Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes—by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it? The case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s, and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to find that the government never planned to release him regardless of the sentence he was given. Instead, he became the first person held under Section 412 of the USA PATRIOT Act, which purports to give the government broad authority to detain non-citizens whom the government certifies are national security risks. The government abused that authority in Hassoun’s case. But perhaps more importantly than what happened to Hassoun himself, his case illustrates the ease with which domestic national security detention can be abused by government actors with perverse political incentives. Above all, Hassoun’s case should cause us to reexamine the traditional deference given to the government in national security matters, particularly when the government’s targets are from disfavored groups such as Muslims or other religious and racial minorities. More than twenty years after 9/11, it is time to interrogate the national security legal apparatus that rose up in the aftermath of the attacks and which ensnared Hassoun in a legal battle that only ended after the government was forced to justify its actions and failed.
Nicole Hallett, The Use and Abuse of Domestic National Security Detention, 45 SEATTLE U. L. REV. 525 (2022).
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