The Bush Administration Progresses to Banishment

This is almost too awful to believe, but it appears to be true.

The San Francisco Chronicle reported on Sunday that two American citizens had been barred from re-entering the United States after a trip to Pakistan. Why?

Muhammad Ismail, a 45-year-old naturalized citizen born in Pakistan, and his 18-year-old son, Jaber Ismail, who was born in the United States, have not been charged with a crime. However, they are the uncle and cousin of Hamid Hayat, a 23-year-old Lodi cherry packer who was convicted in April of supporting terrorists by attending a Pakistani training camp.

They’re related to a terrorist, see. Is that actually the reason the government is giving for not letting them back in? Not really…

Federal authorities said Friday that the men, both Lodi residents, would not be allowed back into the country unless they agreed to FBI interrogations in Pakistan.
“They’ve been given the opportunity to meet with the FBI over there and answer a few questions, and they’ve declined to do that,” Scott said.

This is already pretty bizarre, since it’s apparently unprecedented and extraordinary to prevent a US citizen from re-entering the country, but all the more strange because one wonders why the two men couldn’t simply be questioned in the US.

But wait! The two men were questioned by the FBI, but:

Mass said Jaber Ismail had answered questions during an FBI interrogation at the U.S. Embassy in Islamabad soon after he was forced back to Pakistan. She said the teenager had run afoul of the FBI when he declined to be interviewed again without a lawyer and refused to take a lie-detector test.

Just to be clear, there are multiple outrages here:

  • US citizens have been banished from the country on the flimsiest suspicion and the say-so of the administration, with no due process.
  • The government’s story is that they banished these people because they wouldn’t agree to interrogations in violation of their rights. It’s illegal in the US to force a suspect to be questioned without an attorney, or to submit to a lie-detector test involuntarily. The government’s stated pre-requisites for letting these people back into their own country is that they agree to waive their rights.

It would seem perfectly sensible for this to be a plot point in an Orwell or Kafka novel, except it’s happening in real life.

“They want to come home and have an absolute right to come home,” said [Julia Harumi Mass, a lawyer for the American Civil Liberties Union], who has filed a complaint with the Department of Homeland Security and a petition with the Transportation Security Administration.

They can’t be compelled to waive their constitutional rights under threat of banishment,” Mass said. “The government is conditioning the return to their home on cooperation with law enforcement.”

So much for the right to remain silent.

Glenn Greenwald offers further analysis, including:

Anyone for whom there is reason to believe that they are working with terrorist groups ought to be aggressively investigated by the Government. If there is sufficient evidence to believe that they have some affiliation with terrorist groups, they ought to be arrested and charged with crimes. All of that goes without saying.

But what possible authority exists for the Bush administration — unilaterally, with no judicial authorization, and no charges being brought — to bar U.S. citizens from entering their own country? And what kind of American would favor vesting in the Federal Government the power to start prohibiting other American citizens from entering the U.S. even though they have been charged with no crime and no court has authorized their exclusion?

An article yesterday in the New York Times picks up the story and adds some extra color:

Jaber Ismail, who was born in the United States, was questioned by the F.B.I. at the American Embassy in Islamabad, but his father, a naturalized United States citizen from Pakistan, declined to participate, Ms. Mass said. Jaber Ismail has refused further interrogation without a lawyer and has declined to take a polygraph test; Ms. Mass said the men were told these conditions had to be met before the authorities would consider letting them back into the United States.
“If the government had evidence instead of innuendo,” Ms. Mass said, “then they would be charged with a crime instead of being held hostage in a foreign land.”

Eugene Volokh offers:

If the government has probable cause to believe that the Ismails are guilty of a crime, then it can certainly arrest them. But to my knowledge, the government can’t bar citizens — both Ismails are citizens — from returning to the country. The government generally may not strip citizens of their citizenship (subject to narrow exceptions not relevant here); and it seems to me that the right to return to the country of your citizenship is one of the most basic aspects of citizenship.

Let’s hope, for all of our sakes, that the courts get involved Pretty Damn Quick.

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