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Citizen V. Non-Citizen: Differential Rights And Treatment

by Cyrus D. Mehta

The Supreme Court recently heard oral arguments on whether the US government can detain foreign nationals held at Guantanamo Bay, Cuba, as "enemy combatants" without charge and without access to the US courts to challenge their detention. These were people who were captured in the battlefield after the US invaded Afghanistan following the September 11 attacks.

...The Supreme Court [also heard] similar arguments concerning the detention of two US citizens, Mr. Padillia and Mr. Hamdi, who have again been detained within the US as "enemy combatants" without charge or hearing.

One of the arguments in the oral hearing concerning the Guantanamo Bay detainees in the Supreme Court on April 21, 2004, dwelt on whether the authority of the US government to prevent the detainees’ access to US courts depended on whether the persons were citizens or not. When Justice Sandra O’Connor asked Solicitor General Theodore B. Olson, who was arguing for the government, whether American citizens being held in Guantanamo Bay would have access to American courts, Mr. Olson agreed that the US would acknowledge that such a person would have jurisdiction since that "citizenship is a foundation for a relationship between the nation and the individual…"

David Cole, a professor of law at Georgetown, disagrees in an essay that appeared in the New York Times, ("America’s Prisoners, American Rights," NYT, April 20, 2004). According to Professor Cole, citizenship should not matter, and further, the detention of a citizen should not be considered "more dubious legally" than that of a non-citizen. He argues that the "human-rights revolution over the past 50 years has identified fundamental rights like the right not to be arbitrarily detained as extending to all regardless of nationality. Human-rights treaties ground these guarantees in "human dignity" and Americans have no monopoly on that."

Professor Cole is right on point. One can become an American citizen by sheer accident of being born to an American citizen parent without having much contact with the US. On the other hand, there are millions of non-citizens who live in the US and have developed substantial ties with the country by working here, paying taxes and establishing families. When one considers the fundamental right of a person to not being locked up without due process, it is irrelevant whether the person is a citizen or a foreigner. From the prisoner’s standpoint, he or she has the same interest in not being locked up erroneously or arbitrarily, according to Professor Cole. Even from the government’s perspective, the motivation to lock up an alleged terrorist, citizen or not, is to further the security interests of the US.

As a result of differing standards in the rights accorded to citizens and non-citizens, certain immigrants living in the US got a raw deal after the September 11 terrorist attacks. Over 1,200 non-citizens were detained in a sweep targeted against Muslims, Arabs and South Asians. The government refused to say exactly how many were detained and who they were. These detainees suffered exceptional hardship and were detained for weeks or months without charge. They were also detained even after the judge ordered them released or removed from the US. Many of the detainees were subject to solitary confinement and physical abuse.

Unfortunately, US immigration law gives extremely broad powers to the US government with respect to the detention and removal of non-citizens. Had these 9/11 detainees been charged under the criminal justice system, within the US, they would have claimed more rights such as the right to a lawyer and the right against detention without charge. At least the immigrants detained in the sweep got a deportation hearing, even if it was kept secret.

Even after the sweep, immigrants in the US have been targeted solely because of their nationality, ethnicity or religion. In 2002, the government’s Call-In Special Registration Program targeted males from countries with significant Islamic population, and caused havoc within immigrant communities as it tore apart families.

However, in the case of the Guantanamo Bay detainees and Padillia/Hamdi, designated as "enemy combatants," the government is claiming even more broad powers to detain them indefinitely without charge, hearing or access to the courts.

The Commission in the US Congress investigating the 9/11 attacks has concluded that immigration policies that were promoted after 9/11 to keep the country from further attacks have been ineffective and produced little, if any, information leading to the identification or apprehension of terrorists ("9/11 Panel Calls Policies on Immigration Ineffective," New York Times, April 17, 2004). Moreover, a report of the Migration Policy Institute (MPI), an immigration policy think tank in Washington, D.C., has also concluded that the government’s post-9/11 measures against non-citizens have failed to make us safe, have violated our fundamental civil liberties, and have undermined national unity. According to the MPI report, available at, the government conducted round-ups of individuals in the US based on their national origin and religion. These round-ups failed to locate terrorists and damaged one of the great potential assets in the war on terrorism: the trust of Arab- and Muslim-American communities.

The undermining of the rights of non-citizens ultimately tends to also erode the rights of citizens. Thus, although it has been easier for the government to hold non-citizens under our immigration laws for long periods of time without charge – as well as place detainees in Guantanamo Bay in a legal vaccum - the US has exercised even more extraordinary powers against two US citizens, Padilla and Hamdi. Over 50 years ago, the US government also detained US citizens of Japanese descent after the attack on Pearl Harbor by the Japanese air force. The Supreme Court found that the government was justified then.

It is hoped that the Supreme Court in 9/11 cases upholds the rights of people detained by the US government in its war against terrorism irrespective of whether they are US citizens or not. Although the doctrines of "military necessity" or "national security" are powerful, and US courts tend to give the government greater leeway during war, the time is ripe for the Court view such a claim in a more skeptical manner. Just because the government claims that it is essential to detain a person without charge or hearing in the name of national security does not mean that it is necessarily true. The government’s claim of waging war in Iraq on the ground that it had weapons of mass destruction, which could have been used against the US have proved to be unfounded. By the same token, the government’s post-9/11 sweep against non-citizens in the US solely because of their nationality or religion has also proved to be ineffective. Instead, the Court should hold the US accountable to the lofty standards set forth in our Bill of Rights, as well as under international human rights principles, to ensure that both citizens and non-citizens be provided fair process if the US government chooses to detain them.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the recipient of the 1997 Joseph Minsky Young Lawyers Award. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or This article originally appeared in Mr. Mehta is the Secretary of the Association of the Bar of the City of New York (ABCNY) and is the incoming Chair of the Board of Trustees of the American Immigration Law Foundation (AILF). The views expressed in this article do not necessarily represent the views of either ABCNY or AILF.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.