Civil Rights Implications of Post-September 11 Law Enforcement Practices in New York
Concerns and Observations
The New York Advisory Committee expresses the following concerns and conclusions based on presentations from the community forum:
Racial and Ethnic Profiling
There are parallels between the racial profiling of Japanese Americans during World War II, African Americans and Hispanic Americans before 9/11, and Muslims, Arabs, and South Asians after 9/11. Racial profiling has been statistically proven by government studies, such as the New York State Attorney General’s 1999 study of stop-and-frisk practices, to be an ineffective law enforcement tool for identifying criminal conduct. Beyond law enforcement acts of racial profiling related to drug prevention and street crime, racial profiling has taken on new dimensions targeting Muslims, Arabs, and South Asians regarding business license violations, financial transactions abroad, or international travel at airports. Furthermore, members of the general public in New York have also engaged in racial targeting in the form of hate violence directed toward Muslims, Arabs, and South Asians. In some instances of hate violence, there has been no response by law enforcement authorities. Such broad-based practices of racial profiling have had the effect of instilling fear among members of targeted religious, ethnic, and racial groups, particularly of the law enforcement authorities sworn to protect them.
Legislation should be passed that would establish a viable auditing system to ensure the availability of accurate race and ethnicity data for monitoring racial and ethnic profiling.
Investigations into the failures of the police to intervene to protect Muslims, Arabs, and South Asians from harassment; the violation of confidentiality of Taxi and Limousine Commission records pertaining to immigrant taxi drivers; and other matters related to incidents of racial and ethnic profiling and harassment need to be conducted promptly and thoroughly, and the results made public.
The Transportation Security Administration should revise “no fly” list procedures to permit passengers to challenge their inclusion on the list, and in the cases of persons with the same name as a person who would legitimately be detained, to establish a mechanism for the innocent flyer to establish that the “no fly” order does not pertain to him or her.
The Office of Foreign Asset Control of the U.S. Department of Treasury should establish procedures to provide for the immediate review of financial transactions interrupted under its requirements, resulting in depriving innocent persons of their assets.
All security and law enforcement agencies should develop ongoing programs for outreach to minority communities who have been affected, particularly in the post-9/11 environment—not only to assure those communities that they are protected under the law, but to ensure an openness of communication with those communities, which is essential to national security.
Border Crossing Issues
After the federal Call-In Special Registration program was initiated, many Muslim, Arab, and South Asian individuals and families attempted to cross the border from Buffalo or Plattsburgh, New York, into Canada to apply for asylum with Citizenship and Immigration Canada. Citizenship and Immigration Canada could not quickly accommodate the increased numbers of asylum seekers and sent many back to the United States to wait for their scheduled appointment date. U.S. Customs and Border Protection authorities placed many “kicked back” asylum seekers in detention for deportation proceedings with excessive bonds as a condition of release. In addition, outbound checks by U.S. authorities resulted in the detention and placement into deportation proceedings of other Canadian-bound asylum seekers. These actions deprived the asylum seekers of access to Citizenship and Immigration Canada and the protection this access potentially provides.
If a Canadian-bound asylum seeker is directed back to the United States by the Canadian government, provisions such as administrative voluntary departure or parole should be utilized so that the individual remains in one immigration system, not two. If Canadian-bound asylum seekers are detained in the United States while en route to the border, they should be paroled and allowed to proceed to the border to begin their claim and, once the claim is initiated, they should be allowed to return to their place of residence in the United States, particularly when an individual can illustrate clear intent to go to Canada or has family or other connections there. The process of setting bonds on detained asylum seekers should be reviewed and a consistent policy be put in place.
The Call-In Special Registration Program
The federal Call-In Special Registration program requiring male nationals 16 years and older from predominantly Muslim countries to register was a program rooted in racial profiling, targeting Muslims, Arabs, and South Asians, and raising constitutional concerns. The program ceased after nationals from predominantly Muslim countries had registered. In New York City, many people required to go through special registration were denied access to counsel during critical stages of the registration process, particularly while interrogated by the investigations unit of the Bureau of Immigration and Customs Enforcement of the U.S. Department of Homeland Security, when they were most vulnerable. Families of registrants, who were detained and subjected to closed immigration hearings by immigration judges, were not informed of the detained registrants’ whereabouts.
