Savannah Law Review
VOLUME 2 │ NUMBER 2
Muslim Community Reparations
Reginald C. Wisenbaker, Jr.*
Abstract Muslim Americans are often targets of ill-founded discrimination, hate, and suspicion. Through popular cultural portrayals, salacious media reporting, and targeted governmental policies, Muslim Americans suffer from discrimination because mainstream Islam has become improperly conflated with terrorism in the United States. Compounding the harm, discriminators often fail to differentiate between religious Muslim associations and other groups who presumably share similar characteristics. What results is an odd form of discrimination that sweeps a large swath of individually distinct groups into a collective by labeling these groups as terrorists, thus amassing a de facto bill of attainder for the crime of being Muslim. This Note addresses how the legal system does not combat society’s beliefs and suspicions, but instead, further legitimizes and reinforces society’s misperceptions. Additionally, this Note explores how legal claims draw upon popular cultural misconceptions, reifying rather than reforming cultural stereotypes in sanctioning religious profiling. Finally, this Note considers how legal responses to Japanese Americans after World War II invoked the social engine of repair for those Americans subject to systematic discrimination and whether such a response is warranted today for Muslim Americans.
I. Introduction Muslims, and those perceived to be Muslim, are targets of discrimination, hate, and suspicion from virtually every corner of society in the United States.
* Juris Doctor, Savannah Law School, 2015. I would like to extend much thanks and appreciation to Professor Caprice L. Roberts for her invaluable insight, instruction, and assistance, as well as to Alison Slagowitz and Deborah Dickson for their dedicated support and guidance.
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Since the terrorist attacks of September 11, 2001 (September 11), the U.S. government has employed discriminatory practices and policies based on racial and religious profiling of those of Arabic descent and the Islamic faith respectively. These discriminatory behaviors remain ubiquitous, though not always readily apparent, in a covert effort to create a de facto bill of attainder that targets Muslims. While discrimination, hate, and suspicion remain prevalent in the day-to-day lives of Muslims, times of national crisis tend to revive a living stigma and reinforce negative perceptions of Muslims in America. Extremely exacerbated by the attacks of September 11, these negative perceptions of Muslims fuel the American imagination. More importantly, Osama bin Laden’s strategy behind September 11 was to manipulate the fears of Americans, turn those fears against Americans, and destroy the United States from within. The backlash from September 11 cast the Muslim community in a suspicious and alien light, as Muslims continue to struggle to function as meaningful members of society in America. Under the lens of critical race theory, the U.S. government’s legal treatment of minorities endorses and facilitates the dissemination of racial stereotypes. 1 Traditionally, American law and society favor normative values of the majority— white Americans—thus excluding non-white immigrants from assimilating within the U.S.2 Such treatment relegates non-white immigrants as perpetually foreign.3 Since September 11, Muslims in America, and those perceived to be Muslim, have borne the brunt of a stigmatic label that promulgates the public perception of Muslims being intrinsically “foreign, disloyal, and imminently threatening”4 to America.5 This stigmatic label draws uncomfortable comparisons between the treatment of Muslims after the terrorist attack on September 11, and the treatment of Japanese Americans after the Japanese attack on Pearl Harbor during World War II.6 Similar to Asian Americans being perceived as foreigners and disloyal after World War II, public opinion, public policy, and judicial policy (Social Institutions) conflate Muslims and Arabs as interchangeable racial categorizations. Widespread misperceptions and assumptions still prevail: All Muslims are Arabs; all Arabs are Muslims.
1 Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11, 34 Colum. Hum. Rts. L. Rev. 1, 1-5 (2002). 2 Id. at 20-46. 3 Id. at 1-5. 4 Lina Khatib, Filming the Modern Middle East: Politics in the Cinemas of Hollywood and the Arab World 165-96 (2006); Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L. 295, 302-03 (2002). 5 Joo, supra note 1, at 32-46. 6 See generally Natusu Talyor Saito, Symbolism Under Siege: Japanese American Redress and the “Racing” of Arab Americans as “Terrorists,” 8 Asian L.J. 1, 11-24 (2001) (comparing the “racing” of Arab and Japanese Americans).
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In America, Arabs are widely perceived as prone to violence and intent on waging a military Jihad—a holy war to spread Islam by the sword.7 Contrary to the pervasive misuse of the term in Western culture, Jihad in Islam represents a Muslim’s struggle in the way of God. Ironically, Jihad refers to a wide variety of contexts in one’s spiritual betterment and search for inner peace.8 Historically, and as a last resort, military warfare—a rare form of Jihad—was usually authorized by Muslim authorities in the face of egregious religious oppression and persecution.9 Moreover, the racial classification of Arabs in America denotes a minority whose lineage, language, or culture is traceable to a geographical region in the Middle East or to a region speaking the Arabic language. Arabs do not adhere to any one particular faith, but come from various religious backgrounds. In contrast, the racial classification rather than religious classification of Muslims is a misnomer because Muslims adhere to the Islamic faith. Muslims do not originate from a particular geographical area but from all corners of the world.10 Unfortunately, these distinctions are lost among unfavorable impressions and stereotypes of Arabs and Muslims, thus ascribing the terrorist stereotype indiscriminately to both classifications. 11 Various national polls confirm these reckless misconceptions and inflammatory stereotypes12 that fuel Islamophobia,
7 Rey Ty, Awni Al-Karzon & E.J. Hunting, Islam: Misconceptions, Current Trends, and the Role of Social Movements and Education in Promoting Development, Conflict Transformation and Peace Building, Mich. St. Univ. (2010), https://www.msu.edu /~mwr2p/TyAl-KarzonHunting-MR2P-2010.pdf; see Akram & Johnson, supra note 4, at 301-16; Saito, supra note 6, at 11-15 (referring to common misconceptions of Muslim Americans according to Ibrahim Hooper, the Director of Communications for the Council on America-Islamic Relations). 8 See Brian Handwerk, What Does “Jihad” Really Mean to Muslims?, Nat’l Geographic (Oct. 24, 2003), http://news.nationalgeographic.com/news/2003/10/ 1023_031023_jihad.html. 9 Id. 10 See infra Part II.A. 11 Saito, supra note 6, at 11-24; Boudjahfa Nawel, Arab Americans in the Aftermath of September 11th, 2001, Univ. of Oran-Es Senia 20-42 (2008), http://www.univ- oran1.dz/theses/document/TH3488.pdf; Seth Hilton, American Conceptions of the Middle East and Islam, 1 U.C. Davis J. Int’l L. & Pol’y 355, 355-57 (1995). 12 After Boston, Little Change in Views of Islam and Violence, Pew Res. Ctr. (May 7, 2013) [hereinafter Little Change in Views], http://www.people-press.org/2013/05/07/ after-boston-little-change-in-views-of-islam-and-violence/; How Americans Feel About Religious Groups, Pew Res. Ctr. (July 16, 2014) [hereinafter How Americans Feel], http://www.pewforum.org/2014/07/16/how-americans-feel-about-religious-groups/; Islamophobia: Understanding Anti-Muslim Sentiment in the West, Gallup [hereinafter Islamophobia Report], http://www.gallup.com/poll/157082/islamophobia-understanding- anti-muslim-sentiment-west.aspx (last visited Nov. 30, 2015); Lydia Saad, Anti-Muslim Sentiments Fairly Commonplace, Gallup (Aug. 10, 2006), http://www.gallup.com/poll/ 24073/AntiMuslim-Sentiments-Fairly-Commonplace.aspx; Religious Perceptions in America: With an In-Depth Analysis of U.S. Attitudes Toward Muslims and Islam, Gallup 4 (2009) [hereinafter Religious Perceptions], available at http://www.clubmadrid.org/ img/secciones/SSP_MWF_WorldReligion_Report_en-US_final.pdf ; Washington Post- ABC News Poll, Wash. Post (Sep. 7, 2010) [hereinafter News Poll], http://www .washingtonpost.com/wp-srv/politics/polls/postpoll_09072010.html.
393 Savannah Law Review [Vol. 2:2, 2015] which is defined as “[a]n exaggerated fear, hatred, and hostility toward Islam and Muslims . . . resulting in bias, discrimination, and the marginalization and exclusion of Muslims from social, political, and civic life.”13 More than half of Americans say that Western societies do not respect Muslims. 14 Overall, the trends toward Islamophobia have not changed drastically. Muslim Americans are acutely aware of the increased difficulty being in America after September 11, which has not changed substantially over the past decade.15 Social institutions in the United States further stigmatic misconceptions with targeted law-enforcement policies and media depictions perpetuating a stereotype of the terrorist as the foremost danger to national security: “dark-skinned, bearded males with Arabic-sounding names.”16 After September 11, the fear of terrorism in the United States incited a backlash from social institutions that disenfranchised Muslims as Americans, deported Muslim aliens, and classified Muslims as terrorists. This terrorist stereotype is an odd form of racialization and a byproduct of social institutions constructing a broad class of discrimination against a particular group—and those perceived to be—based on their religious belief.17 Beyond critical race theory, religious discrimination expands the terrorist classification by social institutions perceiving Muslims as terrorist others.18 Islamophobia is no longer merely a backlash from September 11, but a living tangible fear that unfairly targets innocent Muslims in America who are unaffiliated with September 11.19 Muslims, and those perceived as Muslim, have
13 Wajahat Ali et al., Fear, Inc.:The Roots of the Islamophobia Network in America, Ctr. for Am. Progress 9 (Aug. 2011), http://cdn.americanprogress.org/wpcontent /uploads/issues/2011/08/pdf/islamophobia.pdf. 14 Islamophobia Report, supra note 12, at 2-13 (reporting that 52 percent of Americans think Westerners do not respect Muslims globally); Religious Perceptions, supra note 12 (reporting that “45% say that Muslim Americans face a lot of discrimination.”). This perception supports polls of Muslim Americans (45%) reporting that Muslim Americans still suffer greatly from discrimination. While the public opinion toward Muslims in America may have slightly decreased over the last ten years, Muslim Americans reported an increasing trend in discrimination (45%) from 2007 to 2013: a quarter of Muslim Americans experienced discrimination (25%), and native-born Muslims reported far more discrimination (41%) than Muslim immigrants (18%). Religious Perceptions, supra note 12; Muslim Americans: Middle Class and Mostly Mainstream, Pew Res. Ctr. 4 (May 22, 2007) [hereinafter Mainstream Muslim], http://pewresearch.org/ files/old-assets/pdf/muslim-americans.pdf. 15 Sahar F. Aziz, Sticks and Stones, the Words That Hurt: Entrenched Stereotypes Eight Years After 9/11, 13 N.Y. City L. Rev. 33, 35-38 (2009); Islamophobia Report, supra note 12. (“Muslims (48%) are more likely than Americans of other major religious groups to say they, personally, have experienced racial or religious discrimination in the past year.”); Mainstream Muslim, supra note 14, at 2 (“A majority of Muslim Americans (53%) say it has become more difficult to be a Muslim in the U.S. since the Sept. 11 terrorist attacks.”). 16 Aziz, supra note 15, at 33. 17 Id. at 35-43; Margaret Chon & Donna E. Arzt, Walking While Muslim, 68 Law & Contemp. Probs. 215, 225-30 (2005). 18 Aziz, supra note 15, at 37-39. 19 Id. at 35-38; see Ali et al., supra note 13, at 6-10; see also Islamophobia Report, supra note 12.
