OPINION: Section 412 & Indefinite Detention: An Ongoing Moral & Constitutional Failure

By: Dustin Weber

Any presidential declaration of authority to indefinitely detain an individual should be treated as a manifest violation of our founding principles and self-evident right to liberty. President Trump’s historic assertions of executive power continue to stretch the bounds of constitutionality and reason. Despite his barely cogent statements to the contrary, people do talk about Article II, and every law professor will support the claim that Article II of the U.S. Constitution does not confer unlimited power upon the President. 

Since the terrorist attacks on September 11, 2001 (9/11), a number of laws and regulations have been enacted that expanded the already long reach of the Executive. One of those laws was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (PATRIOT Act). While it was understandable to many people that Congress granted broad powers to the war-waging branch of government following the 9/11 attacks, for nearly two decades the Executive Branch has consistently abused the authority it was granted. 

In late November 2019, the Trump administration claimed authority under Section 412 of the PATRIOT Act to indefinitely detain a stateless man, Adham Amin Hassoun, after he finished serving a fifteen-year prison sentence. While Hassoun should have been released in 2017, he remains in custody in Buffalo, New York. The administration’s rationale supporting Hassoun’s continued detention amounts to little more than logically deficient goalpost-shifting.

Months after the 9/11 attacks, Hassoun was convicted for writing checks to Muslim charities the U.S. government declared arms of extremist groups. All of the checks written by Hassoun, except one, predated 9/11. Additionally, the government alleged that Hassoun established an office of a charitable organization, Benevolence International, that operated as a front for al-Qaeda. In 2002, Hassoun was sentenced to 15 years in prison for conspiracy and material support of overseas terrorist groups. 

Following the completion of Hassoun’s sentence, the government tried to deport him. However, his status as a stateless individual has made deportation difficult. Hassoun remained in immigration detention for an additional 18 months. Like many laws enacted in the aftermath of 9/11, Section 412 is being used to mount a frontal assault on the right to due process.

Section 412 is one of the many odious parts of the PATRIOT Act. In subsections (1)-(6), the law states that “[t]he Attorney General shall take into custody any alien who . . . the Attorney General has reasonable grounds to believe . . . endangers the national security of the United States.”

This staggeringly broad language is supplemented by subsection (6), which reads, “[a]n alien . . . 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.” 

It is questionable whether the use of the plural, “periods,” grants the government the right to indefinitely renew Hassoun’s detention in six-month increments. Moreover, after 18 years in detention, it is difficult to imagine how the administration retains sufficiently “reasonable grounds” to argue Hassoun is a national security threat.

Section 412’s very language made governmental abuse inevitable. Its abuse demands the conclusion that Section 412 must be eradicated from the law.

Due process is a vital and foundational right upon which the legitimacy of our democracy rests. Due process, inter alia, is implicated when the government exercises the authority to indefinitely detain an individual who should be, and has been adjudicated as, free from state confinement.

Guaranteed by the Fifth and Fourteenth Amendments to the Constitution, the right to due process was defined by Justice Story as the “law in its regular course of administration through courts of justice.” Thus, the right to due process allows the government to deprive individuals of liberty assuming the government has satisfactorily followed the law through its regular course of administration. Unsurprisingly, there has been nothing regular about the administration of Hassoun’s deprivation of freedom. 

A claim by the government to indefinitely detain an individual should shock the American conscience. It is untenable to argue that a government, which derives its power from the consent of the governed, possesses the power to summarily erase those rights explicitly retained by the very people providing the consent. If we endeavor to reclaim our identity as the world’s moral authority and realize our constitution’s most precious ideals, we cannot condone this exercise of authority. 

Mr. Hassoun, regardless of his crimes, is entitled to the guarantee of due process. It is imperative for us to determine why the erosion of such vital rights produces little more than furrowed brows and Twitter posts indicating we are “deeply troubled” by profoundly unjust government action. We must perform this evaluation because inevitably, stateless Arab men will not be the only ones upon which the government attempts to exercise egregious and unconstitutional claims of authority.

Mercifully, in December 2019, the United States District Court for the Western District of New York scheduled an evidentiary hearing for April 28, 2020 to determine whether it is lawful to continually detain Hassoun under Section 412. If the government is granted the power to indefinitely detain an individual, the promise of freedom this country so liberally evokes, both inside and outside its borders, will prove hollow. 

In the U.S., freedom is our default setting. Freedom means many things, but any definition unquestionably includes the freedom from government intrusion into our lives. It is entirely irreconcilable for a country to claim authority to indefinitely incarcerate individuals without due process, while also professing to be the world’s beacon of rectitude and freedom.

(Editor's Note: This article was originally published in the March 2020 [Volume 50, Issue 3] version of The Advocate.)