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54
Stan. L. Rev.953,
*
Copyright
(c) 2002 The Board of Trustees of Leland Stanford Junior UniversityStanford
Law Review
May,
2002
54
Stan.
L.
Rev.
953
LENGTH:
27074 words
ARTICLE:
Enemy Aliens
David
Cole*
*
Professor, Georgetown University
Law
Center.
I
benefited from comments
of
many
colleagues
in
connection
with presentationsofthis paperatworkshopsandforumsatAmherst College,
Georgetown
University
Law
Center, Howard
Law
School, University
of
Pittsburgh
Law
School,
Stanford
LawSchool,theSupreme Court Historical Society,
Wayne
State University,
Wellesley
College, and the
University
of
Washington. MatthewKilby
and
Jihee
Suh
provided invaluable
research
assistance.
SUMMARY:
...
While there has been much talk about the need to sacrifice liberty for a greater sense of security,
practice
wehave selectively sacrificed noncitizens' liberties while retaining
basic
protectionsforEitizens.
... But
while
an
allegation
of an
immigration violation,
ifproven,may
justify
deportation
(if
the alien does
not
qualify
for
some form
of
relief permitting
him to
remain, such
as
political asylum),the allegation of a violation does not in itself justify detention. ... Thus, while a decision to denyentry to an alien might not trigger due process, a decision to detain an entering alien would trigger
due
process limitations, because to do so is to deprive the person of physical
liberty,
and "freedomfrom imprisonment
...
lies
at the
heart
of the
liberty that [the
Due
Process]
Clause
protects.
... In
this regard, one of the leading spokespersons for the Arab community,
James
Zogby, director the
Arab-American
Institute,
recently found himself
in
rare agreement with
the
former
counterterrorism
chief
of the FBI, both of whom predicted that the Justice Department's plan to interview 5,000 Arabimmigrant men would likely backfire
because
of the division it would create between lawenforcement and the
Arab
community. ... The
Enemy Alien
Act is a precursor to the internment of
110,000
persons
of
Japanese
ancestry during World
War II. ...
Come
on, let us
deal wisely with
them;
lest they
multiply,
and it
come
to
pass,
that,
when therefalleth out any war, they join
also
unto our enemies, and fight against us, and so get them up out oftheland.
Exodus
1:10
To
those
who pit
Americans against immigrants
and
citizens against non-citizens,
to
those
who
scare
peace-loving
people with phantomsoflost
liberty,
mymessageisthis: Your tactics onlyaidterrorists, for they erode our national unity and diminish our resolve. They give ammunition to
merica's
enemies,
and
pause
to
America's friends.Attorney General John
Ashcroft
Dec.
6,
2001
1
http://www.lexis.com/research/retrieve?_m=ea991691879437b3520e811f7fd7059d&csvc=bl&cfo...
7/16/2003
 
Page
11 of 17
8) ACLU holds convention as post-Sept. 11 interest in group surges
By
Dick PolmanPhiladelphia InquirerWASHINGTON _ Even in the best of times, it's never easy to be a card-carrying member of the American CivilLiberties Union.
The
group
is
often reviled
for
defending
the
constitutional rights
of
pornographers, Klansmen,native-born Nazis, common criminals
_ all
kinds
of
undesirables.
So
you can guess what
it's
like for the ACLU these days, defending immigrants in the post-Sept.11era, andcontending that Attorney General John
Ashcrofthas
invaded
Americans'
privacy rather than making citizens safer.Sure
enough,
critics
contend that the
ACLU
isundercuttingthe waragainstterrorism.
But
as
ACLU members from across
the
nation
met
here Wednesday
for the first
grass-roots convention
in the
group's 83-year history,
its
leaders stressed
the
upside.
As
ACLU president Nadine Strossen remarked, "The half-emptyglass is also half
full."
Translation:
In
what
the
ACLU views
as a
dark hour
for
civil liberties, when Americans
may be
tempted
to
tradesome
of
their rights
for
personal safety,
it
nevertheless
is
experiencing
a
historic surge
in
membership
_
topping400,000,
a
record high.
The
ranks have swelled
by
more than
25
percent since
the
autumn
of 2001,
whenAshcroft made
his
first pitch
for the new
surveillance tools that
are now
codified
in the USA
Patriot Act.Backed
by a $50
million
budget, the
ACLU
is
juggling
33 lawsuits on the
terrorismfront.
It also
starts
production
Monday
on a
national
TV ad
that
will
target
Ashcroft's
current push
for
expanded powers beyond
the
Patriot Act.
He
wants more authority
to
jail suspects without bond before trial,
and he
wants
a
looser
definition
of
"materialsupport"
for
terrorism
_ a
move,
the
ACLU claims, that would allow federal agents
to go
after political protesters."Basically," said Stephen
Schulhofer, an
ACLU member
and a
former board officer
in
Illinois,
"the ACLU
has
never been stronger _ yet it has never been weaker, and on the defensive, than it is now. It has a very tough jobin
the
current environment because
its
issues touch
a raw
emotional nerve. What should
be
embarrassing about
trying
to
defend
the
Bill
of
Rights?
But for a lot of
Americans,
it
probably looks like
it's
'in
league with Osama
bin
Laden.
1
"
Its critics would
not
totally dispute that.
Paul
Kamenar, chief counsel with
the
conservative Washington LegalFoundation, which has jousted in court with the ACLU, said Wednesday: "We're in dangerous times that call forincreased law-enforcement powers.
We
can't
be
such sticklers with
the
Constitution that
we
allow
our
enemies
to
do us in. The ACLU is being dragged kicking and screaming into the 21st century. They're going after thisadministration
for
political reasons."Actually, the ACLU is going after both parties. Anthony Romero, the executive director, triggered a roar ofapproval Wednesday when,
in a
speech,
he
skewered "the timidity,
the
reticence,
the
complicity
of the
Democrats"
who
helped pass
the
Patriot
Act
with scant scrutiny
_
thereby demonstrating that Democrats would"rather stick their heads
in the
sand than stick their necks
out for the
Bill
of
Rights."
The
ACLU is not without allies, however. The group that was used as a
political
football by presidential candidateGeorge H.W. Bush in 1988 (he said the ACLU's "card-carrying members" were "out in left field"), is now attractingsome high-profile conservatives, such
as
Phyllis
Schlafly,
former Rep.
Bob
Barr,
and key
Capitol Hill Republicans,
who
fear that expanded federal surveillance is intruding on citizen privacy.That still won't help
the
ACLU
win a
popularity contest,
not
when
it
continues
to
assail
the FBI for
targeting
Middle
Eastern immigrants, arresting hundreds
in
secret, hiding their identities,
and
detaining them
for
months withoutcharges.
In
polls, most Americans
don't
seem concerned about these moves.
But
for the ACLU _ founded in 1920 when a Democratic administration swept up nearly 6,000 immigrants duringthe
Red
Scare,
and the
sole group
to
defend
the
interned Japanese Americans
during
World
War II _ the
targetingofimmigrants since Sept.11 ismerelytheleading indicatorof a newnational-security regime. Thankstothe Patriot Act, for example,
it's
a lot easier for the feds to scrutinize a citizen's Internet habits and library books.ACLUpresident Strossen, in an interview on the eve of the gathering, acknowledged the ACLU's image problem:"When the government invokes security and safety, that appeals to the gut. There's an instinctive wish, anunderstandable human desire, to trust the government, to believe that if it's doing something, then it must be for a
6/12/2003
 
