BY DAVID COLE

Introduction
On January 24, 2002, the United States military transported John Walker Lindh, a young American raised in Marin County, California, and captured with the Taliban on the battlefields of Afghanistan, to Alexandria, Virginia, where he was to be tried in a civilian criminal court for conspiring to kill Americans. White House spokesman Ari Fleischer announced that “the great strength of America is he will now have his day in court.” At the same time, the military was holding 158 foreignborn Taliban and Al Qaeda prisoners at a military base in Guantanamo Bay, Cuba, in 8-foot-by-8-foot chain-link cages. A widely circulated press photo depicted the prisoners bound and shackled, with bags covering their heads and eyes, kneeling on the Enemy Aliens ground before U.S. soldiers. President George W. Bush announced that he had categorically determined that the Guantanamo detainees were not entitled to the protections accorded prisoners of war under the Geneva Conventions, and Secretary of Defense Donald Rumsfeld dismissed concerns about their treatment with the assertion that it was better than the treatment the Taliban and Al Qaeda accorded their prisoners. Two months earlier, the President had issued a military order providing that Al Qaeda members and other noncitizens could be tried by military tribunals, in which the military would act as prosecutor, judge, jury, and executioner, without any appeal to a civilian court.

The difference between the treatment afforded John Walker Lindh and his fellow Taliban and Al Qaeda prisoners held on Guantanamo rested on the fact that Lindh was, as the press nicknamed him, “the American Taliban.” When the Attorney General announced the charges against Lindh, a reporter asked why Lindh was being tried in an ordinary criminal court rather than before a military tribunal. The Attorney General explained that because Lindh was a United States citizen, he was not subject to the military tribunals created by President Bush’s order. As a purely legal matter, the president could have made U.S. citizens subject to military commissions; citizens have been tried in military tribunals before, and the Supreme Court expressly upheld such treatment as recently as World War II. But the president chose to limit his order to noncitizens.

That choice is emblematic of how we have responded to the terrorist attacks of September 11, 2001. While there has been much talk about the need to sacrifice liberty for a greater sense of security, in practice we have selectively sacrificed noncitizens' liberties while retaining basic protectionsfor citizens. It is often said that civil liberties are the first casualty of war. It would be more accurate to say that noncitizens' liberties are the first to go. The current war on terrorism is no exception.

In the wake of September 11, we plainly need to rethink the balance between liberty and security. The attacks, which killed more than 3,000 people and did immeasurable damage to the human spirit, succeeded beyond our worst nightmares and their perpetrators' wildest dreams in wreaking destruction and spreading fear throughout the nation. We all feel a profound and deeply unfamiliar sense of vulnerability in their wake and have a correspondingly urgent need for security and reassurance. The anthrax scare that followed underscored the gravity of the threats we face, vividly demonstrating that scientific and technological advances have made instruments of mass destruction far too widely accessible. The question is whether the demands of waging war - here, a war without an articulable endpoint - require that civil liberties not stand in the way of victory.

There is undoubtedly a balance to be struck between liberty and security, but there are also several reasons to be cautious about too readily sacrificing liberty in the name of security. First, as a historical matter, we have often overreacted in times of crisis. In World War I, we imprisoned people for years at a time merely for speaking out against the war effort. In World War II, we interned more than 110,000 persons solely because of their Japanese ancestry. And during the Cold War, thousands of innocent persons lost their jobs, were subjected to congressional investigations, or were incarcerated for their mere association with the Communist Party. In hindsight, these responses are generally viewed as shameful excesses; but in their day, they were considered reasonable and necessary.

Second, there is reason to think that as a general matter in times of crisis, we will overestimate our security needs and discount the value of liberty. Liberty is almost by definition abstract; it is measured by the absence of control or restraint. Fear, by contrast, is immediate and palpable; it takes physical form as stress, anxiety, depression, a pit in the stomach, a bad taste in the mouth. It is easy to take liberty for granted, and to presume that government powers to intrude on liberty are not likely to be directed at one's own liberty. Fear affects us all, especially after an attack like that of September 11.

Third, liberty and security are not necessarily mutually exclusive values in a

zero-sum game. Liberty often plays a critical role in maintaining security. One of the justifications for guaranteeing political freedoms is that a free people are less likely to be driven to extreme violence. A political process that treats people with equal dignity and allows dissidents to voice their views and organize to change the rules through political means is likely to be more stable in the long run. Recent experience in England and Israel has shown that cracking down on civil liberties does not necessarily reduce violence, and may simply inspire more violence. As Justice Brandeis wrote, the Framers knew "that fear breeds repression; that repression breeds hate; [and] that hate menaces stable government."

Understanding both the importance of liberty and the temptation to restrict it that government authorities and democratic majorities would face in times of crisis, the Framers sought to protect our basic liberties from the momentary passions of the majority by inscribing them in the Constitution. But with few exceptions, constitutional rights are not absolute; a balance must be struck. As Justice Goldberg famously put it, "[the Constitution] is not a suicide pact."

