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Moderator:
Pat
Florestano, NAPA Fellow, Vice Chair of the Federal System
Panel, and
Member of the Board of Trustees, University System of Maryland
Speakers:
Timothy
Edgar, Legislative Counsel on National Security and Immigrant
Rights, American Civil Liberties
Union (ACLU)
Kareem
Shora, Legal Adviser, American
Arab Anti-Discrimination Committee (ADC)
In opening, Pat Florestano noted that when
the September 11attacks occurred, the nation had been going
through a series of court cases and public discussions of
racial profiling, mostly involving state and local police
traffic stops of young black men. Tim Edgar of the ACLU observed
that at the beginning of the current Bush Administration,
the issue of racial profiling had gained particular attention
because Attorney General John Ashcroft had promised to take
steps to prevent racial profiling.
Profiling, or discriminatory treatment based
on racial or ethnic background, has involved not only stopping
people on the highways but also stopping and frisking people
on the street or in other situations where police interact
with residents. This has been particularly common in places
where people congregate, especially in low income inner city and black
neighborhoods where drug use, drug sales, or other criminal
violations have been reported. Since September 11, with the
increased concerns about terrorism, more public attention
is going to incidents of profiling based on perceived ethnic
background or religion.
Mitchell Rice agreed that racial profiling
is not a new issue; people of color are very used to it. Kareem
Shora of ADC noted that prior to September 11, the chief organizations
working against racial profiling were the ACLU and NAACP.
ADC became involved after September 11, when the government
identified 19 Arab men as the hijackers of the planes that
hit the World Trade Center and the Pentagon. Media and citizens
began talking about increased suspicion or hostility toward
Arabs, Arab-Americans, and others who look like they may come
from Arab countries. The ADC recently completed a 165-page
report, "Report
on Hate Crimes & Discrimination Against Arab Americans:
The Post-September 11 Backlash," documenting examples
of discriminatory treatment of Arab-Americans since September
11. The ACLU has issued a shorter report on a similar
subject.
"Most people don't like the sound of
[racial or ethnic] profiling, but that support may be soft,"
said Edgar. Since September 11, the ACLU has seen the pendulum
swing back toward condoning racial and ethnic profiling in
the interest of combatting terrorism. For the first time in
many years, the ACLU has organized an advertising campaign
calling attention to the importance of civil liberties. Edgar
observed that official policies seem to be turning away from
racial and ethnic profiling in the last few months, but the
ACLU continues to monitor policies and actions that reflect
discrimination against individuals and groups based on ethnicity
or religion.
The key question ACLU is posing: Does concern
about terrorism justify doing something different from what
we would otherwise accept in this country as civil liberties
people should enjoy? The ACLU's answer is "No" for
several reasons:
a - Singling people out for differential
treatment based on their ethnic or racial background in extremely
inefficient as a law enforcement technique because it focuses
on a characteristic that applies to a huge number of people.
b - To be effective in improving homeland
security, efforts should focus on information more closely
related to the likelihood of a security threat.
Edgar said the main argument for taking more severe steps
to fight terrorism is that terrorism is different and has
a much larger impact than other crimes. But if that is the
case, the ACLU asks, why use a technique that is ineffective,
such as racial or ethnic profiling?
Edgar and Shora agreed that even if security
officials were trying to focus on Arabs or Muslims, they could
not identify them based on appearance: "You can't look
at someone and tell whether they are Arab or Muslim."
Muslims come from many backgrounds, and it is not easy to
distinguish Arabs from many other peoples from the Middle
East and other parts of the world. In addition, they noted
that the number of terrorists who represent threats to citizens
is very small, and are not likely to be apprehended if official
policies try to track or question all people of Muslim faith
or Arab descent in the United States. Shora maintained, "We
know who the enemy is. Let's go after the enemy," not
discriminate against all Arabs or
Arab-Americans.
