Legalizing Othering

Federal Measures

THE SEPTEMBER 11 ATTACKS marked a new chapter in US immigration enforcement, framing immigration as a national security issue. This resulted in the creation of the Department of Homeland Security and the assignment of immigration functions to this cabinet department.153 Additionally, the background of the hijackers led to the demonization, distrust and othering of those perceived to be Muslim, Middle Eastern, or Arab. The federal government proceeded with using perceived ethnicity, race, national origin and religion as a tool of law enforcement; implementing terrorism prevention programs that were discriminatory and ineffective. This section provides an overview of several federal programs and initiatives implemented since 2001 that have violated the rights of many individuals believed to be Muslim.

Federal Programs and Initiatives

Absconder Apprehension Initiative

In the aftermath of 9/11, one particularly contentious concern was the backlog of fugitive aliens: those ordered deported by an immigration judge but who failed to comply with their removal order and were still present in the US.154 As a result, the Absconder Apprehension Initiative was announced through an internal memo by former Attorney General Larry Thompson directing agents from the INS, FBI, and US Marshals Service to locate, apprehend, interview and deport approximately 314,000 people described as “absconders” or “alien fugitives.”155 As part of the effort to locate absconders, the personal information of 300,000 “fugitive aliens” was entered into the National Crime Information Center database, made available to federal, state and law enforcement agencies.156 Overall, the program sought to broaden the breadth of domestic criminal law enforcement through increased access to immigration information

Justified by the September 11 hijackers being Muslim, heightened scrutiny was assigned to those who were Muslim or perceived to be Muslim.157 Rather than targeting all absconders equally, the government concentrated its efforts on those who originated from countries in which there had been Al Qaeda terrorist presence or activity. From early 2002 to May of 2003, over 1,100 alleged absconders, almost all Arab or Muslim men, had been arrested and over two-thirds of them were deported.158 The program now exists as part of the US Immigration and Customs Enforcement’s National Fugitive Operations Program, which is not nationality-specific.159

PENTTBOM (Pentagon/Twin Towers Bombing Investigation) 

The Pentagon and Twin Towers Bombing Investigation (PENTTBOM) is the name of a substantial September 11th investigation that involved the participation of more than 4,000 special agents and 3,000 professional employees.160 Within two months of the attacks, more than 1,200 citizens and aliens had been detained as part of the investigation, with many being released without charge for any criminal or immigration offense. However, many were charged for a violation of immigration laws161 and preventively detained as “special interest” persons who could potentially be useful to the investigation.162 This violated immigration laws which held that persons could only be detained pending a removal proceeding, if it was determined that they were a danger to the community or flight risk.163

While the PENTTBOM investigation attempted to gain information about potential terrorist activity, most detainees were never linked to terrorist activity and the process of determining suspects was largely biased. Most alleged suspects were rounded up through arbitrary law enforcement encounters with male Muslim foreigners, or suspects were singled out based on neighborhood suspicions.164 PENTTBOM detainees were held in a range of federal, local and private detention facilities across various locations in the US.165

Interview Excerpt: Baher Azmy on the national security, criminalization, securitization and surveillance of American Muslim communities

BAHER AZMY IS THE LEGAL DIRECTOR AT THE CENTER FOR CONSTITUTIONAL RIGHTS. SEE OUR FULL INTERVIEW WITH AZMY AT HAASINSTITUTE.BERKELEY.EDU/ISLAMOPHOBIA

Islamophobia and the parallel US-driven militarism in Muslim countries across the globe have created a political and legal framework to alienate and stigmatize Muslim communities, which in turn has led to a subtle, but systematic practice to surveil, intimidate, harass, and ultimately criminalize Muslim communities. In its response to 9/11, the US engaged in a number of extralegal practices that turned on a presumption that Muslim men, albeit men who were believed to be hostile to the United States, were not entitled to the barest human rights protections, a position not taken by the US—despite the traditional escalation of executive power in times of war and other horrific acts of wartime aggression—in previous conflicts, including WWII and Vietnam. The United States developed a secretive, offshore prison in Guantanamo Bay, Cuba, to house a new category of human, an “enemy combatant,” seeking to hold them incommunicado, and indefinitely without any international human rights protections and in order to evade courts and the law. The US suspended the most elementary human rights guarantees against torture, and held dozens of men in secret CIA detention sites across the globe to freely engage in torture. The US also engages in a practice of targeted killings by drone strikes, including outside conventional war zones in Pakistan, Yemen, and Somalia, and while some drone strikes are particularly directed at individuals—including US citizen Anwar Al-Awlaqi—many are so-called “signature strikes” that drop massive bombs on groups of men who fit an imagined profile of a terrorist profile, killing hundreds of innocent people. Then there is Abu Ghraib. 

