David Cole Replies

8 There is so much to think about in these comments that I’m tempted to begin where Amitai Etzioni left off, but with a different take: I have space to identify only a few of the principal points of agreement or disagreement, but encourage the reader to continue the conversation with colleagues, friends, and family. In the end what is most essential is that the interests and concerns of those with no formal voice in our political process be heard and considered. What unites all of us is that shared concern, and my hope is that this exchange will prompt further exchanges where space limits are not so pressing.

Some respondents note correctly that the government, even in the initial phases of the war on terrorism, did not target only noncitizens. Citizens’ rights have also been infringed, as Wendy Kaminer ably points out. And even when the government aims at noncitizens it often hits citizens as well, particularly when it encourages or engages in ethnic profiling, since one cannot tell whether a person who “looks Arab” is a citizen or a foreign national. And as Bonnie Honig perceptively explains, the line between citizen and noncitizen is as much metaphorical as actual because we so often portray our enemies, whether citizens or not, as “alien.” My point is only that the most extreme legal measures have been targeted at foreign nationals—accompanied by the message that “we” need not worry because “they” are the targets—and that we should be skeptical of that particular trade-off.

Hiroshi Motomura, Mari Matsuda, and Honig each suggest that the salient distinction may not be noncitizen-citizen, but Arab–non-Arab; in other words, what drives the government’s response and what should concern us as a matter of principle is less the focus on noncitizens than the focus on Arabs. As my discussion of the Japanese internment indicates, I acknowledge that racial prejudice can play a significant role; as I argue and as Matsuda’s stories poignantly corroborate, the government’s transgression of the line between citizen and noncitizen in World War II was conducted through “the prism of race.” But as our nation’s treatment of Japanese immigrants illustrated long before then, racial lines and citizenship lines are often mutually reinforcing. Both kinds of distinctions are tempting to the majority and troubling from the standpoint of principle because they offer opportunities to exploit double standards as a way of avoiding hard questions.

For that reason I wholeheartedly agree with Alan Dershowitz and Larry Tribe that we should prefer measures that apply generally, across the board, to measures selectively targeted at minorities, because if the costs are spread widely the political process is more likely to strike an appropriate balance between liberty and security. Tribe questions, however, whether it makes sense to compare noncitizens and citizens, because citizens cannot be deported. But the fact that citizens and noncitizens are different in some ways no more refutes claims for equal treatment than the fact that men and women are different in some ways refutes claims about sex discrimination. I agree with Tribe that penalizing noncitizens’ associations violates the First Amendment right of association, but to the extent that we selectively penalize noncitizens for their associations we have also violated fundamental norms of equality. And precisely because we don’t have to pay the cost we are far more likely to take the selective road in the first instance.

Tribe is correct that proving the existence of a double standard is often difficult; my book on race and the criminal justice system, No Equal Justice, posits that requirement of proof as perhaps the central obstacle to obtaining anything like equal treatment in criminal justice. But the striking thing about the noncitizen-citizen distinctions is how explicit they are. One need not look for hidden motives to see the double standards imposed on noncitizens in the Patriot Act, the military tribunal order, or the post–9/11 detentions; they are right there on the surface. The issue is not a problem of proof, as Tribe suggests, but whether as a matter of law the double standard is justified.

Even Amitai Etzioni, who couldn’t find the space to say how much he disagrees with me, concedes this central normative point in his opening line. The rest of Etzioni’s response unfortunately misses the mark, largely because he falls prey to the very error that he accuses me of—substituting rhetorical hyperbole for careful argument. He calls my assertion that noncitizens are a minority without a voice an “unabashed rhetorical trick,” apparently because in his view some of them are here illegally and ought not even be considered part of the polity from which one demarcates majorities and minorities. But it is a hard fact, not a rhetorical flourish, that all noncitizens, even those here legally, cannot vote. And it is also an undeniable fact that all persons living among us, including noncitizens here unlawfully, are subject to the responsibilities and obligations of the community, from paying taxes to obeying the criminal law. Accordingly, it is perfectly appropriate to consider them as part of the polity and as a minority within that polity. On this matter the Supreme Court itself has long agreed, stating in 1971 that “aliens as a class are a prime example of a ‘discrete and insular’ minority for whom . . . heightened judicial solicitude is appropriate.”

Gerald Neuman disagrees from another vantage point, maintaining that even citizens should not enjoy the right to provide material support to the lawful activities of terrorist organizations. It is true, as I concede in the essay, that money is fungible. But Neuman fails to answer the charge that if that makes all the difference, then all the anticommunist laws invalidated for imposing penalties on the basis of association could simply have been rewritten to hinge liability on the payment of dues or the volunteering of services. A right of association is meaningless without the right to support one’s association.

Finally, I appreciate Oren Gross’s perspective, which shows that the line drawn between “us” and “them” is just one of a number of illusory and ephemeral distinctions that democracies reach for in times of emergency; Juliette Kayyem’s corroboration that the government’s anti-alien measures are not only unprincipled but ineffective; and Philip Thomas’s warning that increased law enforcement may in the end do little to end political violence as long as the underlying conditions that prompted the violence are not addressed. We must of course be willing to make trade-offs as we struggle to be free and secure. But in striking that balance, we should avoid the temptation to take the easy way out by discriminating against the least powerful among us. <

David Cole, professor at Georgetown University Law Center, is author of No Equal Justice and Terrorism and the Constitution.

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Originally published in the December 2002/January 2003 issue of Boston Review