He observed that profiling would not have
helped identify people such as Richard Reid (the so-called
"shoe bomber") or Jose Padilla, some of the major
terror suspects apprehended since September 11. "Professionals
in law enforcement and anti-terrorism know it doesn't work:
you can't identify terrorists that way. Therefore I have to
conclude either that the politicians know and are denying
the truth or they just haven't paid attention." Emerson
Markham offered that the reactions of government and citizens
since September 11 "have to be put into the context of
how we always act in this country. Whenever we have problems
1) Congress tries to act; politicians like to seem as if they
are doing something about a
problem; 2) people who don't know much about the situation
get scared and they look around for an easy fix; 3) we all
look for a cheap fix."
EXAMPLES OF PROFILING IN HOMELAND SECURITY
INITIATIVES
Edgar and Shora presented several examples
of discriminatory treatment that they did not believe was
necessary or effective in fighting terrorism. Since September
11, at least half a dozen airline travelers have been prevented
from taking their scheduled airline flights on the basis of
their appearance or ethnic origin. (Under the current rules
governing commercial aviation in the United States, the pilot
has the right to bar anyone from a plane or refuse to fly
if s/he is uncomfortable or concerned about the safety of
the plane and the circumstances in which they would be flying.)
Some of the passengers were U.S. citizens; most were not Arab.
The process of obtaining student visas to study in the United
States has been made more difficult, particularly for students
from "Al Qaeda harboring countries," which is reducing
the number of foreign students in U.S. schools and universities,
hurting the country's reputation in other nations, and diminishing
the chance to build good relations with a future generation
of citizens and leaders.
The ACLU is focusing on two other areas
related to differential treatment of certain groups for purposes
of homeland security: U.S. policies affecting immigrants and
the specific exclusion of non-citizens from serving as airport
security screeners, including permanent residents and U.S.
nationals born in overseas territories, even if they had been
safely and effectively performing the same jobs for the airlines
prior to establishment of the Transportation Security Administration.
[NOTE: On November 15, 2002, U.S. District Judge Takasugi
in California issued an injunction preventing TSA from putting
the citizenship into effect, finding that the non-citizens
had made sufficient allegation of constitutional deprivation
to warrant a finding of irreparable harm. However, the decision
simply allowed the laid-off non-screeners to reapply for airport
screening jobs after TSA had filled virtually all of the more
than 45,000 positions nationwide.]
A number of formal policies proposed by the current Administration
single out specific categories of people, notably immigrants:
a - pursuing people with outstanding orders
for deportation
There are more than 314,000 people who have violated the terms
of their visas. The federal government is targeting only those
from what it identifies as "Al Qaeda harboring countries."
(Though there are more reported Al Qaeda members in Germany
than in some Middle East countries,
Germany is not on the list.)
b - interviewing people from certain countries
and backgrounds for information about possible terrorists
or terrorist threats.
The official government policy is to question immigrant men
aged 18-34 who come from "Al Qaeda harboring countries,"
but some of the people called in for interviews have been
naturalized citizens from Arab countries or even Arab-Americans
born in this country.
c - fingerprinting immigrants from certain
countries as they enter the United States. Those who refuse
may be put into the nation's crime data bank.
Earlier this fall, the government of Canada put out a notice
(since rescinded) that its residents might be in danger if
they traveled to the United States; even Canadian citizens
who came from suspected Al Qaeda harboring countries could
be detained for interviews, fingerprinted, or deported. Edgar
cited an example of one Canadian who raised suspicions among
U.S. border guards and was deported not back to Canada but
to Syria.
Finally, Edgar noted that the endorsement
of these new forms of "profiling" has slowed the
progress of ongoing initiatives to prevent other forms of
racial profiling. Some states have adopted their own laws
against racial profiling by state and local law enforcement
authorities, but there is no longer any momentum behind the
federal proposal to collect data on traffic stops (which the
Bush Administration had previously supported). He predicted
that federal legislation against racial profiling will not
pass in
this session of Congress.
