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Human Rights Abuses in the Name of Fighting "Terror": A Review of
David Cole's "Enemy Aliens"
With his recently published book, Enemy Aliens, David Cole provides a
distressing examination of the government's discrimination against aliens
since the terrorist attacks of September 11, 2001. Cole is a law
professor at Georgetown University Law School and legal affairs
correspondent for The Nation.
Cole's thesis in Enemy Aliens also serves as a warning: Americans should
worry about the way their government treats immigrants, for it is often a
precursor to the way it will treat its citizens. Quoting Justice William
O. Douglas, Cole reminds us that while it is easy to be aware of creeping
oppression, and difficult to fight it, [W]e all must be most aware of the
change in the airlest we become unwilling victims of the darkness."
COLE'S BACKGROUND AS AN ATTORNEY: A PRIMER ON PERSECUTION
Cole finds the root of today's witch-hunt in the Cold War. To explain the
parallels, he discusses several cases in which he represented defendants
alleged to be communists. In the 1980s, Cole represented Margaret Randall,
who faced deportation for advocating world communism. He explains how,
then, immigrants who fit the red scare profile were targeted for
discriminatory prosecution and deportation. The government's modus
operandi was: Target, snoop, charge, and deport..
Since 1987, Cole has been involved in the case of the "L.A. 8" -- seven
Palestinians and the Kenyan wife of one of them. The government claimed
that they were associated with the Popular Front for the Liberation of
Palestine (PFLP), an organization that advocated the doctrines of world
Communism. Time and again, the government sought to deport the L.A. 8,
but federal judges found no cause to justify deportation. (Under the
McCarran Act, those involved with an alleged Communist organization were
eligible for deportation. But in 1990, Congress repealed the McCarran
Act.)
Later, FBI Director William Webster admitted that his agency never found
evidence of criminal or terrorist activity. Yet, according to the
Immigration and Naturalization Service district director who authorized
the deportations and whom Cole interviewed, the FBI insisted on
deportation proceedings.
Cole argues that the same tactics used against Randall and the L.A. 8 are
now being repeated. Those who seem "suspicious" -- then, Communists; now,
Muslims and Arabs -- are targeted. Then the government makes every effort
-- and invokes every possible pretext to deport them. Ironically, since
Cole's book was published, two of the L.A. 8 have once again been
arrested. They are charged with supporting terrorism, based on their past
association with the PFLP and the government is again trying to deport
them.
Cole told me that the new charges are based upon portions of the
immigration laws that were amended as part of the USA PATRIOT Act. The
charges are also bolstered by the fact that -- in a 1996 opinion penned by
Justice Antonin Scalia, American-Arab Anti-Discrimination Comm. v. Reno --
the Supreme Court has sanctioned the selective enforcement of immigration
laws in unspecified extreme situations.
GUANTANAMO: A FLASHPOINT IN THE WAR ON NONCITIZENS
As even the cover of Enemy Aliens indicates, the situation at Guantanamo
Bay is a major focus of Cole's book. The cover bears one of the first
photos of the prisoners held there. It is a depressing sight: Clad in
orange jumpsuits, brown-skinned men wearing hats, goggles, and masks are
kneeling on the ground, with their hands tied together in front of them.
Leaning over them is an American military man in camouflage.
President Bush designated the over 650 Guantanamo prisoners enemy
combatants -- as opposed to prisoners of war, who would be entitled to the
protections of the Geneva Conventions. The government has taken the
position that the "enemy combatants" -- captured mainly in Afghanistan and
Pakistan two years ago, where they are alleged to have been fighting for
the Taliban or Al Qaeda -- are not entitled to attorneys, or even to
hearings to determine if they are being wrongfully held.
Some day, these men may be tried before military tribunals, but it is
unclear when that will be, and what protections, if any, the tribunals
will afford them. (Last week, the Supreme Court agreed to hear whether the
prisoners can petition the federal courts in the U.S. in an effort to
challenge the factual and legal basisi for their dentitions. Both lower
federal courts unanimously rejected their suits, saying that because they
were in Cuba, they were not in a U.S. territory, and thus the U.S. are
closed to them.)
