What Gonzales really said (at least according to the transcript)

Eugene Volokh volokh at mail.law.ucla.edu
Thu Nov 29 10:10:47 PST 2001


        David Cruz has an excellent point:  Discrimination based on "national
origin" in the sense of ethnic background (e.g., discrimination against
people of Japanese or Italian or Russian extraction) is treated the same way
constitutionally as race discrimination.  At the same time, discrimination
by the federal government based on alienage -- and, I suspect, country of
citizenship -- is permissible.  (This may also be true as to country of
birth or country of prior residence even for citizens; for instance, if
there was a hotter war against the Soviets in, say, 1983, it might well have
been constitutional for the government to focus their attentions on people
like my parents or me, who were born in the Soviet Union and who had been
Soviet citizens before then-recently becoming American citizens.  That,
however, is a tougher question.)

        Now it turns out that "national origin" is actually often used in both
senses -- as nation of the origin of one's ancestors, and as the nation of
one's own origin.  This is especially true when one is talking about
immigrants and noncitizens (and to my knowledge it is suspect that most of
the detainees are immigrants and noncitizens).

        One might think, then, that -- rather than taking the interpretation that
seems most constitutionally suspect, most "remarkable," and most likely to
make one ask "Is this the best that the White House can get for legal
counsel?" -- one might instead assume that the White House *did* get a
competent legal counsel, and that the interpretation that the counsel meant
is the latter, likely constitutional, one.  I take it that this was part of
what Prof. Friedman was referring to.

        But fortunately we might not have to speculate!  Here is what the News Hour
transcript says -- I assume this must be the passage to which Prof. Martin
was referring, but if it's not, please let me know:

http://www.pbs.org/newshour/bb/white_house/july-dec01/gonzales_11-28.html
. . .
                                                                    JIM
LEHRER: Earlier in the program, Margaret
                                                                    Warner
interviewed the Egyptian foreign

minister, and he expressed concern that not only
                                                                    the
military tribunals but these large detentions of
                                                                    foreign
nationals here in the United States, that
                                                                    they not
be directed solely or mostly at Arabs
                                                                    and
Muslims. What can you say to him about
                                                                    that?

                                                                    ALBERTO
GONZALES: Well, none of these decisions
                                                                    have
been based on race or ethnicity, Jim, I
                                                                    can
reassure the American people and
                                                                    our
allies around the world that that has not been
                                                                    the
basis for any of the decisions made in this

administration.

                                                                    JIM
LEHRER: But is it's not in fact true that the
                                                                    over 600
detainees now that still remain, most of
                                                                    them are
Middle East origin?

                                                                    ALBERTO
GONZALES: They may be of
                                                                    Middle
East origin, Jim, I don't know for sure.
                                                                    But what
I understand and you'll have to talk
                                                                    with the
folks at the Department of Justice about
                                                                    this, is
that the decisions were based primarily on
                                                                    where
people came from, the country of origin --
                                                                    their
age range, and things of that nature -- not
                                                                    based
upon race or ethnicity or religion.

So it seems that Prof. Martin might have actually heard "national origin"
when what Gonzales actually said was "country of origin," which almost
certainly refers to the country of birth (and likely, if indeed the suspects
are noncitizens, their country of present citizenship) -- "where people came
from" themselves, rather than where their ancestors came from.  This is
especially so since Gonzales says twice that the decisions were not being
based on "ethnicity," which suggests that he is indeed drawing a distinction
between "ethnicity" (the origin of one's forbears) and "country of origin"
(the origin of oneself).

        Am I mistaken in this?  Or if I'm not, might Prof. Martin owe an apology to
Gonzales, given that the chief error here might have been a factual error by
Prof. Martin himself rather than a legal error by Gonzales?

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of David B. Cruz
> Sent: Wednesday, November 28, 2001 11:10 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Detention of Terrorist Suspects
>
>
> I took Professor Martin's post to be evoking the blackletter doctrine that
> not only race discrimination but also national origin discrimination is
> constitutionally suspect and subject to strict scrutiny, in which case
> it's not at all clear what denying reliance on race but admitting national
> origin buys the administration (except perhaps in terms of public
> opinion).  National origin is in this respect different from alienage
> discrimination, which is generally suspect when conducted by state
> governments but often not when it's the national government.  This doesn't
> mean that the reliance on national origin is at the end of the day
> unconstitutional because it fails strict scrutiny, but nothing explicit or
> implicit in Professor Martin's post is to the contrary.  I don't think
> Professor Martin owes constitutional law professors any more explicit
> "connecting up" given the obviousness of the doctrinal point.
>
> -David B. Cruz, USC Law (Cal.)
>
> On Wed, 28 Nov 2001, Blumstein, James wrote:
>
> > I think that we on the list are owed more than an implicit
> exclamation point
> > linked to a heavy dose of not so implicit indignation and outright ad
> > hominem attack on this.  National origin has been used historically in
> > immigration as a basis for setting policy. And such factors need not be
> > race-based (e.g., questioning German nationals during WW II).  I (and
> > doubtless others) may be persuaded that national origin is an
> inappropriate
> > basis for action under the totality of circumstances, but a
> more reasoned
> > approach is surely warranted. More analysis less vituperation and
> > assumption... J.F. Blumstein
> >
> > -----Original Message-----
> > From: Francisco Forrest Martin [mailto:ricenter at IGC.ORG]
> > Sent: Wednesday, November 28, 2001 5:48 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Detention of Terrorist Suspects
> >
> >
> > I just heard the most remarkable statement from Alberto Gonzalez, who is
> > White House counsel, on the News Hour with Jim Lehrer.
> Gonzalez said that
> > the detention of thousands of terrorist suspects was based not
> on race --
> > BUT ON NATIONAL ORIGIN or age.  Is this the best that the White
> House can
> > get for legal counsel?
> >
> > Francisco Forrest Martin
> > Ariel F. Sallows Professor of Human Rights
> > University of Saskatchewan College of Law
> >
>



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