The Trump administration has ordered the continued detention of a convicted foreign terrorist for at least six months after the completion of his prison sentence due to concerns he is still active in terrorist activities.
It’s thought to be the first invocation of the provisions of Section 412 of the USA Patriot Act, which was enacted after the Sept. 11, 2001, attacks.
Adham Amin Hassoun, who is being held at a U.S. Immigration and Customs Enforcement (ICE) facility near Buffalo, New York, was sentenced in 2008 for conspiracy to murder, kidnap, and maim persons in a foreign country, conspiracy to provide material support for terrorism, and providing material support for terrorists.
His supporters, particularly his lawyers at the Clinical Legal Education Program of the University at Buffalo School of Law and the American Civil Liberties Union (ACLU), characterize the order for continued detention as an order for indefinite detention, which, strictly speaking, isn’t true, according to the Department of Justice (DOJ).
Section 412 “allows the government, with extensive judicial supervision, temporarily to detain terrorist aliens until they are removed from the country. It is the equivalent of denying bail to a criminal defendant. Section 412 ensures that terrorists are not released to live among the people they seek to harm,” according to a summary provided by the DOJ.
The government is allowed under the law to detain aliens if there are “reasonable grounds to believe” they engaged in terrorist activity, or who endanger U.S. national security. If removal from the United States is unlikely in the foreseeable future—as is the case with Hassoun, whose statelessness means no country was willing to accept him—the government “may” continue to detain an alien for renewable six-month periods if releasing the person will endanger national security or harm “the community or any person.”
The Supreme Court recognized in its 2001 ruling in Zadvydas v. Davis that detaining aliens may be necessary in cases related to terrorism and national security, and that “special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security,” the summary states.
The law gives such aliens the right to challenge their detention in federal district court, which Hassoun is doing in the U.S. District Court for the Western District of New York.
Oral arguments were heard Nov. 22 in the case, cited as Hassoun v. Searls, before Judge Elizabeth A. Wolford, who was appointed in 2013 by President Barack Obama. Wolford said she would render her judgment in the habeas corpus application at a later date.
“If the government were to prevail in its claim of extraordinary and unprecedented executive power, the government would be free to lock up noncitizens indefinitely based solely on executive say-so, even after they completed serving their sentences,” said ACLU lawyer Jonathan Hafetz, according to The Daily Beast.
Another Hassoun attorney, Nicole Hallett, said her client is being treated unfairly.
“This is Guantanamo on domestic soil,” she reportedly said. “The government is trying to detain him as long as it wants, and that prison happens to be in Batavia, New York, not at Guantanamo Bay.”
The charges Hassoun was convicted of stemmed from his role “in a conspiracy recruiting fighters and providing material support to terrorist groups overseas engaging in ‘jihads’ in Chechnya, Bosnia, Kosovo, Algeria, Afghanistan, Pakistan, Somalia, Eritrea, and Libya,” according to prosecutors.
The government stated in court documents that it “has more than sufficient evidence … that Petitioner plotted future terrorist attacks and is attempting to recruit terrorists.”
The FBI recommended Hassoun be kept in custody because he “is likely to continue his material support of ISIS and to recruit others to carry out attacks against the United States on behalf of ISIS.”
On Jan. 22, 2008, a federal judge in Florida sentenced Hassoun to 188 months, or 15 years and eight months, to be followed by 20 years of supervised release.
Upon completing the sentence with time off for good behavior, he entered ICE custody. But ICE was unable to deport Hassoun because as a Palestinian, he’s considered stateless, and the Trump administration said no country was willing to accept him.
The government argued in court documents that it’s justified in continuing to detain Hassoun because he “assumed a leadership role in a criminal conspiracy to recruit fighters and provide material support to terrorist groups, and because [he] remain[s] a continuing threat of recruiting, planning, and providing material support for terrorist activity.”