Georgetown University Law Center
Stanford Law Review, Vol. 54, p. 953, 2002
In the wake of September 11, many have argued that the new sense of vulnerability that we all feel calls for a recalibration of the balance between liberty and security. In fact, however, much of what our government has done in the war on terrorism has not asked American citizens to make the difficult choice of deciding which of their liberties they are willing to sacrifice for increased security. Instead, the government has taken the politically easier route of selectively sacrificing the rights of aliens, and especially Arab and Muslim aliens, in the name of furthering national security. This is an easy way to avoid the difficult trade-offs because it allows the citizenry to have their rights and their security, too.
This article chronicles the government's response to September 11 to make the case that we have relied upon such a double standard. The article then argues that the double standard we have employed is wrong as a constitutional and normative matter, counterproductive in terms of increasing security, and likely to pave the way for future incursions on citizens' rights. As a normative matter, I contend that while it is not irrational to focus our investigation on certain Arabs and Muslims, given the makeup of Al Qaeda, it is not legitimate to deny to foreign citizens the constitutional rights of due process and political freedoms, as these rights do not turn on citizenship, but on personhood. As a security matter, I argue that the double standards we have relied upon undermine the legitimacy of the war on terrorism, and decrease the likelihood that we will get meaningful cooperation from the targeted communities as we search for potential threats.
Finally, as a historical matter, I show that what we do to immigrants today often creates precedents that can be extended to citizens tomorrow. The example alluded to in the article's title is the Enemy Alien Act of 1798, which authorizes the jailing of any citizen of a country with which we are at war, based solely on their nationality, and irrespective of their loyalty or conduct. In World War II, the underlying rationale for this law was extended to U.S. citizens of Japanese descent, through the prism of race, and ultimately 70,000 of the 110,000 detainees were U.S. citizens. Thus, I maintain that in assessing whether and to what extent liberty should be sacrificed in the name of security, we should avoid the easy way out of targeting vulnerable minorities, and should adopt only those measures that we would tolerate if applied equally to all.
Number of Pages in PDF File: 54Accepted Paper Series
Date posted: August 8, 2002
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