Pendulum Swings on Civil Liberties

There is growing concern that the Department of Justice (DOJ) has over-reached in the post 9/11 period, implementing several programs that have caused harm to Arab and Muslim immigrants and visitors to the United States.

Of particular concern have been: the large number of detentions and deportations that took place right after the 2001 terrorist attacks; the so-called "voluntary call-in" of 8,000 young Arab and Muslim immigrants; and the special registration program that has targeted visitors from twenty-five Arab and Muslim countries.

It has become a shared concern of many law enforcement officials and civil rights leaders that these programs have had a negative impact not only on the affected communities but on the United States’ overall effort to combat terrorism, and the image of the United States overseas.

While President Bush was articulating a message of support to Arabs and Muslims, these DOJ initiatives were undercutting that message. All of these efforts relied on crude profiling that targeted individuals on the basis of their religion and ethnicity. Fear was created as thousands of Arab and Muslim immigrants and visitors because concerned about their rights and status in the United States. The fact that many of those detained were held without charge, in secret, denied access to attorneys and their families, and in many instance, deported, fed this fear.

And the fear spread beyond visitors and immigrants. When in December 2002, 700 Iranian visitors were temporarily detained during the chaotic start-up of the special registration program-the much larger Iranian American community was shocked. The same is true among Arab Americans. Recent polling shows that concerns with the erosion of civil liberties and growing discrimination has spread to even first generation Arab Americans.

These programs created suspicion as well. Some Americans came to feel that if the DOJ was targeting tens of thousands of Arabs and Muslims, based on their religion and ethnicity, than maybe there was reason to suspect these individuals. So even while President Bush was urging Americans not to discriminate against Arabs and Muslims, a different message was being send by those DOJ initiatives.

All of this combined to produce an additional negative effect that is a great concern to law enforcement professionals. FBI and local police departments know that their success depends on developing relationships, based on trust with the communities in which they are working. It is for this reason, that in some areas, for example, Arab American-FBI Advisory Commissions are being established. When the programs imposed by the DOJ created fear and broke trust, it was these relationship-building efforts that suffered.

The fact is that, as several studies have established, these DOJ initiatives have had a negligible impact in combating terror. This is true despite DOJ efforts to project them as important tools in the overall campaign. It appears that the DOJ has deliberately obfuscated, presenting the numbers of immigrants who have been detained or deported as if they had something to do with the terrorism investigations, when, in virtually every case, these individuals were guilty of nothing more than violations of their immigration status. So when Attorney General John Ashcroft would say that as a result of the investigation into the terror attacks of 9/11, law enforcement had detained over 1,000 individuals, he was only being technically correct. These individuals were detained-but they were not charged with, nor was there any evidence that they had, anything to do with terrorism. But as a result of this deliberate conflation of two distinct situations (visa violators and the investigation into 9/11) the impression was created that thousands of Arabs and Muslims were somehow guilty-spreading fear and creating suspicion.

As a frequent traveler to the Arab world, I am aware of yet another negative impact of these DOJ initiatives. They have damaged the U.S. image and harmed our credibility and our relationship with the people of the region.

Because the effect of these DOJ programs have been well publicized in the Arab world there is a growing perception that Arab immigrants and visitors are not welcome in the United States. As a result many fewer Arabs are coming to the United States for medical treatment, tourism, study or business.

The good news is that there is a growing political coalition committed to challenging these practices, and they are having an impact. Broad coalitions of immigrant rights advocates have formed to demand an end to profiling, the registration program and other violations of civil liberties. Similarly, effected institutions like universities, hospitals and major businesses have mobilized to pressure for changes in the restrictive visa procedures that have made the United States appear to be less open to visitors and immigrants. And major studies have been done both by reputable independent institutions and official government oversight bodies that have called into question the legality of some of these practices and their effectiveness.

Last year, for example, the Justice Department’s own Inspector General issued a report that vindicated our concerns. The IG found that the Justice Department classified 762 of the detainees as "September 11 detainees." The IG concluded that none of these detainees were charged with terrorist-related offenses, and that the decision to detain them was "extremely attenuated" from the 9/11 investigation. The IG concluded that the Justice Department’s designation of detainees of interest to the 9/11 investigation was "indiscriminate and haphazard." and did not adequately distinguish between terrorism suspects and other immigration detainees.

The IG also found detainees were subjected to harsh conditions of confinement, including cells that were illuminated 24 hours per day, and confinement to their cells for all but one hour per day. Disturbingly, the IG also found, "a pattern of physical and verbal abuse by some correctional officers."

Last week I testified before a Senate Judiciary Committee hearing on "America after 9/11: Freedom Preserved or Freedom Lost?"

There was strong support for change. Many Senators expressed their concern with the behavior of the DOJ and there are now a number of bills in the House and Senate that seek to correct the post 9/11 abuses. In fact, the American public wants civil liberties to be protected, wants the United States to remain open and welcoming to Arab visitors, students and immigrants and law enforcement is eager to build positive ties with the Arab American community.

Two years after the United States was traumatized by terror, the pendulum now appears to be swinging back.