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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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