Federal authorities have prevented two relatives of a father and son convicted recently in a terrorism-related case from returning home to California from Pakistan unless they agree to be interviewed by the F.B.I.
It is unclear whether the men, Muhammad Ismail, 45, and his son Jaber, 18, have a direct connection to the terrorism case or if they have been caught up in circumstance....
The United States attorney’s office in Sacramento declined Monday to answer questions about the Ismails beyond confirming that the men had not been permitted to fly into the United States and that the Federal Bureau of Investigation wanted to question them.,,,
The Ismails live in Lodi, Calif., a small farming town south of Sacramento, where their relatives Umer Hayat and his son, Hamid, were arrested last summer as part of what federal prosecutors said was an investigation into terrorist links.
The Hayats are the only people to have been charged. Hamid Hayat, the nephew of Muhammad Ismail and the cousin of Jaber, was convicted in April of supporting terrorists by attending a training camp in Pakistan. Umer Hayat, in a deal reached with prosecutors after jurors deadlocked on terrorism charges, pleaded guilty in May to lying to the authorities about carrying $28,000 to Pakistan from California....
If the government has probable cause to believe that the Ismails are guilty of a crime, then it can certainly arrest them. But to my knowledge, the government can't bar citizens — both Ismails are citizens — from returning to the country. The government generally may not strip citizens of their citizenship (subject to narrow exceptions not relevant here); and it seems to me that the right to return to the country of your citizenship is one of the most basic aspects of citizenship.
It's possible that the government is simply barring them from flying into the U.S.; this might be permissible on the theory that the government may bar from flights people who might endanger those flights, and they would then just have to fly into Mexico or Canada (if those countries allow them to do so, which presumably they would, unless they share the U.S. government's misgivings) and then drive across the border. But the article suggests that they are being barred from entering the U.S. through any means.
If you know more about the facts of the case, or about the applicable legal rules, please do post a comment. Many thanks to lawprof Eric Freedman for the pointer.
UPDATE: See also Trop v. Dulles, which I neglected to link to originally. Thanks to commenter Mark Field for reminding me.
FURTHER UPDATE: Some commenters think the article clearly points to the prohibition being only on flying in to the U.S., and not to flying into Mexico or Canada and then driving into the U.S. Here's why I think it's ambiguous: The article does say "the men had not been permitted to fly into the United States" (and variants of that), but it also says the men were on the "government's no-fly list of people not allowed to enter the United States," which suggests a prohibition on entry (imprecisely referred to as "no-fly") rather than just a prohibition on flying (which would presumably apply to purely domestic flights, or to flights leaving the United States, as well as flights entering the United States). The lawyer, Julia Harumi Mass, is also paraphrased as having said "the men were told these conditions had to be met before the authorities would consider letting them back into the United States"; and of course the opening paragraph says "Federal authorities have prevented two relatives of a father and son convicted recently in a terrorism-related case from returning home."
That's why I think wrote that "[i]t's possible that the government is simply barring them from flying into the U.S.[,... b]ut the article suggests that they are being barred from entering the U.S. through any means." I wish the article had been more precise, but it wasn't.
All of the crimes that can be committed by illegal aliens can be committed by citizens.
Look in Title 18 for "evading inspection at the border".
Likewise uttering false documents (citizen presents someone else's passport for entry) (citizen unaccountably decides to apply for a visa to enter and lies on the application).
Being an illegal alien per se is not a crime (though the House recently tried to criminalize the status).
Lying to federal employees Title 18 Sec 1001 (the Martha Stewart crime.
I remember a 1950s? case holding that denaturalization as a punishment was "cruel and unusual". In other words, you can be executed but not denaturalized. [Naturalized citizens can be denaturalized for fraud in procuring their citizenship.] One of the men in this article is native-born and the other is naturalized. Perhaps someone with Lexis can find that case.
Most of the action in this area has involved taxes and keeping people from leaving or forcing them to return to the US and not the other way around.
The government can keep you from leaving the country by getting a writ ne exeat republica. But that involves taxes or other monies owed.
Likewise, the Feds can yank passports for failure to pay child support, for tax debts, and other activities. This will make it hard to travel internationally. They have also done it to Americans living overseas in an attempt to force a return. [Foreigners generally can't live in a country with a National ID system without a passport.]
I wonder why the men in this case didn't just fly to Canada and enter rather than litigate?
This is suggestive that at least one constitutional conference thought that this was a fundamental right of citizenship.
If not, it would seem easy for the FBI to arrange to be at the airport when they arrive and "sit in" on a lengthy CBP sit-down with the 2 men. My limited understanding is that a border search can be very intrusive without requiring probable cause and that failure to answer questions from CBP types can put you in detention or on a return flight.
