Whose rights are they, anyway?

In the age of Ashcroft, lawyers debate whether the Constitution protects aliens

By Laura Secor, Globe Staff, 9/28/2003

WHEN GEORGETOWN University law professor David Cole discussed his new book, "Enemy Aliens" (New Press), at Harvard Law School last Wednesday night, he delivered a blistering attack on the Bush administration's detainment of Muslim foreign nationals after the 9/11 terrorist attacks. The Bill of Rights, he reminded his audience, protects all "persons" within the United States, including aliens, whether they are here legally or not. By rounding up foreign nationals on the basis of religion and ethnicity, placing them in secret detention indefinitely, and depriving them of counsel, the Department of Justice has violated due process rights that are not a privilege of American citizenship but a guarantee to all human beings within our borders.

Philip Heymann, a professor at Harvard Law, a former deputy attorney general under President Clinton, and a former Watergate prosecutor, was Cole's respondent. Heymann is no supporter of the detention policy. Nonetheless, he said, "Every country expects visitors to be treated differently -- not inhumanely, but without all the rights that belong to citizens. I'd be leery of making a distinction between citizens and resident aliens or anybody who has been in this country for five years. But citizens and people who have permission to be here for three months and have been here three weeks?"

How, one questioner wanted to know, did these two liberal-minded law professors reach such different conclusions on the rights of aliens? Do the Constitution and the case law really offer so little clarity?

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The confusion is understandable. The Bill of Rights does indeed frame its guarantees in terms of "persons" rather than of citizens. As Cole points out, the only rights explicitly limited to citizens are those involving voting and run-ning for public office. But at the same time, the courts have consistently ruled that the federal government has the authority, known as "plenary power," to legislate who can enter and who can stay within the United States.

The Supreme Court tends to interpret the plenary power broadly, even with regard to aliens already inside the country. It upheld the government's right to submit Iranian students to special questioning following the 1979 hostage crisis. Most infamously, in the 1944 case Korematsu v. United States, the Supreme Court upheld the internment of Japanese citizens during World War II.

Korematsu is now considered a shameful precedent -- eight of the nine sitting Supreme Court justices have denounced it. But it belongs to a long and rather ignominious tradition. The Chinese Exclusion Act of 1882 singled out one group of foreign nationals for deportation and refusal of citizenship. The Supreme Court upheld that law against every challenge until it was discarded in 1943.

In a 1976 case upholding the denial of Medicare eligibility to aliens, the Court stated the matter starkly: "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."

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Such double standards are not only wrong but dangerous, says Cole. "What is done to foreign nationals," Cole admonished at the Harvard event, "is a precursor for what will be done to us."

Jan Ting, a former INS official and currently a law professor at Temple University, scoffed at such concerns in an interview. "I hardly find it believable that practices that go on in the immigration system, whatever you think of them, extend into the world of citizens," he says.

One of those practices is the selective enforcement of the law. Many of the recent Arab and Muslim detainees had indeed violated their visas. But while the government pursued them, it turned a blind eye to visa violators from, say, Sweden.

"It's a resource issue," says Ting. There are some 10 million illegal aliens in the United States. "I don't see a problem with prioritizing removals in a way that enhances national security."

Cole retorts that religious and ethnic identity alone are neither useful nor appropriate bases for suspicion. But Sanford Levinson, a professor of constitutional law at the University of Texas, is more ambivalent.

"Many more people in Pakistan are educated to loathe the United States and to accept a doctrine of jihad than in Sweden," Levinson notes. "And so we are entitled to take a closer look at people from Pakistan, and possibly even to refuse entry to people from Pakistan."

But Bill of Rights protections for people inside the country are another story. Says Levinson, "The state can't say, because you are from Pakistan or Saudi Arabia, and we think you might be a terrorist, you are not entitled to any due process at all."

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Turkmen v. Ashcroft, a class action suit on which Cole is a cooperating attorney, claims that the Department of Justice violated the Constitutional rights of post-9/11 detainees. Among others, these include the Fifth Amendment right not to be "deprived of life, liberty, or property, without due process of law" and the Sixth Amendment right of a criminal defendant to be informed of the charges he faces, to confront his accuser, to call witnesses on his behalf, and to be represented by a lawyer.

Like many other detainees, Ibrahim Turkmen, a Turkish service station attendant, had overstayed his visa. But the FBI agents who showed up at his Long Island home in October 2001, the suit alleges, questioned him about terrorism and informed him he would be charged with being an associate of Osama bin Laden. The charges eventually brought against him involved his visa violations alone. But even though Turkmen conceded the visa violations and agreed to be deported, he was not deported. Instead, he was detained for four months, until the FBI had affirmatively cleared him of connections to terrorism.

Immigrations law violations are civil matters, and not all criminal due process protections apply to them. Immigrations cases are decided not in trials by jury but in administrative proceedings that can be held behind closed doors, says Ting, and the state is not required to provide counsel for defendants who can't afford it. Nonetheless, notes Cole, suspected visa violators are usually detained only if they are proven to be flight risks or dangers to their communities.

But the 5,000 noncitizens who were detained after 9/11 (by Cole's estimate) were held without proof of either -- as well as without bond, and often in solitary confinement. By raking its post-9/11 dragnet through the immigrations system rather than the criminal justice system, the Department of Justice seems to have bought itself some latitude. Pursuing criminal charges would have required authorities to demonstrate probable cause to believe the detainees were involved in terrorism. And yet many foreign nationals detained within the immigration system were investigated for terrorist links -- a criminal matter -- and they were effectively presumed guilty until proven innocent. In the end, only four of those 5,000 were charged with criminal offenses related to terrorism. Of those, two were acquitted.

Turkmen joins a long history of challenges to the plenary power doctrine. Most have failed. In January 2001, Michael C. Dorf, vice dean of Columbia University's law school, recapped this history on the legal professionals' website FindLaw.com. He concluded:

"Given the plenary power doctrine's lack of textual support and unseemly past, why has the Court persisted in applying it? The Justices believe that questions of immigration and naturalization are best left to the political branches because they are intertwined with foreign affairs and other matters that courts are not well positioned to decide.

"This is a legitimate concern, and it justifies some measure of deference to Congress. But it does not justify the Court's complete abdication of responsibility for enforcing individual rights."

Laura Secor is the staff writer for Ideas.