Aaron Nagar Rough Draft The meaning of the word terrorist brings a certain image to ones mind.

An individual might think of Osama Bin Laden, Sadam Hussein, or simply a Middle Eastern man with a turban around his head. Perhaps one might think of an event. For most individuals, the September 11, 2001 attacks come to mind. On this day, terrorists of Middle Eastern decent hijacked four airplanes. Two of these planes struck the World Trade Center towers which later fell, and one struck the pentagon. The passengers commandeered the other plane and drove it into the ground before it could implode the White House. In the wake of these attacks, the United States Government created new policies in an effort to prevent future terrorist attacks. Although turning a blind eye towards their effectiveness, many scholars believe several of these policies infringe upon the freedoms of the American people. All American citizens and people residing in this country are victims of these policies, but one ethnic group in particular stands out in carrying an extra burden for the fight against terrorism; Arabs and those who practice the religion of Islam. In the immediate aftermath of 9/11, anger occupied the attention of many as the country dwelled in an alternate state-of-mind. Hate crimes against Arabs rose dramatically, and the American perspective scrutinized the religion of Islam for its supposed hatred of western culture. Mainstream media implored itself in Islamophobia after 9/11, but critics argue that the governments involvement in discriminatory acts against people of Middle Eastern decent, shamefully tarnish the reputation of this country. One of the major actions of the government that critics specify happened almost immediately following 9/11, after INS and FBI officials detained 762 individuals of mostly Middle Eastern decent. In June 2003, the United States

Office of the Inspector General investigated the matter (1st citation). The investigation revealed that actions by the INS and FBI breached the rights of several U.S. immigrants. Although the courts ultimately convicted most of the detainees of violating immigration laws, the FBI and INS did not find a single terrorist and only one individual had some links to terrorist organizations. The individuals found themselves detained by law enforcement before given due process or bond, and many detainees reported instances of abuse. The FBI rejects their actions as discriminatory because the arrests occurred as a result of tips from ordinary citizens. For example, one tip reported that the actions of two individuals looked suspicious when they tried to rent a white van. The FBI justified detainment without due process, based on their hold until cleared policy. Given the hostile circumstances at the time, the FBI needed to make sure that the detainees had no links to terrorism before their release. The FBI also ignored the constitutional right of bond, entitled to each detainee before a guilty conviction. According to immigration law, an immigrant possesses the right to a bondredetermination hearing. About forty-two detainees filed for a bond-redetermination hearing. In this hearing, the government must provide evidence to hold the detainees without bond. The Immigration and Naturalization Service (INS) represented the opposition in court against the detainees. The FBI promised to provide evidence to the INS so they could defend the detainment of these individuals. However, in every case, the FBI failed to supply sufficient evidence to support the justification of holding the detainees without bond. As a result, the immigration judge granted bond to each detainee who requested a hearing. Nonetheless, the INS ignored the judges rulings and handed the detainees back to the FBI until the clearance of each individual, a process that averaged eighty days (CITE).

The Department of Justices response to the OIG investigation contrasted greatly from that of the critics. Barbara Comstock, The Director of Public Affairs at the time of the investigation released a statement on June 2, 2003, in support of the detainment. She claims that the Detention of illegal aliens is lawful. We detained illegal aliens encountered during the 9/11 terrorist investigation until it was determined they were not involved in terrorist activity, did not have relevant knowledge of terrorist activity, or it was determined that their removal was appropriate. (CITE) However, she fails to mention that the 14th amendment protects all people in matters of the law, including illegal immigrants. Several members in Congress, including the honorable Partick Leahy, denounced the governments handling of the situation. Leahy testified in Congress on June 25, 2003. He encouraged Attorney General John Ashcroft, responsible for dispatching the order to detain terrorist suspects, to apologize to the 9/11 detainees. Ashcroft never released a statement of apology. Perhaps his reasoning paralleled that of Professor Richard Banks of Stanford Law School. In a University of Pennsylvania debate on racial profiling in the War on Terror, Banks argues (his argument did not pertain specifically to the event discussed); Such measures might be criticized as racial profiling, or defended as a sensible and nondiscriminatory means of locating a particular suspect (Banks Rebuttal, paragraph 7) A strong piece of evidence supporting the unconstitutionality of certain actions by the government is Chief Immigration Judge Michael Creppys September 21, 2001 email to all immigration judges and court Administrators. In the email, Creppy orders that if warranted by the Department of Justice, the court must close the hearing to the public and avoid discussing the case or otherwise disclosing any information about the case to anyone outside the immigration court. Information on these court cases is classified, however sources from the