394 Muslim Community Reparations suffered from this terrorist other stigma since September 11. For all Americans, this terrorist other stigma conflates Islam with terrorism, which manifests into harmful consequences, including a loss of freedom, rights, privacy, and life. These harms become trivialized as acceptable responses during times of national crises. But, the War on Terror20 may never end. After a decade, September 11 still tests democracy in the United States, based on the U.S. government’s treatment of Muslims in America compared to all Americans. Cultural and political forces behind social institutions in America legitimize and encourage propaganda that directs discrimination, hate, and suspicion toward Muslims in America. Targeting Muslims under the color of national security equates to an erosion of rights and freedom for all because this conflict ensnares a host of issues related to public opinion, public policy, and judicial policy. While terrorist attacks may subside, the terrorist other stigma carries over in times of peace and implies “inferiority in [a] civil society, lessening the security of [one’s] enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing [one] to the condition of a subject race [or religion].”21 Muslims in America still lack meaningful opportunities for redress after September 11. As a matter of preserving civil rights for all Americans, this Note calls for reparative measures to right the wrongs that have occurred and reintegrate the Muslim community back into American society. This reparative process requires a collaborative effort among the Muslim community, the larger community, and society itself. Part II of this Note discusses the terrorist other stigma manifesting through public opinion and public policy. Part II explores societal misconceptions that fuel and perpetuate the terrorist other stigma, manifesting into hate violence that is based on unfounded, irrational behavior. The Executive Branch seized an opportunity via law enforcement agencies acting under the color of national security; and, law enforcement agencies used religious profiling to create the Terrorist Screening Database—a de facto bill of attainder for Muslims, and those perceived to be, to ferret out possible terrorist suspects.22 Since September 11, public opinion and public policy have validated, legitimized, and reified private discrimination and biases toward Muslims in America. Part III analyzes the judicial policy toward the Executive Branch’s counterterrorism efforts since September 11 and the blatant abuse of religious profiling. The courts sanction law enforcement agencies’ abuse of sovereign immunity by recasting religious profiling in the interests of national security.
20 The phrase “War on Terror” was first used by President George W. Bush to describe U.S. policy as it relates to violent extremism in the aftermath of the September 11 attacks on September 20, 2001. Wojtek Mckiewicz Wolfe, Winning the War of Words: Selling the War on Terror from Afghanistan to Iraq 45 (2005). 21 Strauder v. W. Va., 100 U.S. 303, 308 (1879), abrogated by Taylor v. La., 419 U.S. 522 (1975). 22 Terrorist Screening Center, Fed. Bureau of Investigation, http://www.fbi .gov/about-us/nsb/tsc (last visited Nov. 30, 2015).
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Thus, courts have abdicated their responsibility to uphold the U.S. Constitution by cabining the issue under the separation of powers between the Executive Branch and the Judicial Branch—leaving Muslims without redress in the U.S. justice system. The courts show great deference to national security concerns and counterterrorism efforts at the expense of preserving civil liberties for all in the United States. Part IV examines how reparations can help reintegrate and repair the Muslim community in America. Part IV highlights the evolution of reparations theory that establishes the “Social Healing through Justice” framework for reparations. Additionally, this section discusses Japanese Internment Reparations as the most coextensive model for reparations based on racial profiling. This section explores a design for reparations to overcome the damage inflicted upon Muslims in America based on religious profiling from the terrorist other stigma. With the help of members within the Muslim community, Muslim Community Reparations would serve as a more effective method of counterterrorism, rather than marginalizing an entire community from the lone-wolf terrorist and destroying American principles of freedom, justice, and equality for all.
II. Muslims in America Suffer from the Stigma of Terrorism In America’s need for vengeance and vindication after September 11, Americans traded degrees of various freedoms for security that has failed to serve as a prophylactic measure against the unknown terrorists of the future. Meanwhile, the War on Terror has harmed hundreds of thousands more innocent people for over a decade beyond the initial impact from the tragic loss of around 3,100 American lives on September 11.23 The horrible truth lies in that the U.S. government is now the terrorist Americans feared: terrorizing the lives of hundreds-of-thousands of innocent Americans and aliens based on the premise of
23 John W. Whitehead & Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security”: A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 Am. U. L. Rev. 1081, 1083-86 (2002); Off. of the Inspector Gen., U.S. Dep’t. of Just., The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 8 (2003) [hereinafter September 11 Detainees Report], http://www.justice.gov/oig/special/0306/full.pdf; Josh Meyer, Dragnet Produces Few Terrorist Ties, L.A. Times (Nov. 28, 2001), http://articles.latimes.com /2001/nov/28/news/mn-9124; Nigel Pauley, Twelve Years On: The ‘Real’ 9/11 Death Toll, Daily Star (Sep. 11. 2013), http://www.dailystar.co.uk/news/latest-news /337912/Twelve-years-on-The-real-9-11-death-toll (“But tens of thousands of other people had their fates sealed when al-Qaida fanatics crashed aircraft in the US . . . [claiming] 160,131 people, including soldiers, contractors and civilians, have died as a direct result of the terrorist outrages which shocked the world on September 11, 2001.”).
396 Muslim Community Reparations racial and religious profiling.24 The U.S. government’s abuse of U.S. immigration law largely made this new form of reversed-engineered terrorism possible.25 Under the Immigration and Nationality Act, non-citizens seeking entrance to the U.S. are classified as aliens and subject to U.S. immigration laws.26 Before September 11, thirteen of the nineteen hijackers entered the U.S. legally on visas, which inevitably highlighted shortcomings in the United States’s treatment of aliens.27 In response to the hijackers of September 11, Congress passed the USA Patriot Act and dramatically altered U.S. immigration laws that usurp the constitutional rights of Americans and aliens, whether documented or not, through the use of unlawful detentions, visas, biometric information collection, forfeiture, and various other tools used for counterterrorism.28 America’s fear projected an irrational, blind prejudice that translated into the expansion of and abuse of U.S. immigration policies. Because the hijackers of September 11 were Arab and Muslim, the misperception that all Arabs and Muslims are terrorists spread like wildfire. These immigration policies are an especially troubling way of singling out “particular groups perceived to be a threat to national security, thereby reinforcing negative stereotypes and public bias against these groups.”29 Through various immigration policies, the U.S. government sent an unmistakable message that Muslims and Arabs are under suspicion and deserve a higher level of scrutiny than others.30 The U.S. government promulgated this bias through immigration policies “on the basis of [one’s] name, race, religion, ethnicity, or national origin” that further institutionalized a policy of
24 Hilal Elver, Racializing Islam Before and After 9/11: From Melting Pot to Islamophobia, 21 Transnat’l L. & Contemp. Probs. 119, 137-50 (2012); Adam Liptak, Civil Liberties Today, N.Y. Times (Sep. 7, 2011), http://www.nytimes.com/ 2011/09/07/us/sept-11-reckoning/civil.html. 25 See Chon & Arzt, supra note 17, at 225-30; David A. Harris, The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America, 38 Rutgers L.J. 1, 18-19 (2006). 26 8 U.S.C. §§ 1101-1537 (West 2013); 8 U.S.C. § 1182 (West 2013) (regulating inadmissible aliens subject to deportation); Margaret D. Stock, United States Immigration Law in a World of Terror, Federalist Soc’y for L. & Pub. Pol’y (Dec. 1, 2003), http://www.fed-soc.org/publications/detail/united-states-immigration-law-in-a- world-of-terror. 27 James H. Johnson, Jr., U.S. Immigration Reform, Homeland Security, and Global Economic Competitiveness in the Aftermath of the September 11, 2001 Terrorist Attacks, 27 N.C. J. Int’l L. & Com. Reg. 419, 438-49 (2002); John Ritter, Crackdown on Visas May Have Limited Effect, USA Today (Oct. 22, 2001, 10:40 PM), http://usatoday30.usatoday.com/news/attack/2001/10/22/visas.htm. 28 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), Pub. L. No. 107-56, 2001 U.S.C.C.A.N. (115 Stat.) 272, 350-51 (2001); See also Whitehead & Aden, supra note 23, at 1094-95. 29 Aziz, supra note 15, at 42. 30 Akram & Johnson, supra note 4, at 337.
397 Savannah Law Review [Vol. 2:2, 2015] discrimination against Muslims and those perceived as Muslims; thus, these policies fractured Muslims’ already weakened confidence in those in power.31 Embodied by Islamophobia, these consequences collectively ostracize Muslim Americans, leaving Muslim Americans without a sense of belonging and relegating Muslim Americans to second-rate self-perception. 32 Furthering stigmatic labels against Muslim Americans implicate and trample some of the most basic human interests in the process. These consequences materialize in a broad spectrum of various contexts, ranging from hurtful speech, subtle employment discrimination, deportation, loss of liberty, and even loss of life from senseless killing.
