Men in Black (30 page)

4.
Yilu Zhao, “Wave of Pupils Lacking English Strains Schools,”
New York Times
, August 5, 2002.

5.
Ibid.

6.
Stephen Dinan, “States pay $7. 4 billion to educate illegals; Report notes drain on U.S. children,”
Washington Times
, August 21, 2003.

7.
Ibid.

8.
Jerry Seper, “Report ties health care struggles to immigration; Increase in uninsured aliens seen straining hospital budgets,”
Washington Times
, February 26, 2004.

9.
Immigration Laws 1700–1800, “Colonial Period: Legal Authority over Immigration.” Available at oriole.umd.edu.

10.
Ibid.

11.
Ibid.

12.
Immigration and naturalization are the two main classifications of law in this regard. Immigration refers to emigrants from other countries entering the United States. Naturalization concerns the process by which immigrants become citizens of the United States.

13.
U.S. Constitution Amendment I, § 814. Joseph Story,
Commentaries on the Constitution of the United States
, “Power Over Naturalization and Bankruptcy,” § 1098.

15.
The term “Alien and Sedition Acts” is commonly used as shorthand for three acts of Congress: the Naturalization Act of 1798, the Aliens Act of 1798, and the Alien Enemy Act of 1798.

16.
Ibid.

17.
Immigration Act of 1875.

18.
Ibid. Coolies were bonded workers from China, India, and other nations in Asia.

19.
Naturalization Act of 1855.

20.
8 U.S.C. § 1101 (2000).

21.
8 U.S.C. § 1103 (2000).

22.
U.S. Constitution Amendment V. The Fifth Amendment delineated the limitations on the federal government’s power over individuals. In addition to requiring that no person can be deprived of “life, liberty, or property” without due process of law, it provides for the use of a grand jury to indict someone and prohibits double jeopardy and self-incrimination. The Fourteenth Amendment imposes similar restrictions on the authority of state governments.

23.
U.S. Constitution Amendment XIV. The Fourteenth Amendment, in particular, was written to ensure that state governments did not treat individuals, or groups of individuals, unequally under the law, or that individuals or groups were not treated differently solely because of their race or ethnic heritage. It was not written to guarantee identical treatment for everyone everywhere, nor to provide for equal outcomes under the law for everyone.

24.
Graham v. Richardson
, 403 U.S. 365 (1971).

25.
The
Graham
decision also cited other cases in which the premise of no distinction between benefits or privileges and rights should be made. These cases include
Sherbert v. Verner
, 374 U.S. 398 (1963),
Shapiro v. Thompson
, 394 U.S. 627 (1969),
Goldberg v. Kelly
, 397 U.S. 254 (1970), and
Bell v. Burson
, 402 U.S. 535 (1971).

26.
Heim v. McCall
, 239 U.S. 175, 188 (1915).

27.
Ibid., 191.

28.
Ohio ex rel. v. Clarke Deckebach Auditor
, 274 U.S. 392 (1927).

29.
Ibid., 395.

30.
Ibid., 397.

31.
Ibid.

32.
Ibid., 367.

33.
Graham v. Richardson
, 403 U.S. 367.

34.
Ibid.

35.
Ibid., 368.

36.
Ibid., 376.

37.
Ibid., 372.

38.
1866 Civil Rights Act, 14 Stat. 27–30, Section 1. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding,”

39.
Hampton v. Mow Sun Wong
, 426 U.S. 88 (1976).

40.
In 1971, the Post Office, which was a federal agency, was semi-privatized and became the U.S. Postal Service.

41.
In 1979, the federal department of Health, Education, and Welfare was reorganized into two agencies, the Department of Education and the Department of Health and Human Services.

42.
Hampton v. Mow Sun Wong
, 426 U.S. at 102-03.

43.
Ibid., 106.

44.
Sugarman v. Dougall
, 413 U.S. 634 (1973).

45.
Ibid., 637. The four employees were among approximately 450 employees who actually worked for private sector nonprofit organizations that received funding through a federal agency, the United States Office of Economic Opportunity. In 1970, federal funding for those organizations was stopped and the nonprofits absorbed by a New York City agency, the Manpower Career and Development Agency (MCDA). When the jobs were moved under the city, the state’s civil service requirements became applicable and the noncitizen employees were dismissed.

46.
Ibid.

47.
Ibid., 639–40.

48.
Ibid., 651.

49.
Plyler v. Doe
, 457 U.S. 202 (1982).

50.
Ibid., 205.

51.
Ibid., 210.

52.
Ibid., 220.

53.
Ibid., 221.

54.
Ibid., 222.

55.
Ibid., 229.

56.
Ibid., 242–43.

57.
In Re Griffiths
, 413 U.S. 717 (1973).

58.
Nyquist v. Mauclet
, 432 U.S. 1 (1977).

Chapter Eight: Al Qaeda Gets a Lawyer

1.
Ronald Reagan, Remarks at a meeting with members of the American Business Conference, The White House, April 15, 1986.
The Quotable Ronald Reagan
(Washington, D.C.: Regnery, 1998).

