Legal Lines in Shifting Sand: Immigration Law and Human Rights in the Wake of September 11th

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial proaling; the convergence of immigration and criminal law since the attacks; judicial review of military detentions at Guantanamo Bay and elsewhere; and noncitizens’ rights in the United States and the European Union. From their insights have emerged an outline for future research and the seeds of a pragmatic legal approach to these increasingly complex questions, all grounded in a deep respect for human rights. The truism that we never forget where we were and what we were doing at the time of world-shaking events can be misleading. My memory of the assassination of Dr. Martin Luther King, Jr., for example, is highly personal and more emotional than rational: my mother’s tears, the seething, unfocused tension between children of different races in my urban school the next morning, and my teacher’s wellintentioned but inept attempts to help us grasp how we as a society had succumbed to the terrible veto of violence. I do, however, remember exactly where I was and what I was doing when the planes hit the buildings in New York. The details remain clear not only because I am now an adult, but also because for me the whole episode was marked by a poignant combination of tragedy, fear, and—astonishingly—a kind of epiphany. I was teaching immigration law that semester at Boston College Law School. Two weeks before September 11, my class and I had read * Clinical Professor and Director, Boston College Law School, International Human Rights Program. 2 Boston College Third World Law Journal [Vol. 25:1 and discussed the several late nineteenth century cases that form the foundation of what is known as the “plenary power doctrine.” We had struggled to conceptualize and articulate the limits of the government’s power to control noncitizens’ entry into and residence within the United States. Could it truly be, as the Supreme Court had once said in the infamous “Chinese Exclusion Case,” that government policies in this realm are “conclusive upon the judiciary?”1 What consequences might oow to us all if we accepted the proposition that the power of the government to “deport foreigners . . . is as absolute and unqualiaed as the right to prohibit and prevent their entrance into the country”?2 On September 11, 2001 we had suspended discussion of these deep legal and policy concerns for a special session on legal research techniques. We had set up an internet connection, and its transmissions were projected onto a large screen. I walked into the classroom, completely oblivious to what had happened that morning, and was confronted by the stunned and horriaed faces of the early arrivals as they watched CNN. Then, huddled together, about a hundred of us watched: students, staff, and faculty. At arst, our fears were rather speciac and personal—we believed that as many as afteen of our students were on those planes, oying from Boston to California for job interviews. I recall nervously scanning the empty seats in the room. Who was missing? Who had told me of a trip to California? Many of us began to worry about friends and family as well. I thought that my brother was probably near, if not in the heart of, the disaster—he worked very close to the World Trade Center. (I later learned that, amazingly, he had overslept that day and awoke in Brooklyn to see smoke rising over lower Manhattan.) Soon, however, we all realized that we were witnessing something much bigger than we had initially thought. The world, it seemed, had suddenly changed in ways that the mind and the heart struggled to grasp. I remember standing before this group as the events unfolded, feeling compelled to say something—to try to sum up, or at least to frame somehow, what we were witnessing. I knew I was inadequate to the task, but nevertheless it was mine. The arst thought that occurred to me has stayed with me ever since. I saw areaghters and police rushing into that huge inferno; medical emergency teams doing whatever they could; stunned government ofacials struggling to do something 1 Chae Chan Ping v. United States, 130 U.S. 581 (1889). 2 Fong Yue Ting v. United States, 149 U.S. 698 (1893). 2005] Immigration Law & Human Rights Post 9/11 3 useful—all were uncertain of what they faced, and all were terriaed, shocked, confused—but all were doing their jobs. I said to my students that for us—lawyers, law students, especially those who devote our lives to human rights and the rule of law—our time would come soon to do the same thing. We would have to rush into a new, uncertain, complex, potentially dangerous situation and we would have to do our job. That job, most simply put, is to construct a system, a discourse, and a legitimate set of procedures to protect more than a thousand years of legal culture and human rights, while not, as the Supreme Court once put it, turning the Constitution into “a suicide pact.”3 It has become apparent that this job requires serious rethinking of various categories and legal lines. Before September 11, 2001, some legal categories were fairly unambiguous. U.S. citizens, for example, unquestionably had powerful procedural and substantive rights against executive detention. With the rare and controversial exception of the detention of citizens during declared wars, one could have conadently said that the constitutionalized criminal justice system was the primary framework for analysis of such arrests and detentions.4 As the Supreme Court put it nearly half a century ago, [W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.5 As to noncitizens, however, the rules have long been more complicated. After all, the Alien and Sedition Acts of 1798, which authorized the President to designate noncitizens for arrest, detention and removal without judicial process or oversight—were never tested at the Supreme Court. But it is also well-established that, if subjected to 3 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159–160 (1963). 4 Cf. Hendricks v. Kansas, 521 U.S. 346 (1997) (upholding Kansas’s Sexually Violent Predator Act, providing for civil commitment of those who, due to a “mental abnormality” or “personality disorder,” are likely to commit sexually predatory acts). 5 Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion) (citations omitted). 4 Boston College Third World Law Journal [Vol. 25:1 formal criminal process, noncitizens retain the same rights as citizens in that process.6 If, however, they are placed in deportation proceedings—possibly implicating arrest, detention, and the most severe and harsh of consequences—their rights are substantially diminished and subject to the oexible vicissitudes of procedural due process analysis. Moreover, if they happen to face U.S. government action outside the United States, the Supreme Court has deemed them to have essentially no constitutional rights at all.7 All this was, of course, doubly true for so-called “enemy aliens” in times of war.8 So, as a general matter, one could conceptualize the preSeptember 11th rule of executive detention/enforcement law as a matrix with four major interlocking dichotomies, composed of eight basic variables, and creating a rough continuum of rights: peace-time/declared war inside territory/outside territory