Quiet constructions in the war on terror: subjecting asylum seekers to unnecessary detention.

• Author: Welch, Michael

Introduction

Since the events of September 11, 2001, the United States HAS RESPONDED to the threat of terrorism with legislation that arms the government with greater powers over citizens and non-citizens. Many features of the war on terror have proven controversial since they undermine individual freedoms, civil liberties, and human rights (Cole, 2003; Parenti, 2003). Among the measures that have drawn considerable concern is the arbitrary use of detention of foreign nationals. Detention is among the gravest acts the state can take against people, especially if for long periods of time. The seriousness increases if persons are held not on criminal or immigration charges, but rather after fleeing persecution. This article dwells on how asylum seekers entering the U.S. are being subjected to unnecessary detention in harsh conditions of confinement. The unjust detention of foreign nationals has drawn considerable public attention, especially in the wake of the September 11 attacks (Human Rights Watch, 2002; Talvi, 2003a, 2003b), yet the plight of asylum seekers in a post-September 11 world has been neglected.

Between September 11, 2001, and December 2003, more than 15,300 asylum seekers were detained at U.S. airports and borders. From the port of entry, asylum seekers are transported to jail, often in handcuffs, and usually without any clear understanding of why they are being detained. Asylum seekers are legally eligible for parole if they satisfy the Department of Homeland Security (DHS) criteria (i.e., community ties, no risk to the community, and that identity can be established). However, in practice, even asylum seekers who meet those criteria remain in detention (Asylum Protection News, 2004). Immigration officials too often ignore or selectively apply the parole criteria, which exist in guideline form rather than as formal regulations. Compounding matters, when an asylum seeker's parole request is denied by DHS officials, they have no meaningful recourse; they cannot appeal the decision to an independent authority, or even an immigration judge (Asylum Protection News, 2003c; Jones, 2003; Lawyers Committee for Human Rights, 2004). (1)

As this article reveals, detaining asylum seekers is not an effective antiterrorist tactic. Its continued use, however, prompts sociological questions over why such policies and practices persist. The detention of asylum seekers suggests that certain aspects of the war on terror serve more to control immigration than to control crime, producing an array of human rights predicaments. Along with key human rights reports, this work looks at government rhetoric on national security that is used to justify blatant violations of international law written to protect persons fleeing persecution. The discussion briefly reviews quiet constructions and their role in formulating government policies and practices for the confinement of those seeking asylum.

Quiet Constructions

In the realm of social constructionism, a sociological framework aimed at revealing the nature of claims making, differences remain between the "strong" or "strict" constructionists and those regarded as "weak" or "contextual" (Cohen, 2002). The former insists that there are nothing but constructs, with a sociologist just one among many claims makers. Attempting to offer a more objective view, the latter proposes that a sociologist can (and should) issue reality checks while detecting and documenting exaggeration. In doing so, a sociologist unveils the social construction process, but is committed to understanding and resolving social problems. Further refining these approaches, Cohen distinguishes between noisy and quiet constructions. As the name suggests, high levels of public, political, and media attention accompany noisy constructions. Quiet constructions typically emerge in more muted forms in which the claims makers are professionals, government officials, and bureaucrats operating in an organization with little or no public or media exposure.

In the 1990s, moral panic over immigrants broke out in classic noisy constructionist fashion, replete with public and political discourse that rationalized harsher controls designed to deter and punish so-called illegal aliens (Welch, 2003a, 2002). Since the September 11 attacks, noisy hostility toward immigrants, particularly those of Middle Eastern descent, has been somewhat contained, due in part to public pronouncements of tolerance issued by political leaders and human rights organizations. Those developments mark the importance of resisting moral panic in a multi-mediated social world by which derogatory stereotypes of immigrants are challenged and dispelled (see McRobbie and Thornton, 1995). Still, the war on terror continues to produce a range of human rights violations committed by the state. Such abuses are perpetuated by quiet constructions within the U.S. government. Most notably, the Department of Homeland Security (DHS) has launched a series of questionable tactics involving the detention of asylum seekers that occur under the radar of public awareness. Quiet constructions differ from government secrecy. The government continues its policy of refusing to divulge information about persons being held as "special interest detainees" in terror-related cases (Dow, 2004; Welch, 2005a; 2005b), but quiet policies and practices of detaining asylum seekers take on another form of control in which government rhetoric rests on spin rather than silence.

