Tuesday, January 29, 2008

Balancing National Security and Human Rights

Jaya Ramji-Nogales of Temple Law School recently published an article on reforming US immigration proceedings that takes on the difficult question (especially for the Bushies) of balancing national security issues with human rights considerations. The article abstract is:

This article addresses two of the most pressing issues facing our society today - rights violations in anti-terrorism efforts and dysfunction in the immigration system - through a case study of the use of secret evidence in immigration proceedings. Cataloguing the government's repeated presentation of unreliable and inaccurate information in support of its efforts to deport suspected terrorists, the paper outlines the individual, societal, and global harms resulting from this misuse of secret evidence. It then discusses relevant human rights law, which offers a particularly appropriate mechanism to address these harms through its careful balancing of national security interests and due process rights. The article advocates the use of human rights law as a guidebook and a yardstick to reform the administrative immigration process through statutory interpretation, regulation drafting, and institutional culture creation. |Link|
If you're interested in reading the whole thing, it's available on SSRN (or by emailing me...)

Here's a quick snippet from the article:

The case of Maher Arar is perhaps the best-known recent example of the misuse of secret evidence in immigration proceedings. In September 2002, FBI agents detained and interrogated Mr. Arar, a Canadian and Syrian citizen... Mr. Arar repeatedly denied any connection to terrorist groups and specifically asked the FBI not to send him to Syria as he feared torture there. Nevertheless, the Immigration and Naturalization Service (INS) determined that Mr. Arar was a member of Al Qaeda and thus inadmissible and removable... Without allowing further inquiry before an immigration judge,16 the INS removed Mr. Arar to Syria, where he was imprisoned and tortured severely for almost a year.... Condoleezza Rice recently admitted that the United States government mishandled Mr. Arar’s case, and should not have transferred him to a country where he faced torture. (footnotes omitted)

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