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CAIR REPORT - May 11, 2005
The status of Muslim civil rights in the United States - 2005
The dragnets of John Ashcroft
Background
Under United States immigration law, an ‘absconder’ is defined as an "…alien who, though subject to… [deportation], has failed to surrender for removal or to otherwise comply with the order."[7] According to a January 2002 memorandum sent to federal immigration and law enforcement officials, the Deputy Attorney General of the United States estimated that there are approximately 314,0008 absconders, or deportable illegal aliens, living in the United States today. Of these 314,000, only about 6,000[9], less than 2 percent, originate from Muslim or Arab nations. Although over 90 percent of absconders are from Latin American countries, the Justice Department began selectively targeting absconders only from predominantly Muslim and Arab countries in the past few years. However, their selective targeting of Muslims and Arabs after September 11 bore almost no criminal fruits. By the end of May 2002, the Justice Department admitted that out of 314,000 absconders, only 585 had been located. More embarrassingly; not a single terrorist had been apprehended.[10]
Whereas all Americans have been greatly affected by 9/11 and its aftermath, young males from Arab and Muslim countries have been most profoundly affected by the dragnet conducted by the Department of Justice in our ongoing “war on terror.” In addition to the law enforcement dragnets conducted by the Justice Department after 9/11, certain congressional legislation has also been passed which has stirred great debate in all American circles as to how to best balance national security interests whilst still safeguarding the civil liberties guaranteed to every American by our constitution.
The Secret Roundup
Glenn A. Fine, Inspector General for the Department of Justice, officially reported that at least 1,200 men from predominantly Muslim and Arab countries were detained by law enforcement officials nationwide within two months of 9/11.[11] The Inspector General conceded in his official report that a senior officer in the Office of Public Affairs stopped reporting the cumulative count of detainees after 1,200 because the “statistics became too confusing.”[12]
In August 2002, Human Rights Watch (HRW) released a 95-page report, entitled Presumption of Guilt, which documented cases of prolonged detention without any charge, denial of access to bond release, interference with detainees’ right to legal counsel, and unduly harsh conditions of confinement for the over 1,200 detainees.[13] HRW’s findings were later confirmed by Inspector General Fine’s report, which also identified a pattern of “physical and verbal abuse” by correctional staff at the Metropolitan Detention Center (MDC) in Brooklyn, New York.[14]
The September 11 detainees comprised citizens from more than 20 countries. The largest number, 254 (or 33 percent), were from Pakistan, more than double the number of any other country.[15] The second largest number (111) was from Egypt and there were also substantial numbers of detainees from Jordan, Turkey, Yemen and India.[16] The ages of the detainees varied, but by far the greatest number, 479 (or 63 percent), were between the ages of 26 and 40.[17] The fruits of these legally suspect and egregiously overarching dragnets was succinctly summed up by Georgetown University law professor David Cole when he said that, “Thousands were detained in this blind search for terrorists without any real evidence of terrorism, and ultimately without netting virtually any terrorists of any kind.”[18]
The “List of 5,000”, NSEERS (“Special Registration”) and US-VISIT Programs
On November 9, 2001, Attorney General John Ashcroft directed the FBI and other federal law enforcement officials to seek out and interview at least 5,000 men between the ages of 18 and 33 who had legally entered the United States on non-immigrant visas in the past two years and who came from specific countries linked by the government to terrorism.[19] The list of individuals was comprised solely on the basis of national origin; for even the Justice Department acknowledged that it had no basis for believing that any of these men had any knowledge relevant to any terrorism investigation.[20]
Subsequently, the FBI and other law enforcement officials began arbitrarily visiting mosques, schools and homes to conduct interviews with these 5,000 Muslim and Arab men who were lawfully residing in the United States. According to the American Civil Liberties Union (ACLU), although these were allegedly ‘voluntary’ interviews, “…the interviews were highly coercive and few felt free to refuse.”[21]
In March 2002, the Justice Department announced another round of interviews. This time, they were targeting 3,000 Arab, Muslim and South Asian men who again were legally residing in the U.S. as students or visitors.[22] This time around, however, many law enforcement officials expressed concern over the mistrust that these witch hunts would cause in certain immigrant communities.
Community policing has always been a hallmark of American law enforcement typified by community members reporting crimes in their area to law enforcement officials. Many key law enforcement officials anticipated the problems that the implementation of this new policy targeting immigrant communities would create.