Criminalizing Asylum Seekers in the U.S.

Understandably, the tragic events of September 11 have had a tremendous impact around the world and particularly on American society. As political leaders strive to deal with problems facing national security, it is likely that civil liberties and immigrants' rights will remain in flux (Cole and Dempsey, 2002; Ratner, 2003). Regrettably, the government's initial response to the threat of terrorism has been fraught with civil and human rights infractions, especially in light of profiling and detentions concealed by a thick wall of secrecy (General Accounting Office, 2003; Human Rights Watch, 2002). The clampdown on undocumented immigrants and foreigners also extends to another vulnerable subset of the immigrant population, asylum seekers.

In the aftermath of World War II, the U.S., along with many of its European allies, ratified international and domestic laws requiring them to provide a safe haven for people who demonstrate a credible fear of persecution on account of their race, religion, national origin, social group, or politics. Fifty years later, human rights advocates are distressed to find that lawmakers have rolled back the government's commitment to refugees and those seeking political asylum. "Although hundreds of thousands of political refugees have been admitted into the U.S. since World War II, our government has too often been guided by political, rather than humanitarian, considerations and countless numbers of people have been returned to their countries of origin only to be jailed, tortured, and even killed" (ACLU, 1998: 1).

In 1980, Congress passed the Refugee Act, which harmonized domestic law with international standards. Drawing from the United Nations Convention on Refugees, the new law defined a refugee as a person "who is unwilling or unable to, or is unwilling to avail himself or herself of the protection of their country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Under the Refugee Act, such an individual is entitled to political asylum as a recognized human right. The only requirement that ought to determine granting asylum to such a person is his or her endangerment.

Amid moral panic over immigrants in the early and mid-1990s, Congress forced the Immigration and Naturalization Service (INS) to impose greater restrictions on political asylum. The 1993 bombing of the World Trade Center prompted many legislators to view political asylum as one more way terrorists and criminal aliens were able to enter the U.S. Along with an undifferentiated fear of crime, terrorism, and non-white immigrants, there was growing suspicion that under existing asylum proceedings, "people would show up, ask for asylum and then disappear, and of course stay in this country indefinitely" (Congressman Lamar Smith, R-TX, quoted in Tulsky, 2000: EV3). However, experts insist that using asylum seeking as a means of gaining entry to the U.S. is a tremendously high risk for terrorists because all asylum applicants are fingerprinted, thoroughly interrogated, and face the prospects of months or years in detention (Amnesty International, 2003). Nevertheless, controversial policies were instituted, most notably expedited removal and a greater reliance on detention.

Expedited Removal

As is the case with other provisions contained in the Illegal Immigration Reform and Immigrant Responsibility Act, a 1996 statute passed at the height of moral panic over immigrants, the new policies restricting political asylum were extreme. Even over the objections of the INS, Congress imposed expedited removal, a new tactic designed to seal the border against illegal entry. Under the revised asylum procedures, immigrants arriving at U.S. airports and other ports of entry without proper documents would be escorted to a secure area, handcuffed, and screened by armed INS inspectors. Being interrogated by government agents about one's fear of persecution is particularly traumatic, especially for asylum seekers who have been the victim of torture or rape. For many asylum seekers and refugees who do not speak English, the summary interview is complicated by language and cultural barriers, along with fears that their disclosures will be shared with government officials in their homeland. According to Kathryn Jastram, an official of the United Nations High Commissioner for Refugees in...