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ACLU's Lucas Guttentag: Immigrants and civil liberties

Lucas Guttentag directs the Immigrants Rights Project for the national offices of the American Civil Liberties Union. Formerly a clerk for Texas federal judge William Wayne Justice and a civil rights attorney and law professor, Guttentag joined the American Civil Liberties Union national office in 1985.

CNN: To start, could you give us some background on the proposed changes to federal immigration laws?

GUTTENTAG: Well, there are a number of proposals pending before Congress now. The principle one dealing with immigration would give the attorney general the authority to certify (that's the language of the law) based on the attorney general's belief that a non-citizen is a danger to the United States, or might be someone who might engage in terrorist activities. There would be no need to prove the basis for the attorney general's concern, and the definition of terrorism is extremely broad, and includes legal and peaceful activities by people in the United States. Under the law, a person certified by the attorney general must be taken into custody, and be incarcerated. In addition to the laws that are pending, in Congress there are the widespread reports of the hundreds and hundreds of individuals being detained by the government as part of the investigation of the terrorist attacks.

The government is disclosing very little information about these detainees, but the press reports are very disturbing. According to newspaper articles, hundreds and hundreds of the detainees have been cleared of any involvement with the September 11 attack, yet they remain in jail. Everyone understands the need for an aggressive investigation. It is important, however, that the public also has confidence that individual rights are protected and that innocent individuals are not being swept up in this investigation.

CNN: What are the parameters by which an immigrant can be legally detained?

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GUTTENTAG: An immigrant can be detained if they are in violation of the immigration laws, and if there is evidence that they are a danger to national security, or will not appear at their immigration hearing. That has always been part of the law. What's new about what Congress is considering now is that the power to detain would be based on mere suspicion. The detention would be mandatory, and the detention could be indefinite.

CHAT PARTICIPANT: Will detainees be allowed access to legal representation?

GUTTENTAG: That is a very good question. Under the law, a person charged under the immigration laws is allowed to have an attorney, if they can afford to pay one, or if there's a free lawyer available to represent them. But unlike a person charged with a crime, there is no right to a court-appointed attorney. At this point, we simply do not know how many non-citizens who are being detained have lawyers. That is information that the government should make public to provide assurances that individuals held in jail have legal representation. There's no need to keep that information secret. The right to a lawyer is critical to protecting other rights and to making sure that innocent individuals are not being detained in violation of the law.

CHAT PARTICIPANT: Do you believe those persons in this country that are not citizens should be given the same protections as citizens?

GUTTENTAG: Under the Constitution, non-citizens are entitled to basic procedural fairness. They are entitled to due process. They are entitled not to be discriminated against based on race and ethnicity, and other fundamental rights guaranteed to everyone. If someone is here in violation of the immigration laws, they are subject to deportation based on the legal procedures that are in the law. Those procedures have to be followed. They are designed to protect the security of the United States, to enforce the immigration laws, and to insure that the procedures are fair and that a person has the opportunity to defend themselves.

CHAT PARTICIPANT: How do you respond to the latest poll showing Americans backing the administrations new proposed federal immigrations laws?

GUTTENTAG: I'm not familiar with the particular polls. I think that in general, there is a great deal of support in the country for addressing the threat of terrorism. Some of the laws that Congress is proposing further that. Others go too far, and are unnecessary. Our concern is with those parts of the proposed laws that threaten fundamental Constitutional rights without assuring greater security for everyone. Immigrants in the United States, like everyone else, want to be safe and secure and enjoy the freedoms that make this country so great. We need to combat terrorism, and to protect the freedoms that the terrorists are trying to take away from us. We can accomplish that, and many of the proposals do that. Others don't.

CHAT PARTICIPANT: Do laws need to be changed or is this another case of laws needing to be enforced. For example, many students have lapsed student visas and they remain here with 'illegal' status?

GUTTENTAG: For the most part, the laws on the books give the immigration service and the government all the power it needs. In many cases, the immigration service is too overwhelmed, too poorly managed, and inadequately funded to enforce existing laws. With adequate management and funding, the immigration service could accomplish a great deal more than it is presently.

CNN: Overall, have Muslim-Americans experienced civil rights abuses in the wake of September 11 and the continuing investigation?

GUTTENTAG: There have certainly been many disturbing reports of hate crimes against Muslims and Arab-Americans, of discrimination, and even of individuals being killed who were thought to be Muslims or Arab, and in many cases were not, for example, the Sikh who was killed in California. The government has repeatedly expressed its condemnation of hate crimes, and the justice department has said it will aggressively enforce laws against hate crimes. That is critically important. We support it. Prejudice against Arab-Americans or Muslims undermines the basic principle of equality that is one of the cornerstones of America.

CHAT PARTICIPANT: Did the ACLU suffer any losses on September 11?

GUTTENTAG: No, not directly. Our headquarters is very close to the World Trade Center. Our offices were evacuated, and friends and relatives of ACLU staff were at risk, but luckily, no one was injured and no family members or relatives that I know of were directly affected. We express deep condolences to all the victims and families of the terrorist attacks of September 11th.

CNN: Do you have any closing comments to share with us?

GUTTENTAG: I think the public response has repeatedly recognized the importance of protecting civil liberties and freedoms during this time of unease and concern. There is a profound understanding throughout the country that if we diminish our freedoms in the war against terrorism, we will, in a way, be undermining the very principles that the terrorists themselves want to destroy. CNN: Thank you for joining us today.

GUTTENTAG: Thank you very much for this opportunity to participate.

Lucas Guttentag joined the chat room via telephone from California and CNN.com provided a typist. The above is an edited transcript of the interview on Wednesday, October 17, 2001 at 2 p.m. EDT.