This is the second in a series of Patriot Act briefing papers prepared by the ACLU as part of the national Bill of Rights Defense Campaign (BORDC). These teaching tools inform the public about the disturbing broad powers of the Patriot Act (and other laws) and the threats posed to freedoms heretofore protected by the Bill of Rights.
The Constitution guarantees equal protection of the laws, but the government
has adopted enforcement strategies that target individuals based on country
of origin, race, religion and ethnicity. This involves blatant racial and religious
profiling, and is deeply offensive to democratic principles of fairness and
equality. While it is true that some legal rights are based upon citizenship
(e.g. voting in federal elections), non-citizens in the US are entitled to equal
treatment, due process, and other constitutional protections. It is striking
that since 9/11 many so-called anti-terrorism initiatives distinguish between
citizens and non-citizens — making immigration status a proxy for evidence
of criminality.Targeting people based solely on their religion or ethnicity
is not only discriminatory; it is also ineffective. Of the millions of non-citizens
in the US, legally or not, only a handful has been tied to 9/11 or other terror
plots. Profiling therefore squanders law enforcement resources by pursuing leads
that have no significant relationship to terrorism. It also foments hostility
and mistrust in immigrant communities, making it difficult to recruit agents,
hire translators, and obtain cooperation in searching for the real perpetrators.
Massive Dragnet Operation
In the aftermath of 9/11, more than 1,000 men of Arab and South Asian
origin were detained in a massive dragnet operation. Many were held for months,
but only one person was ever charged in connection with the terrorist attacks
(Zacarias Moussaoui). Some of those held without bond had overstayed their visas
or committed other technical violations of the immigration laws - infractions
that would rarely result in incarceration prior to 9/11. Others were held without
bond as “material witnesses”; but witnesses are rarely incarcerated
in criminal cases. It has since become clear that these individuals were not,
in fact, witnesses, but rather suspects against whom no formal charges could
be lodged for lack of evidence. Not since the internment of Japanese-Americans
have we locked up so many people for so long with so little justification.
Indefinite Detention
In October 2001, Congress passed the USA Patriot Act, which empowers
the Attorney General to detain a non-citizen if he has “reasonable grounds
to believe” the individual may be a threat to national security. “Reasonable
grounds” is a much lower standard than the Fourth Amendment’s usual
requirement of “probable cause.” The suspect can then be detained
for seven days before criminal or deportation charges are brought, but thereafter
may be detained indefinitely in six-month increments without meaningful judicial
review.
Selective Enforcement
In an internal memo made public in November 2001, the Department
of Justice explicitly adopted a policy of selective immigration enforcement.
Certain immigrants who have overstayed their visas are now targeted for speedy
deportation based on their national origin.
Mandatory Interviews of Men
On November 9, 2001, Attorney General Ashcroft unveiled a plan to
interview 5,000 young men who had entered the US from specified countries within
the previous two years. As those interviews were nearing completion, the program
was extended to 3,000 more Middle Eastern and South Asian immigrants who had
recently entered the country. Ashcroft conceded there was no particular suspicion
that led to inclusion on the list.
Registration and Fingerprinting
In June 2002, Ashcroft announced the implementation of a National
Security Entry-Exit Registration System involving the fingerprinting and tracking
of approximately 100,000 Arab and Muslim immigrant men, age 16 and over, from
18 Muslim countries, North Korea and Eritrea. Failure to report for registration
can lead to the arrest and deportation of otherwise lawful visitors. On December
16, 2002, citizens of Iran, Iraq, Libya, Sudan and Syria were required to register.
In Southern California, up to 700 men and boys, representing about one-fourth
of all those who came forward, were arrested by federal immigration authorities
after voluntarily registering. In most cases the INS arrested men who had pending
green card applications or who had minor visa problems due to INS incompetence.
Citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North
Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates and Yemen were required
to register by January 10, 2003.
Foreign Students
The USA Patriot Act amended the Family Education Rights and Privacy
Act of 1974 (FERPA), which generally bars an academic institution from releasing
a student’s education records without the student’s consent, unless
the school has been mandated by court order or subpoena. When records are subpoenaed
under FERPA, the school is required to inform the student so that he or she
can go to court to seek to quash the subpoena. The USA Patriot Act now allows
the government to obtain a secret court order to obtain transcripts, financial
aid and disciplinary records based on nothing more than an assertion that the
information is “relevant to a terrorism investigation.” The law specifically
targets foreign students with visas, permitting the FBI to obtain personal information
about such students, which is routinely reported by academic institutions to
the INS and the Department of State.
Employment Discrimination
The Aviation and Transportation Security Act of 2001 makes US citizenship
a pre-condition for employment as an airport screener. As a consequence of this
law, thousands of lawful permanent residents of all nationalities, many of whom
were in the process of becoming naturalized citizens, were summarily fired with
no legal recourse.
Sources:
ACLU, “Insatiable Appetite: The Government’s Demand for New and Unneccesary
Powers after September 11, Oct. 2002 (Revised April 2003)
D. Goldberg, V. Goldberg, R. Greenwald (eds.), It’s a Free Country: Personal
Freedom in America after September 11 (RDV Books 2002)
“USA Patriot Act” (Pub. Law 107-56) Sections 412, 507-508 <http://thomas.loc.gov>.
BORDC Alive and Well in CNY
People across the country are organizing to pass legislation decrying the loss
of constitutional protections in the name of national security. While such legislation
is ostensibly symbolic, there are 3 states and more than 150 cities and counties
that have passed anti-Patriot Act resolutions. In response to these efforts,
a bi-partisan vote in the House recently approved a law blocking the “sneak
and peek” provisions of the Act. Several Democratic Party presidential
candidates promise to repeal the Act if elected.
Local efforts are directed at the Syracuse Common Council and Onondaga County
Legislature. Building on the presence of more than 100 people at a first meeting
on June 25th, there is now an active coalition of which SPC is a part. There
are committees working on visibility, education and legislation. What you can
do: call the CNY Civil Liberties Chapter (471-2821) to learn more and to get
involved. Ask your City Councilor and County Legislator to become educated about
the issues and to support legislation (for contact info see <www.ongov.net/Legislature/members.html>
or <www.syracuse. ny.us/councilMap.asp>). Come to the County Legislative
session on Sept. 2 to support Legislator Mark Stancyzk’s resolution. The
public will be invited to speak at 1:30 pm, with the session scheduled to begin
at 2:30 pm. (Call 435-2070 if you want to speak.)