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CIVIL RIGHTS - NON-CITIZENS

MASS ARRESTS of PEOPLE of MIDDLE-EASTERN DESCENT by the INS

Last Update: 01/14/03

Despite my past strong positions against the "Blame America for our Ills" theory (and practice) of some in the Middle-East, and my willingness to consider measured and well thought-out compromises on civil liberties in the post 9/11 environment, I am shocked by the arrest and the manner of arrest of hundreds of people of Middle-Eastern descent, by the INS, on Wednesday 12/18/02. While I do not have a problem with a requirement that non-citizens and non-permanent residents register with the INS, I am stunned by how those who came to register were treated. It appears this outrage was reported initially by the Los Angeles Times, closely followed by others - Orange County Register, Washington Post, New York Times, ABC News, Reuters, KFMB TV, etc. More importantly though, this issue has taken on some life in cyberspace because of great blogs like Atrios, Talk Left, Alas a Blog, and Thinking it Through.

The latest reports as of 12/22/02 indicate some of those arrested are being released on bail. This does not however address the callous manner in which the whole thing was carried out - and that is the focus of my comments here. (The ACLU believes that the arrests were merely a front to roundup people from the Middle East, and Arab/Muslim groups have filed a lawsuit against Ashcroft and the INS. In response, the Justice Department is arguing that this case can only be heard by the Supreme Court). Since the first arrests, the second round deadline of 1/10/03 for other nationals has come and gone, that having been met with extreme worry and nervousness by many temporary visitors and would-be immigrants - and resulted in more arrests. L. A. Chung and others in the San Jose Mercury News have been covering this issue in the San Francisco Bay Area: see here and here. In the blogosphere, Politics in the Zeros has been covering this well.

I would like to quote (bold text is our emphasis) from the articles first and provide my comments below that (for those of you who have read the articles you can skip directly to my comments).

LOS ANGELES TIMES
"...Many of those arrested, according to their lawyers, had already applied for green cards and, in some instances, had interviews scheduled in the near future. Although they had overstayed their visas, attorneys argue, their clients had already taken steps to remedy the situation and were following the regulations closely. 'These are the people who've voluntarily gone' to the INS, said Mike S. Manesh of the Iranian American Lawyers Assn. 'If they had anything to do with terrorism, they wouldn't have gone.' Immigration officials acknowledged Wednesday that many of those taken into custody this week have status-adjustment applications pending that have not yet been acted on.  'The vast majority of people who are coming forward to register are currently in legal immigration status,' said local INS spokeswoman Virginia Kice. 'The people we have taken into custody ... are people whose non-immigrant visas have expired.' The large number of Iranians among the detainees has angered many in the area's Iranian communities, who organized a demonstration Wednesday at the federal building in Westwood. At the rally, which police officials estimated drew about 3,000 protesters at its peak, signs bore such sentiments as "What Next? Concentration Camps?" and "Detain Terrorists Not Innocent Immigrants."

The arrests have generated widespread publicity, mostly unfavorable, in the Middle East, said Khaled Dawoud, a correspondent for Al Ahram, one of Egypt's largest dailies. He questioned State Department official Charlotte Beers about the detentions Wednesday after a presentation she made at the National Press Club in Washington. Egyptians are not included in the registration requirement.

Beers, undersecretary of State for public diplomacy and public affairs, was presenting examples of a U.S. outreach campaign for the Middle East, which includes images of Muslims leading happy lives here. Dawoud asked how that image squared with the "humiliating" arrests in recent days. 'I don't think there is any question that the change in visa policy is going to be seen by some as difficult and, indeed what was the word you used? humiliating,' Beers said. But, she added, President Bush has said repeatedly that he considers 'his No. 1 ... job to be the protection of the American people.'...

...INS ads on local Persian radio stations and in other ethnic media led many to expect a routine procedure. Instead, the registration quickly became the subject of fear as word spread that large numbers of men were being arrested. Lawyers reported crowded cells with some clients forced to rest standing up, some shackled and moved to other locations in the night, frigid conditions in jail cells all for men with no known criminal histories....Some, he said, were hosed down with cold water before finding places to sleep on the concrete floors of cells. Lucas Guttentag, who heads the West Coast office of the American Civil Liberties Union's immigrant rights project, fears the wave of arrests is 'a prelude to much more widespread arrests and deportations.'

