Decoupling 'Terrorist' from 'Immigrant': An Enhanced Role for the Federal Courts Post 9/11

Abstract

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting noncitizens is criminal prosecution for terrorism and subversion. Second, we can well expect that Ashcroft will dispatch criminal law enforcement and immigration agents that might be tempted, at the margin, to play fast and loose with suspects' civil liberties, as evidenced by the FBI's deceptive practices in over 75 post-9/11 cases. Third, history is replete with examples of federal government zealotry, and the federal courts would do well not to bow to majority sentiment especially when racial, ethnic, religious, gender, and age stereotypes are reinforced at the expense of the egalitarian ideal. The legacy of Brown v. Board of Education should be that the Supreme Court will never reaffirm Korematsu's principles. And fourth, controlling political overreaching enhances our standing abroad.