Enemy Aliens and American Freedoms (Page 2)

Citizens' Rights

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.

Military Justice

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.

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