A Test Case for Post-Criminal Terrorism Detention

Charlie Savage has an important story in the New York Times this morning about Adham Hassoun, a Palestinian computer programmer who was convicted of terrorism-related criminal charges in 2007, served almost 14 years of a 15-year sentence (including time served in pre-trial detention and “good time” credit), and was placed in immigration detention pending his removal from the country in October 2017 after he finished serving his criminal sentence. The problem in Hassoun’s case, as in many other immigration cases, is that there’s no country to which he can be removed. And so the question is whether, as a result, the U.S. government can hold him, potentially perpetually, in immigration detention.

In its 2001 decision in Zadvydas v. Davis, the Supreme Court held that, in general, non-citizens subject to final removal orders for whom there’s no reasonable likelihood of actual removal can be detained for a maximum of six months, and that longer detention would be presumptively unreasonable in violation of the Due Process Clause of the Fifth Amendment. Relying on Zadvydas, Hassoun prevailed in a habeas petition filed in the Western District of New York, with the court concluding in January 2019 that his detention was not authorized by the same statute that had been at issue in Zadvydas.

But the Zadvydas Court, in the Justices’ very last merits decision before September 11, was clear that, in articulating a presumption against more than six months of immigration detention in such cases, “[n]either do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.” Congress took advantage of that caveat in the USA PATRIOT Act of 2001, section 412 of which not only authorizes the Attorney General to detain without charges for seven days any non-citizen he suspects is “engaged in any … activity that endangers the national security of the United States,” but which expressly contemplates that, at the end of that period, the detainee can be placed in immigration detention pending their removal, and that such detention can last for more than six months. To that end, section 412 expressly provides that “[a]n alien detained solely under [this statute] who has not been removed …, and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” The statute also authorizes judicial review via habeas of the Attorney General’s decisions at each point along the way, including the periodic re-certification that’s necessary for prolonged detention. (In November 2001, DOJ promulgated the regulation at issue in Hassoun’s case, albeit without expressly referencing this newfound authority.)

And yet, despite the sustained contretemps over post-September 11 detention, section 412 has never previously been used to detain anyone, and so it’s never been tested in court. Five years ago, I wrote a paper for the Fordham Law Review on how section 412 could provide a compromise solution to closing Guantánamo (in a scenario in which the detainees were moved into the United States and placed in immigration detention), because it would shift the gravamen of the detention analysis to individualized determinations of a detainee’s dangerousness instead of years- (or decades-old) determinations of their membership in al Qaeda or the Taliban (which has been the focus of the habeas litigation to date). As the paper argued, the due process questions are very close ones, and it’s not obvious, based on the Supreme Court’s existing precedent, that open-ended detention under section 412 (with periodic dangerousness assessments) would be unconstitutional. That may be all the more true in light of the intervening change in the Court’s membership (Zadvydas itself was a 6-3 ruling with Justices Kennedy and O’Connor in the majority).

But whatever the outcome of this litigation, if it ends up turning on section 412, then this would be the first case, and, as such, a major test case, in which the government pegs its detention authority directly to section 412. And given how many sentences in early-2000s terrorism cases are soon going to run their course, the government’s ability to continue to detain non-citizen terrorism suspects in open-ended immigration detention (or lack thereof) is, quite obviously, a hugely important issue. All of which is to say, stay tuned… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).