2.
An illegal or unlawful combatant, who is not protected by the laws of war, is an individual waging war who does not comply with any of the following requirements, according to the Second Hague Convention of 1899 and the Third Geneva Convention: (1) In uniform: Wear distinctive clothing making them recognizable as soldiers from a distance; (2) Openly bearing arms: Carrying guns or small arms and not concealing them; (3) Under officers: Obedient to a chain of command ending in a political leader or government; (4) Fighting according to the laws of war: Not committing atrocities or crimes, not deliberately attacking civilians or engaging in terrorism. 6 U.S.T. 3516 (1949).

3.
Remarks by Alberto R. Gonzales, counsel to the president, before the American Bar Association Standing Committee on Law and National Security, February 24, 2004.

4.
William J. Haynes II, general counsel to the Department of Defense, “Enemy Combatants.” Available at www.cfr.org/publication.php?id=5312, citing
Ex Parte Quirin
, 317 U.S. 37 (1942),
Colepaugh v. Looney
, 235 F.2d. 429, 432 (10th Circuit 1956),
In re Territo
, 156 F.2d. 142, 145 (9th Circuit 1946),
Hamdi v. Rumsfeld
, 296 F.3d 278, 281, 283 (4th Circuit 2002). This decision was subsequently modified by the Supreme Court in
Hamdi v. Rumsfeld
, 542 U.S. ___, 124 S.Ct. 2633 (2004).

5.
Rasul v. Bush
, 542 U.S. ___, 124 S. Ct. 2686 (2004), Brief for the Respondent President George W. Bush, 5–6.

6.
Ibid. Brief for the Respondent George W. Bush, 6.

7.
Ibid.

8.
Ibid., 7.

9.
Ibid.

10.
Ibid.

11.
Ibid.

12.
Rasul v. Bush
, 542 U.S. ___, 124 S. Ct. 2686, 2004 U.S. LEXIS 4760 at *1 (2004). The Supreme Court also decided the case
Rumsfeld v. Padilla
, 542 U.S. ___, 124 S. Ct. 2711 (2004).
Padilla
differed from
Rasul
and
Hamdi
in that it dealt with a case in which a U.S. citizen was apprehended on U.S. soil and alleged to be actively planning terrorist activities.

13.
Hamdi v. Rumsfeld
, 542 U.S. ___, 124 S. Ct. 2633, 2004 U.S. LEXIS 4761 at *1(2004). It’s important to note that before the Supreme Court heard the case, the Fourth Circuit ruled that while Hamdi could seek judicial review of his detention, he was not entitled to challenge the government’s evidence. It was enough that a legally valid basis for his detention was provided to the court.
Hamdi v. Rumsfeld
, 296 F.3d 278 (4th Circuit 2002).

14.
Ibid., *6.

15.
Ibid., *10.

16.
Ibid., *8–*9.

17.
Ibid., *6.

18.
Congress has the power to declare war. U.S. Constitution, Article I, § 8. However, the Constitution provides no guidance about the form of such a declaration. There are no required phrases or terms. On September 18, 2001, Congress passed a joint resolution authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” Pub. L. No 107–40, § 2(a), 115 Stat. 224 (2001). This suffices as congressional authorization for war.

19.
Hamdi
, 2004 U.S. LEXIS 4761, *20.

20.
Ibid., *21.

21.
Ibid., *26.

22.
Ibid., *46. Hamdi, was in fact, permitted to file a writ of habeas corpus and did so. The government, however, argued that he did not have a right to be represented by counsel; it feared that Hamdi would cease to be a source for wartime intelligence.

23.
Ibid., *104, citing
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.
, 333 U.S. 103, 111 (1948).

24.
Ibid., *127.

25.
In October 2004, Hamdi was returned to Saudi Arabia, required to renounce his American citizenship, and required to notify Saudi officials if he became aware of any terrorist activities. Associated Press, “Hamdi Returns to Saudi Arabia,” October 11, 2004.

26.
Rasul
, 2004 U.S. LEXIS 4760, *1.

27.
Ibid., *9.

28.
Ibid., *1.

29.
Johnson v. Eisentrager
, 339 U.S. 763 (1950).

30.
Robert Alt, “Dangerous Decision,”
National Review Online
, June 29, 2004, citing
Eisentrager
, 339 U.S., 779.

31.
Eisentrager
, 339 U.S., 766–67.

32.
Ibid., 765.

33.
Ibid., 768.

34.
Ibid., 778.

35.
Ibid., 771–72.

36.
Rasul
, 2004 LEXIS 4760, *18-*19.

37.
Ibid., *13–*14 (citing 28 U.S.C. § 2241 (2004)).