Democracy and Homeland Security: Strategies, Controversies, and Impact

Part II. Keynote Speeches

Enemy Aliens and American Freedoms: Double Standards and Civil Liberties in the War on Terrorism

David Cole

Keynote speech, April 27, 2004

I’m truly honored to speak at this symposium in memory of the incident of May 4th, 1970, which I think is as poignant and painful a reminder as we have in American history of the tendency the government has to overreact in times of crisis. This campus and those students felt that in the most dramatic way possible, but of course many others have felt that in other crises and, in particular, in the wake of September 11. I want to talk for a bit about the post-9/11 era.

I hesitate to talk for too long because you’ve been sitting here patiently for a while already and because I also want to hear your questions. I also learned early on in the course of speaking on the issues of civil liberties in the post-9/11 era that it’s important to be succinct. I learned this from a story in the New York Times in December 2001, just a few months after the horrific attacks of 9/11. The story concerned a college in Sacramento, California, that invited the editor of the local paper to be the commencement speaker at a midterm graduation ceremony. She chose for her topic civil liberties in the post-9/11 era. Her speech made the New York Times national news page because she was booed and hissed off the stage. The New York Times, being of course the paragon of objective journalism, went out and interviewed the students, and quoted one of the students, who explained that the reason she was booed and hissed off the stage had nothing to do with the content of her speech. It was simply that she went on for too long. So then the New York Times, being at least at the time the paragon of investigative journalism, went out, got the video tape, and found out that she spoke for eight minutes and the boos and hisses started at four. So you look like a much better behaved audience, but I won’t press my luck.

Nonetheless, I don’t want to start with September 11, 2001, but rather with 1919, because I think it provides an important lesson for the way that we have responded in the wake of September 11. 1919 was a year of significant unrest across the United States. World War I had just ended, the veterans had come home, and there were far too few jobs for them. There was massive unemployment across the country. In that year alone there were 1,600 strikes involving four million workers, several of which turned violent and were violently suppressed. This came to a head in the summer of 1919 with a series of mail bombs addressed to Supreme Court Justice Oliver Wendell Holmes, the attorney general of the United States, some senators and mayors, John D. Rockefeller, and others. Most of the bombs were fortunately discovered before they were delivered to their recipients, but not all. One month later, eight bombs went off in the same hour in eight different cities across the country. One of them blew off the front of the private home of the attorney general, A. Mitchell Palmer, in Washington, D.C. The government’s response to this series of highly coordinated terrorist attacks is known today as the “Palmer Raids.” The government did not go out to find the bombers and bring them to justice by trying them. In fact, the bombers were never found and never brought to justice. Instead, the government used immigration law to arrest thousands of immigrants in coordinated raids across the country, not for their involvement in bombing or their involvement in any criminal activity whatsoever, but for technical visa violations and for guilt by association with one or another branch of the Communist Party. They were held incommunicado and interrogated without counsel.

Louis Post was the acting secretary of labor during the Palmer Raids. He courageously stepped in and overturned over one thousand deportation orders stemming from the raids. He found them constitutionally offensive. He later wrote, regarding the raids, “The delirium caused by the bombings turned in the direction of a deportation crusade with the spontaneity of water, seeking out the course of least resistance.” I want to suggest today that in the post-9/11 era, we have again pursued the course of least resistance. What Post meant was that there was no evidence that the bombers were foreign nationals, but we went after foreign nationals using guilt by association because we could. There were laws on the books that made it a deportable offense to be a member of the Communist Party. There were no laws on the books that made it a crime for a U.S. citizen to be a member of the Communist Party. Congress was willing to impose that kind of prohibition on foreign nationals but not willing to impose it on U.S. citizens.

In the wake of September 11, there are real and difficult questions about how we should balance liberty and security. When government officials, like Admiral Loy, say there is no tension between liberty and security, they are simply seeking to paper over the reality. The reality is that there are difficult trade-offs to be made. There is no absolute right answer to the balance between liberty and security. If a diminution in some measure in our liberty will lead to an increase in some measure of our security, it might well be worth the trade-off. But those are hard questions.