Cole points out that those who believed this treatment would never have
been applied to Americans have been proved to be very wrong indeed. To
the contrary, American citizens Yaser Hamdi and Jose Padilla have now been
declared "enemy combatants" as well. (Hamdi is alleged, but has not been
proven, to have fought for the enemy abroad; Padilla is alleged, but has
not been proven, to have conspired on U.S. soil to aid terrorists in
procuring a "dirty bomb.") As a result, both men are being held, to this
day, in military prisons. Neither citizen has been charged with a crime.
Neither citizen has been afforded access to a lawyer. And when these two
U.S. citizens finally go on trial -- or face military tribunals -- the
government may prosecute them based on "secret evidence proof that they
will never have the opportunity to challenge because they wont know what
it is. So much for limiting civil rights infringements to aliens alone.
WITCH HUNTS AND DEPORTATIONS: THE FALLOUT OF SEPTEMBER 11
Besides the treatment of "enemy combatants" -- both citizens and
noncitizens -- Cole's other major concern is post-September 11 immigration
proceedings. Immediately after September 11, the government rounded up of
thousands of Arab and Muslim men. It held them without charges and
without access to attorneys or their families for far longer than the law
allowed.
On October 21, 2001 the USA Patriot Act was enacted. It sanctioned law
enforcement holding immigrants without charges for seven days. But -- as a
report by the Inspector General of the Justice Department has since
revealed -- men were held months at a time. And many faced physical abuse
in the local jails where they were held. Finally, many were deported --
after closed hearings -- for minor infractions of immigration law that
prior to September 11, would have been entirely overlooked.
According to the Inspector Generals report, not one of these men was even
charged with an act of terrorism. Cole argues that this is hardly
surprising: [W]hen the government uses the immigration process to get a
terrorist, he notes, "you can be fairly certain that it does not have the
evidence that the individual has actually engaged in or supported any
terrorist act. In this context, it seems absurd that Attorney General John
Ashcroft and his Department of Justice have touted such deportations as
evidence of fighting and winning the war on terror. Actually, this is more
like a war on immigrants.
An ugly conclusion cannot be avoided: The U.S. government is using the war
on terror as a justification for selectively targeting and prosecuting
foreign nationals from Arab and Muslim countries, virtually none of whom
have ever been remotely involved with terrorism.
THE STRATEGIC ARGUMENT AND THE HUMAN RIGHTS ARGUMENT
Cole criticizes all of these tactics as both strategic and human rights
failures. From a strategic point of view, Cole argues that if the U.S.
indeed has reason to believe that terrorists are lurking in Arab and
Muslim immigrant communities, then it ought to work with the communities
to identify the threats. Instead, however, it has discriminatorily
targeted these ethnic groups for selective prosecution for immigration
violations. The result, Cole says, is a loss of goodwill among these
communities. And that loss, he contends, will have a long-term negative
effect both on the war on terrorism, and on our relationships with Arab
and Muslim communities both here and abroad.
Cole deftly presents the legal issues that abound in the treatment of
immigrants post-September 11. Granted, he concedes, the Supreme Court has
long allowed -- at least since Johnson v. Eisentrager -- the differential
treatment of alien fighters captured on the battlefield abroad. But that
ruling does not extend to aliens who are not fighting against the U.S. And
that may be the case with respect to a significant number of those still
on Guantanamo. Moreover, it was certainly the case with those illegally
detained after September 11. The Bill of Rights generally refers to
"persons," not citizens -- a significant choice since other parts of the
Constitution (such as eligibility for the Presidency) depend on
citizenship. It suggests that citizens and noncitizens, as equal persons,
should be treated the same -- not differently.
In the end, though, Cole's most passionate argument is moral and
constitutional, rather than legal. It is that the way the U.S. government
has treated immigrants is morally and constitutionally wrong. Indeed,
Cole argues that the only morally acceptable option is a simple one: to
treat them as human beings entitled to the same fundamental rights as
citizens. But the U.S. government, especially since September 11, has
fallen terribly short of this ideal.
This moral argument should be justification enough for changing the
government's policies. But Enemy Aliens also emphasizes another reason
for doing so: The historical truth that constitutional and human rights
violations, though they begin with immigrants, will not end with them.
Cole's book is a must-read for anyone interested in the profound legal and
governmental changes the U.S. has seen since September 11 -- and,
especially, for anyone concerned about the harms those changes have
inflicted on civil liberties at home and abroad.