Detention of Terrorist Suspects

[Francisco Forrest Martin]

A number of fine points have been made in response to my admittedly
excessively emotional response to Gonzalez's statement.  Allow me to
respond.  First, I did not quote (as Prof. Volokh mistakenly claimed)
Gonzalez.  When I heard Gonzalez say "country of origin," I interpreted that
as national origin -- which I think is a fair but (I grant) perhaps less
accurate interpretation.  Second, regardless of my interpretation, detention
on the basis of national origin or alienage is clearly illegal under
international law because such discrimination violates jus cogens.  There is
no strict scrutiny or minimal rationality analysis of whether governmental
interference with a jus cogens protected right is justified.  It's just
illegal.  (However, international law permits the limitation of political
activity by aliens and the detention of aliens who are nationals of an enemy
state during war -- which are not applicable to this case.)  Whether
Gonzalez's statement actually reflects the Administration's policy and
actions, I just don't know.  I have heard no news about legal challenges to
the detention of the thousands that have been or are being detained as a
consequence of the September 11th events.  I just thought that Gonzalez's
statement was a disservice to his client.

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law