THE US CONSTITUTION AND THE RIGHTS OF NON-CITIZENS

An expert on immigration law argues that the 'double standard' for foreigners and U.S. citizens serves neither liberty nor security.

David Cole, a professor at Georgetown University Law Center, has long fought for the legal rights and civil liberties of foreigners and immigrants in U.S. courts. Since the terrorist attacks of September 11, 2001, Cole's fight has taken on new urgency, as the government has detained thousands of Arab-American and Muslim men, held hundreds of "enemy combatants" without trial, charges or access to legal representation, and endorsed racial profiling in terrorism cases. In a new book, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, Cole contends that while many Americans say they are willing to give up some liberties to increase security, the government has largely sacrificed only the liberties of foreign nationals and immigrants. Such a policy is wrong as a matter of human rights and counterproductive in bolstering security since it alienates communities of foreigners and immigrants in a position to provide real help in the war on terror. What's more, it follows a pattern of U.S. government abuse of noncitizens in times of crisis that dates back more than 200 years. History suggests that the measures applied to noncitizens may eventually be applied to citizens as well.

In an interview with Rose Gutfeld, David Cole discussed the government's treatment of foreign nationals in the wake of September 11 and the implications for the rights of all Americans and for the nation's standing in the world community.

FFR: Has the government operated with a "double standard" since September 11, 2001, that is, denying immigrants the civil liberties and constitutional protections that citizens enjoy?

David Cole: There's a lot of talk about the need to sacrifice liberty for security, but I believe that the government has not, for the most part, required Americans to make the difficult choice of which of their liberties they're willing to sacrifice in the name of security. Instead, it has said we will sacrifice the liberties of foreign nationals for the security of Americans. So, for example, the government has conducted a mass campaign of preventive detention, almost all of it targeted at foreign nationals, that has by my count at this point resulted in the detention of over 5,000 foreign nationals in terrorism-related initiatives.

Of the 5,000, three have actually been charged with any crime related to terrorism, and two of those three were acquitted of terrorist-related charges. Many of them were arrested in secret, tried in secret, held in maximum security facilities without any kind of probable cause and held on immigration charges even after the cases were resolved. Virtually none of that could be done to U.S. citizens. It would be politically unacceptable for the government to have locked up 5,000 Americans with only one turning out to actually be convicted of a terrorist crime.

What's wrong with this double standard, given the need to bolster security and fight terrorism?

First, as a moral and legal matter, the rights at stake here—rights such as due process, the right to a fair trial, political freedoms, equal protection—are not privileges of citizenship but are human rights that everyone is entitled to by virtue of being a human being. So it is wrong to deny these rights to noncitizens. The Constitution extends these rights to "persons," or "the people," or "the accused," and does not limit them to citizens. The only rights the Constitution limits to citizens are the right not to be discriminatorily denied the vote, and the right to run for federal elective office. But the basic rights in the Bill of Rights apply to all. The Supreme Court said 50 years ago that the First and Fifth Amendments acknowledge no distinctions between citizens and foreign nationals residing here.

As a matter of international human rights law as well, these rights are understood as extending to all persons. Every human rights treaty, including the ones we've signed and ratified, extend these basic rights to all persons. Under international human rights law, they are understood to inhere in the dignity of the person, and not to turn on what passport you hold. The Supreme Court has ruled, as recently as 2001, in Zadvydas v. Davis, involving the detention of foreign nationals ordered deported but whose country will not accept them, that due process applies to all persons in the United States, whether citizens or foreign nationals.

Our courts have not unfortunately always lived up to the promise of the Constitution. The Court has sometimes allowed the government to take measures against foreign nationals that it presumably would not accept toward citizens. This year, for example, in Demore v. Kim, a case challenging the automatic detention of so-called "criminal aliens," the Court for the first time upheld a statute mandating preventive detention without any individualized showing of danger to the community or flight risk, and did so explicitly by reasoning that the government has greater leeway vis-à-vis foreign nationals. But that makes no sense. Foreign nationals have just as strong an interest in not being locked up unnecessarily as citizens do, and the government's interests in preventive detention are identical with respect to citizens and foreign nationals.

