Foreign fears hit home

Laurence Lustgarten abhors the loss of rights of aliens judged enemies.

The subtitle of this book neatly summarises its scope and its main thesis. David Cole is a lawyer and professor of constitutional law at Georgetown University in the US. Over the past two decades, he has represented numerous immigrants and dissidents who have been threatened with severe sanctions, especially deportation and imprisonment, by the US government. Many of his clients were targeted due to their unpopular political beliefs or activities, and Cole's forensic experiences have given him an understanding of the legal technicalities and procedural details that pure academics could not match. Now his academic and advocacy work have achieved a powerful synthesis in this, his most recent work, which is a comprehensive and persuasive critique of the US legal and administrative response to the al-Qaida attacks of two years ago.

There are two interwoven strands of Cole's critique, the historical and the normative. He begins by recounting several cases that have achieved worldwide notoriety, such as those of John Walker Lindh and Jose Padilla, both US citizens who were able to challenge at least some aspects of their detention in the courts, and contrasts their treatment with that of those imprisoned indefinitely at Guantanamo Bay in what the English Court of Appeal last year described as "a legal black hole". He argues that while "[t]here has been much talk about the need to sacrifice liberty for security... [in fact] the government has most often, at least initially, sacrificed non-citizens' liberties, while retaining basic protections for citizens". That discrimination is unjustified and obnoxious, but even more ominous, he contends, is that "what we do to foreign nationals today often paves the way for what we do to American citizens tomorrow".

His fundamental guiding principle was best expressed by Supreme Court justice Robert Jackson, the US prosecutor at Nuremburg and a judge who generally supported executive and legislative actions to maintain order and "security". "Nothing," Jackson wrote in 1949, "opens the door to arbitrary action so effectively as to allow [government] officials to pick and choose only a few to whom they will apply legislation and thus escape the political retribution that might be visited upon them if larger numbers were [affected]".

Cole demonstrates in painstaking detail how a series of legal measures have been applied to non-citizens, which have been emphatically rejected when some elements in the Bush administration sought to impose them on Americans. Far from "balancing" the gains in prevention of terrorism against the loss of liberty, the so-called Patriot Act and other Bush-Ashcroft measures have weighted the purported security gains of more than 200 million frightened citizens against what Cole calls "the voiceless and often demonised 'alien' minority". The result is entirely predictable.

Jackson wrote at the height of cold war hysteria, and documentation of the record of US governments, which have repeatedly persecuted alien dissidents at times of crisis, is a major part of Cole's work. Part two, entitled "History lessons", begins with an account of the internment of all Japanese, alien and citizen, soon after the attack on Pearl Harbor. This mass incarceration, for which the Reagan administration apologised and paid individual compensation some 40 years later, has disturbing resemblances to the treatment of thousands of Muslim immigrants in the past two years.

Cole delves even more deeply and recounts the persecution and deportation of alien radicals at the end of the first world war, using the concept of sedition as a definition of unfitness to remain in the US. The so-called "Red Raids", organised by Attorney General Mitchell Palmer, a man who eerily resembles the present incumbent, John Ashcroft, rounded up thousands in mass arrests. They also launched the career of the then-obscure young lawyer in the Justice Department, J. Edgar Hoover, and Cole points to the continuity in administrative techniques developed by Hoover in 1919 with those used by Hoover's Federal Bureau of Information against leftists and civil-rights advocates for many decades thereafter.

Cole shares the US near-obsession with the Supreme Court as the guardian of constitutional liberty, so much of the book is devoted to an evaluation of its historical record. The verdict, at least to an outsider, is not impressive: the court developed some doctrines that have proved useful in protecting liberties, but only in cases decided well after the purported emergency had passed. Its contribution, if any, has been to deter future abuses. Yet, as Cole painstakingly demonstrates, those judicial judgements have been of very little use in the current crisis, partly because aliens enjoy many fewer constitutional rights, and partly because the conservative majority in the lower judiciary have thus far found ways round them. (None has yet reached the Supreme Court, although it will hear one major case soon.) To a British lawyer, all this is depressingly familiar, although the harshness of the American administrative response has been worse. Although the US is something of a rogue state in international law, in that it virtually ignores international human-rights instruments and looks solely to its own constitution, the greater protection of the European Convention on Human Rights (part of UK law via the Human Rights Act) has been of limited significance.

In one important respect, it has been of great value, Article 3 ECHR having been interpreted to forbid deportation to any state where torture is a realistic possibility, or where the death penalty may be imposed in criminal proceedings. Otherwise, the convention has largely been undermined by the English judiciary. In a key decision delivered two years ago, the House of Lords all but abdicated its judicial function in refusing to exercise review over any determination by a minister of what constitutes national security and when a person can be deported as a threat to that shadowy concept. More recently, it refused to give any scrutiny at all to a ministerial declaration that the UK exists in a state of grave public emergency (a description that I suggest would surprise most people stumbling out of clubs and pubs in all our cities) to justify the indefinite detention without trial of about a dozen non-UK nationals against whom there is insufficient evidence to support a criminal prosecution and who cannot be deported due to Article 3. Even worse, and here we return to Cole's fundamental point, the Lords held unanimously that aliens need not be treated identically with citizens, even with respect to fundamental rights such as liberty and fair trial. Measures that would be greeted with outrage if applied to the whole population have passed largely unnoticed when applied only to foreigners, whose religion and ethnicity make them the more readily disregarded.

Thus far the numbers have been small, which mostly reflects the seriousness of the situation, but also the care with which detention decisions have been taken. That is due much more to administrative judgement than to judicial constraint, and if there is one overriding lesson emerging from the long history of suppression in the name of national security, it is that conscientious officials, a vigilant media, and public opinion are of much greater use to politicians and judges in protecting real security, which at its core includes fundamental liberties.

Laurence Lustgarten is professor of law, University of Southampton.