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Immigrant Liberties are First Casualty of War
An Essay by David Cole

audio Listen to Cole's essay.

Proposed legislation would expand the power of federal officials to wiretap suspected terrorists, share intelligence information about them and track their Internet use. Commentator David Cole says the legislation would be a mistake, and that it would make Americans less safe, not more.

Oct. 15, 2001 -- The proposed law substitutes guilt by association for individual responsibility. Existing law makes immigrants deportable for engaging in or supporting terrorist activity. Under the new law, immigrants would be deported for wholly innocent associations having no connection whatsoever to a terrorist act. The bill defines terrorist organizations so broadly that they could include any group -- domestic or foreign -- that has ever used or threatened to use a weapon. It then makes deportable any support of such groups, even wholly innocent support designed to counter violence and further peaceful ends.

Under this law, an immigrant who donated medical supplies to a hospital associated with an organization engaged in a civil war abroad could be deported as a terrorist. If this law had been in place in the 1980s, it would have made any immigrant who supported the African National Congress' struggle against apartheid a deportable terrorist, because that organization used violent as well as non-violent means.

"As President Bush himself said about Arabs and Muslims in our midst, we must be careful not to presume that people are guilty because of their group identity."

David Cole

No one has made the case that the INS' existing power to deport any immigrant who engages in or supports terrorist activity is insufficient. If anything, history suggests that the INS has repeatedly abused the powers it has. Consider Masin Almajar, a Palestinian professor in Florida who spent three and a half years in jail on secret evidence and charges of political association before he was released in December 2000. The immigration judge found that mere association without any link to a terrorist act did not establish a threat to national security.

Not a single criminal -- much less terrorist -- charge was ever filed against the professor. But under the new anti-terrorism legislation, the INS would be free to detain and deport hundreds of aliens who did nothing more than associate with the wrong people, even if, like Masin Almajar, they themselves never took any action whatsoever to support terrorism.

We've tried this before. The excesses of the McCarthy era, in which thousands of innocent people were tarnished as fellow travelers, demonstrated the dangers of painting with a broad brush. Yet here we go again, adopting a philosophy that the Supreme Court has condemned as "alien to the traditions of a free society and the First Amendment itself."

Guilt by association is also counterproductive. It invites wasteful investigations and prosecutions. And by treating aliens as guilty, not for their individual conduct but for their group identity, we are likely to alienate whole communities and thereby make it more difficult to identify true threats. It is often said that civil liberties are the first casualty of war. But it would be more accurate to say that immigrants' liberties are the first to go. But as President Bush himself said about Arabs and Muslims in our midst, we must be careful not to presume that people are guilty because of their group identity. Congress should abide by that principle in the immigration law as well.

David Cole is a professor at Georgetown University Law Center.