« Every Once in a While, I can Call 'Em | Main | A Victory for Open Government »

August 30, 2006

I Can't Believe I'm Defending the ACLU

For once, I'm actually posting about the ACLU in the Unamerican Activities category where the ACLU is fighting the freedom-destroying behavior, rather than promoting it.

Both The Jawa Report and Stop the ACLU (both in my blogroll) have posted in support of the government preventing two American citizens from entering the US. The ACLU is right: the government should not have such power. You, trust me, do not want the government to have such power.

The general principles at stake are freedom of movement, equal protection of the law, and due process. These are not "mere legalities", but very bedrock rights guaranteed to all American citizens.

In Kent v. Dulles, an issue similar to the current case (but in the opposite direction) was argued. Specifically, the government denied a US citizen a passport with which to travel to England, on the grounds that the citizen was possibly a Communist, and refused to sign an affadavit as to whether or not he was a Communist. The court reasoned that the freedom to travel is part of the "liberty" referred to in the 5th Amendment, and thus could not be abridged without due process of law (which generally is held to mean that the government cannot arbitrarily deprive you of rights; to do so requires a charge which you can contest in court, and a finding that the deprivation of rights is necessary to ensure the trial occurs or is an acceptable punishment as a result of a conviction at trial). Even if the Court's argument is not persuasive, consider the ramifications of granting such powers to the government. Without a law explicitly making a particular kind of conduct illegal, with only an allegation of such conduct, with no ability to challenge the allegation or the legality of any determination about the nature of the conduct — in other words, as an arbitrary exercise of naked power — the government could prevent any citizen from travelling freely on any ground they choose. And worse, in the case of a citizen who is being refused reentry into the US, they cannot even gain access to the courts to challenge any aspect of this, because they cannot regain entry into the jurisdiction of the courts. Would you really care to argue that "liberty" means the freedom of any person to do what you personally (or some anonymous government bureaucrat) like and to not do what you (or said bureaucrat) dislike? That is no meaning of "liberty" that I can accept: it is meaningless as a protection or a right, because it can be abridged or denied at any time without the victim having any defense. That, in fact, is the kind of tyranny seeks to prevent.

The right to equal protection of the law, that is, the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law, arises from the fourteenth amendment to the Constitution, and more broadly from the Declaration of Independence's statement that "We hold these truths to be self-evident, that all men are created equal ...." The idea is to prevent the government from creating laws that discriminate against people who are dispreferred, such as creating different legal penalties for black and white people for the same crime, or subjecting some people to a punitive law while others are exempted. This is the principle that keeps the government from deciding that people in possession of drugs or adhering to a certain ideology are so dangerous that special laws must apply to them, and not to others. It's what keeps the 1930's German racial purity laws from being possible here. It is what guarantees that we are, in fact, a nation governed by law and process, rather than the arbitrary preferences of bureaucrats and policemen.

"Due process" rights guarantee, in the simplest terms (and it's a quite complicated body of law), that a person cannot be deprived of his rights and liberties except by a process laid down by law, which law was passed according to the process laid down by the Constitution, and that such laws have to be just and reasonable. The classic example of the "just and reasonable" problem would be to pass a law assigning the death penalty for jaywalking. The harm caused by the penalty so far exceeds the harm caused by the offense that no just or reasonable person could relate the two. It is this right that prevents the government from simply taking your liberties away any time it wants for any reason it wants. There must be a good cause for the government to deprive you of your liberties; you must be able to challenge the deprivation in court; and that court must be conducted according to pre-determined processes and under pre-determined regulations.

These are such fundamental rights that I cannot conceive of an American challenging the rights themselves. So how might one argue, then, that the government is not violating those rights in this case?

One might argue that because one of the people in question is a naturalized citizen, rather than being born a citizen, and so the government can deprive them of their right to return to the US. There are two fatal weaknesses to this argument: a naturalized citizen cannot be treated differently from a non-naturalized citizen, and one of the men at issue is a citizen by birth.

One might arue that there is no right to return to the US, only a right to leave or to travel freely within the US. The largest problem with this argument is that it renders all other rights purportedly held by the citizen to be meaningless once the citizen leaves the US. If a person cannot return to the US, they cannot assert their rights in court (which is itself a due process right); they cannot enjoy their property rights because they cannot access their property; they cannot exercise any of their rights as citizens. Effectively, granting such an argument gives the government the power to arbitrarily deprive a citizen of everything about citizenship except the label "citizen", without any process of law to back taking such a drastic action.

One might argue that all the two men have to do is talk to the government, and they can get back in. But even ignoring Kent v. Dulles, this ignores the citizens' rights against self-incrimination, codified in the fifth amendment. What, under such a logic, would prevent the government from precluding re-entry to any citizen until they had signed a loyalty oath, discussed their sexual behavior in great detail, or any other arbitrary condition required by government bureaucrats? Again, this is merely a sophisticated way of arguing that the government should have the power to strip citizenship of all meaning for those citizens that some government bureaucrat decides he just doesn't like.

One could argue that the citizens are not being denied entry into the US, just the privilege of flying in US airspace. That would be true, if it were not for the fact that the government has arrangements with Mexico and Canada to honor the US government's no-fly list. Thus, the citizen could not fly to an adjacent country, then drive into the US to assert his rights.

One could, finally, argue that "these guys are terrorists!!!" And that is the "argument" I have seen most often. I am willing to grant that argument: these guys may very well be terrorists, or supporters or enablers of terrorists; there is a lot of circumstantial evidence to that effect and the government's designation of these men for the no-fly list is not without basis from what is currently known of their past and behavior. That does not give the government the power to deny them their rights as citizens. The proper behavior here is to charge them, bring them to the US (or allow them to re-enter), arrest them and try them.

The government's actions in this case are wrong. The ACLU is right. I cannot believe I am defending the ACLU.

Posted by jeff at August 30, 2006 1:11 PM

Trackback Pings

TrackBack URL for this entry:


Thank you. This is one of just a few blogs that are taking a reasoned stance on this issue. This is clearly a gross abuse of power and I am doing my best to raise awareness of it. I will cite this entry frequently. Thanks again.

Posted by: Jeff Molby at August 30, 2006 1:01 PM

As much as I hate to agree with the ACLU on _ANYTHING_... you're right on this one.

A short while back, I had a discussion going with a bunch of gun owners on what level of restriction is acceptable for CCW. My arguments mirrored your own. If a person is a citizen of the USA, the only constitutional method of denying them their rights is through due process. If the second amendment recognizes a RIGHT to keep and bear arms, then there should be no required training, licensing, or any other infringment on that right without due process. An stupid as it would be to carry a weapon without proper training, legislation requiring it is unquestionably unconstitutional.

Posted by: chris at August 30, 2006 3:49 PM

You are absolutely right on this one. I can't believe people aren't just saying - oh doh. Of course he's right!

Posted by: Terri at August 30, 2006 10:51 PM