Putting aside their morality or legality, these double standards are also counterproductive as a security matter, because they alienate the very communities that we need to be working with most if we are going to find the few al Qaeda operatives out there. We have reason to believe that they're likely to be Arab or Muslim. That's not a stereotype, that's based on intelligence about the membership of al Qaeda. But there are millions and millions of Arabs and Muslims in the U.S. It seems to me that if you treat the entire community as suspect by virtue of where they come from or what religion they practice, then you're going to alienate that community and make it less likely that you will have the kind of positive relationships that would lead to good and useful information that helps us identify actual terrorists. When other nations see us imposing on their citizens burdens we are not willing to tolerate ourselves, we forfeit the legitimacy of the struggle against terrorism, and make it less likely that we will obtain the cooperation we need from those countries. In addition, we contribute to anti-American sentiment, which has never been higher than it is today. That cannot be good for our long-term interests, and it plays right into the hands of the terrorists' recruitment propaganda.

Can you give examples from cases you are handling of the government's disregard for the rights of immigrants and foreign nationals?

Rabih Haddad is a Muslim cleric in Ann Arbor who was arrested and tried in secret after September 11. With the law firm of Arnold & Porter and the Center for Constitutional Rights, we obtained a ruling that his secret hearing violated his due process rights. Haddad was deported in July when his immigration appeals ran out. I also was co-counsel with the American Civil Liberties Union in a First Amendment challenge by New Jersey newspapers to the same policy. We won in district court, but lost before a divided court of appeals, and the Supreme Court denied review. In Brooklyn, I'm working with the Center for Constitutional Rights in a class action lawsuit on behalf of Arab, Muslim and South Asian immigration detainees picked up and held under abusive conditions for long periods of time in New York and New Jersey, ostensibly in connection with the September 11 investigation. In that case, Turkmen v. Ashcroft, some of our clients were picked up on pretextual immigration charges, but then held for as long as six months after their immigration cases had been fully resolved, so that the F.B.I. could keep them locked up while it investigated them. In each case, the government has exploited immigration law for purposes it was not designed to serve, violated the most basic due process rights and treated individuals in ways that it could never get away with had they been citizens.

Why has there been relatively little public outcry in this country against the ways the government has treated foreigners and immigrants?

If Americans think their own rights are safe and we can target foreigners without implicating ourselves, then Americans don't believe they have a reason to protest. Our rights are secure, and our security is secure. It's unfortunate, but I think that is much of what is going on here.

In contrast, strong protest has been heard over measures that actually apply to American citizens. Take, for example, the proposal to have a national ID card; the Justice Department's Operation TIPS, which would have created an army of 11 million citizen spies to spy on each other and provide information to the government; and the Total Information Awareness Program, a massive data mining system. All of those proposals, which would have had substantial effects on the privacy rights of all Americans, generated significant objections in Congress and were killed or substantially delayed.

Even the measures against foreign nationals have not gone uncriticized. In particular, significant dissenting voices have been raised by such groups as Amnesty International, the Center for Constitutional Rights, the American Immigration Lawyers' Association, the A.C.L.U., Human Rights Watch, and the American-Arab Anti-Discrimination Committee. But if you're looking for broad political opposition, you generally won't find it where the government targets foreign nationals. Katherine Lambert

In his new book, David Cole explains how, after September 11, 2001, the U.S. government's treatment of Arab and Muslim immigrants has not only denied many their rights but hindered national security.

Last June, the Bush administration issued guidelines banning the use of race or ethnicity in routine investigations but allowing such practices to continue in narrow circumstances involving terrorism or national security. Does such a policy make sense?

