David Cole’s powerful essay largely preaches to the choir as far as my own views are concerned. Not surprisingly, I am easy to persuade that while the Constitution seemingly permits denying resident aliens the franchise—I say “seemingly” because respectable arguments have been advanced that such a denial is itself incompatible with the ideal of equal protection of the laws—that very denial underscores the constitutional unacceptability of government action withholding other basic benefits, privileges, or opportunities from lawful residents of the United States simply because they are not U.S. citizens. Consider any individual’s right of access to a lawyer in whom that individual may confide; the right of access, through such a lawyer, to the courts of this country to test the legality of the individual’s detention (whether on the theory that he is a terrorist whose release would endanger the lives of others or on the theory that he has committed a criminal offense and must be duly punished); and the right of any individual charged with serious crime to enjoy the same basic protections as are extended to others similarly charged, ranging from trial by jury to the opportunity for meaningful appellate review, even when such protections (as in the case of appellate review) might constitutionally have been withheld from everyone: with respect to all of these rights, it has long been settled under our Constitution that they may not be selectively withheld from any group, however defined, without the most compelling justification.
That the right of access to counsel and to review by writ of habeas corpus of the legality of one’s conviction or of one’s detention without trial extends to aliens along with citizens has never been seriously doubted. And I’m surely not one to disagree with David Cole’s argument that no sufficiently compelling justification exists for categorically withholding from resident aliens the rights to trial in a civilian rather than military tribunal, by a jury of one’s peers, and with full appellate review by an independent set of Article III judges. The Bush Administration would, for quite transparent political reasons, guarantee these rights to any U.S. citizen charged with precisely the same offenses that the administration treats as rendering resident aliens subject to the jurisdiction of its military tribunals, conviction by which is not appealable outside the executive branch and imprisonment in connection with which purports not even to be reviewable by habeas corpus. Indeed, I have made precisely the same argument myself in an article jointly written with Professor Neal Katyal of Georgetown Law Center, a colleague of Professor Cole’s.1
Professor Cole is surely right to remind us of the broad principle first articulated by Justice Robert H. Jackson, concurring in an otherwise obscure case called Railway Express Agency v. New York, 336 U.S. 106 (1949), that “there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally,” and that “nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape the political retribution that might be visited upon them if larger numbers”—or, Justice Jackson might have added, more influential and powerful individuals or entities—”were [affected].” More recently, no less conservative a jurist than Justice Antonin Scalia wrote in his concurring opinion in Cruzan v. Director, Missouri Dept. of Health, 457 U.S. 261 (1990), that even for a Justice who regards a frightening range of governmental “horribles” as not “categorically prohibited by [anything in] the Constitution,” “[o]ur salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” So far so good, but it seems to me a mistake to lean too heavily or too exclusively on equal-protection principles to safeguard individuals, whether aliens or others, from deprivations that are more convincingly challenged in a more frontal and less oblique manner.
Consider for instance Professor Cole’s rather strained invocation of equality principles to argue that it is unconstitutional to render noncitizens deportable for purely political associational activity when citizens are protected by the First Amendment from any similar fate. The comparison rings hollow, for citizens are categorically protected by the Citizenship Clause of the Fourteenth Amendment from deportation on any basis; there is simply no parallel between their situation and that of noncitizens when deportation is at issue. The more convincing ground for objecting to deportation of anyone on the basis of political or religious ideology alone or the merely political flavor of his or her associations is the First Amendment itself, which has for decades been understood to prohibit Congress from imposing any penalty or disadvantage on anyone on the basis of that person’s mere expression of views or mere decision to associate with a group, whatever its ideology—even if the group is formally committed to acts of violence, including assassination, to overthrow the government and to install a totalitarian regime. The First Amendment is written and operates not as a protection of particular categories of individuals or other entities, whatever their citizenship, but as a prohibition of a category of government action, whatever or whoever its target might be. It is in that prohibition, not in any principle of equal protection, that aliens and citizens alike find their most secure safeguard against ideological persecution.
