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Beyond the Patriot Act: The Most Harmful State Policy Enacted in the Wake of 9/11

Deepa Iyer - The New Press

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Oct. 13, 2015

The United States is a racial state. We are the inheritors of systems and institutions that enable the denial of basic human rights to Indigenous and Black and Brown communities, from colonization to slavery, from Jim Crow segregation to Japanese American internment. The post-9/11 treatment of South Asian, Arab and Muslim communities by the US government continues this shameful legacy.

In the years after 9/11, the state took on several functions and roles, many of which operated in direct contradiction to one another. Federal government agencies conducted outreach and enforced civil rights laws that protected South Asian, Arab, Muslim and Sikh communities against discrimination and hate violence on the basis of race, national origin or religion. Simultaneously, other parts of the federal government implemented domestic policies that essentially treated South Asian, Arab and Muslim immigrants as the "other."

The state viewed members of these particular communities as potential threats who were worthy of suspicion. Through national security and immigration policies, the state targeted individuals from Middle Eastern, North African and South Asian countries, as well as those who practice Islam, for purposes of investigation, scrutiny, detention and deportation. The United States' rendition and torture policies, its treatment of detainees in Guantánamo, and its wartime and intelligence operations in South Asia and the Middle East all have significant consequences for South Asian, Arab and Muslim communities in the United States as well.

Despite the vast architecture of detrimental policies enacted after 9/11, many flew under the radar.

In effect, after 9/11, the state became both a champion for defending the civil rights of South Asians, Arabs and Muslims and the enforcer of harmful policies that led to the surveillance and detention of thousands of immigrants from these communities. These conflicting roles have been confusing and harmful because for many community members the state is one entity, seamless and interconnected. As a result, many government agencies have faced tremendous challenges in building trust and partnerships with South Asian, Arab and Muslim communities and the organizations that represent them. The state's actions have served only to reinforce public perceptions and media narratives that members of these communities are "others" who should be viewed with suspicion and whose rights, presence and lives are essentially disposable.

Despite the vast architecture of detrimental policies enacted after 9/11, many flew under the radar of the media and the general public. The most well-known piece of post-9/11 legislation is the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), which passed in Congress with little debate and was signed into law by President George W. Bush on October 26, 2001. The Patriot Act drew upon legal precedents to deter terrorism set by the far-reaching Antiterrorism and Effective Death Penalty Act (AEDPA), enacted by Congress in 1996. AEDPA broadened the definition of "national security" justifications, allowed the use of secret evidence against noncitizens suspected of supporting terrorist groups even if they did not personally engage in criminal activities, and made it a felony to provide material support to terrorist organizations even if assistance was directed toward lawful activities.

The Patriot Act took AEDPA several steps further. It increased the federal government's powers to conduct searches, surveillance and detentions with little oversight or governance. Some of the most criticized aspects of the Patriot Act include the ability of government officials to conduct searches and seizures without meeting the constitutional standard of probable cause if they suspect terrorist activity. This extended the government's authority to access records being held by third parties, including libraries and universities. The law also broadened the grounds for detaining and excluding nonimmigrants suspected of having ties to terrorist organizations. The extent to which the constitutional and privacy rights of Americans have been compromised through the application of the Patriot Act is still unclear. Between 2001 and 2014, Congress has reauthorized and amended the Patriot Act five times. In 2015, various provisions of the Patriot Act expired, including the bulk collection of phone records by the National Security Agency and the use of roving wiretaps by law enforcement authorities.

The Patriot Act's passage in 2001 also set the stage for an overhaul and reorganization of the federal government. In November 2002, Congress enacted the Homeland Security Act, which brought more than 20 federal agencies under the purview of the US Department of Homeland Security (DHS). The new agency's primary mission was to focus explicitly on terrorist response, both in terms of preventing attacks and preparing the country to confront future threats of terrorism. Several agencies fell under the ambit of DHS, including the Transportation Security Administration, the Federal Emergency Management Agency and a set of immigration agencies, including Immigration and Customs Enforcement, the US Citizenship and Immigration Services, and Customs and Border Protection.

Components of the US Department of Justice (DOJ) and the DHS implemented many of the policies that targeted South Asian, Arab and Muslim immigrants for ties to terrorist activities in the immediate aftermath of 9/11. The key tool in the government's arsenal became immigration law. Given that many South Asians, Arabs and Muslims were noncitizens, the government relied upon the immigration enforcement system to target these communities. This practice of blending national security and immigration policies has resulted in an unprecedented level of detentions and deportations of South Asian, Muslim and Arab immigrants in the decade and a half since 9/11.

Perhaps the most harmful state policy implemented in the wake of 9/11 is the National Security Entry-Exit Registration System.

