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Immigration and Security Post-Sept. 11
By Muzaffar Chishti
Migration Policy Institute
August 2002
Chronology of Events (PDF file)
The terrorist attacks of Sept. 11 will leave an important mark on the
immigration history of the United States. After all, every single one of the
hijackers was foreign-born. Speculation was rife, therefore, that the US was
about to experience a new high-water mark in anti-immigrant attitude. Policies
leading to a moratorium on immigration, or at least a fundamental
re-examination of the numbers and categories of immigrants that are admitted to
the United States, were thought to become inevitable.
However, the expected high-water mark of generalized anti-immigrant
reaction did not materialize. Indeed, no legislation limiting immigration or
eliminating categories of immigrants is being seriously debated. Instead, the
debate involving immigration and immigrants has been dominated by the set of
government actions taken to prevent and deter terrorism at home.
In its war on terrorism, civil rights advocates argue, the government
may be going too far, and unnecessarily violating the rights of immigrants.
Foreign visitors and non-naturalized immigrants are the main focus of its
investigations; and yet, critics argue, they are the most vulnerable
populations in our country. Many, therefore, believe that the country is
witnessing one of the biggest civil rights challenges in a generation.
Measures Since Sept. 11
The current debate on the civil liberties of immigrants started with
the passage by Congress of the US Patriot Act (Pub.L. No. 107-56). This
legislation, enacted with dispatch and near unanimous support, significantly
enhanced the law enforcement, surveillance, and detention powers of the
government with respect to noncitizens.
Perhaps more far-reaching than congressional action are the
decisions
and enforcement policies of the Bush administration since Sept. 11 (PDF file). Most of these have been issued by the Department of
Justice, which has jurisdiction over immigration enforcement. Its critics
maintain that these policies and actions have been adopted without
congressional involvement and without the normal process of rule-making, which
includes public comment.
The most contentious of these administrative policies and actions
include:
- The arrest and prolonged detention of over 1,250 men since Sept. 11,
mostly for violations of immigration law. The US attorney general has declined
to reveal who these people are, what their immigration status is, where they
are being detained, the charges against them, or whether they are represented
by counsel.
- Secret immigration hearings, to which relatives of detainees or the press
are denied access. The government can oppose release of prisoners on bond, even
when an immigration judge has allowed such release.
- Monitoring of communication between a lawyer and a client, even in those
cases when someone is detained, but not charged.
- Detention of over two dozen people under the Material Witness Statute -- a
rarely used exception to criminal procedure -- that allows the indefinite
detention of people who have not been charged with a crime.
- FBI notices to over 8,000 Middle Eastern or Muslim men in the age group
18-33 currently in the US as temporary visitors, asking them to report for
questioning.
- Initiation of a program by the Department of Justice to exclusively target for apprehension Middle Eastern nationals who have failed to depart after their
final orders of deportation.
- Planned registration (fingerprint and photograph) by the Department of
Justice of visiting nationals from specific Middle Eastern countries at the
time of entry and at key intervals after their arrival.
Dimensions of the Debate
Analysts of all stripes agree that the exercise of administrative
power on this broad a scale is unprecedented. Where they disagree is on the
efficacy, the wisdom, and the long-term consequences of these actions.
In the legal, civil rights, and journalism communities, it is the
cumulative effect of these actions that has raised questions about their impact
on established fundamental rights: on the freedom of the press, right to
counsel, right to open trials, right to release on bond, and protection against
indefinite detention. These actions have also led to accusations of
racial/ethnic profiling and discriminatory selective enforcement of laws
against Arabs and Muslims.
Others, however, defend the administration's actions and argue that
these are necessary to safeguard US citizens and the "homeland" against
terrorism. They note that the focus of post-Sept. 11 investigations has
been on al-Qaeda supporters; that the attorney general's commitment to use all
legal means to protect the nation's security is justified by the circumstances;
and that giving special investigative attention to young Arab and Muslim males
is common sense. The strong and sustained popular opinion in support of these
enforcement actions has bolstered the political legitimacy of their position.
Proponents of this position defend it on the basis of values, maintaining that the most
important societal value is national preservation and the attendant right to
self-defense.
Critics of the administration believe that its enforcement policies
have specifically targeted Muslims and Arabs in the United States. This, they
believe, leads to legally and morally indefensible "profiling" of these
communities. Some advocates of these groups agree with the argument that Sept.
11 has created a special security situation that may allow adding an ethnic or
racial component to the "profiles" by which people are screened at places like
airports. However, extending that approach to civil society at large is very
troubling to them.
Profiling, they argue, is ineffective because it casts too wide a net
around a community, all but a few of whose members are innocent, without
providing any information about individual behavior. Many law enforcement
professionals view profiling as a crude and, ultimately, inadequate
substitute for behavior-based enforcement and effective intelligence gathering.
They also maintain that it leads to less rigorous scrutiny of individuals who may
be dangerous but do not fit the profile. Indeed, critics say, profiling can
give a false sense of security, pointing out that it would not catch Oklahoma
City bomber Tim McVeigh, American Taliban fighter John Walker Lind, or al-Qaeda recruit Jose Padilla. Similarly, they point to the growing speculation
in the law enforcement community that the person responsible for the anthrax
mailings of last fall was a trusted US citizen with security clearance.
Critics of profiling further believe that the practice, in addition to
being ineffective, violates the Constitution because it targets and
discriminates against individuals simply on the basis of religion or national
origin instead of their conduct or behavior. In the process, they warn,
immigrant communities become stigmatized, intimidated, and alienated, making
their members less eager to cooperate with law enforcement agencies.
Many national security experts point to a number of policy options that
will more effectively respond to terrorist threats -- policies that can be
implemented without excessive executive powers and with minimal compromises on
important civil liberties. Their recommendations range from reinforced cockpit
doors and improved luggage matching protocols to a fundamental review of our
country's intelligence infrastructure, better coordination of intelligence
gathering, more focus on monitoring the tools of terrorism rather than people,
better use of technology, improved training of screeners, and enhanced
recruitment of translators and informants.
Elusive Consensus
Resolution of these complex legal, social, and security issues will not
be easy. On one hand, there is broad recognition that extraordinary challenges
require extraordinary responses. On the other hand, some US analysts argue that
history teaches that it is precisely in such extraordinary times that a
true commitment to basic principles and values is most important.
Consensus on the course of action that best serves long-term US
interests will remain elusive. Those concerned with threats of future
terrorist attacks are likely to emphasize the primacy of heightened security
measures. Those concerned primarily with the civil liberties of members of US
immigrant and minority communities, however, will continue to contend that it
is the rule of law that constitutes the defining principle of our democracy.
They note, furthermore, that the nation's interests will not be promoted by
stigmatizing entire communities. Rather, they believe that the strength of the
United States will be reinforced by ensuring that these communities are and
continue to be a core part of the country, and remain protected by shared civic
values.
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2002-2013 Migration Policy Institute.
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