In yet another grab for power and blow to justice, Attorney General John Ashcroft has issued a legal opinion declaring that most illegal immigrants can be jailed indefinitely without bond when national security risks exist.

The opinion means such aliens will not be released on bond while their cases are being decided by immigration judges if the government can show national security issues are involved. "Such national security considerations clearly constitute a reasonable foundation for the exercise of my discretion to deny release on bond," Ashcroft said in the 19-page opinion, which was signed last Friday.

The opinion was written at the request of the Homeland Security Department which now oversees immigration matters. The case involved the continued detention of one of the 216 Haitain immigrants on a boat that ran amuck in Miami last October, who had jumped into the bay and reached U.S. land. 100 of the immigrants had been granted bond, and Ashcroft's decision likely will affect them as well, according to immigration law experts. The National Coalition for Haitian Rights will appeal the decision.

Dina Paul Parks, the New York-based coalition's executive director, said the decision further erodes immigrants' legal rights. "If you were lucky enough to get a sympathetic judge you could potentially get released on bond. Now even that prospect is taken away," she said.

Ashcroft's opinion applies to all immigrants except Cubans, who if they reach shore, are allowed to remain here. [thanks to Linkmeister for emailing the article to us.]

Update: The text of the opinon is here.

The Electronic Privacy Information Center (EPIC) has established a color-coded Privacy Threat Index to track the growing threat to privacy resulting from increased government surveillance.

Modeled after the Government's Homeland Security Threat Index, EPIC assesses the current level as Elevated (Yellow) --even though the Homeland Security index has reduced it's terror alert.

Chisum Lee reports in the Village Voice on what it will mean for us when the privacy alert index reaches "red."

If the nation were actually to reach red alert status, odds are the "Privacy Threat Index" color chart at epic.org would be wiped from the virtual world. Red means the government controls everything, the lives of Americans online and off.

...."Red is somewhere between Gattaca"—the science fiction movie in which the state uses genetics to dictate people's lives—"and George Orwell's 1984," said EPIC executive director Marc Rotenberg. "Red means Big Brother's in charge."

....The critical point has to be the re-establishment of political freedoms as crisis subsides," he said. Yet the administration has indicated that "the war on terror is a war without end," he said, which threatens an equally ominous endlessness to government practices that impinge on people's privacy. Beneath the gimmick of colors, those practices raise serious questions about when government intrusiveness begins to exceed justifiable national security purposes and inappropriately invade private lives.

We recommend you put the privacy threat index on your sites. Epic provides an easy one line code to insert. As to Chisum Lee, read the whole column--information about the Government's plan to increase use of "biometric identifiers" is just one reason.

Law Professor Glenn Reynolds' new Tech Central Station column is up on the dangers of the Patriot Act:

.... the Justice Department's unwillingness to release information on how it is implementing the Patriot Act is deeply troubling. Sure, there are some tactical secrets that shouldn't be released. But it's been a year and a half since the Patriot Act was passed, and information on how the rather sweeping power that it granted has been used isn't being released. As Representative James Sensenbrenner recently complained, this sort of close-to-the-vest attitude makes it rather hard to trust them.

Reynolds adds a lot of historical perspective to the column. This is becoming a recurrent theme for him and we look forward to reading more at Instapundit and his MSNBC blog.

The ACLU filed suit today against the federal government's secret "no fly" list at San Francisco Airport.

In papers filed with the court, the ACLU said that at least 339 passengers have been stopped and questioned at San Francisco International Airport since September 2001.

"At the San Francisco airport alone, hundreds of passengers were stopped or questioned in connection with the so-called ‘no fly’ list," said Jayashri Srikantiah, a staff attorney with the ACLU of Northern California. "If that number is any indication, it is likely that thousands of individuals at airports across the country are being routinely detained and questioned because their names appear on a secret government list."

....The scant public information that is available about transportation watch lists confirms that the Transportation Security Agency (TSA) maintains at least two watch lists: the "no fly" list and a "selectee" list that establishes which air passengers are singled out for additional security measures.

