Is That Legal?

The precedent on which Gleeson relied was the Supreme Court's decision in Reno v. American-Arab Antidiscrimination Committee. There the Court held that federal statutes did not confer jurisdiction to entertain a selective-prosecution challenge to a deportation proceeding. (The plaintiffs in that case were members of an alleged terrorist group, the Popular Front for the Liberation of Palestine; they alleged that the government violated their constitutional rights by singling them out for deportation in violation of their First Amendment rights to expression and association.)

For Judge Gleeson, this was an easy issue:

In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.

As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. … I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. … Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress.

There is a historical precedent for the prolonged wartime detention of an alien group on the simple basis of their ancestry, and – perhaps not surprisingly, given the direction he was heading – Judge Gleeson did not mention it. That precedent is the multi-year incarceration of aliens of Japanese ancestry in World War II, without any sort of hearing to ratify their continuing and prolonged detention. (The government also incarcerated U.S. citizens of Japanese ancestry, but it is the detention of Japanese aliens, the so-called "Issei," that I speak of here.)

To be sure, the lengthy incarceration of the Issei without hearings was never the subject of a lawsuit, as was the incarceration of their citizen children (see Ex parte Endo, the subject of a recent mini-symposium at my blog IsThatLegal).

But it would be wrong to say that this prolonged detention was legal, or that the illegality of the detention has gone unredressed. Quite the opposite is true. The Civil Liberties Act of 1988 said the following:

“The Congress recognizes that … a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. … For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation.”

Judge Gleeson is undoubtedly right that the executive has broad discretion to prioritize its immigration enforcement, and that in that enforcement, it can single out people of certain nationalities for deportation before others. But that is not the nub of the Turkmen plaintiffs' now-dismissed claim. The nub of their claim is that the government held them in prolonged and unjustified detention, beyond any period necessary for the enforcement of the deportation laws, and without any sort of hearing to approve their prolonged detention, simply on account of their national origin. Focusing on prolonged detention rather than the simple decision to deport, their claim is therefore much more like the one legislatively vindicated in the Civil Liberties Act of 1988, and less like the deportation challenge that the Court rejected in Reno v. American-Arab Antidiscrimination Committee.

As I said, Judge Gleeson did not note the precedent of the illegal prolonged incarceration of the Issei in World War II. Who, in this day and age, would wish to rely on such an ugly episode for support?

But that ugly episode is fairly direct historical precedent for the prolonged detentions alleged in the Turkmen complaint. Candor would require Judge Gleeson to admit that he has given the government carte blanche not just to deport aliens of particular races, nationalities, or religions, but to confine them at length in this country, on the basis of nothing but race, religion, or nationality, without any sort of hearing before a neutral arbiter.

"National emergencies are not cause to relax the guarantees in our Constitution," said Judge Gleeson.

Yet that is just what his opinion does.

(Cross-posted from Concurring Opinions)