I agree that all human beings are entitled to basic human rights, whether they are in the United States, Iraq, or even Tel Aviv. But these basic rights do not by any stretch of law or values include a right to be in someone else’s country. Hence, “noncitizens” who have entered a country illegally, whose visas have expired, who have entered under false pretenses, or whom we have reason to suspect are terrorists, can legitimately be deported with great dispatch and without any other reasons or justifications. (Exemptions apply, such as for true asylum-seekers and those married to American citizens.) Until recently many millions of people started their lives here by violating the law, jumping the queue of fellow citizens of their countries who also sought a better way of life here, and then using legal tricks and lawyers to stay in this country as if they were legitimate citizens. Because they came illegally, they—unlike immigrants who come legally—were not subject to any of the screening that weeds out convicted criminals and potential terrorists. To characterize these aliens all as “a minority with no vote,” thus equating them with African Americans fifty years ago, is an unabashed rhetorical trick. It is like starting to sort out whether someone is entitled to an inheritance by presuming a priori that he is a member of the family! Illegal immigrants and most other “noncitizens” cannot be a minority of a group to which they never belonged. I emphasize that the point has nothing particular to do with the United States: all nations have a right to determine to whom they will grant the privilege of belonging.
Cole writes that “once again, we have undertaken a mass detention campaign directed at immigrants, without probable cause. . . .” He clearly refers to the mass detention of Japanese Americans during World War II, a shameful act for which we all ought to continue to apologize and for which we should make more amends. However, in that case most of the detainees were citizens; this time most are not. Last time over 100,000 were detained; this time detainees number a few hundred at most. This may still be too many (or too few), but it does not constitute massive or indiscriminate arrests simply because of race or ethnicity. Of an estimated two million Muslim Americans in this country; 99.999% are running around free, as they ought to be. To argue that the latest campaign was aimed against “immigrants,” of which we have many scores of millions (including me), is simply untrue. The aim was to deter terrorists, some of whom are citizens and some of whom are illegal immigrants; the category was never “immigrants.”
The very rhetoric of “sacrificing rights” in order to gain security is profoundly biased. It presumes that the “turf” belongs to rights and any incursion for any other social good entails yielding rights. It would be just as misleading to ask how much security we should sacrifice to protect our rights. We face two partially incompatible demands: to protect our lives and our rights. First, we should seek ways to try to reconcile the two. Thus only those who recognize no legitimate need for enhanced security will demand that all suspected terrorists be tried in an open court and allowed to cross-examine government agents, to discover their identities and methods. But only those who are not at all rights-minded would deny suspected terrorists a lawyer (say, to be chosen from a list of those cleared to review classified information) or the right to appeal to a higher military tribunal, or some other such “middle ground.”
When such reconciliation cannot be achieved, we must seek a carefully crafted balance between these two demands. Instead of starting with the assumption that the onus of proof is on those who seek more homeland protection, on the grounds that rights are a priori privileged, we should ask in which direction we are tilting—and seek to right an imbalance if we find one. Before the Church Commission, the government and especially Hoover’s FBI went far overboard in seeking to protect us from a vastly overblown threat of communism, violating rights without rhyme or reason. (One of my badges of honor is that the FBI tried to entrap me for my opposition to the war in Vietnam, and I made it onto Nixon’s enemies list.) After the Church Commission and following other injunctions, numerous limitations were set on government powers, such as not using unsavory agents overseas as informants and prohibiting the CIA from passing information to the FBI under most circumstances. At the same time, the government was prevented from updating its technologies to keep pace with the growing capabilities of criminals and terrorists (the FBI still files by hand and has highly obsolete computer systems) and from adjusting old laws to the new world (e.g., adapting wiretap laws to the age of cell phones and e-mail). One reason 9/11 happened was that security was neglected. (When I wrote in 1999 in The Limits of Privacy about the danger of terrorists, one of my colleagues responded that they were invented by the FBI in order to get more money and power.) The USA PATRIOT Act and several other post–9/11 measures are steps to correct the over-corrections of the 1970s and bring government capabilities and powers into the twenty-first century. Again, we may well have overshot the mark. To sort out where we have gone too far requires a careful, judicious evaluation of one measure at a time, not a wholesale claim that the best way to protect our security is to treat all noncitizens as if they have full-court rights.
A nation, it is widely agreed, is a community ensconced within a state. Communities establish responsibilities as well as rights. We have no claims against nonmembers for not living up to obligations that they never signed off on, nor can we be expected to afford them all the rights and services reserved for members. It follows that when those who are citizens raise arms against their community we have every reason to be especially morally offended. They betray our trust, fellowship, and country. They are what the Constitution properly calls traitors, a term I would not dream of applying to, say, Saudi citizens who came here to terrorize us. Traitors should be treated less kindly than noncitizens.
One should not assume that I agree with much else Cole says or with the way he frames his argument, but merely that I ran out of space.