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Reasonable Fears, Difficult Law Enforcement Problems


Friday, Oct. 12, 2001

Recent immigrants to the United States from Middle Eastern countries are, for good reasons, worried about the aftermath of the September 11 terrorist attacks. While I have read news stories of this problem, it hit home when I spoke with my neighbors, who are Muslim. They have lived in the United States for over a decade, and have become citizens. Nonetheless, they are very frightened.

Middle Easterners find little comfort in President Bush's symbolic acts, such as his inviting Muslim leaders to the White House and visiting the Islamic Center located on Washington's Embassy Row. Nor do they find sufficient assurance in the President's comment to the Congress and nation: "No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith."

What frightens them is finding themselves the object of suspicion and hate, and knowing our history. They know what happened in the United States to Japanese, Germans and Italians during World War II. They are worried it could happen again, this time to those of the Islamic faith. And they feel themselves to be objects of unwanted special attention, for they are being profiled — both consciously and unconsciously — by others.

These are not problems with easy, if any, solutions.

Post-September 11th Immigration Detention Policy

Neither the FBI nor the Immigration and Naturalization Service is issuing press releases as each sweeps the country for aliens it suspects to have connections with terrorists. Clearly, the situation has required law enforcement authorities to act quickly. No doubt most Americans take some comfort in these round-ups — but they may frighten those of Middle Eastern descent.

So far, several hundred Middle Eastern aliens have been arrested. On September 18, the Department of Justice advised the INS that they could hold immigrants without charges for 48 hours — doubling the typical 24 hour period. Moreover, even the doubled period can be waived (indefinitely) in "extraordinary circumstances."

Since the United States has launched its attacks on the Taliban and Al Qaeda targets in Afghanistan, efforts to round up even more potential terrorists have accelerated. Now Attorney General John Ashcroft has directed the FBI to focus on preventing further attacks, rather than the investigation of the September 11th attack — but those of Middle Eastern origins remain likely to be suspects.

Law enforcement, and military, authorities are just getting started. Osama bin Laden and his lieutenants' threats to Americans — in propaganda statements calling for an Islamic jihad — only exacerbate the situation.

New Laws Regarding Immigrants

Meanwhile, Attorney General Ashcroft wants new laws to fight terrorism. Among other new measures, he seeks authority to lock up immigrants once he "certifies" that they are suspected of "facilitating" terrorist activity. He also wants the ability to deport immigrant aliens without presenting any evidence.

Finally, as has been done with prior wars, Ashcroft wants to suspend the Constitutional right of habeas corpus for any action taken when detaining any alien. (A petition of habeas corpus brings the detained person before a federal court, so that a federal judge can determine whether there are legal grounds for the detention.)

Congress has been moving carefully. So far, the Attorney General has not obtained everything he wants. "We will not violate people's basic rights as we make this nation more secure," House Majority Leader Dick Armey (R. — TX) has said.

Senator John Kyl (R. — AZ) added, "Let me address briefly the concerns voiced by some of my colleagues. Namely, that we are in danger of 'trampling civil liberties' in our rush to pass counter-terrorism legislation. I reiterate that we are not rushing. The legislation we have already passed, and the legislation now offered by the administration, was under consideration long before the events of September 11."

Words of concern are important. Actions, however, are more telling. The rumor in Washington is that if the Attorney General does not get what he needs from Congress this time, he will return.

To date, nothing suggests the government is planning to take the extreme measures with immigrants from Middle Eastern countries that were taken during World War II. But this is not to say that history will not repeat itself.

History's Lessons With Immigrants

History teaches that in times of war, our survival-driven enthusiasm, which often parades as patriotism, can easily become an ugly xenophobic zeal.

In 1919, for example, with the storm clouds of World War I still over the United States, Woodrow Wilson's Attorney General —who was convinced that the Bolsheviks had bombed his home —planned and executed raids in more than 30 cities that resulted in the arrests of between six and ten thousand immigrants. As property and people were seized, due process was ignored. While the bench and bar criticized the practice, deportations of suspected communists were wholesale.

Palmer's "Red Raids" were not an historical aberration. Even more extensive actions were taken against immigrants during World War II.

