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Presentation IMPACT OF THE SEPTEMBER 11TH ATTACKS ON THE FREEDOMS
OF ARABS AND MUSLIMS TABLE OF CONTENTS I. INTRODUCTION 2 II. THE BACKLASH AGAINST ARAB-AMERICANS AND MUSLIM CITIZENS 3 III. WORKPLACE DISCRIMINATION 5 V. PATRIOTISM OF ARAB-AMERICANS AND MUSLIMS IN THE UNITED STATES 7 VI. GOVERNMENTAL MEASURES AND SPECIAL LEGISLATION EFFECTING ARAB-AMERICANS AND MUSLIM CITIZENS 8
VII. A COMMUNITY "AT-RISK" 18 VIII. CONCLUSION 19 I. INTRODUCTION
The Arab-American and Muslim communities in the United States were severely affected by the criminal attacks upon the United States of American on September 11, 2001 (9/11) by terrorists. First, as U.S. citizens, Arab-Americans and Muslims were horrified by the colossal loss of life. In fact several hundred victims and rescue workers in New York were Arabs and Muslims. Although not well reported, each and every organization, society, mosque and church in these communities condemned the attacks. Second, Arab-Americans and Muslims were again victimized by a massive backlash of retaliation and blame. This took three forms: (1) visible, criminal attacks against these communities; (2) insidious social and employment discrimination; and (3) special governmental measures and legislation were enforced against them. The Arab-American Bar Association issued a warning in its "Preliminary Report on Hate Crimes" on September 26, 2001 that it was concerned about the protection of life and property in the event of another terrorist attack. However, new concerns have been voiced by jurists, local police, foreign governments, the American Bar Association, and even the Foreign Intelligence Surveillance Court about new measures adopted after 9/11 that empower the government to: (1) arbitrarily choose foreign or domestic organizations suspected of supporting terrorism, and then---using "secret evidence--- jail or deport anyone who gives them "material support"; (2) jail those who commit minor criminal offenses deemed "dangerous to human life" whose intent is to "intimidate" society or "influence government policy", (3) detain U.S. citizens and non citizens suspected of being "enemy combatants" without bail, in communicado, without access to an attorney; (4) prepare "citizen camps" to incarcerate U.S. citizens, and (5) try such individuals before military tribunals. This presentation is merely a message of these concerns.
Crimes and acts of discrimination against Arabs and Muslims in the United States rose immediately following the 9/11 attacks. News reports in Washington, Texas, California, Michigan and Illinois were replete with stories of murder*, armed assault and battery (guns, knives, pepper spray, cars, trucks, and rifles), arson and firebombing and vehicular driving attacks upon schools, mosques, and churches. In an ABCNEWS/Washington Post poll conducted days after the attacks, 43 percent of Americans said they thought the attacks would make them "personally more suspicious" of people who appear to be of Arab descent. A national poll reported by the Council on American-Islamic Relations from Washington indicated that "nearly 75 % of Muslim-Americans either know someone who has or have themselves experience of anti-Muslim discrimination." (see usnewswire.com, 6/11/02) Some of the inflammatory rhetoric directed against Muslims was reported in the media, as excerpted below from Alhewar Magazine (See Alhewar.com, 8/17/02):
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In Chicago, where the police reported four documented hate crimes against Arab-Americans in all of 2000, thirteen were reported within days of the 9/11 attacks. (See Chicago Police Department Hate Crimes Report) One example involved a man who walked into a south side grocery store carrying a briefcase, saying to the Arab-American proprietor: "I'm going to blow up this store the same way the World Trade Center was blown up." A south suburban Muslim group reported 50 death threats via phone and e-mails and advised parents to keep their children at home. Evanston, Illinois police reported an Arab-American cab driver and his passenger who resembled an Arab-American were chased by two motorcyclists and beaten. One of the assailants was a corrections officer who said, "This is what you get, you mass murderer." A mob in Bridgeview marched on a mosque carrying confederate flags and pelting Arab-American owned grocery stores with rocks and bricks, reminiscent of the "brown shirts" seen decades ago in Germany. Arsons were committed at a north side Assyrian Catholic Church and a south side Muslim community center. Two recent reports of discrimination exemplify how the hate crimes have moved from the streets to public accommodations. On August 15, 2002 the Justice Department announced the settlement of a claim filed by the Chicago based Midwest Federation of Syrian Lebanese Clubs against Marriott for cancellation of a contract to hold a convention at the Des Moines Marriott. The Midwest Federation was established in 1936 with associated members such as Danny Thomas (who used it as a springboard to establish St. Jude Children's Research Hospital in Memphis), James Shalala (whose daughter Donna was Secretary of Health and Human Services), and Spencer Abraham (Secretary of Energy). On August 27, 2002 Chicago comedian, Ray Hanania, was cancelled as the opening act at local comedy club "Zanies" reportedly because a nationally known headliner, Jackie Mason, refused to appear at the same time with a "Palestinian". (A. Buchanon, AP & Chicago Tribune, A.P. 8/28/02). Hanania is an Arab-American who was born in Chicago, but also served as a sergeant in the U.S. Army.