The case is Rebecca Gordon et al., v. FBI et al., filed in U.S. District Court for the Northern District of California. The legal complaint is available here. A chart of "no fly" incident lists is available here.

Programs such as these threaten our liberty but don't make us safer. We are grateful to the ACLU for watching out for all of us. If you can afford a donation to support their work, visit here.

Nat Hentoff continues to ask, "Where's the Press?" We join him. Check out his new column in the Village Voice explaining the dangers of the proposed Clean Air Act, FBI spyplanes and CAPPS II:

Every time the administration removes another strand of the liberties in the Bill of Rights, we are told it has to be done in the vital interest of our homeland's security against the terrorists. But it is increasingly clear that we the citizens need to be secure from our government—not only where our liberties are concerned but also with regard to our health and our very lives. An astonishing proposal in the Bush-Ashcroft draft of Patriot Act II—hardly reported, if at all, in much of the press—subverts the Clean Air Act so radically that residents in towns and cities around the country could be affected.....

Then there is the issue of the FBI Spyplanes, reported March 15 in the Associated Press:

In the March 15 Daily News, there was an Associated Press report from Washington that more than 80 FBI planes and helicopters are being used to "track and collect intelligence on suspected terrorists and other criminals." Note the key word, "suspected."

Among the FBI's aircraft, the AP story continues, "are several planes, known as Nightstalkers, equipped with infrared devices that allow agents to track people and vehicles in the dark.

"Other aircraft are outfitted with electronic surveillance equipment so agents can access listening devices placed in cars, in buildings, and even along streets, or listen to cell phone calls. . . . All 56 FBI field offices have access to aircraft. . . . [Legally,] no warrants are necessary for the FBI to track cars or people from the air." The good news, as it were, is that the FBI does need warrants to monitor cell-phone calls, even if from a plane.

Hentoff also addresses CAPS II:

A February 27 warning from the ACLU, about which I've seen few follow-ups in the press, begins: "A secretive new system for conducting background checks on all airline passengers threatens to create a bureaucratic machine for destroying Americans' privacy and a government blacklist that will harm innocent Americans."

Hentoff asks, where is the mainstream press follow-up on these stories? We can't speak for the mainstream press, but bloggers have been timely following them. Our continual coverage of Patriot Act II is here and CAPPS II here. We wrote about the the spyplanes here. Other bloggers have too, including Instapundit and Patriot Watch.

Our Legislation and Civil Liberties archives are two of the most frequently accessed pages on TalkLeft. Feel free to use them and share them. The search engine works really well too.

It's rare we re-print an entire editorial, but this one, Smuggling Away Liberty, from Wednesday's San Francisco Chronicle deserves nothing less:

WHILE THE NATION remains transfixed on the war in Iraq and distracted by the burden of a woefully downturned economy, a group of Beltway Republicans are crafting a scheme to forever wipe out the hallmarks of democracy.

With appalling guile, Republicans and the Bush administration are planning to make permanent the anti-terrorism provisions that granted the federal government unprecedent powers following Sept. 11, 2001.

The "Patriot Act," undermined due process and free speech by expanding eavesdropping and surveillance; legitimizing random looks at e-mail and other personal computer data; allowing the freezing of bank assets and monitoring of bank transactions; authorizing the indefinite and unspecified detention of citizens; and allowing warrantless searches of homes.

The act was hastily approved with no public debate. And, even if arguably justified by the Pentagon and World Trade Center horrors, it's a scary document that's marginally palatable only because it automatically expires at the end of 2005.

But with American public's eyes trained on the war, Sen. Orrin Hatch, R- Utah, has slyly proposed to repeal the "sunset" clause and make the expanded powers permanent. The plan undoubtedly will be attached to another bill to further hide it from public scrutiny.

It's an affront to the Bill of Rights, the international ideal of liberty for 215 years.