If you're talking about the use of race as an identifying factor in trying to capture a suspect, then I don't consider that to be profiling. So if there's a report that two Italian men in their 40's just robbed a bank, and the police go looking at Italian men in their 40's and don't look at African-American women in their 60's, they're taking race into account there. They're not doing it in a way that is based on stereotypes and generalizations, but rather based on specific identification. I think that's appropriate before and after September 11.

What's not justified is using race as a generalization in deciding whom to stop or whom to target with law enforcement resources, this kind of broad presumption that a foreign national, simply because he is coming from a country that's predominantly Arab or Muslim, ought to be suspect.

How does the government's treatment of foreigners since September 11 conform to the historical pattern of how it has treated foreigners during other crises?

Much of my book argues that there's a recurring pattern of targeting foreign nationals in times of national security crisis. It goes back to the Alien and Sedition Acts of 1798, which were targeted at French and Irish immigrants who were considered to be rabble-rousers. The first federal law targeting subversive speech was a 1903 immigration law. The first guilt-by-association provisions were enacted in 1917, again in the immigration law, and made it a deportable offense to be a member of anarchist or communist parties. Those laws became the basis of the Palmer raids of 1919-1920, which were a response to a series of terrorist bombings in the United States. The federal government went out and exploited immigration law—not to identify and lock up and punish the bombers, but instead to lock up several thousand foreign nationals on pretextual immigration charges and political association charges. Ultimately hundreds were deported—again, not for their involvement in the bombings, but for their political associations.

But what I also show in the book is that historically or inevitably, government officials grow accustomed to exercising these broad authorities and seek out ways to extend them to U.S. citizens.

'When other nations see us imposing on their citizens burdens we are not willing to tolerate ourselves, we forfeit the legitimacy of the struggle against terrorism, and make it less likely that we will obtain the cooperation we need from those countries.'

I think one example is this whole use of military custody, of holding enemy combatants, as the government is doing in Guantánamo Bay. The government is asserting the power to hold these people indefinitely, incommunicado, without any kind of a hearing to determine whether they are in fact combatants. This was initially defended on the ground that these people we're holding are foreigners. They're not on U.S. soil. They don't have the same constitutional rights that we do.

Then we discovered that one of the people there was probably a U.S. citizen, Yasser Hamdi. Then José Padilla, another U.S. citizen, who was suspected of plotting to detonate a dirty bomb, was arrested in O'Hare airport. In these cases, we have extended the concept of military justice to U.S. citizens, and we're holding them just as we're holding the people in Guantánamo, without charges, without a hearing, incommunicado, indefinitely, on the President's say-so that they are enemy combatants.

Another example is the criminalization of what the government calls material support for terrorist organizations. This is a practice that was introduced, again through the immigration law, against foreign nationals, but has now become part of the criminal law, and applies to both U.S. citizens and foreign nationals. It criminalizes any support of any blacklisted terrorist organization without regard to whether one's support actually had any connection whatsoever to terrorist activity that the group undertakes.

I represent a human rights organization in Los Angeles in a lawsuit challenging this statute. The group, the Humanitarian Law Project, has been providing human rights advocacy training and peacemaking negotiation training to the Kurdistan Workers Party in Turkey, which is essentially the political representative of the Kurdish population in Turkey. They've been doing so because they view the Kurds as a discriminated-against and abused minority in Turkey and want to encourage peaceful ways to resolve the conflict between Turkey and the Kurds. Yet once the material support statute was enacted in 1996 and the U.S. State Department designated the Kurdistan Workers Party as a terrorist organization in 1997, it became a crime for this human rights group to continue to provide human rights advocacy training to the organization.

'Unlike in prior crises, there is today a significant civil society presence speaking out for those without a voice in the political process. And those voices, over the long run, will make a difference and probably already have.'

How has the judiciary responded in cases involving the civil liberties of noncitizens?