That’s why government officials like to paper them over and suggest that they do not have to answer them. I will argue today that what our government has done in the wake of 9/11 is not confront American citizens with the difficult questions. The government did not ask American citizens, “Which of your liberties are you willing to sacrifice in the name of a promise of greater security?” Instead they have made a different offer. The government said, “We have a better offer for you; we will sacrifice their liberties for your security.” They refer to foreign nationals, and especially Arab and Muslim foreign nationals. So the message is that you, the American citizenry, the majority, you don’t need to make the hard choice, you can have your security and liberty, too. We will take somebody else’s liberty for your security. This is an easy way to strike the balance if you’re a politician, because the people from whom you’re taking liberty have no voice, have no vote, they’re not your constituents. As such, the politician can say to the constituents, “you get your cake and eat it, too.” While the burdens and obligation is placed on someone who doesn’t have a voice in whether the politician keeps his or her job. This afternoon I suggest that this double standard of imposing burdens and obligations on foreign nationals that American citizens would not tolerate if imposed on them is wrong as a constitutional and normative matter and counterproductive as a security matter. If all you care about is whether we will have another 9/11, this is the wrong way to go about it. In addition, it’s illusory to believe that when the government targets foreign nationals and says you can have your cake and eat it, too, that these measures will not ultimately affect you. What history shows is that what the government does to foreign nationals in the name of national security at stage one of the crises is inevitably extended to citizens thereafter.

What I want to do first, before I get to those arguments, is demonstrate the extent to which we have relied on a double standard. Because it’s not always that obvious, many people think that we haven’t sacrificed that many liberties in comparison to prior crises; that this has been a relatively measured response. Others believe that there have been tremendous sacrifices in liberty across the board. I think that both of those views are actually in error. I think that there have been tremendous sacrifices, but those sacrifices, for the most part, have been borne by a small minority, namely Arab and Muslim foreign nationals.

Let me lay out the case for the double standard. It really begins with the mass preventive detention campaign undertaken by Attorney General John Ashcroft in the wake of September 11. He announced it publicly in a speech in October of 2001 in New York at the U.S. Conference of Mayors, where he compared himself favorably to Robert Kennedy (something no one else has done). He said, “Just like Bobby Kennedy would arrest a mobster for spitting on the sidewalk, so too will I, John Ashcroft, use every law in my power, including immigration law, to lock up suspected terrorists, keep them off the streets, and prevent the next terrorist attack from occurring.” As Admiral Loy described yesterday, this has been the mantra of this administration ever since: the paradigm of prevention. It’s not enough to capture the criminals after the fact, especially if they are suicide bombers. We need to prevent the next 9/11 from occurring. And we all want to prevent the next 9/11 from occurring. This is of course a wholly understandable desire, but you have to look at what the government has done in the name of this desire.

It all starts with the preventive detention campaign. In the first few weeks after 9/11, every time John Ashcroft got on television—that was as often as he could—he would tell us how many suspected terrorists he had locked up. Two hundred suspected terrorists are now behind bars . . . I’m here to tell you there are four hundred suspected terrorists . . . eight hundred suspected terrorists . . . and one thousand suspected terrorists. Until early November, seven weeks into the campaign, when people started asking questions, such as, “you keep telling us about how many suspected terrorists you locked up but not a single one of them has been charged with anything related to terrorism. Why is that?” John Ashcroft didn’t have a response to that question. As a result, the Justice Department announced on November 5, when the number was 1,182, that now it was too difficult to count how many they had locked up so they were no longer going to give us an accumulated total. They nonetheless offered partial figures in congressional hearings relating to various aspects of the preventive detention campaigns. When you put those together, as I do in my book Enemy Aliens, you come up with over five thousand foreign nationals and a handful of U.S. citizens. Over five thousand foreign nationals have been subjected to preventive detention antiterrorism measures since 9/11. This means that they have been locked up without a criminal charge on some preventive rationale that they are a threat of future danger.