First reports of discrimination in the
workplace came from the American-Arab Anti-Discrimination Committee,
a watchdog group in Washington, D.C. They reported that discrimination
against Arab and Muslims in the United States had resulted in more than
400 reports of employment discrimination. (Chicago Tribune, "Americans
on Alert for Terror", Reports of discrimination against Arab-Americans and Muslims in the workplace more than tripled after 9/11. Between September 11, 2001 and May 7, 2002 the Equal Employment Opportunities Commission reported that their field offices received 497 charges of religious bias against Muslims in the workplace (compared to 193 cases in the previous year), and 488 charges of ethnic discrimination against Arab-Americans in the workplace (with none noted the previous year). (See EEOC's May 15, 2002 Press Release) The Council on American-Islamic Relations (CAIR) from Washington reported 1516 claims of denial of religious accommodation, harassment, discrimination, bias, threat, assault and several murders since 9/11. According to a study conducted by the John J. Heldrich Center for Workforce Development: "About 20% of people say Arab-Americans are the employees most likely to be treated unfairly in the workplace" which surpasses "the number who said women or Hispanic workers were most likely to be unfairly treated". IV. MEASURES TO STOP HATE CRIMES AND DISCRIMINATION In the aftermath of 9/11, President Bush was joined by all of America's living past Presidents, and by a host of Mayors, Governors, and law enforcement officials to condemn the hate crimes perpetrated against the life and property of Americans of Arabic ancestry and Muslims.* Some major bar associations have focused upon discrimination, profiling, and rights issues, as seen at the American Bar Association's forum on February 3, 2002 in Philadelphia, "Confronting Racial/Ethnic Profiling...The Dilemma of Arab Americans the Individual of Muslim Faith" and the ABA's decisions in January and August to officially question measures taken by the Justice Department (infra).
Within a month after 9/11, over 65 hate crime complaints were filed by state and local law enforcement, while in the same period, the Federal Bureau of Investigation had launched 350 investigations nationwide. A variety of federal prosecutions resulted, including charges against a Tallahassee man who drove his pickup truck into a mosque, two California men who tried to bomb a mosque and murder a U.S. Congressman of Lebanese descent, a Utah man who attempted to arson- bomb a restaurant owned by a Pakistani-American, and a Washington man who shot two Muslim worshipers when trying to firebomb their mosque. (See Dept of Justice Website, 8/02 and Arab-American Institute Report, 2/13/02) Since 9/11 the President dispatched the Director of the Federal Equal Employment Opportunities Commission to major cities to invite Arab-Americans and Muslims to file job discrimination complaints. The President also ordered the Justice Department's Civil Rights Division to canvass grass roots groups in the Middle Eastern/American community, inviting them to report discriminatory activity and hate crimes. Consequently, the DOJ filed several civil rights complaints. Other agencies, such as the US Commission on Civil Rights are seen as providing the public with information through websites and forums. Federal, State and local government have also held forums and discussions, including the meetings held by Chicago Police Superintendent Terry Hillard, and community meetings hosted by various civil rights organizations. In an effort stop the violence, the Arab-American Bar Association of Illinois issued its "Preliminary Report on Hate Crimes Against Arabs and Muslims in the United States," with findings and resolutions (See arabbar.org) on September 26, 2001 at a news conference joined by the Cook County State's Attorney and the Presidents of the Illinois State Bar Association, the Chicago Bar Association, and the Jewish Judges Association. Representatives of the American Bar Association, the Decalogue Society of Jewish Lawyers, the Justinian Society of Lawyers, and the Ethnic Bar Coalition also attended, as did all the major broadcast and print news media. Among the resolutions announced at the news conference by the Arab-American Bar was a warning that, should there be another attack perpetrated by Middle Eastern criminal terrorists, then it is likely that a more severe backlash will result that may cause massive loss of life and property in the Arab-American and Muslim communities. The resolution called for law enforcement agencies to prepare pre-constructed strategies and plans to deal with civilian insurrections that may follow such an attack.