Within 10 days after the terrorist attacks, for example, the DOJ issued an interim rule that gave federal law enforcement agents the ability to detain noncitizens for 48 hours or longer without charging them if the state could show that "an emergency or other extraordinary circumstance" existed. Armed with this expanded authority, government authorities arrested and detained 738 noncitizens between September 11, 2001, and August 2002. Those taken away became known as "The Disappeared," because they literally vanished from their streets, homes and small businesses. In addition, the government held more than 600 secret immigration hearings pursuant to a memorandum by the chief immigration judge, Michael Creppy. The media, family members and the public at large were barred from knowing the charges, evidence or outcomes of these cases, many of which involved South Asian, Muslim and Arab immigrant men. The government justified these tactics of arresting people from particular communities without charging them or conducting secret hearings with the use of one blanket phrase: "national security reasons."

It is still unclear which criteria the government used to determine whether individuals rose to the level of being national security threats. In many circumstances, Federal Bureau of Investigation agents and local police officers identified and detained individuals based not on evidence of their potential ties to terrorism or actual criminal behavior but on unconfirmed tips from the public or chance encounters. For example, on November 25, 2001, a resident in Torrington, Connecticut, informed police that he had heard two "Arabs" talking about anthrax. Police officers followed the two men (who were actually Pakistani) suspected of having had this conversation. When the two men reached a gas station, they were summarily arrested. Agents also arrested Ayazuddin Sheerazi, an Indian businessman who worked at the gas station, and another man from Pakistan who just happened to be at the gas station at the same time. The police did not offer any explanation for why they were arrested. Sheerazi was detained for 18 days before being released on bond; meanwhile, the Torrington caller failed a voluntary polygraph test regarding the tip. This incident is but one example of the government's use of inaccurate and unconfirmed information to detain community members and its failure to consider more measured alternatives or the civil rights repercussions on the people subjected to such enforcement actions.

In addition to forcibly detaining individuals from South Asian, Muslim and Arab communities, often without cause, the DOJ also conducted "voluntary" interviews of more than 3,000 nonimmigrant men from countries where al-Qaeda may have been in operation between September 11 and November 9, 2001. Despite the supposed voluntary nature of these interviews, some of the men questioned were arrested for violating immigration laws, including staying past the expiration dates of their visas or working without legal authorization. For these men, a voluntary government program turned into a serious investigative process with the risk of deportation.

Another policy, the Absconder Apprehension Initiative, implemented in January 2002, sought to locate more than 300,000 people with court orders of deportation already against them. As Asa Hutchinson, then-undersecretary for border and transportation security, explained before a congressional committee in 2003, the initiative was "aimed at aggressively tracking, apprehending, and removing aliens who have violated U.S. immigration law, been ordered deported, then fled before the order could be carried out." According to Hutchinson, the first phase of this initiative targeted "some 5,900 aliens from countries where Al Qaeda is known to operate or recruit." While the policy at first glance seemed like a race-neutral enforcement measure to locate all individuals who had run afoul of immigration laws, the actual implementation focused only on people from Middle Eastern, Arab and South Asian countries.

Some have argued that the federal government had the right to scrutinize individuals from Muslim-majority countries or those who practice Islam, given the origins and faith of the 9/11 terrorists. They also argue that the government had the authority to remove individuals who are not authorized to be legally present in the United States if law enforcement personnel become aware of such situations during the course of a national security investigation. But the outcome of deportation should not be the default when the intent and application of national security policies are premised on unlawful profiling of individuals on the basis of race, religion or national origin and without consideration of factors such as family ties and economic contributions to the United States. The selective enforcement of national security and immigration policies deprived South Asian, Arab and Muslim immigrants of their rights to equal protection under the law and presumed their guilt by association.

Behind the numbers of those deported are broken families and broken homes.

Perhaps the most harmful state policy implemented in the wake of 9/11 is the National Security Entry-Exit Registration System (NSEERS). On August 12, 2002, the DOJ published a final rule in the Federal Register that set forth registration requirements for nonimmigrants (individuals in the United States temporarily, such as students, visitors and temporary workers) entering the United States from certain countries. Under the rule, nonimmigrant males, 16 years and older, from specific countries had to report to immigration authorities upon arrival; 30 days after arrival; every 12 months after arrival; upon events such as a change of address, employment or school; and upon departure from the United States. Individuals who did not comply with NSEERS were placed into a database that could be shared with local law enforcement and were at risk of being apprehended at a later point.

While the program may seem like an important mechanism to monitor who enters the United States, NSEERS was actually applied to nonimmigrants from only 25 countries: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates and Yemen. Most of these countries are located in the Middle East, North Africa or South Asia; almost all have majority-Muslim or significant Muslim populations.

The Federal Register final rule revealed the reasons why the federal government implemented NSEERS: "Recent terrorist incidents have underscored the need to broaden the special registration requirements for nonimmigrant aliens ... whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals to ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay." In other words, the federal government deemed the NSEERS program necessary to ensure the country's national security. In instituting NSEERS, the state exposed two dangerous assumptions: (1) it presumed that people of particular nationalities or faiths were more likely to have ties to terrorism or knowledge of terrorist activities, and (2) it affirmed its authority to subject entire swaths of particular faith and national origin communities to "special" requirements without any evidence of individual criminality or even potential wrongdoing.

