The Immigrant Trap:

In his address to the nation Thursday night, President Bush made several impassioned pleas for Americans not to blame Arabs or Muslims for the terrorist attacks. "I ask you to uphold the values of America and remember why so many have come here," he said. "No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith." His appeals were more than called for at a time when Arab immigrants and their descendants have been facing harassment, threats, and even death at the hands of wrathful Americans.
Bush's rhetoric defending immigrants is not new. In a July visit to Ellis Island -- the historical gateway for immigrants -- Bush argued, "New arrivals should be greeted not with suspicion and resentment, but with openness and courtesy."

But some Bush Administration decisions this week contradict his munificent language. The New York Times reported this week that U.S. Attorney General John Ashcroft's Justice Department drafted legislation that would allow the government to detain and deport legal immigrants suspected of terrorism without having to undergo the inconvenience of presenting any evidence first or bothering with subsequent appeals. In addition, the Bush administration sent Congress legislation that would expand the government's ability to conduct surveillance of people suspected of being terrorists.

Finally, the Bush Administration announced that, in response to the fatal bombings at the World Trade Center, that it would allow the Justice Department to detain legal immigrants indefinitely during a national emergency. Ordinarily, the Justice Department would need to either charge or release a suspect within 24 hours of arrest. The White House, however, dispensed with this rule and allowed for detention for "an additional reasonable period of time" -- in other words, as long as authorities see fit.

Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, was quoted as saying if the government was allowed to, "take some Arab-looking person and hold him for as long as they want while they investigate," it would be a rights violation analogous to the internment of the Japanese-Americans during World War II.

Some Republicans have rightly questioned the wisdom of the surveillance proposal. Arch-conservative Representative Bob Barr of Georgia, expressed "strong reservations" about Bush's proposal. In a letter to Ashcroft, he wrote, "Before we begin dismantling constitutionally protected safeguards and diminishing fundamental rights to privacy, we should first examine why last week's attacks occurred." Barr's criticism suggests that the remedy Ashcroft and Bush are proposing is badly tailored to the problem it sets out to solve.

First, if these proposals are enacted, discrimination based upon national origin is almost certain. Despite the superficial neutrality of these policies, the timing of these proposals at the heels of the tragic World Trade Center attacks will primarily only affect immigrants of Arab descent. The racial profiling that would occur as a result of this policy is, as Chris Mooney argued in these pages, unacceptable.

Second, the provisions that would allow Ashcroft to waive the time limit may be unconstitutional. In Zadvydas v. Davis, the Supreme Court this summer held that indefinite detention of clearly deportable legal immigrants is a constitutional violation. "Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent," the court wrote. Without a requirement to charge or discharge a suspect after 24 hours, and substituting it with a vague "reasonable time" period, there is no accountability or pressure on behalf of the Department of Justice to investigate before arrests --the proposals will thus create an incentive to favor a catch-and-hold strategy. Because the 24-hour requirement can be waived "in the event of emergency or other extraordinary circumstance," this period can extend indefinitely, subject to Rorschach interpretations of what is an "extraordinary circumstance." (Though few would argue that the recent attacks do not constitute an extraordinary circumstance.)

Many have compared the horrific attacks on the World Trade Center and the Pentagon to the one on Pearl Harbor. It is heartening that unlike after Pearl Harbor, the president is now giving speeches condemning discrimination. Due process rights are established particularly for extraordinary -- even heartbreaking -- circumstances and must be applied without bias. President Bush must uphold the values of America by living by his own rhetoric.