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Operation Liberty Shield:
A New Series of Interviews of Iraqi-Born Individuals in the U.S. Is The Latest Example of Dragnet Justice


Tuesday, Mar. 25, 2003

Recently, the FBI commenced a round of interviews of "a number of Iraqi-born individuals" residing throughout the United States - both citizens and non-citizens alike. 50,000 Iraqi nationals are on the list; 11,000 have so far been targeted for interviews. No one seems to know what the criteria are, by which the 11,000 were chosen.

This new wave of interviews is the latest round of dragnet justice. Once again, federal law enforcement has cast an overly broad net in the hope of uncovering leads in its fight against terrorism and its war in Iraq.

Last year, the government did not claim concrete benefits from a similar type of time-consuming dragnet initiatives aimed at Middle Eastern men in the U.S. on visitor visas. And it's not surprising: What terrorist would show up for a "voluntary" interview? And even if one did, wouldn't he be carefully prepared to lie adeptly?

Casting An Ever Broader Net: The 2001 Interviews with Middle Eastern Men

Over the past year-and-a-half, the federal government has engaged in various rounds of interviews of immigrants present in the U.S., and has compiled extensive information as a result of its interviews.

For example, in the fall of 2001, the government conducted "voluntary" interviews of 5,000 men of Middle Eastern background between the ages of 18 and 33 who were present in the U.S. on visitor visas. Could the men bring attorneys? The "invitation" to appear did not say.

As I noted an earlier column, these interviews asked individuals to divulge highly personal information- where they worshipped, who their friends were, the names, addresses and phone numbers of their friends and colleagues. By creating robust profiles of interviewees and their associates, the federal government was likely able to build a profile of entire communities and their daily lives.

Those Americans who feel this effort is reasonable should consider this scenario: How would you feel if - in a foreign country facing national security threats, where you were studying or working - you were rounded up by a foreign intelligence entity, and questioned in this highly personal fashion, simply because of your national origin?

I believe most Americans would see this treatment as both terrifying and unfair. That then raises the question of why we don't see our own treatment of Middle Eastern visitors the same way.

Another Part of the Net: The Special Registration Program

Again, as in the Fall 2001 round of interviews, an intrusive battery of questions is asked. In addition, visitors are fingerprinted and photographed. At last count, approximately 102,000 men have registered.

Can the persons interviewed have counsel present if they choose? The Department of Justice, and federal regulations, say yes. But the reality is often different.

According to the ACLU, Georgia and Washington, DC immigration officials have stated that layers may be excluded from portions of the registration process. Further reports indicate that regional offices in Florida, New York, Texas and Illinois have also blocked attorneys from accompanying their clients.

In addition, even where attorneys are technically allowed, visitors may not be able to afford them, or may simply be too intimidated to use them.

To add to all these problems, the guidelines for these interview processes have not always been well publicized. Understandably, they have therefore caused fear and confusion in immigrant communities in the United States.

The Special Registration process had also had surprising consequences. Individuals who were in the process of having their permanent resident paperwork processed or their visa status lawfully changed found themselves being rounded up and detained when they arrived to register in California and other states.

The reason for these detentions: Computer errors and backlogs in INS processing, for example. Imagine showing up to comply with the registration request only to find yourself handcuffed and locked up.

The American Immigration Lawyer's Association has listed some of the surprising instances of detentions arising from the registration process. In Minnesota, an individual awaiting INS action on his application for permanent residency based on an employer's sponsorship was taken into custody when he reported for Special Registration. He was handcuffed and separated from his attorney.  He arrived at 8 a.m. and, after threats of bond being set at $10,000, was released on his own recognizance at 5:00 p.m.. He was denied access to his attorney for all but 20 minutes during the day.

Another individual was detained even though his visa had always been "in status" and lawful. Apparently the INS computer showed that his employer revoked his H-1B (professional worker's) petition. The individual continues to be employed by the employer on his H-1B visa. In fact, the employer has filed a labor certification application on his behalf.

