Ronald P. Sokol: Guilt by Birth
Following the averted disaster of the Amsterdam-to-Detroit flight on Christmas Day, his administration announced that citizens of 14 nations flying to the United States would be subject to intense screening at airports worldwide....
Since World War II, nations have come to accept that human rights law prohibits the use of certain criteria as a basis for treating people differently. Among the banned criteria are race, gender, religion and national origin.
These banned criteria are set forth in Article 2 of the Universal Declaration of Human Rights and in Article 26 of the International Covenant on Civil and Political Rights, both signed by the United States, and in Article 14 of the European Convention on Human Rights.
While there is no provision in the U.S. Constitution banning discrimination on the basis of national origin, the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin in employment. And the Department of Justice states on the Web site of its Civil Rights Division that “Federal laws prohibit discrimination based on a person’s national origin.”...
As a scholar of the Constitution, President Obama knows that discrimination on the basis of national origin violates fundamental values. He knows too that defeating terrorism cannot trump every other value. When weighing values, respect for a certain conception of what it means to live in an open society must be placed on the scale. When in 2004 Judge Leonard Hoffman of the House of Lords wrote, “I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation” he showed a more nuanced understanding of the importance of maintaining an open society. If the response to terrorism is to target the innocent so as to get at the guilty, then the concept of an open society is significantly diminished. That was the tragedy of the Bush administration....