9.11 and the Equal Protection of Law

James RIM

Perspectives, Vol. 3, No. 3

As a native New Yorker, I was shocked to see two towering symbols of my beloved city and, more importantly, the lives of thousands of my fellow New Yorkers, destroyed this past September 11. On that day, I witnessed the Twin Towers smoldering in flames as I was commuting to work in the morning, and by the time I was finally able to leave my Manhattan office, the towers were no more. Of course, the memorable events did not end on September 11. The days following have included an evacuation of my office due to a bomb threat, numerous reports of other possible terrorist attacks, the anthrax scare across the country, and the military campaign in Afghanistan. I, like my fellow Americans, have felt the wide range of emotions triggered by these unfathomable events, including anger, fear, concern, and sadness. Much attention has been focused on the tremendous obstacles the United States and its allies face in this "War on Terror" across the globe, which many believe must be won at all cost. Indeed, preserving the integrity of the state and safety of its citizens a fundamental duty of any legitimate government. In waging this war, the U.S. government has undertaken many forceful measures, including targeting Middle-Eastern and Muslim men in their terror investigation, raising the possibility of employing military tribunals for non-U.S. citizens, and clamping down on suspected terrorist financial networks. These measures, and the possibility of even tighter measures, have prompted many to voice their concerns. The most widely expressed of these concerns has been the sentiment that America's most cherished civil liberties may be weakened by America's new war. This short commentary addresses America's new war from a constitutional perspective, focusing on the constitutional guarantee of equal protection under the law.

The War on Terror began as a reflexive reaction to the brutal events of September 11, and America's goals have been stated as the destruction of Bin Laden's terrorist network, bringing the responsible parties to justice, and thwarting future terrorist attacks against the U.S. While there is little dispute over these noble goals, it has become increasingly apparent that significant costs will be incurred in fighting this war. While America, perhaps the most economically blessed nation in the history of human-kind, can likely manage the financial costs of waging this war, the costs on American society, values, and history may be far more significant. America has been held by many in the world as a beacon of civil liberties and a model of stable constitutional system of government. One constitutional principal that has guided the development of these values is equal protection under the law. To advance the cause of equality of citizens under the law, America has endured a civil war, the struggle for universal suffrage, and the civil rights movement. At this critical moment of American history, the lessons from America's struggle for equal rights should guide the policies pursued in this new war, lest our constitutional liberties be counted among the casualties of this war.

The Fourteenth Amendment to the U.S. constitution, which was adopted just after the Civil War in 1868, states that state governments may not "deny to any person within its jurisdiction the equal protection of the law". Under the constitutional jurisprudence that has developed under the Fourteenth and the Fifth Amendments, both federal and state government laws and actions based on racial classification are deemed suspect and must meet the "strict scrutiny" test in order to be constitutionally valid. Under the "strict scrutiny" test, any such government law or action must be necessary for a compelling government interest. Laws and actions that intentionally discriminate against a racial or ethnic minority generally fail to meet this difficult constitutional standard. Indeed, two cases that arose during World War II were the last cases in which the U.S. Supreme Court failed to strike down such laws. Persons of Japanese ancestry, including American citizens, were removed from their homes during World War II under a U.S. military order for the purported purpose of preventing espionage and sabotage. This deportation order was upheld by the U.S. Supreme Court in two cases, in which the court recognized that all racially based legal restrictions are immediately suspect. See Korematsu v. U.S., 323 U.S. 214 (1944); Hirabayashi v. U.S., 320 U.S. 81 (1943). The Court based its decision on the "gravest imminent danger to the public safety" upon which the military order was purportedly based. The U.S. Supreme Court of 1944 refused to acknowledge the grave affront to the rights of those interned, instead stating that they were dealing with "nothing but an exclusion order".