Migration Policy Institute claim that most hearings kept secret involved deportation cases (Creppy, Michael). On November 9, 2001, Attorney General John Ashcroft announced intentions to interview about 5000 individuals in order to gather information on possible leads to terrorists. In 2001, the Department of Justice released a statement that the interviews focused on gathering information from individuals who entered the United States on non-immigrant visas; individuals here on a temporary basis (5000 Interview Status Report). The individuals travelled from Middle Eastern countries where Al-Qaida had influence. The U.S. Attorney sent a letter to each individual requesting a time to interview. In the letter, the U.S. Attorney expressed: "while this interview is voluntary, it is crucial that the investigation be broad-based and thorough, and the interview is important to achieve that goal. We need to hear from you as soon as possible -- by December 4.(CITE) Some interview questions included their political beliefs, religious beliefs, whether they sympathized with the 9/11 attackers, and whether they had ever received any weapons training (civilrights.org). The court ordered the deportation of twenty of these individuals on immigration charges (civilrights.org). According to the Department of Justice in a statement released on December 21 2001, the majority of the individuals supported the government and expressed their compliance to help (CITE). Their statement concluded that the interviews contributed to providing leads to several terrorists. After 9/11, the passage of the USA PATRIOT Act started a new era in domestic security. Not only did the act lead to stricter border controls, many argue it breaches several freedoms of the American people. In the very first title, the bill specifically condemns any discrimination against Arabs and Muslims. In title two, the bill addresses enhanced surveillance procedures in all cases relating to terrorism. Also, It allows for intelligence sharing between law

enforcement agencies to improve coordination in the counter-terrorism effort (CITE). A controversial case regarding the PATRIOT Act took place in 2007 in Mayfield vs. The United States. Brandon Mayfield is a United States citizen born in Oregon, has a wife, three children, and is currently a practicing lawyer. In the case, Brandon Mayfield faced accusations of terrorism by planting the bombs that killed over a thousand people in the 2004 Madrid bombings. Mayfields fingerprints happened to be one of 20 that showed similarities to the fingerprints on a bag near the site of the bombings. According to Mayfield, the FBI singled him out because he recently converted to Islam. The FBI claimed to have a 100 % positive match with Mayfields fingerprints and the ones on the bag. When Spanish intelligence analyzed the fingerprints, they concluded that Mayfields prints did not show any resemblance to the ones on the bag and quickly dismissed Mayfield as a suspect. Despite the input of Spanish intelligence, the FBI asked for court permission to surveillance Mayfields home and daily activities. The FBI secretly entered his home and seized several items ranging from his laptop to his childs homework. The FBI eventually sent Mayfield to a detainment facility before ever given chance to prove his innocence in court. Two weeks after his detainment, Spanish intelligence found the culprit of the bombings and the FBI released Mayfield the next day. Following his release, he filed suit against the United States government. The United States and Mayfield agreed on on a $2 million settlement to Mayfield based on harm done to his family and the FBIs violation of his fourth amendment (CITE). Two years after the settlement, the FBI refused to return some of the items seized during their illegal raid. Mayfield sued again in 2009 for ongoing harm done to him and his family. This time, Mayfield did not just want to retrieve his property; he pursued the complete nullification of the sections of the PATRIOT act that are in violation of the fourth

amendment. At the end of the case, the court ruled in favor of the United States for two reasons. First, the court ruled that Mayfield had no standing in getting rid of sections of the PATRIOT act because he had settled two years earlier. Second, the United States cited the 1998 court case Parole vs. Scott (CITE), when the court ruled that the fourth amendment is violated at the point of an illegal search or seizure, but the subsequent use of any information gained from that search or seizure is lawful in certain cases (terrorism subject to this certain type of case), thus the FBI faced no obligation to return the items illegally seized. This court case is a prime example of how the USA PATRIOT act can lead to violations of rights protected under the U.S. constitution. The government overstepped the authority of the constitution in the name of national security. This is perhaps one of the most considerable shifts in post 9/11 United States. To put this in perspective, before 9/11 most suspects could be brought to court on either civil charges or criminal charges. No matter what the charges, a suspect is guaranteed protection under the constitution. Suspects maintain the right to due process, bond, and the right to a fair trial in the presence of a judge and jury before they can ever be declared guilty and sent to prison. After 9/11, if a suspect is charged with terrorism, the government suspends all assumed protection under the constitution. The suspect no longer bears the right of due process, bond, or a fair trial before being sent to prison (detainment facility in the case of a terrorist suspect). The PATRIOT act creates an entirely new category of criminalization. As the United States perpetuated itself into a post-9/11 world, the PATRIOT act served as a legal platform for other policies and agencies to form that would otherwise likely be considered unconstitutional before 9/11. Since immigration has become an issue of national security, many post 9/11 counter-terrorism efforts fixate on immigration reform. For Example,