Around the country, lawyers and activists sprung into motion to denounce NSEERS. Many community members expressed dread and alarm when the first round of special registration began at the end of 2002. Misinformation spread, heightened by the fact that, at first, the government did not engage in its own outreach or provide in-language notices of the registration requirements beyond publishing them in the Federal Register, a federal publication not easily accessible to the public, much less by immigrants who are not proficient in English. As a result, many were not aware of special registration requirements, and no one could be sure of what would occur during the registration process.

As soon as the first round of registration began, reports of differential treatment from region to region emerged, with some striking examples of mistreatment and improper interrogation. In December 2002, the immigration office in Los Angeles allegedly arrested up to 700 individuals who had come to comply with the requirement, casting doubt on the program's purported data-gathering motives. In addition, the information sought by the government seemed suspicious and disconnected from the publicly stated goals of NSEERS. Many of the men who complied with NSEERS nationwide reported that immigration authorities asked them for their financial records, their travel histories to Middle Eastern and South Asian countries, and their connections with political or religious organizations, including which mosques they frequented. Still others were unfairly detained and harassed by immigration enforcement officers. Legal challenges to NSEERS did not succeed, as federal courts have consistently found that the United States acted within its constitutional authority in implementing a program aimed at preserving national security.

We have yet to fully grapple with the financial and psychological toll on families split apart by the National Security Entry-Exit Registration System.

The National Security Entry-Exit Registration System took a significant toll on South Asian, Muslim and Arab communities at many levels. At the time, I worked at the Asian Pacific American Legal Resource Center, a local, community-based organization that connected low-income Asian Americans with legal services. We coordinated a legal clinic in 2003 at the Muslim Community Center in Silver Spring, Maryland, to address NSEERS requirements. During the clinic, many community members expressed confusion and anxiety. One after the other, green card holders, US citizens, refugees, undocumented immigrants and students of Pakistani, Bangladeshi and Indian descent described the fears that had permeated their families and communities since 9/11, as well as their increasing feelings of marginalization and exclusion in the United States.

After the legal clinic, a Pakistani family approached me. Clinic lawyers had just informed the father that he fell under the NSEERS guidelines. He understood that because he was undocumented, it was likely that he could be put into deportation proceedings if he complied with NSEERS. Yet not registering meant that he might be subjected to fines and eventual deportation. "Can anything be done at all?" his wife asked me pleadingly. Her husband was the sole breadwinner for the family, and his deportation would mean that her family would be separated and that their children's futures would be permanently altered. I had no answers for her. There were no words to explain the injustice behind policies that targeted her family simply because of their nationality and faith, and there were no meaningful alternatives to offer.

We now know that nearly 83,000 men complied with the National Security Entry-Exit Registration System program, and that more than 13,000 of them were placed in deportation proceedings. Thirty-five percent of those who were deported as a result of NSEERS were of Pakistani descent. Given these high numbers, advocates believe that the government automatically placed individuals in detention if any immigration irregularities were found without utilizing discretion and weighing various factors, such as family ties in the United States.

Behind the numbers of those deported are broken families and broken homes. Small businesses holding the hopes of Pakistani and Bangladeshi families on thoroughfares like Coney Island Avenue in Brooklyn, New York, had to close their doors. Dreams of college or work were deferred or discarded altogether. Brothers, fathers, husbands and sons were separated from their sisters, children, wives and mothers. Deported men struggled to make new lives in countries they had left in search of their American dreams. At the same time, those they were separated from had to make impossible decisions about whether to return to their country of origin and join a deported son, father, brother or husband or rebuild lives in Queens, Chicago or Fremont. We have yet to fully grapple with the financial and psychological toll on families split apart by the National Security Entry-Exit Registration System.

Meanwhile, the federal government has not revealed whether information of any importance to the nation's security was gathered during NSEERS. In 2011, the government announced the removal of the countries listed under NSEERS because it had identified more effective ways to gather information about foreign nationals in the United States. The Obama administration acknowledged that NSEERS "does not provide any increase in security" and the DHS Office of Inspector General called for the full termination of the program. Advocates continue to press the DHS to provide a reprieve for those who did not comply with NSEERS as well as immigration benefits to those who registered and were indiscriminately placed in deportation proceedings.

Note: This excerpt was drawn from We Too Sing America: South Asian, Arab, Muslim, and Sikh Immigrants Shape Our Multiracial Future by Deepa Iyer, published by The New Press in 2015.


Deepa Iyer

Deepa Iyer is a national figure in movements for racial and immigrant justice in the United States. She served as executive director of South Asian Americans Leading Together (SAALT) for a decade. Iyer is currently the senior fellow at the Center for Social Inclusion where she addresses issues of structural racism and multiracial solidarity building in the United States' changing racial landscape. Iyer honed her legal and policy skills at the Civil Rights Division of the US Department of Justice, the Asian Pacific American Legal Resource Center, and Asian Americans Advancing Justice.