Fighting terrorism at home: Immigration Issues vs. what to do with groups that are here legally

The London bombings have folks worked up about what to do about people who come into a country and end up terrorizing its citizens. What can (or should) we do as far as immigration policy? What can (or should) we do as far as groups that are already here?

The following (taken from a Cal Thomas article) is typical of the conservative response:

" In view of these beliefs and repeated acts of terror, the incitements against all things Western, Jewish and Christian in who knows how many mosques in Britain and the U.S., the teaching of seditious ideas in radical Islamic schools funded by our "friends" the Saudis, and the refusal of most Muslim communities to assimilate and learn the language, history and practices of their host countries, why do Britain and the United States continue to allow such things to exist within their borders? Unless we are prepared to accept continued terrorist attacks as "normal" because of some sick understanding of tolerance and pluralism, we had better do whatever is necessary to root out these radicals and to forbid any more from entering our countries."

Well, I don't think that we should welcome those who would kill us either, though I am curious how he obtains the "fact" that most Muslims don't assimilate well. Hopefully, this is not a condemnation of them not becoming Christians.

But what are the issues of dealing with people who want to immigrate here, and what are the issues of dealing with those already here (whether legally, illegally, or as citizens).

I found a good piece of writing on one of the comments to an article at Redstate.org and have received permission to post it here: (author is known as Katherina)

"This is just too important a topic for people not to talk about across the political spectrum, even if we WILL annoy each other to death.As far as the legal questions here discussed: this is based on just one semester of immigration law, one of refugee law, one semester of foreign affairs law, as well as the standard Con Law class. Some of that knowledge is fairly stale. So take it with a grain of salt.

--There is a crucial difference between immigration law, which is about whether you get to be here, and alienage law, which concerns what rights you have when you are here.

--The Courts have held that there is no right to be here. Congress and the President could end immigration legal immigration, asylum, and all the rest tomorrow should they so choose. They could also summarily deport many people who are here. It would not violate the Constitution. It would violate treaty obligations that the United States has as a matter of international law, but as a matter of domestic law, if there is a conflict between a statute and a treaty the last in time governs.

--Because no one has the right to come here and because of its deference in the area of foreign affairs, the Supreme Court has thus rejected, e.g. equal protection challenges to the differing treatment of Haitian and Cuban refugees.

--But, immigrants inside the United States, whether they are legal or illegal, do have Constitutional rights. Most of the crucial individual rights clauses in the Constitution refer to a "person" rather than a "citizen", or they speak of things that Congress and the states "shall not do" regardless of who is targeted. So people who are here, legally or illegally, have a right not be imprisoned for practicing their religion or writing newspapers, are covered by the due process clause, get all the protections of any other person if accused of a crime, etc. etc.

--So, you get a bit of a paradox: they don't have a right to stay. But, to the extent that Congress chooses to admit them, they have a right to due process to see that the laws are applied fairly to them.

--As far as the equal protection challenges within the United States goes, the Supreme Court tends to be pretty deferential to classifications made based on immigration status by Congress, but not to classifications based on immigration status by the states.

Ok, on to the matter of profiling:

--Tac, the argument that profiling is no more constitutionally problematic under the Equal Protection clause than you not getting welfare benefits and social security right now, does not pass the laugh test from a Con Law point of view. The Equal Protection clause has always been understood to apply with special force to discrimination on the basis of race and nationality. Religion too, though those cases tend to be decided on the Free Exercise clause rather than the Equal Protection clause. For over 50 years the courts have used what they call "strict scrutiny": to pass Constitutional muster, a law that treats people differently on the basis of race or national origin must be NECESSARY to protect a COMPELLING government interest.

--This was the test the court used in Korematsu, when it upheld the evacuation orders. But Korematsu is considered a shameful outlier in the Court's equal protection case law.

--It seems to me that as far as racial and crude religious profiling (all Muslims) as a counter terrorism goes, in most situations I think it passes the "compelling interest" part of the test and fails the "necessary" part of the test. Simply stopping people on the basis of their skin color is lousy, lazy police work. It might be necessary in an emergency situation like the weeks right after 9/11, but by now we ought to have better ways of profiling people based on a variety of behavioral and demographic information.

--It is dumb to rely only on profiling in security measures and wave those who don't fit the profile through, for two reasons:(1) the terrorists generally respond by recruiting those who don't fit the profile (2) it breeds resentment and alienation for Muslims to get strip searched at the airport while their neighbors are waved through. I am willing to arrive at the airport earlier so that we do not have to choose between safety and a pretty clear 14th amendment violation.(3) and, of course, profiling is not restricted to the airports. Are we going to start instituting special checkpoints for Muslims to ride the subway?

--Of course, racial profiling does in fact happen, despite Norman Mineta's opposition to it. The DOJ's guideline has been to say that profiling may be permitted in terrorism cases for national security reasons, but of course people shouldn't violate the 14th amendment. This handy little disclaimer clause means that it's pretty hard to make out a 14th amendment challenge, while probably having little if any effect in preventing conduct that violates equal protection in practice because it's so bloody vague.

So much for the legal issues. I'll discuss the moral & political aspects in another post. "