Journeys in a Racial State
By:
DerekThursday, September 9, 2021
On the eve of the twentieth anniversary of 9/11, author Deepa Iyer shares her reflections and a call to action.
My book We Too Sing America, originally published in 2015, chronicles how South Asian, Arab, Muslim and Sikh communities addressed the crisis point of September 11th and its aftermath of bigotry, backlash, and government targeting. As we mark the twentieth anniversary of 9/11, I have been reflecting on the emergencies facing today’s generation from the global pandemic to the intense political polarization. How do we address these flashpoints with responses that break cycles of vengeance and scapegoating, and are instead guided by a vision of equity, humanity, and solidarity? We can more effectively understand and respond to today’s crisis points if we recognize the mistakes we made in the wake of 9/11 and commit to making different choices now.
I wanted to share a chapter from the book that provides a journey back in time to the days and months after 9/11 when the federal government engaged in a series of misguided decisions. As you read, I invite you to reflect on the through lines between these policies and current events unfolding today. For example, the current surveillance state is the result of laws passed before and after 9/11, which enabled law enforcement entities to collect and share information regardless of individualized suspicion. The overwhelming allocation of resources to the military in the wake of 9/11 partly explains why public health infrastructure is crumbling in the midst of a global pandemic. The alarming situation in Afghanistan since American troops withdrew exposes the failure of the United States to rebuild the region’s systems and institutions during the endless war.
On the twentieth anniversary of 9/11 and beyond, we must take time to engage in a process that includes deep reflection, an honest reckoning, and, hopefully, significant course correction. -- Deepa Iyer
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America 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 the Japanese American internment. The post-9/11 treatment of South Asian, Arab, and Muslim communities by the U.S. government continues this shameful legacy.
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. America’s 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.
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.
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 twenty federal agencies under the purview of the U.S Department of Homeland Security (DHS).6 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 U.S. Citizenship and Immigration Services, and Customs and Border Protection.
Components of the 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 two decades since 9/11.
Within ten 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 forty-eight 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 non-citizens 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 six hundred secret immigration hearings that were pursuant to a memorandum by 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.”
Another policy, the Absconder Apprehension Initiative, implemented in January 2002, sought to locate more than three hundred thousand people with court orders of deportation already against them. As Asa Hutchinson, 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.
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 Department of Justice 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 sixteen years and older from specific countries had to report to immigration authorities upon arrival; thirty days after arrival; every twelve 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 twenty-five 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.
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 seven hundred 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.
NSEERS took a significant toll on South Asian, Muslim, and Arab communities at many levels.
We now know that nearly 83,000 men complied with the NSEERS program, and that more than 13,000 of them were placed in deportation proceedings. 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 in thoroughfares like Coney Island Avenue in Brooklyn 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, and Fremont. We have yet to fully grapple with the financial and psychological toll on families split apart by NSEERS.
Citizenship and Belonging in Post-9/11 America
U.S. citizens and lawful permanent residents, commonly known as “green card holders,” also experienced the impact of post-9/11 profiling and discrimination. The government policy called the Controlled Application Review and Resolution Program (CARRP) affected citizens-in-waiting or those eligible for naturalization in particular. Under CARRP, the U.S. Citizenship and Immigration Service (USCIS) subjected certain lawful permanent residents who had applied for naturalization to differential treatment simply because of their country of origin. USCIS identified or labeled naturalization applicants as “national security concerns” if an individual had traveled to or paid remittances to family members living in a country that has known terrorist activities, made a lawful donation to a charity that was accused of supporting terrorist organizations, or was found on a terrorist watchlist. Not surprisingly, CARRP disproportionately affected South Asian and Arab lawful permanent residents seeking to be naturalized. The naturalization adjudication process became a process that lasted years for some community members.
Those who hold U.S. citizenship—either by birth or by naturalization—have been negatively affected in the post-9/11 climate as well. The privileges and guarantees of citizenship become meaningless for South Asians, Arabs, and Muslims because of state policies and public actions against members of their communities who are immigrants. Legal scholar Neil Gotanda calls this process citizenship nullification. Asian Americans in particular face the prospect of citizenship nullification because of the pervasive perception that they are “perpetual foreigners” who are unable to assimilate or integrate and who are disloyal to the United States, regardless of their American citizenship. These perceptions were at the core of anti-immigrant policies that targeted Asian immigrants in the early twentieth century and Executive Order 9066, which authorized the internment of Japanese Americans during World War II.