For example, Denver Chief of Police Gerry Whitman said that, “Communication is big…and an underpinning of that is trust…If a victim thinks that they’re going to be a suspect in an immigration violation, they’re not going to call us, and that’s just going to separate us even further.”[23]
In June 2002, Attorney General John Ashcroft instituted the National Security Entry Exit Registration System, more commonly referred to as NSEERS.[24] One of the most ambiguous and publicly debated aspects of NSEERS was known as “Special Registration.” Special Registration required all male nationals over the age of 14 from twenty-five countries to report to the government to be registered and fingerprinted. With the sole exception of North Korea, every single one of the 25 countries[25] on the Special Registration bulletin was Muslim or Arab.[26] The ACLU denounced the plan as “a thinly veiled effort to trigger massive and discriminatory deportations of certain immigrants.”[27]
In December 2002, up to 700 men and boys from Iran, Iraq, Libya, Sudan and Syria were arrested in Southern California by federal immigration authorities after they had voluntarily complied with the NSEERS “call-in” program. Some of these people were college students who were guilty only of not attending enough classes for a given semester. Others were just awaiting the outcome of their green card applications.
In response, the Center for Constitutional Rights (CCR), the Council on American-Islamic Relations (CAIR), the Arab Anti-Discrimination Committee (ADC) and other plaintiffs filed a class action lawsuit against Attorney General John Ashcroft on behalf of the hundreds of men and boys who had been unfairly arrested in Southern California in violation of their Fourth and Fifth Amendments rights.[28]
In one year alone, the Special Registration program registered 83,310 foreign nationals, placing 13,740 into deportation proceedings.
Of these 13,740 deportations, not a single one of these individuals was ever charged with a terrorism crime.[29]
In January 2004, the Department of Homeland Security (DHS) suspended a portion of the Special Registration (NSEERS) program and officially launched the “U.S. Visitor and Immigrant Status Indicator Technology” or US-VISIT program.[30] Many American advocacy groups, communities and individuals who had roundly criticized Special Registration for its blatantly prejudicial design and shoddy implementation foresaw similar potential problems with the implementation of the US-VISIT program as well.
"Contrary to assertions by the Homeland Security Department, the US-VISIT program is an addition to --not a substitute for -- the notorious Special Registration (NSEERS) program that singled out Arab and Muslim men because of their national origin and that continues to subject them to special and confusing requirements," said Timothy Edgar, legislative counsel for the American Civil Liberties Union (ACLU)[31].
"Only one part of the special registration program --the part that requires re-registration at local immigration offices -- was suspended last year. But, Arab and Muslim men are still subject to different requirements than other visitors."[32]
The USA PATRIOT Act (H.R. 3162)
The editors of Esquire magazine once wrote that, “If there is one thing that always comes out of a terrible tragedy, it is really dumb legislation.”[33]
On October 25, 2001, a mere 45 days after the September 11 attacks, Congress passed with virtually no debate, House Resolution 3162 entitled, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act[34], which has come to be ominously known worldwide as USA PATRIOT.
USA PATRIOT, at over 340 pages long, amends over 50 current federal statutes and was passed in the Senate by a vote of 98-1 with the lone dissenting vote being Democratic Senator Russell Feingold of Wisconsin.[35]
Many provisions of USA PATRIOT have opened a new chapter in the debate on the application of constitutionally suspect laws. Although not all 340 pages of USA PATRIOT Act are legally controversial, there are major sections of the law which should tremendously concern those who cherish due process, free speech and other fundamental protections guaranteed by the United States Constitution.
For example, Sections 411 and 802 of USA PATRIOT broadly expand the official definition of ‘domestic terrorism’, so that college student groups who engage in certain types of protests could very well find themselves labeled as ‘terrorists’. For example, the Sheriff of Hennepin County, Minnesota once declared that the student groups “Anti Racist Action,” “Students Against War” and “Arise” were potential ‘terrorist’ threats.[36]
Under Sections 215 and 505 of USA PATRIOT, law enforcement officials are given broad access to any type of record – sales, library, financial, medical, etc. – without having to show probable cause of any crime. USA PATRIOT also forbids the holders of this information, such as university librarians and college registrars, from disclosing that they have ever provided such records to federal officials.
A University of Illinois survey of American public libraries found that at least 545 libraries have been asked for records by law enforcement in the year following 9/11 alone.
According to the American Association of Collegiate Registrars and Admissions Officers, approximately 200 colleges and universities have turned over student information to the FBI, INS and other law enforcement agencies.[37]
The “sneak-and-peak” provision of USA PATRIOT (Section 213) allows law enforcement agencies to conduct secret “sneak-and-peek” searches of anyone’s home or apartment without a warrant or even notification to the owner. This means that investigators could potentially enter anyone’s place of residence, take pictures, download computer files and seize items without informing them of the search until days, weeks or even months later.[38]
Since its inception in October 2001, the debate over privacy and constitutional issues raised by USA PATRIOT has motivated more than 4 states and 357 cities, representing over 55 million people in 44 states,[39] to pass resolutions officially condemning portions of USA PATRIOT in their local or state legislatures. In addition to resolutions passed in more than 200 smaller cities, the list of successful resolutions includes those passed in the large metropolitan cities of New York[40], Los Angeles, Chicago, Detroit, St. Louis and Philadelphia.[41] In addition, the states of Hawaii, Alaska, Maine and Vermont have also passed statewide resolutions condemning portions of USA PATRIOT as being unconstitutional and infringing on individual rights.
