Chapter Five
Discrimination Against Minorities and Immigrants

"The Hun within our gates is the worst of the foes of our own household," warned former president Theodore Roosevelt as America fought Germany during World War I. "Hun" was a slur used to refer to Germans, and Roosevelt was concerned that both newly arrived German immigrants and Americans of German descent might seek to undermine the U.S. war effort. "Every disloyal native-born American should be disfranchised and interned," said Roosevelt. "It is time to strike our enemies at home heavily and quickly."⁸⁸ Roosevelt's comments reflected the anti-German sentiment and general xenophobia, or fear of foreigners, that was prevalent in the United States at the time. Such sentiments led to widespread discrimination and ethnic bashing against German, Italians, and other minorities throughout World War I. The United States experienced a similar wave of xenophobia again during World War II, when the Japanese bombing of Pearl Harbor led the U.S. government to intern more than 110,000 Americans of Japanese ancestry, many of the them U.S. citizens.

Anti-Muslim Violence and Discrimination

Throughout U.S. history, during war and other times of national crisis, immigrants and ethnic minorities have been the first and worst victims of civil liberties curtailments. Time and again, when Americans have felt threatened, they have projected their fear and anger onto foreign-born or foreign-looking individuals living in the United States.

In the immediate aftermath of the September 11 terrorist attacks, the Council on American-Islamic Relations (CAIR) confirmed six hundred reports of anti-Muslim violence, vandalism, and harassment. For example, Muslims in California discovered what appeared to be pig blood thrown on the door of a mosque (a great insult because Islam holds that pigs are unclean), and shots were fired at an Islamic center in Irving, Texas. One man suspected of being Muslim, Balbir Singh Sodhi, an Indian-born father of five, was shot to death at the Phoenix gas station he owned by a man who yelled "I stand for America all the way"⁸⁹ as he was arrested by police. Fortunately, violence and hate crimes quickly tapered off within a month or so, but even discounting the six hundred incidents immediately following September 11, the CAIR confirmed a 15 percent increase in reports of anti-Muslim violence from 2001 to 2002. Additionally, less obvious forms of discrimination persisted: In the first fifteen months after September 11, the federal Equal Employment Opportunity Commission received over seven hundred complaints of employment discrimination from Muslims, Arab Americans, and South Asians.

These incidents show that xenophobia and discrimination are still a reality in the United States. Nevertheless, the initial phases of the war on terrorism also offer hope that Americans have begun to put such tendencies behind them. "One area where America—government and people—has vastly improved on its past is in its treatment of a threatened minority during war,"⁹⁰ writes Newsweek's Fareed Zakaria. Almost immediately after the September 11 attacks, national leaders, from New York's Mayor Rudolph Giuliani to President Bush, issued calls for tolerance and asked people not to vent their anger on Muslims or Arab Americans. "America counts millions of Muslims amongst our citizens, and Muslims make an incredibly valuable contribution to our country," said President Bush in a September 17, 2001 address. "In our anger and emotion, our fellow Americans must treat each other with respect.… Those who feel like they can intimidate our fellow citizens to take out their anger don't represent the best of America, they represent the worst of humankind, and they should be ashamed of that kind of behavior."⁹¹ Bush's comments reflect most Americans' belief that discrimination based on religion or ethnicity is wrong.

The Debate over Ethnic Profiling

With regard to homeland security, the possibility of discrimination arises most obviously in the use of profiling by law enforcement. Profiling is a technique wherein law enforcement officials use what they know about a criminal to narrow down the field of potential suspects. For example, if witnesses report that two young white men robbed a convenience store, the police would concentrate their resources on stopping and questioning young white men in the area rather than nonwhites, women, or older men.

Profiling creates civil liberties concerns when law enforcement agents apply it in too broad a manner, using one characteristic, such as race, as the sole factor in deciding who is a suspect. The most commonly cited example of racial profiling is the practice of police targeting blacks for traffic stops because the police believe that blacks are more likely to be engaged in criminal activity than whites. This practice has been declared illegal by the Supreme Court because overreliance on one factor—in this case race—violates the equal protection clause of the Constitution, which states that the government must apply the law equally and may not give preference to one group of citizens over another.