A. Public Opinion Toward Muslim Americans Shifts After September 11 In America, the Arab is generally associated with terrorism, but the U.S. conflates the racial categorization of Arabs with the religious categorization of Muslims, “even though most Arabs in America are not Muslim and most of the world’s Muslims are not Arabs.”33 Moreover, these misperceptions of both Arabs and Muslims drive the discrimination, hate, and suspicion to violence that spills over to others perceived to be either Arab or Muslim.34 Through its response to September 11, the U.S. government collectively strips groups of U.S. citizenship and assigns these groups under a new racial classification of the terrorist other to: (1) delineate a secondary status as a U.S. citizen for groups of persons who appear Middle Eastern, Arab, and Muslim, and (2) exclude these groups from “the ability to exercise citizenship as a political or legal matter.”35 Often, confusion and ignorance of differentiating between these racial, ethnic, and religious groups lays the foundation for religiously driven racial discrimination.36 Those who discriminate against Muslims generally do not know whether being a Muslim is a religious or racial identity and often fail to differentiate Muslims from persons who are Pakistani, Indian, Iranian, or Japanese.37
31 Aziz, supra note 15, at 42; David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N.Y.U. Rev. L. & Soc. Change 123, 181 (2010) (warning that “the government’s use of overly aggressive and possibly unfair tactics to pursue individuals who seem to pose no real threat to our national security undermines the public’s confidence in anti-terror work . . . [and] damage [] law enforcement’s ability to obtain cooperation from the public.”); Kent Roach & Gary Trotter, Miscarriages of Justice in the War Against Terror, 109 Penn St. L. Rev. 967, 969 (2005) (warning that “wrongful convictions, if eventually discovered, will shake the public’s confidence in the criminal justice system and be seen as an affirmation of state discrimination against those who may share political beliefs, national or ethnic origins, and/or the same religion as the terrorists.”). 32 See Ali et al., supra note 13, at 6-10; Islamophobia Report, supra note 12. 33 Joo, supra note 1, at 33-36. 34 Id. 35 See Aziz, supra note 15, at 36-39; Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575, 1592-98 (2002). 36 See Chon & Arzt, supra note 17, at 220-29. 37 See id.; Aziz, supra note 15, at 43-48. As of 2009, more than half (53%) of Americans did not view Islam favorably and Americans still view Islam more coldly than
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These myths result in a conflation of the racial identity of Arabs, or those perceived as Arabs, with the religious identity of Muslims coupled with the common misperception that the Islamic faith is a radical and violent religion.38 A common, overall sentiment in the United States seems to be that all Arabs and Muslims are the same and both are intent on waging a holy war.39 Since 2007, the overwhelming majority of Muslim Americans have disavowed extremism and violence, rejecting any justification in the name of al Qaeda to commit violence against innocent civilians—a distinctive trend that al Qaeda is losing favor over time.40 And, while there are Muslim extremists (as with most any other group), the vast majority of mainstream Muslims are decent, law-abiding, and productive citizens.41
other major religions in 2014 (41%); yet, these negative views also work in tandem with a strong majority of Americans either being unfamiliar with Islam (63%) or Muslims (62%) in general as of 2009 and 2014 respectively. Islamophobia Report, supra note 12; How Americans Feel, supra note 12. Compare Religious Perceptions, supra note 12 (“A slight majority of Americans (53%) say their opinion of the faith is either ‘not too favorable’ (22%) or ‘not favorable at all’ (31%). . . . [yet] many Americans tell Gallup they have either ‘very little knowledge’ (40%) or ‘none at all’ (23%)” about the Islamic faith.), with News Poll, supra note 12 (reporting 49% of Americans viewed Islam unfavorably, though 55% of American did not have a good, basic understanding on Islam). Nevertheless, slightly less than half (42%) of Americans still view as Islam more likely to cause violence in 2013, which echoes the view of a majority (44%) of Americans in 2006 that Muslims are too extreme in exercising the Islamic faith. In contrast to less than half (49%) of Americans’ perceiving Muslims as loyal to the United States in 2006, whether Americans view Muslims as loyal to the United States as of 2011 is directly related to the individual’s confidence in the major U.S. social institutions: U.S. judicial system (63%); an honest elections process (49%); media (29%); Federal Bureau of Investigation (73%); and local law enforcement (41%). Islamophobia Report, supra note 12; Saad, supra note 12. 38 Aziz, supra note 15, at 36; Mapping the Global Muslim Population: A Report on the Size and Distribution of the World’s Muslim Population, Pew Res. Ctr. 15-20 (Oct. 2009) [hereinafter Mapping the Global Muslim Population], http://www.pewforum.org/ files/2009/10/Muslimpopulation.pdf; James J. Zogby, Ph.D.; What Ethnic Americans Really Think: “The Zogby Culture Polls”, Zogby Int’l 17 (2001), http://b.3cdn.net/ aai/568bb04937697d6b43_09m6bh9b0.pdf. But see Robert Spencer, Muslims Enraged Over al-Qaeda Video at 9/11 Museum; Museum Removes Mention of “Islamic Terrorism” From Its Website, Jihad Watch (Apr. 23, 2014, 3:58 PM), http://www.jihadwatch.org/ 2014/04/muslims-enraged-over-al-qaeda-video-at-911-museum-museum-removes- mention-of-islamic-terrorism-from-its-website (explaining that the confusion is understandable because the September 11 terrorists were Muslim extremists using Islam as the justification for mass destruction). 39 Akram & Johnson, supra note 4, at 311. 40 Sahar F. Aziz, Caught in A Preventive Dragnet: Selective Counterterrorism in A Post- 9/11 America, 47 Gonz. L. Rev. 429, 443-48 (2012); Muslim Americans: No Signs of Growth in Alienation or Support for Extremism, Pew Res. Ctr. 2-5 (Aug. 2011) [hereinafter Muslim Alienation Report], http://www.people-press.org/files/legacy- pdf/Muslim%20American%20Report%2010-02-12%20fix.pdf (reporting that Muslim Americans (1) strongly feel that no justification exists for suicide bombing and other violence against innocent citizens (81%) compared to Muslims in general (55%) and (2) hold unfavorable views of al Qaeda (70%) compared to Muslims in general (55%)). 41 Akram & Johnson, supra note 4, at 312; see Mapping the Global Muslim Population, supra note 38, at 15-20.
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1. Media Portrayals Unfairly Captivate Muslims as Terrorists The media and film in America are profound social engines that influence public opinion and serve as a biased self-confirmation of widespread perceptions, regardless of whether those perceptions are legitimately founded. Over history, media and films have served as breeding grounds for spreading misinformation, portraying Muslims as the terrorist other. Echoing the backlash Japanese Americans faced after Pearl Harbor, various examples in the media illustrate the backlash directed toward Muslims in America since September 11. During World War II, Asian Americans in films were “‘raced’ as foreign and identified as presumptively disloyal.” 42 Similarly, Muslims, and those perceived to be Muslim, are “‘raced’ as ‘terrorists’: foreign, disloyal, and imminently threatening.” 43 This portrayal “largely [goes] unnoticed because [the films’ portrayals] are entirely consistent with widespread attitudes in U.S. society.”44 Behind the scenes, the U.S. Department of Defense promotes the stereotyping and demonizing of Arabs and Muslims by collaborating with Hollywood in the production of over a dozen films with one recurring theme: “U.S. soldiers killing Arabs and Muslims.”45 In a review of U.S. films, Jack Shaheen catalogued hundreds of Hollywood films that repeatedly portrayed Muslims “as terrorists or otherwise placed [Muslims] in a negative, often non-human, light.”46 Mr. Shaheen compared films from World War I, World War II, and the Korean War to the film Rules of Engagement47 observing that historically Hollywood did not release movies about U.S. forces slaughtering children.48 However, near the end of Rules of Engagement, “US [sic] marines open[ed] fire on the Yemenis, shooting 83 men, women, and children. During the scene, viewers rose to their feet, clapped and cheered.”49 In films, such misinformation about Muslims fuels the terrorist other stigma based on irrational behavior and legitimizes hate violence as a tolerable response.
42 Ally Hack, Forfeiting Liberty: A Collective Sense of Vulnerability and the Need for Proactive Protection After 9/11, 2 Cardozo Pub. L. Pol’y & Ethics J. 469, 488-89 (2004). 43 Id. 44 Akram & Johnson, supra note 4, at 310. 45 Id. at 309. 46 Id. (noting the depiction or slurs of Muslim men as “hostile invaders, or ‘lecherous, oily sheikhs intent on using nuclear weapons’ . . . ‘assholes,’ ‘bastards,’ ‘camel-dicks,’ ‘pigs,’ ‘devil-worshipers,’ ‘jackals,’ ‘rats,’ ‘rag-heads,’ ‘towel-heads,’ ‘scum-buckets,’ ‘sons-of-dogs,’ ‘buzzards of the jungle,’ ‘sons-of-whores,’ ‘sons-of- unnamed goats,’ and ‘sons-of-she-camels’ [compared to] Arab women [] often portrayed as weak and mute, covered in black, or as scantily clad belly dancers”). 47 Rules of Engagement (Paramount Pictures 2001) (depicting a storyline of a veteran attorney defending a fellow officer who is on trial because the officer ordered the officer’s troops to fire on civilians after reclaiming a U.S. embassy in a hostile situation within a third world country). 48 Akram & Johnson, supra note 4, at 309-10. 49 Id.
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Furthermore, the media is also an effective forum to broadcast hurtful, incendiary anti-Muslim rhetoric by promoting further misinformation. 50 Misinformation often bleeds into the public sentiment by both inciting and reinforcing feelings of suspicion and hate.51 Such speech is not only hurtful, but further marginalizes the Muslim community because it exacerbates the public’s fear as reaffirming a bias of self-confirmation. For example, after September 11, U.S. Representative John Cooksey of Louisiana made a racial slur against Arabs and Muslims, stereotyping them as terrorists: “If I see someone come in and he’s got a diaper on his head and a fan belt around that diaper on his head, that guy needs to be pulled over and checked.”52 On April 15, 2013, terrorists bombed Boston, Massachusetts during the Boston Marathon, killing three and injuring 260 people (Boston Marathon Bombings).53 In the aftermath of this tragedy, discrimination, hate, and suspicion toward Muslims in America once again were reignited. For example, an enraged bystander in the crowd from the Boston Marathon Bombings tackled a young Saudi man, who was injured in the blast, solely because of the Saudi man’s appearances. 54 Worse, the New York Post branded the young Saudi man as a suspected terrorist.55
50 Joo, supra note 1, at 33; Erin Steuter & Deborah Wills, At War With Metaphor: Media, Propaganda, and Racism in The War on Terror 193 (2008), available at http://didik.mercubuana-yogya.ac.id/wp- content/uploads/2014/03/media-and-propaganda.pdf. 51 See Steuter & Wills, supra note 50, at 193; see generally Jasbir K. Puar & Amit S. Rai, Monster, Terrorist, Fag: The War on Terrorism and the Production of Docile Patriots, 20(3) Soc. Text 72, (2002), http://www.jasbirpuar.com/assets/Puar_Monster- terrorist-fag.pdf (exploring the monster stigma of terrorism ascribed to Muslims and Arabs in the U.S. as a clash between Western and Eastern culture and the Western culture imposes Western normative values onto subgroups of the Eastern Culture as an identifiable group in need of correction and recalibration to Western normative values). 52 See Clark Kent Ervin, Stereotyping Terrorists: The Usual Suspects–Editorials & Commentary–International Herald Tribune, N.Y. Times (Jun. 27, 2006), http://www.nytimes.com/2006/06/27/opinion/27iht-edervin.2066296.html?_r=0; National Briefing | South: Louisiana: Apology From Congressman, N.Y. Times (Sep. 21, 2001), http://www.nytimes.com/2001/09/21/us/national-briefing-south-louisiana- apology-from-congressman.html; Joan McKinney, Cooksey: Expect Racial Profiling, Free Republic (Sep. 19, 2001), http://www.freerepublic.com/focus/f-news/528386/posts (reporting U.S. representative John Cooksey of Louisiana making racial comments on Arabs and Muslims shortly after September 11). 53 Associated Press, Friends of Boston Bombing Suspect Plead Not Guilty, N.Y. Post (Sep. 13, 2014, 4:51 PM), http://nypost.com/2013/09/13/friends-of-boston-marathon- bombing-suspect-plead-not-guilty/. 54 Larry Celona, FBI Grills Saudi Man in Boston Bombings, N.Y. Post (Apr. 16, 2013, 4:00 AM), http://nypost.com/2013/04/16/fbi-grills-saudi-man-in-boston- bombings/. 55 Lacey Gray, Muslim Bashing in the Wake of Boston Bombing, Nat’l Geographic Soc’y (Apr. 26, 2013), http://news.nationalgeographic.com/news/ 2013/13/130426-boston-marathon-bombing-racism-hate-anti-arab-muslim-tamerlan- dzokhar-tsarnaev/.