There are about 3 million Arab Americans living in the United States according the United States Commission on Civil Rights. Most of them are Christians-many of whom came here about a hundred years ago. There are major concentrations in California (Los Angeles), Michigan (Detroit/Flint) and New York (Brooklyn), Illinois (Chicago), Maryland, Massachusetts, New Jersey, Ohio, Texas and Virginia. (US Commission on Civil Rights) There are 5 to 7 million Muslims in the USA, most of whom are not from the Middle East. (The Economist, 10/14/00 and The Washington Post, 10/16/00) In the Chicago area alone, there are over 400,000 Americans of Arabic descent and Muslims. Experts say that Americans of Arabic descent are among America's best-educated and most affluent citizens. Notable Arab-Americans include scientists such as: Nobel prize winners Elias Corey and Ahmed Zewail, famed M.D. Michael Debakey; Apollo/Nasa scientist Farouk El-Baz; Business leaders such as Jacques Nasser of Ford, John Mack of Morgan Stanley, Joseph Aboud, and J.M. Hagger; Political leaders like Senators George Mitchell, Spencer Abraham (Department of Energy), James Abourezk, and James Abdnor; Congressmen Nick Rahall, Pat Danner, Ray Lahoud; John Sinunu, Selwa Roosevelt, Donna Shalala, Phillip Habib, and Ralph Nader; Sports figures such as Doug Floutie, Jeff George, Bill George, Ron Seikaly, Bobby Rahol, and Joe Robbie; Entertainers such as Danny Thomas, Paul Anka, Frank Zappa, Paula Abdul, Tiffany, Casey Kasem, Rosalind Elias, Jamie Farr, Khrystne Hage, Kristy McNichol, Tony Shalhoub, Kathy Najimy, Salma Hayek, and F. Murray Abraham. Only one other ethnic minority has more medical doctors in the United States than Arab-Americans. (Arab-American Business Magazine, 8/02) Arab-Americans have fought for the United States in every war in the 20th Century. The last of them to have died in the service of America was Albert Haddad (USMC) of Lewisville, Texas, who perished in the Gulf War. The first jet ace in Korea, Colonel James Jabara, was an Arab American. Others were four star General George Joulwan who commanded NATO and Christa McAuliffe, the "first teacher in space" who died in the space shuttle Challenger. VI. GOVERNMENTAL MEASURES AND SPECIAL LEGISLATION EFFECTING ARAB-AMERICANS AND MUSLIM CITIZENS The United States is said to be "at war". Previous administrations in time of war have engaged in massive expulsion of foreign nationals, massive detention of ethnic minorities, and the eradication of due process of law to its citizens. During America's "undeclared war" with Napoleonic France in 1798, President John Adams signed The Alien and Sedition Acts. Historian David McCullough describes the atmosphere in the United States:
The Alien Act authorized the President to "expel any foreigner he considered "dangerous" and the Sedition Act made it a crime to make any "false, scandalous, and malicious" writing against the government..." Even where there was no legislative authority, America's Presidents have suspended rights when national security was threatened. Abraham Lincoln's unilateral proclamations without an act of Congress in 1861 during the Civil War suspended the right to seek a writ of habeas corpus and created military style tribunals, those tribunals were sometimes utilized to punish draft resisters, Southern sympathizers, and critics of the Civil War. In 1866 the Supreme Court in Ex Parte Milligan, 71 U.S. 2 (1866), seemingly outlawed Lincoln's use of military style tribunals. America's early "suspicion" of foreigners was evident in the Civil War, particularly so during the Battle of Chancellorsville when Ohio's XI Corp of German born solders were wiped out because Union General Lewis Howard refused to sacrifice his reserves to protect the right flank of "foreigners". After the sneak attack on Pearl Harbor, President Franklin Roosevelt interned 120,000 American citizens of Japanese ancestry. Roosevelt's use of military tribunals which led to the execution of foreign saboteurs was upheld by the Supreme Court. Even relatives of saboteurs were not protected from governmental suspicion as seen in Chicago where relatives of an executed spy were all charged and quickly convicted of treason. Their convictions were all reversed on appeal. (see Chicago Magazine, February, 2002) Today, some fear that measures enacted after 9/11 have empowered the government to: (1) indiscriminately choose foreign or domestic organizations suspected of supporting terrorism and then jail or deport anyone who gives them "material support" on the basis of "secret evidence"; (2) jail those who commit minor criminal offenses that it deems as "dangerous to human life" where the perpetrators intend to "intimidate" society or influence government policy, (3) detain U.S. citizens and non citizens suspected of being "enemy combatants" without bail, in communicado, without access to an attorney; (4) prepare "citizen camps" to incarcerate U.S. citizens, and (5) avoid the justice process by trying such individuals before military tribunals. A September, 2002 poll for AP indicates that 63% of Americans "were concerned that the new measures could end up restricting Americans' individual