Similarly, it is illegal for airport security workers to single out an individual to be searched based solely on the fact that he or she is a Muslim or of Arab descent (since terrorists today are most likely to fit those characteristics). Federal aviation regulations state that "an air carrier … may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry."⁹² U.S. secretary of transportation Norman Mineta, a Japanese American who was himself interned during World War II, has affirmed his department's opposition to ethnic profiling, declaring that "all of us will face heightened security in the aftermath of September 11, but the security and scrutiny must never become pretexts for unlawful discrimination."⁹³

Random Searches and Strained Resources

Instead, all major airports use a system (which was implemented before September 11) called the Computer Assisted Passenger Pre-Screening System (CAPPS). CAPPS is a computer program that uses information about passengers to screen for indicators that suggest whether they may have ties to terrorism or other criminal activities. In part because of pressure from civil liberties groups, CAPPS generally does not profile based on national origin, religion, ethnicity, and gender, instead emphasizing indicators such as whether a passenger buys a one-way ticket or pays with cash rather than a credit card. CAPPS also randomly selects some passengers for search, so that individuals trying to evade detection by fitting a low-threat profile may still be searched.

Before September 11, CAPPS only profiled passengers who checked their bags, which meant that 40 to 80 percent of passengers were not profiled. After September 11, CAPPS profiling was extended to all passengers, and the resulting enormous increase in the number of people being searched strained airport security and made for large delays at the airport.

Ethnic Profiling: A Complex Issue

The line between justified and unjustified ethnic profiling can often be difficult to determine, as authors David Cole and James Dempsey discuss in their book Terrorism and the Constitution.

"The ethnic profiling issue is complicated in the wake of September 11 attacks by the fact that some use of ethnicity is probably permissible. When a bank reports a robbery, and describes the robbers as three white men in their thirties wearing blue shirts, the police can rely on race in seeking to identify and catch the suspects. In that setting, the use of race does not carry any negative stereotypes connotations, but is simply an identifying marker, like the fact that they were wearing blue shirts.… Ethnic profiling, by contrast, consists of the reliance on race as a generalization about future behavior.… Such reliance on generalizations is probably always impermissible, whereas reliance on race as an identifying criterion is usually permissible.

In the aftermath of September 11, it was often difficult to separate out these two uses of ethnicity. If law enforcement agents had reason to believe there were others involved in the planning and carrying out of the attacks or that their associates might have been planning further attacks, and that these others were Arab or Muslim men, then relying on ethnic criteria to identify guilty parties may have been permissible.…

[However,] the use of an ethnic identifying factor becomes more objectionable when it is applied on a nationwide basis over an extended period of time. It is one thing to say that the police, having only the information that three white men robbed a bank, question all white men in the vicinity of the bank immediately after the robbery. It would be another matter for the police nationwide to keep interviewing white males until they find the bank robbers."

While no one contends that airport security is perfect, the government's stance on ethnic profiling has been particularly controversial. Critics argue that not including religion, ethnicity, and country of origin in profiling techniques is absurd. "Islamic terrorists will necessarily be Muslims, and probably from the Arab world. Not to profile for these characteristic is simply to ignore the nature of today's terrorism,"⁹⁴ writes Richard Lowry of the National Review. Lowry contends that if ethnicity and national origin were among the CAPPS criteria, all of the September 11 hijackers probably would have been flagged by airport security. Moreover, critics argue that the government has simply gone too far in its efforts to prevent discrimination. They argue that random searches are performed primarily to defend against charges of ethnic profiling and that these searches waste security resources and therefore diminish security efforts.

"It's time to end the madness of mindless airport searches and institute a prudent, thoughtful system of racial profiling,"⁹⁵ writes John Fund of the Wall Street Journal.The critical and legally complex question is whether a profiling system that uses factors such as ethnicity would be unconstitutional. Even many opponents of ethnic profiling say that using ethnicity as one of many factors may be permissible, but they warn that such a system would always be prone to abuse. The federal Transportation Security Administration has announced plans to implement CAPPS II, a new profiling system that will take many additional screening factors into account. However, CAPPS II will not be implemented for several years. (Complicating matters, CAPPS II has come under fire from privacy groups because it uses data mining techniques similar to those used in the Terrorism Information Awareness project.)

