WHAT TO DO WITH TERRORIST CRIMINAL ALIENS

What To Do With Terrorist Aliens?
By Bill West
COUNTER TERRORISM BLOG

http://counterterrorismblog.org/2009/01/what_to_do_with_terrorist_alie.php

This topic has been covered before in the CTB. There was just a ruling in US District Court for the Eastern District of Virginia in Alexandria that should remind us of the difficulties dealing with such matters, even when the law is on the side of the good guys/gals. US District Court Judge Leonie Brinkema, who presides over the criminal contempt case of Sami Al-Arian, ruled in favor of the Government by allowing the prosecution to go forward. Judge Brinkema set the trial date for March 9.
Al-Arian, convicted in Tampa, Florida of providing support to the Palestinian Islamic Jihad (PIJ), has been fighting Justice Department efforts in Virginia to have him testify before a Federal Grand Jury investigating various Islamic charities and think tanks in the northern Virginia area. Al-Arian’s refusal to testify in those proceedings has resulted in him being held in civil contempt by the Courts and has led to the current criminal contempt charges. Several months ago, Judge Brinkema freed Al-Arian on supervised pre-trial release while the Court considered various defense and Government motions. Al-Arian has been residing in the Washington, DC area with some of his family during this time.
It should be noted that Al-Arian, as a result of his Tampa conviction, is also under an order of removal (deportation) from the United States. Al-Arian’s removal would be effected by Immigration and Customs Enforcement (ICE) which is an agency of the Department of Homeland Security (DHS). For a time, Al-Arian had been detained in ICE custody during the pending criminal contempt case proceedings. ICE released him concurrently with Judge Brinkema’s custody order.
A further reminder...Al-Arian, as an alien (foreign national) who has been convicted of a terrorism-related felony, is not only subject to the removal order against him but, quite arguably, is subject to pre-removal detention by ICE whenever the pending criminal case is concluded and, if he is convicted of that violation, serves any time in criminal custody he might receive at sentencing. A Supreme Court decision a few years ago ruled that aliens under final removal orders could generally be held in custody for no more than six months pending the Government’s efforts to physically remove them. If not removed within six months, such aliens must be released from custody.
There are, however, certain exceptions allowed by that Supreme Court decision. Those exceptions include aliens who are involved with or linked to terrorism and are determined to be threats to national security. Arguably, an alien who is feloniously convicted of supporting a terrorist organization would be an alien subject to the longer, and that can even be an indefinite “longer,” pre-removal detention. The question then presents itself relative to the Al-Arian case - what will DHS/ICE do with him when the pending criminal contempt case is concluded and he reverts back to ICE “custody?” Ideally, ICE would quickly remove (deport) Al-Arian pursuant to that removal order. This may be particularly problematic. As has been noted in the CTB before, physically deporting certain aliens, particularly stateless Palestinian aliens who are convicted/known terrorists or terrorism supporters, is often difficult. The issue really is to where does the US Government deport such people and how is that accomplished in a safe and secure manner?
While this task is difficult, it is not impossible. Other such aliens, like Fawaz Damra and Al-Arian’s brother-in-law Mazen Al-Najjar, have been successfully removed. Damra was an Ohio imam convicted of lying on his immigration and naturalization documents about his prior support of the PIJ and other radical Islamists. Al-Najjar, while not criminally convicted, was identified by other evidence as a notable PIJ operative working with Al-Arian in PIJ support efforts in the Tampa area. After significant effort and time, both Damra and Al-Najjar were deported. Damra was detained by ICE pending those removal proceedings. Al-Najjar, in what was a widely contested and media-covered process, was detained for a time, released, and then detained again during his removal case. The Al-Najjar detention case focused heavily on the Government’s partial utilization of classified evidence in seeking to keep him detained. Al-Najjar’s supporters, including Al-Arian, publicly made much of Al-Najjar supposedly being “held without charges” on “secret evidence.” That posture was a radical distortion of reality.
We will have to wait and see what DHS/ICE ultimately does in the Al-Arian case. If, at the appropriate time, ICE declines to take Al-Arian back into custody pending removal, it would be entirely appropriate to ask why they did not take such action.