Nino Guruli on the PATRIOT Act and the Citizenship Distinction

The Unreasonableness of the Citizenship Distinction: Section 412 of the USA PATRIOT Act and Lessons from Abroad

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.

Read more at The University of Chicago Law Review Online

International human rights