freedoms" (AP, D. Kravets, 9/4/02). Here are some of those measures. a. The Anti-Terrorism and Effective Death Penalty Act of 1996 Discrimination and special laws did not begin in the aftermath of 9/11. One reason for the establishment of the Arab-American Bar Association in 1990 was in response to the backlash during the Gulf War. In 1992 Chicagoans pillaged Arab-American owned businesses after the Bulls Basketball team won its first world championship, causing over $10 million in damage. After the Oklahoma City bombing of 1995, Congress reflected its suspicion of Arab-Americans and Muslims in the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 which created "designations" of foreign terrorist organizations. Although the 1995 Oklahoma bombing was not committed by "foreign terrorists", the 1996 law has since been largely enforced against Middle Eastern aliens and citizens. (See International Law Section Forum on Secret Evidence, ABA Convention, Chicago, August 5, 2001) At the time the law was criticized by civil liberties organizations, law professors, and constitutional rights advocates as "one of the worst assaults on the Constitution in decades." Illinois was the first state to adopt its own version of an anti-terrorism bill, the International Terrorism Bill (720 ICLE 5/29C-10), which the ACLU dubbed "special legislation". In his election campaign of 2000, President Bush (and many congressmen) had candidly objected to the "secret evidence" provisions of the Anti-Terrorism Act of 1996, saying that it was an instrument of "profiling". The Immigration and Naturalization Service had successfully avoided constitutional scrutiny of the INS provisions of the Act by relying upon administrative court proceedings under the Immigration Responsibility Act of 1996, rather than proceeding in federal district courts where it would be duty-bound to charge aliens as "terrorists" and prove that they "engaged in... terrorist activity". However, in those rare administrative instances that did reach the scrutiny of a federal district court, the so-called "secret evidence" was found to be flawed or non-existent. (See International Law Section, ABA Convention, Chicago, August 5, 2001) The negative impact of the 1996 Anti-Terrorism Act upon the Muslim community was demonstrated in a poll conducted by Zogby International in June of 2000 which showed that 87% of Muslims polled expressed a strong belief that the Muslim community was the main target of "the Immigration and Naturalization Service's controversial authority to use secret evidence in its proceedings against persons accused of unlawful immigration." The criminal provisions of the Anti-Terrorism
and Effective Death Penalty Act of 1996 outlaw contributions of material
support to any "foreign" group deemed a threat to our "national
security", and thereby "designated" by the Secretary
of State as a "terrorist organization". Although the Secretary
must confer privately with legislative principals and other members
of the Cabinet prior to making the designation official, it is ultimately
the Secretary of State who makes the "designation". Any challenge
to that designation may be in the form of an "appeal" within
30 days and only the "foreign organization" has standing to
raise that appeal. At trial defendants cannot raise a defense or object
on the basis that the foreign organization was, in fact, not a terrorist
group. It is sufficient to prove only that the defendant knew that the
group was "designated" as a terrorist organization. Therefore,
if funds from a church bingo game reached the Irish Republican Army
and the players knew such funds directly, indirectly, partly or entirely
reached the IRA, then the players would conceivably be guilty of violating
this law if the IRA was "designated". If the Secretary "designated"
an overseas Muslim religious organization, or a Jesuit mission organization
in South America, or a University in China---rightly or wrongly---as
terrorist, then material support by Americans would be unlawful. On July 8, 2002 a North Carolina man, Mohammad Hammoud, became the first person to be convicted under the 1996 law as a result of funneling profits from a cigarette-smuggling ring to Hezbollah, a designated terrorist organization based in Lebanon. However, on the date of Hammoud's conviction, a federal judge in Los Angeles declared the same law unconstitutional and threw out a March, 2001 indictment against seven people accused of directing charitable donations to an Iranian group "designated" as a terrorist organization. The judge questioned the failure to afford due process scrutiny of the "designation" status by the Secretary of State, or at the trial stage. The law, often called the "material support statute" will also be challenged by a New York attorney and her translator who were accused of relaying messages from a convicted terrorist to his terrorist associates overseas. (A.P., Tim Whitemire, 7/8/02) b. The USA Patriot Act The passage of the USA Patriot Act shortly after 9/11 provoked further protests from civil liberties groups such as the American Civil Liberties Union. Here is a brief discussion of some of the controversial provisions of that Act.