The Call-In Special Registration program should not be expanded. The program has questionably served national security interests and, in fact, may have been counterproductive to such interests. Those who registered were persons seeking to comply in good faith with the law, not terrorists in hiding. The program has alienated many members of Muslim, Arab, and South Asian communities who believe they have been targeted based solely on their national origin and religious beliefs. Because of fear engendered by racial profiling, many members of these communities avoid interaction with law enforcement authorities.
Immigration hearings held in connection with special registration should have independent judges, be open to the public, and afford appropriate access to and representation by legal counsel.
Legal Issues After 9/11: Due Process, Checks and Balances, and Access to Records
With the passage of the USA Patriot Act and the creation of the Department of Homeland Security, immigration authorities have had to exercise unprecedented enforcement responsibilities. Many foreign-born persons were denied hearings and detained without having been charged. Many of those detained have been unable to obtain release on bond, and have been held for prolonged periods after issuance of final deportation orders. These practices have been accompanied by a significant change in federal law enforcement agencies’ relationships with state and local agencies and airport security officials—a change that risks establishing a new generation of racial profiling in which a person’s ethnicity or national origin significantly increases his or her chance of being scrutinized by local law enforcement or detained at an airport. And, in a break with longstanding practices from a decades-old federal statutory requirement, local law enforcement agencies are now poised to make arrests for violations, including minor violations, of immigration laws.
Most of the persons affected by these policy and structural changes have been Muslims, South Asians, and Middle Eastern foreign nationals. In each instance, there have been no practical means of judicial or legislative recourse, creating a widespread feeling in these communities, among citizens and noncitizens alike, that they have been unfairly singled out and are powerless. Consequently, there has been an increasing reluctance by members of these communities to assist in providing information vital to the country’s security needs.
New York City has a history recognized by the courts of carrying out excessive surveillance practices against religious and political organizations. Those practices were restricted in 1985 under the Handschu consent decree, a court-approved agreement between the parties that had worked well for 17 years. On the basis of a need for increased security measures after 9/11, however, New York City sought court approval to modify the decree to eliminate both substantive limitations and procedural safeguards. Without requiring a showing that the decree had hindered or would interfere with investigations, the court agreed to lower the threshold for investigation of political organizations and modified specific procedural requirements in the consent decree. Investigations can now be ordered at lower ranks within the NYPD and without review by any outside authority or the establishing of a paper trail. Moreover, based on similar fears over heightened security needs, proposals have been made to restrict public access to records. Security measures are indeed a high priority. However, restricting public access to records by shifting the presumption that government records are subject to disclosure to one against such disclosure may unnecessarily reduce the accountability of the government through monitoring and surveillance. Moreover, according to the head of the state’s Committee on Open Government, existing disclosure protections are adequate to protect public security and have worked quite well.
The distinction between civil enforcement and criminal arrests must be maintained so that persons charged with crimes are not deprived of the due process protections they would be normally afforded in the criminal justice system, and conversely so that persons charged with immigration violations are afforded the full procedural safeguards established under the nation’s system for addressing alleged immigration violations.
A fully independent oversight body should be created outside the Department of Homeland Security to report on, and to monitor, the implementation of security measures taken in conjunction with the Homeland Security Act, including policies with respect to racial profiling, “no fly” lists, financial assets control, due process in immigration proceedings (including, in particular, any future Call-In Special Registration programs), the sharing of intelligence information between federal and local law enforcement agencies, surveillance and monitoring of religious and political organizations, and access to public records.
In addition to the oversight role to be played by official bodies, a prudent level of public accountability through a rational level of access to public records is an essential element to preserving confidence in the government. Neither state nor federal records access laws should be made more restrictive based simply on the untested premise that doing so is essential to addressing the nation’s increased security needs. Standards should be established that continue the presumption that records must be disclosed in the absence of a particularized determination that access to the record undermines a legitimate security interest, and when portions of the requested documents do not jeopardize such a security interest, those portions should continue to be made public.