Enemy Aliens and American Freedoms: Experience Teaches Us That Whatever the Threat, Certain Principles Are Sacrosanct. (Articles)
Cole, David, The Nation
From his very first speeches following the horrifying events of September 11, President Bush has maintained that the terrorists attacked us because they hate our freedoms. Hence the war on terrorism's official title--"Operation Enduring Freedom." But one year later, it appears that the greatest threat to our freedoms is posed not by the terrorists themselves but by our own government's response.
With the exception of the right to bear arms, one would be hard pressed to name a single constitutional liberty that the Bush Administration has not overridden in the name of protecting our freedom. Privacy has given way to Internet tracking and plans to recruit a corps of 11 million private snoopers. Political freedom has been trumped by the effort to stem funding for terrorists. Physical liberty and habeas corpus survive only until the President decides someone is a "bad guy." Property is seized without notice, without a hearing and on the basis of secret evidence. Equal protection has fallen prey to ethnic profiling. Conversations with a lawyer may be monitored without a warrant or denied altogether when the military finds them inconvenient. And the right to a public hearing upon arrest exists only at the Attorney General's sufferance.
Administration supporters argue that the magnitude of the new threat requires a new paradigm. But so far we have seen only a repetition of a very old paradigm--broad incursions on liberties, largely targeted at unpopular noncitizens and minorities, in the name of fighting a war. What is new is that this war has no end in sight, and only a vaguely defined enemy, so its incursions are likely to be permanent. And while many of the most troubling initiatives have initially been targeted at noncitizens, they are likely to pave the way for future measures against citizens. So as we mournfully pass the one-year anniversary of September 11, we should ask whether President Bush's new paradigm is in fact something we want to live with for the rest of our lives.
As is often the case in times of crisis, noncitizens have been hardest hit. In its investigation of September 11, the Administration has detained between 1,500 and 2,000 people, mostly foreigners, under unprecedented secrecy. Attorney General John Ashcroft has justified the use of transparently pretextual charges to hold them by calling them "suspected terrorists," but his grounds for suspicion are apparently so unfounded that not a single one has been charged with involvement in the September 11 attacks, and with the exception of four people indicted on support-for-terrorism charges in late August, no one has been charged with any terrorist act. Those arrested on immigration charges--the vast majority--have been effectively "disappeared." Their cases are not listed on any public docket, their hearings are closed to the public and the presiding judges are instructed to neither confirm nor deny that their cases exist, if asked. Two district courts and a unanimous court of appeals have held this practice unconstitutional; as Judge Damon Keith wrote for the Court of Appeals for the Sixth Circuit, "Democracies die behind closed doors."
The Administration has repeatedly insisted that it opposes racial or ethnic profiling, but it has simultaneously undertaken numerous measures predicated on little more than a foreign citizen's Arab country of origin. It called 8,000 foreigners in for interviews based solely on the fact that they were recent male immigrants from Arab countries. It has expressly made the deportation of Arabs a priority. And it plans to impose fingerprinting, registration and reporting requirements selectively on noncitizens from a handful of Arab nations. When the federal government takes such steps, it is hardly surprising that state and local law enforcement officials, airlines and private companies follow suit and act upon similar stereotypes.
The most troubling provisions of the USA Patriot Act, enacted within six weeks of September 11, are similarly reserved for noncitizens. The act permits the Attorney General to detain noncitizens on his own say-so, without a hearing; bars foreign citizens from entering the country, based solely on their speech; and authorizes deportation based on any support to a disfavored group, without any requirement that the support be connected to a terrorist act. Had this law been in place in the 1980s, it would have authorized the government to deny entry to those who publicly endorsed the African National Congress, and would have empowered the Attorney General to detain and deport anyone who contributed to Nelson Mandela's lawful antiapartheid political activities, because until the ANC defeated apartheid in South Africa, our State Department designated it as a terrorist organization.
By contrast, security proposals that would directly affect us all, such as national identity cards, airport screening measures and the Justice Department's Operation TIPS program, have received far more careful scrutiny than initiatives directed at immigrants. Indeed, at House majority leader Dick Armey's insistence, the Republicans' Homeland Security bill expressly prohibited adoption of either a national identity card or Operation TIPS. Where citizens' rights are directly at stake, the political process has proven much more rights-sensitive.
But citizens' rights have by no means escaped unscathed. The Patriot Act broadly undermines the rights of all Americans. It reduces judicial oversight of a host of investigative measures, including wiretaps, expands the government's ability to track individuals' Internet use and gives federal officials expansive new powers that are in no way limited to investigating terrorist crimes. It authorizes an end run around the Fourth Amendment by allowing the government to conduct wiretaps and searches in criminal investigations, without probable cause of a crime, as long as the government claims that it also seeks to gather foreign intelligence--an authority that is particularly questionable in light of recent disclosures from the Foreign Intelligence Surveillance Court that the FBI has repeatedly provided misinformation in seeking such authority in the past.
