Court rules that noncitizens can be treated differently than citizens.
By: Hank Kalet
Double standards abound.
The U.S. Supreme Court has upheld a 1996 law that allows law enforcement to use different standards in judging whether citizens and noncitizens can be held in preventative detention.
As outlined by Georgetown law professor David Cole in The Washington Post, the court has tossed out nearly 70 years of case law "by insisting that the constitutional guarantee of due process means something different for a noncitizen than for a citizen, thus reneging on its own statement 50 years earlier that the due process clause does not ‘acknowledge any distinction between citizens and resident aliens.’"
Dr. Cole says the ruling contradicts the court’s own rulings.
"The due process clause applies to ‘persons,’ not citizens, and only two years ago the court reiterated that it applies to all persons in the United States, regardless of citizenship status," he wrote. "To be locked behind bars is the same infringement on liberty for the noncitizen as for the citizen. And the government’s interests in detention avoiding flight and harm to the community apply equally with respect to citizens indicted on criminal charges and noncitizens accused of being deportable."
The decision, he says, leaves the door open for the kind of discriminatory detentions used by the Bush administration during its war on terror.
"The administration has selectively subjected foreign nationals to trial by military tribunal, to mass preventive detention and to registration, deportation and detention based on Arab or Muslim nationality," he writes. "Its defense of each of these measures is to claim that noncitizens don’t deserve the same rights as citizens do."
Citizens might feel this approach is OK under the current climate, assuming they are safe from the kind of infringements it implies. But make no mistake, Dr. Cole says, what is done to noncitizens in the name of security can be done to citizens.
"(H)istory shows that what the government does to foreign nationals in the name of national security eventually gets extended to U.S. citizens," he writes. "The guilt-by-association campaign of the McCarthy era was an extension to citizens of tactics first deployed against foreign nationals in the Palmer raids of 1919-20. The internment of 70,000 American citizens of Japanese descent during World War II was an extension to citizens of the historical treatment of "enemy aliens" during wartime."
Double standards like these are dangerous for our democracy. We need to convince Congress of this and have them overturn their own law.

