The district court in Roudnahal v. Ridge considered a consti- tutional challenge to the government’s decision to subject aliens from a target set of countries to heightened scrutiny.3″ In November 2002, Attorney General Ashcroft issued a notice in the Federal Register requiring all non-immigrant aliens from a list of countries to register with the local Immigration and Naturaliza- tion Service (INS) office.”1 Five citizens from the targeted nations argued in a federal district court that this special registra- tion program was a violation of constitutional, statutory, and reg- ulatory law. The court held that “immigration policies are ‘intricately interwoven’ with foreign affairs and ‘are so exclusively entrusted to the political branches of government as to be largely immune fronjudicial inquiry or interference.’- 3 2 As a result, the court upheld the use of a rational basis test to determine the validity of singling out specific countries: “So long as such distinc- tions are not wholly irrational they must be sustained [against due process and equal protection challenges].”” Looking at the purpose of the special registration program, the court deter- mined that the executive branch, entrusted to shape national security, had a rational basis for singling out non-immigrant aliens from these targeted countries. More specifically, the court found that in light of military operations overseas and the contin- uing terrorist threats at home, targeting nonimmigrant aliens from Iran, Iraq, Libya, Sudan, and Syria, among others, was rational.
In an earlier case, Narenji v. Civiletti, the District of Columbia Circuit Court of Appeals held constitutional a regulation that required all alien post-secondary school students who were natives or citizens of Iran to provide the INS information on their current residence and maintenance of their nonimmigrant status.3 4 The court held: “Distinctions on the basis of nationality may be drawn in the immigration field by Congress or the Execu- tive. So long as such distinctions are not wholly irrational they
29. Malek-Marzban, 653 F.2d at 116. 30. 310 F. Supp. 2d 884 (N.D. Ohio 2003). 31. Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg.
52,584 (Aug. 12, 2002). 32. Roudnahal, 310 F. Supp. 2d at 892 (citing Harisiades v. Shaughnessy,
342 U.S. 580, 588 (1952)). 33. Id. (citing Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1980)). 34. 617 F.2d 745 (D.C. Cir. 1979).
HOMELAND SECURITY AAD CIVIL LIBERTIES
must be sustained [as against due process and equal protection challenges] .”
Even if courts were willing to entertain the argument that an executive branch list of targeted countries had a disparate impact on certain racial or ethnic groups, the Supreme Court has made it clear “that ‘[p] roof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.
‘3 6
There is no evidence that country lists are, or recently have been, used for any purpose other than to advance national security and therefore these lists do not constitute evidence of intentional discrimination.3 7
The Bush administration’s handling of the racial profiling issue is an example of how this country must approach difficult civil liberties issues with innovation. We need similarly innova- tive and constructive thinking to be applied to other questions that America must now confront, such as:
* How can we embrace the expansion of technological developments such as biometric identifiers without creat- ing a national ID card and compromising privacy?
• How can America maintain its tradition as a country that welcomes immigrants while also gaining control of our borders?
* How can we fight those conspiring to kill large numbers of our people without casting suspicion on whole communities?
America faces many challenges in a post 9/11 world; we will be effective only if ve recognize the new context in which we live and explore innovative options to address those challenges. The Hebrew scriptures referred to the men of the ancient tribe of Issachar as “men who knew the times.”3 History judges harshly those who overreact or underreact to threats in their own time. History will judge us well if we come to be known as a people who understand the significance of the times in which we live. We must also rise up to meet those challenges armed with our time- less values.
35. Id. at 747. 36. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188,
194 (2003) (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
37. See, e.g., Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 373-74 (2001) (intentional discrimination is proven by a government- sponsored pattern of discrimination).
38. 1 Chronicles 12:32.
2005]
302 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
II. THE CHALLENGE OF RE-ESTABLISHING OUR TRADITIONAL VALUES
While we must recognize that the twenty-first century brings America dangerous new challenges, we must also pay close atten- tion to the eighteenth century when our Founders laid out the principles that guide our nation.
It is natural for some to think that, for a time, the threats are so substantial that America needs to set aside or compromise cer- tain principles. One key to winning this war is to struggle to over- come this natural tendency-rather than fight fire with fire, we must go back to our roots and redouble our commitment to the Constitution, to the Bill of Rights, and to our freedoms.
The terrorists started this war in large part because they despise our way of life and the rights we believe are universal- freedom of religion, freedom of expression, freedom of press, the right to privacy, and our commitment to equal rights for women. These principles are attractive to many people around the world, and their spread is perceived as a threat to the power of those who would attack us. It is critical that we recognize that, if we allow our civil rights and civil liberties to be compromised, we will be compromising the very principles for which we are fighting. Although these principles are attractive, and their spread in recent years is seemingly inevitable, the growth of lib- erty abroad and preservation of liberty at home are by no means guaranteed. If we compromise our societal and cultural founda- tion, we will not be stronger, but weaker. As John Quincy Adams once wrote to a friend: “Individual liberty is individual power, and as the power of a community is a mass compounded of indi- vidual powers, the nation which enjoys the most freedom must necessarily be in proportion to its numbers the most powerful nation.”
39
America will win the war on terror as we live out the best of our principles, allowing people around the world to see that we take seriously the inspiring words in our founding documents. The 9/11 Commission concluded:
We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors. America and Muslim friends can agree on respect for human dignity and opportunity. To Muslim parents, ter- rorists like Bin Ladin have nothing to offer their children
39. Letter from John Quincy Adams to James Lloyd (Oct. 1, 1822), in FAMILIAR QUOTATIONS 418 (John Bartlett et al. eds., 15th ed. 1980).
HOMELAND SECURITY AND CIVIl LIBERTIES
but visions of violence and death. America and its friends have a crucial advantage-we can offer these parents a vision that might give their children a better future …. That vision of the future should stress life over death: indi- vidual educational and economic opportunity. This vision includes widespread political participation and contempt for indiscriminate violence. It includes respect for the rule of law, openness in discussing differences, and tolerance for opposing points of view.
40
Some assert that, as we focus on increasing security, we must necessarily decrease our civil rights and civil liberties. However, it is a dangerous mistake to see the two principles-security and civil liberties-as in competition with one another; this would condition us to accept decreased civil liberties as the cost of improved security. This perspective cannot be allowed to flour- ish; we must look for ways to enhance both security and civil lib- erties at the same time. Department of Homeland Security’s first Secretary Tom Ridge has said, “We will not, as [Benjamin] Frank- lin once warned, trade our essential liberties to purchase tempo- rary safety.”‘” If we are mindful of the critical importance of sustaining this country’s traditions of liberty, security measures can be narrowly tailored to respond to the need.
President Bush has set the pursuit of liberty and freedom at the forefront of the war on terror. The President declared in a speech at the twentieth anniversary of the National Endowment for Democracy:
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