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Moreover, social media, such as Twitter, serves as fertile ground, fueling suspicious and incendiary rhetoric by trending the hashtag “#Muslims.”56 After the Boston Marathon Bombing, a Twitter user asked occasional Fox News commentator, Erik Rush, whether Mr. Rush blamed Muslims for the tragedy. Although Mr. Rush claimed sarcasm in retrospect, he answered: “Yes, they’re evil. Let’s kill them all.”57 These examples are byproducts of gross misperceptions that also arise in the context of private discrimination in hate violence, airline travel, and employment discrimination.58 More importantly, these media depictions perpetuate misguided government policies on terrorism committed by Muslims without broadening the scope to include “terrorist activities [that go] undetected because [those terrorists] do not fit into the government’s established racial or religious profiles.”59 For example, the politically charged term homegrown terrorism connotes figures such as “Timothy McVeigh, the Unibomber, and extremist right-wing militia groups.”60 Today, the term homegrown terrorist has evolved into a racial and religious subtext of the term Muslim domestic terrorist because of racial and religious stereotyping by the media and government policies that target Arabs and Muslims after September 11.61 The spotlight on Muslim domestic terrorists casts a large shadow over the many faces of terrorism, hailing from all racial and ethnic backgrounds and touting ideologies that “span the spectrum from neo-Nazism and militant Christian fundamentalism to anarchism and violent environmentalism.” 62 Without discounting the fact that every victim of terrorism is a tragedy, out of the 15,000 Americans murdered annually from terrorism, “Islamist terrorism has been no more deadly in the United States than other forms of domestic terrorism since
56 See Freya Peterson, ‘Kill All Muslims’ Tweet Sends ‘Muslims’ Hashtag Trending and Unleashes Firestorm of Abuse Toward Fox News, Global Post (Apr. 15, 2013, 2:33 PM), http://www.globalpost.com/dispatch/news/regions/americas/united-states/130415/kill- all-muslims-tweet-erik-rush-fox-news-boston-marathon-bombings. 57 See id. 58 See Cheryl K. Chumley, ‘No Muslim’ Signs at Texas Shopping Center Spark Ire, Wash. Times (Aug. 9, 2013), http://www.washingtontimes.com/news/2013/aug/ 9/texas-shopping-center-parking-signs-no-muslims/; Carol Kuruvilla, ‘No Muslim Parking’ Signs Shock Worshippers at Texas Mosque, N.Y. Daily News (Aug. 13, 2013, 3:52 PM), http://www.nydailynews.com/news/national/muslim-parking-signs-shock- worshippers-texas-mosque-article-1.1425797. Unnamed personnel of the Westview Shopping Center posted discriminatory signs in the mall’s parking lot prohibiting Muslims, who were attending the El Farouq Mosque, from parking in the Westview Shopping Center in response to “a problem with worshipers parking in the mall's lot.” Katherine Bindley, ‘No Muslim Parking’ Signs Prompt Outrage at Westview Shopping Center in Texas, Huffington Post, (Aug. 9, 2013, 3:27 PM), http://www.huffingtonpost.com/2013/08/09/no-muslim-parking-_n_3733132.html. 59 Aziz, supra note 40, at 475. 60 Id. at 474. 61 Id. at 474-77. 62 Peter Bergen & Andrew Lebovich, Study Reveals the Many Faces of Terrorism, CNN (Sep. 10, 2011, 8:44 AM), http://www.cnn.com/2011/09/09/opinion/bergen- lebovich-us-terrorism-cases/.
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September 11.” 63 While greater danger lurks behind the media’s mask of Islamophobia, the government remains fixated on Islamist terrorism yet does not allocate resources to other more dangerous terrorist threats, according to empirical evidence.64 Ultimately, the media’s voice greatly influences the American imagination. Public opinion shapes the constituencies responsible for electing public officials, which is a constant process of promoting a self-confirming bias toward misguided government policies that reify racial and religious discrimination toward Arabs and Muslims in America. In short, the media’s depiction of Muslims in America is blind to other, more real, dangerous threats that the U.S. government fails to portray in the same manner as Islamist terrorism. The media’s voice thus encapsulates the disparate treatment of Muslim Americans as a secondary class of citizens. So long as that voice remains congruent with discriminatory private opinion and reaffirmed by public opinion, Muslims will remain victims to the media’s mischaracterization of Muslims, which significantly influences negative beliefs and materializes into private acts of intolerance and hate.
2. Hate Violence Plagues Muslims in America and Others Perceived to be Muslim Anti-Muslim sentiment, however, spreads like wildfire beyond the confines of misplaced suspicion and hate speech. On Thursday, December 27, 2012, Erika Mendez pushed Sunando Sen, a Hindu Indian Immigrant, off the subway platform and into an oncoming train in New York City.65 Ms. Mendez encapsulated blind prejudice and hate toward Muslims when publicly confessing to murdering Mr. Sen: “I pushed a Muslim off the train tracks because I hate Hindus and Muslims ever since 2001 when they put down the twin towers [and] I’ve been beating them up.”66
63 Id.; see also Aziz, supra note 40, at 475-76; Andrea Stone, Counterterrorism Czar Resists Muslim Labels, As Critics Say Right-Wing Threat Looms Larger, Huffington Post (Nov. 17, 2011, 3:39 PM), http://www.huffingtonpost.com/2011/11/17/dhs- counterterrorism-muslims_n_1099631.html?page=2 (“According to [Study of Terrorism and Responses to Terrorism] statistics, of 83 terrorist incidents from 9/11 until the end of 2010 in which ideological motivation could be determined, just five incidents, or 6 percent, were carried out by Muslim extremists. There were 60 cases linked to animal rights or environmental radicals, such as the Earth Liberation Front and the Animal Liberation Front, and a dozen to anti-abortion activists.”). 64 Stone, supra note 63; see generally Global Terrorism Database, http://www.start.umd.edu/gtd/ (last visited Nov. 30, 2015) (reporting over 140,000 cases of terrorism globally from 1970 through 2014). 65 Marc Santora, Woman Is Charged with Murder as a Hate Crime in a Fatal Subway Push, N.Y. Times (Dec. 29, 2012), http://www.nytimes.com/2012/12/30 /nyregion/woman-is-held-in-death-of-man-pushed-onto-subway-tracks-in- queens.html?_r=0. 66 Carol Kuruvilla, Muslim Group Fights Back against Pamela Geller’s ‘Hitler’ Bus Ads, N.Y. Daily News (Jun. 12, 2013, 2:35 PM), http://www.nydailynews.com/ news/national/muslim-group-fights-back-pamela-geller-hitler-bus-ads-article-1.1827345; Joshua Lott, Subway Pusher Charged with ‘Murder as Hate Crime’, Otago Daily Times (Dec. 30, 2012), http://www.odt.co.nz/news/world/240887/subway-pusher-charged-
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Under Title 18, Chapter 12, Section 249 of the U.S. Code, one who commits an offense or damage to another’s property on the basis of “actual or perceived race, color, religion, or national origin” may fall under federal statutes that prohibit hate crimes as well. 67 Since September 11, hate crimes send Muslims or perceived Muslims in America, running through a gauntlet of violence as objects of blind prejudice. Worse, perpetrators of these hate crimes maintain ignorance toward Muslims, and most Americans do not distinguish between various racial, religious, or ethnic backgrounds, conflating Arabs, Muslims, South East Asians, Indians, Sikhs, and others perceived as such.68 Consequently, innocent people from various racial, religious, or ethnic backgrounds roll into one common monster stereotype: a veritable terrorist version of the Pillsbury Doughboy who is getting poked—a lot.69 Coincidentally, the Federal Bureau of Investigation (FBI) reported in their 2001 Hate Crime Statistics Report that Anti-Islamic hate crimes increased by over 1,600%, jumping to the second most reported hate crime for religious bias incidences and accounting for 27.2% of total offenses motivated by religious prejudice, with 481 incidences and 554 victims.70 This dramatic increase for Anti- Islamic hate crimes is a great departure from being the least reported hate crime for religious bias incidences in 2000, with only 28 incidences and 33 victims.71 murder-hate-crime (internal quotations omitted); Murtaza Hussain, Anti-Muslim Violence Spiralling Out of Control in America, Al Jazeera (Dec. 31, 2012, 11:54 AM), http://www.aljazeera.com/indepth/opinion/2012/12/20121230135815198642.html. Mr. Sen’s death occurred several months after the controversy surrounding Pamela Geller, who placed hate ads in the New York City subway stations targeting the Arab and Muslim community. 67 18 U.S.C. §§ 241, 242, 245, 247, 248, 249, 844(h) (2012); 42 U.S.C. § 3631 (2012). 68 See Religious Perceptions, supra note 12, at 4; News Poll, supra note 12; see, e.g., Lott, supra note 66. 69 See Aziz, supra note 15, at 35-39, 47; Puar & Rai, supra note 51, at 118-25; Steuter & Wills, supra note 50, at 189-97; Shirley Huey et al., Indefinite Detention Without Probable Cause: A Comment on INS Interim Rule 8 C.F.R. § 287.3, 26 N.Y.U. Rev. L. & Soc. Change 397, 429-30 (2001); The Pillsbury Doughboy, Advertising Age (Mar. 29, 1999), http://adage.com/article/special-report-the-advertising- century/pillsbury-doughboy/140175/ (describing the iconic Claymation Poppin’ Fresh known as the Pillsbury Doughboy that giggles when a human finger pokes the character’s belly at the end of commercials for refrigerated dough, bakery mixes, and rolls). In the immediate aftermath of September 11, the Arab Anti-Discrimination Committee catalogued over 700 incidents of violence directed toward Arab Americans, which was an unprecedented increase from 80 to 90 cases a year nationwide in the later 1990’s. Hussein Ibish, Ph.D., American-Arab Anti-Discrimination Committee Res. Inst., American-Arab Anti-Discrimination Committee: 2003-2007 Report on Hate Crimes and Discrimination Against Arab Americans 11 (2008), available for download at http://www.issuelab.org/resource/ 20032007_report_on_hate_crimes_and_discrimination_against_arab_americans. 70 Fed. Bureau of Investigation, U.S. Dep’t of Just., Hate Crime Statistics: 2001, at i, 5, 9 (2002), available at https://www.fbi.gov/about-us/cjis/ ucr/hate-crime/2001/hatecrime01.pdf. 71 Fed. Bureau of Investigation, U.S. Dep’t of Just., Hate Crime Statistics: 2000, 7 (2001), available at http://www.fbi.gov/about-us/cjis/ucr/hate- crime/2001/hatecrime01.pdf.
