Excerpted From: Susan M. Akram and Kevin R. Johnson, Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims, 58 New York University Annual Survey of American Law 295 (2002) (349 Footnotes) (Full Document)


Akram-Johnson.jpegAlthough only time will tell, September 11, 2001, promises to be a watershed in the history of the United States. After the tragic events of that day, including the hijacking of four commercial airliners for use as weapons of mass destruction, America went to “war” on many fronts, including but not limited to military action in Afghanistan.

As needed and expected, heightened security measures and an intense criminal investigation followed. Almost immediately after the tragedy, Arabs and Muslims, as well as those “appearing” to be Arab or Muslim, were subject to crude forms of racial profiling. Airlines removed Arab and Muslim passengers, including, in one instance, a Secret Service agent assigned to protect President Bush. Immediately after September 11, hate crimes against Arabs, Muslims, and others rose precipitously. In Arizona, a U.S. citizen claiming vengeance for his country killed a Sikh immigrant from India based on the mistaken belief that this turban-wearing, bearded man was “Arab.”

Supporters and critics alike saw the federal government as “pushing the envelope” in restricting civil liberties in the name of national security. Other contributions to this symposium analyze the devolution of immigration regulation from the federal government to the states. This Article analyzes the nation's response to the horrific loss of life on September 11 and shows how the centralization of immigration power in the hands of the federal government in certain circumstances may exacerbate the negative civil rights impacts of the enforcement of the immigration laws. The federal government has acted more swiftly and uniformly than the states ever could, with harsh consequences to the Arab and Muslim community in the United States. That the reaction was federal in nature--and thus national in scope as well as uniform in design and impact, and faced precious few legal constraints the severity of the impacts.

The civil rights deprivations resulting from federal action reveal that national regulation of immigration is a double-edged sword. Federal preemption of state law is designed to create a uniform immigration law and frequently has served to prevent local discrimination against noncitizens. However, the federal government can also, with few legal constraints, strike out at immigrants across the nation if it sees fit. That suggests that the federal government's role in the regulation of immigration and immigrants, as well as its interaction with the states, deserves most serious attention, especially in times of national crisis.

Besides acting on a national scale in the “war on terrorism” that followed September 11, the federal government took steps that might also have future civil rights consequences. In the investigation of the hijackings, the Department of Justice enlisted the assistance of state and local law enforcement agencies in the questioning of Arabs and Muslims. As part of heightened security measures, the Bush administration considered permanently increasing the role of local police in immigration enforcement, which would represent a significant departure from the near-exclusive federal dominance over this field. Because local police are generally unfamiliar with the immigration laws, they have been involved in well-known episodes of egregious violations of the civil rights of U.S. citizens as well as noncitizens in efforts at immigration enforcement. As a result, state and local involvement in immigration enforcement might have lasting civil rights impacts on immigrants in the United States.

The federal government's response to September 11 demonstrates the close relationship between immigration law and civil rights in the United States. Noncitizens historically have been vulnerable to civil rights deprivations, in no small part because the law permits, and arguably encourages, extreme governmental conduct with minimal protections for the rights of noncitizens. Unfortunately, the current backlash against Arabs and Muslims in the United States fits comfortably into a long history, including the Alien and Sedition Acts of the 1790s, the Palmer Raids and the Red Scare that followed World War I, and other concerted efforts by the U.S. government to stifle political dissent. This backlash is especially troubling because of the possibility--exemplified by the internment of persons of Japanese ancestry during World War II racial, religious, and other differences have fueled the animosity toward Arabs and Muslims.

A complex matrix of “otherness” based on race, national origin, religion, culture, and political ideology may contribute to the ferocity of the U.S. government's attacks on the civil rights of Arabs and Muslims. As recently stated,

Most Americans probably feel particularly threatened because the September 11 suicide hijackers were foreign, and some may be especially fearful because they were Arabs. This fear may cause us to exaggerate the danger of future attacks in general, and of attacks by Middle Eastern terrorists in particular. As a result, we may overestimate the effect of racially specific security measures. And unfortunately, we are more willing to accept aggressive measures when they target small and politically disempowered groups, specifically racial and ethnic minorities, and foreign nationals.

As has occurred in the past, the ripple effects of national security measures in the end may adversely affect the legal rights of all noncitizens, not just Arabs and Muslims. Indeed, we contend in this Article that the civil rights deprivations resulting from the war on terrorism may have long-term adverse impacts on the civil rights of citizens as well as noncitizens in the United States.

To help us better understand the latest “war on terrorism,” Part I of this Article analyzes the demonization of Arabs and Muslims in the United States before September 11 and how the law has been influenced by, and has reinforced, negative stereotypes. The federal government's actions directed at Arabs and Muslims in the name of combating terrorism commenced well before September 11. As Professor Edward Said has observed, terrorism in these times “has displaced Communism as public enemy number one.” That has translated into a near exclusive focus on “foreign terrorists,” particularly Arabs and Muslims. Part II studies the federal government's zealous post-September 11 investigatory methods directed at Arab and Muslim noncitizens, with little concern for their civil rights or for the potential long-term impacts of that response.

Because of the suppression of Arab voices, discussed below, many of the events and injustices are not reported in mainstream sources. As a result, we have used a number of sources that better reflect the Arab and Muslim experience in the United States. It is only by including these sources that the full picture can be better acknowledged and understood.

[. . .]

The stereotyping of Arabs and Muslims historically has had a dramatic impact on immigration law and policy. Separate procedures and the selective enforcement of the immigration laws has adversely affected the civil rights of Arabs and Muslims in the United States. The most recent “war on terrorism” has built on previous anti-terrorist measures. Sadly but not unexpectedly, private discrimination frequently has accompanied governmental action directed at Arabs and Muslims.

The federal government's response to the events of September 11 reveals much about the relationship between immigration and civil rights. The federal government responded with a vengeance, focusing on Arab and Muslim noncitizens across the country. With few legal constraints, and acting in a time when the public was more willing to sacrifice civil liberties of Arabs and Muslims in the name of national security, the federal government pursued harsh means with little resistance.

The events of September 11 reveal the limited membership rights accorded persons of Arab and Muslim ancestry in the United States--U.S. citizens as well as immigrants. Such treatment has been suffered by various groups in the nation's history. Many of those groups, such as African Americans, Asian Americans, and Latinos, continue to strive for full membership in this society. Only time will tell whether Arab and Muslim Americans will ever achieve that goal, or perhaps which group will replace them as the demons of tomorrow.

Associate Clinical Professor, Boston University School of Law and Supervising Attorney, Boston University Civil Litigation Program; A.B., University of Michigan; J.D., Georgetown University; Diplome in Human Rights, Institut International des Droits de l'Homme, Strasbourg; Fulbright Scholar in Palestine, 1999-2000. Professor Akram served as lead counsel on the Board of Immigration Appeals appeal and co-counsel in the federal court litigation of the secret evidence case of Anwar Haddam, discussed infra text accompanying notes 177-82, and is a member of a national network of attorneys representing noncitizens in secret evidence cases.

Associate Dean for Academic Affairs, University of California at Davis, Professor of Law and Chicana/o Studies; Director, Chicana/o Studies Program (2000-01); A.B., University of California, Berkeley; J.D., Harvard University.