Many at Wednesday's protest said they took the day off work to join the rally, because they were shocked by the treatment. 'I came to this country over 40 years ago and got drafted in the Army, and I thought if I die it's for a good cause, defending freedom, democracy and the Constitution,' said George Hassan, 65, from the San Fernando Valley. 'Oppressed people come here because of that democracy, that freedom, that Constitution. Now our president has apparently allowed the INS vigilantes to step outside the Constitution.' Ramona Ripston, executive director of the ACLU of Southern California, called the detentions doubly disturbing because 'a lot of the Iranians are Jews who fled Iran because of persecution, and now they are undergoing similar persecution here.... This is just terrible.'...

Attorney Ban Al-Wardi...said, 'I don't know how far this is going to go before people start speaking up. This is a very dangerous precedent we are setting. What's to stop Americans from being treated like this when they travel overseas?'..."
REUTERS
"...Hundreds of Muslim men and boys are being subjected to strip searches in freezing, standing room only detention centers in southern California after being arrested for routine visa irregularities, immigration lawyers said on Thursday. They estimated that between 1,000 and 2,500 males, some as young as 16, were spending their fourth day locked up in what they called inhumane conditions after voluntarily presenting themselves at immigration offices to register under new anti-terrorism rules. "The situation in the detention centers is absolutely horrifying. In one center, they were ordered to strip down and given a strip search. They were only given a prison jumpsuit, without any underwear, T-shirts, socks or shoes. They were not given blankets. They are freezing," Iranian-American lawyer Sohelia Jonoubi told Reuters....
Families, allowed telephone access to their relatives, reported that the men were forced to sleep standing up, or on concrete floors with no blankets, and some had been hosed down with cold water. Drinking water is said to be scarce and in some cases, detainees must use toilets without doors or walls.
The relatives said that some detainees have been told they will be deported without seeing their relatives again. Others are trying to get out on bail pending a hearing before an immigration judge which could take days or weeks...
INS spokesman Francisco Arcaute said he was confident the INS could deal with the situation, adding; "They have access to telephones, they have access to restrooms, they are given snacks. We understand there has been a bit of crowding, but my understanding is that we are meeting basic needs. "The southern California chapter of the ACLU said the detentions were "reminiscent of what happened in the past with Japanese-Americans" during World War II.

MY COMMENTS
Folks - on the Right and on the Left - you may or may not agree on immigration, but at least realize that people who immigrate legally are doing so because it is legal, not because they want to take your jobs intentionally. Also realize that they do contribute significantly to the wealth of this country. Legal immigrants, and non-immigrant workers and visitors have come to U.S. because they are invited by someone (friends, family, businesses, etc.) and the laws are such that it is not difficult to become "out-of-status" (see below) - all I ask is raise your voice to give them fair treatment

Let me begin by quoting (bold text is our emphasis) Eugene Volokh who says, "...The problem with the internment of Japanese-Americans during World War II was precisely that they were Americans, who were entitled to a presumption that they'd be just as loyal as other Americans. But there's no reason to assume that noncitizen visitors will be loyal or even friendly to our nation. Many are friendly, but not all are. And it stands to reason that those from countries that have a great deal of anti-American sentiment would be more likely to be hostile to American interests. What's more, since they are not American citizens, their presence in the U.S. is a matter of grace, not (as with citizens) a matter of constitutional right. General suspicions that might not justify (quite independently of discrimination questions) restraints on citizens may well justify some modest restraints on noncitizens. It's perfectly constitutional to require foreign citizens to register and to come in for interviews even when we don't require this of our own citizens. Foreign citizens are not Americans. They do not have a legal (changed to - "constitutional" - based on my feedback) right to be here legal (changed to - "constitutional" - based on my feedback) right to be here. We are perfectly entitled to deport them when their visa term comes up, or for other reasons, and it's helpful for that purpose to have some idea where they are. They have not earned our trust, or sworn allegiance to us. They are our guests, and we should treat them fairly. But there's nothing unfair about a host claiming the right to know where his guests are, and what they're doing on his property."

