The calamitous attacks of September 11 have imposed on Americansa sense of vulnerability that we've been privileged to avoid for a long time. Butas we respond to the threat of terrorism in our midst, and as the nation takes upwhat President Bush has called a fight for our freedoms, we must maintain ourcommitments to those freedoms at home. We must be careful not to overreact andshould insist that any response be measured and effective.
Unfortunately, the antiterrorism bill proposed by the Bushadministration utterly fails this test. Its worst provisions are aimed at themost vulnerable in our society: immigrants who have no voice in the politicalprocess. The Bush bill would make aliens deportable not for terrorist activitybut for peaceful and nonviolent associational activity in support of any groupthat ever engaged in a violent act, without any showing that the alien's supportfurthered illegal ends. It would authorize the Immigration and NaturalizationService to detain immigrants indefinitely on the attorney general's say-so, evenwhen they have a legal right to live here permanently and cannot be deported. Andit would resurrect the doctrine of ideological exclusion by allowing aliens tobe denied entry for their speech.
This is not the first time that Americans have responded to fear by targetingimmigrants and treating them as suspect because of their group identities orbeliefs rather than their individual conduct. In World War I, we imprisonedantiwar dissidents, mostly immigrants. In World War II, we interned 120,000persons, not because of individualized determinations that they posed a threat tonational security or the war effort but solely on account of their Japaneseancestry. And in the McCarthy era, we made it a crime and a deportable offenseeven to be a member of the Communist Party. That history should caution us to askcarefully whether we have responded today in ways that avoid overreaction and aremeasured to achieve security without needlessly sacrificing liberty.
Current law gives the INS substantial power to address terrorism. Itallows the agency to deny entry to, detain, or deport any alien who has engagedin or supported any kind of terrorist activity. But that's apparently not enoughfor the Bush administration: It suggests expanding its authority to permitdeportation of immigrants who have never engaged in or supported an act ofviolence in their life. They could be expelled from the country solely on thebasis of their associational activity.
Under the Bush proposal, an alien who sent coloring books to a day-care centerrun by an organization that at some time was involved in armed struggle would bedeportable as a terrorist, even if she could show that the coloring books wereused only by three-year-olds. Indeed, the law extends to those who seek tosupport a group in the interest of countering terrorism. Thus, an immigrant whooffered the IRA his services as a negotiator in the hope of furthering thepeace process in Great Britain and forestalling further violence would bedeportable as a terrorist.
Guilt by association, the Supreme Court has ruled, violates the First and theFifth 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 theFirst Amendment itself." As a strategic matter, guilt by association is alsocounterproductive, because it leads government officials to waste resourcestargeting the innocent and alienates whole communities of people who might haveinformation about true threats that lurk among us.
The Bush bill would also authorize the attorney general to lock up any alienwho he "certifies" might engage in terrorist activity, which is so broadly definedthat it includes virtually any use or threat to use a weapon, as well aspolitical associations. The legislation mandates detention of individuals whopose no threat to national security or risk of flight. And the administration isseeking to insulate the attorney general's certification from any meaningful courtreview--in short, to suspend the writ of habeas corpus and legalize unilateral executive detention.
Finally, the Bush bill would resurrect the practice of denying visas toforeigners because of their speech. It proposes to authorize the secretary ofstate to deny entry to anyone who endorses a terrorist organization--again, sobroadly defined that it would include the IRA, the African National Congress,and the opposition forces in Afghanistan. In 1990, Congress repealed McCarthy-eraimmigration provisions that similarly barred entry based on ideas, a practicewholly inconsistent with our commitments to the free exchange of ideas. Yet herewe go again.
These provisions are highly unlikely to make us safer. And they sacrifice thevery principles we are fighting for. As Justice Louis Brandeis wrote nearly 75years ago, the framers of our Constitution knew "that fear breeds repression;that repression breeds hate; and that hate menaces stable government." Freedomand security need not be traded off against each other. Maintaining our freedomsis itself critical to maintaining our security.