Privacy and civil rights advocates, both Democratic and Republican, have also called for greater congressional oversight on any extensions or additions to USA PATRIOT. In addition to state and local governments, several bipartisan national organizations have also adopted similar pro-civil liberties resolutions condemning USA PATRIOT. Among them are the National League of Cities (NLC), American Conservative Union (ACU), the American Library Association (ALA), the Japanese American Citizens League (JACL), National Association for the Advancement of Colored People (NAACP), the Organization of Chinese Americans (OCA) and Veterans for Peace.[42]
Even traditionally conservative voices like former Speaker of the House Newt Gingrich, Republican Senators Larry Craig of Idaho, Arlen Specter of Pennsylvania and Lisa Murkowski of Alaska, have all publicly voiced criticism of USA PATRIOT.
Douglas Dow, professor of government at the University of Texas perfectly summarized the national grassroots movement to oppose USA PATRIOT: “…It is necessary for us to secure our values in those institutions closest to home and to rely on ourselves and our local officers, rather than waiting for the courts or Congress to defend minorities from racial targeting, or protect the privacy of our personal records.”[43]
7 Memorandum, Office of the Deputy Attorney General, “Guidance for Absconder Apprehension Initiative” January 25 2002. See also http://www.usvisanews.com/articles/memo2163.shtml 8 Id. 9 See Id. 10 See Dan Eggen and Cheryl W. Thompson, "United States seeks thousands of fugitive deportees; Middle Eastern men are focus of search," Washington Post, January 8 2002: A01.
11 The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, U.S. Department of Justice Office of the Inspector General, April 2003 at 1 available at
http://www.fas.org/irp/agency/doj/oig/detainees.pdf
12 Id. at note 2. 13 “U.S. Supreme Court Should Review and Reject Secret Detentions,” Human Rights Watch press release, September 30, 2003 available at http://www.hrw.org/press/2003/09/us093003.htm 14 Kelli Arena and Terry Frieden, “U.S. report critical of 9/11 detainee treatment,” CNN, June 3, 2003 available at
http://edition.cnn.com/2003/LAW/06/02/detainees/
15 Id.at 21.
16 Id.
17 Id.
18 Supra note 6.
19 Sanctioned Bias: Racial Profiling Since 9/11, American Civil Liberties Union (ACLU), February 2004 at 5 available at
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=15102&c=207
20 Id.
21 Id.
22 Posted on AILA InfoNet at Doc. No. 28au2001 (Apr. 5, 2002)
23 Supra note 50 at 6.
24 Fact Sheet: National Security Entry Exit Registration System, U.S. Department of State, June 5, 2002 available at
http://usinfo.state.gov/topical/pol/terror/02060509.htm
25 In addition to Iran, Iraq, Libya, Sudan and Syria, the 25 “Special Registration” countries include Afghanistan, Algeria,
Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen,
Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan and Kuwait.
26 Id.
27 Supra note 50 at 6.
28 Available at http://news.corporate.findlaw.com/legalnews/us/terrorism/cases/civil.html
29 Cam Simpson, “Aspiring politician at center of policy,” Chicago Tribune, November 16, 2003 available at
http://www.chicagotribune.com/news/specials/chi-111603tossed-sidebar-story,1,3565717.story?coll=chi-site-nav
30 “ACLU Says New Border Fingerprinting System Likely To Sow Confusion, Tracking of Arab and Muslims Based on National Origin Will Continue,” American Civil Liberties Union (ACLU) press release, January 5, 2004 available at
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=14649&c=206
31 Id.
32 Supra note 62.
33 The Editors of Esquire Magazine, Esquire ‘The Rules: A Man’s Guide to Life’, New York, Hearst Books, 2003
34 Full text available at http://thomas.loc.gov/cgi-bin/query/D?c107:4:./temp/~c107CatuiX::
35 http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=107&session=1&vote=00313 36 http://www.aclufreedomtour.org/issues.html 37 Sara Gamay and Diane Lee, “Patriot Act Encourages National Insecurity,” The (Georgetown) Hoya, November 7, 2003 available at http://www.thehoya.com/viewpoint/110703/view3.cfm
38 Supra note 68.
39 “Largest City to Date Passes Pro-Civil Liberties Resolution; Los Angeles Rejects Bush’s Call to Continue Civil
Liberties Curtailment,” American Civil Liberties Union (ACLU) Press Release, January 21, 2004 available at
http://www.aclu.org/news/NewsPrint.cfm?ID=14765&c=206
40 Michelle Garcia, “N.Y. City Council Passes Anti-Patriot Act Measure,” The Washington Post, February 5, 2004 at A11.
41 Supra note 66.
42 Id.
43 Douglas Dow, “Liberty starts at home,” Fort Worth (TX) Star-Telegram, March 8, 2004 available at
http://www.dfw.com/mld/dfw/news/opinion/8133567.htm?1c
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