There are certain aspects of Mr. Volokh's comments that I do agree with, but I would still differ on a few important points. 
1. Mr. Volokh says it is the "grace" of the U.S. that allows non-citizens to visit the U.S. However, we need to remember that the "grace" is actually backed up by immigration, non-immigration and other laws. I'm sorry Mr. Volokh, but I came to this country because the laws of the United States legally allowed me to come into this country, not because I felt I should take up on the "grace" factor. If American citizens wanted no visitors, they could have elected people to Congress who would have stood against the Universities and Businesses that form the backbone of this country's innovation, economy and growth - and borne the consequences of that.
2. Mr. Volokh states that non-citizens have no constitutional right to be in the U.S. This is true to the extent that entry into the United States is not a guaranteed "right" to non-citizens. However, it is also true that once having legally entered into the U.S., non-citizens do have certain constitutional rights - partly by virtue of the fact that the Constitution confers many rights to "persons" not necessarily "citizens", and partly by virtue of the fact that the U. S. Supreme Court and other courts have ruled that way over the years (for instance read this CATO Institute review, or this article in the Daily Princetonian - and in a subsequent email to me Mr. Volokh stated that foreign citizens legally in this country do have some constitutional rights). What is at stake in the situation created with the INS roundups is exactly what rights were enshrined for the non-immigrants and which of those rights were violated. This is unlikely to be discovered unless the U.S. Supreme Court objectively (without prejudice) assesses their case. 
3. Mr. Volokh's arguments must be balanced with the understanding that American citizens commit far more crime against other citizens every year (not to mention cases like the Oklahoma City Bombing) and we don't immediately doubt their patriotism or their love for others in the U.S. While he may be partly right in imputing more risk to people from countries where hate-America sentiments run high, my argument is not that requirement for registration is wrong, it is how the whole thing was carried out. In most civilized societies, even serial killers and serial rapists are given many more legal and civil rights. Given that, is it a "fair" treatment for human beings who have either committed no crimes, or at worst are guilty of accidentally (or even intentionally) overstaying their visas, to be herded and treated like cattle? (regardless of where they come from and what their imputed risk is?)
In the end though, it seems Mr. Volokh and I are at least in partial agreement - that "they are our guests, and we should treat them fairly". So keeping that in mind, here is what I have to say. 

I respectfully submit that the way things have transpired in Los Angeles and elsewhere is not how the war on terror will be won. Why? Consider the following:

1. FORGETFULNESS
Just as people may forget to renew drivers licenses or passports or anything else, people can forget to renew visas.

2. BANDWIDTH, INS FUNDING, BUREAUCRACY, LOSS
It is not difficult for documents to get misplaced whether in a private company, or a public institution like the INS (which is severely backlogged). The INS does what they can under the circumstances, but things can get misplaced, lost or displaced, by accident. I would not be surprised if the INS is understaffed and under-funded to deal with their work.*

To get an idea of the paperwork involved in immigration filings (a major effort), here is a creative website showing you what is involved. To get an idea of how good or bad the INS is in doing it's job, read this series. In covering the above fiasco, the Washington Post also took the INS to task. The most recent revelation is how a large number of Korean immigrants in the San Francisco Bay Area discovered that they had been duped by their immigration consultants and a corrupt INS official and issued spurious green cards, which is causing them to now face deportation

3. INTERPRETATION OF LAWS 
I have been told by more than one lawyer that with the stringency of the interpretation of the laws since 9/11, any non-immigrant or immigrant can become "out-of-status" even if their status lapses by 1 day let alone days, weeks or months. For example - let's say I forget to renew my status and let it lapse by 1 day -- I would be "out-of-status" then. If someone on an H1 workers visa got laid off, they also go "out-of-status" instantaneously (which means they become "illegal" the next moment and have a "stain" on their immigration record due to the fact that "Scotty" is not available to beam them up instantaneously back to their home country). 

