7 - 13 August 2003 - Issue No. 650

John Ashcroft has deported more Arabs and Muslims in 2002 than all the foreigners deported in the infamous Palmer raids of 1919. Robert Younes* writes from Maryland.

The United States is moving to deport 13,000 Arabs and Muslims to the Middle East. These are men and woman who came to the US to seek a better life and were subsequently caught up in the wave of hysteria about Middle Easterners after the tragedy of 11 September 2001.

Almost all of the people involved have either overstayed their visas, entered the US illegally, or have an infraction of US immigration laws. Armed with new legislation, it appears that the Bush administration is applying the laws without exception and without exercising any discretion when reviewing individual cases.

One case in point is that of Malek Zaidan, a Syrian national who was arrested by chance and jailed when it was discovered that he had overstayed his six-month tourist visa by 14 years. Zaidan was a successful canary breeder living peacefully in New Jersey. Although a thorough investigation of his background revealed no involvement in illegal or terrorist activities, he faces deportation from the US based on his visa violation.

Arabs and Muslims constitute a very small proportion of the estimated 3.2 to 3.6 million persons in the US who are "out of status", and the eight million who are undocumented, yet Arabs and Muslims are the prime target of this initiative. The majority of the more than 300,000 foreign nationals sought by the Bureau of Citizenship and Immigration Services (BCIS) -- a division of the newly formed Department of Home Land Security and formerly the Immigration and Naturalisation Services -- for ignoring deportation orders are Hispanic. Nonetheless, the Justice Department is choosing to target those who fit the "terrorist profile" first -- young men of Middle Eastern background.

The number of persons who will actually be "removed" from the US as a result of this programme is uncertain, but US Attorney-General John Ashcroft has already removed more Arabs and Muslims, who were neither terrorists nor criminals, from the US in the past year than the total number of foreign nationals deported in the infamous Palmer raids of 1919.

In 2002, the number of people deported rose from 1,264 in 2001 to 2,760. People from the Middle East represent only nine per cent of the total 150,000 to 180,000 -- mainly Mexicans -- who are deported every year. But Muslims and Arabs are being unfairly singled out due to a strict application of immigration procedures.

The US government has also initiated controversial restraints on the civil liberties of every American. Particularly frightening is the government's continuous racial, religious and ethnic profiling of Arabs, Muslims and South Asians. The latest in the government's series of ill-conceived and discriminatory policies is the implementation of the Special Call-In Registration System requiring all non-immigrant men over the age of 16 who are from a list of 18 Muslim countries, North Korea and Eritrea to register in person at immigration offices and to check in regularly with the government every year thereafter.

BCIS officials contend that the crackdown is part of a larger programme that intends to register all who enter and exit the US in order to improve control of its borders and those who live within the US. Critics charge that the enormous cost of the programme does not justify the human and monetary costs. Only 11 individuals from the Middle East have been deported who may have had possible links to terrorism.

In addition, a recent Justice Department report found "significant problems" in the way that many immigrants arrested after 11 September were treated. Many were chained and verbally abused, held without bail and denied access to lawyers. Worse yet, many arrested after 11 September were held incommunicado for months on the basis of secret evidence to which the detainees and defence attorneys were denied access.

One report on National Public Radio described the separation of a Syrian family who had been in America for more than 12 years. Three of their four children, all American-born, were placed in detention with their parents and another was placed in a government children's centre.

Secret evidence has been used in dozens of cases and immigration officials assert that national security concerns are the basis for depriving the right of immigrants to examine and confront adverse witnesses and evidence. Further, critics argue that the government has done more to unravel the rights guaranteed by the American Constitution than any terrorist has ever done.

Mazen Al-Najjar, a stateless Palestinian, began his ordeal when he was detained in 1997 on the basis of secret evidence. He was jailed without trial for three years. The Justice Department claimed that he was involved in terrorist activities and had violated his visa. He was released on a judge's order and then re- arrested. He was finally deported to Bahrain which refused to accept him. He was unceremoniously dumped at the Beirut Airport without approval of Lebanese authorities.

The use of secret evidence was first authorised by the 1996 anti-terrorism bill that followed the World Trade Centre and Oklahoma City bombings. Judges have tended to side with the defendant after examining the secret evidence used to incarcerate the immigrant. The Immigration Service, in response, has often appealed the ruling or defied the judge's order. For the first time, on 20 October 1999, a federal court weighed the constitutionality of the use of secret evidence and found it unconstitutional. Federal District Judge William Walls held that "the government's reliance on secret evidence violates the due process protections that the constitution directs must be extended to all persons within the United States, citizens and resident aliens alike."

Muslim and Arab groups have lobbied aggressively to repeal secret evidence laws. The Council on American-Islamic Relations, says "secret evidence is unconstitutional and is used disproportionately against members of the Muslim and Arab-American communities. Almost all of the individuals held based on secret evidence are Muslims and Arabs." CAIR argues that "the basic guarantee to due process of law contained in the constitution should not be denied to anyone."

However, the Supreme Court handed a victory to the Bush administration when it refused to hear a challenge to closed, secret deportation hearings held for hundreds of immigrants detained after the 9/11 attacks.

Racial profiling, according to David Harris, author of Profiles in Injustice, uses "race or ethnic appearance as a broad predictor of who is involved in a crime or terrorism". As a de facto policy, racial profiling dismisses the legal principles of "innocent until proven guilty" and "preponderance of evidence", and instead relies on "probable cause", "reasonable suspicion" and, perhaps most importantly, "compelling interest" to justify arbitrary interrogations and detentions. In effect, racial profiling constitutes the criminalisation of entire groups within the US. Racial profiling is the domestic counterpart of Bush's new foreign policy based on preemptive strikes: profiling and preemption work together to define the human targets of the "war on terror".

Objectionable on legal and political grounds, racial profiling of Arabs and others from the Middle East is also a particularly imprecise law enforcement mechanism given the tendency in the US to confuse and collapse Arabs and Muslims into one category, or to misidentify South Asians, Latinos, Africans and others as Arab Muslims. In the case of Arabs, racial profiling is premised on equating an "Arab-looking" person with terrorism.

On 11 September 2002, the Immigration and Naturalisation Service (INS), then part of the Department of Justice, began implementing a broad programme of "special registration" for certain "non-immigrant aliens" resident in the United States to facilitate the "monitoring" of people so registered "in the interest of national security". The body of rules governing special registration is now referred to as the National Security Entry and Exit Registry System (NSEERS). Registration is mandatory. Non-compliance and lack of truthful disclosure upon registration are grounds for deportation, and Attorney-General John Ashcroft declared that those failing to register upon exiting the US can be barred from subsequent re-entry.

Clearly the American government is cracking down on violations of US immigration laws on the books in the United States. It took 11 September to galvanise the congress to fund this effort. Most Americans support the actions of Homeland Security in its attempts to secure US borders, especially those who successfully jumped through the many hoops needed to gain legal residency and citizenship. Through years of immigration service under-funding, the enforcement laxity built into the system is now being remedied, much to the chagrin of those living in the United States under questionable circumstances.