Friday, June 16, 2006

Prolonged Detention of Illegal Aliens Upheld

Eric Muller has a post critiquing the District Court's decision in Turkmen v. Ashcroft. Judge Gleeson ruled that the government can selectively enforce immigration rules on the basis of national origin and ethnicity, and incarcerate Arabs who could be used for intelligence gathering. The decision is based on the distinction in Equal Protection jurisprudence between citizens and aliens, with the latter not being afforded the same protections under the Constitution. Muller criticizes the Court's distinction based on the historical precedent of the "issei" who were people of Japanese descent that were interned during WWII. The government apologized for this behavior in the The Civil Liberties Act of 1988. Nevertheless Gleeson ignored the issei precedent, and drew an artificial distinction between aliens and citizens.

I believe Muller's criticism is misplaced, partly because no case decided that the internment was unconstitutional and the judge's job is to base his decision on precedent, not political statements by the executive or legislative branches.

I'm not well-versed in the historical understanding of the Equal Protection Clause vis-a-vis aliens. I would assume the original understanding of the clause did not protect noncitizens to the same extent, and Supreme Court precedent has refused to apply the Constitution across the board to aliens. So the court's decision here would seem correct, despite the issei precedent.

Moreover the cases could be distinguished on practical grounds. A Pragmatic judge like Posner might view the threat posed by Islamist terrorists and determine that even if it isn't as great as the Japanese threat in WWII, the chances of an illegal alien committing an act of terrorism in 2006 is greater than a Japanese noncitizen helping Japan in WWII. Moreover, each terrorist would cause much more harm than a single saboteur in WWII. Those distinctions (the greater chance an individual might commit an act of terror and the greater harm caused by each individual) might justify applying the alien/citizen distinction. That is especially true in this case where the harm is merely selective application (a failure of procedural justice) instead of a substantive harm. The harm is less severe and benefits possibly greater.

18 Comments:

Blogger Charlie Hall said...

The analogy to the Japanese and Japanese-American internment during World War II is completely mistaken. Japan was at war with the United States. As a matter of international law, if countries A and B are at war, citizens of country A who happen to be in country B at the time of war are supposed to report to the authorities for interment, and vice versa. Sometimes, but not always, there are exchanges of civilian internees. Sometimes the internees are treated well (the Japanese, German, and Italian internees were not tortured or otherwise abused while in the American internment camps) and sometimes the treatment is horrific (such as the Japanese treatment of the British internees from Singapore. So Muller is completely off on that issue.

The treatment of the Japanese-American *citizens*, however, was racism at its highest level and is inexcusable.

However, the internment of the Japanese, Germans, and Italians occured during wartime under international law. That is not the situation today. Regarding that, there is the little problem of the constitution:

"No person shall be....deprived of life, liberty, or property, without due process of law...."

(Amendment 5 -- applied to the Federal government)

"No state shall...deprive any person of life, liberty, or propert, without due process of law...."

(Amendment 14 -- applied to the States)

An originalist or textualist would find no justification here for distinguishing between citizens and non citizens. Judge Gleason is clearly an activist judge who does not take the words of the constitution to mean what they say.

6/18/2006 12:11 AM  
Blogger Nephtuli said...

Charlie,

You make some good points. However, I have a few problems.

1) Given how indeterminate international law is, one could probably make an argument that what constitutes a state of war has changed given the rise of terrorist wars. So perhaps we are in a state of war.

2) A textualist fit the current contraversy under the Due Process Clause. The Clause only prohibits depriving liberty without due process of law. But this case is about selective enforcement on the basis of ethnicity/religion, which implies a statute exists that authorizes the internment. That statute can be considered due process and the enforcement would not violate the 5th or 14th Amendments.

3) You're probably right that a textualist should no distinguish between citizens and aliens because both are persons. An originalist might, depending on how the term 'person' was understood in the legal sphere in 1791 and 1868.

6/19/2006 1:11 AM  
Blogger Charlie Hall said...

