SECURITY VS CIVIL RIGHTS?

October 2001
		How will the new anti-terrorism legislation affect civil rights? Taking your questions are Douglas Kmiec, dean of the Catholic University School of Law; Anthony Romero, executive director of the American Civil Liberties Union; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.

Forum Introduction Should non-citizens have the same rights as citizens when national security is at stake? How will the anti-terrorist bill affect our right to privacy on the Internet and cell phones? How often are sunset limitations used and how often are bills renewed?: How will the new office of Homeland Security be affected by the anti-terrorist laws? Could the new legislation allow information sharing between INS officials and intelligence agencies? Does the new legislation empower federal authorities to collect information but not use it against us?       Online Specials: The Response Combating Terrorism America After the Attacks Sept. 25, 2001: A discussion about the impact of anti-terrorism legislation on civil liberties. Sept. 24, 2001: A look at Attorney Gen. John Ashcroft's congressional testimony in favor of greater Justice Dept. authority. Browse the NewsHour's coverage of: terrorism

Chuck from Houston, TX asks: Should non-citizens of the U.S. have the same rights as U.S. citizens, especially since national security is at stake? Why should the rights of noncitizens be considered as valuable as rights of citizens when national security is at stake? Douglas Kmiec responds: In my judgment, the Constitution does permit a distinction between citizens and noncitizens, especially with reference to matters of national security, but more generally as well. First of all, as a textual matter, only citizens have privileges or immunities under the Constitution as well as the full protection of the equal protection and due process clauses - including individual liberties like speech and association that are sheltered within those provisions by judicial construction. By comparison, by Supreme Court determination, noncitizens are entitled only to some often ill-defined (but far lesser) level of protection under both the due process and equal protection clauses of the Constitution. Thus, the level of constitutional protection that noncitizens have often varies by context. In the context of a terrorist threat of the magnitude we face, both Congress (in its design of the immigration laws) and the President (in his exercise of inherent Executive authority related to foreign affairs as our commander in chief in a time of war) have the capacity to exclude noncitizens from the country, and with respect to those already present, to limit their access to sensitive public positions, and to scrutinize their behavior in ways that the privileges and rights of citizenship would not permit with regard to American citizens. On this topic, here is just a snippet of the case authority that I brought to the attention of the Senate in my testimony pertaining to the Anti-Terrorism legislation: The witnesses against the Attorney General's well-conceived proposal . . . would have the committee believe, as one witness said last week in opposition before the Intelligence Committee, that "[t]he First and Fifth amendments apply equally to citizens and aliens residing in the United States." However, this cannot be said without qualification. It is, in fact, not true. With regard to exclusion of immigrants, U.S. authority is plenary. Yick Wo v. Hopkins, 118 U.S., at 369; Kwong Hai Chew, 344 U.S., At 596, n. 5. ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.") And the Court has long held that "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." United States ex rel. Knauff v. Shaughnessy, 338 U.S. At 544. Terrorists or those seeking association with them clearly can be excluded from our Nation without offending the First Amendment or any other provision of the Constitution. While additional rights do attach to an immigrant granted admission, these rights are not on par with citizens. In U.S. v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), for example, the Court opined that: "[Our] cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country." The Supreme Court has held in Plyler v. Doe, 457 U.S., At 212 that the provisions of the Fourteenth Amendment " 'are universal in their application, to all persons within the territorial jurisdiction ...' ", but this proposition was used only by the Court to not penalize the children of illegal immigrants in the context of public education. The opinion cannot be read to stand for the proposition that the Bill of Rights apply to citizens and noncitizens in precisely the same way - especially in the foreign affairs context like we presently confront. The Court's recent decisions in Miller and Reno are to the contrary. In short, many legal commentators would, I believe, concur with the proposition that Congress retains plenary power over noncitizens and that the Supreme Court's recent pronouncements on what rights such noncitizens enjoy, while somewhat fractured, confirm that Congress has the power to determine the terms and conditions of a noncitizen's presence in the United States and has vested in the Attorney General the power to enforce such provisions; therefore, it is not for the Court to second-guess the other branches' actions in the typical deportation case except when their conduct is constitutionally outrageous. There is nothing outrageous, in my judgment, about pursuing noncitizens who have participated in, or given material support to, terrorist organizations. Loretta Lynch responds: We do treat foreign nationals differently from citizens in many areas of public life. The body of immigration laws and regulations, as well as the existence of the Immigration and Naturalization Service, illustrates this. We regulate admission into the United States, status while here (e.g., student visas and green cards), as well as the right to partake of many of the benefits of our society (voting is just one example). Under our Constitution, certain rights are afforded only to "citizens." But in the area of civil liberties, which generally refer to those rights guaranteed by the Bill of Rights, the Constitution does not make distinctions based upon citizenship status, but guarantees certain basic rights to all "persons." This reflects our view that the legal system, particularly the criminal justice system, must treat everyone equally. Certain basic rights, e.g., due process, must be equally applied across the board for the integrity of the legal system as well as for the benefit of the individual. (And as a purely practical matter, it would be difficult, if not impossible, to have different standards for basic rights, since government officials would not necessarily know the citizenship status of each individual at the beginning of each interaction.) While civil liberties are inured to each individual, they also serve the important purpose of defining and limiting the government's reach into our private lives. They are a reflection of the kind of country we have chosen (and fought) to have. We can protect ourselves, however, and still hold onto our civil liberties. Even when national security is at stake, we provide for due process of law and judicial review of many law enforcement actions. We must also keep our eye on the larger picture. The attack of September 11, while an abomination to freedom and liberty, did not come about because we have too many fundamental freedoms in our society. It came about because a group of terrorists want to disrupt and ultimately destroy those freedoms. Anthony Romero responds: In cases dating back almost a century, the Supreme Court has found that constitutional guarantees, including the First Amendment and Fifth Amendment due process protections, apply equally to any person living within our borders. While non-citizens do not have the "right" to enter the United States, once in the country they are protected from arbitrary government action and have a right to seek judicial review of government actions taken against them. Although non-citizens do not have those rights reserved for the citizenry - for example, the right to vote - the Supreme Court has found that non-citizens still have fundamental human rights that cannot be violated. In the days after the Sept. 11 terror attacks against New York and Washington, the ACLU has repeatedly said that the President and Congress must ensure that all necessary and reasonable steps are taken to protect the country from terrorism. By the same token, however, it is also important to remember that our Constitution grants all people in America certain inalienable rights, regardless of citizenship. And it is equally crucial to prevent the victimization of non-citizens that has occurred time and time again throughout American history during times of national upheaval and crisis.