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Some maintain that a "double standard" for citizens and noncitizens is perfectly justified. The attacks of September 11 were perpetrated by nineteen Arab noncitizens, and we have reason to believe that other Arab noncitizens are associated with the attackers and will seek to attack again. Citizens, it is said, are presumptively loyal; noncitizens are not. Thus, it is not irrational to focus on Arab noncitizens. Moreover, on a normative level, if citizens and noncitizens were treated identically, citizenship itself might be rendered meaningless. The very essence of war involves the drawing of lines in the sand between citizens of our nation and those against whom we are fighting. Surely in that setting it makes sense to treat noncitizens differently from citizens.

The author argues that such reasoning should be resisted on three grounds. First, it is normatively and constitutionally wrong: the basic rights at stake--political freedom, due process, and equal protection of the laws--are not limited to citizens, but apply to all "persons" subject to our laws. Second, it undermines our security interests: employing a double standard with respect to the basic rights accorded citizens and noncitizens is likely to be counterproductive at home and abroad because it compromises our legitimacy in both spheres. And third, it will pave the way for future inroads on citizens' liberties: as the government's treatment of Padilla and Hamdi has already illustrated, the tactic of trading immigrants' rights for citizens' security is misleading, for what we let our government do to immigrants creates precedents for how it treats citizens.

In short, when we balance liberty and security, we should do so in ways that respect the equal dignity and basic human rights of all persons and not succumb to the temptation of purchasing security at the expense of noncitizens' basic rights. The true test of justice in a democratic society is not how it treats those with a political voice, but how it treats those who have no voice in the democratic process.

Publication Citation

31 Int'l J. Legal Info. 290-311 (2003)