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After September 11, Anti-Islamic hate crimes accounted for approximately 11.8% of the total religion-biased hate crimes according to FBI data:
FBI Anti-Islamic Biased Hate Crimes from 2000–201272 Year Total Incidences of Percentage of Victims of Religion- Anti-Islamic Anti-Islamic Anti-Islamic Biased Hate Biased Hate Biased Hate Biased Hate Crimes Crimes Crimes Crimes 2000 1472 28 1.9% 36 2001 1828 481 26.3% 554 2002 1426 155 10.9% 174 2003 1343 149 11.1% 171 2004 1374 156 11.4% 201 2005 1227 128 10.4% 151 2006 1462 156 10.7% 208 2007 1400 115 8.2% 142 2008 1519 105 6.9% 130 2009 1303 107 8.2% 132 2010 1322 160 12.1% 197 2011 1233 157 12.7% 185 2012 1099 130 11.8% 155
72 Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2011, Federal Bureau of Investigation, http://www.fbi.gov/about-us/cjis/ucr/ hate-crime/2011/tables/table-1 (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2010, Federal Bureau of Investigation, http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/tables/ table-1-incidents-offenses-victims-and-known-offenders-by-bias-motivation-2010.xls (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2009, Federal Bureau of Investigation, http://www2.fbi.gov/ ucr/hc2009/data/table_01.html (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2008, Federal Bureau of Investigation, http://www2.fbi.gov/ucr/hc2008/data/table_01.html (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2007, Federal Bureau of Investigation, http://www2.fbi.gov/ ucr/hc2007/table_01.htm (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2006, Federal Bureau of Investigation, http://www2.fbi.gov/ucr/hc2006/table1.html (last visited Nov. 30, 2015); Table 1:Incidents, Offenses, Victims, and Known Offenders by Bias Motivation, 2005, Federal Bureau of Investigation, http://www2.fbi.gov/ucr/ hc2005/table1.htm (last visited Nov. 30, 2015); Fed. Bureau of Investigation, U.S. Dep’t of Just., Hate Crime Statistics: 2004, 9 (2005), available at http://www2.fbi.gov/ucr/hc2004/tables/HateCrime2004.pdf; Fed. Bureau of Investigation, U.S. Dep’t of Just., Hate Crime Statistics: 2003, at 9 (2004), available at http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2003/ hatecrime03.pdf; Fed. Bureau of Investigation, U.S. Dep’t of Just., Hate Crime Statistics: 2002, at 9 (2003), available at http://www.fbi.gov/about- us/cjis/ucr/hate-crime/2002/hatecrime02.pdf; Hate Crime Statistics 2001, supra note 70, at 9 (2002), Hate Crime Statistics 2000, supra note 71, at 7.
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Unfortunately, the consistency of Anti-Islamic hate crimes dispels the notion that hate crimes stem purely from emotional backlash from September 11 and reinforces the notion that they are a real, tangible force continuing to plague the American Muslim community. Moreover, FBI statistics may not necessarily represent a holistic picture but rather understate the significance of hate crimes, since 54.5% of hate crimes are not reported to the police.73 Whereas, in reality, the actual level of hate crimes in America is “20 to 30 times higher than the numbers reported over the years by the FBI.”74 Based on this assumption and theory of extrapolation, “the real number of anti-Muslim hate crimes during 2011 may have been somewhere between 3,000 and 5,000.”75 These violent and senseless acts, of course, occupy only one point on a broad continuum of harms targeted at the Muslim community. Hate crimes against Muslims, or those perceived to be Muslims, embody the most egregious and overt manifestations of the same undercurrent: Islamophobia runs deep through America’s societal landscape.
3. Demystifying Muslim Americans The myths intertwining the racial identity of Arabs and the religious identity of Muslims become nothing more than smoke and mirrors in light of empirical evidence: a range of .64% to .12% of Americans were Arabs as of 2010, and .8% of Americans were Muslims as of 2009 (a rapid increase from .6% as of 2007).76 In Saint Francis College v. Al-Khazraji, the Supreme Court held that Arab descent qualifies as a race under Title VII of the Civil Rights Act of 1964 and warrants protection from discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens,” and that a “distinctive physiognomy is not essential for § 1981 protection.” 77 Because the U.S. Census Bureau classifies persons as white
73 Caroline Wolf Harlow, Ph.D., Hate Crime Reported by Victims and Police, Bureau of Just. Stats. Special Rep. (Nov. 2005), http://www.bjs.gov/content/pub/ pdf/hcrvp.pdf; FBI: Bias Crimes Against Muslims Remain at High Levels, S. Poverty L. Ctr. [hereinafter Bias Crimes Against Muslims], http://www.splcenter.org/home/2012/ spring/fbi-bias-crimes-against-muslims-remain-at-high-levels. 74 Bias Crimes Against Muslims, supra note 73. 75 Id. 76 Aziz, supra note 15, at 43-48; Demographics, Arab Am. Inst. Found. (2012), http://b.3cdn.net/aai/44b17815d8b386bf16_v0m6iv4b5.pdf (reporting a variation from the 2010 U.S. Census of 1,967,219 Arabs in the U.S. to the likelihood of 3,665,789 Arabs in the U.S.); Mapping the Global Muslim Population, supra note 38 at 27-33 (reporting that in 2009, the Muslim population in the U.S. was 2,454,000 (or .15%) in comparison to the world population of 1,571,198,000 Muslims); id. at 15-20; U.S. Census Bureau, Monthly Intercensal Resident Population Estimates for the United States: April 1, 2000 to July 1, 2010, available for download at https://www.census.gov/popest/data/intercensal/national/nat2010.html (last visited Nov. 30, 2015) (reporting the U.S. population of 309,349,689 in July of 2010 and 306,771,529 in July of 2009). 77 Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (citing Al-Khazraji v. Saint Francis Coll., 784 F.2d 505, 517 (3d Cir. 1986)); see also 42 U.S.C. § 1981; Aziz, supra note 15, at 44.
406 Muslim Community Reparations whether from Europe, the Middle East, or North Africa, little meaningful data exists that tracks Arabs and other Middle Easterners on demographics, discrimination, and religious affiliations. 78 Moreover, contrary to public perceptions and media portrayals, an overwhelming majority of Arab Americans are Christian (76.5%), and less than one-in-four Arab Americans is Muslim (23%).79 In contrast to Arabs, Muslims in America “come from diverse nationalities, ethnic and tribal groups and cultures, speak many languages, and practice distinct customs.”80 Thus, one is simply unable to profile another as Muslim given the
78 Aziz, supra note 15, at 43-45; Jaweed Kaleem, FBI To Start Tracking Hate Crimes Against Sikhs, Hindus and Arabs, Huffington Post (Jun. 6, 2013, 7:58 PM), http://www.huffingtonpost.com/2013/06/05/hate-crimes-sikhs-hindus-arabs- fbi_n_3392760.html (reporting that “[a]fter years of pressure from civil rights groups and lawmakers who say attacks against religious and ethnic minorities are not adequately monitored by law enforcement, the FBI will begin formally tracking hate crimes against Sikhs, Hindus and Arabs . . . by 2015”). 79 Aziz, supra note 15, at 44-45; Mapping the Global Muslim Population, supra note 38, at 15-20 (reporting that in 2007, Arabs only consist of one of every four Muslim Americans (24%)); Zogby, supra note 38, at 17 (reporting that in 2001, more than two of every three Arabs practiced a denomination of Christianity (76.5%), and less than one of every four Arabs practiced a denomination of Islam (23%)). 80 Aziz, supra note 15, at 45. Of nearly 1.6 billion Muslims worldwide, the majority live in the following regions: Asia-Pacific (972,537,000 Muslims, or 61.9% of the world’s population), including Indonesia (12.9%), Pakistan (11.1%), India (10.3%), Bangladesh (9.3%), Iran (4.7%), Turkey (4.7%); Middle East-North Africa (315,322,000 Muslims, or 20.1% of the world’s population), including Egypt (5%); Sub-Saharan Africa (240,632,000 Muslims, or 15.3% of the world’s population), including Nigeria (5%); Europe (38,112,000, or 2.4% of the region’s population), including Russia (1%); and the Americas (4,596,000, or.3% of the world’s population), including the United States (.2%). Aziz, supra note 15, at 44-45; Mapping the Global Muslim Population, supra note 38, at 28-33; The Global Religious Landscape: A Report on the Size and Distribution of the World’s Major Religious Groups as of 2010, Pew Res. Ctr. 21-23 (2012), http://www.pewforum.org/ files/2014/01/global-religion-full.pdf. Islam is comprised of two major denominations, Sunni and Shi’a. The vast majority of Muslims globally are Sunni (85%). However, a small minority of Muslims are Shi’a (or Shiite, Shi’ite, Shia) (15%), who primarily reside in Iran, Iraq, Bahrain, and Azerbaijan, as well as smaller, significant portions residing in “Afghanistan, Kuwait, Lebanon, Pakistan, Saudi Arabia, Syria, and Yemen.” Christopher M. Blanchard, Cong. Res. Serv., RS21745, Islam: Sunnis and Shiites 1-4 (2009), available at http://fas.org/irp/crs/RS21745.pdf. While both denominations share the same religious tenets, political strife between these two denominations arose from a disagreement over the leadership in the Muslim community and the succession of the Prophet Muhammad. Muhammad was known as the messenger of Allāh (Arabic for God) in Islam, and Muhammad recorded Allah’s revelations and hadith (sayings of the Prophet and the Prophet’s companions) in the Qur’ān (the sacred scriptures of Islam). Fundamental Islam concepts center on “piety, striving for goodness, and social justice . . . [and] to live in accordance with the five pillars of Islam.” Id. at 1-2. The five major religious tenets of Islam include: (1) shahada, reciting daily “[t]here is no God but Allah, and Muhammad is His Prophet” (i.e., a monotheistic faith); (2) salat, pray five times a day; (3) zakat, give charity to the poor; (4) sawm, fast from sunrise to sunset during the month of Ramadan; and (5) hajj, at least one pilgrimage to Mecca. Id. Based on a 2010 count of 310,380,000 American citizens living in the U.S., Islam is the fourth largest religion (0.9%), trailing Christianity (78.3%); unaffiliated religions (16.4%); Judaism (1.8%); and Hinduism (1.2%). Of approximately two million
407 Savannah Law Review [Vol. 2:2, 2015] lack of meaningful distinctions between those of the Muslim faith and those of other religious or ethnic identities.
