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Protestors
rally against the Muslim immigration ban at New York’s John F. Kennedy
International Airport on Saturday. Photo by Stephanie Keith/Getty Images
The United States government is certain that Haider Sameer Abdulkhaleq …
Your News Companion
Jan. 28 2017 4:09 PM
Trump Has Suspended Due Process for Muslims in America. This Is a Constitutional Crisis.
Photo by Stephanie Keith/Getty Images
The United States government is certain that Haider Sameer
Abdulkhaleq Alshawi does not pose a security threat to the country.
That’s why it granted Alshawi, an Iraqi, a visa to come to America and
join his wife and children, who had already fled and resettled in Texas.
(In Iraq, the Alshawi’s family were victims of an attempted kidnapping
and a car bombing because Alshawi’s wife worked for a U.S. contractor.)
On Friday, Alshawi boarded a flight to New York’s JFK airport. While he
was in the air, Donald Trump signed an executive order prohibiting Iraqi
refugees from entering the country. When Alshawi’s plane landed, reports the New York Times,
agents from Customs and Border Protection boarded it and took him into
custody. They prohibited Alshawi from contacting his attorneys, who were
waiting for him at the airport. The attorneys asked a CBP agent who
they should speak to in order to help their client.
Mark Joseph Stern
“Mr. President,” a CPB agent responded. “Call Mr. Trump.”
As of Saturday afternoon, Alshawi is still being detained at
JFK. He is one of multiple refugees—the government won’t say how many
there are—with valid documents who is nevertheless being held at an
airport. Trump’s expansive executive order prevents refugees, migrants,
and even green-card holders from seven Muslim-majority countries from
entering the U.S. (Reuters reports that green-card holders may be evaluated
on a case-by-case basis.) The government’s interpretation of the order
has led to the immediate and indefinite detention of people who, until
yesterday, had every right to come into the country.
There are serious constitutional problems
with Trump’s executive order as a whole, including its preference for
one particular religion (Christianity) and its denigration of another
(Islam). The courts will debate these questions over the coming months.
But for Alshawi and others like him, there is a more immediate concern: a
complete and total lack of due process. As a chilling ACLU lawsuit
filed Saturday demonstrates, Trump’s executive order has led to the
flagrantly unconstitutional detention of perfectly legal immigrants
whose lone crime is their national origin and religion. It is not just
morally wrong. It is illegal.
The Fifth Amendment to the Constitution provides basic
procedural guarantees to individuals detained in the U.S., prohibiting
the government from depriving individuals of liberty without “due
process of law.” Alshawi arrived in the country lawfully, carrying the
requisite documentation. Pursuant to the Immigration and Nationality
Act, he now has a right to apply for asylum and have his claims
processed by federal authorities. But the government did not do that.
Instead, it instantly placed him in detention, without a hearing or any
kind of judicial oversight, and barred him from speaking with his
attorneys.
That is an unconstitutional deprivation of Alshawi’s liberty
without due process of law. The federal government cannot indefinitely
detain a lawful visitor without a hearing or any semblance of reasonable
suspicion because the president signed an executive order. Nor, under
the equal protection component
of the amendment’s Due Process Clause, may the government discriminate
against Alshawi because of his national origin or religion. Yet federal
officers are currently ignoring these fundamental constitutional
principles. And the entire illegal system is the handiwork of one
man—Trump—acting far beyond the bounds of his executive authority. His
is a government of men, not of laws,
and it apparently has no compunction about locking up perceived enemies
based solely on their identity. The very concept of due process emerged from a desire
to limit the king’s ability to order unlawful arrests. It appears we
are returning to the days when the head of state can detain purported
threats without a whiff of evidence that they have broken a law.
One of the ACLU’s other clients, Hameed Khalid Darweesh, was freed on Saturday after Democratic representatives lobbied for his release.
(Darweesh risked his life in Iraq working as an interpreter for the
U.S. Army.) Alshawi is still being held, and the ACLU has requested a
habeas corpus for him and “those similarly situated.” This extraordinary
and uncommon relief would require the government to bring those
detained before a judge and explain why they should continue to be held.
When attorneys must resort to a habeas corpus petition to obtain basic
due process rights for clients who have done nothing wrong other than
being Iraqi Muslims, the federal government has entered dangerous
territory. What is happening today is a constitutional crisis. And it
may only be the start of Trump’s assault on the rights of minorities in
America.
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