The Case of Adham Hassoun and Section 412 of the USA Patriot Act
When it was enacted—a mere seven weeks after the attacks of September 11th—the USA PATRIOT Act provided the government with the authority to detain, possibly indefinitely, non-deportable aliens on US soil that the Attorney General had reason to believe were a threat to national security. Section 412 (codified in 8 U.S.C. § 1226a) was met with almost instant alarm for undermining core constitutional safeguards, most especially the right to liberty and due process of law. Then nothing happened. While § 412 has remained on the books and has been the subject of ongoing scholarly discussion, for nearly two decades the government did not use the authority. Until now, in the case of Adham Hassoun.
Adham Hassoun is a stateless Palestinian man who was born in Lebanon and emigrated to the United States in 1990 under a student visa. Throughout the 1990s, he sent money and aid to organizations involved in conflicts in Bosnia, Kosovo, and Chechnya. For years, the FBI had been monitoring Mr. Hassoun but made no interventions. Then in 2002, soon after the attacks, he was picked up by immigration authorities for overstaying his visa (his petition for a Green Card was pending) and he was held in removal detention until January 2004 when he was moved to criminal custody and charged with terrorism related offenses. He was charged along with Jose Padilla, an American citizen arrested in 2002 and held as an enemy combatant before being criminally prosecuted. The two were charged, prosecuted, and convicted together along with a third co-defendant. Adham Hassoun was convicted of conspiracy to murder, kidnap, and maim persons in a foreign country; conspiracy to provide material support for terrorism; and providing material support to terrorists. Mr. Hassoun received fifteen years and eight months, rather than the life imprisonment permitted by the federal guidelines. The judge in his case declined to impose the harsher sentence citing the lack of evidence tying the defendant to any concrete acts of violence or plots to harm the US government.
Mr. Hassoun served his criminal sentence. Then, the government attempted to deport him but could not due to a number of issues tied to his statelessness. After two years of trying to deport him, the government invoked the detention authority granted to it by § 412 of the USA PATRIOT Act to certify Mr. Hassoun a threat to national security and detain him, possibly indefinitely.
The legal battle has begun and much has yet to be decided, but there is one legal dispute in the briefings before the federal district court that is worth closer consideration than it is likely to receive: the discriminatory nature of this authority and the unique insights offered by the equal protection analysis. Given the immigration elements of the case, the equal protection challenge is likely to be sidelined. US courts have taken a broadly categorical or formalist approach to evaluating such constitutional arguments, showing a willingness to accept the need and legitimacy of certain executive authorities when connected to the immigration power and national security. The institutional reasoning is summed up by the government in its brief: “[T]he statute here is within the political branches’ ‘broad power over immigration’ and therefore permissible under the Constitution, even if such detention of a United States citizen would be impermissible under similar circumstances.”
Another court, one in the United Kingdom, considered just this question after the events of September 11th and while confronting the government’s invocation of a national emergency. How that court answered the question deserves closer consideration, for it has something to teach us about the value of the equal protection principle in carrying out judicial review.
UK Courts and Non-Discrimination in National Security: The Belmarsh Case
Following the September 11th attacks in response to the threat posed by international terrorism to the United Kingdom, Parliament enacted a law granting the government vast powers, including the authority to detain non-citizens that the Home Secretary believed posed a risk to the national security of the United Kingdom. Section 23 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) authorized this detention power if the removal of the non-national proved impracticable for security or some other considerations. Substantively, the power authorized by the UK statute is similar to that authorized by § 412 of the USA PATRIOT Act.
In November 2001, in order to fully make use of the authority granted by Parliament in ATCSA the United Kingdom derogated from its obligations under Article 5 (right to liberty) of the European Convention of Human Rights. A derogation is permitted by the Convention if a member state is facing a public emergency that requires suspending their compliance with their human rights obligations. Member states may not derogate from all obligations but must specify the threat and why the derogation is necessary and proportionate to meet the threat. The case of A v. Secretary of State for the Home Department, often referred to as the Belmarsh Case, arose out of the detention of nine non-nationals following the derogation, who were designated a risk to national security, could not be deported, and were being indefinitely detained at the Belmarsh prison.
