The calamitous attacks of September 11 have imposed on Americans
a sense of vulnerability that we've been privileged to avoid for a long time. But
as we respond to the threat of terrorism in our midst, and as the nation takes up
what President Bush has called a fight for our freedoms, we must maintain our
commitments to those freedoms at home. We must be careful not to overreact and
should insist that any response be measured and effective.
Unfortunately, the antiterrorism bill proposed by the Bush
administration utterly fails this test. Its worst provisions are aimed at the
most vulnerable in our society: immigrants who have no voice in the political
process. The Bush bill would make aliens deportable not for terrorist activity
but for peaceful and nonviolent associational activity in support of any group
that ever engaged in a violent act, without any showing that the alien's support
furthered illegal ends. It would authorize the Immigration and Naturalization
Service to detain immigrants indefinitely on the attorney general's say-so, even
when they have a legal right to live here permanently and cannot be deported. And
it would resurrect the doctrine of ideological exclusion by allowing aliens to
be denied entry for their speech.
This is not the first time that Americans have responded to fear by targeting
immigrants and treating them as suspect because of their group identities or
beliefs rather than their individual conduct. In World War I, we imprisoned
antiwar dissidents, mostly immigrants. In World War II, we interned 120,000
persons, not because of individualized determinations that they posed a threat to
national security or the war effort but solely on account of their Japanese
ancestry. And in the McCarthy era, we made it a crime and a deportable offense
even to be a member of the Communist Party. That history should caution us to ask
carefully whether we have responded today in ways that avoid overreaction and are
measured to achieve security without needlessly sacrificing liberty.
Current law gives the INS substantial power to address terrorism. It
allows the agency to deny entry to, detain, or deport any alien who has engaged
in or supported any kind of terrorist activity. But that's apparently not enough
for the Bush administration: It suggests expanding its authority to permit
deportation of immigrants who have never engaged in or supported an act of
violence in their life. They could be expelled from the country solely on the
basis of their associational activity.
Under the Bush proposal, an alien who sent coloring books to a day-care center
run by an organization that at some time was involved in armed struggle would be
deportable as a terrorist, even if she could show that the coloring books were
used only by three-year-olds. Indeed, the law extends to those who seek to
support a group in the interest of countering terrorism. Thus, an immigrant who
offered the IRA his services as a negotiator in the hope of furthering the
peace process in Great Britain and forestalling further violence would be
deportable as a terrorist.
Guilt by association, the Supreme Court has ruled, violates the First and the
Fifth Amendments. In words ironically appropriate in light of today's climate,
the Court has rejected it as "alien to the traditions of a free society and the
First Amendment itself." As a strategic matter, guilt by association is also
counterproductive, because it leads government officials to waste resources
targeting the innocent and alienates whole communities of people who might have
information about true threats that lurk among us.
The Bush bill would also authorize the attorney general to lock up any alien
who he "certifies" might engage in terrorist activity, which is so broadly defined
that it includes virtually any use or threat to use a weapon, as well as
political associations. The legislation mandates detention of individuals who
pose no threat to national security or risk of flight. And the administration is
seeking to insulate the attorney general's certification from any meaningful court
review--in short, to suspend the writ of habeas corpus and legalize unilateral
Finally, the Bush bill would resurrect the practice of denying visas to
foreigners because of their speech. It proposes to authorize the secretary of
state to deny entry to anyone who endorses a terrorist organization--again, so
broadly defined that it would include the IRA, the African National Congress,
and the opposition forces in Afghanistan. In 1990, Congress repealed McCarthy-era
immigration provisions that similarly barred entry based on ideas, a practice
wholly inconsistent with our commitments to the free exchange of ideas. Yet here
we go again.
These provisions are highly unlikely to make us safer. And they sacrifice the
very principles we are fighting for. As Justice Louis Brandeis wrote nearly 75
years ago, the framers of our Constitution knew "that fear breeds repression;
that repression breeds hate; and that hate menaces stable government." Freedom
and security need not be traded off against each other. Maintaining our freedoms
is itself critical to maintaining our security.
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