David Cole has been providing invaluable service to the nation in his tireless advocacy of respect for our fundamental values in the face of terrorist threats. His essay here makes many telling points of both policy and principle about the dangers of government secrecy, the political vulnerability of immigrants, and the unstable boundary between the suppression of civil liberties of aliens and the suppression of the civil liberties of citizens. In some regards, however, this advocacy overstates the implications of constitutional principles. His argument thus earns only qualified assent.
A methodological problem arises at the outset: it is difficult for lawyers and scholars to evaluate the necessity and effects of the measures the government has taken since September 11, precisely because the government has withheld so much information about its activities. The government has attempted to cast aside traditional checks on abuse of power, including the right to counsel, the vigilance of the press, and the scrutiny of the courts. These efforts to consolidate unaccountable power—for a seemingly indefinite future—should be criticized and opposed. At the same time, it must be recognized that excessive demands for secrecy may have valid security concerns at their core, which should somehow be accommodated. Where full public disclosure is not feasible, internal governmental checks take on even greater importance.
We are therefore fortunate that only a few months before September 11 the Supreme Court reaffirmed the constitutional mandate protecting the writ of habeas corpus.1 The central function of that writ is to provide independent judicial supervision of the lawfulness of detention by executive officers. As the Court emphasized, it applies equally to citizens and noncitizens. Judicial review is never a sufficient safeguard for individual rights in times of crisis, but it is a necessary one. Congressional oversight is also needed, and the mobilization of public opinion.
The war against terrorism in general may be a rhetorical war, like the war on drugs, but the war in Afghanistan was an actual war, and the protection of the nation against attacks by al Qaeda is something close to a defensive war. The conflict with al Qaeda escapes the categories of modern international law: it is neither an internal armed conflict within a state nor an international armed conflict between states. That fact makes certain legal rules formally inapplicable, and the novelty of the situation creates a dilemma for both the government and for immigrants. The government is unable to use the criterion of nationality to identify its adversaries, and immigrants are unable to invoke their status as neutrals to fend off suspicion.
Some adjustment will be required, as prior rules and procedures are adapted to a new kind of transnational conflict. The rules are likely to differentiate more than Cole’s discussion does among various categories of noncitizens—such as lawful immigrants, temporary visitors, illegal entrants and visa violators, adversaries captured on the battlefield, and would-be visitors seeking visas for travel to the United States. Our duties toward people in these different categories vary, and so does the hardship involved in denying them access to our territory. Such variations may affect the propriety of particular security strategies, which should not all be lumped together as “ethnic profiling.”2 When the government deals with foreign visitors, it often has extremely limited sources of information. Available knowledge about the visitors’ travels, associations, and views can properly induce an agency to “pay closer attention” if it correlates with the characteristics of the current terrorist threat.
Cole also employs an exaggerated concept of “innocent” association with foreign terrorist organizations. International cooperation to cut off the flow of funds to terrorists has been an important achievement, both for national defense and for human rights. Neither immigrants nor citizens have the right to endanger lives by making donations to violent political movements abroad. Cole’s analogy to domestic political associations, which are subject to greater control by domestic law enforcement, is misplaced. Government regulations should provide fair warning, for example by designating terrorist organizations to which donations are forbidden. But the government must have the power to prohibit the contribution of funds to foreign terrorist organizations, even by people who claim to be supporting those organizations despite, rather than because of, their terrorist methods.
None of these objections detracts from the significance of Cole’s argument, or undercuts the general thrust of his warnings. Honest public debate, from a multiplicity of perspectives, is essential to inform the nation’s choices in defending itself against terrorism.
1. See Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).
2. For more nuanced discussion see Samuel R. Gross and Debra Livingston, “Racial Profiling Under Attack,” Columbia Law Review 102 (2002), 1413.