Interview | Gelernt calls immigrant rights a 'tricky issue'

Lee Gelernt (A '84) is the deputy director of the American Civil Liberties Union's (ACLU) Immigrants' Rights Project. He will speak tonight at 7 p.m. on his role as a public defender in his talk on Guantanamo, immigration and civil liberties. The Daily sat down with Gelernt to discuss his job defending immigrants.
 
Mick B. Krever: How does the ACLU — and maybe even more broadly, how does U.S. law in general — view immigrants' rights? People who aren't American citizens, how are they treated by the Constitution, by U.S. law?

Lee Gelernt: Right, that's a very good question and there's no simple answer. Immigrants are a particularly tricky issue. They are protected by almost all of the major provisions of the Constitution and the reason is that the Constitution uses the word "persons." It says "equal protection of the law for all persons," due process for all persons, and what the Supreme Court has said is that the use of the word persons rather than citizens means that those protections apply to non-citizens. On the other hand, what the courts have said for hundreds of years is though the Constitution may technically apply to non-citizens, it may not apply in the exact same way. So they have diminished constitutional rights. What we do at the ACLU is fight to ensure that [immigrants] have basic constitutional protections. It may be that in certain cases they don't have every right that a citizen has, but we try to ensure that the basic protections of our system apply to non-citizens. As you can imagine, it's very, very controversial. Particularly in times of economic downturn or national security crises, immigrants often become the scapegoat.

MBK: It sounds like there's a pretty foggy middle ground. So when you as a lawyer for the ACLU are defending these people, are you trying to get them as full rights as possible, or are you also drawing a line?

LG: That's a very good question, and that's one of the things that we are constantly grappling with. We are, generally speaking, trying to get them as full rights as we possibly can. But there are places where we know that they, under the law, will not get full rights. For example, if you're in the country illegally, there's no way we could go into court and demand that you're entitled to all of the health benefits and various other types of benefits that the state and government give out. On the other hand, if someone who was here illegally were pulled off the street and tortured and made to wrongly confess to a burglary he didn't do, we would certainly say that that person has the right to an attorney and a right to a fair trial and cannot be tortured. So those are two ends of a spectrum, but we constantly have to draw lines and the courts constantly have to draw lines. I don't think we've ever taken a position that every immigrant in the country, no matter what their immigration status, is entitled to every right. But we do believe that they're entitled to more rights under the Constitution and federal law than they sometimes receive. And so we are trying to push that to one end of the spectrum.

MBK: One of your more high-profile cases was a suit that you filed against former U.S. Attorney General John Ashcroft.

LG: Right. That's a case called al-Kidd v. Gonzales, the former attorney general, and also v. Ashcroft, the former attorney general. That is actually on behalf of a ... native-born U.S. citizen, Abdullah al-Kidd, who got caught up in a post-9/11, what we sometimes call a "dragnet," and was erroneously arrested and detained … What we are alleging is that after Sept. 11, a policy was instituted by the government to arrest Muslim and Arab men, who the government were suspicious of but actually had no hard evidence to arrest them on criminal charges. So what the government did, we allege, is that they would say that they need them as witnesses in someone else's case and have them arrested as witnesses, claiming that they wouldn't voluntarily testify, hold them under the guise of needing them as witnesses, but really what the government wanted to do is investigate them. The government knew they couldn't arrest them on criminal charges because they knew they hadn't done anything wrong. So our client was arrested, held under really draconian conditions for a long time, ultimately was never called to testify — even though that was supposedly the reason he was arrested — but never charged with a crime, just so that they could investigate. They held him as a kind of terrorism suspect, but never admitted that's what they were doing. So we have challenged this whole policy and we believe that the former Attorney General, John Ashcroft, is responsible for creating and implementing the policy.