Horror stories of the internment of Japanese Americans are well known. President Roosevelt signed Executive Order 9066, which resulted in relocating Japanese living on the West coast to inland camps. The FBI searched their homes without warrants, seeking contraband (short wave radios); separated families into different camps; prohibited the practice of the Shinto religion; and forced countless small businessmen to go bankrupt.

Virtually every right guaranteed American citizens under the Bill of Rights was denied these Japanese American citizens — not to mention their family members who had not obtained citizenship but lived with them.

It is apparent, too, that many Italians Americans did not fare much better than the Japanese Americans during WW II. Only last year, the Congress enacted the Wartime Violation of Italian American Civil Liberties Act. It calls for the Attorney General to report on WW II activities by November 7, 2001.

Like Italians and Japanese, Germans were rounded up and placed in interment camps during the war as well. Just a month before the September 11th terrorist attack, Senators Russell Feingold (D — WI), Charles Grassley (R — IA) and Ted Kennedy (D — MA) introduced legislation directed at cleaning up what appears to be the last of the World War II xenophobia. These senators have called for a commission to review the United States' WWII activities against Germans in the U.S.

During World War II, for all practical purposes, American citizens of Japanese, Italian and German descent were officially presumed disloyal, if not actually enemies within. Yet it was never proven that any of these people were a threat to the United States, or had acted in any way to harm their adopted land.

Will New Surveillance Technology Replace Profiling?

Chief Justice Rehnquist has stated, in a speech about civil liberties in times of war, that "[t]he authority of the government to deal with enemy aliens in time of war, according to established case law from our Court, is virtually plenary." The Chief Justice has also written that the laws are silent in times of war.

In short, immigrants can take little comfort in our Constitution and laws, for it seems that the government can do almost anything it wants in time of war. But is there a better way?

In a recent article in the New York Times Magazine, law professor and legal writer Jeffrey Rosen explored the new world of surveillance technology. Rosen examined the state-of-the-art "biometric" method of identifying people by measuring unique physical characteristics, and traveled to Great Britain to study their nearly nationwide system of camera surveillance.

This technology is not without promise for dealing with the problems that WW II curfews and internments sought to address. However, it has not yet reached the stage where it is really a viable alternative.

Professor Rosen found that the placing of cameras everywhere has not helped the United Kingdom keep an eye on terrorists. According to his article, this technology is, however, believed to worry a lot of ordinary criminals that they are being watched.

Based on Rosen's reportage, it seems that, rather than actually tracking potential terrorists, this surveillance is more of a "feel good" technology for citizens worried about terrorism. It seems best suited for bored watchmen at the control centers to keep a voyeuristic eye on attractive women caught by these omniscient cameras.

In short, we do not yet have a technological solution for the problem of a suspected immigrant that would eliminate practices like profiling.

Profiling And Hate Crimes

We are all aware of the reports of Middle Eastern men being asked to get off airplanes because the flight crew and other passengers are afraid of them. These men, in particular, are being singled out for baggage and body searches. State and local police are stopping and questioning "swarthy"-appearing men as never before.

This is somewhat understandable. What is neither understandable, nor tolerable, are those individuals who are pushing vigilance into vigilantism.

There has been a new rash of hate crimes against Arabs, Muslims, Sikhs, or anyone thought by the uninformed vigilante to be a potential terrorist or sympathizer. For example, there are reports in New York City of attacks on Yemeni-owned delis, the shooting of a Sikh cabdriver, and assaults of Arabs and Pakistanis on subways and on the street. Police are discovering a disproportionately high number of such incidents since September 11th, and not only in New York.

Appropriately, law enforcement authorities are vigorously prosecuting such hate crimes. But these small-minded acts of hate only compound our nation's problems.

Clearly, law enforcement needs to keep its focus on the broader problems of terrorism. The necessary investigation and prosecution of these hate crimes drains time and resources. Such terrorist acts against innocent people make the perpetrators the equivalent of the true objects of their hate: the terrorists who hijacked planes to attack the World Trade Center and Pentagon.

I have no answers for these problems. Nor can I assure my Muslim neighbors that history will not repeat itself. Yet it seems that talking about these problems openly, and often, may help. To paraphrase an observation made by Susan Sontag, writing in the New Yorker in the aftermath of the of the September 11th attack, it is wonderful to pull together as a nation. But let's not all be stupid together.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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