ACLU Briefing: Discrimination

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.

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 <>.

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 <> or <www.syracuse.>). 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.)