Page
18
of 20
"I'm
afraid it's going to leave a big hole," Mr. Rogers said.Representative Frank
R.
Wolf,
the
Virginia Republican
who led the
hearing, said
he
shared that concern.
Mr.
Wolfsaid
he
believed that there were important areas
like
public corruption that
the
F.B.I,
was not
aggressivelyinvestigating. Congress
may
need
to
authorize money
for
more agents
to
fill
the
gap,
he
said.
Mr.
Mueller acknowledged that
"we are
stretched" because
of the
bureau's expanded
counterterrorism
duties."We have to pick and choose," he said. But he said the bureau remained committed to investigating major publiccorruption
and
white-collar crime.Another area of concern cited by several lawmakers centered on the new Terrorism Threat Integration Center,which
the
Bush administration created earlier this year.
Mr.
Wolf said that while
he
supported
the
idea
of an
independent center
to
filter
terrorist intelligence across
the
government, he was bothered because the center was run by the Central
Intelligence
Agency."You are not an equal partner there," he told Mr. Mueller, but "more an arm of the
C.I.A."
Severallawmakers said they feared
that the
C.I.A., because
of a
history
of
turf wars, would
be
unwilling
to
sharecrucial
intelligence
with other agencies.
But
Mr. Mueller said he believed that the setup was working well. He said that the new center's mission waslimited
to
analyzing intelligence, rather than operational activities,
and
that
it
represented
an
important
effort
"to
drop down
the
walls" between agencies.
11)False Terrorism TipstoF.B.I. UproottheLivesofSuspects
By
MICHAEL MOSS
New
York Times
One
evening in late
April,
the F.B.I, chief in Indiana, Thomas V. Fuentes, went to a crowded basement in anEvansville mosque to ask for help in the fight against terrorism. Some 100 Muslims
listened
politely.Then
the
wife
of a
local restaurateur spoke
up to
tell
him
what
had
happened
the
last time agents came calling,shortlyafter the Sept.
11
terrorist attacks. On a tip, her husband, Tarek Albasti, and eight other men wererounded
up,
shackled, paraded
in
front
of a
newspaper photographer
and
jailed
for a
week.
The tip
turned
out to
be
false.
But
four of the men were then listed in a national crime registry as having
been
accused of terrorism, even though
they
were never charged,
as the F.B.I,
later
conceded.
The
branding prevented them from flying, rentingapartments
and
landing jobs."People were crying as she describes this," Mr. Fuentes recalled. "And at the end, she says,
'My
husband wasreleased,
and in 19
months
nobody
has
ever
said,
I'm
sorry
about
what
happened.
1
"
Mr.
Fuentes did more than apologize. Last week, at his
behest,
a federal judge ordered that the men's names beerased from all federal crime records.
The
unusual public move to clear the Evansville men of suspicion comes after several terrorism cases collapsedbecause they were based on
tips
that proved wrong.Federal agents, facing intense pressure
to
avoid another terrorist attack, have acted
on
information from tipsters
with
questionable backgrounds
and
motives, touching
off
needless scares
and
upending
the
lives
of
innocentsuspects.
After
a wave of criticism, Bush administration officials have been revising their policies for handling terroristsuspects.On Tuesday, President Bush issued guidelines restricting racial profiling in investigations to "narrow"
circumstances
linked
to
stoppingpotential
attacks.
6/19/2003
of 00

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