Deport 9/11 Defendants if Acquitted? Not So Fast!
by IPT News • Dec 10, 2009 at 6:04 pm
Department of Homeland Security (DHS) Secretary Janet Napolitano testified before the Senate Judiciary Committee Wednesday and was questioned about bringing 9/11 defendants into the United States for trial. What happens, she was asked, if any of those 9/11 conspirators are acquitted?
They'd be deported, Napolitano said.
Feel better? Should Khalid Sheikh Mohamed get off on a technicality, we'd release him to some other country where it's possible he could resume his place as an Al Qaeda operations chief.
And even deportation is no guarantee. First, an acquitted 9/11 defendant could make an asylum claim. While it's beyond unlikely to be granted, such an appeal could drag out for years. The scenario is an example of the unintended consequences of trying an international terrorist who waged war against America in a criminal courtroom.
These guys should be convicted, but in the unlikely event of a snafu, there doesn't seem to be a clear plan for ensuring the bad guys will be kept locked up.
Dan Vara, former Chief Legal Officer for DHS' Immigration and Customs Enforcement in Central Florida and a pioneer in successfully prosecuting national security cases in Immigration Court, notes that an asylum claim can be bolstered by:
1) the chance evidence he is a terrorist is barred due to a finding of coercion.
2) claims he will be tortured if returned to his "home" country because the U.S. improperly labeled him a terrorist.
3) this can lead to seeking a possible withholding of removal and/or relief under the Convention Against Torture.
In immigration court, the burden of proof is "clear, convincing and unequivocal" proof instead of the "beyond a reasonable doubt" standard of a criminal case However, that works both ways, and the defense can prove their case by the same standard.
And deportation proceedings are not the final level of adjudication in immigration law. Appellate rights for the deportation process, including asylum and other relief from removal issues, extend into the federal court system all the way to the Supreme Court. It can last many years. Secretary Napolitano's short reference answer that any acquitted 9/11 defendant would simply be "deported" ignored the reality of the immigration legal world.
That previously noted due process can become significantly problematic. Even if, ultimately, such an alien respondent is ordered deported and actually removed from the U.S., getting there can be a time consuming and expensive (for the taxpayer) enterprise. Open court hearings in immigration proceedings provide yet another forum for these known terrorists to spew their anti-American rhetoric and offer jihadist recruitment propaganda. There are no guarantees in these immigration proceedings, and such a scenario could well make legal life miserable for the U.S. government and much of America for a long time while those respondents pursue all available avenues to stay here.