Come on, let us deal wisely with them; lest they multiply, and it come to pass, that, when there falleth out any war, they join also unto our enemies, and fight against us, and so get them up out of the land. Exodus 1:10
To those who pit Americans against immigrants and citizens against noncitizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. Attorney General John Ashcroft Dec. 6, 2001 (1) I. INTRODUCTION
On January 24, 2002, the United States military transported John Walker Lindh, a young American raised in Marin County, California, and captured with the Taliban on the battlefields of Afghanistan, to Alexandria, Virginia, where he was to be tried in a civilian criminal court for conspiring to kill Americans. White House spokesman Ari Fleischer announced that "the great strength of America is he will now have his day in court." (2) At the same time, the military was holding 158 foreign-born Taliban and Al Qaeda prisoners at a military base in Guantanamo Bay, Cuba, in 8-foot-by-8-foot chain-link cages. (3) A widely circulated press photo depicted the prisoners bound and shackled, with bags covering their heads and eyes, kneeling on the ground before U.S. soldiers. (4) President George W. Bush announced that he had categorically determined that the Guantanamo detainees were not entitled to the protections accorded prisoners of war under the Geneva Conventions, and Secretary of Defense Donald Rumsfeld dismissed concerns about their treatment with the assertion that it was better than the treatment the Taliban and Al Qaeda accorded their prisoners. (5) Two months earlier, the President had issued a military order providing that Al Qaeda members and other noncitizens could be tried by military tribunals, in which the military would act as prosecutor, judge, jury, and executioner, without any appeal to a civilian court. (6)
The difference between the treatment afforded John Walker Lindh and his fellow Taliban and Al Qaeda prisoners held on Guantanamo rested on the fact that Lindh was, as the press nicknamed him, "the American Taliban." When the Attorney General announced the charges against Lindh, a reporter asked why Lindh was being tried in an ordinary criminal court rather than before a military tribunal. The Attorney General explained that because Lindh was a United States citizen, he was not subject to the military tribunals created by President Bush's order. (7) As a purely legal matter, the president could have made U.S. citizens subject to military commissions; citizens have been tried in military tribunals before, and the Supreme Court expressly upheld such treatment as recently as World War II. (8) But the president chose to limit his order to noncitizens.
That choice is emblematic of how we have responded to the terrorist attacks of September 11, 2001. While there has been much talk about the need to sacrifice liberty for a greater sense of security, in practice we have selectively sacrificed noncitizens' liberties while retaining basic protections for citizens. It is often said that civil liberties are the first casualty of war. It would be more accurate to say that noncitizens' liberties are the first to go. The current war on terrorism is no exception.
In the wake of September 11, we plainly need to rethink the balance between liberty and security. The attacks, which killed more than 3,000 people and did immeasurable damage to the human spirit, succeeded beyond our worst nightmares and their perpetrators' wildest dreams in wreaking destruction and spreading fear throughout the nation. We all feel a profound and deeply unfamiliar sense of vulnerability in their wake and have a correspondingly urgent need for security and reassurance. The anthrax scare that followed underscored the gravity of the threats we face, vividly demonstrating that scientific and technological advances have made instruments of mass destruction far too widely accessible. And as Attorney General John Ashcroft's statement quoted as an epigraph to this article illustrates, many argue that the demands of waging war--here, a war without an articulable endpoint--require that civil liberties not stand in the way of victory. (9)
There is undoubtedly a balance to be struck between liberty and security, but there are also several reasons to be cautious about too readily sacrificing liberty in the name of security. First, as a historical matter, we have often overreacted in times of crisis. In World War I, we imprisoned people for years at a time merely for speaking out against the war effort. (10) In World War II, we interned more than 110,000 persons solely because of their Japanese ancestry. (11) And during the Cold War, thousands of innocent persons lost their jobs, were subjected to congressional investigations, or were incarcerated for their mere association with the Communist Party. (12) In hindsight, these responses are generally viewed as shameful excesses; but in their day, they were considered reasonable and necessary.
Second, there is reason to think that as a general matter in times of crisis, we will overestimate our security needs and discount the value of liberty. Liberty is almost by definition abstract; it is measured by the absence of control or restraint. Fear, by contrast, is immediate and palpable; it takes physical form as stress, anxiety, depression, a pit in the stomach, a bad taste in the mouth. It is easy to take liberty for granted, and to presume that government powers to intrude on liberty are not likely to be directed at one's own liberty. Fear affects us all, especially after an attack like that of September 11.
Third, liberty and security are not necessarily mutually exclusive values in a zero-sum game. Liberty often plays a critical role in maintaining security. One of the justifications for guaranteeing political freedoms is that a free people are less likely to be driven to extreme violence. A political process that treats people with equal dignity and allows dissidents to voice their views and organize to change the rules through political means is likely to be more stable in the long run. Recent experience in England and Israel has shown that cracking down on civil liberties does not necessarily reduce violence, and may simply inspire more violence. (13) As Justice Brandeis wrote, the Framers knew "that fear breeds repression; that repression breeds hate; [and] that hate menaces stable government." (14)
Understanding both the importance of liberty and the temptation to restrict it that government authorities and democratic majorities would face in times of crisis, the Framers sought to protect our basic liberties from the momentary passions of the majority by inscribing them in the Constitution. But with few exceptions, constitutional rights are not absolute; a balance must be struck. As Justice Goldberg famously put it, "[the Constitution] is not a suicide pact." (15)
Thus, while the tension between liberty and security should not be overstated, it cannot be denied. We love liberty and security, but recognize that sometimes we must limit one to enjoy the other. (16) When a democratic society strikes that balance in ways that impose the costs and benefits uniformly on all, one might be relatively confident that the political process will ultimately achieve a proper balance. But all too often we seek to avoid the difficult tradeoffs by striking an illegitimate balance, sacrificing the liberties of a minority group in order to further the majority's security interests. In the wake of September 11, citizens and their elected representatives have repeatedly chosen to sacrifice the liberties of noncitizens in furtherance of the citizenry's purported security. Because noncitizens have no vote, and thus no direct voice in the democratic process, they are a particularly vulnerable minority. And in the heat of the nationalistic and nativist fervor engendered by war, noncitizens' interests are even less likely to weigh in the balance.
In this essay, I will show how this double standard has operated, both in the wake of September 11 and at critical moments in our history. Since September 11, immigrants have been the targets of a massive preventive detention campaign conducted under unprecedented secrecy. Congress has enacted new laws that subject noncitizens to guilt by association, ideological exclusion, and unilateral executive detention. And federal and local officials have engaged in ethnic profiling, treating immigrants as suspect based on little more than their Arab ethnicity or national origin.
Some argue that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by 19 Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our nation and those against whom we are fighting. Surely in that setting it makes sense to treat noncitizens differently from citizens.
I will suggest that such reasoning should be resisted on three grounds: It is normatively and constitutionally wrong; it undermines our security interests; and it will pave the way for future inroads on citizens' liberties. First, properly understood, the Constitution imposes substantial limits on sacrificing immigrants' liberties for citizens' purported security. The basic rights at stake--political freedom, due process, and equal...