Targeting Immigrants

While discrimination against Muslims and Arab Americans has received considerable attention, many civil libertarians feel that the government's treatment of immigrants, both legal and illegal, is a much greater cause for concern. Security measures targeted at immigrants include the roundup and subsequent detention of over seven hundred immigrants in the days after September 11; the deportation of thousands of immigrants for minor violations of immigration law; the closing of immigration hearings to the public; and the expansion, under the USA PATRIOT Act, of the attorney general's power to detain legal immigrants. In addition, as part of the creation of the Department of Homeland Security (DHS), the federal Immigration and Naturalization Service was dissolved and immigration control duties were transferred to DHS. A report from the National Immigration Forum (NIF) states, "This reorganization is a powerful signal that all immigrants will now be viewed as terrorist threats."⁹⁶

The government's focus on immigrants in the war on terrorism is understandable. All nineteen of the September 11 hijackers were immigrants, and fifteen of them were in the United States on expired visas. Many politicians argue that September 11 demonstrated the need to strictly enforce immigration laws. "It is now imperative that we better monitor who we admit into this country, and insure that people honor the terms of their admission," states former Colorado governor Richard Lamm. "We must monitor whom we admit, where they are, whether they are going to the schools they were admitted to attend, and we must know when they leave or don't leave.… We must better protect ourselves against illegal immigration so we can better protect ourselves against terrorists."⁹⁷

Critics, however, note that the new security measures have been directed mostly at immigrants from Middle Eastern countries. Civil libertarians are concerned that the government is targeting immigrants based on their ethnicity. According to a report from the Migration Policy Institute (MPI),

Rather than relying on individualized suspicion or intelligence-driven criteria, the government has used national origin as a proxy for evidence of dangerousness. By targeting specific ethnic groups with its new measures, the government has violated [a] core principle of American justice: the Fifth Amendment guarantee of equal protection.⁹⁸

Immigrants-rights advocates say that if the government were selectively applying certain laws to citizens in this manner, there would be a public outcry against such discrimination, but because mostly noncitizens have been targeted, the public has ignored it.

Government Actions Targeting Immigrants in the Weeks After September 11

The following time line provides a brief overview of the government's efforts to investigate immigrants and enforce immigration laws in the weeks after September 11.

September 11–18, 2001: Law enforcement officials detain over seven hundred noncitizens on immigration charges.

September 20, 2001: The Department of Justice issues a temporary order allowing the detention of noncitizens without charge for forty-eight hours (or an additional "reasonable period of time") in the event of emergency.

September 21, 2001: The Department of Justice instructs immigration judges to keep September 11–related bond and deportation hearings closed, allowing no visitors, family, or press and releasing no records or information about the cases.

October 26, 2001: The USA PATRIOT Act becomes law. Among its provisions is a section empowering the attorney general to order the detainment of any immigrant believed to pose a threat to national security.

October 31, 2001: Attorney General Ashcroft issues an edict allowing the detainment of immigrants even after an immigration judge has ordered their release for lack of evidence. The measure, in effect, results in indefinite detention.

November 9, 2001: The Department of Justice asks five thousand male immigrants from Arab countries to report for voluntary questioning.

November 13, 2001: President Bush issues an executive order permitting noncitizens accused of terrorist activity to be tried in secret military tribunals rather than normal civilian courts.

November 16, 2001: The Department of Justice announces that it will not disclose the identities of immigrants being detained.

Mass Roundups, Detentions, and Deportations

One of the most publicized and controversial actions that the government took in the days after September 11 was to detain over seven hundred noncitizens for violations of immigration laws such as staying in the United States beyond the date that their visa expires. Many of those detained were soon released, and none was charged with any terrorism-related crime. But the FBI ordered that more than one hundred detainees would be held without the possibility of bond until they could be completely cleared of any connection to terrorist activity. This process took an average of over two months, and in some cases more than eight months. During this time, detainees were subjected to harsh living conditions and their names were not released to the public.

