04 December 2003
Legal Scholars Debate Patriot Act's Treatment of Foreign Nationals
Professors weigh differentiation of citizens and foreigners
By David Shelby
Washington File Staff Writer
Washington -- The treatment of foreign nationals under the USA Patriot Act was the primary topic on the agenda as the principal architect of the document, Viet Dinh, squared off to debate one of the Act's chief critics, David Cole, at a Council on Foreign Relations (CFR) forum in Washington December 2.
Congress adopted the Patriot Act shortly after the attacks of 9/11 in an effort to shore up domestic security. Both of the discussants debating the Act at the CFR forum are law professors at Georgetown University Law Center.
The focus of the debate was upon the differing legal standards the Act establishes for U.S. citizens and foreign nationals. Dinh argued that such a differentiation is to be expected.
"That is of necessity because we are not a global community. Rather we are a community made up of discrete nation states which divide themselves into communities by distinguishing themselves with the borders," he said.
Furthermore, he maintained that the Act is justified in its attempt to differentiate between the motives of different foreign nationals.
"There has to be a distinction between those who would seek to come to this country as asylum seekers, seeking the flame of freedom, against those who would seek to come to this country in order to destroy the promise of freedom," he said.
Patriot Act critic David Cole acknowledged the fundamental legal distinctions between U.S. citizens and foreign nationals, but said the Patriot Act raises concerns about human rights.
"What I am suggesting is that with respect to basic human rights -- like the freedom not to be locked up arbitrarily -- with respect to that kind of a right, there is no distinction," he said.
Cole drew upon material from his recent book, "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terror," to argue that the greatest weakness in the Patriot Act is the double standard it sets in its attempt to redefine the balance between liberties and security in the United States.
"We have not, for the most part, been willing to give up our liberties in the name of preserving greater security, but have instead chosen the option of taking the liberties of foreign nationals, and especially Arab and Muslim foreign nationals, for the purported security of the rest of us," he said.
Cole maintained that "The worst provisions of the Patriot Act ... allow the government to exclude foreign nationals for their speech, to deport foreign nationals for their innocent association with any group [Attorney General] John Ashcroft doesn't like, and give the attorney general the power to lock up foreign nationals without charges and without showing to a court that they're dangerous or a threat to national security."
He argued that this double standard is wrong "because the rights we're denying here are not rights of citizens. ... They are human rights. The right not to be locked up without a justification, the right of association, the right of speech -- these rights in the Constitution extend to persons, to people, not to citizens. ... These are understood as human rights."
However Dinh rejected Cole's suggestion that the arrests had been arbitrary or simply preventative, underscoring the fact that such measures would be patently unconstitutional.
He said, "Each and every single person who has been detained by our law enforcement agency in the jurisdiction of the United States has been so detained and arrested based upon an individualized predicate -- either an allegation of violation of criminal law or an allegation of violation of our immigration law. As I said, there is no legal, constitutional or moral right to violate the laws of the United States."
Dinh acknowledged that most of these individuals were detained and charged on criminal and immigration violations not related to terrorism but maintained that "when we're dealing with potential terrorist suspects -- those persons classified as ‘of interest to 9/11' -- I do hope that our government would use its prosecutorial discretion to the fullest extent to remove those persons based upon infractions of the law, legitimate convictions and normal processes of the law, in order to remove them from the street and the civilities upon which they would do harm."
Cole, however, said the application of the law has not proven effective.
"The administration has, in the name of fighting terrorism, locked up, subjected to preventive detention, over 5000 foreign nationals by their own count," he said. "And of those 5000 foreign nationals, how many have been identified as al-Qaeda people? Zero. How many have been charged with 9/11? Zero. ... How many have been charged with any crime related to terrorism? Only three, and of those three, two were acquitted of the terrorist charges."
Dinh riposted with different statistics, supporting the value of the Patriot Act.
"According to Justice Department numbers, the U.S. government has deported approximately 500 persons since 9/11 who were associated or connected with the 9/11 investigations. Approximately 300 other persons were charged criminally with the allegation of criminal misconduct. ... [They too] were connected with 9/11 [investigations]. Approximately half of these people have pled guilty or been convicted."
(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
This page printed from: http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2003&m=December&x=20031204174056ndyblehs0.7379267&t=usinfo/wf-latest.html
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