Last month, the Foreign Intelligence Surveillance Court (FISA), a secretive federal court that approves spying on terror suspects in the United States, refused to give the Justice Department broad new powers under the USA Patriot Act, saying the for the past two years the government abused existing laws and misled the court dozens of times (including 75 applications for search warrants and wiretaps). FISA approves about 1000 warrants a year. Legal standards for FISA warrants are much lower than for traditional criminal warrants. The USA Patriot Act included measures that softened the standards for obtaining intelligence warrants, requiring that foreign intelligence be a significant, rather than primary, purpose of the investigation. The Court turned down a Justice Department request to authorize the counterintelligence community, which operates outside most Constitutional restraints, to share information with domestic law enforcement, which operates within Constitutional restraints. Attorney General Ashcroft appealed the ruling, the first such appeal in the 23-year history of FISA. Stewart Baker, former general counsel of the National Security Agency, called the Court's opinion a "a public rebuke.... The message is you need better quality control," Baker said. "The judges want to ensure they have information they can rely on implicitly." In light of the fact that FISA was previously criticized as a "rubber stamp" for the government, this public rebuke is unprecedented. (D. Eggen & S. Schmidt, Washington Post, 8/23/02) On November 19, 2002 a three-judge review panel overturned a ruling by the Foreign Intelligence Surveillance Court. c. Detentions of Non-Citizens One of the first measures of concern was the Justice Department's authorization of the detention of over 1100 immigrants (while the vast majority of these were persons of Arabic descent, some were Jews). As of February 2002, 1400 people had been jailed, while only some 440 of them remained in INS custody in March. (Monitor, 3/27/02, see also the Chicago Daily Law Bulletin, 2/13/02) The detentions raised widespread media and congressional concern. ABC reported that detainees were being held in isolation, denied access to legal representation, suffered beatings, sleep deprivation, and blindfolded during interrogations. (ABC, "National Security vs. Citizens' Rights", Bill Blakemore) One detainee was the Health Commissioner of Chester, PA, Dr. Irshad Shaikh, a John Hopkins educated immigrant who was released after the FBI broke down his door and mistakenly arrested him for suspicion of anthrax terrorism. Former FBI Director, William Webster, was among eight former ranking FBI officials who said that these detentions might constitute an "abuse of civil liberties" because it "carries a lot of risk with it". (Washington Post, 11/28/01) Those detentions were supported by new rules issued by the Justice Department and the INS that allowed for the detention of non-citizens who were otherwise adjudged eligible for release from custody by immigration judges where there is "reasonable grounds to believe he is engaged in any activity that endangers the national security of the United States." (See New York Times, "Bush's New Rules", Matthew Purdy, November 25, 2001) News reports indicated that the detainees were initially held in communicado without access to anyone, including lawyers, and their identities were reportedly kept secret; except in the case of Mr. Mohammed Rafiz Butt, a 55 year old Pakistani detainee who, according to the Chairman of the Senate Judiciary Committee Patrick Leahy, died in his cell of a heart attack. His incarceration was later admitted to be "a mistake". (See Comments of Senator Patrick Leahy on "Meet the Press", National Broadcasting Company, 11/25/01) United States Senator Russ Feingold called "unsatisfactory" the Justice Department's early claim that the publication of the identities of the detainees would invade their privacy, could impede the criminal investigation, or deter suspects from cooperating. (ABC, "Justice Declines to Identify Sept. 11 Detainees", Josh Gerstein, 11/21/01) At the American Bar Association Convention this past August (2002), a measure was passed demanding that the government reveal the identities of the detainees still held in custody, and further to explain why they were not allowed legal representation. d. Detentions of U.S. Citizens Two American citizens who are Muslims are now being held in detention as "enemy combatants", Jose Padillo of Chicago and Yasser Esam Hamdi of New Orleans. Last month U.S. District Court Judge Robert Doumar in Virginia criticized the Assistant Solicitor General for the continuing incarceration of Hamdi as an "enemy combatant" who now resides in the brig in Norfolk. (AAI, Washington D.C.; N.Y.Times, K. G. Seelye). The Judge stated:
The government maintains that "anyone detained in connection with the war on terrorism was an enemy combatant and had no right to a lawyer" (N.Y.Times, Seelye) Some believe that the Bush administration has declared war on the doctrine of separation of powers in defying judicial orders concerning Hamdi. ( D. Levenosky, Casper Star-Tribune, 8/18/02) e. Ashcroft's "Citizen Camps" On August 8, 2002 the Wall Street Journal broke a story that Attorney General John Ashcroft had announced a desire to establish camps for United States citizens who he deems to be "enemy combatants". (See reports in LA Times, Turley, 8/14/02; Wall Street Journal, 8/8/02; CNN.com, Findlaw, Prof. A. Ramasastry - Washington Law School; and R. Goldstein, Internment Camps, 8/26/02) Internees in these special camps will be treated just as Padilla and Hamdi have been so far -- as if they did not possess the basic, traditional rights that can be invoked by U.S. citizens suspected of crimes. (CNN.com, Findlaw, A. Ramasastry, 9/4/02) Jonathon Turley, a constitutional law expert from George Washington University, commented on Ashcroft's plan:
