been recognized for foreigners, as long as they're on U.S. soil: To deport someone, the government should follow a fair process. And if someone faces penalties beyond the scope of immigration laws -- say, he has been charged with a crime -- he should get the same protections that a U.S. citizen would get.
But in 1996, in response to the Oklahoma City bombing, Congress decided to impose tighter restrictions on immigrants. Even though Timothy McVeigh, a white U.S. citizen, had orchestrated the terrorist attack, Congress went after everyone's initial suspects: foreigners.
Two laws passed that year stripped immigrants of legal protections, eliminated provisions that allowed judges to spare people from deportation, say, if they had U.S.-born children they wanted to raise here, expanded the reasons why people could be deported, required that immigrants charged with crimes be detained without bail, and allowed for special measures to be taken against immigrants suspected of terrorism.
Ironically, court challenges to those "really, really harsh" laws were starting to bear fruit when terrorists struck the World Trade Center and the Pentagon, Kanstroom said. And so instead of getting relief, immigrants are facing harsher treatment.
The Bush administration has taken a stance that breaks with widely accepted concepts, Kanstroom said.
First of all, he said, the USA-Patriot Act blurs the lines between criminal enforcement and wartime security measures, justifying certain actions that wouldn't normally be acceptable because we're at war -- and yet Congress has never declared war.
The Bush administration has also legitimized racial profiling, which until Sept. 11 had been widely condemned, Kanstroom said. And it has made it clear that foreigners are not to be treated the same as U.S. citizens.
Overall, the USA-Patriot Act puts immigrants at the mercy of the executive branch of the government, minimizing the role of the judiciary. Officials wanted to be able to even impose the death penalty without judicial review, Kanstroom said, but in response to extensive criticism, it appears that defendants will at least get some legal protections.
Laws such as these erode the fabric of the legal system, Kanstroom said. "This may be a formula for social disaster."
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