What do we know about these five thousand foreign nationals two and a half years after this campaign began? Well, we know that not one of them has been charged with involvement in September 11. The only person charged with involvement in September 11 is Zacarias Moussaoui, and he was picked up in August before September 11 occurred and before this dragnet began. Not one has been charged with membership in or support of Al–Qa’da. A grand total of three have been charged with a terrorist crime, and of those three, two were acquitted of the charges at trial. The third was convicted in a trial in Detroit, but his conviction is now under a cloud because it turns out that the prosecution failed to disclose to the defense evidence that its principal witness lied on the stand. So you have one conviction under a cloud for five thousand “suspected terrorists” locked up. Most of the rest of these “suspected terrorists” were not only not charged with a crime related to terrorism, but were affirmatively cleared by the FBI of having any connection related to terrorism.

Yet many of them in the weeks after 9/11 were picked up, arrested, and held without charges. Imagine, in the United States of America, that you’re picked up off the streets by federal agents and thrown in jail. And you ask, “Why am I here?” They say, “We have no answer, there are no charges.” This was done pursuant to a policy that John Ashcroft issued in the first week after September 11, allowing detention of foreign nationals without charges, for an unspecified, reasonable period of time in emergency situations. People were locked up for weeks and in some instances months without any charge being leveled against them. If they were foreign nationals their arrests were secret, which means that if a woman’s husband didn’t come home that night and she called the FBI, called the INS, called the local police and said, “Do you have any record of my husband? He hasn’t shown up.” The answer would be “No,” even if her husband were sitting in the jail right behind the man on the phone. These arrests are secret to this day, notwithstanding the fact that every one of these people was cleared of any connection to terrorism. The government still maintains that it cannot possibly reveal the names of the people they arrested.

Those who were charged ultimately with immigration violations were tried in secret. Hundreds and hundreds of entirely secret immigration trials were held across the country pursuant to an order from John Ashcroft. Again this means that a woman could be seeing her husband, the father of her children, deported from this country and she can’t even attend the hearing that will decide his fate. No classified information was presented in any of these cases, yet every one of them was closed to the public, closed to the press, closed to legal observers, and closed to family members.

The detainees were denied access to lawyers. Initially there was a communication blackout where one wasn’t allowed to make any contact outside of the prison. Thereafter they instituted a policy of one call a week; if the detainee got a wrong number, that was too bad. In New York, according to the Justice Department’s inspector general, the guards had a practice of going through the cell blocks—where the people were detained—asking the prisoners, “Are you doing all right?” and if they said yes, the guards would treat this as a waiver of their right to make their one phone call that week.

Who were these detained people? How did they get defined as suspected terrorists? We didn’t know that initially, and it seemed like the government definition was broad. The fact that they only came up with one person convicted out of five thousand suggests the vagueness of the definition. However, the inspector general’s report underscores the broad nature of the definition. The report states that people were picked up on such information as an anonymous tip that there were too many Middle Eastern men working at the convenience store down the street. So the FBI went down the street to the convenience store to arrest the Middle Eastern men. If by looking at their name they can’t rule out the possibility that they might be a terrorist, they were treated as suspected terrorists for purposes of the 9/11 investigation. That is, the government did not have to have any affirmative evidence that anyone was actually connected to any kind of terrorist group or engaged in any kind of criminal activity. If they were Arab, if they were Middle Eastern and they couldn’t rule out the possibility that they might be a terrorist, they were treated as a suspected terrorist. In some cases, immigration judges said, “Well, you know, you picked this guy up and he’s a Middle Eastern man working in a convenience store, and now you tell me you want to deny him bond and keep him locked up because he is a suspected terrorist. I don’t see any reason to believe that he is a suspected terrorist. I order his release.” So what did John Ashcroft do? He changed the rules. Now, if an immigration judge orders a person’s release because there is no evidence to justify detention, then the immigration prosecutor can keep this person locked up in spite of the judge’s ruling, simply by filing an appeal. The foreign national then automatically remains detained even if the appeal is entirely frivolous.