What the government *can* clearly do is bar them from flying for the reason that they are safety risks. But if government nakedly says that it is stopping them as leverage for Case X, I hope a judge would award them damages for a civil rights violation.
At one time, those activities would have been seen as "expatriating acts". The only exception, then, was when dual-nationals were forced by local conscription laws to enter a foreign military.
Now, about the only way you can lose American citizenship is to go to an Embassy or Consulate abroad and force them to take away your citizenship. Even then, the consular officers will give you a hard time and try to talk you out of it.
Would the required "questioning" be considered a custodial interrogation? They aren't really free to leave the interview in the common sense of a non-custodial interview by domestic police.
If they are being barred from entry (instead of just being barred from flying), then has the government essentially stripped them of a right of citizenship arbitrarily and without due process? And what is due process in the limited situations where government can strip natural born citizens of their citizenship?
Those are a couple of questions that could bear on whether it's a biggie. Somebody commenting here is likely to have some good answers, and probably better questions than mine too.
"What was the nature of your trip and the articles that you have purchases?"
"I plead the Fifth Ammendment"
"................... Please step over here, sir."
What law is that? How come 16 million ethnic Germans could be expelled from their home countries all over Europe after WWII and not allowed to return?
Most of them (e.g., the Sudeten Germans, the West Prussians, the East Prussians) were citizens of Germany, and they were allowed to "return" to Germany. (The Sudeten Germans only became citizens of Germany in 1938, but they were German citizens nonetheless.
But in fact, the mass expulsion of Germans indeed fell within the Nuremberg Charter's definition of war crimes, which included "ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory." The fact that we condoned behavior by our Soviet, Polish, and Czechoslovak allies that we hanged Nazis for doesn't make it any more justifiable.
The case you're thinking of is Trop v. Dulles, 358 US 86 (1958)
Umm, what are the difficult legal issues? U.S. citizens can't be compelled to testify against their will or barred from returning to the country without due process.
Can someone explain to me the nuanced and lawyerly perspective on this case? Professor Kerr?
There are a few answers to your question, assuming you don't mean it merely rhetorically. The first one is given nicely by Seamus- the mere fact that someone (here the Soviet Union, mostly) violates a law doesn't make it not a law. Secondly, like most laws in that area the majority of the development comes after 1949. So, the particular laws I mentioned came about after the (shameful and immoral) expulsion of the ethnic German populations from much of eastern Europe.
In fact, you can't even renounce your citizenship while in the US. You have to be in another country.
A genuine denial of entry occured a few years ago when a native-born American managed to exit the country on his World Federalist Passport. He made it part of the way around the globe (it was a test flight for World Federalism) until he was denied entry somewhere in the Far East. The airline lew him to Seattle and he was denied entry there because he didn't present a valid entry document.
He was held overnight and presented to an immigration judge(?) who determined that his trip began in Atlanta and proceeded entirely on his World Federalist Passport. Judge ruled he had never legally left the US, so no trip, no entry, case dismissed.
There may well have been congressional pressure but that was also bolstered by a strong of losses for the government in the courts. It is now virtually impossible for a native born American to lose his citizenship, short of going into a US embassy and saying "I hereby renounce my US citizenship." Naturalized citizens are a different story.
Given the range of criminal sanctions available to the government, up to and including the death penalty, and given that the Constition provides that everyone born in the US is a citizen, it seems to me entirely appropriate that the US government not ever be able to deprive a native born American of his citizenship.
(Sec. 411 relates to changes for aliens by amending 8 USC 1182, but not citizens.)
The Professor might even be simply wrong and the power involved could be old, hoary, and little used or little questioned before now. Beats me - IANAL, let alone an immigration/customs/border law expert.
It is necessary to bar US citizens from entering the United States in order to secure our freedoms.
And slavery is freedom.
And ignorance is strength.
This is basically my point. The law professor quoted seems to be speculating that there might be something in some other law that makes it legal to bar U.S. citizens from coming home without charge.
Oh, I daresay that if ISI asks them enough questions, they'll confess to all kinds of things.
Now, it may not be admissible evidence. But then, beating somebody isn't really torture, is it? Electric shocks, etc. ... no major organ damage ... no problem!
Seems to me that this is a gross violation of their 5th amendment due process rights.
The way I recall it, they did talk to the FBI once, but the FBI decided they wanted more. So that would be the government saying "you have to talk to us again first."
Regarding why they don't just fly to Canada and then cross the border, wouldn't they need a visa or something to fly into Canada?
The "no fly" cases I am aware of dismissed the claims based on procedural issues. Even if this guy is just on a "no fly" list and would be allowed to travel to the United States through another medium (something he has not, to my knowledge, been told), there are very serious arguments that this is NOT constitutionally permissible.