While these cases have been widely criticized in the ensuing decades from many fronts, the U.S. Supreme Court has never expressly overruled the holdings in these cases. Nevertheless, the equal protection clause has been given increasingly greater weight by the Court. From Brown v. Board of Education, 347 U.S. 483 (1954), which overruled the infamous "separate but equal" doctrine adopted by the Court in 1896, to cases addressing discrimination based on gender, alienage, and legitimacy, as well as the more recent cases on affirmative action, the U.S. Supreme Court has expanded the scope of protection available under the equal protection clause. In addition, American society and government leaders have since acknowledged the grave harm that was inflicted upon persons of Japanese ancestry during World War II. On August 10, 1988, President Ronald Reagan signed the Civil Liberties Act of 1988. The Act provided a Presidential apology and symbolic payment of $20,000 to the internees, evacuees, and persons of Japanese ancestry who lost liberty or property because of discriminatory action by the federal government during World War II. Hence, while the legal holdings Korematsu and Hirabayashi have not been expressly overruled, changes in both American constitutional jurisprudence and American society indicate that such internment would be unconstitutional and unacceptable in the present America.

Of course, that was all before September 11. Since the day of the terrorist attacks, many measures targeting Middle-Eastern and Muslim men have been employed as part of this War on Terror. Currently, discriminatory treatment may be most readily seen in "racial profiling" employed by law enforcement agencies. There have been numerous reports of persons belonging to these groups being disproportionately questioned and detained by those investigating the September 11 attacks. In Michigan and Oregon, local police departments have refused to participate in the federal government's effort to conduct "voluntary" interviews of Middle-Eastern men in those areas. "Random" airport checks invariably target this same group. Financial assets of charities and other organizations with financial links to the Middle-East have been frozen without a prior hearing. While Attorney General John Ashcroft has stated that these measures are being planned and implemented in a manner that is consistent with constitutionally afforded protections, many have expressed urgent concerns about these and other potential measures. A critical question, though, is whether U.S. courts will find these measures constitutional in light of the developments since Korematsu was decided in 1944.

The first step in the equal protection clause analysis is determining whether a compelling interest exists for the government's unequal treatment of its citizens. In this regard, there are many parallels between the current situation and America during the early 1940's. Then as now, America has been attacked on its own soil by foreign aggressors leaving thousand dead, and the impact of the attack has been felt deep and wide in the country. Much concern exists now, rightly or not, about the potential threat from the Middle-Eastern and Muslim populations in the country, as the country likely had about its neighbors of Japanese ancestry during World War II. Indeed, many observers of the present crisis have noted that America has not faced such a grave threat since the Japanese attack of Pearl Harbor and that America's determination to overcome a threat against the nation has been unmatched since that time. It is, therefore, highly likely that any court would find that the U.S. government has a compelling interest of the highest degree in dealing with the current terrorist threat.

The next step in the equal protection clause analysis is whether the steps the government has taken in furtherance of the compelling interest are necessary. In other words, has the government tailored its actions so that they are least likely to infringe upon the equal protection rights of its citizens? It is this step of the equal protection clause analysis that the U.S. Supreme Court appeared to gloss over in its World War II Japanese interment decisions. One need not ponder long to imagine many less intrusive measures the U.S. government could have employed to protect the national security of the U.S. without resorting to the drastic measure of interning thousands of innocent civilians in camps. In contrast, the measures the U.S. government has employed in the current War on Terror are comparatively much less intrusive. Thus far, the government has limited its discriminatory actions to questioning Middle-Eastern and Muslim men and detaining those with potential connections to the terror investigation. Aside from the burdens imposed by the terror investigation, this targeted group has not had to relinquish any of its fundamental due process rights to life, liberty, and property. Furthermore, a less discriminatory and intrusive measure that will permit effective protection of the nation is not readily apparent. Hence, a U.S. court will likely find that the current measures employed by the U.S. government are narrowly tailored to address the grave threat against the nation.

Because of the compelling nature of the need to protect U.S. citizens against additional terrorist attacks and the limited nature of the discriminatory actions by the government, U.S. courts are likely to find that the government's current actions comport with the constitutional requirements of the equal protection clause. While current security measures may survive constitutional challenges, if the War on Terror expands in scope, the U.S. government will likely implement even tougher measures, many of which are likely to target Middle-Eastern and Muslim persons disproportionately. The U.S. government should continue to be mindful of the constitutional guarantee of equal protection while developing effective measures to combat the terrorist threat. I am hopeful that America will draw from its history of struggle for equality to prevent the War on Terror from destroying the very liberties and ideals that the War is meant to preserve.

(The author is an attorney with Davis Polk & Wardwell in New York.)