May 4, 2010
“The very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings.”— John F. Kennedy
How will you know that you’re living in a police state? When law enforcement authorities are empowered to stop and search anyone they deem to be “suspicious,” when citizens are being snatched up and made to disappear with no access to the legal system, and when it’s your own government that is operating secret prisons—it’s a safe bet you’re under the auspices of an emerging totalitarian regime.
Do you think this couldn’t happen in America? Think again. It’s been happening for years under our very noses.
Since 2004, police officers in New York City have stopped nearly 3 million people. Incredibly, almost 90 percent of those stopped were blacks and Hispanics. Worse, these people did nothing wrong. Even so, their names have been entered into a permanent police database for use in future investigations.
A similar scenario is being played out in Arizona, where under the state’s newly enacted immigration law—even as amended, police can and will demand papers from anyone the cops suspect may not be a citizen. But for many of those arrested in such instances, jail will not be their biggest worry. It’s whether anyone will ever hear of them again—in other words, whether they’ll be made to disappear.
Speaking at a 2008 gathering of police and sheriffs, James Pendergraph, the executive director of Immigration and Customs Enforcement’s (ICE) Office of State and Local Coordination, bragged, “If you don’t have enough evidence to charge someone criminally, but you think he’s illegal, we can make him disappear.” In fact, the federal government has made countless people—including some legal residents and American citizens—”disappear” through the use of secret detention centers hidden in warehouse-like facilities in communities across America.
In an expose for The Nation, law professor Jacqueline Stevens reveals that ICE is operating 186 such detention centers. The problem, as Stevens points out, is that “with no detention rules and being off the map spatially and otherwise, ICE agents at these locations are acting in ways that are unconscionable and unlawful.” Worse, writes Stevens, concerning one such detention center known as B-18:
If you’re putting people in a warehouse, the occupants become inventory. Inventory does not need showers, beds, drinking water, soap, toothbrushes, sanitary napkins, mail, attorneys or legal information, and can withstand the constant blast of cold air. The US residents held in B-18, as many as 100 on any given day, were treated likewise. B-18, it turned out, was not a transfer area from point A to point B but rather an irrationally revolving stockroom that would shuttle the same people briefly to the local jails, sometimes from 1 to 5 am, and then bring them back, shackled to one another, stooped and crouching in overpacked vans. These transfers made it impossible for anyone to know their location, as there would be no notice to attorneys or relatives when people moved. At times the B-18 occupants were left overnight, the frigid onslaught of forced air and lack of mattresses or bedding defeating sleep. The hours of sitting in packed cells on benches or the concrete floor meant further physical and mental duress.
At the point that law enforcement officials—appointed public servants who are financed with our taxpayer dollars—are locking citizens and non-citizens away in secret prisons where they have no access to family members or attorneys, we have crossed over into a new and troubling era in the history of our nation. As Aaron Tarin, an immigration attorney in Salt Lake City, remarked, “You’ve got these senior agents who have all the authority in the world because they’re out in the middle of nowhere. You’ve got rogue agents doing whatever they want. Most of the buildings are unmarked; the vehicles they drive are unmarked.”
Rogue agents, nondescript buildings, unmarked windowless vehicles—these are just some of the hallmarks of a secretive regime where justice is meted out gulag-style. Mark Lyttle knows first-hand how terrifying this gulag-style form of justice can be. An American citizen who suffers from bipolar disorder, speaks no Spanish and has no Mexican ancestry, Lyttle had never been outside the country. He had, however, seen the inside of a jail, and that’s where his troubles began. Lyttle, who had been living in a group home, was made to serve time in jail for inappropriately touching an employee. Unfortunately for Lyttle, the jail wrongly listed his place of birth as Mexico, rather than Rowan County, N.C., where he was actually born. Unbeknownst to his family, Lyttle was handed over to ICE under the pretext that he was an illegal alien.
Shuffled around from one detention center to another, Lyttle was eventually deported to Mexico. Lacking any form of identification, it took him almost two years—all the while being forcibly shuffled from Mexico to Honduras to Nicaragua and finally to Guatemala—to make his way back to America. “We’re an all-American family with two soldiers and a family member who happens to be handicapped,” said Mark’s brother, Brian, who serves in the U.S. Army. “It’s like spitting on my uniform that you would do that to my brother.”
Lyttle is not alone. Hector Veloz, also a U.S. citizen, was locked in an Arizona prison for 13 months after immigration officials mistook him for an illegal immigrant. There are hundreds more like Lyttle and Veloz who are being wrongfully and unconstitutionally detained and, in some cases, deported, despite being legitimate U.S. citizens. Unfortunately, as the San Francisco Chronicle reports, “in immigration detention it falls to the detainees to prove their citizenship. But detainees don’t have the constitutional protections, such as the right to legal counsel, that would help them prove their case.” Furthermore, “immigration detainees are routinely shipped to remote jails where free legal aid is unavailable, their families are not notified of their whereabouts, and they are often denied access to telephones, mail and even medical care.”
Is this really the way we want our government to mete out justice? As Alison Parker, deputy director of Human Rights Watch, explains, the government should provide “an impartial authority to review the lawfulness of custody. Part and parcel is the ability of somebody to find the person and to make their presence known to a court.” That’s why we have the habeas corpus provision in the Constitution. Latin for “bring forth the body,” the Great Writ of Habeas Corpus ensures that if you’re being held in a jail or prison and haven’t been charged with a crime, you have the right to go before an impartial judge and ask, “Why am I being held? What is the evidence against me?”
In other words, the writ of habeas corpus prevents the government from locking you up and throwing away the key. It ensures that justice is served: that the guilty are rightfully punished and the innocent are not wrongfully imprisoned and left without any recourse for gaining their freedom.
Imprisoning people and causing them to disappear was the way of the old world, and America’s founders detested this practice. They believed that the right of habeas corpus was essential if American freedom and democracy were to be maintained. They fought the War of Independence in part so that the lawless capture and secret detention of prisoners would never occur again.
Alexander Hamilton, perhaps the most conservative of America’s founding fathers, once said that the writ of habeas corpus was perhaps more important to freedom and liberty than any other right found in the Constitution. Believing that arbitrary imprisonment is “in all ages, the favorite and most formidable instrument of tyranny,” the founders were all the more determined to ensure that the people had safeguards against government abuses such as those being carried out by ICE today.
Unfortunately, in our zeal to halt the estimated 800,000 plus illegal aliens flooding across our borders annually—an undeniable problem that needs to be resolved, we risk undermining our own rule of law and rendering our Constitution null and void. After all, if government agents can detain citizens like Mark Lyttle and Hector Veloz, what’s to stop them from snatching you up and locking you away, without the ability to contact your loved ones or your lawyer?
Moreover, national ID cards aren’t a solution, either. They’re a monstrosity, according to FOX commentator Judge Andrew Napolitano. Especially since the Bush presidency, there has been an intense push for a national ID card, and as Napolitano points out, the Arizona immigration law may be the slippery slope toward requiring these invasive tracking devices not merely of immigrants but all Americans.
Thus, while something clearly needs to be done in the way of immigration reform, it must not come at the expense of Americans’ right to be treated fairly and in accordance with our Constitution.
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Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org 
Editors Note: The Rutherford institute is a civil liberties organization founded by constitutional attorney John W. Rutherford. It is often called conservative with roots in the Christian right but it has also joined in free speach cases with the ACLU.