Law, Terrorism, and the Plenary Power Doctrine: Limiting Alien Rights

The World Trade Center and Pentagon attacks on September 11 have revived the national debate over what constitutes an appropriate balance between civil liberties and domestic security. This debate is crucial, and should not be closed off prematurely through the naïve assumption that the government should simply exercise prudence in its calculus of liberties and safety. Prudence is a virtue that governments often lack in times of crisis. Historically, during periods of political and economic uncertainty the United States has targeted foreigners within its borders as political enemies, using a combination of internal security legislation and immigration law to detain, prosecute, and deport suspected ‘terrorists’ (however defined at the time), and often providing little if any legal remedy to the accused. In political terms, antiterrorism legislation concerns the tension between guaranteeing civil liberties and maintaining national security. In co stitutional terms, the discussion concerns the respective powers of Congress and the judiciary, understood through the ‘plenary power’ doctrine, whereby the Supreme Court has traditionally recognized the legislature’s sovereignty over immigration issues and its right to delineate the jurisdiction of federal courts. Because of the Court’s general deference to Congress on issues pertaining to aliens, I argue that strategies to protect the civil rights of non-citizens should focus on legislative efforts to guarantee due process rights, rather than on trial advocacy aimed at overturning antiterrorism and immigration law as unconstitutional. If the Court continues to defer to Congress on aliens’ rights, as I believe it will in the aftermath of the September attacks, civil liberties advocates would do well to focus their resources on legislative lobbying. Precisely because the general tenor of national debate about foreigners changes from presumed innocence to presumed guilt – or even betrayal – in the present circumstances it is crucial that legal remedies be in place for those accused of terrorist sympathies. Of course, it is not surprising that aliens do not enjoy the same rights as citizens; this status hierarchy is a constitutive element of any legally bound community, and the authority to grant only limited rights to aliens is a basic prerogative of the sovereign state. The concern in this essay is more limited. I highlight the tendency to remove most avenues of legal protection for aliens facing deportation, a tendency that becomes more pronounced in times of national crisis. The issue, then, is not that aliens have fewer rights vis-à-vis citizens (an issue that