I think the judiciary's response has been mixed. Historically courts are not effective protectors of liberty in times of crisis. In World War I, the Supreme Court upheld the criminalization of antiwar speech. In World War II, the Supreme Court upheld the internment of Japanese-Americans. In the cold war, the court permitted guilt by association to go on essentially until [Sen. Joseph] McCarthy was censured.

The majority of decisions thus far in the current crisis have ruled in favor of the government. Courts have upheld the secrecy of immigration proceedings, upheld secret arrests, have refused to even question the detention of the people in Guantánamo Bay, and have upheld the detention of Yasir Hamdi as an enemy combatant.

But a surprising number of courts have ruled against the government. We've had courts rule that trying immigrants in secret violates the Constitution; that holding immigrants after an immigration judge has ordered their release, simply because the prosecutor wants to keep them in detention, is unconstitutional; that arresting individuals in secret violated the Freedom of Information Act; that using the material witness law to hold people who are actually cooperating with the government is a violation of the material witness law; that criminalizing the provision of "personnel" and "training" to terrorist organizations violates due process; that locking up a foreign national without charges for 19 days violates federal law; and that a citizen held as an enemy combatant must be given access to a lawyer. The government has appealed most of these rulings. The F.O.I.A. ruling was overturned on appeal, and appeals courts have divided on the constitutionality of secret immigration trials, but the bottom line is that there have been more adverse decisions against the government and for civil liberties than one might expect in the early phase of a national security crisis.

Given the courts' past record, I'd say they have done better this time around than in prior crises.

What has been most disturbing and most admirable about the government's approach to fighting terrorism since September 11?

To me, the most disturbing aspect has been the failure to confront the hard choices presented by balancing liberty and security, and the consistent cheating on that balance by targeting the most vulnerable among us—foreign nationals without a voice in the political process. The most admirable thing about America's response has been the robust dissent that has been voiced, and tolerated, with respect to these measures. Unlike in prior crises, there is today a significant civil society presence speaking out for those without a voice in the political process. And those voices, over the long run, will make a difference and probably already have.

Safeguarding Liberty Protecting the human rights of migrants and refugees has been an aim of the Ford Foundation since the 1950's, when it first began to make grants in response to worldwide migration flows. In the United States, these issues have taken on increasing importance since the attacks of September 11, 2001, as government officials have strived to enhance national security. Support for Prof. David Cole's book represents one of several grants made to safeguard human rights and civil liberties of non-U.S. citizens and to inform policy makers and the public about these issues.

An excerpt from Chapter 14, "The Bill of Rights as Human Rights," in Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism The Constitution does distinguish in some respects between the rights of citizens and noncitizens: the right not to have one's vote discriminatorily denied and the right to run for federal elective office are expressly restricted to citizens. All other rights, however, are written without such a limitation. The Fifth and Fourteenth Amendment due process and equal protection guarantees extend to all "persons." The rights attached to criminal trials—including the right to a public trial, a trial by jury, the assistance of a lawyer, and the right to confront adverse witnesses—all apply to "the accused." And both the First Amendment's protections of political and religious freedoms and the Fourth Amendment's protection of privacy and liberty apply to "the people."

The fact that the Framers chose to limit to citizens only the rights to vote and to run for federal office indicates that they did not intend these other rights to be limited to citizens. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens." For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application to all persons within the territorial jurisdiction, without regard to differences of …nationality." The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.

There are strong normative reasons for the uniform extension of these fundamental rights. As James Madison himself argued, those subject to the obligations of our legal system ought to be entitled to its protections:

it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage. Madison's view was not without its critics, but it prevailed in the long run. On this view, the Constitution presumptively extends not just to citizens, but to all who are subject to American legal obligations, and certainly to all persons within the United States.

Madison's view is buttressed by the fact that when adopted, the rights enumerated in the Bill of Rights were viewed not as a set of optional contractual provisions enforceable because they were agreed upon by a group of states and extending only to the contracting parties, but as inalienable natural rights that found their provenance in God.