B. Public Policy Reifies Pretextual Religious Profiling of Muslims in America Despite progressive measures, many of the harms Muslims face continue un- redressed and have become, regrettably, generally accepted by Americans— particularly the more insidious harms. In part, entrenched biases, often based on myths, largely attribute to sluggish and sporadic reform efforts. Acting under the color of national security, the U.S. government has a duty to maintain national security. 81 However, the FBI implemented counterterrorism measures that amassed an immense database to ferret out possible terrorist suspects, which is still in effect over a decade later. This terrorist Screening Database is a de facto bill of attainder on a scale of epic proportions since the Red Scare of the McCarthy era, but it is geared toward religious profiling.82 The U.S. government implemented various national security protocols after September 11, such as: (1) massive detention of terrorist suspects after September 11 through the use of material witness orders;83 (2) mapping geographical areas based on racial and religious profiling for further surveillance and investigation under material support statutes;84 (3) targeting of aliens from the Immigration and Naturalization Service (INS) database based on racial and religious profiling from
Muslim Americans living in the U.S. in 2007, Muslim Americans have the most diverse backgrounds over other religious affiliations: White (or Caucasian) (30%); African American (23%); Asian (21%); Hispanic (6%); Native-Born (37%); Middle Eastern and North African (26%); Pakistani (9%); South Asian (7%); Iranian (3%); European (5%); Sub- Saharan African (7%); Palestinian (3%); Bangladeshi (3%); and Yemeni (3%). Aziz, supra note 15, at 44-45; Muslim Alienation Report, supra note 40, at 1-14. 81 Hirabayashi v. United States, 320 U.S. 81, 93 (1943) (“The war power of the national government is the power to wage war successfully. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and form the dangers which attend the rise, prosecution and progress of war.”). 82 See generally, Off. of Inspector Gen., U.S. Dep’t of Just., Follow- Up Audit of the Terrorist Screening Center (2007) [hereinafter TSC Database], available at https://oig.justice.gov/reports/FBI/a0741/final.pdf; cf. Robert Griffith, The Politics of Fear: Joseph R. McCarthy and the Senate 112-14 (2d ed. 1987). Interestingly enough, in the McCarthy era, empirical research suggests that elitists bearing influence on the political process were primarily responsible for political repression, which did not reflect the demands of the mass public. Though, acquiescence by the mass public to public policy framed by elitists may suggest: (1) the political culture for political intolerance in a pluralist democracy, and (2) the acceptable range of political alternatives to political intolerance. See generally James L. Gibson, Political Intolerance and Political Repression during the McCarthy Red Scare, 82(2) Am. Pol. Sci. Rev., 511 (1988) (analyzing the link between public opinion and public policy during the Red Scare). 83 See discussion infra Part II.B.1.a. 84 See discussion infra Part II.B.1.b.
408 Muslim Community Reparations particular geographic regions;85 and (4) enforcing the No Fly and Selectee lists that prevent or interfere with both Americans and aliens traveling internationally or abroad.86 These tactics have contributed to the FBI Terrorist Screening Database, which shares information with other law enforcement agencies and the National Crime Information Center (NCIC), all of which are available to federal and state law enforcement agencies by a mere keystroke.87 This permissive use of racial and religious profiling “facilitates the selective enforcement of counterterrorism laws against Muslims and legitimizes widespread discrimination.”88 This same database is seriously flawed and skewed by unfettered discretion of law enforcement agencies, presenting a major hurdle for Americans and aliens to enjoy protected rights and freedoms under the U.S. Constitution, such as: searches without probable cause or warrants;89 the means for Americans and aliens to seek or perform gainful employment;90 and the ability for Americans to move freely across state lines.91 More importantly, these tactics relegate Muslim Americans to the status of a second-class citizen and deprive aliens a legitimate process from becoming U.S. citizens.
1. Abusive Investigation Practices in the Aftermath of September 11 In the immediate aftermath of September 11, the U.S. government imposed a spontaneous, unofficial policy to detain any and all foreign nationals from regions designated as Arab or Muslim with any sort of immigration issue, regardless of the triviality, as potential terrorists.92 On September 20, 2001, the U.S. Department of Justice issued interim regulations and detentions to justify the massive dragnet arrests of Muslims and Arabs in the United States by primarily using the federal material witness statute. 93 Shortly thereafter on October 25, 2001, Congress followed suit and passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
85 See discussion infra Part II.C. 86 See discussion infra Part II.C.9. 87 See TSC Database, supra note 82. 88 Aziz, supra note 40, at 474-75. 89 U.S. Const. amend. IV (“[N]o warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 90 Sahar F. Aziz, Associate Professor, Texas Wesleyan Univ. School of Law, Written Testimony Before the Equal Employment Opportunity Commission (July 18, 2012), http://www.eeoc.gov/eeoc/meetings/7-18-12/aziz.cfm (noting that employers have been found to screen prospective employees against the Terrorist Watch List). 91 See generally Saenz v. Roe, 526 U.S. 489, 499 (1999) (holding that the right to travel includes the right to enter and leave another state). 92 Custody Procedures, 66 Fed. Reg. 48334 (Sept. 20, 2001) (to be codified at 8 C.F.R. pt. 287), http://www.gpo.gov/fdsys/pkg/FR-2001-09-20/pdf/01-23545.pdf; see also Akram & Johnson, supra note 4, at 331; Ibish, supra note 69, at 23. 93 18 U.S.C. § 3144 (2012); Custody Procedures, supra note 92, at 48334. Commenting on this regulation, Attorney General John Ashcroft conceded that “we seek to hold them as suspected terrorists, while their cases are being processed on other grounds.” Huey et al., supra note 69, at 414.
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(USA Patriot Act) as a further attempt to justify these detentions.94 In doing so, Congress simultaneously expanded the powers of law enforcement under the material support statutes, which was a drastic departure from constitutional protections.95 Then Attorney General John Ashcroft openly conceded to criticism that the Department of Justice mixed civil and criminal law as a pretext for post– September 11 terrorist investigations. The Department of Justice circumvented the Fourth Amendment right against unreasonable seizures 96 by using minor immigration charges under administrative law to hold aliens; meanwhile, the detention was indefinite during a so-called pending criminal investigation for terrorism. 97 Both the Executive and Legislative branches sanctioned law enforcement agencies to use these attentuated legal tactics under the Material Witness Statute98 and Material Support Statutes.99 These legal tactics are still in effect today.
a. Material Witness Statute The Material Witness Statute empowers a judge to order the arrest of someone if “the testimony of a person is material in a criminal proceeding and if it is shown that it may become impractical to secure the presence of the person by subpoena . . . .” 100 Under certain circumstances rendering a subpoena or
94 USA Patriot Act, 115 Stat. 272 (2001). 95 Id. at 350-52; 18 U.S.C. § 3144; Whitehead & Aden, supra note 23, at 1133; see Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (Kennedy, J., dissenting); United States v. Awadallah, 349 F.3d 42, 49-75 (2d Cir. 2003); Akram & Johnson, supra note 4, at 317- 26, 328-31 (empowering law enforcement to (1) detain suspected non-terrorists without filing charges for up to a week, (2) expand surveillance powers to monitor citizens and non-citizens linked with terrorism, and (3) deport non-citizens on a broad definition of terrorist activity). 96 U.S. Const. amend. IV. 97 Turkmen v. Ashcroft, 589 F.3d 542, 547-50 (2d Cir. 2009) (granting qualified immunity to law enforcement under 8 U.S.C. § 1231 and only requiring probable cause under the Fourth Amendment if law enforcement did not have an objectively reasonable belief that the detentions were authorized and the detentions were not, in fact, authorized); Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1038-44 (1984) (separating deportations and removal proceedings as civil and outside the protection of the Fourth Amendment); Akram & Johnson, supra note 4, at 327-41; Elver, supra note 24, at 139-41 (2012) (using immigration courts in the aftermath of September 11 because immigration law in administrative courts provide “fewer, legal protections for the accused . . . [because] [d]etainees do not have the right to an attorney and may be detained even after an immigration judge has ordered them freed on bond”); Huey et al., supra note 69, at 412-17; Joyce Howard Price, Ashcroft Urges Stricter Laws to Jail Alien Suspects Longer, Wash. Times (Oct. 1, 2001), http://www.highbeam.com/doc/1G1- 78793748.html; Jeffrey Toobin, Ashcroft’s Ascent: How Far will the Attorney General Go?, New Yorker (Apr. 15, 2002), http://www.newyorker.com/magazine/ 2002/04/15/ashcrofts-ascent; See Chon & Arzt, supra note 17, at 225-30. 98 18 U.S.C. § 3144 (2012). 99 Id. § 2339A; Id. § 2339B. 100 Id. § 3144; see also Aziz, supra note 40, at 459-74; Ibish, supra note 69, at 24-25 (noting that “[m]aterial witness detentions were designed to allow the authorities to hold
410 Muslim Community Reparations deposition impracticable, law enforcement may submit an affidavit to procure a warrant for an arrest claiming that the individual is a material witness in a criminal proceeding, even though the witness is not accused of committing any wrongdoing.101 Just as other federal detainees, material witnesses are entitled to pretrial release under the Constitution, provided that the witness’s “testimony ‘can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.’”102 In short, material witness orders allow law enforcement agencies to detain individuals who are considered a flight risk and whose testimony is believed to be critical for an ongoing prosecution.103 Under such detention, the detainee may only be held for so long a time as to require them to testify or be deposed.104 Law enforcement is authorized to detain non-citizen Muslims or Arabs without filing charges with a determination to be made whether to continue custody or release the individual on bond “within 48 hours of the arrest, except in the event of an emergency or other extraordinary circumstance[,] in which case a determination will be made within an additional reasonable period of time.” 105 However a reasonable period of time is not defined and may be indefinite for some detainees.106
persons whose testimony was considered crucial to ongoing prosecutions but who were considered flight risks” and that “[s]uch crucial witnesses can be held only for such time as is required for them to testify or be deposed”); see, e.g., Mayfield v. Gonzales, No. Civ. 04-1427-AA, 2005 WL 1801679, at *2-4 (D. Or. July 28, 2005). 101 18 U.S.C. § 3144. However, the danger lies when law enforcement never takes any testimony from the witness or no prior criminal proceeding exists to justify the affidavit for a material witness arrest. As such, courts usually protect law enforcement routinely under qualified immunity laws, leaving victims of pre-textual arrests without redress for constitutional violations of the Fourth Amendment. The question of whether a pre- textual arrest under the material witness statute is a violation of the Fourth Amendment remains undecided. Catherine Cone, Text and Pretext: The Future of Material Witness Detention After Ashcroft v. al-Kidd, 62 Am. U. L. Rev. 333, 335 (2012). 102 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011) (citing 18 U.S.C. § 3144); 8 C.F.R. § 241.4(f) (2011) (delineating factors for detention beyond the removal period of non-citizens); Turkmen, 589 F.3d at 547-48 (justifying the detainment based on factors that include “a detainee's criminal conduct, mental health, ties to the United States, prior immigration violations and history, and the likelihood that the alien is a significant flight risk or a potential danger to the community”); Ibish, supra note 69, at 24. 103 18 U.S.C. § 3144; see Aziz, supra note 40, at 459-74; Ibish, supra note 69, at 24; see, e.g., Mayfield v. Gonzales, No. Civ. 04-1427-AA, 2005 WL 1801679, at *2-4 (D. Or. July 28, 2005). 104 18 U.S.C. § 3144; 8 C.F.R. § 241.4(f) (2011) (delineating factors for detention beyond the removal period of non-citizens); Turkmen, 589 F.3d at 547-48 (justifying the detainment based on factors that include “a detainee’s criminal conduct, mental health, ties to the United States, prior immigration violations and history, and the likelihood that the alien is a significant flight risk or a potential danger to the community”); Ibish, supra note 69, at 24. 105 8 C.F.R. § 287.3(d) (2012); Michael S. Lee, Arab American Institute, Healing the Nation: The Arab American Experience After September 11 1, 19 (2002); Whitehead & Aden, supra note 23, at 1126-27 106 18 U.S.C. § 3144; see Whitehead & Aden, supra note 23, at 1126-27.
