The USA Patriot Act was signed into law by former President George W. Bush on October 26, 2001—some 45 days after the tragic 9/11 Twin Tower attacks. At the time, the U.S. Justice Department said the Patriot Act “simply expanded the application of [law enforcement] tools already being used against drug dealers and organized crime.”
That was not quite accurate.
The Patriot Act had and continues to have many “national security” components not available in the so-called “war on drugs” or targeted investigations into “organized crime.”
For example, Section 215 of the Patriot Act authorized the National Security Agency (“NSA”) to collect the telephone records of “known and unknown terrorism suspects”—a program that ultimately led to the collection of telephone data on an massive number of unsuspecting Americans.
The Edward Snowden disclosures brought about the downfall of Section 215. While not declaring the section unconstitutional, the Second Circuit Court of Appeals nonetheless in 2015 said that Section 215 was “unprecedented and unwarranted.” The death knell of Section 215 was finally put in place with the enactment of the USA Freedom Act of 2015 (“USAF”) which put an end to NSA’s bulk collection of Americans’ telephone records.
Draconian Features of Patriot Act Remain in Place
While USAF may have brought about some “reforms” in government surveillance legislation, Section 412—perhaps the most draconian component of the Patriot Act—remains in place.
In a November 29, 2019 Daily Beast piece, national security correspondent Spencer Ackerman wrote that, “Section 412 gives the government broad powers to detain non-citizens on American soil whom it can’t deport but deems, on ‘reasonable grounds,’ to be engaged in ‘activity that endangers the national security of the United States.’ It makes that determination for a six-month period that it can renew without limit.”
Since its October 2001 enactment, Section 412 remained unused, according to Ackerman, until the Trump Administration chose to use it against Adham Amin Hassoun, a Palestinian man arrested in 2002 for an immigration violation.
Ackerman said Hassoun “ended up standing trial alongside once-suspected ‘dirty bomber’ Jose Padilla. But Hassoun was never accused of any act or plot of violence. His crime was cutting checks to extremist-tied Muslim charities operating in places like Kosovo and Chechnya that Congress outlawed after the 9/11 attacks. Hassoun wrote all but one of those checks before 9/11.”
Facts do not always matter in America’s political and criminal justice arenas.
Man Without a Country May Remain in Prison for Life, After Sentence Served
Now in his 50s, Hassoun remained in federal custody from 2002 until October 2017 at which time he was eligible for automatic release on his 15-year prison sentence. Instead of being released, Hassoun was placed in the custody of Immigration and Customs Enforcement (“ICE”) which transferred him to the Buffalo Federal Detention Facility in Batavia, New York.
Hassoun has remained there as ICE initiated efforts to deport him.
As a Palestinian without a country, Ackerman reported that ICE first tried to deport Hassoun to his birth country, Lebanon. That government would not take him, nor would Israel who now occupies all of what is known as “Palestinian territory.”
He faced this same dilemma in 2002 before the federal government brought terrorism charges against him.
Federal Court Orders Release, Government Invokes Patriot Act
Straddled in a “no country” dilemma, Hassoun’s case was taken up by attorneys with the Buffalo Law School who filed a habeas corpus action on his behalf in federal court, and in January 2019 secured an order for his release because the court ruled that his deportation was unlikely.
Ackerman described what happened next:
“The Trump administration [then] declared him a threat to national security. It did so at first using an also-obscure immigration regulation designed to sidestep a 2001 Supreme Court ruling imposing a six-month detention limit. And it was aided by a testimonial, under seal, of Hassoun’s alleged misdeeds behind bars as related by what his attorneys describe as jailhouse snitches who provided second-or third-hand accounts. But as the government fought what had become a habeas corpus case for Hassoun’s release, the Department of Homeland Security invoked, for the first time in U.S. government history, Section 412 of the PATRIOT ACT.”
On August 9, 2019, former secretary of Homeland Security, Kevin McAleenan, informed Hassoun that, “you will therefore remain in the custody of the U.S. Immigration and Customs Enforcement (ICE) pending your removal from the United States or reconsideration of this decision.”
Feds Cite Significant Threat if Released
In other words, Hassoun will remain detained in the indefinite custody of ICE, even though there has been no fact-based determination or court-ordered adjudication that he is a threat to the national security of this country. The Government is relying solely upon the unsubstantiated conclusion of the FBI Director that, given Hassoun ‘s “criminal history,” it is likely” that he would not only provide “material support” to ISIS but would “recruit others to carry out attacks against the United States on behalf of ISIS” should he be released from custody.
Armed with this official conclusion, the FBI Director sent a letter to the Secretary of Homeland Security “recommending that ICE continue to detain [Hassoun] pursuant to lawful authorities” because Hassoun “would pose a significant threat to the national security and a significant risk of terrorism upon release, and that no conditions of release can reasonably be expected to avoid the threat to the national security or the risk of terrorism.”
The Hassoun case has turned into a classical “travesty of justice”—something the Trump administration is not only prone but too often eager to create. The Trump administration now labels Hassoun a threat to national security when his sentencing judge, Marcia G. Cooke, at his 2008 sentencing hearing said there was “no evidence” that he “personally maimed, killed or kidnapped anyone in the United States or elsewhere” and the Government could not find any “identifiable victims” of his crimes. In rejecting the government’s request for a life sentence, the judge found that Mr. Hassoun did not pose “such a danger to the community that he needs to be imprisoned for the rest of his life,”
“If the government were to prevail in its claim of extraordinary and unprecedented executive power, the government would be free to lock up non-citizens indefinitely based solely on executive say-so, even after they completed serving their sentences,” said Jonathan Hafetz, a lawyer with the American Civil Liberties Union.
Gitmo on Domestic Soil
Nicole Hallett, one of the Buffalo Law School attorneys representing Hassoun, was quoted by Ackerman as saying:
“This is Guantanamo on domestic soil. The government is trying to detain [Hassoun] as long as it wants, and that prison happens to be in Batavia, New York, not at Guantanamo Bay.”
That single statement pretty much says it all. The Trump administration has long wanted to apply the Guantanamo Bay model on American soil, not only for “suspected terrorists,” but for undocumented immigrants as well.