Kafka and the Patriot Act

by Paul Coggins The Texas Lawyer

I toss in an unfamiliar bed. Strange bed. Strange room. Strange town. Strange country. A stranger in a strange land, I sleep fitfully in a country not my own. The hotel door bangs open. Heavy boots shake the room as armed soldiers surround me. Angry voices. Blinding lights. Paralyzing panic. Groggy, I am slow to react. Too slow. Rough hands jerk me off the bed and onto the hard floor. A boot presses on my spine and another on my neck. Face down, I am pinned to the floor. My hands are cuffed behind my back, so tightly that my arm sockets burn with pain.

A stifled scream corks my throat. After the scream finally breaks loose, I slip into my native tongue, not their language. All the while the soldiers shout at me, but I only understand every 10th word. Though I shout back, they apparently don’t understand me. I have been thrust into a Kafkaesque nightmare. I have read “Kafka,” but I am certain the soldiers have not.

Under the cover of night, I am whisked to a solitary cell in a maximum-security prison. My pleas for a phone call are ignored. I have not been allowed to contact family or friends. I’m terrified that my wife and daughter are worried about me. My requests to see a lawyer also fall on deaf ears.

The only people I see are my captors. Every day they haul me into an interrogation room to grill me with questions. Surrounded by stone-faced soldiers and unsympathetic translators, I hear the same questions day after day. Same hostile questions. Same open skepticism. Same life-or-death threats.

The days stretch into a sameness like a living death. My claustrophobic cell shrinks to the dimensions of a coffin. No one on the outside knows where I am or if I’m alive. Down to a flicker of hope, I am spirited in the night to a new prison, hundreds of miles, maybe thousands of miles from my old cell.

New prison. Same questions. Same threats. Same loneliness. Same living death. The first transfer presages a second — and a third. I feel like the pea in a shell game. I picture my wife, maybe a lawyer and my friends pounding on a prison door, only to discover that I had been whisked away, hidden under another shell. The captors stay a step ahead.

Disoriented by frequent moves and forced isolation, I forget where I am, what country is holding me. Am I a political prisoner in South America? Eastern Europe? Southeast Asia? Have I joined the swelling ranks of “los desaparecidos,” the disappeared ones?

But my name isn’t Paul, and I’m not in South America, Eastern Europe or Southeast Asia. My name could be Pablo or Nikita or Omar, and I am a prisoner in the United States. I have been branded a terrorist suspect, though the basis for the suspicion may be vague, flimsy or not spelled out at all.

Forget the books and movies. There is no phone call from prison, no lawyer in the visiting room and no judge watching over my case. There are only captors, questions and solitary cells.


In the wake of Sept. 11, 2001, the United States joined the ranks of countries that allow the police to pick up noncitizens (if certified by the U.S. attorney general as terrorist suspects) and detain them almost indefinitely with virtually no judicial oversight. Even the expansive detention powers granted by Congress last month fell short of Attorney General John Ashcroft’s bid for the right to detain noncitizen terrorist suspects indefinitely with no judicial oversight.

While Congress should be commended for rejecting Ashcroft’s radical proposal, Congress erred by shifting the burden of proving the need for greater detention powers and by undervaluing judicial oversight as a deterrent to abuse of those powers. Granted, elected officials tremble at the prospect of being branded as soft on terrorists (more toxic than past charges of being soft on communists or drugs), but was it too much for Congress to force the administration to prove a need for expanded detention powers to battle terrorism?

Instead of careful deliberation of the long-term implications of removing an important check on law enforcement, the simplistic analysis was that foreigners had committed horrific crimes and that noncitizens have fewer rights than citizens. That noncitizens enjoy fewer rights than citizens should have been the beginning of the analysis, not its end. Before we weaken judicial oversight of police, law enforcement should bear a heavy burden of proof that judges are impeding their terrorism probes.

The executive branch made no such showing here. Indeed, in the aftermath of Sept. 11, federal courts have issued hundreds of material witness warrants for citizens and noncitizens. There is simply no evidence that the courts, by retaining oversight over the detention of citizens and noncitizens (including those detained in a terrorism investigation), are thwarting law enforcement in any way.

More than 1,100 people have been detained by law enforcement in connection with the Sept. 11 investigation — some for hours, some for days, some for weeks, some for who knows how long — and the toll climbs daily. Disturbing stories are surfacing that some detainees have been cut off from phones, family, friends and lawyers. Some apparently are being shuttled from prison to prison.

Except for aggregate (and unreliable) numbers, the Department of Justice does not release information about the detainees. Thus, there are more than 1,100 case studies bearing directly on the scope of the present detention powers — case studies that should have been carefully reviewed by Congress before it granted law enforcement greater detention powers.

The vast majority of police detentions are undertaken in good faith and pursuant to law, but cops occasionally overstep the bounds. In a system of checks and balances, the presumption should be that, when the police obtain greater powers, judicial oversight is tightened. Only on the most compelling showing of necessity (with the burden falling squarely on law enforcement) should the police gain greater powers by relaxing or removing judicial oversight.

It’s easy, too easy, to take rights from noncitizens. After all, it’s not our problem, right? It’s not our problem unless, of course, we happen to be sleeping in another country, not our own. And if we close our eyes too tightly and too long, we may fall asleep in the United States and wake up in another country, not our own.

Paul Coggins is a principal in the Dallas office of Fish & Richardson, a national intellectual property, complex litigation and technology firm. He is a former U.S. Attorney for the Northern District of Texas.

November 30, 2015
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