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The crux of the matter is whether the detainees, being so-called material witnesses, actually testified. If not, then a host of legal issues surface where courts have often upheld these otherwise unlawful detentions by protecting law enforcement under qualified immunity, thereby indirectly supporting law enforcement misconduct and subverting the detainees’ Fourth Amendment rights.107 Whether the material witness orders were merely a guise for creating a terrorist database in a fishing expedition for the War on Terror like a biometric tracking device for possible terrorist activity in the future is concerning.108 Hence, the mere affiliation of Arabs or Muslims to the terrorists of September 11 supported law enforcement’s premise for a pre-textual stops, arrests, and detentions of innocent Arabs, Muslims, or those who appear to be Arab or Muslim, on the sole criteria of race or religion.109 Over seventy of the “material witness” detainees following September 11, however, were held under circumstances that do not conform to these statutory parameters.110 Following September 11, the Human Rights Watch Organization interviewed over seventy of the material witness detainees, reporting that these detainees were held under circumstances that did not conform to this material witness model in theory.111 Of the seventy or more detainees interviewed, at least
107 42 U.S.C. § 1981 (2012). Often, law enforcement officials are protected under qualified immunity for wrongful detention, even from possible misconduct. See, e.g., Adams v. Hanson, 656 F.3d 397, 401-11 (6th Cir. 2011). The legal issues under the material witness orders become highly relevant as to whether the witness actually testified because, if not, then the lack of testimony is direct evidence invalidating the affidavit the law enforcement officer submitted to the judge. The officer lacks any basis for detaining the individual; hence, the lack of testimony may be highly relevant and indicative of police misconduct, and the courts are rubber-stamping the approval of such misconduct in effect. In al-Kidd, the Court raises these arguments that the lack of testimony is subversive of the witness’ constitutional rights. Padilla v. Yoo, 678 F.3d 748, 754-65 (9th Cir. 2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2087-90 (2011); Stacey M. Studnicki & John P. Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law, 76 St. John’s L. Rev. 483, 520-27 (2002). 108 Whitehead & Aden, supra note 23, 1126-32 (2002); Steve Fainaru & Margot Williams, Material Witness Law Has Many in Limbo: Nearly Half Held in War On Terror Haven’t Testified, Wash. Post (Nov. 24, 2002), http://vredessite.nl/ andernieuws/2002/week49/11-24_witness.html; Jim McGee, Fighting Terror With Databases, Wash. Post (Feb. 16, 2002), http://www.washingtonpost.com/wp- dyn/content/article/2005/11/04/AR2005110401372.html. 109 See Aziz, supra note 40, at 459-74; Huey et al., supra note 69, at 412-417. 110 Ibish, supra note 69, at 24 (noting that “at least a third were detained for more than two months, several for over half a year, and in at least one case for over a year”); Mayfield, WL 1801679, at *2-4. Brandon Mayfield, a noted attorney and convert to Islam was detained as a “material witness,” in connection with a terrorists attack in Madrid, Spain, in the run-up to the Spanish elections of that year. Id. He was detained for three weeks despite the fact that no arrest had been made concerning the case, nor grand jury impaneled. Id. It should also be noted that later the Justice Department attempted to justify his detention, in part, on “miscellaneous Spanish documents” found during the search of his home, which was later revealed to be his children’s Spanish homework. Ibish, supra note 69, at 25. 111 See Human Rights Watch, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, at 1-5
412 Muslim Community Reparations a third were detained for more than two months. Several detainees endured incarceration that exceeded half a year, and at least one detainee languished in jail for more than a year.112 Supporting the government’s abuse of material witnesses as the government’s fishing expedition for terrorists, “[f]orty-two of the seventy material witnesses identified during the research for this report were ultimately released without any charges filed against them.”113 While seven detainees were charged with material support to terrorist activities and two were enemy combatants,114 another twenty detainees were charged with non-terrorist-related crimes, and twenty-four were deported, after each group suffered long periods of detention as material witnesses.115 According to the Office of the Inspector General, of the 762 detainees, most detainees were almost exclusively men, with more than half (63%) being between the ages of 26 and 40 years old. 116 The detainees were from twenty different countries; with almost half of the detainees being from Pakistan (33%) and Egypt (15%).117 Almost two out of every three detainees were arrested in New York (64%) and New Jersey (9%),118 with most of the arrests (86%) being within three months of September 11.119 Approximately one in four detainees (24%) were held for immigration charges unrelated to the September 11th events.120 Moreover, the average time for the FBI to clear a detainee was eighty days, but the FBI took longer than three months to clear more than a quarter of detainees.121 Of the 762 detainees, only 197 detainees were released on bond.122 Nearly 500 detainees were not released on bond, while 68 detainees remained in detention indefinitely without release or removal dates. 123 The Office of the Inspector
(2005) [hereinafter Witness to Abuse Report], available at http://www.hrw.org/ reports/2005/us0605/us0605.pdf; Ibish, supra note 69, at 24-25; see also Mayfield, WL 1801679, at *2-4. But see September 11 Detainees Report, supra note 23, at 1-23, 105 (2003). For example, as a reputable attorney and a Muslim convert, Brandon Mayfield was detained as a “material witness” for terrorism attacks in Madrid, Spain— which occurred coincidentally at the same time of Spanish runner-up elections that year. Mr. Mayfield was detained for three weeks despite the fact that law enforcement made no arrest concerning the case nor impaneled a grand jury. Later, the Justice Department attempted to justify Mr. Mayfield’s detention based on, in part, miscellaneous Spanish documents found during the search of Mr. Mayfield’s home. The document was, in fact, Spanish homework that belonged to Mr. Mayfield’s children. Mayfield, WL, 1801679 at *2-4; Ibish, supra note 69, at 24-25. 112 See Witness to Abuse Report, supra note 111, at 3-5. 113 See id. at 5; see also Studnicki & Apol, supra note 107, at 520-29; Adam Liptak, For Post-9/11 Material Witness, It Is a Terror of a Different Kind, N.Y. Times (Aug. 19, 2004), http://www.nytimes.com/2004/08/19/politics/19witness.html. 114 See, e.g., Padilla v. Yoo, 678 F.3d 748, 752 (9th Cir. 2012). 115 See Witness to Abuse Report, supra note 111, at 5. 116 September 11 Detainees Report, supra note 23, 20-21. 117 Id. at 20-23. 118 Id. at 21-22. 119 Id. at 22. 120 Id. at 157. 121 Id. at 70-71. 122 Id. at 105. 123 Id.
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General concluded that the FBI “hold until cleared policy” lacked a factual basis and affirmative evidence that any of the detainees had any connection with September 11 other than sharing the commonality of being aliens in the United States.124 For eighty-four of the detainees, the worst treatment occurred in the Federal Bureau of Prisons Metropolitan Detention Center in Brooklyn, New York, where jail personnel physically and verbally abused detainees 125 and subjected the detainees to restrictive conditions. This treatment is in stark contrast to jail personnel handing out Know Your Rights pamphlets to some of the 400 detainees in the Passaic County Jail in Paterson, New Jersey. 126 The misconduct by law enforcement from the start to the finish of this dragnet arrest was glaring—from the top to the bottom, implicating high ranking officials, jail personnel, and INS personnel (even acting in direct violation of the judge’s order).127 Notwithstanding the justifications by the U.S. government, the mass dragnet failed to produce any concrete ties to September 11 as of November 2001.128 More than likely, but for September 11 and the subsequent affiliation of terrorism with Arabs and Muslims, few of the detainees would have been incarcerated for immigration infractions, especially if the detainees were from other parts of the world unaffiliated with Arabs or Muslims.129 Despite the various efforts employed by the government, “[n]ot one of these people stands convicted of a terrorist crime.”130 The detainment of Arabs and Muslims following September 11 takes a page out of history from the U.S. government’s largest campaign of racial profiling, conducted during World War II: the government’s detention of nearly 93,000 Japanese Americans, with none ever convicted of treason.131 The inefficiency and ineffectiveness of these government programs are quite disconcerting, yet these programs deteriorate the relationship between the Muslim community and the public or private sector. Moreover, these practices by U.S. law enforcement agencies fly in the face of the Constitution under the guise of national security. 132 More troubling, government officials who incarcerate individuals based on racial identity or
124 Id. at 70-71. 125 See id. at 157-64. 126 See id. at 184-85. 127 See id. at 70-71, 88-90, 108-110, 157-64, 184-85. 128 September 11 Detainees Report, supra note 23, at 20-23, 51-52, 70-71, 105; Akram & Johnson, supra note 4, at 327-41. 129 See Dave Martella, Defending the Land of the Free and the Home of the Fearful: The Use of Classified Information to Deport Suspected Terrorists, 7 Am. U. J. Int’l L. & Pol’y 951, 951-53, 963-64 (1992) (theorizing the exclusion of immigrants on the basis of political ideology inconsistent with Americans); see generally David Cole & Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror (2007) (discussing the ramifications from an unworkable policy against the War on Terror). 130 Cole & Lobel, supra note 129, at 250. 131 Id. at 10 (conveying that 80,000 foreign nationals were called in for fingerprinting, photographing, and special registration; 8,000 for FBI interviews; and over 5,000 were placed in preventative detention). 132 See Aziz, supra note 40, at 459-74; Huey et al., supra note 69, at 412-17.