The fact is that immigration law particularly relating to "out-of-status" conditions is not well understood at all, by many. I know many friends whose *lawyers* told them that they had 6 months to get back in "status" if they got laid off after being an H1 worker. Others were told they had 1 month. Yet others said 0 days (which is correct). If you just read some of the weekly updates at www.murthy.com, you will see many instances of lawyers waiting to hear from the INS of how the latter interprets certain laws. This is where a significant problem results in what people do to respond to delays in processing or "out-of-status" situations.

Also, as yowsa wrote in response to Atrios' post: "Immigration law is largely up to particular INS officers. I've been in the US for ten years, six on NAFTA visas. Some ports allow me through with no trouble, with the bare minimum of documentation. Others have denied they would ever allow me into the US given my qualifications. So when you wonder how the INS can be so arbitrary, let me give you an example of how it works. The border crossing at Blaine, Washington is famous for being tough. But I got my first visa there, in the classification "Economist," working as a marketing analyst for a software startup with a Masters in Philosophy and a C- in Philosophy of Economics. I went back to that same crossing again in five years later for an honest-to-god systems analyst visa, and was denied six times over two days even though I had the correct documents and experience they required each time because they suspected I was fraudulent. (Why did they suspect that? Because of a grammatical mistake in the letter from my employer.) They pulled out a list of additional documents they required which I'd never seen before and were never mentioned in any of the statutes; when I submitted them, they still rejected them. The fact that I'd had nine previous visas, with progressively better qualifications, played no factor. INS agents are not allowed to factor in precedence, so if they used to allow a stay in the US while the GC is being processed (as it appeared the Iranians thought), that was only the practice of some officers and not all, and there are probably some who still do it. I eventually flew to another port and got the visa in five minutes. If you drive twenty miles east of Blaine there's another crossing and they apparently don't require more than is required. Its the same across the US: one port will demand you bring your mother along, and the next won't even look at your documents. There's no standard, or very little, and the compassion of any given officer varies with the tides and the seasons....They're all judges, and there is, in fact and in practice, no appeal, whether you're a suspected terrorist or a nice white boy working in computers. Those kids in LA are screwed..."

4. CONTEXT
You will have to interpret what is happening within a context and I hope my comments above provide you a small piece of that context. Here's another piece of the context - if someone wants to understand even a little bit of what is going on - I would recommend watching the movie "The Siege" starring Denzel Washington and Bruce Willis, which covers the reaction to a suicide bombing in NY. I saw the movie a few years ago and laughed saying this could never happen in the U.S., saw it again a few weeks ago when I felt less sure about my earlier conviction, and here we are today.

As L. A. Chung points out in the San Jose Mercury News, "...But ask someone who is intimately familiar with the events affecting the Japanese-American community after the bombing of Pearl Harbor. The initial calls not to blame a community. The gradual restrictions. Curfews. Registration. Finally, internment...hundreds were detained and flown from state to state in search of large enough detention facilities, some because of minor infractions like being two days late to register. Others were detained because their immigration files were ``out of status'' -- in some cases because of the INS' own backlog. They were Muslims. And Christians. And Jews. Some had come here to escape persecution....'When you look at the World War II internment of Japanese-Americans, it didn't make Americans safer,' said Tateishi. 'It didn't make one iota of difference. Yet it cost the country millions and millions of dollars, and they were misplaced resources.'..."

David Neiwert has a lot more to say on the Japanese-American interment disaster. Please read his note.