Even property rights, generally sacrosanct among conservatives, have been sharply compromised. Under Patriot Act amendments to pre-existing emergency powers laws, the President can designate any organization or individual a terrorist and thereby freeze all their assets and criminalize all transactions with them. He has used it thus far to shut down three of the nation's leading Muslim charities. Two were closed without any charges at all, simply because they are "under investigation." The third, the Holy Land Foundation, was designated a terrorist organization, not based on charges that it had engaged in or even supported terrorist activity but simply on the charge that it is connected to Hamas. The foundation was given no notice or hearing prior to its designation, and when it filed suit after the fact, the district court denied it any opportunity to produce evidence supporting its innocence.
All of the above measures implicate the civilian justice system. But the Administration's ultimate trump card is to bypass that system altogether for "military justice," a Bush oxymoron that would have impressed even Orwell. President Bush has asserted the authority to hold people in military custody incommunicado, without any individualized hearing into the basis for their detention, without access to a lawyer and without judicial review. He has set up military tribunals in which the detainees can be tried, and ultimately executed, without independent judicial review and without anyone outside the military, including the defendant, ever seeing the evidence upon which the conviction rests. And Defense Secretary Donald Rumsfeld has claimed that even if a defendant manages to prevail in such a trial, the military will not release him, but will hold him until there are no longer any terrorist organizations of potentially global reach left in the world, or more simply, for the rest of their lives.
A New Paradigm?
This, then, is the state of civil liberties one year after September 11. The Administration's defenders advance three principal arguments to justify what they call the new paradigm required by the war on terrorism. First, they argue that noncitizens, the targets of many of the new measures, are not entitled to the same rights as citizens, especially in time of war. This is hardly a novel argument. Sacrificing foreign citizens' liberties is always tempting as a political matter. It allows those of us who are citizens to trade someone else's liberties for our security. But doing so is wrong, unlikely to make us more secure and virtually certain to come back to haunt us.
As a constitutional matter, basic rights such as due process, equal protection and the freedoms of speech and association are not limited to citizens but apply to all "persons" within the United States or subject to US authority. The Constitution does restrict the right to vote to citizens, but that restriction only underscores by contrast that the Constitution's other rights apply to all "persons." These are human rights, not privileges of citizenship.
Double standards are also unlikely to make us more secure. Even granting that it is rational to assume that Al Qaeda operatives are more likely to be Arab or Muslim, if we are going to identify and capture the few Al Qaeda terrorists among the many millions of law-abiding Arabs and Muslims here and abroad, we need the cooperation of those communities. When we impose on Arabs and Muslims burdens that we would not tolerate for ourselves, we make the targeted communities far less likely to cooperate, and we stoke anti-American sentiments.
The double standard is also illusory, for what we do to aliens today provides a precedent for what can and will be done to citizens tomorrow. When the President introduced the concept of military justice with his military tribunal order in November, for example, he reassured Americans that it would not apply to them, but only to "noncitizens." Yet now the Administration has asserted the authority to detain under military custody two US citizens--Yasser Hamdi, a citizen captured in Afghanistan, and Jose Padilla, arrested at O'Hare Airport in May on suspicion that he might be planning to set off a radioactive "dirty bomb." The military claims that simply by attaching the label "enemy combatant," the President can authorize the indefinite, incommunicado incarceration of any US citizen he chooses, without judicial review. Military justice has come home. This proposition is so extreme that even the US Court of Appeals for the Fourth Circuit, by far the most conservative federal circuit in the country, has rejected it. Yet the Wall Street Journal reported in August that high-level Administration officials have advocated even broader reliance on this power, and have suggested creating a special camp to house citizen "enemy combatants."
The illusory line between alien and citizen has often been crossed before. Two of the most shameful episodes of our nation's history also had their provenance in measures initially targeted at noncitizens. The McCarthy era of the 1940s and '50s, in which thousands of Americans were tarred with guilt by association, was simply an extension to citizens of a similar campaign using similar techniques against alien radicals in the first Red Scare thirty years earlier. The same is true of the internment of US citizens of Japanese descent during World War II, which treated citizens as we had long treated "enemy aliens"--as suspicious based solely on their group identity, without regard to individual circumstances. So the fact that we have selectively targeted immigrants, far from justifying the new paradigm, condemns it.
Repeating Our Mistakes
Administration defenders also contend that the "new paradigm" has avoided the worst mistakes of the past, as if that is the only standard we need to live up to. It is true that dissidents are not facing twenty-year prison terms, as they did during World War I. Individuals have not been penalized for political membership, as they were during the cold war. And we haven't set up internment camps for Arabs--yet. But in another sense, we have simply updated the old mechanisms of control. Where criminalizing speech was the order of the day during World War I, and guilt by association the reigning principle during the cold war, in today's war on terrorism censorship simply takes a new form. In the name of cutting off funds for terrorist activities, the government has made it a deportable offense and a crime to provide virtually any support to a group designated as terrorist, irrespective of whether the support has any connection to violence, much less terrorism. Because these laws require no showing that an individual's support was intended to aid terrorism, they would permit the government to prosecute or deport as a terrorist even a Quaker who sent Al Qaeda a book by Gandhi on the virtues of nonviolence in an attempt to persuade it to disavow violence.