These external facing government practices, as they often do—see, e.g. McCarthyism and Red Scares— turn inward. National security narratives are deployed, in this case, by domestic law enforcement agencies, to control the asserted domestic threat from Muslims. Though domestic law enforcement cannot use blunt tools of warfare, they also did not use, for this asserted threat, the traditional tools of law. A range of sub-judicial practices emerged – based on areas of asserted law enforcement discretion and largely unsupervised by courts – to surveil, control, harass and ultimately criminalize Muslims. One can observe a pipeline of criminalization; call it a “Mosque to Prison” pipeline of increasing leverage and range of inputs along the pipeline. 

Shortly after these detentions took place, allegations of mistreatment among detainees surfaced. These allegations included reports that detainees were not being informed of the charges against them, not permitted contact with their attorneys, families and embassy officials, and remained in detention despite failure to prove any involvement in terrorist activities.166 Five detainees filed a class action lawsuit alleging they were physically and verbally abused, and held without a legitimate immigration or law enforcement purpose long after they received final removal or voluntary departure orders.167 Human Rights Watch issued a report arguing that the program instituted arbitrary detention, violated due process rights and the principle of presumption of innocence.168 On July 22, 2004 the National Commission on Terrorist Attacks Upon the United States (known informally as the “9/11 Commission”) issued a final report which relied on the PENTTBOM investigation and detailed the events leading up to the September 11 attacks.169 In 2004, PENTTBOM was down to a staff of 10 people.170

Closed Removal Proceedings

Although immigration judges may decide to conduct secret or closed removal hearings to protect sensitive information or to protect vulnerable people, removal proceedings are usually open to the public.171 Following the September 11 attacks, the longstanding practice of conducting immigration proceedings that were open to the public shifted to many immigration proceedings being held behind closed doors,172 with more than 600 closed immigration proceedings held from 2001 to mid-2003.173 The underlying justification was the premise that these designated persons of “special interest” could be potentially linked to terrorist activity and opening up proceedings could compromise the investigation. A July 2002 Human Rights Watch Report asserted that none of these detainees who had been designated as persons “of special interest” and subject to closed immigration proceedings had been charged with terrorism offenses.174 Detainees, members of the press, and the ACLU filed lawsuits alleging that these closed removal proceedings implicated the due process rights of detainees and the First Amendment rights of the press. However—citations are limited due to immigrants’ due process rights and protections in immigration trials—courts have held that any liberty interests in making immigration proceedings open to the public are outweighed in cases that pose significant national security concerns.175

National Security Entry-Exit Registration System (NSEERS)

NSEERS was a registration program that fingerprinted, photographed, and attempted to track all non-citizen males over 16 years of age from predominantly Arab and Muslim countries.176 The program not only required registration at ports of entry for those entering and leaving the country, but also required those already inside the US to periodically report to immigration officials.177 The program was championed by John Ashcroft, Attorney General during the Bush administration,178 and went into effect in 2002 in response to 9/11.179 The program was implemented as a mechanism to identify and eventually capture potential terrorists. It is now largely considered a failure, due to zero terrorism convictions resulting from the program.180 In 2009, a letter to the Obama Administration from the U.N. Committee on the Elimination of Racial Discrimination (CERD) urged the government to review NSEERS as a form of racial profiling in immigration policies.181 The “special registration” portion of the program, which required registration of those already present in the country, was suspended in 2003. The rest of the program was suspended in 2011, with the program’s regulatory framework remaining in effect until 2016.182

Canada-US Safe Third Country Agreement

In 2002, Canada and the US signed the “Smart Border Declaration and Action Plan” which went into effect in 2004183 and included a “Safe Third Country Agreement” as a means of reducing migration flows across their borders.184 The agreement requires persons seeking refugee protection at land-border ports of entry to make a claim for asylum in the first country in which they arrive, whether that be the US or Canada, unless they qualify for an exception,185 making it almost impossible for refugees to enter Canada by land.186 The main premise of the program is that conditions in both the US and Canada are sufficiently equivalent, and therefore there is no need to undergo the same asylum process in both countries. However, in response to President Trump’s Executive Order 13769, which suspended the US Refugee Admissions program,187 many Canadian civil rights groups called for the suspension of the agreement citing differences in Canadian and US refugee policy, which undermine its purpose.188 Specifically, civil rights groups argue that many refugees would have a valid asylum claim in Canada in the absence of this agreement. At the time of publication of this report, the agreement remains in effect.189