So my impression is that there probably is nothing to stop these guys from flying to Vancouver or somewhere else (on a non-U.S. airline) and then crossing the border on foot or by vehicle. Since they're American citizens, they can fly almost anywhere without arranging a visa in advance. My impression of immigration law is that even people who do not possess valid U.S. passports are allowed to demand at least a hearing before a judge before being deported (this entails being locked up longer than if you voluntarily leave, though). At that point, it seems to me that the constitution kicks in and it would be impossible to deport two proven U.S. citizens to another country if they manage to somehow get to a U.S. immigration checkpoint.
There are some extremely serious due process issues surrounding the "no fly" list and I'm very surprised that they have not been more thoroughly explored. Even assuming the list is itself constitutional, due process requires that there be a process for a person to challenge their inclusion in the list. Here, the list is being used coercively which makes it even worse. It's equivalent to the FBI getting the IRS to do tax audits on uncooperative witnesses.
I hope the ACLU cleans the government's clock on this one.
I do not know if the rules are different when coming from a third country, but in general US citizens do not need a visa to visit Canada, including by plane. A passport is not even (yet?) required to get from the US into Canada, although they at least encourage bringing one if you fly there. At worse (and unlikely) it would be as MarkM states - a visa would be automatically issued after landing in Canada. I would expect that the small extra hoops to jump through at a rental agency for a one-way car rental from Canada to the US would be more of a problem for them.
I meant to mention this before as I thought it might interest you. On it's face, it's even more outrageous than this case.
New York Man Charged With Enabling Hezbollah Television Broadcasts
They are wise not to talk to the FBI without counsel. And the fact that the FBI won't talk to them with counsel (assuming that the newspaper is right about that) shows that the FBI isn't playing this honestly.
Their lawyers have to be thinking about whether it's wise for these two to come back to the U.S. The prize for the ACLU "winning" this case might be their client's arrest upon arrival.
Cases like this tell Arab and Muslim Americans one thing--talk to the FBI at your own peril. That's sad, because this country really needs their cooperation.
This is definitely a "no fly" issue -- it says so right in the article.
The article also says they can't enter the country. That's what the original San Francisco Chronicle story from Saturday said, too. With the exception of a few skilled reporters, newspapers a notoriously bad about getting legal details right.
If the Sudeten Germans had become German citizens, that’s irrelevant. They were forcibly expelled from their homeland of over 400 years, and all their property confiscated by the Benes Decrees. They were not allowed to return, and were stripped of their Czechoslovakian citizenship without any form of due process whatsoever. Moreover other purely ethnic Germans (not citizens of Germany) in places like Rumania, Hungry and the Ukraine were also expelled. The US and Britain did more than “condone” these actions. They were in fact complicit, see the Potsdam Agreement. Even worse 875,000 ethnic Germans from Rumania and other countries were abducted and sent to the Soviet Union as slave labor. Again the US and Britain were complicit in this action—see the Yalta Agreement, section on “reparations in kind.” Much of this happened during the Nuremburg trials, and after the United Nations was established. Expulsions of ethnic Germans continued through 1950.
I bring this up to show that International Law including the United Nations is a sham. Here’s another one. The Soviet Union forcibly expelled people and stripped them of their citizenship, Solzenitzen for example in 1974. Did international law or the UN come to his rescue—no. Neither said, “boo.”
M:
The actions weren’t limited to the Soviet Union. Are laws that are not enforced or only enforced selectively really laws? I notice people are only too quick to forgive illegal Mexican migrants of crimes like identity theft and tax evasion on the basis that the US government regularly fails to enforce.
Says who?
Consider another poster's example of a strip search. They can strip search you at the border without a warrant, even though they could not just do that to a random citizen. Clearly the ability to strip-search you at the border also means the ability to deny you entry unless you submit to a strip-search. So they can deny you entry.
Is there really *that* much difference between "you can't enter unless you submit to a strip search" and "you can't enter unless you submit to an interrogation"?
(1) The USA and Canada are sychronizing their "watch lists", and at present Canada reportedly relies on the USA no-fly list, so someone on the USA "no-fly list probaly wouldn't be allowed into Canada either.
(2) The USA "APIS" rules (which are the subject of a pending rulemaking apply to flights (and sea vessels, if you can find a trans-oceanic ship) not only to, from, or within the USA but also over USA airspace. All direct flights from Europe to Mexico pass through USA airspace, and there are no nonstop flights form Asia to mexico, so "fly to Mexico" isn't an option. Most Asia-Canada flights pass through USA airspace over Alaska as well, and an airline might not want to take on a passenger if having them onboard would preclude them from overflying Alaska even if it wasn;t on the planned flight path.
