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

Chapter 1


Racial and ethnic profiling has a long history in the United States. For example, during post-Reconstruction years in the South white vigilantes kept peremptory watch over African Americans,[1] using the Black Codes and vagrancy laws to legitimize their actions.[2] As a further example, after the Japanese attack on Pearl Harbor in 1941 federal authorities forced 120,000 men, women, and children of Japanese ancestry into internment camps, equating ethnicity with collective guilt.[3] More recently and for many years, African Americans, Latinos, and others have complained that they are subject to unwarranted police scrutiny in their cars and on the streets. Their complaints have often been ignored.[4] Throughout its long and torturous history, the practice of racial and ethnic profiling has been a thorn in police-community relations, fostering distrust and tension where trust and cooperation could feasibly prevail.

Longstanding practices of profiling notwithstanding, by the mid-1990s but before the events of September 11 police and lawmakers were beginning to acknowledge that racial profiling exists and to condemn it as wrong.[5] The American public, too, was increasingly aware of the existence and inappropriateness of profiling. In 2000, for example, approximately 80 percent of Americans surveyed indicated that they had heard of racial profiling and expressed the opinion that it should be stopped.[6] Reflecting the growing awareness among policy makers and the public, the Civil Rights Division of the U.S. Department of Justice began to sue local police departments where it found egregious patterns and practices of racial and ethnic profiling.[7]

The terrorist attacks of September 11, 2001, shattered the emerging public consensus that racial and ethnic profiling is wrong and should be eliminated. Less than a month after the attacks, a majority of Americans surveyed supported greater scrutiny of Arabs. Indeed, most white, black, and other nonwhite Americans expressed support of profiling of Arabs at airports and of requiring Arabs to carry special identification cards.[8]

Although profiling of Arabs and Muslims was a concern before 9/11, its scope and impact expanded dramatically after the terrorist attacks. A poll conducted in May 2002 found that more than three-quarters of Arab Americans felt that there was more profiling of Arab Americans since 9/11, and nearly two-thirds felt very or somewhat worried about the long-term effects of discrimination.[9] Reports by other State Advisory Committees to the U.S. Commission on Civil Rights confirm the existence of post-9/11 racial and ethnic profiling, as well as a surge in hate violence and discrimination in the United States against people who are or are perceived to be Arab, South Asian, or Muslim in the months immediately following 9/11.[10]

Commentators and others have linked increased post-9/11 profiling of Arabs, South Asians, and Muslims in part to changes in federal policy since the attacks.[11] The USA Patriot Act, for example, was signed into existence one month after the terrorist attacks.[12] It is designed to give new powers to the federal government to fight terrorism. It gives federal agents greater authority to track and intercept communications and financial transactions, expanding the power of the Secretary of the Treasury to regulate the activities of U.S. financial institutions, especially their relations with foreign nationals and entities. The act also contains a number of provisions affecting immigration policy, particularly regarding the comings and goings of nonimmigrants for example, students, temporary workers, and temporary residents. These provisions enable authorities to detain and deport nonimmigrants suspected of being terrorists.[13]

The National Security Entry/Exit Registration System (NSEERS) was implemented on September 11, 2002, to better track the whereabouts of nonimmigrants.[14] For male nonimmigrants 16 years of age and older already in the United States, federal authorities established the Call-In Special Registration program. Call-In Special Registration required that male nonimmigrants from a list of targeted countries report to the Bureau of Citizenship and Immigration Services (BCIS) of the U.S. Department of Homeland Security (DHS) [formerly the Immigration and Naturalization Service (INS)] to be fingerprinted and photographed, and to answer detailed questions under oath.[15]

BCIS designated Call-In Groups of nonimmigrants to register. Group 1 included nationals from Iran, Iraq, Libya, Sudan, and Syria; Group 2 included nationals from Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen; Group 3 included nationals from Pakistan and Saudi Arabia; and Group 4 included nationals from Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. Special registration was completed with Group 4. Only foreign nationals of predominantly Islamic countries with the exception of North Korea were required to register in the Call-In Special Registration program.[16] Because it targets primarily Muslims, many feel special registration is discriminatory, an act of racial or religious profiling.[17]