Natural law theories no longer hold much influence, but the human rights movement of the last fifty years reflects a remarkably parallel understanding, namely that there are certain basic human rights to which all persons are entitled, simply by virtue of being persons. Human rights treaties, including those that the United States has signed and ratified, uniformly provide that the rights of due process, political freedoms, and equal protection are owed to all persons, regardless of nationality. The Universal Declaration of Human Rights, for example, aptly described by Professor Richard Lillich as the "Magna Carta of contemporary international human rights law," is expressly premised on "the inherent dignity and …the equal and inalienable rights of all members of the human family." Every international law scholar to consider the question has concluded that the Universal Declaration extends its rights to non-nationals and nationals alike. The Universal Declaration explicitly guarantees the rights of due process, political expression and association, and equal protection....

The rights of political freedom, due process, and equal protection are among the minimal rights that the world has come to demand of any society. In the words of the Supreme Court, these rights are "implicit in the concept of ordered liberty."

Our own historical experience with restricting fundamental rights on the basis of citizenship should also give us pause about departing from uniformity. Chief Justice Taney's decision in Dred Scott v. Sandford sought to define away the rights of even free African Americans by concluding that "persons who are descendants of Africans who were imported into this country, and sold as slaves," were not citizens and therefore could not invoke federal court jurisdiction. Chief Justice Taney reasoned that when the Constitution was adopted, blacks were not protected by its provisions because they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."

With the express intent of overruling that reasoning, Congress provided in the Civil Rights Act of 1866 that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…" The same Congress enacted the Fourteenth Amendment, which provided that all persons born or naturalized in the United States are citizens, and further guaranteed to all persons in the United States—whether citizens or not—due process of law and equal protection. As Yale Law Professor Alexander Bickel wrote, Dred Scott teaches that "[a] relationship between government and the governed that turns on citizenship can always be dissolved or denied [because] [c]itizenship is a legal construct, an abstraction, a theory." It is far more difficult to deny that a human being is a "person."

PHOTO Since September 11, 2001, enhanced security in the United States has meant prolonged detention for many immigrants and foreign nationals. Here an asylum seeker from Sierra Leone confers with his lawyer at the federal detention center in Baltimore.

Thank you for your thoughtful comments. I do agree that civil rights do indeed extend beyond the so-called natural rights. Your example with the right to education is not very good, in my opinion. Perhaps, you mean the right to government-paid education. I do not recognize such a right. This is an entitlement, created via legislation.

The right to live in the U.S. of A., I agree, is a civil right, reserved to citizens. I reside (lawfully) in the U.S. thanks to the benevolent hospitality of the American People. I am extremely grateful for that. If this hospitality runs out, I will leave, carrying great memories and enormous respect for you, my hosts.

However, my being a guest does not mean that I rescind all of my civil rights, because many (most) of them are my natural God-given rights. This was the initial reason I entered this discussion. Somebody said "Only citizens are supposed to enjoy civil liberties and rights." That means that non-citizens can arbitrarily be denied, for example, the right to life or the right to liberty. In other words, one would be free to enslave immigrants. You are not advocating that, are you?

Of course non-citizens have rights. We cannot violate their natural rights; I agree with you. However, non-citizens have fewer civil rights than citizens. That was my only point. We appear to be in agreement.

We seem to mean different things by the term "civil right." When I use the term, I mean a right granted by the state. In this sense, education is a right in most states, if not all states, because it is explicitly written in the constitution that all children in the state have a right education. The state government is bound, by its own laws, to grant an education to every child whose parents demand it.

When I say, natural right, I mean a right that is part of natural law, legislated once for all time by God. A civil right is only part of human law. I am a Thomist, in case you were wondering.

The D of I is not a legal document, nor does it have anything to do with the founding of our government.

I see your account has been rightfully banned. No wonder with posts such as this. The Organic Laws of this nation say that the D.O.I. it does have weight equal to that of the Constitution.

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