the National Security Entry-Exit Registration System (NSEERS) required immigrants from predominantly Middle East and Muslim nations to be fingerprinted, photographed, and interviewed before entering the United States (Mittelstadt). In addition, the government limited the ports these immigrants could enter through. The NSEERS program reached termination in April of 2011. Now, the United States requires fingerprints and an interview for all permanent immigrants through the US-VISIT program (Mittelstadt, Section B part 1). Several other policies and agencies also find their legal ground on the PATRIOT Act. For example, many opponents cite the Transportation Security Administration. Airplanes are one of the main targets for terrorists, as exemplified in the 9/11 attacks. Since then, several other terrorists have attempted to bring a bomb aboard an airplane, including the shoe bomber in December, 2001 and the underwear bomber in December 2009. U.S. counter-intelligence failed to find these individuals before they boarded the plane, but the shoe bomber was caught in the act and the underwear bombers device failed to detonate. Although intelligence failed in these attempts, the PATRIOT Act allows government agencies to take action in order to prevent future similar attacks. Each airplane passenger is now required to take off their shoes and stand in a body scanner to find any weapons that threaten the safety of the passengers. Prior to 9/11, body scanners fail to comply with the fourth amendment but today, national security initiatives take priority over the constitution. The agency formerly responsible for immigration and customs enforcement before 9/11 was the Immigration and Naturalization Service (INS). Immigration reform transferred most of the INSs functions to the Department of Homeland Security (DHS), established in 2002. The goals of the DHS are to protect the nation from harmful people, dangerous goods, protect infrastructure, strengthen the nations preparedness and emergency response capabilities, and

unify DHS operations and management (CITE). Also, the DHS is responsible for overseeing a large range of government agencies from immigration to local and federal law enforcement. The DHS split up the responsibilities of immigration enforcement between all agencies responsible for enforcing the law; however three specific Bureaus carry most of the burden. The Bureau of Citizenship and Immigration Services conducts the naturalization and citizenship process. Border enforcement is split between two agencies, the Bureau of Customs and Border Protection (CBP) and the Bureau of Immigration and Customs Enforcement (ICE) (Congressional Budget Office). Between the years 2000 and 2010, ICEs budget more than doubled and their employment increased by 39.7 percent (migrationpolicy.org). After 9/11, the government established several initiatives to protect the border and find illegals: in 2005, the Secure Border Initiative (terminated in January of 2011), the Secure Fence Act of 2006, and the ability of local law enforcement to arrest individuals on suspicion of illegal immigration in certain states. When defending the PATRIOT act and post 9/11 immigration reform, there is no standing in the argument of the constitutionality of such reforms. Daily, the TSA conducts searches that would otherwise be considered illegal before 9/11. The FBI has arrested and detained thousands of individuals before permitted the opportunity to prove their innocence. Furthermore, many of the post 9/11 counter-terrorism efforts are blatantly discriminatory and question the authority of the fourteenth amendment. With this said, one cannot undermine the type of enemy the U.S. is currently at war with. Terrorists conduct their actions through the use of manipulation, sabotage, and the deliberate killing of innocent victims. A different kind of enemy is how former President George W. Bush describes the War on Terror (CITE). According to the Heritage Foundation, since the enactment of the