Citizenship nullification has occurred in the post-9/11 climate as well. American citizens of South Asian, Arab, Muslim, Sikh, and Hindu backgrounds realized that the legal privileges of citizenship did not exempt them from discrimination or targeting, either by the public or by the state. Citizenship status has few, if any, visible identifiers. Therefore, all those who “look” like they could be Muslim or from a South Asian, North African, or Middle Eastern nation—regardless of their citizenship—became potential targets in post-9/11 America.
Many activists and scholars have compared post-9/11 profiling practices to policies that the government implemented during World War II when nearly 120,000 individuals of Japanese descent—two-thirds of whom were American-born citizens—were forced into internment camps because of their presumed disloyalty to the United States. The U.S. Supreme Court upheld the executive order that led to the internment, stating that the “exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group.” For this unjust policy and decision, the Supreme Court, Congress, and the executive branch have made considerable apologies. As recently as 2011, the then acting solicitor general of the United States Neal Katyal declared a “Confession of Error” in decisions made by his office to justify the internment of Japanese Americans. Katyal noted that the solicitor general did not disclose important information that discredited allegations of Japanese disloyalty when the U.S. Supreme Court considered cases that challenged the internment.
Post-9/11 policies and the narratives used to justify them bear an eerie resemblance to those implemented during World War II. Their ultimate ineffectiveness, selective enforcement, and relatively tenuous relationship to—or success in—fighting terrorism generate the inquiry: are these policies, in effect, ways to purge America of its “undesirable” immigrants? Given the ongoing harmful impact of the post-9/11 policies on South Asian, Arab, and Muslim immigrant communities, the answer to this question is yes.
Changing Course
The United States has run afoul of both constitutional and international human rights standards in the post-9/11 environment. Given the valid criticism from legal scholars, advocates, and international human rights bodies, the United States must take critical steps to roll back the harmful impact of post-9/11 practices. These include amending the 2014 anti-profiling guidance to close the loopholes and exemptions; ending ineffective programs to counter violent extremism that focus exclusively on Muslim communities; and ceasing federal surveillance, mapping, and information-gathering programs. The government must also analyze and share publicly the outcomes of many of the policies and programs described in this chapter, from NSEERS to CARRP. This information should include the extent to which national security goals were reached as well as the numbers and nationalities of people placed in detention and deportation proceedings as a result of post-9/11 national security investigations.
While it might seem impossible in today’s climate, advocates should press the state to begin a process of documenting post-9/11 civil and human rights violations and considering apologies and reparations. In so doing, we can draw upon the lessons from the Japanese American redress movement, which used a variety of strategies—including a public commission that documented the impact of the internment, financial reparations, the passage of civil rights legislation (the Civil Liberties Act of 1985), and a formal apology by Congress and the president.
Similarly, Congress should establish a commission to document the lived realities and experiences of South Asian, Arab, Muslim, and Sikh communities in the post-9/11 environment through public hearings around the country. The commission should provide a set of recommendations for action by federal government agencies and Congress. In time, perhaps the U.S. government will offer confessions of error in denying equal protection under the law in the wake of 9/11 similar to those that were made upon review of activities taken during the internment of Japanese Americans during World War II. As Professor Eric Yamamoto has observed in relation to the Japanese American redress movement, “Reparations, if thoughtfully conceived, offered and administered, can be transformative. They can help change material conditions of group life and send political messages about societal commitment to principles of equality.”
In seeking governmental apologies and redress for post-9/11 violations, South Asian, Arab, and Muslim communities must be fully engaged in and supportive of similar efforts on behalf of African American, Native Hawaiian, and indigenous communities. On this point, Yamamoto’s reflections on the legacy of the Japanese American redress movement are apt. He asks of Japanese Americans, “Would we draw upon the lessons of the reparations movement and work to end all forms of societal oppression, or would we close up shop because we got ours?” The liberation and legacy of South Asian, Arab, Muslim, and Sikh immigrants must go well beyond this notion of being satisfied with “getting ours.” Instead, they are inextricably linked to racial justice movements for all communities of color in the United States.
This post was written by Deepa Iyer, Strategic Advisor at Building Movement Project and Director of Solidarity Is, and includes an excerpt adapted from her book We Too Sing America: South Asian, Arab, Muslim, and Sikh Immigrants Shape Our Multiracial Future. Copyright ©2015 by Deepa Iyer.
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