Should the police be able to arrest you based on your religion and then imprison you indefinitely while they search for a crime to charge you with?
Of course not. The very idea flies in the face of American jurisprudence, whose traditions guarantee due process, equal protection and the presumption of innocence. The law works to prevent—not facilitate—arbitrary detention.
But that is not what a federal judge in Brooklyn recently ruled. According to District Judge John Gleeson, the U.S. government has the right to detain immigrants on the basis of their race, religion or national origin, and it can legally imprison immigrants indefinitely as long as their eventual removal from the country is “reasonably foreseeable.”
It’s an ominous decision that, in the words of Rachel Meeropol, a lawyer at the Center for Constitutional Rights, gives “a green light to racial profiling and prolonged detention of noncitizens at the whim of the president.”
The judge was ruling on Turkmen vs. Ashcroft, a lawsuit filed by the Center for Constitutional Rights on behalf of eight named plaintiffs and hundreds of other foreign nationals. These are the men who were swept up by the government in the weeks following the Sept. 11 attacks.
More than 1,200 people were detained in this period, and a total of more than 5,000 were held in the two years after 9/11. But not one of these people has been convicted of terrorism, according to law professor David Cole, a co-counsel in the suit. (The government arrested Zacarias Moussaoui before 9/11, and without resorting to the methods challenged here.)
Many of these men were initially arrested without charge, only to be served with immigration papers often weeks or sometimes months after. What’s more, the detainees were arrested in secret, and hundreds were tried in closed hearings. They were also often seized randomly or under the flimsiest of suspicions.
“In one representative case,” Cole writes, citing a Justice Department report, ”the FBI arrested several men on a tip that ’too many’ Middle Eastern men worked at a convenience store down the street.”
In other words, immigrant Arab or Muslim men were rounded up after 9/11 merely because they were Arab or Muslim or both.
Many were also subject to terrible physical abuse while incarcerated. (That part of the lawsuit will thankfully go forward.)
The detainees argued that the government trampled on their rights to equal protection (by singling them out on the basis of their religion, race or national origin) and violated their rights to due process (by depriving them of adequate counsel, by not charging them and by keeping them incarcerated long after their immigration cases had been resolved).
But the judge disagreed.
Under his interpretation of the law, immigrants just don’t have the same basic rights to liberty that citizens enjoy. “The executive is free to single out ’nationals of a particular country’ and ’focus’ enforcement efforts on them,” he wrote, quoting from a 1999 Supreme Court case. “This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious.”
The judge is relying on a prevailing legal argument that says that immigration policy is in the hands of the political branches of government and, as such, is largely immune from judicial review.
But we need to recognize that immigrants in our midst, even though they’re not citizens, are still human beings and are entitled to fundamental human rights. Under the Universal Declaration of Human Rights, these include the right to be free from discrimination and arbitrary detention.
Our own Fifth Amendment provides sufficient protection. It says “no person” shall be “deprived of life, liberty or property without due process of law.” It does not restrict this protection only to citizens.
What’s more, detaining immigrants based on their race, religion or national origin adds nothing to national security. Blanket racial profiling is inefficient since by casting a net so widely the government uses up too many resources that could be deployed more intelligently elsewhere. And it is ineffective—even counterproductive—since it alienates the very community whose assistance it needs.
Targeting immigrants for their race, religion or nationality also sets a terrible precedent internationally. What would we say if other countries detained and abused Americans simply because they were Americans?
But the gravest threat lies with our principles. The idea behind this decision—that in the name of national security the government can intern foreigners based on race, religion or nationality—is deeply offensive.
Every time we succumb to arguments that trade a little bit of liberty for security, we are in fact losing some of our basic decency.