Change in Visa-Waiver Program

The visa waiver program is a reciprocity program implemented in 1986, which allows citizens of participating countries, including the US, to travel to other participating countries without obtaining a visa.190 Prompted by the Paris and San Bernardino attacks,191 Congress modified the program in 2015 through the enactment of the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,” 192 passed as part of an omnibus spending bill.193 The newly-modified Visa Waiver Program targets people who have visited Iran, Iraq, Sudan or Syria since March 1, 2011, making them ineligible to participate in the program with few exceptions.194 Further, the bar also applies to dual-nationals who are citizens of a country that participates in the program and are also citizens of Iran, Iraq, Sudan or Syria.195 The ACLU has labeled the bill arbitrary and discriminatory, specifying that it applies to those who had never stepped foot in Iran, Iraq, Sudan or Syria and obtained citizenship through descent.196 At the time of publication of this report, the modified Visa Waiver Program remains in effect.197

Targeting of Muslim Charities

One of the Federal Government’s first responses to the September 11 attacks was President Bush’s signing of Executive Order 13224 entitled “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (the “Executive Order”).198 The Executive Order, issued on September 23, 2001 prohibited transactions with any person or organization deemed by the government to be associated with terrorist activity and allowed for the blocking of assets of people or organizations believed to be associated with terrorist activity. This Executive Order was later strengthened through the promulgation of Terrorism Sanctions Regulations by the Treasury Department199 and the enactment of the U.S.A. Patriot Act by Congress.200

These legal actions provide for the imposition of civil liability and even criminal sanctions for organizations that provide “material support”201 to organizations designated as Foreign Terrorist Organizations.202 However “material support” is defined broadly and does not exempt humanitarian or peace building aid.203 This obscure definition of material support is particularly problematic given that international organizations may be particularly vulnerable to prosecution because their humanitarian missions compel them to work with communities that exist within “hotspots” of terrorism.204 As of 2011, the United States had shut down seven US-based Muslim charities.205 The ACLU has challenged these actions as “violating the due process rights of organizations” attributed to lack of notice, probable cause and opportunity for meaningful judicial review.206 In 2009, in a landmark ruling, a federal court sided with KindHearts, a charity whose assets had been frozen by the Treasury Department, holding that the Treasury’s actions violated the Constitution.207 However, at the time of publication of this report, the USA PATRIOT Act, including its broad material support provision, remains in effect.208

Countering Violent Extremism (CVE)

In 2011, the Obama administration announced the “National Strategy for Empowering Local Partners to Prevent Violent Extremism in the United States” which aimed to supplement and strengthen the law enforcement counterterrorism efforts in place.209 In 2014, the federal government introduced local pilot programs through the Countering Violent Extremism (CVE) initiative.210 The programs were aimed at deterring US residents from joining violent extremist groups through the granting of funds to community organizations, US attorneys’ offices and police departments.211 In turn, grantees were expected to collaborate with law enforcement to identify those “at risk” of engaging in terrorist activity.212 While the federal government denied that CVE was an intelligence gathering mechanism,213 FOIA requests made by the Brennan Center revealed that the programs were being used to gather intelligence on Muslims and social activists.214 While on its face, the CVE initiative focuses on curbing violent extremism in all its forms, the program in practice has almost exclusively targeted Muslim-American communities215 and made little effort to counter violence by other groups, including right-wing extremists.216 In fact, the Trump Administration has expressed that it would like to rename the program “Countering Radical Islam” or “Countering Violent Jihad,” to clarify that it targets American Muslims.217 The ACLU has been highly critical of the initiative, claiming that it incentivizes spying on community members, hindering “First Amendment-protected beliefs and activity.”218 The CVE initiative was still in effect at the time of the publication of this report.219

Federal Legislation

As was the case for federal programs and initiatives, the federal government proceeded with using perceived ethnicity, race, national origin and religion as a tool of law enforcement. What follows is an overview of three pieces of submitted federal legislation since 2001—none of which have been enacted—that aimed to violate the rights of individuals believed to be Muslim in the US. 