Such a policy raises questions of who qualifies as an "enemy combatant" and who decides. How will the line be drawn? Would speech be suspect? Can the government eavesdrop upon those who speak in support of Al Qaeda, or those who criticize government policy in the Middle East? Would such speech "render a US citizen vulnerable to summary arrest and indefinite detention?" Would donations to an Islamic charity suspected of ties to a terrorist organization render one qualified for arrest and detention? (The Monitor, June 12, 2002 - Military Trial for US citizen?) The question of "who decides?" has been answered by Ashcroft aides who "indicated that a 'high-level committee' [Attorney General, Secretary of Defense, Director of the Central Intelligence Agency] will recommend which citizens are to be stripped of their constitutional rights and sent to Ashcoft's new camps". (CNN.com, Findlaw, A. Ramasastry, 9/4/02) These camps would be administered under a "parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say". This parallel system would permit "indefinite military detention for those designated enemy combatants." For example, the Foreign Intelligence Surveillance Court, armed with new authority under the USA Patriot Act, could approve clandestine searches of the homes of U.S. citizens. Thereupon, the Justice Department under Executive Authority could declare citizens as "enemy combatants, to be held indefinitely at a U.S. military base". Courts have little authority to question such detentions and the detainee would have little opportunity to contest his detention. (See Washington Post, "Terror War, 2nd Track for Suspects, C. Lane, 12/01/02) The Post reports:
In defending this scheme in his address to the American Bar Association on August 10, 2002, Deputy Attorney General Larry D. Thompson said:
Tim Lynch, Project Director on Criminal Justice at the Cato Institute in Washington states: "The president is asserting the power to take people into custody on US soil outside the judicial process... We have a fourth Amendment, and the president seems to be saying he can set that aside and take into custody anybody he or the FBI thinks are involved in terrorism". On August 8, the American Bar Association's
"Task Force on Treatment of Enemy Combatants" released a preliminary
report inquiring "whether the government can-or should-be able
to detain American citizens indefinitely without charges and hold them
incommunicado without a hearing and without access to counsel."
The Report opposes holding detainees without The Justice Department contends that the 1971 law does not apply to the Chief Executive who has sole authority to establish citizen camps for enemy combatants without legislative intervention. The Supreme Court may be unwilling to challenge this use of executive power in light of it holding in Korematsu v. United States, 321 U.S. 760 (1944), wherein it held that an executive order for the "civil exclusion" of all persons of "Japanese ancestry" in time of war with Japan was constitutional, regardless that it resulted in the internment of 120,000 Japanese-Americans. The effectiveness of mass arrests has not been proven to expedite the investigative process. The French and English have utilized such methods as to suspected terrorist in Algeria and Northern Ireland respectively with little success. Although over 1400 persons were detained in the United States and nearly 200 were detained in Europe, very few have been charged in connection with 9/11. Some intelligence experts feel that the mass arrests of suspects "were designed for public consumption" without serving any "real purpose". (Monitor, 3/27/02) Others say that such measures have a deterrent effect, regardless that the traditional law enforcement was unable to make many meaningful arrests. Attorney General Ashcroft made a similar comment regarding Justice's program of voluntary interrogations. (Monitor, 3/27/02) f. Military Tribunals for Enemy Combatants On November 14, 2001 President Bush promulgated a military order allowing for the trial of "non-citizens" suspected of terrorism before special military commissions. At first many believed that this process would likely be "swift and largely secret": "The release of information might be limited to the barest facts, like the defendant's name and sentence." (Washington Post, "Liberty and the Pursuit of Terrorists", C.Lane, 11/25/01) In the past, military tribunals were convened in secret before military officers (selected by the Defense Department) who could convict by a two- third's majority. (See Reuters, Anton Ferreira, November 23, 2001). Traditionally, non-citizen suspects would be denied a public trial, the requirement of proof beyond a reasonable doubt, the right of counsel of choice (lawyers are appointed by the military), the right of the unanimous verdict