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Why Citizens Should Be Concerned When Their Government Mistreats Aliens


A Review of David Cole's Enemy Aliens

By ELAINE CASSEL


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Friday, Oct. 31, 2003
David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press 2003)

With Enemy Aliens, David Cole offers us a compassionate and compelling book about the U.S. government's discrimination against aliens since the terrorist attacks of September 11, 2001. Cole is a law professor at Georgetown University Law School and legal affairs correspondent for The Nation.

Cole's thesis in Enemy Aliens also serves as a warning: Americans should worry about the way their government treats immigrants, for it is often a precursor to the way it will treat its citizens. Quoting Justice William O. Douglas, Cole reminds us that while it is easy to be aware of creeping oppression, and difficult to fight it, "[W]e all must be most aware of the change in the air…lest we become unwilling victims of the darkness."

Cole's Background As an Attorney: A Primer on Persecution

Cole finds the root of today's witch-hunt in the Cold War. To explain the parallels, he discusses several cases in which he represented defendants alleged to be communists.

In the 1980's, Cole represented Margaret Randall, who faced deportation for advocating "world communism." He explains how, then, immigrants who fit the "red scare" profile were targeted for discriminatory prosecution and deportation. The government's modus operandi was: Target, snoop, charge, and deport.

Since 1987, Cole has been involved in the case of the "L.A. 8" -- seven Palestinians and the Kenyan wife of one of them. The government claimed that they were associated with the Popular Front for the Liberation of Palestine (PFLP), an organization that advocated "the doctrines of world Communism."

Time and again, the government sought to deport the L.A. 8, but federal judges found no cause to justify deportation. (Under the McCarran Act, those involved with an alleged Communist organization were eligible for deportation. But in 1990, Congress repealed the McCarran Act.)

Later, FBI Director William Webster admitted that his agency never found evidence of criminal or terrorist activity. Yet, according to the Immigration and Naturalization Service district director who authorized the deportations and whom Cole interviewed, the FBI insisted on deportation proceedings.

Cole argues that the same tactics used against Randall and the L.A. 8 are now being repeated. Those who seem "suspicious" -- then, Communists; now, Muslims and Arabs -- are targeted. Then the government makes every effort -- and invokes every possible pretext to deport them.

Ironically, since Cole's book was finalized, two of the L.A. 8 have once again been arrested. They are charged with supporting "terrorism," based on their past association with the PFLP - and the government is again trying to deport them.

Cole told me that the new charges are based upon portions of the immigration laws that were amended as part of the USA PATRIOT Act. The charges are also bolstered by the fact that -- in a 1996 opinion penned by Justice Antonin Scalia, American-Arab Anti-Discrimination Comm. v. Reno -- the Supreme Court has sanctioned the selective enforcement of immigration laws in unspecified "extreme" situations.

Guantanamo: A Flashpoint in the War on Noncitizens

As even the cover of Enemy Aliens indicates, the situation at Guantanamo Bay is a major focus of Cole's book. The cover bears one of the first photos of the prisoners held there. It is a depressing sight: Clad in orange jumpsuits, brown-skinned men wearing hats, goggles, and masks are kneeling on the ground, with their hands tied together in front of them. Leaning over them is an American military man in camouflage.

President Bush designated the over 650 Guantanamo prisoners "enemy combatants" -- as opposed to prisoners of war, who would be entitled to the protections of the Geneva Conventions. The government has taken the position that the "enemy combatants" -- captured mainly in Afghanistan and Pakistan two years ago, where they are alleged to have been fighting for the Taliban or Al Qaeda -- are not entitled to attorneys, or even to hearings to determine if they are being wrongfully held.

Some day, these men may be tried before military tribunals, but it is unclear when that will be, and what protections, if any, the tribunals will afford them.

Cole points out that those who believed this treatment would never have been applied to Americans have been proved to be very wrong indeed. To the contrary, American citizens Yaser Hamdi and Jose Padilla have now been declared "enemy combatants" as well. (Hamdi is alleged, but has not been proven, to have fought for the enemy abroad; Padilla is alleged, but has not been proven, to have conspired on U.S. soil to aid terrorists in procuring a "dirty bomb.")

