Prisoners, American Rights
The New York Times
April 20, 2004
WASHINGTON - Today
the Supreme Court will hear oral arguments on whether the United
States government can detain foreign nationals held at Guantánamo
Bay, Cuba, as "enemy combatants" without charge and
without hearings. Next week the court will hear arguments in similar
cases involving American citizens. Many consider the detention
of citizens to be more dubious legally. But from a constitutional
standpoint, citizenship should not matter.
All three branches
of government have treated citizenship as a central issue. The
Bush administration says that it can hold the foreign detainees,
most of whom were captured on the battlefield in Afghanistan,
without any legal limitations because they are noncitizens held
outside American borders. As such, it argues, they have no constitutional
rights and no standing in American courts to challenge their detentions.
Fifty years ago,
the Supreme Court seemed to adopt a similar view when it upheld
the indefinite detentions of a German woman and a Hungarian man
at Ellis Island on the basis of secret evidence that they could
neither see nor confront. Because they were foreigners who had
not been admitted to the United States, the court said, whatever
process Congress had provided them was due process. For its part,
Congress in 1971 barred executive detention without explicit statutory
authorization - but applied the prohibition only to citizens.
that noncitizens have less right to be free than citizens are
ill advised. Some provisions of the Constitution do explicitly
limit their protections to United States citizens - the right
to vote and the right to run for Congress or president, for example.
The Bill of Rights, however, does not distinguish between citizens
and noncitizens. It extends its protections in universal language,
to "persons," "people" or "the accused."
The framers considered these rights to be God-given natural rights,
and God didn't give them only to persons holding American passports.
revolution of the last 50 years has similarly identified fundamental
rights like the right not to be arbitrarily detained as extending
to all regardless of nationality. Human-rights treaties ground
these guarantees in "human dignity," and Americans have
no monopoly on that.
When one considers
the specific right at issue in the enemy combatant cases - the
right not to be locked up without a fair process - there is also
no good reason to differentiate between citizens and foreigners.
From the prisoner's standpoint, every human being has the same
interest in not being locked up erroneously or arbitrarily. And
from the government's perspective, the security interest in detaining
terrorists is the same whether they are citizens or not.
Every person deprived
of his liberty under the authority of the United States government
should have a right to due process. What process is due may differ
depending on the circumstances of detention - whether on the battlefield
or far from it. But the nationality of the detainee ought not
affect the calculus.
Finally, there is
also good practical reason not to distinguish between the basic
rights of citizens and foreign nationals. While the federal government
has often introduced security initiatives by singling out foreigners,
it has just as often sought to extend those tactics to citizens
later. The suppression of subversive speech, for example, and
race-based detention began as anti-alien measures. But they did
not end there.
It used to take years
to extend these tactics to American citizens. But things are speeding
up. Today the Bush administration will defend its treatment of
the Guantánamo detainees on the grounds that they are foreigners
who do not deserve American legal protections. Next week, it will
argue that it has just as much latitude to detain American citizens.
The slippery slope has never been more slick.
David Cole, a professor
of law at Georgetown, is the author of "Enemy Aliens: Double
Standards and Constitutional Freedoms in the War on Terrorism."