In a decision that some see as a reflection of post-Sept. 11 anxiety about foreign terrorists, the U.S. Supreme Court last week upheld a 1996 federal law that allows for the detention of legal aliens, dangerous or not, while immigration officials determine if they should be deported because of past criminal convictions.
Even after Sept. 11, which brought heightened and legitimate scrutiny of foreign nationals living here, this law goes too far. Although it applies only to resident aliens who have committed crimes, it is still a blank check for detention that does not allow courts to scrutinize whether a particular individual -- even one who has served his time and poses no danger to the public -- ought to be released on bond pending a decision on deportation.
Last week's ruling, in which five justices agreed on the central holding, concerned a lawful permanent resident of the United States who came to this country from Korea at the age of 6 and was arrested at 18 for burglary and petty theft. Even after he served his sentence he was denied bail while federal authorities determined whether he was deportable. But the decision also affects 75,000 other detainees.
Writing for the majority, Chief Justice William Rehnquist quoted a 1976 ruling acknowledging that "Congress regularly makes rules that would be unacceptable if applied to citizens." But, as Justice David H. Souter pointed out in dissent, foreigners who have gained permanent-resident status have much in common legally with citizens when it comes to both rights and responsibilities.
"This case is not about the national government's undisputed power to detain aliens in order to prevent flight or to prevent danger to the community," Justice Souter wrote. "The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it."
In other nations, the chief justice's comment about a distinction between citizens and noncitizens would seem self-evident. But American courts and the U.S. Constitution long have protected not just citizens but all "persons" against arbitrary treatment by government. Even after Sept. 11, that tradition is a noble one -- and it can be honored without putting the public in danger.
Had the dissenters prevailed, aliens with a criminal record could still be detained if they posed a danger to the public or posed a risk of flight. But there would have to be an individual determination of whether that was the case.
By upholding a blanket ban on bail, the court has made America just a little less free.
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