I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, September 13, 2006

Banished U.S. citizens mysteriously permitted to return home (maybe)

The two American citizens who were banished from their own country by the Bush administration despite not having been charged with (let alone convicted of) any crime have now been magnanimously bequeathed permission to return home (maybe):

Two relatives of a Lodi man who was convicted of supporting terrorists have been cleared to return home from a long trip to Pakistan, ending a five-month standoff in which the U.S. citizens were told they had to cooperate with the FBI to get off the government's no-fly list, a federal law enforcement official said Tuesday.

"There's been a change," said the official, who spoke on condition of anonymity and would not detail the reason for the move, which was made by the U.S. Department of Homeland Security.

Lodi residents Muhammad Ismail, a 45-year-old naturalized citizen born in Pakistan, and his 18-year-old son, Jaber Ismail, who was born in the United States, were never charged with a crime. But they are the uncle and cousin of Hamid Hayat, 23, who was convicted in April of supporting terrorists by attending a Pakistani training camp and is awaiting sentencing.

The most striking aspect of this entire travesty was the sheer lawlessness of it. There was never any document issued to these citizens or their lawyers stating what the restrictions were or the basis for them. Instead, they were given multiple inconsistent explanations as to why they were barred from returning -- all delivered orally and informally by a shifting mix of airline security agents and representatives of the FBI. They were essentially trapped in some caricature of a Kafka nightmare where they were barred by unseen powers from returning to their country without any explanation as to what, if anything, they did to provoke that punishment and without being able even to know for certain who imposed the punishment.

There was even confusion all along as to what the punishment actually was -- i.e., whether they were barred entirely from entering the country or whether they were barred from flying into the U.S. (could they fly to Canada and enter by car? Could they travel to the U.S. by boat?). Roughly 10 days ago, I spoke with their lawyer, Julia Harumi Mass of the ACLU, and she had received informal indications that they were barred entirely from re-entry, not merely included on a no-fly list. But because this was all done so mysteriously and without any process of any kind, she could not even determine with any certainty what the actual punishment was, nor was there any way to find out.

The Good and Just Leaders who rule our country apparently decreed that these two subjects would be permitted to re-enter the kingdom after their lawyer, Mass, filed an administrative complaint with the Department of Homeland Security on their behalf. Even the way in which the punishment was (maybe) lifted is creepy and Kafkaesque -- "'There's been a change,' said the official, who spoke on condition of anonymity."

So, there's "been a change," notes an unseen government official in the passive voice, so there's no way to know who made "the change" or what "the change" even is. Whether Mass' complaint had anything to do with "the change" in this case is completely unclear. We have no basis for knowing why they imposed these restrictions in the first place or why they were rescinded or "changed."

And we don't need to know. All we need to know is that we are being Protected and that our Government Leaders are Good and Just and if they secretly and with no explanation ban our fellow citizens from the country, there is Good Reason for them having done that and we should feel nothing but gratitude as a result. We have no right to question or challenge their decisions in court because that would risk disclosure of critical "state secrets." Our Government Leaders can't have their decisions and actions subject to scrutiny by courts because they have an important War to wage. And we have no right to know what they are doing or why, even when it comes to actions they take against American citizens.

The only justification provided for the original banishment was this:

"They've been given the opportunity to meet with the FBI over there and answer a few questions," Scott said, "and they've declined to do that."

That explanation, however, is factually false, since both of the citizens did answer questions from the FBI during their banishment in Pakistan, but only refused to do so a second time as part of a polygraph test that was demanded of them. They refused to comply with that demand because their cousin was convicted of engaging in planning terrorist acts (and faces decades in a federal prison) based solely on the answers he gave during a single FBI interrogation that they claim was coercive. As a result, the last thing these two Americans wanted to do was submit to a similar interrogation for a second time, in Pakistan where they had no counsel, as part of a polygraph test they have no obligation to take (and a constitutional right not to take).

Worse than being factually false, the explanation given by the Bush administration is also completely outrageous, since the Government so plainly has no authority to compel U.S. citizens to answer questions in a law enforcement investigation as a precondition to re-entering the country. See e.g., the plain and clear language of the Fifth Amendment, specifically the part about how no person "shall [a] be compelled in any criminal case to be a witness against himself, nor [b] be deprived of life, liberty, or property, without due process of law." The Bush administration managed the feat of violating those two core Fifth Amendment guarantees with one secret, lawless action that has no basis in any recognizable authority of any kind.

The Bush administration also refused, needless to say, to explain "the change" in this case, except to say this:

Joanna Gonzalez, a Homeland Security spokeswoman, said the agency's Office for Civil Rights and Civil Liberties "did some research on the case and did make appropriate changes." She would not say what the changes were.

That's another way of saying that there was never any legal authority in the first place to deny American citizens who were not charged with any crime the right to enter their own country. But the Bush administration did it anyway, in the most secretive, authoritarian way possible - by unilaterally decreeing a secret punishment that could not be seen, read, understood or meaningfully challenged. Even now, they refuse to clarify whether there are remaining restrictions and, if so, what those restrictions are (Gonzalez "would not say what the changes were" and Mass "said the two received a letter from Homeland Security last week stating that their records had been 'modified to address any delay or denial of boarding.' The letter, though, did not make clear whether they could fly").

All they can do is try to return home to their country and hope that unspecified, unseen officials in the Bush administration deign to grant them permission to re-enter. There's no law or authority for their banishment, just the President's unchecked, unrestrained will that they be banished, which, as we have seen in many other contexts, is now the primary source of authority for how our Government functions.

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