Civil Rights Implications of Post-September 11 Law Enforcement Practices in New York

Executive Summary

The New York Advisory Committee’s May 2003 community forum on post-September 11 civil rights issues was organized in three panels. In Panel 1, the Committee examined the civil rights implications and social consequences of racial profiling in law enforcement before and after 9/11. In Panels 2 and 3, the Committee explored the closely related questions of whether security measures adopted in connection with federal registration of nonimmigrants (defined as anyone not yet a citizen or permanent resident of the United States and applies to visitors, students, temporary workers, and temporary residents), border crossings of nonimmigrants from New York into Canada, and the surveillance of religious and political organizations—measures targeted at particular racial and ethnic populations—have violated the civil rights of members of Muslim, Arab, and South Asian communities in New York. Moreover, the Committee considered whether these heightened security measures may have actually been counterproductive to the interests of increasing national security.

Panel participants presented testimony as representatives of advocacy groups who work regularly with persons affected by the policy changes or in the protection of civil rights, or as individuals directly affected by post-9/11 law enforcement policies and practices. In addition, panelists appeared on behalf of the following government agencies: the New York State Attorney General’s Office, the Bureau of Customs and Border Protection of the U.S. Department of Homeland Security, and the state Committee on Open Government (an office of the New York Department of State). The New York City Police Department, the Transportation Security Administration offices for the LaGuardia and JFK airports, and the New York City office of the Bureau of Citizenship and Immigration Services of the U.S. Department of Homeland Security were invited to appear, but were unable to attend the forum.

Set forth below are summaries of key points made by the forum presenters. More detail related to these concerns follows throughout the report.

  1. In the aftermath of 9/11, it was important that law enforcement authorities at all levels of government take steps to respond to the threat of terrorism. However, some actions have adversely affected the civil rights of immigrants and nonimmigrants, particularly members of Muslim, Arab, and South Asian communities. Policies of particular concern are the federal government’s expanded authority to detain nonimmigrants without charge, to hold detainees with no possibility for release on bond, and, when final deportation orders have been issued, to subject detainees to prolonged confinement. Other policies of concern are the federal government’s Call-In Special Registration program and sharing of national databases on immigration status with state and local police.

  2. There are parallels between the racial profiling of Japanese Americans during World War II, pre-9/11 profiling of African Americans and Hispanic Americans, and post-9/11 profiling of Muslims, Arabs, and South Asians. Racial profiling has been statistically proven by government studies, including 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. Much racial profiling of African Americans and Latinos continues unnoticed in the post-9/11 law enforcement environment. 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, and international travel at airports.

  3. There is a perception that local law enforcement authorities did not take seriously the complaints of Muslim, Arab, and South Asian residents who were subjected to hate crimes in acts of misplaced retaliation for the events of September 11. This has been an issue in the taxi industry, where many drivers are South Asian in origin. In the immediate months following 9/11, South Asian taxi drivers found themselves particularly vulnerable to attacks and in need of police protection.

  4. The federal Call-In Special Registration program requiring male nationals 16 years and older from predominantly Muslim countries to register is seen by some as a form of racial profiling, targeting Muslims, Arabs, and South Asians. The program ceased after nationals from predominantly Muslim countries had registered.

  5. In New York City, implementation of the Call-In Special Registration program was marked by a lack of community education on the program’s requirements, excessive processing times lasting 14 hours or more, lack of sufficiently trained interviewers and translators, and inconsistent application of policies.

  6. Persons required to undergo special registration in New York City were deprived of the right to counsel while interrogated by the investigations unit of the Bureau of Immigration and Customs Enforcement of the U.S. Department of Homeland Security (formerly the Immigration and Naturalization Service), when they were most vulnerable. If registrants were placed in detention, families were not informed of their whereabouts.

  7. Refugee shelter advocates pointed to fear of how the Call-In Special Registration program was being implemented as the main impetus for the flight of Muslims, Arabs, and South Asians from the United States into Canada via Buffalo or Plattsburg, New York, in search of asylum. Canadian immigration authorities, overwhelmed by the number of refugees, sent many asylum seekers back to the United States. In the United States, many Canadian-bound asylum seekers were placed in deportation proceedings with excessive bonds reported as a condition of release. Their detention and deportation from the United States effectively denied them the protection of and access to the Canadian immigration system.

  8. The federal government’s new policy of sharing national databases on immigration status with state and local police could undermine effective law enforcement. Undocumented immigrants may fail to report crimes or suspicious behavior to law enforcement officials for fear of negative reprisals based on their immigration status. This deprives law enforcement authorities of an important community-based source of crime-fighting information.

  9. The creation of joint terrorism task forces allowing for greater cooperation and the sharing of information between federal and local law enforcement authorities and the recent court dilution of the Handschu consent decree, which eliminates the civilian oversight component in approving local police surveillance of political organizations, are issues of concern.

In sum, the law enforcement policies and practices described above pose a threat to civil rights and civil liberties, especially within New York’s Muslim, Arab, and South Asian communities. These programs may be counterproductive. They fuel distrust of law enforcement authorities among many members of affected communities, hinder local reporting of crimes, and diminish the cooperation between local police and community members necessary to identify and thwart future terrorists.