S. 520– The Constitution Restoration Act

The Constitution Restoration Act was introduced in the US Senate on March 3, 2005 by Richard Shelby, a Republican senator from Alabama, and was co-sponsored by nine other Republican senators.220 The bill sought to strip federal courts’ authority to review actions by the government or government officials that acknowledge God as a source of law, liberty or government. The content of the bill closely mirrored the content of anti-Sharia bills, restricting federal courts from relying upon international law or the laws of foreign countries when interpreting the Constitution. It proposed strict penalties for judges who violated the terms of the law, subjecting them to removal from office. Mark V. Tushnet, a Georgetown legal scholar, suggested that if passed, the bill would have violated impeachment law by allowing Congress to remove federal judges from office on the basis of a disagreement with a judge’s rulings.221 The bill was drafted by Roy Moore, the Chief Justice of the Alabama State Supreme Court,222 who gained notoriety when he installed and refused to remove a granite monument of the Ten Commandments in an Alabama state courthouse in 2001.223 Roy Moore grew into an important figure of the “dominionist movement” - a movement that aims to reassert the US as a Christian nation through the control of its cultural and political institutions.”224 The bill was not passed.225

Interview Excerpt: Hatem Bazian on the historical genesis of Islamophobia in the US and the importance of countering Islamophobia 

HATEM BAZIAN IS A TEACHING PROFESSOR IN NEAR EASTERN, ASIAN AMERICAN, AND ASIAN DIASPORA STUDIES AT THE UNIVERSITY OF CALIFORNIA, BERKELEY. SEE OUR FULL INTERVIEW WITH BAZIAN AT HAASINSTITUTE.BERKELEY.EDU/ISLAMOPHOBIA.

Islamophobia has been in the making for quite some time as evidenced in Covering Islam by Edward Said, and Jack Shaheen’s Reel Bad Arabs. The systematic targeting of Muslims and Arabs, and Palestinians in particular, took shape during the Reagan Administration, which fused immigration and national security policies, and was followed by President Clinton’s adoption of the 1996 Anti-Terrorism and Effective Death Penalty Act, which codified into law the targeting and exceptional treatment of Muslims and Arabs. 

Certainly the Islamophobia phenomenon witnessed a drastic spike post 9/11. The “war on terror” was forged with Muslim and Arab identities attached to it, which structurally led to the re-shaping of governmental institutions, and a focus on these targeted groups. “The US was not at war with Islam,” was positive on one level, but the adoption of the Patriot Act, the heavy securitization and infiltration of Muslim, Arab, and Palestinian organizations and spaces tarnished the efficacy of the statement.

The response to Islamophobia begins by reclaiming every aspect of civil society and countering the marginalization and silencing of Muslims, Arabs, and Palestinians. Best practices include coalition building among civil rights organizations, interfaith partners, and immigrant rights groups at the local level with a focus on city councils and mayoral offices to adopt inclusive legislation. More critically, civic leaders and institutions must double their efforts and provide ample space for Muslim, Arab, and Palestinian voices as well as provide access and visibility across all areas connected to institutions managed by cities and counties. Coalitions in Berkeley, San Francisco, Oakland, Portland, Seattle, New York, and countless other locations are important to examine and to investigate their successes, so as to foster the needed push-back against Islamophobia and Countering Violent Extremism (CVE) programs.

At the academic and scholarly levels, a shift in focus must take place. Research and academic initiatives must be supported, and more resources directed to address critical questions in the emerging Islamophobia Studies field. Both the media and the internet are where Islamophobia has long had an influential presence. Time and effort must be dedicated to crack the code that facilitates the mass distribution of bigotry and xenophobia through media and internet channels.

H.R. 3052 – Foreign Law Ban

On July 14, 2015 Tennessee Congresswoman Diane Black introduced a federal anti-Sharia bill.226 The bill’s language mirrors that of the model legislation provided by the American Laws for American Courts and aims to prohibit the use of foreign law in federal courts. In a press release, Representative Black stated that “we must ensure our judicial system is protected from an ideology [Sharia] that has no place within civilized society.”227 At the time of publication of this report, the federal anti-Sharia bill had not been enacted. 228

H.R. 6975 – Jihad Prevention Act

On September 18, 2008, Colorado Congressman Thomas G. Tancredo introduced a federal bill entitled “The Jihad Prevention Act.”229 The bill aims to amend the Immigration and Nationality Act to require non-citizens to attest they will not attempt to implement Sharia within the US in order to be eligible for entry. The law would also make advocating for Sharia a ground for revocation of visas and citizenship.230 At a Conservative Political Action Committee gathering, Congressman Tancredo referred to multiculturalism as a “cult,”231 and has expressed his concerns about Muslims being unable to assimilate and posing a threat due to Sharia.232 At the time of publication of this report, “The Jihad Prevention Act” has not been enacted.233