Under the guise of fighting terrorism, Hatch's plot impugns the core of democracy -- openness and accountability. It risks leaving our nation with the same political imperfections we have long despised. This time, Congress should take a long, hard look at the consequences of keeping such an act in place.

Here is the text of Justice Stephen Bryer's speech last week on Liberty, Security and the Courts. Among the issues he believes the Court likely will face:

The detainee cases may ask the courts to decide, among other things: What law applies to the detainees in Cuba? What rights or guarantees does the applicable law grant them? Have those rights been respected? Are the restrictions imposed upon the two American citizens detained in military prisons consistent with basic Constitutional guarantees? What rights, if any, does the Constitution offer foreigners illegally present in the United States? What are the rights of material witnesses? In particular, to what extent and in what circumstances do ordinary courts lack jurisdictional competence to decide these questions?

Breyer is emphatic that the Courts will not shy from these issues and that detainees have the right to ask that they be determined.

But as you understand, answers will be forthcoming. Our judicial system is open. An individual detainee, or a "next friend" if that detainee lacks immediate access to a court, can file a court complaint. The complaint can ask the judge for relief, say freedom from detention, access to counsel, or an amelioration of detention conditions. The court will respond, yes or no, grant or deny. And the losing party can appeal -- eventually to our Court. Indeed, a party concerned with delay can move for a speedy response and can seek review of an adverse ruling. And, if the government claims that the court lacks jurisdiction to decide a particular matter, the court, not the government, will decide if that is so, with the result in a lower court being subject to appeal.

Breyer goes on to note:

Questions are being raised about the U.S. purchase of data collected on hundreds of millions of Latin American citizens:

During the past 18 months, the U.S. government has bought access to data on hundreds of millions of residents of 10 Latin American countries --apparently without their consent or knowledge --allowing myriad federal agencies to track foreigners entering and living in the United States.

A suburban Atlanta company, ChoicePoint Inc., collects the information abroad and sells it to U.S. government officials in three dozen agencies, including immigration investigators who've used it to arrest illegal immigrants.

U.S. officials consider the foreign data a thread in a security blanket that lets law enforcers and the travel industry peer into the backgrounds of people flowing into the United States. The information can also be used with other data-mining tools to identify potential terrorists or simply unmask fake identity documents, company and government officials say.

The Justice Department has a $67 million, four-year contract with Choice Point. The Bureau of Customs and Border Protection have refused to provide information about how the Border Patrol uses the data. In 2002, INS paid $1 million for unlimited access to the company's foreign databases.

The U.S. also uses Choice Point's databases to track fugitives.

This year's Muzzle Awards have been announced by The Thomas Jefferson Center for the Protection of Free Expression. Our favorite: The award to John Ashcroft. Runner up: the award to the 107th Congress.

What are the Muzzle Awards?

Since 1992, the Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Mr. Jefferson's admonition that freedom of speech "cannot be limited without being lost." Announced on or near April 13 -- the anniversary of the birth of Thomas Jefferson -- the Jefferson Muzzles are awarded as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment.

link via Patriot Watch.

Eric Muller at IsThatLegal is guest blogging at the Volokh Conspiracy. He doesn't want to let the issue of the FBI-Iraqi interviews rest. He challenges us and Atrios to tell him what's so bad about the interviews.

Eric thinks the interviews are fine. We don't. We pretty much said all we had to say here. But in a nutshell, here's our reasons:

The program amounts to racial and ethnic profiling. It's viewing immigrants and those born in Iraq with suspicion, a guilty-until-proven-innocent approach.

It is morally offensive to us in the same way Mcarthyism was because many of those being questioned are American citizens, some who have been here for decades or who left Iraq as little children. Only by virtue of their heritage are they being asked questions like, Do you support Saddam Hussein? Do you know any Saddam sympathizers? What is your religious affiliation? What are the names and addresses of your Iraqi family members living in the United States?

