Immigration and we the people after September 11.

• Author: Motomura, Hiroshi

Immigration and citizenship issues are part of a larger discussion about how America should respond to the terrorist attacks of September 11, 2001. At the same time, how America should respond to terrorism is part of a larger discussion of immigration and citizenship issues. Both of these discussions are part of an ongoing conversation about diversity in America; hence, the place of this essay in this Symposium.

Four steps are necessary to unravel these complex connections. The first step entails connecting this panel on immigration to the previous panel on racial profiling. The second step addresses the general debate about September 11, terrorism, and America's response. The third step focuses on how the terrorism debate affects decisionmaking in immigration and citizenship. The fourth and final step explains how two conceptual shortcomings in prevailing approaches to immigration and citizenship have made it hard to define who "we the people" really are.

1. PROFILING AND BELONGING

   The first symposium panel addressed racial profiling. At least implicitly, that panel raised the questions of membership and belonging that are inherently at the core of any immigration and citizenship discussions. Two examples should make the point.

   A.

   During the round table discussion for the Racial Profiling panel, Professor Lund observed that it is important to distinguish discrimination on the basis of nationality from discrimination on the basis of national origin. (1) Nationality discrimination, he explained, refers to the treatment of individuals outside the United States depending on their country of citizenship or national allegiance. For example, the number of immigrants from any given country is limited to about 25,000 per year. (2) This means that would-be immigrants from Mexico and other high-demand countries must wait longer than immigrants from most other countries. While these distinctions have been challenged as unsound policy, (3) Professor Lund is correct that such distinctions are well-established in immigration law. (4) In contrast, national origin discrimination refers to the treatment of individuals in the United States based on their country of ancestry. Here, the law is less tolerant of bias. For example, an employer's preference for Chinese-American over Mexican-American workers would generally be considered unlawful employment discrimination based on national origin. (5)

   Underlying Lund's distinction is an important question: Who belongs to America? The distinction between nationality and national origin discrimination is really a line between the treatment of outsiders (nationality discrimination) and treatment of insiders (national origin discrimination). As to "them," nationality-based distinctions are permissible. Once persons become a part of "us," discrimination is no longer about nationality, but about national origin, and any such discrimination merits much greater scrutiny under the law.

   B.

   Similar issues of membership and belonging are at the heart (if below the surface) of how both Professors Lund and London approach racial profiling. London asserts that racial profiling is sometimes justified because it sometimes enhances the rationality and accuracy of law enforcement and antiterrorism efforts. (6) Lund takes a different position, namely that racial profiling is often inaccurate and irrational. Lund further explains that private actors operating in a free market will correct and, over time, eliminate that inaccuracy and irrationality, while government actors are immune from such market corrections. The absence of such correction is the foundation of Lund's argument against racial profiling by the government.

   Unstated in both positions is that racial profiling should be judged by its accuracy and rationality. For example, does racial profiling make more accurate the process of determining if a particular airplane will have a terrorist on board? But the argument that racial profiling may be irrational or inaccurate is not necessarily the strongest argument against profiling. I include myself among those who believe that profiling, even if accurate and rational, is still wrong because of the messages of exclusion that it sends to affected groups and the dignitary harms that it visits upon them. (7)

   My point is not to take direct issue with either Lund or London, but to observe that they focus on the question of whether racial profiling is rational. They do not ask if there might be a nondiscrimination principle weighty enough to counsel against profiling even if profiling enhances truthseeking. From this perspective, a ban on profiling for the sake of nondiscrimination is like other times when truthseeking is secondary to other values. Examples include the attorney-client privilege, the Fourth Amendment exclusionary rule, and the reluctance to direct a verdict based on mere statistical probability. (8)

   The next question is how to apply such a nondiscrimination principle in the terrorism context. How bad is it to stigmatize and marginalize Arab-Americans through profiling? The answer depends on whether we consider them to be Arab-American--a part of "us"--or "them"--just Arabs who are not Americans. If profiling is directed against the latter category of outsider Arabs, it is easy to just ask if "it works" to root out terrorism. If, however, profiling is directed against Arab-Americans, we quickly move beyond asking if "it works," to reach the further question whether it might be rational but nevertheless wrong. This insider-outsider line explains the contrast between the widely shared skepticism of profiling in the "driving while black" context, and the much broader public acceptance of profiling in the context of antiterrorism efforts after September 11. (9)

   Both of these examples--the distinction between nationality and national origin discrimination and our assessment of profiling--depend a great deal on matters of membership and belonging. This, of course, is the core concern of immigration and citizenship, and so it makes sense that the panel on racial profiling has raised questions for this panel on immigration to answer.

2. A LISTENER'S GUIDE TO THE DEBATE

   Before reaching immigration and citizenship, we should take a more general look at America's response to terrorism. I first drafted an early version of this Part II shortly after September 11, as an attempt to make sense of the many conflicting strands in the debate. (10) Over a year later, these observations retain their power to order what we hear from all points on the political spectrum.

   Why do we disagree about how to respond to September 11? Many people who disagree with each other seem to be talking past each other, and much of their failure to communicate seems due to their failure to identify their real points of disagreement, of which there are four of particular importance.

   A.

   First, what value premises and other agendas are observers bringing to the debate? This first question might be obvious, but it still requires mention. We all approach these issues with our own values, and as time passes any initial consensus on responses to September 11 seems to have given way to preexisting agendas on all sides. This is neither surprising nor wrong.

   We have another incarnation of the eternal debate between law enforcement and civil liberties, on issues ranging from preventive detention, to racial profiling, to the use of gun registration databases. Other preexisting agendas concern immigration, ranging from border security, to foreign students, to the right numbers of immigrants.

   B.

   Second, are we at war? The second question is whether this war is real, or just metaphorical, like the war on drugs or the war on poverty. There is a tendency to answer this question quickly and move to what might follow, but deciding if we are at war has many complexities.

   For instance, we might focus on the nature of the terrorism problem, but in turn, this can mean several things. By a strictly numerical measure, terrorism remains comparatively insignificant as a cause of death and injury. But a different way to view the problem is to consider the degree of threat to national survival. World War II seemed to be a war, as did the war on communism, though we often think of the latter as merely metaphorical. Or we could consider the external source of any problem. Our war on drugs, for example, probably would be more of a real war if a foreign power introduced drug abuse.

   Yet another aspect of the terrorism problem is its suddenness. Are wars on crime and drugs not real wars because they are just too familiar? These four ways to define war by thinking about the nature of terrorism--numerical measures, threat to national survival, external source, and suddenness--may amount to a degree of outrageousness that makes any response into a war.

   Alternatively, we might think about whether we are at war by focusing not on the terrorism, but on the solution. Are we at war if...