Many of these individuals admitted they violated immigration law, and said, “I’ll leave.” Ordinarily, of course, that would be the end of a case, right? The purpose of an immigration case is to deport people that are here unlawfully. So if somebody says, “I was unlawfully here and I will leave,” you close up the file, say, “thank you very much,” put him/her on the plane, and they go with a deportation order or a voluntary departure order. When the purpose is not the legitimate purpose of enforcing immigration law but the illegitimate purpose of exploiting immigration law to lock up those you call a suspected terrorist based on the fact that there were too many Middle Eastern men working in a convenience store, it’s a problem when they say they’ll leave. Ashcroft resolved the problem by adopting what was called the “hold until cleared policy” in which people were kept locked up even after their immigration cases were finally resolved and a judge ordered that they could leave the country. They were kept locked up for as long as it took the FBI to satisfy itself that this Middle Eastern man working at the convenience store was not a terrorist. That took the FBI on average three months and at the longest about 260 days. People sat in detention after their immigration was resolved for months with no basis for keeping them detained, simply because the FBI had not yet satisfied itself that they were innocent. Ultimately, of course, it did satisfy itself that these people were innocent but not before they spent many months in jail.

This is a double standard because these measures could not have been employed against citizens. They couldn’t have been employed against citizens for legal reasons. The government used immigration law, which does not apply to citizens, to achieve these results. They also couldn’t have been applied to citizens, in my view, politically. If John Ashcroft, after 9/11, went out and locked up five thousand U.S. citizens as suspected terrorists, and at the end of the day couldn’t come up with a single Al–Qa’da person, a single 9/11 person, and only one person convicted of anything related to terrorism, I think he’d be out of a job. But because they were foreign nationals, we largely stood silently by.

These domestic detainees were the lucky ones, compared to those held elsewhere. Over eight hundred foreign nationals have been held at Guantanamo, 650 of them are still there held without any charges, without any access to the outside world, to courts, to lawyers, and the government’s argument is that we can do this to them because the president has declared them enemy combatants, or as President Bush puts it, “bad guys.” We can do this to them because they are foreign nationals outside of the United States and therefore they do not have any constitutional rights.

Some of those at Guantanamo will get a trial in a military tribunal. In a military tribunal, the rules of which say that you can be tried and executed on the basis of evidence that neither you nor your chosen lawyer has an opportunity to see or confront. The rules of which provide that you can be tried and executed without any appeal to an independent court. President Bush authorizes your trial to begin with, the trial is conducted by military officers under the chain of command, and the final level of appeal is Donald Rumsfeld. And I don’t know about you, but if my final level of appeal were Donald Rumsfeld, I wouldn’t have a warm and fuzzy feeling.

Who do these procedures apply to? To foreign nationals accused of terrorist crimes. Not citizens, only foreign nationals. Why is that? There’s no legal reason for that. The government has used military tribunals in the past, as recently as World War II, against citizens fighting for the enemy, and the Supreme Court has upheld their use against citizens. The reason is not legal; it’s political. Dick Cheney gave it to us the day after the order was issued on military tribunals when he said, “when a foreigner comes and attacks us, he doesn’t deserve the same rights and guarantees that an American citizen does.” So again the message is that it’s not your rights, it’s their rights.

