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Race profiling: back to the future?

Kevin Johnson On June 6, Attorney General John Ashcroft announced the latest in the federal government's national security efforts that "push the envelope" on civil rights. The National Security Entry-Exit Regis-tration System will impose special registration requirements on non-citizens who, as determined by the federal government, pose "national security risks."

Specifically, fingerprinting, photographing and added registration requirements will be required of nationals of Iran, Iraq, Libya, Sudan and Syria, and any other non-citizens determined by the State Department and the Immigration and Naturalization Service to endanger national security.

Total discretion will be in the hands of the Executive Branch. Courts may well uphold such limitless delegations of law enforcement power in the name of national security.

Nonetheless, the new registration system, and the systematic attacks on Arabs and Muslims of which it is a part, is contrary to our commitment to fundamental civil liberties. The new system is one of many of the federal government's responses that target the Arab and Muslim community and, to this point, have done little to bring terrorists to justice. The responses, however, have done much to frighten and terrify the Arab and Muslim communities in the United States.

Consider why this is the case.

Within weeks of 9/11, the U.S. government arrested and detained over 1,200 Arab and Muslim immigrants. The mass dragnet failed to produce any direct links to the terrorists acts. The federal government held another 500 Arabs and Muslims in custody on minor immigration-related matters, such as having overstayed their temporary visas.

The next move of the Justice Department was to interview about 5,000 young Arab and Muslim men who had arrived on non-immigrant visas in the United States since Jan. 1, 2000. There was no evidence that any of the thousands of men had ever been involved in terrorist activities.

Immigration policies followed. The State Department slowed its issuance of visas to persons seeking entry from Arab and other nations. In November 2001, the INS announced a mass arrest of non-citizens who had violated the terms of their student visas; the arrests were exclusively of students from nations with alleged terrorist links - Iran, Syria, Pakistan, Libya, Saudi Arabia, Afghanistan and Yemen. In early 2002, the Justice Department announced that it would focus removal efforts on 6,000 Arab and Muslim men subject to deportation orders.

Many of these measures may survive legal scrutiny, given the courts' willingness to afford great leeway to the federal government in both national security and immigration matters. In a similar time of national crisis when U.S. citizens were being held in Iran during President Jimmy Carter's administration, the courts upheld a regulation that required only Iranians on student visas to report to the INS and provide information about residence and evidence of school enrollment. Recent Supreme Court decisions further suggest that it will be difficult to prevail on any claim that the federal government is selectively enforcing the immigration laws.

Nonetheless, all of the measures directed at Arabs and Muslims in combination are contrary to fundamental notions of equality and the individualized suspicion ordinarily required by the U.S. Constitution. They exemplify the excessive reliance on race in the criminal investigation, a frequent problem caused by the delegation of excessive discretion to law enforcement, and once again shows how, once race (at least of non-whites) enters the process, it can come to predominate the investigatory process.

To target an entire minority group across the country for questioning is obviously over-inclusive, even if a handful of terrorists entered the country on temporary visas.

Thousands of law-abiding Muslims and Arabs enter this country each year for legitimate activities. Over one million persons of Arab ancestry in the United States, all who may feel threatened and under suspicion, cannot miss the not-too-subtle message sent by the federal government. The National Security Entry-Exit Regis-tration System will be just one more message to Muslims and Arabs in the United States and around the world that they do not truly belong in this country.

The federal government's reaction to the events of Sept. 11 promises to have deep and enduring civil rights impacts. The legitimacy of focusing law enforcement efforts on the entire Arab and Muslim community has rekindled the debate about the propriety of race profiling in law enforcement, an enduring problem for African-Americans, Latinos and other racial minorities in the United States.

In sum, the civil rights consequences may be the real casualty of the so-called "war on terrorism."

  • Kevin R. Johnson is Associate Dean of Academic Affairs and Professor of Law and Chicana/o Studies at the University of California, Davis School of Law. Johnson and Susan Akram (Boston University) are authors of "Race, Civil Rights, and Immigration Law After Sept. 11, 2001: The Targeting of Arabs and Muslims," which will be published in an immigration law symposium of the New York University Annual Survey of American Law (forthcoming 2002).
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