Equality in the War on Terror

Abstract

Today, much public attention and litigation in the wake of the government's response to the September 11, 2001 attacks centers on one or another claims about the government's substantive illegality (such as claims based on the Due Process Clause). This is a mistake. Instead of focusing on the ultimate individual liberty questions, challenges should first focus on equality. Since the terrorist attacks, the government has repeatedly singled out aliens for special disfavor. For example, the Military Commissions Act blatantly discriminates against aliens - shunting the 20 million green-card holders and 5 billion people across the planet into a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment's equality guarantee, such legislation has never been placed in the United States Code. The equality challenges are the next big thing in the war on terror. While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when deciding whether someone can be put before a tribunal with the power to dispense the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out only powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution's guarantee of equal protection, it also eliminates the legislation from the zone of deference traditionally due to the political branches.