The new program of interviews of Iraqi-born individuals is different from the previous programs in an important respect: The interviewees include United States citizens and permanent residents - not just visitors who are here on temporary visas. As with previous interviews, interviewees may not know they have a right to counsel.

Indeed, the ACLU has expressed concern that some FBI officials may have told Muslim groups that the presence of an attorney would lead the FBI to suspect that the person might have something to hide.

That logic - if the person has nothing to hide, why does he need a lawyer? - is, of course, anathema to the U.S. system of presuming innocence. In addition, it's important to note that even a totally innocent person may have something to fear from an interview: In the interview, he might unwittingly yield information that puts his visa status in jeopardy based on legal technicalities of which he is unaware.

When only visitors were interviewed, there was at least some rationale for singling them out: Since they were citizens of countries who were not U.S. allies, conceivably they also might be anti-U.S. But going after even U.S. citizens, simply because of the country they were born in, seems like ethnic and religious profiling.

As in World War II's Japanese-American internment camps, the distinctions between citizens, immigrants, and foreign visitors are becoming blurred, as the interviewing net is expanded to sweep in even citizens. Loyalty is presumed to follow country of birth (or religious practice), not country of citizenship.

Yet remember, at the end of WWII, not one of the Japanese-Americans who had been rounded up and interned was charged with sabotage or espionage. Should we presume Iraqi-Americans are any less loyal?

Singling out Iraqi-Americans based on their country of birth alone makes the claim that the U.S. has no quarrel with the Iraqi people - only with their government - ring hollow.

FBI Relations with Local Communities Needs to be Consistent

Some news accounts report that local FBI agents have worked collaboratively with local Muslim groups and local civil rights organizations with respect to the interview process. According to these reports, the FBI is trying to allay community fears - assure Iraqis present in the U.S. that they are not being presumed to be disloyal, and that if they suffer hate crimes, the federal government will investigate and prosecute them.

In anther report, the FBI apparently told a Muslim group in Philadelphia that no one who cooperated would be arrested for immigration violations. In contrast, an FBI official told a Washington Post reporter that the FBI would detain anyone found, as a result of the interviews, to be in violation of immigration laws.

Both of these approaches are troubling: A clean immigration slate should not be offered as a carrot for cooperation. Nor should the "stick" of immigration violations be used to penalize those whose cooperation the FBI does not feel is sufficiently complete. Yet new procedures, which I will detail in the following section, are bound to make this type of "carrot and stick" approach far more common.

Deputizing the FBI as part of the Immigration Service

Effective February 28 of this year, pursuant to a December 2002 order of Attorney General Ashcroft, FBI agents now have the authority to arrest people on immigration charges - even when there is not enough evidence to hold them on criminal charges. In short, FBI agents (as well as U.S. Marshals) now themselves carry the "stick" they can use to induce cooperation.

Previously, only INS agents had this power. It was thought, reasonably, to be outside the bailiwick of FBI agents, whose job is primarily domestic law enforcement officials, and federal marshals - who, among other duties, serve as guards and track down and transport fugitives.

Historically, law enforcement has been a separate function in order to encourage illegal immigrants to report crimes without fear of deportation. For example, an immigrant women should be encouraged to call police if she is being battered, without fear that she will be detained on an immigration violation.

Troublingly, the expansion of power did not occur by statute. Congress was not involved. Rather, the Justice Department has deputized FBI agents to make these arrests. Previously, the Justice Department claimed that states (and state law enforcement) have "inherent authority" to make immigration arrests

Nor does the order claiming that FBI agents and marshals have the authority to make immigration arrests put an limits on that power - as a statute might have. Informally, the FBI has promised it will use the power only in counterterrorism cases, and has said that it had drafted internal guidelines to limit its use - for instance, to situations when public safety requires prompt action before Homeland Security agents can arrive.

Certainly, it might make sense in some limited circumstances to allow an FBI agent to make an arrest for a patently clear, serious immigration violation. An FBI agent shouldn't have to let a potentially dangerous suspect go on the ground that "It's not my job" to make the arrest. But this kind of power needs to be strictly limited, and limited by law, not just by FBI reassurances.