In defending such laws, the Administration argues that money is fungible, so support of a group's lawful activities will free up resources that can be spent on terrorism. But that argument proves too much, for it would authorize guilt by association whenever any organization engages in some illegal activity. Donations to the Democratic Party, it could be argued, "free up" resources that are used to violate campaign finance laws, yet surely we could not criminalize all support to the Democratic Party simply because it sometimes violates campaign finance laws. And the fungibility argument assumes that every marginal dollar provided to a designated group will in fact be spent on violence, but in many cases that assumption is not warranted. No one would seriously contend, for example, that every dollar given to the African National Congress in the 1980s for its lawful antiapartheid work in South Africa freed up a dollar that was spent on terrorist attacks.
So while we have steered clear of directly criminalizing speech and association--action that in any event is clearly prohibited by Supreme Court precedent--we have achieved much the same ends through the new rubric of cutting off funds for terrorism.
Similarly, while we have not yet interned Arabs simply because of their ethnic identity, virtually all those caught up in the Justice Department's preventive detention campaign appear to have been Arab or Muslim. The government's veil of secrecy has impeded a full airing of the facts, but when they are ultimately revealed, it is likely that many of these detentions will be explicable by little more than ethnic identity. Here, too, the government has avoided explicit reliance on ethnicity for detention, but has used indirect means to accomplish a similar end--the detention of 1,500-2,000 Arabs and Muslims as "suspected terrorists," nearly all of whom ultimately had no connection to terrorism whatsoever.
The Administration's final line of defense maintains that unprecedented risks warrant an unprecedented response. The availability of weapons of mass destruction, the relative ease of worldwide travel, communication and financial transfers, the willingness of our enemies to give their own lives for their cause and the existence of a conspiracy that would go to the previously unthinkable lengths illustrated on September 11 require a recalibration of the balance between liberty and security. It is hard to dispute that the world grows more dangerous every day. But that could also be said during World War II, where modern weapons inflicted far more severe damage than those employed in World War I, including a devastating surprise attack on US soil. It also appeared to be true during the cold war, when we were locked in battle not with a small band of terrorists but with the world's other superpower, armed with an enormous stockpile of nuclear, chemical and biological weapons.
Our experiences during World War II and the cold war teach us that whatever the magnitude of the threat, certain principles remain sacrosanct. First, we should hold people responsible for their own actions, not treat them as culpable based on their ethnic, political or religious identity. Insisting on individual culpability not only serves basic interests of fair play but focuses government investigators on the true perpetrators, avoiding the wasteful expenditure of resources on people who are guilty only by reason of their skin color or political ideology.
Second, the government should not be able to imprison people without a public accounting, reviewable in court, establishing that it has a sound legal basis for doing so. The mutually reinforcing checks of judicial review and public scrutiny, reflected in the ancient writ of habeas corpus and the constitutional right to a public trial, are essential to insuring that the innocent are not caught up as John Ashcroft's "suspected terrorists" or President Bush's "bad guys."
Third, we must insist on public accountability and oversight of law enforcement powers. Past abuses have often been shrouded in secrecy, only to be discovered and condemned years later, as when the Church Committee in 1975 revealed the excesses of the CIA and the FBI in the 1950s and '60s. The Bush Administration has sought to pursue this war under unprecedented secrecy, even refusing to divulge basic facts about its employment of new legislative measures to Congress.
Fourth, we should adopt only those measures that we are willing to have imposed on ourselves. Where everyone has an interest at stake, the political process is much more likely to strike an appropriate balance between liberty and security. Where we sacrifice the rights of some for the purported security of the majority, we violate our most basic constitutional commitments.
Finally, we must avoid repeating past mistakes. After a terrorist bomb exploded at the home of Attorney General A. Mitchell Palmer in 1919, the Justice Department responded by launching the Palmer Raids, in which thousands of immigrants across the country were rounded up and hundreds deported, not for their involvement in the bombing but for their political associations. Eighty years later, the Ashcroft Raids similarly arrested 1,500-2,000 people and deported hundreds--again, without netting anyone charged with the crime under investigation.
None of these principles are new. But the fact that they are old and that they have been forged over the course of many prior crises that also appeared to call for "new paradigms" should count in their favor, not against them. The attacks of September 11 were indeed unthinkable, and the anthrax scare that followed vividly underscored our postmodern vulnerability. But the Administration has yet to make the case that these threats justify compromising our fundamental principles of liberty and justice. In the area of human rights and civil liberties, what is needed is not a "new paradigm" but true conservatism. Only then will freedom endure this operation.
David Cole (firstname.lastname@example.org) is The Nation's legal affairs correspondent and co-author, with James Dempsey, of Terrorism & the Constitution: Sacrificing Civil Liberties in the Name of National Security (New Press).…
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Publication information: Article title: Enemy Aliens and American Freedoms: Experience Teaches Us That Whatever the Threat, Certain Principles Are Sacrosanct. (Articles). Contributors: Cole, David - Author. Magazine title: The Nation. Volume: 275. Issue: 9 Publication date: September 23, 2002. Page number: 20. © 1999 The Nation Company L.P. COPYRIGHT 2002 Gale Group.
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