Enemy Aliens and American Freedoms (Page 3)

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 José 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.

• « Previous
• 1
• 2
• 3
• 4
• Next »

• Get The Nation at home (and online!) for 68 cents a week!
• If you like this article, consider making a donation to The Nation.
• Reprint this article. Click here for rights and information.