'Given how indeterminate international law is....perhaps we are in a state of war'

On this issue, the international law is not indeterminate: Citizens of nations that are at war with each other are to be interned indefinitely. But that applies only to declared war between nations.

Regarding whether we are at war, as far as international law as concerned, NATO accepted that the US was under attack when it invoked Article 5. At that point, the Bush administration could have gotten Congress to declare war on Afghanistan (then controlled by the Taliban) and NATO would have mobilized. That would have meant 18 countries as allies, and well established ground rules. Any combatant fighting for the Taliban in Afghanistan would have been a prisoner of war, regardless of their country of origin, and they would be held indefinitely until the Taliban surrendered and agreed to a peace treaty. (It is entirely likely given the intransigence of the Taliban that there would eventually be some geriatric POWs.) But the Bush administration was so full of hubris that it decided to go its own way. As a result the US lost not just allies but its moral high ground.

'selective enforcement on the basis of ethnicity/religion, which implies a statute exists that authorizes the internment. That statute can be considered due process'

The 14th amendment was written precisely to prohibit racially discriminatory statutes!

"how the term 'person' was understood in the legal sphere in 1791 and 1868. "

I think the major question was whether corporations were legally considered "persons" and activist judges mostly accepted that bizzarre legal fiction.

6/19/2006 9:20 AM  
Blogger Nephtuli said...

On this issue, the international law is not indeterminate: Citizens of nations that are at war with each other are to be interned indefinitely. But that applies only to declared war between nations.

International law is always indeterminate. There is no body of law that's more malleable. In this case, given how many countries are fighting against terrorist groups, one could argue that the custom or general norms have changed.

And declaring war on Afgahnistan would not have solved our problem because the war is against Al Queda (or more broadly Islamic terrorism), not the Taliban. We wouldn't have gained anything by setting down legal rules on how to deal with Taliban POWS.

The 14th amendment was written precisely to prohibit racially discriminatory statutes!

Ah, but this isn't a racially discriminatory statute. It's enforced in a discriminatory way. Very different.

And your complaint refers to the Equal Protection Clause, not the Due Process Clause.

I think the major question was whether corporations were legally considered "persons" and activist judges mostly accepted that bizzarre legal fiction.

Agreed. But thank G-d for serious judges like Scalia who refused to allow the definition to be expanded to cover other types of business relationships.

6/19/2006 9:52 AM  
Blogger Charlie Hall said...

'given how many countries are fighting against terrorist groups, one could argue that the custom or general norms have changed.'

I think that is a well taken point. But there is nothing in international law or US law that allows a President to make up new legal statuses from nothing. Bush could easily have gotten NATO and probably the UN to agree to something back in the fall of 2001 or 2002, and he could get something from Congress even today. But we lost our moral high ground when we claim we are a country of laws and yet don't operate according to them. The worst was probably when the administration argued that US courts should not interfere with what was going on at Guantamamo because it isn't part of the United States. Did they suggest that the detainees there should appeal to Cuban courts? It is all a sham and it is all unnecessary.

6/19/2006 10:26 AM  
Blogger Nephtuli said...

I think that is a well taken point. But there is nothing in international law or US law that allows a President to make up new legal statuses from nothing.

Actually that's what international law is all about -- making up rules from nothing.

Bush could easily have gotten NATO and probably the UN to agree to something back in the fall of 2001 or 2002, and he could get something from Congress even today. But we lost our moral high ground when we claim we are a country of laws and yet don't operate according to them.

I disagree. It depends on what the laws are.

The worst was probably when the administration argued that US courts should not interfere with what was going on at Guantamamo because it isn't part of the United States. Did they suggest that the detainees there should appeal to Cuban courts?

Sure if they want. But civilian courts should not have jurisdiction over military affairs anyway.

6/19/2006 2:51 PM  
Blogger Charlie Hall said...

