Equality Before The Law

In a post this morning over at the Amnesty International USA blog, Tom Parker raises a number of compelling points about the prisoners who remain at Guantanamo Bay, the use of military commissions, and the passage of the NDAA. He also makes the following point:

Indefinite detention for suspected members of Al Qaeda, the Taliban, and loosely defined associates has been codified in US law. A profound distinction now exists in US law between US persons and foreigners, a violation of one of the most fundamental principles of justice -– equality before the law.

This is an interesting point.

But I wonder if it’s actually got the force that Parker intends. I don’t mean to say that equality before the law isn’t one of the most fundamental principles of justice. Indeed, it’s very clear that all citizens must be treated equally under the law. But I’m not so clear whether Americans — and, indeed, citizens of other countries as well — believe that there is no difference between the way that national laws apply to citizens and non-citizens (and, in particular in this case, enemy non-citizens).

In other words, isn’t it the case that non-citizens are — and have always been — treated differently from citizens much of the time?

We might not like this. We might want to drop all barriers and distinctions between people. We might disagree with laws that distinguish one group from another and seek to limit them. But the fact that there is actually a distinction in law between citizens and non-citizens isn’t something that’s particularly new or shocking, is it?

It seems to me that the indefinite detention provision in the NDAA is simply one more distinction being made between citizens and non-citizens. We can deport a non-citizen who commits a crime, for example; we can’t do that with a citizen. That’s a pretty clear difference right there. So, I’m not sure I’d make this complaint the centerpiece of my argument against the NDAA.

Now, personally, I oppose indefinite detention without charge or trial. But I oppose it for everyone, citizen and non-citizen alike, because it’s a violation of international human rights law, not because I insist that citizens and non-citizens must always be treated identically by national laws. That seems like the way for Amnesty International to go on this one.