The Alien-Citizen Distinction and the Global War on Terrorism

Abstract

Since the start of the modern civil rights era, the notably harsh laws of citizenship and immigration in the United States have experienced some mitigation in the critical distinctions between citizens and aliens. Societies became “soft” on the “inside” while grappling with questions of how “hard” to be toward the “outside,” the border. The retrograde effects of globalization together with our security and imperial obsessions since 9/11, however, have led to a hardening of distinctions both on the inside and toward the outside. Immigration and citizenship have become more Schmittian affairs where the worthy “us” is confronted by the enemy “other.” The power of exclusion and especially of deportation has again grown more important (as it was during the Red Scares of the post-WWI and Cold War periods), making citizenship more important. As the government seeks to undermine constitutional protections in three ways — making it irrelevant who you are, where you are, or whose custody you are in — the benefits of the legal status of “citizen” seem to be in play. At the same time, we know the importance of citizenship as a mechanism for the defense of rights, perhaps especially of minority rights. Indeed, liberal immigration scholars have spent most of the past generation fretting over the discriminatory “bonus” offered by citizenship and have worked “human rights” and “due process” discourses to undermine that bonus. Since 9/11, however, a series of important Supreme Court cases has left us with only a murky sense of what rights apply to whom and where and how much of a guarantee “citizenship” offers. In this essay, we review the salient cases and seek to identify some current baselines around these “who, where, and whom” questions.