by a jury of peers, the right of cross examination, and the right of appeal. Public criticism of Bush's initial announcement of tribunals last November was widespread. Spain refused to extradite eight suspected al-Qaeda terrorists who are believed to have been involved in the September 11, 2001 bombings without guarantees from the United States that they will not face a trial in a military court, saying that such a process falls below "judicial norms" established by the 15-nation European Union. (See New York Times, "Bush's New Rules", Matthew Purdy, November 25, 2001 & Associated Press, "Spain Seeks Extradition Promise", J. Socolovsky, 11/25/01) New York Times columnist William Safire commented that the President had assumed "what amounts to dictatorial power to jail or execute aliens suspected of terrorism" through the proposed use of a "kangaroo court [which] can conceal evidence, make up its own rules, find defendant guilty even if a third of officers disagree, and execute alien with no review by any civilian court". (See NY Times, "Seizing Dictatorial Power" 11/15/01) Richard Goldstone, chief prosecutor for the United Nations War Crimes Tribunal dubbed the President's plan as "second-or third-class justice". (See Reuters, Legal Expert Attacks Plan, A. Ferreira, 11/23/01) The American Bar Association Task Force on Terrorism and the Law, Report and Recommendations on Military Commissions, January 4, 2002 questioned the President's authority to utilize military commissions so expansively; and the ABA added that "persons lawfully present in the United States" are protected from such tribunals absent an express act of Congress. (See ABA Task Force on Military Commissions, 1/4/02) Public attention and legal concerns were thought to have prompted the Bush Administration to modify its original plan with its March 21, 2002 announcement that noncitizen enemy combatants appearing before military tribunals would have certain rights: (1) court-appointed military lawyers or privately retain counsel of choice, (2) public trials in that journalists are allowed to observe except where there is discussion of classified material, (3) conviction requires proof beyond a reasonable doubt by a two-thirds vote of the court, but the invocation of the death penalty requires a unanimous verdict, and (4) appeals would be heard by panels of military and/or civilian specialists. (Chicago Tribune, Bush Sets Rules, John Diamond, March 21, 2002) However, there was yet another modification by the Attorney General last month (August, 2002) when he announced the detention of two Muslim U.S. citizens deemed "enemy combatants", and then indicated that other U.S. citizens may be detained in "citizen camps"---thus abandoning the idea of confining the military tribunals to "noncitizens" and allowing them access to counsel of choice. g. Racial/Ethnic Profiling and Discrimination Shortly after 9/11, the American-Arab Anti-Discrimination Committee reported that racial profiling of Arab and Muslims in the United States had resulted in 500 alleged hate crimes. (Chicago Tribune, "Americans on Alert for Terror", Karen Brandon and Dahleen Glanton, November 25, 2001) Negative connotations associated with "profiling" have not always been the case. Law enforcement agencies have historically succeeded in utilizing legally acceptable scientific profiles to identify suspected drug smugglers and hijackers. In private industry, employers have successfully reduced workplace violence through the use of objective, scientific psychological profiling and testing to identify potential violent employees. However, after 9/11 some overzealous private security and law enforcement officers abandoned the use of scientific "identifiers", but instead employed subjective, arbitrary profiling. Shortly after 9/11 many airline passengers who merely appeared Middle Eastern were summarily ejected from domestic and international flights as "a security risk". This includes some Jews found praying in Hebrew on board an international flight from the United States. Last December an Arab-American secret service agent assigned to fly to Texas to protect the President was refused passage on an American Airlines flight because his credentials were suspicious. The Federal Aviation Administration had acknowledged that airport security screeners at one time were profiling Arab-Americans based upon religion, accent or ethnic appearance: "There appears to have been a rash of improper and insensitive searches," (New York Times, "Directive on Searches", Laurie Goodstein, 11/25/01) Another perception of governmental "profiling" surfaced when the State Department announced a halt to immigration of young, male immigrants from the Middle East and then proceeded to expel 6000 illegal Arab and Muslim aliens, notwithstanding the millions of other illegal immigrants presently residing in the United States. At the same time, in November of 2001 and again in March of 2002, the Justice Department directed local law enforcement to conduct "voluntary" interrogations of 8000 foreigners residing in the United States, namely Arab and Muslim males between ages 18 and 33. (Chicago Tribune, US to Interview Arab Nationals, N. Bendavid, 3/21/02) The Associated Press reported that some police chiefs were "in open revolt against" the Justice Department's plan because they were hesitant to appear to be engaging in ethnic