PATRIOT Act, increased intelligence and law enforcement capabilities contributed to the foil of over 39 terrorist plots (CITE). Several Congressmen, both democrat and republican, continuously express their support for the PATRIOT Act. For instance, Representative Mike Oxley (R-OH) commented that the PATRIOT Act is balanced, comprehensive, and bipartisan (CITE). In addition, then Senator Joe Biden (D-DE) said that the PATRIOT Act allows law enforcement to keep up with modern technology. These statements are not untrue as there are several examples of intelligence sharing that led to the capture of terrorists aimed at killing innocent lives. Some examples include the 2007 JFK Airport plot, the arrest of Hassan Abujihaad (a former U.S. Navy sailor from Phoenix, AZ) in 2008, and the recent arrest by New York Police of two individuals planning to bomb an orthodox synagogue in May 2011. In a debate on Racial Profiling and the War on Terror at the University of Pennsylvania, Richard Banks of Stanford Law School offers an interesting take to the issue. It is undeniable that the majority of terrorist attacks are conducted by Arabs and Muslims from extremist organizations. Therefore, one might imagine that the majority of terrorist suspects are either Arabs or Muslims. Consequently, when the FBI or other investigative agency provides a description to other law enforcement agencies of terrorist suspects, it is likely they are describing an individual with Arab or Muslim characteristics. Therefore, the likelihood of a person of Middle Eastern decent arrested driving while brown or searched at a TSA checkpoint increases because that individual matches the characteristics of the group most likely to commit a terrorist attack. Banks essentially concludes that it is simply unfortunate that all Arabs and Muslims must carry an extra burden in the fight against terrorism. Some individuals such as Congressman Rick Santorum take this notion to the extreme by advocating laws allowing law enforcement to racially profile. In a statement by Santorum in November 2011, he states that "The radical

Muslims are the people committing these crimes, by and large, as well as younger males... Not exclusively but these are things you profile to find the most likely candidate." After 9/11, the United States unquestionably evolved quite drastically. Terrorism brought with it an entirely new form of criminalization. The PATRIOT Act allows the government to conduct national security procedures that would otherwise be considered highly unconstitutional before 9/11. If an individual is charged with terrorism, citizen or non-citizen, that individual is no longer guaranteed protection under the constitution. The suspect is denied due process, bond, or a fair trial before a judge and a jury. The PATRIOT Act mandates that all suspected terrorists be detained and held until a process exerted by the FBI and other intelligence agencies clear the suspected individual. The PATRIOT Act also acts as a legal platform for other government agencies to form, that are vested in national security. While critics may question the constitutionality of such organizations and legislation, one cannot refute that the benefits of the PATRIOT Act have contributed to the foiling of several terror plots that could have killed Americans on U.S. soil. Although the first title of the PATRIOT Act specifically discourages profiling against Arabs and Muslims, actions of the government suggest otherwise. On the other hand, one cannot refute that the majority of terrorist plots are carried out by individuals in that group. Professor Richard Banks provides a compelling argument suggesting that racial profiling is merely an unintended consequence of national security. The fact that most terrorist descriptions happen to include Arab or Muslim characteristics, leads law enforcement to conduct a sensible and nondiscriminatory means of locating a particular suspect. The change in this country after 9/11 is as significant a change as any other time in our nations history. The threat of terrorism and advancing technology has forced this nation to

repeal some of our most protected freedoms. After all is said and done, one might ask the question, who is winning this War on Terrorism...the terrorists or the freedom fighters?
Secondary Sources: Hauptman, Samantha M. Moral panics and the criminalization of immigration: America's response to post-9/11 federal regulations and the USA PATRIOT act. Sociology. Jacksonville State University, 2010. ProQuest Dissertations and Theses, Retrieved from <http://login.ezproxy1.lib.asu.edu/login?url=http://search.proquest.com/docview/869529587?accounti d=4485>. Zaman, Noreen Kausar. Understanding the experiences of discrimination in muslim americans post-9/11: A qualitative study. New York University. New York University, 2009. ProQuest Dissertations and Theses, Retrieved from http://login.ezproxy1.lib.asu.edu/login?url=http://search.proquest.com/docview/304956987?accountid =4485 Kimmel, Paul R., Stout, Chris E. Collateral Damage: the psychological consequences of America's war on terrorism (Google eBook). CHAPTER SEVEN: Efforts to Prevent Terrorism: Impact on Immigrant Groups by Nina K. Thomas. 2006. <http://books.google.com/books?id=Fwie5FvWXekC&pg=PA131&lpg=PA131&dq=efforts+t o+prevent+terrorism:+impact+on+immigrant+groups++thomas+nina&source=bl&ots=OGwi Nbg6i7&sig=Jx_IiXQXxLvmQYHAYFJEgUBubU8&hl=en&ei=j4iSTu2VBYaNsQLfltGlAQ&sa =X&oi=book_result&ct=result&resnum=1&sqi=2&ved=0CB4Q6AEwAA#v=onepage&q=effor ts%20to%20prevent%20terrorism%3A%20impact%20on%20immigrant%20groups%20%20 thomas%20nina&f=false>. Valenzuela, Elisabeth. Challenges and Possibilities of Emigrante Epistemology: Mexican Immigrants Caught in the Crossfire of Neo-liberalism within Post 9/11 United States. 2009. The University of New Mexico, Albuquerque, New Mexico. <http://search.proquest.com.ezproxy1.lib.asu.edu/docview/304945965/1325675038C1E0C2 637/1?accountid=4485>. Michelle Mittelstadt, Burke Speaker, Doris Meissner, and Muzzaffar Chizhti. 2011. Through the Prism of National Security: Major Immigration Policy and Program Changes in the Decade Since 9/11. Washington, D.C. Migration Policy Institute. <http://www.migrationpolicy.org/> Primary Sources: Michael Hoefer, Nancy, Rytina, and Bryan C. Baker. Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010. 2011. Washington, D.C. Office of Immigration Statistics U.S. Department of Homeland Security. <http://www.dhs.gov/files/statistics/immigration.shtm>. Derekh Cornwell and Bryan Roberts. The 9/11 Terrorist Attack and Overseas Travel to the United States:Initial Impacts and Longer-Run Recovery. 2010. Washington, D.C.Office of Immigration Statistics