As a result, both men are being held, to this day, in military prisons. Neither citizen has been charged with a crime. Neither citizen has been afforded access to a lawyer. And when these two U.S. citizens finally go on trial -- or face military tribunals -- the government may prosecute them based on "secret evidence - "proof" that they will never have the opportunity to challenge because they won't know what it is. So much for limiting civil rights infringements to aliens alone.

Witch Hunts and Deportations: The Fallout of September 11

Besides the treatment of "enemy combatants" -- both citizens and noncitizens -- Cole's other major concern is post-September 11 immigration proceedings.

Immediately after September 11, the government rounded up of thousands of Arab and Muslim men. It held them without charges and without access to attorneys or their families for far longer than the law allowed.

On October 21, 2001 the USA Patriot Act was enacted. It sanctioned law enforcement holding immigrants without charges for seven days. But -- as a report by the Inspector General of the Justice Department has since revealed -- men were held months at a time. And many faced physical abuse in the local jails where they were held.

Finally, many were deported -- after closed hearings -- for minor infractions of immigration law that prior to September 11, would have been entirely overlooked.

According to the Inspector General's report, not one of these men was even charged with an act of terrorism. Cole argues that this is hardly surprising: "[W]hen the government uses the immigration process to get a 'terrorist,'" he notes, "you can be "fairly certain that it does not have the evidence that the individual has actually engaged in or supported any terrorist act."

In this context, it seems absurd that Attorney General John Ashcroft and his Department of Justice have touted such deportations as evidence of fighting and winning the "war on terror." Actually, this is more like a war on immigrants.

An ugly conclusion cannot be avoided: The U.S. government is using the "war on terror" as a justification for selectively targeting and prosecuting foreign nationals from Arab and Muslim countries, virtually none of whom have ever been remotely involved with terrorism.

The Strategic Argument, and the Human Rights Argument

Cole criticizes all of these tactics as both strategic and human rights failures.

From a strategic point of view, Cole argues that if the U.S. indeed has reason to believe that terrorists are lurking in Arab and Muslim immigrant communities, then it ought to work with the communities to identify the threats. Instead, however, it has discriminatorily targeted these ethnic groups for selective prosecution for immigration violations.

The result, Cole says, is a loss of goodwill among these communities. And that loss, he contends, will have a long-term negative effect both on the war on terrorism, and on our relationships with Arab and Muslim communities both here and abroad.

Cole deftly presents the legal issues that abound in the treatment of immigrants post-September 11. Granted, he concedes, the Supreme Court has long allowed -- at least since Johnson v. Eisentrager -- the differential treatment of alien fighters captured on the battlefield abroad. But that ruling does not extend to aliens who are not fighting against the U.S. And that may be the case with respect to a significant number of those still on Guantanamo. Moreover, it was certainly the case with those illegally detained after September 11.

The Bill of Rights generally refers to "persons," not citizens -- a significant choice since other parts of the Constitution (such as eligibility for the Presidency) depend on citizenship. It suggests that citizens and noncitizens, as equal persons, should be treated the same -- not differently.

In the end, though, Cole's most passionate argument is moral and constitutional, rather than legal. It is that the way the U.S. government has treated immigrants is morally and constitutionally wrong. Indeed, Cole argues that the only morally acceptable option is a simple one: to treat them as human beings entitled to the same fundamental rights as citizens. But the U.S. government, especially since September 11, has fallen terribly short of this ideal.

This moral argument should be justification enough for changing the government's policies. But Enemy Aliens also emphasizes another reason for doing so: The historical truth that constitutional and human rights violations, though they begin with immigrants, will not end with them.

Cole's valuable book is a must-read for anyone interested in the profound legal and governmental changes the U.S. has seen since September 11 -- and, especially, for anyone concerned about the harms those changes have inflicted on civil liberties.


Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and has a web site on civil liberties. Her book, The Other War: The War At Home, about civil liberties post September 11, 2001, will be published in 2004 by Chicago Review Press.

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