Scapegoating the Vulnerable: Preventive Detention of Immigrants in America's “War on Terror”

• Date: 27 March 2006
• Pages: 25-69
• DOI: https://doi.org/10.1016/S1059-4337(05)38002-1
• Published date: 27 March 2006
• Author: Aslı Ü Bâli

SCAPEGOATING THE

VULNERABLE: PREVENTIVE

DETENTION OF IMMIGRANTS IN

AMERICA’S ‘‘WAR ON TERROR’’

Aslı U

¨.Baˆ li

ABSTRACT

This paper argues that the nation’s immigration laws are being misused to

craft a system of preventive administrative detention of immigrant men,

predominantly of Middle Eastern background. These detentions give rise

to imprisonment without charge for weeks and months, denial of access to

lawyers, physical and psychological abuse and ultimately deportations

without a fair initial hearing or the exhaustion of availamshy;ble appellate

recourse. I argue that this expanded use of civil immigration detention is

designed to weaken constitutional due process protections, bringing into

the U.S. detention tactics adopted abroad under the rubric of the war on

terror. This paper also highlights similarities between the evolving ad-

ministrative detention system in the United States and longer-standing

practices in Israel.

Farouk Abdel-Muhti, a well-known Palestinian rights activist in the New

York area, was arrested in his home at 6:30 am on April 26, 2002, by a joint

Studies in Law, Politics, and Society, Volume 38, 25–69

Copyright r2006 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(05)38002-1

25

federal-state immigration enforcement unit, known as the Absconder Task

Force. Farouk’s case is in many ways typical of the arrests of predominantly

Muslim immigrant men of Middle Eastern or South Asian background in

the years since the September 11th attacks.

1

Members of the task force came

looking for him in his home on at least two occasions and when they ul-

timately found him at home, he was arrested without a warrant. The Task

Force demanded to enter the apartment by claiming that they needed to

question Farouk on September 11-related matters. They also alleged that

they had information concerning weapons or explosives in the apartment.

Task force members threatened to use force to gain admission to the apart-

ment while Farouk and the others present in the apartment frantically

sought to reach an attorney. Finally, once they had detained Farouk, the

Task Force did not question him about any September 11-related matters

and they left without searching the premises. In other words, this arrest, like

the thousands of others like it, was not effected for a law enforcement

purpose related to September 11 nor was it on the basis of any individu-

alized criminal suspicion. Rather, government officials falsely invoked Sep-

tember 11 and allegations that weapons or explosives were at issue in order

to arrest one more man of Middle Eastern origin on immigration pretext.

2

The practice of mass arrests and detentions of men of Middle Eastern and

South Asian origins on immigration pretexts has become the basis for a new

system of preventive detention that is rapidly developing into what one

author has called ‘‘American Gulags’’ (Dow, 2004).

In the immediate aftermath of September 11, the government cast a wide

dragnet designed to detain large numbers of Middle Eastern and South

Asian men living in the U.S.

3

Attorney General John Ashcroft likened his

dragnet to tactics developed by Robert Kennedy in the 1960s:

RobertKennedy’sJustice Department[ y] wouldarrestmobsters for ‘‘spitting onthe

sidewalk,’’ if it would help in the battle against organized crime. It has been and will be

the policy of this Department of Justice to use the same aggressive arrest and detention

tactics in the war on terror (Ashcroft, 2001).

Ashcroft declared that he would use any excuse to detain individuals who

might be connected to the September 11th attacks. But the Justice Depart-

ment’s strategy did not correspond to the key contention in Ashcroft’s claim

that those detained would at least be suspected of having some connection

to the attacks. Perhaps if Robert Kennedy had arrested all Italian-Amer-

icans – using ethnicity as a proxy for connection to the mafia – there might

have been a precedent for the approach adopted by Ashcroft’s Department

of Justice. Of course, Robert Kennedy did no such thing, not least because

ASLI U

¨.BA

ˆLI26

the Constitution forbids such discrimination in the enforcement of Amer-

ican law. Ashcroft was apparently less concerned with that prohibition.

Under the Attorney General’s command, law enforcement officials

fanned out across the country in September 2001 and their strategy was

no more sophisticated than to stop and question individuals they encoun-

tered who appeared to be Muslim or Middle Eastern. This initial dragnet

swept up about 1,200 men – largely Pakistani, Egyptian and Turkish – who

had some irregularity in their immigration status and were therefore vul-

nerable to detention. Starting in January 2002, additional initiatives were

introduced – first a ‘‘voluntary’’ interview program, then the Absconder

Apprehension Initiative, then Special Registration and then multiple new

operations targeting immigrant communities in particular geographical ar-

eas – each of which generated new waves of arrests. By the end of 2004,

there was reason to believe that nearly 20,000 men had been detained or

deported by the U.S. government as a result of immigration enforcement

initiatives adopted in the aftermath of September 11, 2001. In all of these

detentions and deportations, the government has brought only four terror-

ism-related charges against men swept up in these immigration-based ar-

rests. With the dismissal of these four cases in the fall of 2004, there has not

been a single terrorism-related conviction associated with any of these de-

tentions (Shepardson, 2004a,b).

4

The massive expansion of the immigration detention system in the U.S.

following September 11 marked the initiation of a scheme of preventive

detention designed to evade constitutional prohibitions and generate a

shadow legal system stripped of the basic procedural protections required

under the rule of law. Rather than meeting the criminal justice system’s

‘‘probable cause’’ requirements for detentions, the Attorney General pre-

ferred to invoke the pretext of minor technical immigration violations that

prior to September 11 would not have resulted in detention. The relationship

between this preventive detention system and the normal criminal justice

system is complementary.

5

Where the criminal justice system would require

proof beyond a reasonable doubt for conviction, the immigration detention

system requires a lower standard of ‘‘clear and convincing evidence.’’ Where

criminal detention requires an individualized showing before a judicial of-

ficer that someone poses a risk to justify pre-conviction detention, the im-

migration system provides broad discretion to detain. Where the criminal

system prohibits detention without charge beyond 48 hours, administrative

immigration detention can be prolonged without charge at the discretion of

the Attorney General. Effectively, administrative immigration detention

enables the Attorney General to bypass the rights of detainees by avoiding

Scapegoating the Vulnerable27