FBI Bars U.S. Citizens From Coming Home

According to the New York Times:

Federal authorities have prevented two relatives of a father and son convicted recently in a terrorism-related case from returning home to California from Pakistan unless they agree to be interviewed by the F.B.I.

It is unclear whether the men, Muhammad Ismail, 45, and his son Jaber, 18, have a direct connection to the terrorism case or if they have been caught up in circumstance.
…
“They’ve been given the opportunity to meet with the F.B.I. over there and answer a few questions, and they’ve declined to do that,” Mr. Scott said through a spokeswoman, Mary Wenger.

While the men are relatives of a person convicted of terrorism, they have been charged with no crime and are being forced to waive their Constitutional rights or be denied entry back into their country. Imagine, you’re on vacation overseas and your cousin blows up a building somewhere. You don’t know this cousin well, but the FBI thinks you might know more, so they tell you that you can’t come home until you talk with them, without a lawyer and still overseas. How would you feel about that?

Maybe these guys are bad people. Maybe they’re terrorists. However, they’re also American citizens and cannot have their rights taken without due process of law. Charge them, indict them, subpoena them, but don’t make them into refugees.

See the San Francisco Chronicle story (thanks Carl H.), and Eugene Volokh’s post on the story for more coverage.

posted Aug 29th, 2006 by nsarwark
  • http://winterinchile.blogspot.com Sean

    I can’t say I’m not surprised, and really the more intelligent thing to do would be to let them back into the country and get warrants to keep tabs on them mercilessly. It is so easy to get a warrant that is what kills me about this administration they don’t even attempt to get a warrant and then they harass people with ever greater encroachments of our civil liberties.
    I’m really curious as to the governments motivation for a lot of things, but this one is now close to the top of my list.

  • http://www.mauricereeves.com Maurice Reeves

    It’s all the more scary because Pakistan is known to torture during interrogation, and I wouldn’t trust the government telling me I’d only be interrogated at the embassy. And just as absurd, the SF Chronicle reported that the two men had to pay for their own tickets back to Pakistan to be interrogated because they were already on the no-fly list.

  • Sandra Kallander

    Even if they are NOT American citizens, our Constitution prohibits their rights being taken (see also the Declaration of Independence).

    Due process is an inalienable right of people. The US government is prohibited from denying it. It doesn’t matter where the person is at the time or what their citizenship is. All the rights belong to the people.

    All rights belong to the people even if they’re citizens of Holland living in Holland. If they wanted to have a revolution based on grounds given in the Declaration of Independence, they’d be justified.

    Very few of the references in the Constitution only apply to citizens (voting and holding office are pretty much it). Most of it is limitations on government action.

    One of the principles I was taught in American History by my government school was that this government can’t punish or imprison people based on something done by someone else in their family, as was often done in Europe.

    Duh. The government is out of control.

  • http://www.mauricereeves.com Maurice Reeves

    Sandra, I agree, and I should have pointed that out. The enumeration of rights in the Constitution are not distinctly American rights, they’re basic human rights and all people have them.

  • nsarwark

    While you may have a good point about the rights enumerated in our founding documents being universal, natural rights, our laws generally only apply to American citizens or people who are in the United States.

  • IanC

    While I agree wholeheartedly with the brunt of this post… and the sentiment it reveals; this is an absolute injustice…

    It is important to note that, legalistically, there is no specifically enumerated right-to-travel listed in the Constitution or anywhere in any body of law within the United States, insofar as I am aware.

  • Joel

    But Ian…there’s also specifically enumerated right-to-breath listed in the Constitution. There are no enumerated right-to-*insert mundane activity* all over the place. In cases where the right is not enumerated it’s supposed to fall under state juridiction and not federal meaning the FBI shouldn’t have any power here.

  • Freddy

    Sandra the Declaration of Independence is a dead document with absolutely no force of law. Once the Constitution was ratified in 1789 the DOI became meaningless. The Bill of Rights and the rest of the Constitution give us our rights and our laws. What law has been broken by barring these two US citizens from re-entry into the US? I noticed in the article the ACLU did not cite any law being broken or a right being denied. The convicted terorist cousin of the two men has accused one of them of attending a terrorist training camp in Pakistan.

  • R. E. Lee

    What Sean said. Unless one’s relatives are being investigated for victimless crimes, then a responsible person should cooperate to see justice done. I once denied the cops the opportunity to search my house when my brother was AWOL after being drafted; I certainly wouldn’t have done so if he was an escaped convicted murderer.

  • Julian

    Sandra Kallander

    Are you saying every living human being in the entire world enjoys the protection of our Constitution?

    If this be the case, then we can make a case of preemptive invasions of totalitarian nations to free the citizens from bondage and extend the Constitution to them by force.