Special registration is designed to weed out potential terrorists. However, many foreign-born Muslims in New York and throughout the United States feared that they would be jailed when they showed up for processing.[18] This fear was fueled in part by the December 2002 detentions of more than 400 mostly Iranian men who appeared for special registration in Los Angeles. Most of the detainees were put into custody for deportation hearings because their visas were no longer current.[19] Many of those funneled into deportation hearings had already applied with INS to live in the United States as legal, permanent residents.[20]

New York has more than 400,000 undocumented immigrants. These people are most adversely affected by special registration requirements. If they register, they may be detained for violating immigration law. If they do not register, they are breaking the law and become deportable. They find themselves in a Catch-22 situation.[21] Of the 82,000 men nationwide who underwent special registration, about 13,400 or approximately 16 percent face deportation.[22] Only a few of these men are suspected to have links with terrorism.[23] Critics say that those most likely to comply with special registration are honest individuals. Those with terrorist goals are the least likely to register with the program, or to truthfully answer the program's required questions.[24]

Fear of special registration led many Muslim men and their families including those with U.S.-born children to make the decision to leave the United States of their own accord rather than risk being detained and, especially, deported.[25] Many believed they would suffer hardship if sent back to their home countries.[26] On some blocks of certain New York City neighborhoods many shops are boarded up and abandoned by families not willing to risk perceived negative repercussions of special registration.[27] Many who decided to leave headed for Canada. The border crossings near Buffalo and particularly Plattsburgh, New York, were high-volume ports of entry into Canada for Muslim asylum seekers from the United States.

The Pakistani community was particularly hard hit. Canadian immigration authorities reported that 2,000 Pakistanis entered Canada between January and March 2003 a figure comparable to the entire year of 2002. Moreover, many more asylum seekers were waiting at the border when the three-month 2003 statistics were compiled.[28] Because of the sheer numbers of asylum seekers, Citizenship and Immigration Canada (CIC) officials had many make appointments to come back later. Those told to make an appointment were forced back to the United States, where federal authorities were making arrests based on immigration violations.[29] Those not arrested made temporary home in refugee assistance organizations or, because of the overcrowded conditions of these organizations, had to wait elsewhere for their CIC appointment.[30]

Other federal policy changes have affected the civil rights and civil liberties of New Yorkers. One such policy change namely, increased cooperation between federal law enforcement authorities and state and local law enforcement authorities has repercussions for police-community relations in the state. In August 2003, for example, the federal government allowed local police to enforce immigration law for the first time. Immigrant community spokespersons have confirmed that the New York City Police Department (NYPD) has increasingly acted as an agent of federal immigration authorities.[31] Some maintain that as local police start enforcing federal immigration law, which has been traditionally treated as civil rather than criminal law, local immigrant communities will stop working with the police,[32] thereby undermining cooperative police-community relations.

Federal authorities have created special task forces of federal, state, and local law enforcement agents across the United States to help prevent future terrorist attacks.[33] In New York City, local police have nearly 1,000 officers assigned to fight terrorism.[34] Under the federal-local Joint Terrorism Task Force in New York,[35] many of these officers are federally deputized and enjoy special security clearances.[36]

However, not all municipal police departments comply with federal initiatives. In Detroit, for example, the city has directed police to refrain from collecting information about one's political, religious, or social views unless such information directly relates to a criminal investigation. In addition, Montgomery County, Maryland a northern suburb of Washington, D.C. passed a resolution against racial and religious profiling and information gathering by local police at the urging of local citizen groups.[37]

Some civil liberties advocates are concerned about the involvement of local and state law enforcement authorities in domains traditionally the reserve of the federal government, especially intelligence work. Many question what will be done with the information gathered on those who have no links to terrorism. Some fear a return to abuses of the past when local police departments investigated and kept files on people and organizations without any evidence of a crime. Some law enforcement officials, however, express confidence that local police have learned from past mistakes and only keep intelligence information that is relevant to the fight against terrorism.[38]

Despite its persistence and heightened prevalence after 9/11, racial profiling remains far from universally accepted as a valid law enforcement technique. Like the internment of Japanese-origin persons living in the United States during World War II, the post-9/11 practice of profiling and differentially treating Muslim, Arab, and South Asian men living in the United States is a form of prejudice and an outward manifestation and consequence of stereotyping.[39]