I would be hesitant to extrapolate, therefore, from the protection that aliens rightly enjoy under our Constitution from being deported on purely ideological grounds to any sweeping proposition that aliens may not be more rigorously screened or otherwise regulated than citizens in any respect, or that an otherwise constitutional regime of conditional entry into the United States may not be enforced by deportation for failure to meet the conditions imposed. The problem of ethnic or racial profiling upon entry into the United States, for example, like the problem of such profiling generally, presents distinct and difficult issues both under the Fourth Amendment’s ban on “unreasonable searches and seizures” and under principles of equal protection; I doubt that the constitutional golden rule extolled by Justices as different as Jackson and Scalia can get us very far in deciding what criteria for profiling should be deemed constitutionally intolerable under what sets of circumstances. Certainly the report of a rash of murders by an adult African-American male over six feet in height, claiming to be a convert to Islam and accompanied by a male under the age of 18, if followed by an alert for police in the area to be on the lookout for a pair meeting that description, triggers no constitutional requirement that in administering any resulting investigation police must be blind to the race, religious affiliation, gender, and ages of pairs of people coming within their ken.
Another respect in which the constitutional golden rule embodied in the equal protection norm might fail to offer much protection is suggested by Professor Cole’s own recognition of the danger that government measures cracking down on racially or ethnically identified minorities might be but a prelude to similar steps to crack down on the civilian population generally. He offers the examples of the Bush Administration’s decision, in seeming defiance of judicial probes questioning the grounds for its actions, to subject to military detention of indefinite duration and without access to courts or to counsel, two U.S. citizens—one arrested in Afghanistan and the other apprehended upon landing at O’Hare Airport in Chicago—whom the government accuses of being terrorist “enemy combatants.”
The most salient lesson to be drawn from these two instances, it seems to me, is not simply that measures singling out relatively defenseless minorities such as aliens are to be regarded with special judicial suspicion because they may be but the harbingers of equally offensive measures applied more universally, but that special judicial suspicion of measures singling out minorities is insufficiently strong medicine in light of the relative ease with which government may escape the triggering criteria for such heightened judicial scrutiny of actions that target minorities alone. All government need do is toss a smattering of non-minorities into the same nasty cauldron and then put objectors to the usually insurmountable task of proving that it was indeed only a token few non-minorities who were added to the mix. In other words, because it is so difficult to prove that government action disadvantaging mostly aliens and a few citizens is indeed action based on status as an alien, expending much of one’s effort to protect aliens against discrimination may prove an ineffective way to protect either aliens or citizens.
To be sure, when the government proceeds in as klutzy a manner as the Bush Administration has by expressly making alienage a prerequisite to eligibility for some particularly harsh treatment with respect to basic rights like access to civilian justice, such antidiscrimination efforts may be just what the doctor ordered. To attack the limitation of the military tribunal scheme to noncitizens, requiring the government either to take the politically unpalatable step of extending it to citizens similarly situated or to abandon the scheme altogether, seems entirely sound. But as a way of getting at the far more frightening prospect that the government seems to have in store with its trial balloons involving the two U.S. citizens it holds incommunicado and without acceding to any form of judicial review, antidiscrimination challenges seem insufficient.
The great danger that lurks in such trial balloons is that the government might use them so as gradually to increase our cultural and social tolerance for restrictions on freedom that begin by striking us as outrageous—indeed, unthinkable in our legal and political system. And the government might do so as readily by picking off a few (not especially sympathetic) characters who look much like the rest of us except that they seem likely to be highly dangerous members of a terrorist network, as by “rounding up the usual suspects” by going after members of a group expressly identified by race, nationality, or alienage.
We must therefore be on our guard, as we oversee the progress of the “war” against an enemy that sadly promises to be with us indefinitely, against the creeping tyranny of seemingly isolated decisions aimed initially, but perhaps only initially, at a small and hapless handful of citizens no less than against the more conventional assaults that overtly target identifiable noncitizen minorities.
1. Neal K. Kaytal and Laurence H. Tribe, “Waging War, Deciding Guilt: Trying the Military Tribunals,” Yale Law Journal 111 (2002), 1259, 1298–1308.