Again, imagine if this happened to an American abroad: Got the wrong visa stamp? I'm afraid we'll have to imprison you. More generally, will an FBI agent know enough about immigration law to make the same call as an immigration officer?

Even Those Who Seek Asylum Are Ending Up Detainees

Meanwhile, another "carrot and stick" program, connected to Operation Liberty Shield, is occurring. This time, the carrot is asylum - a grant of U.S. residency on the basis of persecution in the country of which one is a citizen. The stick is detention, for an indefinite period of time.

That stick used to be used for those who were national security threats - those, that is, whom the government feared were criminals or would-be criminals. But no longer. Now those who say they face prosecutions - those who say they are the victims - are treated like criminal suspects too.

Persons seeking asylum are refugees seeking safety, often after having been terrorized and persecuted in their own countries. These people are traumatized and may be torture victims. Yet we are detaining them, adding to their trauma and suffering.

Immigration detention is often much like prison. In some facilities, detainees rarely see natural daylight, and the food provided may violate deeply held religious beliefs. Detainees are frequently held in shoddy temporary shelters, and sometimes even literally in prisons or jails.

How did this happen? First, on March 1, 2003, the Homeland Security Act transferred immigration and asylum issues from the INS to the Department of Homeland Security. And DHS has decided to detain "for the duration of their processing period" asylum seekers from Iraq and 33 other countries (including Iran, Somalia, and Sudan) where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated."

This approach turns logic on its head. Iraqi asylum seekers typically are fleeing Saddam Hussein's regime. Yet we are locking them up just as if they were loyalists.

Besides treating asylum seekers like prisoners, DHS is making it less likely that those who should be granted asylum, will be. Detention centers are often at a distance from a city and inaccessible by public transport. Once detained, an asylum seeker will find it far harder to work with an attorney, or to recruit the witnesses, and gather the documents, that will help him or her show a genuine fear of persecution.

Asylum seekers from other countries might be free to make the best cases for themselves that they can. But asylum seekers from the 33 countries, due to practical impediments, will not be. Imagine trying to help with the most crucial decision of your life while locked up.

To make matters even worse, it is possible that even those who filed asylum applications in the past, and who have been allowed to live free while their applications are considered, might be targeted too. DHS has not made clear to the press and public whether they also can be thrown into detention.

This is not to say that some asylum seekers might not warrant detention. But existing law permits this. Pre-existing federal procedures provide ample authority for the U.S. government to detain any non-citizen if there is reason to believe that she or she is a risk to national security.

Blanket Detention: A Violation of International Treaties and Conventions

Amnesty International has rightly criticized Operation Liberty Shield for the blanket detention of asylum seekers. Liberty from unwarranted detention is emblematic of a free society.

Blanket detentions are another example of the overly broad net the government has cast - and how the net is ever widening. Once it covered only visitors. Now it extends to those who are, or who seek based on persecution to become, citizens.

This question isn't just one of policy - it's also one of law. Blanket detentions like these are violations of international law.

Blanket detention of asylum seekers is barred under international treaties and conventions. They include the 1951 U.N. Convention relating to the Status of Refugees; its 1967 Protocol, the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child.

Such detention is also barred by non-treaty standards adopted by the consensus of U.N. member states including the U.S. These include the U.N. Standard minimum rules for the Treatment of Prisoners and the U.N. body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Accordingly, governments have the burden of showing the necessity for detention in prompt and individualized fair hearings before a judicial or similar authority. The U.S. government, however, seems not to intend to provide any of the detained asylum seeks any kind of hearing.

Oppression in America; Liberation Abroad?

The war in Iraq is occurring with the promise that Iraqis there will be liberated and allowed to live in peace and freedom, controlling their own democratic government. But when Iraqi-Americans and Iraqi asylum seekers are treated in the United States in the ways I have outlined above, how can this promise ever seem - or be - credible?

If the U.S. government truly has no grudge against the Iraqi people, as it keep insisting, then it should prove it. It should not assume Iraqi-Americans are suspect merely because of where they were born. And it should not treat asylum-seekers - those who seek the very freedom here, that we are promising in Iraq - like prisoners.

Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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