The Champion

April 2003 , Page 34 

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Ways to challenge the detention of your client who has been declared a material witness or the incommunicado detention of any client

By Richard H. Parsons; Kent V. Anderson; Jonathan E. Hawley

I. What if your client is an alien who is being held by the INS as a terrorist? 

There is a provision in the new U.S.A. Anti-Patriot Act2, 3 It will be difficult to challenge such a detention, but there are limited grounds of challenge available.

First: 

A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to “deprive” any “person of . . . liberty . . . without due process of law.” Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that clause protects. And [the Supreme] Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and “narrow” non-punitive “circumstances,” where a special justification, such as harm-threatening mental illness, outweighs the “individ

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