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'Not Too Much for An Alien'

By David Cole

Wednesday, May 7, 2003; Page A31

Sixty-seven years ago, the Supreme Court reviewed a case involving a confession coerced by torture from a black defendant in Mississippi. The deputy sheriff who presided over the interrogation admitted that the defendant had been whipped, "but not too much for a Negro." The Supreme Court rejected that reasoning and held that the due process prohibition on coerced confessions applies equally to all detainees, no matter what their race.

Last week the Supreme Court resurrected a due process double standard, ruling that incarcerating people without any individualized showing of need was not too much for an alien. By a 5 to 4 vote, the court for the first time upheld a law authorizing the preventive detention of individuals on a categorical basis. It did so by insisting that the constitutional guarantee of due process means something different for a noncitizen than for a citizen, thus reneging on its own statement 50 years earlier that the due process clause does not "acknowledge any distinction between citizens and resident aliens."
The court's decision is especially dangerous in view of the Bush administration's approach to the war on terrorism. While many have argued that the increased vulnerability that we all feel in the wake of Sept. 11, 2001, justifies some recalibration of the balance between liberty and security, the government has for the most part not asked the citizenry to make that difficult choice, but instead has offered to sacrifice the liberties of foreign nationals -- especially Arab and Muslim foreign nationals -- for the security of the rest of us. That is an easy political choice, as foreign nationals cannot vote. But precisely for that reason, it is the court's obligation to resist such double standards. Yet last week's decision openly endorses double standards discriminating against the nation's most vulnerable population.

The case concerned a 1996 statute that requires mandatory detention of certain foreign nationals upon their being charged with offenses that could lead to deportation, without regard to whether the person charged is in fact a flight risk or a danger to the community. Thus, this law would mandate the incarceration of a 75-year-old invalid convicted 20 years earlier of issuing a bad check, even if he had long ago completed his sentence and all agreed that he posed no risk to anyone.

Until last week the court had consistently ruled that preventive detention was permitted only upon an individualized showing that the detainee would flee or do harm if released on bond. But contending that "Congress may make rules as to aliens that would be unacceptable if applied to citizens," the court upheld Congress's categorical incarceration of people without any individual inquiry into whether they needed to be locked up.

There is no reason why due process rights should differ for citizens and noncitizens. The due process clause applies to "persons," not citizens, and only two years ago the court reiterated that it applies to all persons in the United States, regardless of citizenship status. To be locked behind bars is the same infringement on liberty for the noncitizen as for the citizen. And the government's interests in detention -- avoiding flight and harm to the community -- apply equally with respect to citizens indicted on criminal charges and noncitizens accused of being deportable.

Most troubling about the court's double standard is that it corresponds to the double standards the Bush administration has adopted in fighting the war on terrorism. The administration has selectively subjected foreign nationals to trial by military tribunal, to mass preventive detention and to registration, deportation and detention based on Arab or Muslim nationality. Its defense of each of these measures is to claim that noncitizens don't deserve the same rights as citizens do.

Americans may take some comfort in this approach precisely because it suggests that their rights are not at stake. But history shows that what the government does to foreign nationals in the name of national security eventually gets extended to U.S. citizens. The guilt-by-association campaign of the McCarthy era was an extension to citizens of tactics first deployed against foreign nationals in the Palmer raids of 1919-20. The internment of 70,000 American citizens of Japanese descent during World War II was an extension to citizens of the historical treatment of "enemy aliens" during wartime.

Double standards may be a politically tempting way to avoid the hard choices presented by the war on terrorism, but what we do to foreign nationals today will come back to haunt us tomorrow. Just as due process means the same thing for a white man and a black man, it should mean the same thing for a citizen and a foreign national.

The writer is a professor at Georgetown University Law Center and the author of the forthcoming book "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."
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