Foreigners' Rights in the Post-9/11 Era: A Matter of Justice
More than 5,000 citizens of foreign countries have been detained by the government since 9/11 in connection with anti-terrorism measures. Only a handful have been charged with a terror-related crime. Many were held initially without charges, denied access to lawyers, judged in secret and locked up for months without any showing that they had committed crimes or otherwise posed any danger. More than 500 were deported for immigration violations.

The Bush administration's anti-terrorism campaign has set off a fierce legal and philosophical debate over what rights foreigners have compared with Americans. When is it permissible to treat noncitizens differently? Are there some rights — whether to a speedy trial or a formal charge — that transcend nationality, and should be accorded to every human being?

Treating foreigners differently, of course, is nothing new for the United States government. Debates over everything from federal benefits and public school education to identification cards have bubbled up at various times. But since Sept. 11, 2001, the consequences for some foreigners have become much more severe.

Prof. John Yoo of the law school at the University of California at Berkeley points out that while the Bill of Rights applies to "persons" rather than citizens, it's not unconstitutional to treat aliens differently in certain contexts. The Supreme Court has said in many decisions: "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." The Fifth Amendment may guarantee everyone a right to due process, but it does not say what process is due.

So while a criminal defendant, for example, has a right to a lawyer and a public trial before a jury, immigration cases are decided by administrative judges, may be held behind closed doors and can occur without legal counsel.

The gap is even wider for the more than 650 foreign citizens at the United States military base in Guantánamo Bay, Cuba. Suspected of having ties to terrorists, most were picked up during the Afghanistan war, none has had a hearing, and most will never get a day in a regular court. Although the administration has said it will soon start military tribunals, the American Bar Association, among others, has declared the proposed procedures unfair, objecting to restrictions on defense lawyers' access to evidence, government monitoring of attorney-client communications, and limitations on appeals.

In a letter published in The New York Times last month, Paul W. Cobb Jr., deputy general counsel at the Department of Defense, wrote that the Guantánamo prisoners have been designated "enemy combatants in the global war on terrorism," and they can be "lawfully detained until the cessation of hostilities." They are not considered prisoners of war, because this isn't considered a regular war. Therefore, they are not protected by the Third Geneva Convention, which mandates humane treatment and an impartial trial.

Such distinctions between citizens and foreigners are justified, says Viet D. Dinh, a law professor at Georgetown University and a former assistant attorney general at the Justice Department, where he was a principal author of the USA Patriot Act. Quoting the philosopher Edmund Burke, Mr. Dinh argues that order is a precondition to liberty, and that the war on terrorism is a means of defending liberty. "This war is fundamentally about an effort to restore international civil order toward people who would disrupt that order," he told an audience on Tuesday at the university during a debate with his Georgetown colleague David Cole. "When you adopt a way of terror, you've excused yourself from the community of human beings."

Some legal philosophers and critics hotly dispute this reading, however. "The rights of political freedom, due process and equal protection are among the minimal rights that the world has come to demand of any society," Mr. Cole writes in his new book, "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism" (New Press). He argues these are "fundamental rights" that are "owed to persons as a matter of human dignity;" they are, he continues, quoting the Supreme Court, "implicit in the concept of ordered liberty."

Whether everyone is born with certain "unalienable rights" or whether rights are bestowed by a particular government in a particular place and time is, in some ways, at the heart of the current debate. It has also been at the center of American constitutional history.

Some scholars like Mr. Cole reject the idea that certain rights are merely privileges that a government can grant to some and deny to others. Indeed, the international human rights movement and the treaties that have grown out of it over the last 50 years depend on a conception that all human beings share certain rights regardless of nationality or citizenship.

Ronald Dworkin, a professor of philosophy and law at Oxford and New York University, argues that the view that rights are solely the result of a particular government action is too narrow. "It says that these traditional guarantees are just somehow contracts, and there are not principles behind them," he said in an interview.

To Mr. Dworkin, the rights of outsiders cannot be jettisoned based on some speculative benefit for the larger community. "The government is saying that any gain to our own safety, even if it's marginal, is a good justification for doing anything to foreigners," he said. "If that's not a violation of shared humanity, then what could be?"

As he writes in a forthcoming article on the topic for the 40th anniversary issue of The New York Review of Books, "Among the most fundamental of all moral principles is the principle of shared humanity: that every human life has a distinct and equal inherent value."

Just what that means in practice, though, is unclear. Hannah Arendt noted in "The Origins of Totalitarianism" in 1951 — a time when the establishment of universal rights had taken on a new urgency — that "no one seems able to define with any assurance what these general human rights, as distinguished from the rights of citizens, really are."

http://www.nytimes.com/2003/10/04/arts/04RIGH.html?pagewanted=all&position=