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THEIR LIBERTIES,OUR SECURITY1 Democracy and double standards. David Cole To those who pit Americans against immigrants and citizens against non-citizens, 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, 6 December 2001 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 thebattlefields of Afghanistan, to Alexandria, Virginia, where he was to be indicted 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.” Represented by some of the best criminal defense attorneys in the country, Lindh raised substantial constitutional challenges to his prosecution, and the government ultimately dropped its most serious charges against him in exchange for a plea agreement.At the same time, the military was holding 158 foreign-born Taliban and al Qaeda prisoners at a military base at Guantanamo Bay, Cuba, in eight-foot-by-eight-foot chain-link cages. 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. They were (and still are) held incommunicado, without charges, without access to lawyers, and without any judicial review. President George W. Bush announced that he 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 they were “being treated vastly better than they treated anybody else over the last several years.” 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. The difference between the treatment afforded John Walker Lindh and his fellow Taliban and al Qaeda prisoners held at Guantanamo appeared to rest on the fact that Lindh was, as the press nicknamed him, “the American Taliban.” When Attorney General JohnAshcroft announced the charges against Lindh, a reporter asked why Lindh was being tried in an ordinary criminal court rather than before a military tribunal. Ashcroft explained that because Lindh was a United States citizen, he was not subject to the military tribunals created by President Bush’s order. 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. But the president chose to limit his order to noncitizens. Several months later, however, military justice was extended to U.S. citizens,as the government asserted the right to hold two citizens—Yaser Hamdi, 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”—as “enemy combatants,” withoutcharges, without counsel, without trial, and without judicial review. Both the president’s initial choice to limit military justice to foreign nationals and his subsequent extension of that authority to U.S. citizens are 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 at least initially selectively sacrificed noncitizens’ liberties while retaining basic protections for citizens. All too often, we have sought to avoid the difficult trade-offs between liberty and security by striking an illegitimate balance, sacrificing 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 an especially 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. Some maintain that a “double standard” for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen 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 argue that such reasoning should be resisted on three grounds. First, it is normatively and constitutionally wrong: the basic rights at stake—political freedom, due process, and equal protection of the laws—are not limited to citizens, but apply to all “persons” subject to our laws. Second, it undermines our security interests: employing a double standard with respect to the basic rights accorded citizens and noncitizens is likelyto be counterproductive at home and abroad because it compromises our legitimacy in both spheres. And third, it will pave the way for future inroads on citizens’ liberties: as the government’s treatment of Padilla and Hamdi has already illustrated, the tactic of trading immigrants’ rights for citizens’ security is misleading, for what we let our government do to immigrants creates precedents for how it treats citizens.In short, when we balance liberty and security, we should do so in ways that respect the equal dignity and basic human rights of all persons and not succumb to the temptation of purchasing security at the expense of noncitizens’ basic rights. The true test of


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UMass Amherst LEGAL 397G - THEIR LIBERTIES, OUR SECURITY

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