'making up rules from nothing'

To the contrary, there are a lot of treaties and international agreements that are as binding in the US as if the Congress had passed a law and the President had signed it. They include trade agreements, bilateral and multilateral defense agreements, extradition treaties, agreements on protection of each others' diplomats, reciprocal tax exemptions, and a host of other matters. These are not "made up from nothing". The one I'm most familiar with is NATO; most Americans would be shocked if they realized the extent to which NATO mobilization, if it ever happens, would change the US military. (Essentially, there would no longer BE an idenitifable US military; it would be integrated under the NATO command structure under US, Canadian, and European officers.)


'But civilian courts should not have jurisdiction over military affairs anyway. '

The US Supreme Court is in fact the court of last appeal in the military court system.

6/19/2006 4:11 PM  
Blogger Classmate-Wearing-Yarmulka said...

The US Supreme Court is in fact the court of last appeal in the military court system.

And the Court almost always defers to the military.

6/19/2006 4:49 PM  
Blogger Nephtuli said...

To the contrary, there are a lot of treaties and international agreements that are as binding in the US as if the Congress had passed a law and the President had signed it.

True but treaties are only binding in US courts if they are self-executing. But we aren't really talking about treaties and even if we are, treaties can be modified by custom. So there's an escape hatch if a treaty becomes obsolete which might be the case today when the aspects of war are categorically different than they were 60 years ago.

6/20/2006 12:36 AM  
Blogger Charlie Hall said...

'And the Court almost always defers to the military. '

It is very rare for a military case to be appealed to the Supreme Court. My guess is that since the military has good attorneys who serve as both prosecutors and defense attorneys (at no cost to the defendent!) the courts-martial generally follow the rules and it is rare for a constitutional issue to arise that would interest the Supreme Court.


'if a treaty becomes obsolete which might be the case today'

Nephtuli, that is NOT a conservative position! We don't hold by Jefferson's argument that all laws should naturally expire after a generation. In addition, most of the examples I gave -- tax, trade and extradition treaties, and NATO in the case of mobilization -- are indeed self-executing. (A lot of folks argue that NATO is now obsolete since the end of the Cold War, but that is for another post.)

6/20/2006 6:39 AM  
Blogger Charlie Hall said...

'self-executing'

After I wrote that I realized that there is a technical legal definition of self-executing, and that defense treaties probably don't meet that definition. On NATO mobilization, the President would probably need to issue an order to dissolve the US military command structure. This has been practiced for over 50 years, but never done.

6/20/2006 6:53 AM  
Blogger Nephtuli said...

It is very rare for a military case to be appealed to the Supreme Court. My guess is that since the military has good attorneys who serve as both prosecutors and defense attorneys (at no cost to the defendent!) the courts-martial generally follow the rules and it is rare for a constitutional issue to arise that would interest the Supreme Court.

And the rules are different in military courts, yet the Supreme Court consistently grants the military deferrence.

Nephtuli, that is NOT a conservative position! We don't hold by Jefferson's argument that all laws should naturally expire after a generation.

I didn't say treaties expire after a generation. International law recognizes the possiblity that changed circumstances can negate a treaty (rebus sic stantibus under the Vienna Treaty). Plus custom and a change in norms whether jus cogens or not could modify a treaty as well.

After I wrote that I realized that there is a technical legal definition of self-executing, and that defense treaties probably don't meet that definition.

A treaty that not self-executing must be executed by Congress or it has no legitimacy in the US court system. There's still a debate whether the UN Charter is binding on the courts, so certainly it's unclear if less important treaties are.

6/20/2006 9:38 AM  
Blogger Charlie Hall said...

'There's still a debate whether the UN Charter is binding on the courts'

Certain aspects of it are definitely accepted as binding, such as our acceptance of immunity for UN diplomats. (I wish that one weren't binding -- a lot of cars with diplomatic license plates park illegally in my neighborhood.)

6/20/2006 11:44 AM  
Blogger Nephtuli said...

Certain aspects of it are definitely accepted as binding, such as our acceptance of immunity for UN diplomats. (I wish that one weren't binding -- a lot of cars with diplomatic license plates park illegally in my neighborhood.)

IIRC, diplomatic immunity is not contained in the Charter but via other treaties that have been executed by Congress.

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