It's not so different than, "Are you now or have you ever been a member of the communist party?" "Is any member of your family a member of the communist party?" Both have "witchhunt" aspects to them.

While the interviews were supposedly voluntary, many Iraqis felt threatened and intimidated. They were discouraged from seeking legal counsel.

There's also the issue of how the Government assembled its database of 50,000 people in America who were born in Iraq. Was it census records? We don't know, but we don't much like the idea of the Government pressing a computer button to single out a specific group for rounding up and questioning.

Senator and Presidential contender John F. Kerry had some welcome harsh words for the Bush Administration yesterday:

Kerry said yesterday that President Bush committed a ''breach of trust'' in the eyes of many United Nations members by going to war with Iraq, creating a diplomatic chasm that will not be bridged as long as Bush remains in office. ''What we need now is not just a regime change in Saddam Hussein and Iraq, but we need a regime change in the United States,'' Kerry said in a speech at the Peterborough Town Library.

But the best is yet to come--

Taking aim at Attorney General John D. Ashcroft at one point, the senator added: ''One of the reasons why I am running for president of the United States is that I look forward with pleasure and zeal for the opportunity to appoint an attorney general of the United States who believes and reads and abides by the Constitution.''

We don't know how we missed this article detailing criticism of the the Patriot Act, especially since we're quoted in it, but we did. From March 23, 2003 Hartford Courant:

LEGALITY OF PATRIOT ACT QUESTIONED; SOME WORRY THE LAW INFRINGES ON CIVIL LIBERTIES by DIANE STRUZZI, Courant Staff Writer

From Seattle to New Haven, residents, librarians and municipalities are taking a stand. They're passing resolutions that reaffirm constitutional rights and take issue with some federal anti-terrorism laws enacted after the Sept. 11 attacks that they fear infringe on civil liberties.

....According to a running count maintained by the American Civil Liberties Union, they are among more than 60 municipalities nationally that have articulated opposition to several new laws designed to bolster the power of federal authorities to ferret out terrorists, including the USA Patriot Act....

....Critics of the USA Patriot Act -- which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism -- argue that the act gives federal officials too much power to gain access to private records and compromises the Constitution and Bill of Rights.

The ACLU and the Connecticut Civil Liberties Union have been at the forefront of the fight to roll back some of the laws. As part of the ACLU's "Keep America Safe and Free" campaign, it offers a model community resolution on its website, at www.aclu.org, and presents guidelines for how to get such a resolution passed. While supporters acknowledge the resolutions are mostly symbolic, they say the goal is to voice concern publicly.

"If you think that you can take our freedoms away from us in the name of some sort of security ... this is the shot across the bow," said Bruce Bellm, a Democratic councilman in Mansfield who supported the resolution there. ... It's exercising our freedom of speech with an eye toward preserving that freedom and the rest of the freedoms that we have."

....some librarians see the USA Patriot Act differently. Nancy Kranich, chairwoman of the American Library Association's intellectual freedom committee, says the Patriot Act has a chilling effect on libraries, places built on a foundation of open access to information. "The right to speak, view and read are some of the most fundamental rights," Kranich said. "People use libraries for their very democratic rights of free expression and their right to inquiry. ... Because I'm interested in learning more about Osama bin Laden, does that make me suspicious?"

...."You're in such a dilemma. We're not just librarians, we're Americans," Geoffino said. "We want to see everyone who did terrible deeds to be punished, but I have an obligation to safeguard the library, the privacy of the patrons and the perception by the patrons that the library as an organization is without an agenda. ...

For some, the concern centers on what the USA Patriot Act and other laws will mean for the future. Jeralyn Merritt, a Colorado lawyer and secretary of the National Association of Criminal Defense Lawyers who has written about the Patriot Act, said she fears Americans will become accustomed to less privacy.

"They're going to accept it in the same way they accept metal detectors going into schools or security at airports, and I think that's very sad," she said. "I think it means the terrorists have won. They have succeeded in making us a less-free country."

There's lots more, we recommend reading the whole article.