    What a stretch. I hope the Constitution is elastic enough not to snap under this logic.

  • Sandra Kallander

    Freddy: The DOI has the same meaning it always had. I assume you mean it has no legal force or effect since it was superceded.

    However, the Bill of Rights does not give us our rights. Our rights are endowed by (insert higher Authority here). The Constitution and Bill of Rights grant priveleges to the government and prohibit violation of our rights by the government.

    We are supreme over the government, not subservient to it.

  • nsarwark

    Sandra the Declaration of Independence is a dead document with absolutely no force of law. Once the Constitution was ratified in 1789 the DOI became meaningless. The Bill of Rights and the rest of the Constitution give us our rights and our laws. What law has been broken by barring these two US citizens from re-entry into the US? I noticed in the article the ACLU did not cite any law being broken or a right being denied. The convicted terorist cousin of the two men has accused one of them of attending a terrorist training camp in Pakistan.

    Off the top of my head, I’m going to say that these gentlemen are being deprived of their rights without due process of law. In other words, if the government has a case, they need to get warrants, bring indictments, etc. They can’t just deny a U.S. citizen the right of reentry into the country. It’s a fundamental right, recognized by U.S. courts and in customary international law and via treat. We sign the treaties, it’s our law.

  • Sandra Kallander

    Julian: Of course I’m not saying we authorize the government of the US to make preemptive invasions. If you can make a case for that out of what I said without violating the Constitution, I’d like to see it.

    It’s pretty basic: we (all humans) have a right to due process, a right to free speech and association, etc., etc. and the US government is not authorized to violate those rights. They certainly aren’t authorized to impose anything on foreign nations.

  • Jim

    The Bill of Rights does not grant us any rights. The language of the BoR acknowledges that these rights already exist. For example, there is no place that says “The US Government hereby grants the people the freedom of speech”. Instead, the language is a restriction on government actions towards pre-existing rights. The preamble to the BoR makes this perfectly clear (which may be why its not included in most copies of the BoR).

    Every human being has the right to life, liberty, and the persuit of happiness. The Constitution grants the US government specific powers to guarantee those rights in the area of its authority. Citizenship does not matter. If a person is within US authority, the Constitution specifically instructs Congress what it can and cannot do.

    Foreign nations are not part of the US. Therefore, the US govenrnment has no obligation to liberate foreigners living in a foreign land.

  • http://articulatecampaigns.com Allen Hacker

    Rights not enumerated in the constitution / Bill of Rights do not necessarily fall to state jurisdiction. See the 9th and 10th Amendments in toto.

    Yes, the rights of everyone in the world are protected by the US constitution _against the US government_. There’s nothing in the document that limits its protections to citizenship or territory.

    -0-

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  • Daniel

    Ummmm ….. maybe these guys should sneak back into the country by the southern border …. ? Just a thought

  • nsarwark

    They can’t even get to the continent, since we share our “no-fly” list with Canada and Mexico.

  • Jeff Molby

    Hi everyone. I just found your site, so this is my first comment, but I’ve been watching this very closely since it first broke last week. The original article was a little light, but the follow-ups answer several of your questions.

    maybe these guys should sneak back into the country by the southern border ”¦. ? Just a thought

    From Washington Times:

    Under the so-called Security and Prosperity Partnership for North America, the governments of the United States, Mexico and Canada pledged last year to integrate their terrorism and aviation security watch lists.
    “It’s not even clear that they would be allowed to fly to Canada” so that they could present themselves at the land border, Miss Mass said.

  • Jeff Molby

    What law has been broken by barring these two US citizens from re-entry into the US? I noticed in the article the ACLU did not cite any law being broken or a right being denied.

    Short answer: 5th and 14th Ammendments. Specifically the rights to liberty, property, and due process.
    You can find a pretty good legal explanation here.
    This article doesn’t go into as much detail, but it has some more ACLU quotes and also quotes several legal scholars.

  • Jeff Molby

    Even if they are NOT American citizens, our Constitution prohibits their rights being taken (see also the Declaration of Independence).

    That hypothetical is actually a little fuzzy in this case. Yes, everyone, regardless of citizenship or residence, has a right to life, liberty, property, and due process. But the next question is: if you bar a non-citizen from coming to the U.S. are you violating any of those rights? If he’s a legal resident, I would say yes. If not, the answer’s probably no.

    But that’s all just food for thought. These men are citizens and that is not in dispute. There are only a couple situations where someone can be stripped of their citizenship and those are clearly not in play here.

    The courts have held, time and again, that freedom of movement is part of “liberty”. These men have a right to come home. If they are dangerous, put some extra guards on the plane and arrest them when they land.

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