Civil libertarians object to the secrecy as well as the manner in which the detainees were rounded up, arguing that in relying mostly on ethnicity and country of origin, the government engaged in discriminatory profiling. "There is considerable evidence," notes a report from the Center for Constitutional Rights, "that detainees have been singled out on the basis of their racial and ethnic backgrounds and religious convictions, rather than any specific evidence of wrongdoing."⁹⁹ A report from the Department of Justice's Office of the Inspector General supports this charge: "The FBI should have expended more effort attempting to distinguish between aliens who it actually suspected of having a connection to terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism."¹⁰⁰

Other civil liberties groups have argued that the detention of immigrants violates the Fifth Amendment guarantee that no person shall "be deprived of life, liberty, or property, without due process of law." Critics say that the detention of persons for two to eight months is out of proportion to the normal course of action for an overstayed visa, and therefore in violation of the due process clause. The Department of Justice disagrees: "We have done everything within the bounds of our statutory authority," says Jorge Martinez, a department representative. "These individuals have violated our immigration laws, and we have the authority to arrest and detain them—plain and simple."¹⁰¹

The mass detentions were only the beginning of a series of government actions targeting immigrants. Section 412 of the USA PATRIOT Act, passed in October 2001, gives the attorney general the authority to detain immigrants, legal or illegal, if there are "reasonable grounds to believe" that they present a threat to national security. The attorney general is not required to share the evidence on which the detention is based.

Then, in June 2002, the Department of Justice announced a special registration program targeted at immigrants from twenty-five Arab and Muslim countries. Noncitizens from those countries were required to submit to being questioned, fingerprinted, and photographed by April 2003. Critics questioned why any immigrant with ties to terrorism would comply with the program, but government officials say that the program uncovered eleven individuals with such ties, out of the more than eighty thousand immigrants who came forward. More troubling for immigrants-rights advocates is that thirteen thousand of those who came forward were marked for deportation for violations of immigration laws. Critics say that the deportations are punishing immigrants who have complied with the law. "People did register out of their good conscience, because they wanted to follow the rules, respect the law," says Fayiz Rahman of the American Muslim Council; he contends that the real goal of the registration program was to "reduce the number of Muslims on American soil."¹⁰² In response to charges of discrimination, DHS officials have said that the registration of Arab immigrants was only the first phase of a broader program and that eventually immigrants from other countries will also be required to register.

Working with Immigrant Communities

In its report "Immigrants in the Crosshairs: The Quiet Backlash Against America's Immigrants and Refugees," the National Immigration Forum argues that immigrant communities could be valuable intelligence resources in the war on terrorism, but that current policies have made immigrants afraid to come in contact with law enforcement officials.

"There are things the government could do that would greatly assist its ability to collect intelligence within the U.S. Using the increasingly popular tactic of community policing, police departments across the country could redouble their efforts to build trust in immigrant communities. By establishing good relations with communities of the foreign born, the police will be in a better position to collect useful bits of intelligence that might prevent future acts of terrorism. An overhaul of our immigration laws would also increase opportunities to gain intelligence on those already inside the U.S. Providing opportunities for undocumented immigrants to step out of the shadows and gain legal status, in exchange for making themselves known, would significantly shrink the haystack within which the needle of terrorism hides.…

On this score, government actions have hindered, rather than helped, the fight against terrorism.… The government seems to have come under the influence of those who would treat all immigrants as terrorists. The cumulative effect of a series of government actions at all levels has created a siege atmosphere in immigrant communities, particularly those of Middle Eastern descent.…

Instead of looking for the needle in the haystack, the government has added bale after bale of hay to that haystack. If the goal is finding and rooting out potential terrorists among us, many of the initiatives launched in recent months can only be counterproductive."

The Rights of Immigrants

The various government actions affecting immigrants in the war on terrorism raise the question of what civil liberties protections immigrants are entitled to. America's history of curtailing the rights of immigrants in times of crisis suggests that Americans may believe that noncitizens enjoy few constitutional protections. But the Supreme Court, in its 1896 decision in Wong v. United States, ruled that immigrants as well as citizens are protected by the Bill of Rights. More recently, the Court ruled in the 2001 case Zafvydas v. Davis that although illegal immigrants are subject to deportation, they are entitled to due process and equal treatment under the law in deportation proceedings. The Department of Justice's decision in September 2001 to close immigration hearings to the public—excluding even family members and the press—may therefore be unconstitutional.

The United States is engaged in a war on terrorism, and effective homeland security measures cannot ignore the fact that terrorists today are most likely to be Muslim, foreign-born, and of Arab descent. But this fact does not justify discrimination. Whether the issue is airport security or the enforcement of immigration policies, the Constitution requires that laws be applied with regard to individuals' unique circumstances and not just their membership in a larger group.