5. 9/11 COULD HAVE BEEN PREVENTED LARGELY WITH THE LEVEL OF CIVIL RIGHTS IN THE U.S. pre-9/11 
Time and again it has been shown (and conceded by FBI chief Mueller) that 9/11 could have been prevented if only our intelligence agencies used pre-existing information and acted on it immediately. 9/11 happened not because no one knew of the hijackers or their financiers or potential plans, but because some key people refused to do something about the information already available to the CIA and the FBI (probably not intentionally, but perhaps due to inertia or bureaucracy or to reduce panic/tensions). You want examples? Well, we show below just a sample of the examples. If you want a comprehensive analysis of what happened before and after 9/11, go to this astonishing site (and sign up for their book due out soon!).
(a) Colleen Rowley's evidence
(b) The most recent FBI whistleblower interviews on 12/19/02 of Robert Wright and John Vincent
(c) The fact that one of the FBI's informants was a roommate to two of the previously known Al Qaeda supporters and would-be hijackers - who were also under "surveillance" by the FBI
(d) The fact that cockpit doors could have been reinforced before 9/11 since many in the administration knew about the possibility of hijackings prior to that fateful date, also as stated here.
(e) Airlines failed to enforce airport security guidelines which already disallowed pepper spray and box-cutters pre 9/11, and used bad security firms 
(f) The Clinton administration plan to eliminate Al Qaeda in Afghanistan (very similar to what was later accomplished by the Bush administration) did not get followed up on until it was very late, while the focus and funding pre-9/11 was shifted away from terrorism and towards missile defense and the war on drugs, among other things.
(g) German authorities had been tracking the movements of the 9/11 suicide bomber terrorists for a year before 9/1.
etc. etc. etc.

6. SUPPORT OF MODERATE MUSLIMS/MIDDLE-EASTERNERS
There are many progressive moderate Middle-Easterners in the U.S. who could play a major role in convincing the rest of the world that there is a moderate and democratic Islam practiced in places like the U.S., that there are places like the U.S. where freedom and rights mean something. If you look at the article above you will see that Iranian Jews and Muslims are a significant contingent amongst those arrested. Why is this important to point out? Progressive Iranians are revolting against the fundamentalist mullahs in Iran, for freedom and liberty, and have been mentioned in positive light in the U.S. on many occasions. (Is there also not talk about Iraqis who might be willing to overthrow Saddam? - we need their help too). We need the support of moderates to remove the fanatics in the Middle-East! We need as many voices of Muslims to sound moderate and supportive of the U.S. internationally, to help bring about changes at a lower psychological and monetary cost to us, because we cannot spend hundreds of billions of dollars fighting battles all the time, when it financially costs much less to win umpteen times the good will constant war will generate

Unfortunately, it is now clear that many moderates have now significantly changed their view of the United States. This is also pointed out in coverage by Politics in the Zeros. Peter Skerry, in an article in the San Jose Mercury News, highlights some of the facts about the religious and geographical demographics that need to be kept in mind, without making blanket assumptions that all Middle-Easterners in the U.S. are Muslims or that most Muslims in the U.S. are from the Middle-East. (Incidentally, in his article he also mentions briefly the slights Italians felt when they first arrived in this country.) 

7. WHEN WILL THE ARRESTS END?
I have not forgotten that 9/11 was caused by individuals from the Middle-East, especially from Saudi Arabia. I will also be politically incorrect and point out that all the perpetrators of 9/11 were Muslims. This obviously justifies the need to focus preventive efforts more on Muslims from the Middle-East. But the question really is how the focus should be - not whom to focus on. To answer that, consider the following:

(a)
With a war on terrorism that is expected to have no end, can anyone honestly say that the detentions or arrests will ever end? What would be the defining moment which would make it clear that everyone from Middle-Eastern countries living in the U.S. would no longer need to be questioned, registered, harassed or imprisoned? What would give the Government or the citizens of the U.S. confidence, other than a complete ejection of every citizen, permanent resident, and non-immigrant from the Middle-East? At what point in the future can this administration (or its successors) be confident enough to declare that the United States is no longer at ANY risk for terrorism from potential terrorists from the Middle-East? I don't honestly know the answer to this last question, but I think I am moderately intelligent here to guess that such a defining moment is never likely to occur, unless....unless...we find an amicable solution to the entire Middle-Eastern problem. 

(b) Finding that solution requires letting go of gigantic egos, letting go of notions that one side is always right, and realizing that the human (life), financial and emotional costs of continued belligerence and conflict are not only extremely high, but also fail to achieve the end goal - peace in the Middle East and peace inside the United States. (Take a hypothetical scenario and answer this question: would it cost more to spend hundreds of billions of dollars on defense every year and lose many lives every year, or to vacate certain settlements in a certain portion of the world and rebuild those settlements in another portion that is not controversial?)