(3) The declared intent of the DHS is to extend the current "no-fly" list into a "no transport" system applied to all modes of common carrier transport, including surface travel.
(4) The international human rights standards for restrictions on freedom of meovement aren't satisfied merely by the existence of *some* alternative route or mode of travel (no matter how inconvenient, slow, and expensive), but require that the specific restrictions be justified under a strict standard of "necessity", i.e. that no less restrictive alternative could satisfy their lawful purpose.
You can't lie to the government but I can't find any statue or case law that requires you to recall any particular fact or date. The FBI might not believe you when you say you cannot recall what you had for breakfast that morning but they can't prove that you are lying.
I hope that this issue dodges procedural issues and gets a ruling on the merits.
Yes, there is.
The constitutional ability to search at the border arises out of the government's right to control its borders. But the government does not have any right to keep U.S. citizens out of the country.
In a sense, you already have to submit to an interrogation to enter the country. Immigration asks you questions about where you have been and customs asks you questions about what you're bringing back.
Except, you don't actually have to answer these questions. You are perfectly free to respond to the nice immigration officer's polite queries about your trip with, "Fuck off, asshole. I'm not telling you jack shit about my trip. I'm a U.S. citizen so let me into the damn country."
Now I can't recommend you do this as it will almost certainly cause the U.S. government to control its borders in your particular case by means of an enema and a speculum orginally designed for race horses. But, should you opt for this course, the government has no choice but to eventually let you in.
First of all, I assume that they want to interview them to the FBI's satisfaction which is completely different to an interrogation at the border. That is to say, I presume that agreeing to the interview and then stonewalling will not satisfy the FBI.
That is the crux, I believe of the issue. While you can be strip-searched and interviewed at the border as a condition of entry, I don't beleive that you can be denied entry for giving evasive (but factually correct) answers.
Nor do I belive (please correct me if i'm wrong) that you can be compelled to give polygraph evidence at a border crossing.
Entry into the U.S. for citizens is a "regulated right." Entrants can be questioned and searched. Probably if there is a disease outbreak abroad, citizens could be quarantined or even denied entry temporarily.
The more interesting question -- and this is surely the kind of question legal theorists just love -- is what if these two American citizens manage to beg, borrow or steal their way to a U.S. immigration checkpoint with passports in hand? Can they simply be turned away by immigration officials and escorted to the other side of the border under the law? What if they do something crazy like try to run through the immigration checkpoint or punch an immigration official in the nose? Under those scenarios, the U.S. would presumably want to arrest these guys in which case they would have the right to appear before a judge and assert their rights to not be put aboard the next non-stop flight to Karachi.
I do wonder about what authority DHS is claiming to deny entry to U.S. citizens -- if that is indeed what they are claiming. As in other administration initiatives, the legal argument may simply be the Judge Dredd Defense: "I am the law."
Let's hope that the mere fact that a law is fairly regularly flaunted or not fully enforced isn't enough to make it not a law or else lots of things we think of as laws (traffic laws, laws against under-age drinking, laws against shop lifting, etc.) are not laws after all. I'm not one with many illusions about the effecitivness of international law and I'm happy to admit that what was done to ethnic germans post WWII was awful. But so what? Does that have anything to do with whether this is a violation of international law? No, it doesn't, and the fact that you don't like the UN also doesn't make any difference to that, so please don't pretend like it does.
Zarkov,
Why not just round them up into camps and really get a headstart on those Europeans? For some reason, I think a race to the bottom with Europe over who can become the most xenophobic the fastest is not a race we want to win.
The INS should definetely look up his immigration papers.
Using terms like “xenophobic” merely avoids the issue of how we confront Islamofascism, both domestic and foreign. We can treat it as a civil policing problem within a framework of full civil liberties. Unfortunately that framework often fails against large well-funded organized conspiracies. These conspiracies can intimidate witnesses, tamper with juries, and even infiltrate law enforcement. We didn’t deal with the Mafia too well for those very reasons. It took RICO and (let’s face it) some FBI dirty tricks to rein in the Mafia to the limited extent we have. The British had a lot of trouble dealing with the IRA even though they were willing to suspend civil liberties and confine IRA terrorists without charge. Here’s a specific problem. The IRA inmates got the names of the guards and had the IRA threaten their families. How do you deal with that?
If we fail to deal with the problem in an effective way today, the measures taken tomorrow will be far more draconian. Don’t you realize I’m trying to avoid a worse human rights catastrophe in future? Let the grisly events after WWII be an object lesson.
This doesn't really explain the difference. What's the difference between being refused entry because you wouldn't submit to a strip-search, and being refused entry because you gave evasive answers in an interrogation? It can't be that we have a Constitutional right to not give answers--we also have a Constitutional right to not be searched without probable cause.