DISCUSSION OF AIRPORT SECURITY MEASURES
The moderator asked what the ACLU or ADC
says to an 80-year old women stopped and searched at airport
security gates when people who are more likely to fit the
profile of terrorists are allowed to go through. Edgar noted
the purpose of airport screening is not to identify terrorists
but instead to prevent any prohibited items from being carried
on board, whether by a grandmother or a teenager. "You
don't want weapons on the plane."
David Chu asked the speakers what they would
propose to improve airport security, and raised the option
of a "trusted traveler" card which would allow pre-qualified
travelers to avoid screening.
The speakers did not have objections to
the "trusted traveler" programs but suggested that
focusing on groups who have or have not historically been
involved in terrorism would not necessarily help in apprehending
future terrorists. After all, Shora said, "Flying planes
into buildings hadn't historically been used as a terrorist
technique either."
Shora also observed that terrorists may
be evil but they are not stupid. Edgar agreed: "The hijackers
on September 11, 2001, were careful not to violate any of
the rules about what they could carry onto a plane, so they
would not have been caught by airport screening, even if everything
had been working perfectly at the security gates. You have
to catch terrorists in other ways."
For Arabs and Muslims, they also pointed
out that the challenge of qualifying as a "trusted traveler"
may be particularly great because many names are very common.
Some people with the same name as someone on an official list
of suspected terrorists have been repeatedly stopped at airports
and detained, even when they have been given formal letters
from the government verifying that they are not the wanted
individuals. And even after they have been interviewed and
cleared by the government security
officials at the airport, they may still be excluded from
a flight by a suspicious pilot. "Their luggage is left
on the first flight, they aren't put through any more screening
to board the next flight, so it's not a
security issue: it's pure and simple racial or ethnic prejudice."
RELATIONSHIP TO INTERGOVERNMENTAL RELATIONS
Beryl Radin raised questions of how federal
initiatives on homeland security and racial profiling have
affected intergovernmental relations and the federal system.
For example, local police have been asked to bring in hundreds
of immigrants for questioning by federal officials. "The
local police don't want to do it, because they'll lose the
respect and trust of their communities." Edgar agreed
that when the federal government wanted to get immigrants
together for questioning about terrorism, it didn't have sufficient
staff to do the job itself so it asked local law enforcement
to help. In some cases, the police refused, saying there was
not sufficient evidence against the individuals for them to
bring them in for questioning
under local laws. Where state policy and law conflict with
federal policy, that creates tension between federal, state,
and local governments, and cooperation and effectiveness you
need on the broad range of law enforcement matters will be
hurt. . . . It is also an extremely important matter that
state and local law enforcement have not traditionally been
used in immigration cases. . . . There are certain rules on
domestic spying and use of local law enforcement for enforcing
immigration [rules]."
Both speakers and other participants agreed that it is essential
that the local police be able to maintain their relationship
with the local residents, including immigrants and non-citizens,
or they will not be willing to come forward when local crime
or domestic violence occur in the community. Enid Beaumont
cautioned that if the federal government offered money to
state or local governments to carry out federal policies such
as immigration or national security functions, the state and
local governments might be bought off. That is a dangerous
threat to the state and local authorities and to citizens.
Edgar also observed that local law enforcement will have to
defend against charges of abuses if they do become involved
in discriminatory practices.
RECOMMENDATIONS FOR MORE EFFECTIVE AND NON-DISCRIMINATORY
POLICIES AGAINST TERRORISM
On the question of what the ACLU or ADC
would recommend to reduce the threat of terrorism, Edgar and
Shora offered several suggestions:
1 - airport security, including more effective
techniques of screening passengers and baggage.
Neither ACLU nor ADC is opposed to "trusted
traveler" cards. Shora suggested that rather than just
asking for an individual's name and one form of identification,
the screeners should ask for one or two other pieces of data
such as birthplace or Social Security Number. "The system
depends on terrorists giving their real name. They could give
a false name, clear the name check, and get on the plane."
