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Enemy Aliens by David Cole (New Press, 256 pages, $24.95) After simultaneous acts of terrorism, an aggressive attorney general launches a series of raids aimed at deporting untrustworthy foreigners. Not that those detained were necessarily prime suspects, but the law made locking them up easy. Sound familiar? Actually, the year was 1919 and after bombs went off in eight cities, law enforcement’s targets were Russian socialists, and the attorney general was A. Mitchell Palmer. The jury is still out on whether John Ashcroft will earn a place in the justice hall of infamy alongside that particular predecessor or the young Justice Department lawyer, J. Edgar Hoover, who helped him carry out the raids. But in his new book, Enemy Aliens, Georgetown University Law Center professor David Cole contends that not much has changed in the way the Justice Department responds to crises: target the immigrants first. And Cole argues that Americans shouldn’t just brush off such tactics as merely hurting a few foreigners. History suggests that what the government does to foreigners today paves the way for what happens to the rest of us tomorrow. To bolster his arguments, Cole draws upon his own long history of representing immigrants targeted as threats to national security that began long before Sept. 11, 2001. In his first trial nearly 20 years ago, Cole’s client was a 50-year-old poet and grandmother who faced deportation for advocating “world communism.” The lesson he learned: When the government uses the immigration process to target a terrorist, you can be certain it doesn’t have any evidence the individual engaged in any terrorist acts. The government wouldn’t just ship a real terrorist abroad. Cole works backward, first detailing the post-Sept. 11 excesses � the abuse of immigration law, material witness statutes, and the “enemy combatant” designation. Then he shows that preventive detentions and guilt by association are nothing new � the targets have just shifted to Middle Easterners from the usual suspects of the past: British loyalists, anarchists, communists, and Japanese immigrants. This tour of the dark side of American history begins with the Enemy Alien Act, the forgotten cousin of the Alien and Sedition Acts of 1798. To this day still, this 18th century act allows the president to detain or expel any citizen of a country with which the United States is at war. During World War II, the same logic was extended to include Japanese-American citizens. When the war ended, the government continued to secretly make internment plans. Cole suggests that decades of targeting foreign nationals for their alleged subversive political associations begat the abuses of the McCarthy era. It started when the Immigration Act of 1903 barred entry to advocates of overthrowing the government after President William McKinley’s assassination. Then came punishment of political dissent by citizens during World War I. The pattern has already repeated itself since Sept. 11, Cole charges. This time, the distinction between citizens and noncitizens blurred even faster. At first, the government detained only foreigners as enemy combatants while the so-called American Taliban, John Walker Lindh, was prosecuted in civil court. Yet within months, American citizens Yasser Hamdi and Jose Padilla were thrown in the brig without due process � a decision no doubt made easier by the fact that neither man is white and that prosecuting Lindh in criminal court proved less than tidy. In all, Cole estimates some 5,000 people have been detained for various immigration law violations and another 650 detained as enemy combatants either at Guantanamo Bay or in military brigs (since Cole completed his book, a third U.S. citizen, Ali Saleh Kahlah al-Marri, has been relegated to the military jail near Charleston, S.C.) Cole highlights just how surreal are the detentions of American citizens as enemy combatants. Since the government has barred them from communicating with their lawyers, the detainees may be unaware they have lawyers and the lawyers aren’t sure if their clients even want to challenge their detentions. So far, the detention of American citizens as enemy combatants hasn’t sparked much public outrage. What little public backlash has developed over civil liberties is directed at the much-vilified but little understood USA Patriot Act and the exaggerated specter of Big Brother surveillance. We are far more concerned about measures that have the potential to impact the vast majority � TIPS, or total information awareness � than the much more startling incursions against a small minority. In contrast, Cole’s major concern about the Patriot Act is how it defines terrorism in ways that create new double standards for foreign nationals. “It makes foreign nationals deportable for wholly innocent associational activity, excludable for pure speech, and subject to incarceration on the attorney general’s say-so without a finding that they pose a danger or a flight risk,” Cole writes. The Patriot II act would have gone even further � stripping of citizenship those who support even the lawful activities of organizations deemed terrorist � including even lawful permanent residents and expatriated U.S. citizens. The hardest question is what protections we should provide immigrants. Cole argues that immigrants are entitled to the same due process protections as citizens. Not every constitutional law professor agrees with his assessment. It’s a question worth more attention than it currently receives. As is the issue of whether we should be invoking wartime precedents that give government special powers over “enemy aliens” in a war of indeterminate length waged against an unknown enemy. The notion that “what happens to them will happen to us” isn’t the only criticism Cole levels against post-Sept. 11 law enforcement tactics. He also argues that forcing immigrants into interviews is counterproductive as a law enforcement tool, alienating those the government needs cooperation from most. Ethnic profiling is equally ineffective, making law enforcement more likely to miss dangerous persons who don’t fit the profile. Are we any safer for all these measures? Ashcroft insisted that was the case during his tour of America. A list of impressive statistics rolled off the teleprompter and his tongue, including terrorist cells dismantled in five states, criminal charges against 262 individuals, and 145 convictions or guilty pleas. Cole insists the benefits are outweighed by the high price, alienating immigrant communities whose cooperation is vital. Of course, it’s possible that these tactics proved useful. But the Bush administration’s penchant for secrecy regarding even the most seemingly innocuous statistics makes any judgment difficult to ascertain. For example, one of the most vilified provisions of the Patriot Act gives agents access to library and book store records. The Justice Department’s refusal to release information drew the scorn of librarians � not typically the most militant bunch. After mocking them as “hysterical,” Ashcroft finally released data that showed the government hadn’t accessed such information a single time. Enemy Aliens is least persuasive when Cole suggests alternatives to how the United States should fight the war on terror. It’s not exactly an easy task. Better information-sharing and more concrete barriers probably aren’t sufficient. But the administration can be rightly called to task for using the backdrop of Sept. 11 to justify much broader expansions of law enforcement powers that target citizens and non-citizens alike. One day before the second anniversary of the attacks, President George W. Bush called for an expansion of the Patriot Act, including greater access to administrative subpoenas. Even more recently, Ashcroft injected directions to prosecutors to cut down on plea bargains during one of his “life and liberty” stump speeches. Ironically, an attorney general who has railed against discretion being exercised by judges in sentencing and prosecutors in plea bargaining has no problem with the discretion given the Justice Department to enforce immigration laws and use them as the basis for pretextual detentions. Discretion, it seems, is only bad if you’re not the one exercising it. Seth Stern is a staff writer at The Christian Science Monitor

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