Moreover, profiling is an ineffective law enforcement tool.[40] Soon after the 9/11 attacks, a group of senior American intelligence specialists combating terrorism argued against U.S. law enforcement agents relying on racial, ethnic, or religious profiling. Profiling adds nothing to national security and may in fact compromise it. Law enforcement authorities would better serve the American people by focusing on individual behaviors rather than ascriptive characteristics to prevent future terrorist attacks.[41]

[1] Tanya E. Coke, Racial Profiling Post-9/11: Old Story, New Debate, in Lost Liberties, ed. Cynthia Brown (New York: The New Press, 2003), p. 91.

[2] Eric Foner, Reconstruction: America's Unfinished Revolution (New York: Harper & Row, 1988), pp. 199 201.

[3] Stanley Mark, Suzette Brooks Masters, and Cyrus Mehta, Have We Learned the Lessons of History? Immigration Policy Focus, vol. 1, issue 3 (January 2003).

[4] Leadership Conference on Civil Rights Education Fund, Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001, February 2003.

[5] Coke, Racial Profiling Post-9/11, p. 91.

[6] Gallup Organization, Racial Profiling Is Seen as Widespread, Particularly Among Young Black Men, Dec. 9, 1999.

[7] Coke, Racial Profiling Post-9/11, p. 91. See appendix for Department of Justice's Fact Sheet on Racial Profiling.

[8] Gallup Organization, Terrorism Most Important, But Americans Remain Upbeat, Oct. 18. 2001.

[9] Arab American Institute, Healing the Nation: The Arab American Experience After September 11 (a first anniversary report), p. 20.

[10] District of Columbia, Maryland, and Virginia Advisory Committees to the U.S. Commission on Civil Rights, Civil Rights Concerns in the Metropolitan Washington, D.C., Area in the Aftermath of the September 11, 2001, Tragedies, June 2003, p. 1; Illinois Advisory Committee to the U.S. Commission on Civil Rights, Arab and Muslim Civil Rights Issues in the Chicago Metropolitan Area Post-September 11, May 2003, p. 4.

[11] Coke, Racial Profiling Post-9/11, p. 101; Lawyers Committee for Human Rights, A Year of Loss: Reexamining Civil Liberties Since September 11, 2002, pp. 13 24; Kate Martin, Secret Arrests and Preventive Detention, in Lost Liberties, ed. Cynthia Brown (New York: The New Press, 2003), p. 77; Leadership Conference on Civil Rights Education Fund, Wrong Then, Wrong Now.

[12] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), 107 Pub. L. No. 56, 115 Stat. 272 (2001) (codified in scattered titles and sections of the U.S.C.).

[13] Charles Doyle, The USA Patriot Act: A Sketch (Washington, D.C.: Congressional Research Service, Apr. 18, 2002).

[14] Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 40,581 (2002) (amends 8 C.F.R. parts 214 and 264).

[15] Id. Pearl Law Group, Immigration Information: Special Registration, n.d., <>.

[16] U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, Special Registration, n.d., <>. The first Call-In registrations started on November 15, 2002. The final registration period ended on March 28, 2003.

[17] Steve Orr, Plan Creates a Muslim Exodus to Canada, Rochester Democrat and Chronicle, Mar. 20, 2003, p. 10A; Mark Bixler, Caught up in Terror: INS Expels Rising Number of Illegals to Muslim Lands, Atlanta Journal-Constitution, Jan. 15, 2003, p. 1F.

[18] Ahmar Mustikhan and Jeff Elliott, Pakistani Families Flee U.S. to Seek Canada Asylum, Monitor, Feb. 12, 2003, <>.

[19] Patrick J. McDonnell, Nearly 24,000 Men Register in the U.S., Los Angeles Times, Jan. 19, 2003, p. 22.

[20] Emily Bazar, New Battle on Civil Rights Front: The Registration of Some Immigrants Is Denounced as Racial Profiling, Sacramento Bee, Jan. 20, 2003, p. A1.

[21] Chaleampon Ritthichai, Special Registration, Gotham Gazette, Mar. 3, 2002, <>.

