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Those responsible for the Sept. 11 terrorist strikes used immigration laws to their advantage, entering the United States on visas that allowed them to live in the country while planning their attack. Now, those very immigration laws have become one of the most powerful law enforcement tools in rounding up and detaining other suspected terrorists. Last week, as the search to find accomplices to the attacks on the Pentagon and the World Trade Center continued, the number of people taken into custody rose to at least 76. And most of those people were brought in through the Immigration and Naturalization Service’s front door, snatched up for visa violations or other immigration irregularities and questioned about potential involvement. “It’s smart law enforcement to have INS play a large role in this investigation,” says Michael Maggio, an immigration specialist at D.C.’s Maggio & Kattar who typically represents clients against the INS and other law enforcement agencies. “The INS can detain people for longer and on lesser grounds than you can in criminal procedures.” For law enforcement, there are several benefits to picking up suspects for INS violations: suspects have fewer due process protections, no automatic right to legal representation, and only limited judicial review. By bringing in a suspect under immigration law, law enforcement also gains more time to gather evidence and build a criminal case. “Remember, once you charge someone with a crime, then the criminal justice process goes forward,” says Ronald Kuby, a New York lawyer who represented defendants in the 1993 World Trade Center bombing trial and similar cases. “With an INS hold, you pick someone up for 24 hours if they [have overstayed their visa]. Then you can charge them with an INS violation and hold them essentially indefinitely while proceedings go forward. It gives law enforcement the opportunity to use the usually trivial [visa] offense to legally hold people while the criminal investigation goes on.” But it is also these factors that make many immigration lawyers and civil liberties advocates anxious. While immigration groups say they want the terrorists to be caught and prosecuted, they are concerned about potentially innocent and uninvolved immigrants and visitors being caught up in the INS sweep. “I am worried that they are not getting their phone calls,” says Jeanne Butterfield, executive director of the Washington, D.C.-based American Immigration Lawyers Association, of the people who have been detained. “It gives us great pause. It has legal precedent in the past when federal law enforcement used immigration law to interrogate, bring people in, and detain them.” In the 1920s, thousands of suspected Communist foreign citizens were swept up in the so-called Palmer raids after bombings in U.S. cities. And in the late 1970s, in the aftermath of the Iranian hostage crisis, Iranian students in the United States were required to report to immigration officials for review. The INS, currently headed by Commissioner James Ziglar, has the power to detain on the suspicion that a person is “out of status,” the technical term for being in the United States illegally. The triggers range from sneaking into the United States illegally, to overstaying a visa, to moving or changing schools without notifying the INS. Until last week, the rules allowed the INS to hold a suspect no more than 24 hours before either releasing them or bringing charges. The agency announced Sept. 18 it was extending that period to 48 hours for all cases; in extraordinary circumstances, such as in the wake of the most recent terrorist attacks, the revised rule gives the agency even more flexibility, only requiring it to act within a “reasonable period of time.” For some detainees, the new standards could prove beneficial. Despite immense political pressure for the government to arrest suspected terrorists, the extended time limit gives law enforcement officials more time to make sure they have found the right person before bringing criminal charges. And the required legal representation for detainees is not the same as for suspects caught up in a criminal investigation. If an individual is facing deportation, he or she has the right to obtain a lawyer, but not at the government’s expense. Immigration lawyers say a person’s right to counsel is even murkier before the detainee is officially notified of the government’s intention to deport. A potential deportee is also brought before an INS judge, not a federal or state judge. INS violators must exhaust all administrative remedies within the agency before appealing to a federal judge. Although law enforcement seemingly has great leverage in dealing with noncitizens, the administration is pressing for new and even more favorable rules. The Justice Department’s antiterrorism legislation, partially unveiled Sept. 18, would increase the government’s ability to detain and deport suspected terrorists. The provision would allow the INS commissioner, in consultation with the Federal Bureau of Investigation director, to recommend the detention and deportation of any noncitizen if there was “reason to believe [the alien] may further or facilitate acts of terrorism” or “any other activity that endangers the national security of the United States.” The bill would remove the alien’s right to appeal. By Sept. 19, after meeting with members of Congress, the administration softened the proposal. According to the new version, the attorney general would retain expansive powers to detain anyone deemed a national security threat, but “the proposed provision would not limit the scope of judicial review” and would give jurisdiction over any cases stemming from the provisions to D.C.’s federal courts. But even the toned-down provisions have triggered concern. For example, the American Civil Liberties Union urged caution, saying there were troubling immigration and detention powers in the administration’s revamped proposal. And Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, drafted his own anti-terrorism legislation, which overlapped with some of the administration’s proposals in such areas as wire-tapping and eliminating the statute of limitations on certain terrorism offenses. But the Senate bill was silent on increasing the attorney general’s deportation and detention powers. Even if the administration does not get all it wants in the bill, it may still find new ways to use existing immigration provisions, such as the Alien Terrorist Removal Court, against would-be terrorists. Created by the immigration and antiterrorism legislation passed in 1996, after the bombings of the World Trade Center and the Alfred P. Murrah Building in Oklahoma City, the secretive court is a tribunal of independent judges who meet to determine whether or not to deport a suspected terrorist. The government can use classified evidence to support its deportation case. The government has used secret evidence in cases involving foreign citizens, but has not made use of the special removal court. The government has instead used classified evidence in bond hearings or found other reasons to deport citizens. The removal court was meant to try alleged terrorists when no other grounds — such as a visa violation — existed for their deportation. The court also offers more safeguards than many other immigration proceedings. The accused foreign terrorist has the right to a lawyer, to present evidence, to question witnesses, and, most important, to review an unclassified summary of the classified evidence being used against him in the case. Still, it’s unclear whether more expansive immigration laws or the use of the removal court could have prevented the terrorist attacks of Sept. 11. The INS will not comment on whether any of the identified terrorists had immigration problems. And the fact that some of them may have used stolen identities complicates matters even more. “I think that they are going to find for the most part that the people believed to have been engaged in this attack were probably clean in terms of their record, probably by design,” says Paul Virtue, a 16-year INS veteran and former general counsel who is now counsel at Hogan & Hartson’s D.C. office. “A terrorist group is not going to send an Osama bin Laden in to obtain a visa.” If the government were to simply deport people who were suspected of being involved in the terrorist attacks rather than prosecute them, few in the American public would find that a very satisfying form of justice. “If someone is planning terrorist acts, we have criminal laws that allow us to prosecute them. We don’t need extraordinary immigration powers,” says Butterfield. “If they are really terrorists, do we really want to turn them loose?” Indeed, immigration advocates worry that Arab visitors and students who have technically violated their visas, but against whom the government has no evidence of terrorist involvement, will be the more likely targets of deportation. Others note, however, that relatively minor visa violations may also be used to deport terrorism suspects against whom there is not enough evidence to pursue a criminal charge. “There are some activities that make an alien deportable that are not crimes — for example, fund raising for a terrorist group,” says Steven Richards Valentine, an attorney in the D.C. office of Preston Gates & Ellis who, as a deputy assistant attorney general in the first Bush administration, oversaw the Office of Immigration Litigation. “It seems to me,” Valentine adds, “that if in the course of this investigation you identify aliens for whom you don’t have evidence to prosecute them for a crime, but they are an active member of a terrorist cell, you are really disrupting and dismantling that cell by kicking them out of the country.”

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