How should we think about the rights of non-U.S. citizens?

'Roundtable Ethics' features University faculty members answering ethical and moral questions solicited from the community. The questions may range from personal to academic in nature. The 'Prince' hopes that the column will spark campus dialogue.

This week's columnist, Christopher Eisgruber, is the Laurance S. Rockefeller Professor of Public Affairs and director of the Program in Law and Public Affairs.

Many anti-terrorism measures have targeted non-citizens within the United States. How should we think about the rights of non-citizens who live in this country? Do they have the same rights as everybody else, or is it fair to treat them differently?

When we think about the rights of non-citizens, our starting point should be the equality of persons. That principle is fundamental to justice and our nation. It commits us to believe that, in general, non-citizens who reside in the United States should have the same basic rights as citizens.

The text of the Constitution reflects this commitment. The Constitution's key provisions speak in terms of the rights of "persons," not "citizens." For example, the Due Process Clauses of the Fifth and Fourteenth Amendments provide that no person shall be deprived of life, liberty or property without due process of law.

Courts have correctly held that non-citizens are fully entitled to basic constitutional protections, such as the freedom of speech and the right to a fair trial. They have also held that the Equal Protection Clause prohibits discrimination on the basis of "alienage" — that is, it prevents the government from treating non-citizens less well than citizens.

Even some of our most egregious wartime restrictions on civil liberties have, in a backhanded way, respected the equality of citizens and non-citizens. When the United States confined Japanese-Americans in camps during World War II, it interned American citizens along with Japanese nationals. When Franklin Roosevelt au-thorized the use of military tribunals to try Nazi saboteurs, his order applied to citizens as well as non-citizens.

At first, the Bush administration's policy regarding military detentions seemed to be a counterexample to this pattern. When the administration authorized the creation of military tribunals in November 2001, it said the tribunals could try only non-citizens. Citizens, even if suspected of terrorism, would be entitled to civilian trials.

Last spring, the administration altered its policy. It arrested Jose Padilla, an American citizen, at O'Hare Airport in Chicago and accused him of plotting terrorist acts. The government has claimed that Padilla is an "enemy combatant" who is not entitled to legal process of any kind, even though he is an American citizen. The government has accordingly held him without trial.

This development should disturb but not surprise us. When we cease to care about the rights of non-citizens, we have ceased in some measure to care about the equality of persons. When that happens, everybody's rights are at risk.

Yet, though equality should be our baseline, we must acknowledge one huge difference between citizens and non-citizens. Citizens have the right to remain in the United States, but non-citizens are subject to deportation. Non-citizens may be deported even if they are generally law-abiding and came to the United States legally. For example, they be deported because they committed some minor criminal offense or because they failed to make a timely change to their immigration status. Defendants have few procedural rights in deportation hearings, and, for some, deportation may be as bad, or worse, than a long jail term.

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The U.S.A. Patriot Act expanded the government's power to detain and deport immigrants, and the administration has moved aggressively to exploit these new powers. These provisions raise some of the most difficult ethical questions posed by America's response to terrorism.

On the one hand, the government must have the power to deport non-citizens who are here unlawfully. It would be impractical and unwise to demand that the government adhere to the demanding standards of the criminal justice system when making deportation decisions.

On the other hand, the inherent flexibility of immigration procedures creates the possibility that the government will wield its power abusively, unchecked by the restrictions that apply to criminal proceedings.

There are no easy answers to questions about fairness in immigration law, but there are some principles that we should insist upon. First, the government ought not to use deportation proceedings as a pretext to detain non-citizens for lengthy periods.

Second, when the government does detain non-citizens, it should treat them with dignity. It should not, for example, confine them in degrading conditions or subject them to interrogative methods that would be unlawful if applied to criminal suspects.

Third, to the greatest extent possible, deportation proceedings should be open to the press. If the government wields power in secret, the public cannot limit its abuse. It is possible that some deportation hearings might have to be closed to the public for security reasons, but the government should have to establish this necessity on a case-by-case basis.

The Bush administration has not always respected these principles. The administration has egregiously disregarded the last principle and hidden deportation proceedings under a veil of secrecy. Its policy has been challenged as unconstitutional. Although one federal appellate court denied the challenge, another found the policy unlawful, saying, "A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution."

Regardless of whether the administration has overstepped its discretion or simply pushed it to the outer limit, those of us lucky enough to be American citizens must insist upon the fair treatment of our non-citizen neighbors. Ironically, in the months and years ahead, the meaning of American citizenship may depend crucially upon our willingness to stand up for the rights of non-citizens.

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