Enemy Aliens and American Freedoms

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.

Targeting Immigrants

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.

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