2 - improved procedures for administering
immigration policies including better checks at border crossings,
INS computers that connect to each other, visa issuers who
follow the law, and biometric identifiers on immigration documents
3 - better methods of identifying and apprehending
terrorists
Edgar said that the ACLU doesn't support
requiring national ID cards: "It is very expensive and
would only result in terrorists with ID cards rather than
without. It is better to spend the money on identifying terrorists."
He pointed out that when you have a special need, you should
design a special system, such as a special ID card developed
for screening people at airports. The larger scale the system,
the more likely it is to be corrupted. "What you want
is a very narrow ID system, that is very hard to forge. Birth
certificates are very easy to forge. They are issued by every
county."
4 - providing more funding for security
and using the government and community resources better
One of the objections of Senator Byrd (D-WV)
to establishment of the U.S. Department of Homeland Security
has been that the Administration has been proposing a lot
of changes without providing money for them; it has not even
spent all the money Congress has already appropriated for
homeland security.
5 - avoiding actions that isolate and alienate
the Arab community, including in this country
6 - focusing on policies and procedures
that are most likely to be effective at reducing terrorism
Shora and Edgar recommended that the federal
government should hire-and listen to-more experts that know
the languages and cultures of other countries, including Middle
Eastern and Arab countries. Shora noted that immigrants are
some of the best sources of information about their native
countries, and he maintained that most immigrants are willing
to share the information. He also stated that he wouldn't
object to having the government scrutinize a particular group
if there was clear evidence that it is involved in terrorist
activity.
Asked what public administrators could do
to help, they called for civil servants rather than politicians
to assess and communicate which policies will be most effective
against terrorism. "You know what works," said Edgar.
"When politicians and political appointees start to do
things you know are ineffective, you have to use your Civil
Service protections to speak out: 'We tried that and it didn't
work.' " He observed that the most persuasive statements
against profiling and other questionable proposals have come
from former FBI officials to the press or in internal discussions.
"They are believed more than ACLU."
They did not recommend restrictions on entertainment
or media but they pointed to movies and television as having
a strong influence on public attitudes: "Look at the
roles different races and ethnicities have been given. That
affects perceptions."
Edgar ended by saying, "We feel strongly
we don't want to turn into a police state. We want to maintain
civil liberties and also be safe. ACLU is currently participating
in several suits against airlines that have removed passengers
from planes based on their appearance and ethnicity, and is
also supporting legislation in Congress to bar racial profiling,
allow airport screeners who are U.S. nationals, permanent
residents, and veterans of the U.S. military to work for TSA,
and rolling back the provision of the 2002
Trade Promotion Authority Act that gave Customs agents a unique
exemption from being sued by citizens.
NOTE: The third scheduled speaker Carl Miller,
First Sergeant of the Maryland State Police, was called away
to deal with a security emergency and had to miss the forum.
He has been involved in homeland security and also worked
with the U.S. Department of Transportation's National Highway
Traffic Safety Administration to develop guidance to states
on preventing racial profiling. Also invited were security
officials from the Air Transport Association and its members,
who regretted that they were going to be in Rome for an international
conference on aviation security and would not be able to participate.
For additional information on the policy
positions and publications of ACLU related to homeland security,
racial profiling, and civil liberties, see http://www.aclu.org/SafeandFree/SafeandFreeList.cfm?c=206&ContentStyle=1
For additional information on the
policy positions and publications of the American Arab Anti-Discrimination
Committee related to homeland security, racial profiling,
and civil liberties, see http://www.naaa-adc.org/index.php?id=76
For ADC's "Report on Hate Crimes
& Discrimination Against Arab Americans: The Post-September
11 Backlash (September 11, 2001, - October 11, 2002)"
see http://www.adc.org/hate_crimes.htm
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