Thus, while the tension between liberty and security should not be overstated, it cannot be denied. We love liberty and security, but recognize that sometimes we must limit one to enjoy the other. When a democratic society strikes that balance in ways that impose the costs and benefits uniformly on all, one might be relatively confident that the political process will ultimately achieve a proper balance. But all too often we seek to avoid the difficult trade-offs by striking an illegitimate balance, sacrificing the liberties of a minority group in order to further the majority's security interests. In the wake of September 11, citizens and their elected representatives have repeatedly chosen to sacrifice the liberties of noncitizens in furtherance of the citizenry's purported security. Because noncitizens have no vote, and thus no direct voice in the democratic process, they are a particularly vulnerable minority. And in the heat of the nationalistic and nativist fervor engendered by war, noncitizens' interests are even less likely to weigh in the balance.

In this essay, I will show how this double standard has operated, both in the wake of September 11 and at critical moments in our history. Since September 11, immigrants have been the targets of a massive preventive detention campaign conducted under unprecedented secrecy. Congress has enacted new laws that subject noncitizens to guilt by association, ideological exclusion, and unilateral executive detention. And federal and local officials have engaged in ethnic profiling, treating immigrants as suspect based on little more than their Arab ethnicity or national origin.

Some argue that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by 19 Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our nation and those against whom we are fighting. Surely in that setting it makes sense to treat noncitizens differently from citizens.

I will suggest that such reasoning should be resisted on three grounds: It is normatively and constitutionally wrong; it undermines our security interests; and it will pave the way for future inroads on citizens' liberties. First, properly understood, the Constitution imposes substantial limits on sacrificing immigrants' liberties for citizens' purported security. The basic rights at stake - political freedom, due process, and equal protection of the laws - are not limited to citizens, but apply to all "persons" subject to our laws. These rights are best understood not as special privileges stemming from a specific social contract, but from what it means to be a person with free and equal dignity. They are human rights, not privileges of citizenship, and ought to apply whenever we seek to impose legal obligations on persons. The Constitution reserves relatively few rights to citizens, the principal one being the right to vote. And precisely because noncitizens do not enjoy the franchise, and therefore cannot rely on the political process for their protection, it is all the more critical that they be accorded basic human rights enforceable in court.

The fact that we are waging a "war on terrorism" does not alter these basic constitutional principles. This war is more akin to the metaphorical (and indefinite) "war on drugs" or "war on crime" than to a conventional war. As yet, it finds no nation on the other side. We are fighting an international criminal organization, Al Qaeda, and those who aid it, including, thus far, the Taliban. But we have declared war on no nation. Moreover, as the Japanese internment of World War II illustrated, it is perilous to predicate suspicion on ethnic identity even with respect to persons associated with a specific country on which we have declared war. It is another matter entirely to apply such treatment to citizens from a wide range of Arab countries, most of which are fighting on our side in the war on terrorism.

Second, as a security matter, employing a double standard with respect to the basic rights accorded citizens and noncitizens is likely to be counterproductive at home and abroad, because it undermines our legitimacy in both spheres. At home, law enforcement is more effective when it works with rather than against communities. If authorities have reason to believe that there might be potential terrorists lurking in the Arab immigrant community, they would do better to work with the millions of law-abiding members of that community to obtain their assistance in identifying potential threats, than to alienate the community by treating many of its members as suspect because of their ethnicity or national origin and pursuing others under conditions of secrecy that invite fear and paranoia.

Legitimacy is essential at the international level as well. As September 11 illustrated, terrorism is a transnational phenomenon, and it demands a transnational response. We must maintain a broad coalition if we are to succeed in our efforts, not only because we need the cooperation of many different nations' intelligence and law enforcement apparatuses, but also because if we are seen as fighting for our own parochial interests and not for the interests of justice and peace more broadly, we are likely to inspire more people to take up the mantle of terrorism against us. As the critical responses of our allies to the military tribunals and the Guantanamo detentions illustrate, our credibility on matters of international law and human rights is already at a low ebb. This is in large part our own fault; as the world's most powerful nation, we have too often acted as if we are free to ignore international norms whenever it serves our interests. But doing so will surely undermine the multilateral coalition we desperately need to fight the war against terrorism effectively. Secretary of State Colin Powell's reported objections to the United States' stance on the Guantanamo prisoners reflects precisely that concern.

Finally, what we are willing to allow our government to do to immigrants creates precedents for how it treats citizens. In 1798, for example, Congress enacted the Enemy Alien Act, which remains on the books to this day and authorizes the President during wartime to detain, deport, or otherwise restrict the liberties of any citizen over 14 years of age of a country with which we are at war, without any individualized showing of disloyalty, criminal conduct, or even suspicion. In World War II, the government extended that logic to intern 110,000 persons of Japanese ancestry, about two-thirds of whom were U.S. citizens. Similarly, while we think of the McCarthy era as beginning in the 1940s, it was in fact preceded by several decades of targeting immigrants for their purportedly subversive political associations using immigration law. Joe McCarthy simply applied to citizens techniques developed in the 1910s under the leadership of a young J. Edgar Hoover, head of the Justice Department's "Alien Radical" division. Measures initially targeted at noncitizens may well come back to haunt us all.

In short, when we balance liberty and security, we should do so in ways that respect the equal dignity and basic human rights of all persons and not succumb to the temptation of purchasing security at the expense of noncitizens' basic rights. In the wake of September 11, we have failed to follow that mandate. But our long-term success in the campaign against terrorism prompted by the September 11 attacks will turn on our treating immigrants as we would want to be treated ourselves. In the end, the true test of justice in a democratic society is not how it treats those with a political voice, but how it treats those who have no voice in the democratic process.

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