Washington, DC, December 11, 2001 --  

When a few brave Senators dared to question Attorney General John Ashcroft about his secret military tribunal plan last week, the reaction was swift and harsh. With the Bush administration enjoying sky-high approval ratings, there was no need for compromise. Ashcroft gave an unbending defense of his outrageous position, and managed to frame the twisted debate so Senators accepted the premise that foreigners shouldn't get the same treatment as Americans.

As Senator Charles Schumer (D-NY) agreed, Al Queda members simply "don't deserve the same panoply of due

process" as Americans.¹ Countless other politicians and commentators echoed the sentiment.

But as simple and agreeable as this idea may sound, such thoughts are at odds with the very foundation of America. How can people tell whether suspects are terrorists or Al Queda members? Under normal circumstances, a trial within the American judicial system would be the way to decide. But Senator Schumer and Attorney General Ashcroft think the people they presume guilty don't deserve a trial. Their circular logic is senseless.

At this stage of the argument, defenders of the tribunals usually point out that there is no need for worry, because they will not be used against Americans. John Walker, the crazy-looking American citizen captured with other Taliban soldiers, is offered as evidence that Americans will not be put before military tribunals. Only foreigners will be tried this way, they insist.²

The trouble with this argument is that many of the people they call foreigners are permanent and productive members of American society. The Bush Administration's plan puts all non-citizens at risk of being put before a secret military tribunal. This may not sound so bad for a few migrants, but we're talking far more than a few -- 17.8 million American residents were non-citizens at last count.³

Think these people are just migrant laborers and infiltrating terrorists? Think again. Most immigrants in America are employed, have families, and have no intention of ever leaving the country. Many have American-born children.

Why haven't they become citizens? Probably the biggest single reason is that they can't. They either have not been in the United States long enough, or they are not in the country legally.

Far from traditional criminals, illegal immigrants usually choose to come to the United States outside the law because they can't find any legal way to come. Immigration laws have such stiff quotas that many honest, ambitious, hard-working migrants looking for better lives would wait their entire lifetimes on a list before being allowed to come to the United States under the dysfunctional immigration laws.

As a result, the number of non-citizen Americans has been growing strongly for the last 30 years.⁴ As it stands, 6.4 percent of American residents don't enjoy citizenship. At current rates of growth of total population and non-citizen population, over 20 percent of the population will be non-citizens by the year 2040.⁵

Regardless of your feelings about immigration, it is outrageous to deny basic freedoms to such a large percentage of the American population. Over 6 percent of American residents will be denied the right to a free trial under the Bush administration plan. If trends -- and the plan -- continue, nearly a quarter of American residents will be denied constitutional rights in 2040.

If this is acceptable, then where does it end? How big of a percentage of the population can be denied basic rights in a free society? If and when non-citizen Americans become the majority, is it still okay?

These are questions that civil libertarians can easily answer. It remains to be seen if Attorney General Ashcroft and company can do the same.

Related Web Column:

Constitutional Apartheid
America's New Political Underclass, March 9, 1999

Notes:

1. New York Times, Bush Defends Wartime Call for Tribunals, December 5, 2001

2. Washington Post, U.S. Taliban Fighter Likely to Get Civilian Trial, December 9, 2001

3. U.S. Census Bureau, Foreign-Born Population of the United States Current Population Survey - March 2000,

Released January 03, 2001

4. Ibid., Citizenship Status of the Foreign-Born Population: 1890 to 1950 and 1970 to 1990, Released March 9, 1999

5. Ibid., Extrapolated for 40 years using 1990-2000 growth rates.