profiling. Chicago's Police Superintendent Terry Hillard withheld the support of his Department. The Portland, Oregon Police Chief, Andrew Kirkland, refused to follow the directive, saying that the law does not permit the police to "go out and arbitrarily interview people whose only offense is immigration" to the United States. (See AP, "Portland Cops Jilt Feds", 11/22/01; Ashcroft to Testify, J. Salant, 11/26/01; NY Times, Wait Until Dark, F. Rich, 11/24/01) In May of 2002 federal officials again directed local law enforcement to help with the enforcement of the 1996 Anti-Terrorism Act as to illegal aliens with emphasis upon Arabs and Muslims. Some believe that this expanded enforcement scheme through local police will present "a grave risk of racial profiling and civil rights abuses, not just against noncitizens but also against citizens deemed not to look "American." (Chicago Daily Law Bulletin, Lawyer's Forum J Lindsay &A Singer, 5/8/02) h. Freezing Assets: In still another exercise of executive authority, on December 4, 2001 the President announced that the Treasury Department was freezing the assets of two overseas banks and the Holy Land Foundation [to be distinguished from the "United Holy Land Fund"]. The Foundation and the banks were accused of providing funds to a listed "terrorist organization" under the 1996 Anti-Terrorism Act; i.e. the Hamas. Although Foundation attorneys claimed that the government's motives were political in an attempt to smear the Foundation, an FBI memo published in the Dallas News revealed surveillance evidence that the Hamas leaders met with key officials in the Holy Land Foundation in 1993 to discuss collecting funds to help the Hamas and defeat a self-rule government in Palestine by waging a "holy war". Attendees agreed that the United States provided a good venue for raising funds, providing a perfect legal atmosphere to obtain financial and political support for the Hamas (referred to as "samah") The FBI reported that Hamas initially funded the Holy Land Foundation with over $200,000. (N.Y. Times, The Money Trail, David Firestone, 12/6/01) VII. A COMMUNITY "AT-RISK" The backlash against Arabs and Muslims
in American society is serious. Some compare it to the early treatment
of German Jews in the 1930s, or the internment of Japanese-Americans
in the 1940s, or the Congressional investigations on "Un-American
Activities" under Joseph McCarthy in the 1950s. Unfortunately,
there is a perception in the community that governmental agencies charged
with rights enforcement, such as the EEOC and Justice's Civil Rights
Division, cannot be trusted as they appear undistinguishable from their
sister agencies, such as the F.B.I and INS, Consequently, there are clear signs that the Arab-American community has somewhat withdrawn from the political, social and professional process in the United States since 9/11. Attendance at religious, social and professional gatherings is significantly down, as seen, for example, at an annual "professional networking" reception in Chicago last February, or the meeting of a local "Arab-American Democratic Club" on candidates night in March. At a sparsely attended dinner for Arab-American journalists recently a medical doctor commented that "my referrals are down 50%" since 9/11. For a time Muslim women were afraid to leave their home to shop, and they forbid their children from attending school. At a recent public forum sponsored by the United States Commission on Civil Rights, only a handful of persons from the community attended. However, the most compelling
evidence of a community in seclusion is demonstrated by advisory statement
issued to "At-Risk Communities" by the Arab-American Anti-Discrimination
Committee. Excerpted below are precautions to take "in the event
of an attack":
When the Arab-American Bar Association issued a warnings and recommendations in its "Preliminary Report on Hate Crimes" on September 26, 2002, it was concerned about the protection of life and property in the event of another terrorist attack. The warnings and recommendations were adopted by Human Rights Watch Report on Hate Crimes Against Arabs and Muslims in November of 2002 (See:hrw.org/reports/2002/usahate/) This remains a concern because many fear that measures enacted after 9/11 have empowered the government to: (1) indiscriminately choose foreign or domestic organizations suspected of supporting terrorism and then jail or deport anyone who gives them "material support's on the basis of "secret evidence"; (2) jail those who commit minor criminal offenses that it deems as "dangerous to human life" where the perpetrators intend to "intimidate" society or influence government policy, (3) detain U.S. citizens and non citizens suspected of being "enemy combatants" without bail, in communicado, without access to an attorney; (4) prepare "citizen camps" to incarcerate U.S. citizens, and (5) avoid the justice process by trying such individuals before military tribunals. Many jurists, local police, foreign governments, the Human Rights Watch, and even the Foreign Intelligence Surveillance Court have openly voiced deep concern to some of these measures. Let no one forget that the purpose of the terrorist attacks was not so much to murder innocent people, but rather to stir a backlash of hatred and fear both here and abroad. |
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