[22] Tom McCann, Special Registration Shows Key Changes, Chicago Lawyer, August 2003, p. 23.

[23] Haider Rizvi, U.S.-Rights: Deportation Trap Threatens Muslim, Arab Families, Inter Press Service, Aug. 22, 2003.

[24] Karen Weinstock, Honest People Pay for Anti-Terrorism Initiatives, Atlanta-Journal Constitution, Aug. 4, 2003, p. 13A.

[25] Mustikhan and Elliott, Pakistani Families Flee U.S.

[26] Orr, Plan Creates a Muslim Exodus to Canada.

[27] Ritthichai, Special Registration.

[28] Muslims Flee to Canada to Escape INS Registration, Daily Star, Apr. 20, 2003, <>.

[29] Mustikhan and Elliott, Pakistani Families Flee U.S.

In a letter dated January 20, 2004, Jason P. Ahern, assistant commissioner, Office of Field Operations, U.S. Customs and Border Protection, Department of Homeland Security, wrote that these statements address actions taken by border agencies, both Canadian and U.S., in response to the surge in asylum applicants traveling to Canada, many of whom were out of legal immigration status in the United States. Federal authorities have a responsibility to enforce the laws of the United States and to take appropriate action when they encounter violators, and Federal agencies must often adjust their enforcement procedures and tactics in response to emergencies and trends as they occur. The Immigration and Naturalization Service (INS) and later CBP worked closely with Citizenship and Immigration Canada (CIC) and with the advocacy organizations to manage this influx as efficiently as possible in accordance with existing laws, regulations and policies.

[30] Brian Mann, Registration Rules Prompt Some American Muslims to Seek Canadian Residence, Voice of America News, Apr. 14, 2003.

[31] Ritthichai, Special Registration. In a letter dated February 3, 2004, Stephen L. Hammerman, deputy commissioner of legal matters, New York City Police Department, wrote in response to this statement: It is untrue that the NYPD has increasingly acted as an agent of federal immigration. It is untrue that the NYPD acts as an agent of federal immigration authorities. Indeed, the NYPD has not sought delegation of immigration enforcement authority from the Attorney General pursuant to 8 U.S.C. 1357 as some law enforcement agencies have. Moreover, recent Mayoral Executive Orders reiterate longstanding NYPD policy not to inquire about the immigration status of crime victims, witnesses, or others who approach the police seeking assistance. As a responsible law enforcement authority, the Department cooperates with federal agencies on joint investigations and if an individual comes into police custody who we learn is wanted for an immigration violation we will turn that person over to federal authorities. Despite the Department's request for detailed information regarding their claims, immigration advocates have provided only anecdotes on what appear to be a relatively few number of instances in which someone the Department encountered was wanted solely for an immigration violation and not an independent violation of state law.

[32] Nik Bonopartis, Patriot Act Helps Police in Fighting Crime, Poughkeepsie Journal, Sept. 29, 2003, p. 1A.

[33] Richard B. Schmitt and Greg Krikorian, Foot Soldiers on the Homeland Security Front, Los Angeles Times, Apr. 21, 2003, p. 18.

[34] Rocco Parascandola, It's Detective Work 101: A Team Follows Lead from Check Kiting to Terrorism, Newsday, Apr. 20, 2003, p. A01.

[35] The Joint Terrorism Task Force in New York is not a new development and is not the result of stepped-up enforcement of immigration laws. It was created more than 20 years ago. However, the size of the task force grew after 9/11 to address increased concerns of terrorist threats.

[36] Phillip O Connor, States Are Striving to Get into Intelligence Business, St. Louis Post-Dispatch, Aug. 10, 2003, p. B1.

[37] Beth Gorham, Dozens of U.S. Cities Defying Patriot Act, Gazette, Oct. 15, 2003, p. A29.

[38] O Connor, States Are Striving to Get into Intelligence Business.

[39] Mark, Masters, and Mehta, Have We Learned the Lessons of History?

[40] Leadership Council on Civil Rights, Wrong Then, Wrong Now, p. 29.

[41] Bill Dedman, Fighting Terror/Words of Caution: Airport Security Memo Warns Against Use of Profiling as Defense, Boston Globe, Oct. 12, 2001, p. A27.