David Cole has authored a cogent critique of the Bush Administration’s antiterrorism measures. What troubles Professor Cole troubles me as well, but I start with a different view of what is at stake and from there take a different analytical path. I suggest that Cole’s analysis doesn’t dig deeply enough to uncover what’s most disturbing about the present antiterrorism campaign.
Cole writes that the government has sacrificed the civil liberties of noncitizens while retaining basic protections for citizens. He criticizes this distinction with arguments based on principle, pragmatism, and self-interest. I find these arguments only mildly persuasive, and I fear that they reinforce an approach that will fail the very individuals and communities that Cole wants to protect. More fundamentally, I doubt that he begins correctly when he writes that the government has retained basic protections for citizens. These two problems are linked, but let me take them in turn.
1. To argue that the line between citizens and noncitizens shouldn’t matter, Cole first observes that basic rights under the U.S. Constitution aren’t limited to citizens. As he notes, the U.S. Supreme Court confirmed in 2001 that the Due Process Clause applies to all persons in the United States, including noncitizens, whether their presence is lawful or unlawful, temporary or permanent. Yet, exactly how much due process protects individuals depends heavily on their stake in this country, and courts routinely hold that many noncitizens have less stake than citizens.
Next Cole argues that a double standard for citizens and noncitizens reduces the legitimacy and the practical effectiveness of any antiterrorism campaign. His point about legitimacy assumes that the line between citizens and noncitizens is widely perceived to be illegitimate, but I doubt that he is right. Cole’s examples are deeply troubling because they involve profiling by race, ethnicity, or nationality, not because they distinguish citizen and noncitizen. His point about effectiveness is purely speculative; we don’t know if focusing on noncitizens will aid or hinder antiterrorism measures.
Finally, Cole argues that what we do to noncitizens today may pave the way for what we do to citizens tomorrow. He cites examples, including the World War II internment of Japanese-American noncitizens and citizens (sometimes called “non-aliens”), but these examples don’t make his case. A few infamous instances of treatment of noncitizens being extended to citizens don’t prove a pattern; indeed, their infamy may suggest that the opposite is more likely.
2. My real concerns about Professor Cole’s three arguments run deeper, however. He offers his three arguments why a citizen-noncitizen line shouldn’t matter and why it’s wrong to sacrifice noncitizens’ civil liberties while retaining basic protections for citizens. But has the government retained basic protections for citizens? If we look beyond a narrow, legalistic definition of “protections,” current policies treat many citizens as if they were noncitizens. Criticism of the administration makes more sense if conceived quite differently, as follows.
Citizenship does matter and the U.S. government and U.S. citizens may properly take citizenship into account in formulating law and policy. Many of the government’s decisions about how to respond to the September 11 attacks have been exceedingly difficult. It is only reasonable for the government to consider what mistakes are tolerable. In criminal law, it’s often said: “Better to let ten guilty persons go free than convict a single innocent one.” For some noncitizens, the government might reasonably handle uncertainty in a different way, for example: “Better to mistakenly bar ten foreign students than admit one terrorist.”
The problem with this example is that many noncitizens caught up in today’s dragnets aren’t just five randomly chosen students coming to America for the first time. Rather, they are the mothers and fathers and husbands and wives of U.S. citizens. They are vital members of ethnic communities composed of citizens and noncitizens. And these noncitizens were targeted because of their race, ethnicity, or nationality. The administration acts as if it is possible to affect noncitizens without also affecting these U.S. citizens and communities, when in fact these citizens and communities have been devastated. These effects have been all the more severe with new measures that give great enforcement discretion to government officials, combined with the reluctance of courts to intervene.
Critics of current policies shouldn’t reject the line between citizens and noncitizens, but rather should argue that the line needs to be drawn much more carefully. One of the natural consequences of terrorism has been a greater sense of our nation. To use an image from the old American West, we seem to be circling the wagons for self-protection. ANew York Times survey two months after the terrorist attacks revealed broad approval of two separate systems of justice and national security, one for “them” and one for “us.”1 This thinking has put terrorism into a special category, different from other, “ordinary” crimes, largely because we have recast terrorism as a foreign threat, Timothy McVeigh notwithstanding.
The circled wagons image suggests that terrorism is an immigration problem, and that the best responses involve tightening the circle and defending against intruders. But how big is the circle? Who is on the inside, and who are the intruders?
The government has tightened the circle in ways that leave many U.S. citizens and communities on the outside if they are the wrong race, ethnicity, or nationality. When enforcement measures are based on these factors, it is only natural for U.S. citizens and noncitizens in Arab-American and South Asian communities in the United States to feel real fear in these terms. To identify U.S. citizens by race, ethnicity, or nationality has taken away a vital part of what they thought it meant to be a citizen in the first place. Profiling by race begets fear by race—fear on the part of citizens and noncitizens alike. My fundamental concern with Professor Cole’s approach is that his focus on legal protections keeps him from challenging the government’s belief that all noncitizens and many U.S. citizens as well aren’t part of “us.”
1. “Public Is Wary but Supportive on Rights Curbs,” New York Times, 12 December 2001.