I believe that we have seen the most extensive campaign of ethnic profiling undertaken by the United States government, in the wake of 9/11, since World War II. We haven’t locked up 110,000 people because of their country of origin or their race, but we have called in eighty thousand for special registration simply because they are men from Arab and Muslim countries. We’ve called in eight thousand men for interviews with the FBI simply because they are from Arab and Muslim countries. We’ve prioritized the deportation of foreign nationals simply because they come from Arab and Muslim countries. During the Iraq War, we had a policy of automatically locking up anyone seeking asylum that was coming from Arab and Muslim countries, simply because he was coming from Arab and Muslim countries, without regard to whether he or she posed any danger. What’s the government’s justification here? Michael Chertoff, then head of the criminal division of the Justice Department, defended the practice in Congress by saying essentially, “We are adamantly opposed to ethnic profiling, we do not engage in ethnic profiling. What we do is target foreign nationals based on country of passport.”

The USA PATRIOT Act has many troubling provisions. Some of them you’ve probably heard about: the “libraries” provision and the sneak and peak provision. These provisions we hear about. Why? Because they potentially affect us. They provide that the government can get information about us without probable cause that we’re engaged in criminal activity. They can search our houses without providing advanced notice. These provisions are troubling because they affect us and so they get the lion’s share of the attention. But the worst provisions of the USA PATRIOT Act are not the ones that affect citizens. They are the ones that affect foreigners. The USA PATRIOT Act provides that we can keep foreign nationals out of this country based on pure speech, that we can deport foreign nationals based on innocent association with any group that Attorney General Ashcroft doesn’t like and puts on a black list, and that the attorney general can lock up foreign nationals without charges and without making a showing to a judge that they pose any threat or risk of flight.

A final example is Maher Arrar, who I represent along with the Center for Constitutional Rights. Maher Arrar was a Canadian citizen who’d been living in Canada for twenty years. On his way back to Canada from a trip abroad he had to change planes at JFK airport in New York. In the future international travel agents are going to advise Canadians not to change planes in JFK because the United States took the fact that he was changing planes in JFK as an excuse to put him into immigration proceedings, interrogate him without a lawyer, and order him deported on the basis of secret evidence that he had no opportunity to confront or rebut. Maher Arrar said, in effect, “Well, then please deport me to Canada, that’s where I was going anyway. I’ll just get on my connecting flight, I wasn’t trying to come into the United States, except to get out of the United States.” They said, “No, we’re not going to put you on your connecting flight.” Instead they chartered a federal plane and flew him to Syria where he spent ten months in prison without charges and was repeatedly tortured. You have to ask yourself why the United States would take a Canadian returning home and send him to Syria. The last time I checked we had much better relations with Canada than with Syria. But Canada doesn’t have a record of torturing its suspects. We could only do this to Maher Arrar because he was a foreign national.

Now compare this to some measures where the government has asked American citizens to give up their liberties in the name of security. The proposal that citizens carry a national ID card was killed by Congress in the Homeland Security Act. So, too, was “Operation TIPS,” a program where the Justice Department wanted to recruit eleven million citizens and have them spy on the rest of us and report any suspicious activity to the FBI. We didn’t want eleven million of our fellow citizens spying on us; we didn’t want to live in a society like that.

Finally, my favorite is the “Total Information Awareness” program. This is the Pentagon’s program to essentially search, 24/7, all of the computer data that’s out there about all of us, in private databases, in public databases, and to put it all together to let the Pentagon look through it for patterns of terrorist activity. This is where I suspect the ACLU may have had its biggest success in the war on terrorism. Because it appears that they must have somehow managed to get an ACLU employee into the Pentagon’s public relations (PR) department. Because the Pentagon came with this program to the PR department and said, “We need a name for this program.” They said, “We suggest ‘Total Information Awareness.’” Then there was the question of a slogan for the program. They came up with a sign. The symbol is a pyramid with an enlarged eye at the top of it. It’s actually kind of like the one on the dollar bill except they enlarged and digitized the eye and they wrote over it, “Knowledge is Power.” George Orwell couldn’t have come up with a better symbol. This was supposed to make us feel reassured? They then asked, “Who should we put in charge of this?” “How about John Poindexter?” Poindexter was convicted for multiple lies to Congress during the Iran Contra affair and got off on an immunity issue. TIA was killed; we didn’t want the Pentagon to be searching all of our records all of the time for patterns of terrorist activity. That would infringe on our privacy, on our liberty, on our rights, so we said wait a minute, we’re not willing to go so far. So when we have been asked to sacrifice our liberties for security, we’re not so ready. But when the offer is, let’s sacrifice somebody else’s rights, somebody else’s liberties, we say go right ahead.

