IMMIGRANTS, PROFILING AND THE "WAR ON TERROR"

For over a century the US Supreme Court has ruled that non citizens are "persons" under the Fifth and Fourteenth Amendments, entitled to freedom of expression and the rights of association, equal protection and due process under the law.  In its 2001 ruling in Zadvydas v. Davis, the court cited a 1953 decision holding that "aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."

Those "traditional standards of fairness" were set aside after September 11, 2001.  The post 9/11 anti-terrorism offensive has fostered a climate of insecurity for non citizens and citizens alike, particularly those who are Muslims from the Middle East and South Asia.  Their lives have been made more vulnerable by the USA PATRIOT Act, by targeting on racial and ethnic grounds, and by the expansion of government powers.

      • The USA PATRIOT Act

Under this legislation, which became law on October 26, 2001, non citizens can be arrested and held until deported if they are members of or have provided "material support" for an organization designated as "terrorist," or which is not yet on the list of terrorist groups but has at some point engaged in the kind of violent activity that could get it put on the list in the future.   They can continue to be detained – possibly indefinitely – if they have never been convicted of a crime but the Attorney General "certifies" that he has "reasonable grounds to believe" that their release will endanger the "national security of the United States or the safety of the community or any person."  If they are ordered to be deported, but no country will take them – possibly because they are, like many Palestinians, stateless -  then they can be imprisoned for life in the US.

      • Targeting on racial and ethnic grounds

More than 1,200 people were rounded up in the immediate aftermath of 9/11, as the FBI responded to nearly 96,000 tips in the first week after the attacks.  At least 762 non citizens (we don't know the exact number) who were in no way connected to terrorism were placed on an "INS custody list" and held for months in conditions of secrecy, often in solitary confinement.  The government changed immigration regulations to provide for indefinite detention "in case of an emergency or other extraordinary circumstance."  The treatment of detainees – many of whom were eventually deported from the country – was sharply criticized by the Department of Justice's Inspector General Glenn Fine in a report issued in April 2003.

The Administration refused to release the numbers, names and whereabouts of "special interest" detainees being held in connection with terrorism investigations, and appealed all court orders that it make this information public.  On September 21, 2001 the chief immigration judge issued an internal memo stating that "special immigration" hearings should be held behind closed doors without it being made public that these hearings were even taking place.

Meanwhile, the FBI drew up a list of nearly 10,000 foreign men to be located and interviewed.  Fewer than twenty were arrested on immigration charges, and three on criminal charges.  None had any links to terrorism.  A Congressional General Accounting Office report of May 9, 2003 questioned government claims that the FBI interviews helped forward the war on terrorism, and stated that they may have had "a chilling effect no relations between the Arab community and law enforcement."

In November 2003 the Justice Department implemented a "Special Registration" system.  It required male visitors aged 16 years and older from 25 Muslim and Middle Eastern countries as well as North Korea to come to immigration offices to be fingerprinted, photographed, interviewed and have their financial information copied, or register when they entered the country and then re-register after 30 days.  They also had to register again each time they left the country or risk being unable to return.  Targeted males were expected to meet a series of poorly-publicized rolling deadlines or face arrest, detention, fines and deportation.

Thousands were detained when they voluntarily went to register, including people who were waiting to hear about their green card applications, and foreign students who were taking too few courses to meet their visa requirements.  More than 13,000 Muslims and Middle Eastern immigrants who were among the 82,000 who voluntarily complied with Special Registration procedures faced expulsion from the country because their papers were not in order.  These included people whose applications for an adjustment of their status had been delayed by a huge backlog in the processing of forms.

      • Expansion of FBI and Police Powers

In February 2003 a Department of Justice order gave all 11,000 FBI agents and several thousand US marshals the authority to arrest people on immigration violations.  Without any public discussion, it also reversed longstanding federal policy that local police and state police enforce criminal law, not non-criminal immigration law.  Police chiefs around the country have been critical of this development, arguing that it would make communities less safe since many non citizens might refuse to report crimes out of fear that they might be detained and deported. 

Changes in FBI guidelines made in May 2002 permit the FBI agents to conduct surveillance on lawful domestic religious, civic and political activity where there is no suspicion of wrongdoing.  This can be done with no oversight from FBI headquarters. 

Under the revised guideline, the FBI and other agencies can troll the Internet and use commercial data mining services to search for signs of suspicious activity.  The federal government has been buying information from private "data aggregators" such as Choicepoint, which holds 17 billion records.  It can warehouse this information indefinitely, with no guarantee of its accuracy.  There is no way that individuals who are wrongly-profiled in the huge new databases being constructed by federal agencies can hold the government accountable and clear their names.

On January 27, 2003, the FBI ordered all field supervisors to count the number of mosques and Muslims in their areas, and use this information to establish a yardstick for the number of terrorism investigations they are expected to carry out. 

QUESTIONS 

1.  Some argue that because there are people out there who are trying to hurt us we have to do everything we can to stop them, and that it makes sense to focus on Muslims and mosques.  Do you agree? 

2.  According to a study of racial profiling based on law enforcement statistics, it is not an effective method of fighting crime (David Harris, Profiles in Injustice: Why Racial Profiling Cannot Work, The New Press, 2002).  Do you think religious or ethnic profiling is an effective way to fight terrorism?  Why or why not? 

3.  Do you see any parallels between the first Red Scare of the post World War I period and the post 9/11 "war on terror"?  What lessons should we be learning from our history?