Flit

Alien Acts then and now

The new U.S. Torture act is probably most similar historically to the 1798 Alien and Alien Enemies Acts, passed by John Adams, which gave the government the power to deport any alien (non-citizen) considered dangerous from the United States, in peace (Alien Act) or open war with their home country (Alien Enemies Act).

One difference is the peacetime provisions found in the Alien Act had a two-year expiry date on them, while the wartime restrictions did not. Their expiry in 1800 coincided with the peaceful termination of the undeclared Quasi-War with France which had led to their enactment in the first place.

Another difference is that the Alien Act, unlike the more controversial Sedition Act with which they are frequently associated, never appears to have resulted in any actual imprisonments or deportations. (The Alien Enemies Act remains in force today, now known as 50 USC Sections 21-24.)

Due to the new provisions for indefinite imprisonment, combined with the lack of an expiry date and the fact that some hundreds of people are already known to be affected by the withdrawal of any habeas recourse, it's fair to say that the current Torture Bill's provisions are more severe than those passed against resident aliens by the Adams government in the 1798 Alien Act.

UPDATE: Faithful reader Joe B. points out that the above should have read "signed by John Adams." The Alien and Sedition acts had their roots in Congress, specifically the Hamiltonian wing of the Federalist Party, not the Adams administration itself. As Joe writes, the original post "repeats a mistake often made by people used to parliamentary government" of assigning responsibility for all laws enacted to the current executive.

We're all Arars now

Commentary on the U.S. Torture Bill was so scattershot this week, I eventually gave up and read the darn thing myself. Here's the one big upshot, from a Canadian perspective, and the headline that should have been in Canadian papers all this week: foreign nationals and non-citizen residents taken into U.S. military or CIA custody will, once this bill is signed, have no resort to habeas corpus (the right to be brought before a judge)... more or less allowing their indefinite detention without charge, unless their home government were to strenuously intervene (or American authorities concluded they were utterly innocent and without intelligence value, which doesn't seem to be happening as often or as promptly as it should in most cases)*. Because the new act also declines to in any way limit American claims of their right to seize and hold those they believe are supporters of terrorism anywhere, including in the U.S., this is not just an issue of concern to Afghans and Iraqis, either.

This obviously has to be taken into consideration from now on by any Canadian citizen living in or visiting the United States, or for that matter any other nation with lax extradition procedures to that country. Moving to, or travelling in or through the United States, if you have any reason to believe you might be a subject for U.S. security service scrutiny, would appear to be even less wise now than it was before.

What it does mean is that the Maher Arar case will likely never happen again, but not for the reasons one might have hoped. Had this act been in place in 2002, the U.S. would have been fully within its rights to put Arar on indefinite ice in Guantanamo, and pursue his interrogation using their own methods there, rather than render him to Syria to be interrogated. Future Arars will undoubtedly receive this treatment instead: probably an improvement over a Syrian dungeon, but still a shattered life.

The long-term upshot of this, combined with the recent Arar inquiry, will, sooner or later, be a significant tightening of restrictions on Canadian intelligence and security services from sharing information with their American counterparts about Canadian citizens. In the Globe today, John Ibbotson bemoans the chilling effect the Arar inquiry will have on cross-border intelligence-sharing. The fact that he doesn't even mention the more chilling effect of the simultaneous passing of the Torture Bill is hardly a credit to him or his paper. The risk of another intelligence-sharing lapse leading to another innocent Canadian stuck in Guantanamo is too high to be ignored this way, and it seems certain that eventually the government and the media will catch on and act to rein in what our intelligence services can say or do collaboratively with Americans, regrettably for them and us, and to the advantage of real international terror groups.

ADDENDUM: Does this mean, BruceR, that, having adopted this new approach to fighting terror, retroactively and with broad popular support, the United States government has nothing left to apologize for re the Arar case anymore? No! Because the worst transgression in the Arar case wasn't the Americans' disregarding of their own laws regarding due process or conventions against torture, it was their complete refusal to inform Canadian authorities of Arar's disposition, as guaranteed under their Vienna Convention obligations. Recall it was the oh-so-respectable Syrians who finally officially told Canada where their citizen was. Combine that prospect with the new U.S. law denying anyone but the citizen's government standing to intervene in their imprisonment on a terror rap, and you have a highly likely prospect that a non-U.S. citizen could easily be internally rendered to their detention system and held for some considerable time without anyone knowing about it or being able to intervene. If the revoking of the 1963 Vienna Convention is also part of U.S. policy now, then they should say so... if not, then they still owe Canada and Mr. Arar a profound apology.

*By my reading, the bill expressly does not suspend habeas for U.S. citizens, so I do think some web commenters I generally favour have overreached here. The language on this point does pretty clearly limit the suspension of habeas to "aliens," or non-citizens. The exact quote: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Can't get much clearer than that... which is also why today's protest by Volokh et al and Instapundit that they are not "experts on habeas law" fall so hollow.