(c) Here's another thought. India has been plagued by terrorism from Islamic militants (financed by Pakistan) for a long time. Although the militants' focus has largely been the disputed territory of Kashmir, they have also attacked other regions in the country (a recent example is their daring attack on India's Parliament in New Delhi on 12-13-01). How has this affected the civil rights of Muslims all over India where they represent ~14% of the country's > 1 billion population? The answer is simple. Although India has communal tensions from time to time (occasionally ghastly riots), I can assure you that the police are not going house to house and investigating every Muslim there or putting them in camps. 

My point is that the hows of the fighting terrorism lie in balancing strength and compassion - strength against known terrorist states and terrorist organizations, completely balanced with compassion for those who are innocent, and/or manipulated by their "leaders" and whose lives are the ones that are most in peril. Inside the U.S. it means a balance between more rigorous intelligence work that corrects the gaps in information passing that occurred pre-9/11 (again, the information was there - it just did not get analyzed correctly and in time) with compassion for people who have been here for so long and served this country and contributed to its growth and wealth. 

8. "FORTRESS" AMERICA DOES NOT WIN FANS or TOURISM/TRAVEL BUSINESS
To quote this CBS article, "...Travel executives say the nation's $91 billion foreign tourism industry is in peril because of a growing perception overseas that the United States has become "Fortress America."..."I'd like to think the increased security measures have been used wisely, but I think a lot of mistakes have been made and there has been a lot of overkill," said Robert Logan, chief pilot at Air Grand Canyon of Tuscon, Ariz., which has reduced flights and is using fewer pilots...."

9. DON'T GIVE OSAMA TALKING POINTS
We cannot let Osama bin Laden win. We cannot let him tell his raggedy staff of criminals and believers that the U.S. squelches civil liberties because the U.S. is afraid of him (like he predicted in one of his moronic speeches).

APPENDIX:
We* have always been (and continue to be) very staunch supporters of the U.S. because of the tremendous freedoms, liberties, opportunities and privacy this country affords us. We continue to defend the U.S. even in these challenging times, not because of pressure to conform, but because we honestly think there are a lot of things about the U.S. worthy of respect. We have defended the U.S. even as the U.S. has repeatedly sided with Pakistan, and sometimes against India, even with the knowledge that Pakistan is a major supporter of terrorism against India and the U.S. We have defended the U.S. in ways that liberals might consider a tilt way to the Right. After living here for so long we also know that a lot of the good things the U.S. stands for are due in big portion to the progressive population here (That is why we also love California). We are balanced people. We still think there are a lot of good and sensible people in this country and that we are in a (hopefully) temporary situation due to post 9/11 tensions. But, what the INS and the Government is doing is not going to help Americans in the long-term. It is mostly detrimental to everything *you all* (and if I may add, we all) are valiantly trying to achieve, or for that matter what the administration is trying to achieve, every day.  

Some of you may agree with what is happening and I won't take offense. To each, his or her beliefs. But if you think like I do that this is not the best way to combat terrorism, then I urge you to speak out and encourage everyone of your friends and colleagues to do so. Making friends with immigrant communities will provide the U.S. a much better chance to find the real terrorists. You will then be able to unlock the kind of patriotism in immigrants that even home grown Americans may not display (as seen in a quote in the above article from an Iranian) - simply because immigrants really know why America is great and will want to preserve that.

This is your chance to build a greater America. We implore President Bush to not make the mistake made with Post-WWII Japanese American interment - again (setting aside legal distinctions between the status of the people involved). (See this ACLU update and other links from Alas a Blog). This is not what America stands for. People who voluntarily come to the INS to register are unlikely to be terrorists. So treating them badly not only makes it impossible to catch terrorists, but makes the U.S. tremendously more unpopular in the process, reversing support for U.S. policies in the Middle-East. (Not to mention driving U.S. supporting immigrants back to the horrid regions where they came from.) The future of our children in the U.S. is at stake here. Let's act with long-term consequences in mind, not just short-term. I believe the war on terror can be won in a different, more compassionate way.

  

* UPDATE: Some of the text and details in the original commentary has been edited for privacy reasons. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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