Ashcroft's proposed vast and troubling changes in immigration law. Several provisions in the bill threatened basic freedoms and civil liberties by expanding the power of the sttorney general and the Immigration and Naturalization Service (INS) to determine the fate of immigrants.
Ashcroft proposed granting the attorney general the power, on recommendation of the Commissioner of the INS, to "certify" any alien if there was a "reason to believe [they] may further or facilitate acts of terrorism … or any other activity that endangers the national security of the United States."3 With this broad power of certification, the attorney general would have the authority to indefinitely detain any non-citizen who fit this overly broad standard and the recommendation would not have been subject to any form of judicial review.4
In addition, the proposed legislation would not have required the INS to provide any reasons for the certification or detention, making it nearly impossible for individuals to challenge the legitimacy of their detention.5 Once certified, those detained would have no opportunity to challenge their detention before an independent immigration judge; instead, an INS prosecutor would simply review their cases.6 Given that the proposal permitted indefinite detentions, it was quite possible that individuals could have been held for extended periods of time without access to a lawyer and without being informed of the charges against them. Even if a person won a court ruling preventing deportation, under Ashcroft's proposal the INS could still detain that individual.7
The Anti-Terrorism Act of 1996 already gave the INS broad authority to act against non-citizens suspected of being involved in or supporting terrorist activity, and these powers have been abused in the past. In a 2000 Florida ruling on secret evidence, U.S. District Court Judge Joan A. Lenard ruled that "the Court finds that the Petitioner's procedural due process rights have been violated insofar as the introduction of and reliance on classified information deprived him of his right to a fundamentally fair hearing to determine his eligibility for release from custody." Ashcroft's legislation would have essentially exempted the government from having to present any evidence at all to detain non-citizens.8
In that same 2000 case, the Judge wrote that on the issue of association with a group labeled as "terrorist" by the government, the government must present "evidence that demonstrates more than mere, 'membership' or 'association,' but rather 'meaningful association' or a 'degree of participation' in activities posing a threat to national security." Under the Ashcroft proposal, in order to detain a non-citizen, the INS would have merely needed "reason to believe" that the person may engage in a crime of violence, or may support an organization that has done so in the past. Beyond that, non-citizens could be deported if they had provided material support for the lawful activities of terrorist organizations in the past, even if the organization was not designated as a "terrorist organization" at the time the support was provided. There were no limits on what could be considered "support" of a terrorist organization; sending medical aid to a hospital run by an organization later classified as terrorist could be a deportable offense.9 In essence, this could have led to the deportation of individuals strictly on the grounds of their political beliefs.
The proposal did not provide for any form of meaningful judicial review once a non-citizen was detained. It would not be until after the INS had issued a removal order that those detained would have been granted any type of judicial review, and even that was limited to a habeas corpus petition that could only be filed with the U.S. District Court for the District of Columbia.10