Now I want to make three points about this double standard: one, it’s wrong, two, it’s counterproductive, and three, it will come back to haunt us. It is not wrong to believe that Al–Qa’da is made up of Arab and Muslim foreign nationals, that’s not stereotype, bigotry, or prejudice. It is intelligence and fact. Nobody will dispute that Al–Qa’da exists and a large number of its members are of Arab and Muslim foreign national men. So that’s not wrong, but what is wrong is to deny to any group, whether it’s foreign nationals as a group or Arab and Muslim foreign national men as a group, basic human rights. Rights like the right of speech, the right of association, the right not to be locked up arbitrarily, and the right to due process. If you look at the Constitution, it talks about these rights not as privileges of the citizenry but as basic human rights. There are rights in the Constitution limited to citizens, such as the right to vote, the right to run for federal elective office, and the right not to be kicked out of the country no matter how heinously you act. Those are rights of citizens; they don’t apply to foreign nationals. If you look at the Bill of Rights, the First Amendment right of speech and association, the Fourth Amendment right of privacy, the Fifth Amendment right of due process, the Sixth Amendment right to a fair trial, and the Fourteenth Amendment right of equal protection; these are extended not to citizens, but to persons, the people, or the accused. The reason for that difference is that the framers understood these rights as natural law rights and as God-given rights. God didn’t give them solely to people with American passports.

In the modern era, natural law theories are no longer very prevalent, but the human rights revolution of the last fifty years, much of it predicated on the Bill of Rights as a standard that has led to all sorts of human rights treaties, many of which we have actually signed, all predicate these rights on human dignity. Americans don’t hold a monopoly on human dignity. These rights are the same whether it’s a foreign national locked up or a U.S. citizen who is locked up. We ought not to have a double standard.

Secondly, the double standard is counterproductive. If all you care about is our security, you ought to be opposed to these kinds of double standards. Why? Because they undermine the legitimacy of our effort, and this is a legitimate effort. The effort to keep ourselves free from the kinds of attacks we saw on September 11 is, I think, conceded by all to be a legitimate effort. No one should be the target of that kind of inhuman activity, and everyone has the right to protect themselves from that kind of attack. That is not in dispute. But what is illegitimate is the means by which we have pursued that effort and when the means are seen as illegitimate because we impose on other countries’ nationals burdens and obligations that we would not bear ourselves, that undermines the legitimacy of our efforts. And that in turn means two things. It means that it will be more difficult for us to get the cooperation we need to keep ourselves safe, to find the Al–Qa’da people that are out there. And it means that Al–Qa’da will have an easier time finding willing recruits to its cause. On September 11, there was a group out there that hated us enough to fly planes into buildings and kill three thousand innocent people. On September 12, we had the world’s sympathy; Le Monde’s (a French newspaper) headline read, “We are all Americans.” I don’t think you’ll see that headline in Le Monde anymore. In fact, the Pew Research Center reported just a month ago that anti-Americanism is at an all-time high around the world. Not just in Arab and Muslim countries but in foreign countries including those we consider our allies. We went from an object of the world’s sympathy to an object of the world’s antipathy. That is the greatest threat to our national security.

Why did we lose so much ground so quickly after September 11? There are, in the main, two complaints. In my book, Enemy Aliens, I identified the two complaints that the foreign press and the foreign governments have expressed. The first is directed at our unilateral foreign policy; we don’t think we have to abide by the rules everybody else follows because we are the most powerful nation in the world. The second complaint is this double standard by which we have imposed on their nationals burdens and obligations that we would not impose on ourselves.