U.S. Department of Homeland Security. <http://www.dhs.gov/files/statistics/immigration.shtm>. H.R. 3162 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (Enrolled Bill [Final as Passed Both House and Senate] ENR) Retrieved from the Library of Congress online database: http://thomas.loc.gov/cgibin/query/D?c107:4:./temp/~c107hYjYBa:: DHS. One Team, One Mission, Securing Our Homeland: U.S. Department of Homeland Security Strategic Plan Fiscal Years 2008-2013. Washington, DC: DHS, 2008. www.dhs.gov/xlibrary/assests/DHS_StratPlan_FINAL_spread.pdf. Congressional Budget Office. Immigration Policy in the United States. Congress of the United States: Washington DC, 2006.<http://www.cbo.gov/search/sitesearch.cfm?criteria=immigration+policy+in+the+united +states>. Department of Justice Congress Explains the USA PATRIOT Act (various reasons why senators defend the patriot act)http://www.justice.gov/archive/ll/subs/q_support.htm Collins, Jeffry. Letter from Jeffry Collins, United States Attorney to a potential interviewee. Letter dated Nov., 26, 2001 posted to cnn.com/u.s. november 27, 2001. http://archives.cnn.com/2001/US/11/27/inv.questioning.letters/ United States Department of Justice. 5000 Interview Status Report. For immediate release Friday, December 21, 2001. Washington D.C. # 663 http://www.justice.gov/opa/pr/2001/December/01_ag_663.htm United States Court of Appeals, Ninth Circuit. Mayfield vs. The United States. No. 07-35865. Argued and submitted Feb. 5, 2009 December 10, 2009. Retrieved from FindLaw database: http://caselaw.findlaw.com/us-9th-circuit/1499231.html#footnote_6 David, Rudovsky, & Banks Richard. Racial Profiling and the War on Terror. 2011 Debate. A Project of the University of Pennsylvania Law Review. http://www.pennumbra.com/debates/debate.php?did=5 Office of the Inspector General. The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks. June 2003. http://www.justice.gov/oig/special/0306/index.htm Leahy, Patrick. Testimony of the Honorable Patrick Leahy. June 25, 2003. The United States Senate Committee on the Judiciary. http://judiciary.senate.gov/hearings/testimony.cfm?id=4f1e0899533f7680e78d03281fedeb12&wit_id= 4f1e0899533f7680e78d03281fedeb12-0-2 Creppy, Michael. Email to All Immigrant Judges and Court Administrators. Sep. 21, 2001. Retrieved from FindLaw database: news.findlaw.com/wp/docs/aclu/creppy092101memo.pdf Carafano, James Jay ph.D., Jenna Baker McNeill, Jessica Zuckerman. 39 Terror Plots Foiled Since 9/11: Examining Counterterrorism s Success Stories. The Heritage Foundation: Leadership for America. Backgrounder # 2556. May 20, 2011. http://www.heritage.org/research/reports/2011/05/39-terrorplots-foiled-since-911-examining-counterterrorisms-success-stories

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http://www.civilrights.org/publications/wrong-then/profiling_terrorism.html- Comstock statement http://www.economist.com/node/786733 - Bush Statement http://articles.nydailynews.com/2011-11-23/news/30435326_1_muslims-herman-caingreen-light - Santorum Statement