To the surprise of many, the Law Lords (the members of the highest court, at the time the Appellate Committee of the House of Lords and currently the UK Supreme Court) struck down the derogation, finding that it violated the Convention because the scope of the derogation did not prove to be proportionate to the threat, evincing a kind of distinction between foreigners and citizens that bore an insufficient relationship to the reasons for the exercise of the power. Given the consequences for the people subject to these powers, the court asked itself whether derogation on these terms was strictly required. The answer was no.
The UK court reasoned that the government could not assume, and had not established, that non-citizens posed a greater threat to national security than citizens. If threats to national security posed by citizens could be adequately managed without special detention powers, then there was no justification for authorizing the same powers against non-citizens. In other words, if the government found a way to manage the risk from citizens posing a threat to national security, then it could not support the claim that detaining non-citizens was necessary for national security. The Law Lords refused to defer to the government’s argument that non-citizens were in a different category from citizens when it came to their right to liberty. Both were individuals who could not be removed from the United Kingdom; immigration status, the court held, was not a relevant distinction in this context, the mere invocation of which would displace judicial scrutiny.
It is worth noting the emphasis the court’s decision placed on the distinction that the law drew between nationals and non-nationals to test the necessity of the measure. For, like in US jurisprudence, UK courts recognize government’s special competence in national security and immigration. Until fairly recently, the government’s decisions touching on national security and war would have been nonjusticiable by the courts. Even today—with greater judicial scrutiny brought about through the enactment of the Human Rights Act 1998 and developments in constitutional law—deference to executive judgement on matters of national security and immigration remains real and strong.
The UK court in Belmarsh had to confront calls for deference to the political branches in the name of national security. In US jurisprudence, deference tends to be exercised through more categorical reasoning, in which the executive is granted deference so long as it is immigration powers or “war powers” being exercised, with citizenship and territoriality supporting these formalist demarcations. UK jurisprudence is somewhat less formalist, with doctrines of deference arising to temper judicial scrutiny without jettisoning substantive rights review. In the Belmarsh Case, the UK Court was unwilling to abdicate the judiciary’s responsibility and unique competence: “I do not in particular accept the distinction [drawn] between democratic institutions and the courts . . . the function of independent judges charged to interpret and apply the law is universally recognized as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” The Belmarsh court would not abdicate the responsibility to determine whether immigration status was the legally relevant distinction in the context. And given the rights at stake and the unequal treatment of non-nationals, the burden is on Parliament and the government, Lord Bingham reasoned, to show why the power authorized is necessary and proportionate to the threat identified.
The equal treatment principle can prove to be a particularly good tool for the judiciary to test the necessity of a given government policy, a task that is both challenging and key if courts are to provide any meaningful oversight. When the reasonableness of a particular measure is in doubt, requiring equal treatment puts the onus back on the government and the legislature—the branches with the superior expertise and access to information—to show why the distinction is necessary or to risk the political (and legal) cost of extending the relevant authority.
Following the UK court’s decision in Belmarsh, Parliament repealed the detention provisions in the 2001 Act and passed the Prevention of Terrorism Act 2005, granting the government authority to use control orders in order to deal with the individuals who had been detained and were still considered a threat. A control order could be issued against citizens and aliens, with no distinction. What followed was a decade of inter-branch checks and revisions on the power, with judicial review providing independent assessment of the necessity of measures adopted by the Home Secretary and Parliament introducing limits on how many times this authority could be used against a single individual absent new evidence of threat.
Equal Protection and Judicial Competence
Non-discrimination as the normatively fitting and particularly effective tool for judicial review of the necessity and reasonableness of a particular law is deeply imbedded in the US Constitution, and our founding philosophy. As Justice Jackson put it in Railway Express Agency v. New York:
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that law be equal in operation.
The UK Court’s decision in Belmarsh, and the inter-branch exchange that followed, provides an especially instructive example of how non-discrimination can bolster effective review. Jose Padilla, Adham Hassoun’s more infamous codefendant and a US citizen, was released after serving his sentence. Equal protection dictates that Mr. Hassoun be treated the same. Unless and until the government provides more evidence and justification for both the distinction in law and the exercise of this power in this instance, Mr. Hassoun is entitled to equal treatment.
Nino Guruli is a lecturer in law and the International Human Rights Fellow at the University of Chicago.