Thursday, June 18, 2015
Symposium on Kerry v. Din: Kerry v. Din as a Troubling "Terrorism" and "National Security" Case by Carrie Rosenbaum
The Supreme Court’s ruling in Kerry v. Din is troubling for the reasons articulated by many, including the contributors to this symposium. However, it is not just troubling because of Justice Scalia’s due process ruling or the actual outcome denying a United States citizen meaningful process to contest the alleged inadmissibility of her foreign national husband. Justice Scalia and Kennedy’s reliance on national security and hints at the “political question doctrine” to justify secrecy and no process, or no meaningful process, particularly in the context of a deeply flawed statute, reflect a disconcerting, yet perhaps increasingly less tenable post 9/11 legal and political landscape.
This may come as a surprise to some given the scary sound of a “terrorism” bar, and Justice Scalia and Kennedy’s opinions, but, there is no reason to believe that Ms. Din’s husband Mr. Berashk, is or was a terrorist. All one can do is guess at why the adjudicator said the terrorism bar applied. Additionally, there are no ostensible national security concerns in this case. This case is largely about all that was left unsaid in the opinion, just like what was not said in the consular officer’s adjudication.
The first matter, whether or not Mr. Berashk is actually a terrorist according to U.S. law was not only not considered, but Justices Kennedy and Scalia did not think it appropriate to require the government to tell Ms. Din and her husband what part of the statute deeming him a terrorist applied, nor what facts supported their contention. The possibly erroneous finding may have rested on his role as a payroll clerk for the Afghani government, or not. However, Justices Scalia and Kennedy are apparently fine with the notion that they, nor we, may ever know. Mr. Berashk can reapply for an immigrant visa. His best strategy may be a Kafkaesque one – to attempt to read the mind of the faceless adjudicator and assume that his role as a clerk is what triggered the bar, and rebut the unstated charge in his new application.
In a post 9/11 United States, “Terrorism” with a capital “T” logically seems like it would trigger national security concerns. However, as noted by Justice Breyer, Ms. Din’s counsel stated that there were NO national security concerns in this case, and the Solicitor General did not even attempt to deny or refute that claim. (Breyer at 9-10.) Instead, “Terrorism” could be a proxy for an ideological or other (perhaps racial) ground of exclusion. The sweeping nature of the bar means it could include legitimate resistance groups, like Iraqi troops who fought against Saddam Hussein. However, highlighting the need for transparency and accountability, an officer wanting to deny admission and be shielded from scrutiny, the law’s expansiveness creates an additional means of finding an otherwise admissible applicant inadmissible.
In their amicus brief, the American Civil Liberties Union went to great lengths to address the anti-Democratic and troubling nature of the history of ideological exclusions. However, the plurality did not find this history instructive.
The reliance on fictional national security concerns to avoid providing meaningful due process is all the more troubling where the statute at issue has been so problematic that there are numerous published, and likely unpublished rulings in the courts and at the Agency level, finding the terrorism bar was misapplied, not to mention Congressional and Agency representatives lamenting it’s flaws such as the fact that the bar includes conduct “no reasonable person would consider material support or terrorism,” and that the “material support” aspect of the bar can prevent people who deserve immigration benefits from getting them.
The Agency has even gone to the trouble to create exemptions and other mechanisms to fix problems with the statute and at times, curb the incomprehensibly and illogically overbroad nature of it. Those exemptions include group-based exemptions, and conduct-based ones, like “material support under duress,” “solicitation under duress,” “voluntary medical care,” and “insignificant material support.” (Even for one inside the U.S. seeking an exemption, the process is largely unofficial, and ad hoc.)
In a post 9/11 United States, are we comfortable, and should some of the Justices been comfortable with the proposition that no substantive or meaningful reasons had be given for the denial? Justice Breyer apparently did not approve of the level of process provided, noting that even if Congress intended to limit review of the applicability of the bar, the constitution trumps the statute. (Breyer at 11.)
To demonstrate the absurdity of characterizing the process given as sufficient due process (pursuant to Kleindienst v. Mandel or otherwise) immigration law scholar Geoffrey Heeren suggested hypothetical scenarios where, had the government provided Ms. Din more information, she may have proven that either the bar did not apply, or an exemption may have been available. Particularly in a case involving such a faulty and expansive statute, the Court had a duty to act as a check, as it has in other politically charged contexts, rather than refraining from engaging in meaningful analysis.
Not only do adjudicators err, and the statute is problematic, but, to anyone not used to the legal fictions of law, and particularly, immigration law, it would seem surreal that had Ms. Din’s husband been able to enter the U.S. as a visitor, non-immigrant student, or worker, or had he otherwise been here already and been challenging the bar from within the U.S., he would have been entitled to due process. The mere fact that he was outside of the country eliminated his, and his U.S. citizen wife’s ability to know more, and put forth a meaningful case. However here, simply because he waited patiently at home to join his wife in the United States, he was deprived of the right to be able to disprove the government’s allegations.
I have represented individuals who were granted political asylum, not an easy task in itself (and in one case, without representation), who the Asylum Office later decided were terrorists. My clients received a template-like letter stating that unless they could prove they were not terrorists, the Asylum Office would rescind their asylee status – years after they had initially granted it. We were provided little information to refute the allegations, but, with countless hours and patience, we proved that my clients were not subject to this expansive and illogical bar, particularly where they were accused of supporting the same people who harmed them, entitling them to political asylum.
In one such case, the Agency granted a duress exemption after the case reached the Ninth Circuit Court of Appeals (though on the same facts and compelling equities, the spouse is still awaiting approval of his waiver). In other instances, the Asylum Office was convinced that the terrorism bar allegations were mistaken. In a case currently pending, the Court is considering whether, based on one of many nuanced aspects of the law, a foreign general who may have participated in coup attempts, but was later given amnesty, violated laws in the country where the actions took place. In that case, the now elderly, permanent U.S. resident is considered by his own government not to be a terrorist, but under 8 USC §1182(a)(3)(B), the problematic wording of the statute caused the Court to ask for Oral Argument to better understand why the bar does not apply. The only reason my clients had a chance at any meaningful process was because they were here. Absent review, factual or legal mistakes would have sent my clients back to countries where they endured great suffering.
As whistleblowers like Edward Snowden and Julian Assange bring government spying to the attention of the public, and people at various places on the political spectrum question the infringement on civil liberties in the name of the War on Terror, the Court plays a critical role in restoring faith in the system by doing its job in adjudicating difficult cases, rather than deferring for fictional national security or political question reasons. (Laura Poitras, if you’re listening, this case and a few of my others would make great cinema!) Even the Mandel court recognized the importance of transparency and process when reviewing a First Amendment claim with ideological underpinnings. Here, the substantive right, according to some characterizations, is equally or more compelling.
Transparency and reasonable process are important to maintain faith in the justice systems of this country. This is all the more true where the Legislative branch creates a deeply problematic statute with grave consequences for U.S. citizens and their family members, or one where ideological or racial bias are easily obscured and impossible to remedy. Not only does the prospect of secrecy and circumscribed justice create overarching misgivings about the system, but history suggests that laws that facilitate bias or have anti-Democratic ideological underpinnings have historically been undone and later seen as regrettable mistakes.