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
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
Nonetheless, I don’t want to start with
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
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
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
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
Yet many of them in the weeks after 9/11 were picked up,
arrested, and held without charges. Imagine, in the
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
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
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
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
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
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
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
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
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.