Finally, these measures will come back to haunt us, because as I suggested, history shows that what we do to foreign nationals is but a precursor of what will be done to our citizens. The Palmer Raids of 1919 were actually the brainchild not of Attorney General Palmer, for whom history has given them their name, but of a young man just out of George Washington Law School. His first job for the Justice Department was to regulate enemy aliens during World War I. When the war ended he was promoted to head the Radical Alien Division of the Justice Department—and note that it was not the Radical Division, it was the Radical Alien Division. He came up with this plan to round up thousands of people based on guilt by association and technical immigration violations and the like. His name was J. Edgar Hoover.

I argue in my book, Enemy Aliens, that first jobs can be habit forming. I know they were for me, and they clearly were for J. Edgar Hoover; he went on to spend fifty years at the FBI seeking to extend to citizens the practices that he had engaged in with respect to foreign nationals in the Palmer Raids. The Smith Act of 1940, which was titled officially the Alien Registration Act, made it a crime for citizens to be members of the Communist Party or to advocate Communist views. He succeeded in extending to citizens what had traditionally only been limited to foreign nationals. In the McCarthy era, which people say should be called the Hoover era because Hoover played an even greater role than McCarthy, tens of thousands of Americans lost their jobs, had their reputations ruined, or went to jail based on their political affiliations, advocacies, or sympathies.

That’s just one example. My book is filled with others. What you find is that every form of political repression that has been applied to citizens of this country began as an anti-immigrant act, began with the argument that they are different from us, and we’re not sacrificing American rights, that the threat is foreign, etc. But inevitably government officials sought to extend them as citizens. Here are two more examples. The Japanese American internment in World War II was one of the darkest moments in our country’s history when 110,000 people were locked up because of their race, 70,000 of them U.S. citizens. Where did this come from? It was essentially an extension to citizens of a practice that was carried out in prior wars under the Enemy Aliens Act, which dates back to 1798. The act stated that whenever we’re at war, the president can lock up anyone who’s a citizen of the country with which we’re at war without any showing that they’re dangerous or engaged in criminal activity. During World War II, the army simply extended that theory to American citizens of Japanese descent. The architect of that plan, General John DeWitt, testified in Congress, and I quote, “Once a Jap, always a Jap. It doesn’t matter whether they’re citizen or alien, the racial strains are undiluted.” So across the prism of race, the noncitizen/citizen divide was once again bridged. Often it takes years for this transition to occur, but in the post-9/11 era and the modern world, everything happens at a much faster pace. We’ve already seen this bridge crossed, think of the justification for the Guantanamo detainees; we can lock these people up without any lawyers, any access to courts, etc., because they’re foreign nationals held outside of the United States and therefore have no rights. Then we found that two of them were U.S. citizens. We picked up Yasser Hamdi, a U.S. citizen, in Afghanistan, and Jose Padilla, a Brooklyn native, at O’Hare Airport. Both were held as “enemy combatants.” And the government claimed that it had the same power to lock up these U.S. citizens without charges, without access to the outside world, without access to a lawyer, or without any meaningful court review. So a power that was initially limited to foreign nationals has already been extended to U.S. citizens.

In sum, for reasons of self-interest, for reasons of security, but most importantly for reasons of principle, we should resist the temptation to strike the balance between liberty and security by adopting a double standard and imposing burdens and obligations on others that we would not bear ourselves. Let me close with a quote that I use as an epigraph to my book because I think it really says it better than I ever could. It’s a quote from a Jewish philosopher of the nineteenth century, Hermann Cohen. He is writing about the Bible. He’s not writing about the Constitution, but I think what he says about the Bible is applicable to the Constitution, particularly in the wake of 9/11. Cohen wrote: “The alien was to be protected, not because he was a member of one’s family, clan, or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity.” One of the great challenges that we face in the wake of September 11 is whether we can reclaim that idea of humanity as we seek to make ourselves secure.