414 Muslim Community Reparations religious beliefs are in clear violation of Due Process by using religious profiling to bypass constitutional protections. These practices shirk traditional requirements for criminal detention—a grave matter indeed for all whose civil liberties are at stake—while consuming taxpayer dollars in the process to justify such practices.133 b. Material Support Statutes After Congress passed the USA Patriot Act, law enforcement agencies began to rely on material support statutes as a pretext for terrorist investigations. Under the USA Patriot Act, Title 18, Chapter 113B, sections 2339A and 2339B of the U.S. Code primarily stage the legal framework for preventative counterterrorism to prohibit material support to terrorists in the U.S. or abroad.134 Section 2339A prohibits one who knowingly provides, or attempts or conspires to provide, “material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources” in the preparation, execution, commission, or concealment of terrorist activity. 135 Section 2339B prohibits one who knowingly provides, or attempts or conspires to provide, “material support or resources to a foreign terrorist organization.”136 When the government cannot prove terrorism charges, these material support statutes serve as a fallback provision because the statutes are overly vague and broad, allowing the government to criminalize innocent or innocuous conduct that may also fall under protection of constitutionally protected rights.137 Under the material support statutes, law enforcement has a loose and overly broad standard that allows them to detain someone who knows, or should know, of
133 Harris, supra note 31, at 125-32, 141-57 (discussing the government’s use of informants in context with the Fourth Amendment); McGee, supra note 108. 134 Compare 18 U.S.C. § 2339A(a) (defining material support to terrorists as one who “provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that [those resources] are to be used in preparation for, or in carrying out, a violation of . . . [terrorist acts] or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act”), with Id. § 2339B (enumerating the elements for violating the statute prohibiting material support to foreign terrorists as follows: (1) a person has knowledge of the organization as a designated terrorist organization, (2) the organization previously did or still does engage in terrorist activity, and (3) the organization did or still does engage in acts of terrorism); USA Patriot Act, 115 Stat. at 376-77 (2001); Aziz, supra note 40, at 459-62. 135 18 U.S.C. § 2339A(a) (2012). 136 Id. § 2339B. 137 Aziz, supra note 40, at 445-48, 459-60; see Whitehead & Aden, supra note 23, at 1098-99 (discussing the government’s practice of barring or deporting aliens with unpopular political positions as well as anyone who “is deemed to have made statements in support of, or contributed funds to, such organizations, or associated with alleged members thereof” under the material support statutes). The USA Patriot Act ultimately fosters blacklisting as an accepted immigration policy that “allow[s] determinations to be made based on an individual's beliefs or speech.” Whitehead & Aden, supra note 23, at 1098. But, the USA Patriot Act leaves a ripple effect that may “have a devastating effect on the First Amendment rights of Muslims in the United States to practice their religion and support the Muslim faith.” Id.
415 Savannah Law Review [Vol. 2:2, 2015] terrorist activities and possibly provides material support to those activities.138 Hence, the government is not required to prove specific intent—just mere knowledge or encouragement—for supporting terrorism.139 These statutes sweep in legitimate conduct as acts materially supporting terrorism “such as charitable giving, peacebuilding, and human rights advocacy.” 140
2. Law Enforcement Targets Muslims in America in Counterterrorism Efforts since September 11 The Fourteenth Amendment to the United States Constitution purports to protect individuals from being discriminately singled out based on appearance.141 Additionally, the Fourth Amendment proscribes unreasonable searches and seizure without probable cause,142 or at a minimum, reasonable suspicion for less intrusive investigations and detentions. 143 However, the U.S. government consistently ignores these constitutional rights of the Muslim community. Through the blatant use of racial and religious profiling,144 Muslims, or those perceived to be Muslims, face arbitrary stops and detentions based on nothing more than outward appearances. Since September 11, religious profiling dictates law enforcement’s counterterrorism efforts and bears heavily upon the Muslim community.145 Religious profiling has become egregious when law enforcement encroaches into the sanctity of the home or place of worship, leaving the Muslim community no sense of privacy or freedom in the United States.
a. Eating, Living, and Praying Like a Muslim Becomes Criminal While racial profiling is prohibited by law enforcement, no prohibition exists against profiling individuals or groups based on religion or ethnic origin.146 Hence, the government can, and does, profile targets based on “religion and ethnic origin in counterterrorism enforcement with no legal recourse for those targeted.”147
138 8 U.S.C. § 1182(B)(iv)(VI) (2012) (defining material witness as someone who “knows, or reasonably should know, affords material support . . . for the commission of a terrorist activity” or either an individual or an organization engaged in terrorist activity); see Aziz, supra note 40, at 459-74; Ibish, supra note 69, at 23-26; Roach & Trotter, supra note 31, at 1011-12. 139 United States v. Aref, 285 F. App’x 784, 789-93 (2d Cir. 2008). 140 Aziz, supra note 40, at 460. 141 See U.S. Const. amend. XIV, § 1. 142 See Id. amend. IV. 143 See Terry v. Ohio, 392 U.S. 1 (1968). 144 Racial profiling occurs whenever a law enforcement officer “target[s] young black men [or men and women of other specific racial or ethnic backgrounds] on the basis of a belief that they are more likely than others to commit crimes.” However, “[i]t is not racial profiling for an officer to question, stop, search, arrest, or otherwise investigate a person because his race or ethnicity matches information about a perpetrator of a specific crime that the officer is investigating . . . ” Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L Rev. 1413, 1415 (2002). 145 Aziz, supra note 15, at 40-42; Ibish, supra note 69, at 13-18; Gross & Livingston, supra note 144, 1413-15. 146 Aziz, supra note 40, at 438. 147 Id.
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Moreover, the FBI diverts resources to map148 U.S. communities on account of religious, ethnic, and national-origin characteristics, isolate particular Muslim communities as “potential terrorist recruitment ground[s],” raising serious concerns about the relationship between counterterrorism enforcement and religious and political activity.149 When the government identifies Arabs and Muslims as the primary threat to national security, government-backed indoctrinations of religious profiling bolster discriminatory practices that target Arab and Muslim Americans. For instance, the Florida Police Department offered a class on counterterrorism for sixty police officers, in which the instructor informed the class how to identify fundamental (or extremist) Muslims. Without explaining the intricacies of the Muslim religion or the diversity of Muslim backgrounds, the instructor conveyed the opinion that ‘“Islam is a highly violent radical religion that mandates that all of the earth be Muslim.’”150 In the same vein of counterterrorism, the New York Police Department showed The Third Jihad, an anti-Muslim film promoting distrust in Muslim leaders and suggesting that Muslims are covertly raising a new era of Jihad in the West—i.e., a holy war, to almost 1,500 police officers. The film burgeons with fear depicting “Muslim terrorists shoot[ing] Christians in the head, car bombs explod[ing], executed children l[ying] covered by sheets[,] and a doctored photograph show[ing] an Islamic flag flying over the White House.”151 Hence,
148 Elver, supra note 24, at 21 (explaining a human mapping program that mapping means sending undercover officers, referred to as rakers, “into minority neighborhoods where Muslims reside as part of a human mapping program . . . [to] monitor the daily life of Muslims even while [Muslims] do ordinary things like shop in bookstores and visit cafes”); Diala Shamas & Nermeen Arastu, Mapping Muslims: NYPD Spying and its Impact on American Muslims, CUNY School of Law 7-11 (2013), http://www.law.cuny. edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf (reporting that the N.Y. Demographics Unit “mapped, photographed or infiltrated at least 250 mosques in the New York City and its surrounding areas . . . deem[ing] these places of worship ‘hot spots,’ with any activity in or around the mosques meriting surveillance”). 149 Aziz, supra note 40, at 438-39; Shamas & Arastu, supra note 148, at 7-11; see, e.g., Trevor Aaronson, FBI tries to deport Muslim man for refusing to be an informant, Miami New Times, (Oct. 8, 2009), http://www.miaminewtimes.com/2009-10-08/news/ unholy-war-fbi-tries-to-deport-north-miami-beach-imam-foad-farahi-for-refusing-to-be- an-informant/. For example, the FBI attempted to coerce Mr. Foad Farahi to become an informant in exchange for the FBI’s not pressing deportation charges. An Iranian and a Sunni Muslim, Mr. Farahi refused to spy on his congregation but ceded that he would be more than cooperative with the government, provided that his relationship with the FBI remain public. The FBI refused and placed Mr. Farahi in deportation proceedings. Id. 150 Aziz, supra note 40, at 477; Meg Stalcup & Joshua Craze, How We Train Our Cops to Fear Islam, Wash. Monthly (Mar/Apr 2011), http://www.washingtonmonthly. com/features/2011/1103.stalcup-craze.html (quoting instructor Sam Kharoba and explaining that the resources for counterterrorism is limited and police trainers have expressed reservations with this speaker as well as other speakers of a more militant background). 151 Aziz, supra note 40, at 477-78; Michael Powell, In Police Training, a Dark Film on U.S. Muslims, N.Y. Times (Jan. 23, 2012), http://www.nytimes.com/2012/01/24/ nyregion/in-police-training-a-dark-film-on-usmuslims.html?page wanted=all&_r=0 (reporting that some police officers raised the alarm regarding the film taking serious
417 Savannah Law Review [Vol. 2:2, 2015] both examples target all Muslims, and those perceived to be Muslim, in a discriminatory manner by treating the Islamic faith as a parasitic force sprawling across the country—some extreme views hold that Muslims are deserving of genocide if the Muslim population swells to overtake the United States.152 A more ubiquitous and immediate example of racial profiling at work within the Muslim community is law enforcement’s resort to informants colloquially known as “mosque crawlers.” These informants, some of whom “boast suspect or downright criminal pasts,” 153 are tasked with “search[ing out] vulnerable young men fitting a religious profile.”154 And while the use of informants within the law enforcement context is far from novel, the exaggerated position they now occupy, and the degree in which they are relied upon within these ranks is remarkable.155 At the time of this writing and amidst the growing concerns over the gaps existing in its current policy, sources anticipate the Justice Department will expand its prohibition against racial profiling to include religious and ethnic profiling. 156 As it sits, the policy excludes religion and ethnicity from its coverage.157 According to the L.A. Times, the source that broke the story, “[t]he long-awaited policy will not include an exemption for national security investigations,”158 which leaves unclear how substantial an effect this policy will actually have on the Muslim community. Equally uncertain is what, if any, impact, this will have on state and local policy.159 The evils of racial profiling, of course, permeate throughout all levels of law enforcement, not simply the federal level, as exemplified by a “secretive program” instituted by the NYPD in 2003, to survey and infiltrate the Muslim community.160 Under the auspices of security, countless well-meaning Muslims offense to the slanderous misrepresentation of Islam); The Third Jihad (Public Scope Films 2008). 152 See Stalcup & Craze, supra note 150. 153 Aziz, supra note 40, at 443-44. For instance, an informant paid by the FBI to feign his conversion to Islam in order to infiltrate mosques and instigate terror plots among Los Angeles Muslim communities displayed such aggressive tactics that the targeted Muslims actually reported him to the FBI as a possible terrorist. Id. 154 Id. Some of the “Mosque Crawlers’” other duties include: reporting on sermons; scrutinizing imams; and gathering intelligence about cab drivers, food cart venders, or any other primarily Muslim occupation. Elver, supra note 24, at 171-72. 155 Aziz, supra note 40, at 443. (“Compared to 1500 informants in 1975 and 2800 in 1980, reports indicate that there are now 15,000 FBI informants, whose tasks are driven to a large extent by racial and religious profiling.”). 156 Timothy M. Phelps, Justice Dep’t to Ban Profiling by Federal Law Enforcement, L.A. Times (Sept. 26, 2014), http://www.latimes.com/nation/la-na-0927-holder- profiling-20140927-story.html. 157 Aziz, supra note 40, at 438. 158 Phelps, supra note 156. 159 Id. (noting that “[i]t will probably not extend to local law enforcement, as advocated by Sen. Benjamin Ll Cardin (D-Md.)”). 160 Matt Apuzzo & Joseph Goldstein, New York Drops Unit That Spied on Muslims, N.Y. Times, (April 15, 2014), http://www.nytimes.com/2014/04/16/nyregion/ police-unit-that-spied-on-muslims-is-disbanded.html?_r=0. The myth of racial profiling as an effective form of policing is influenced and bolstered by various forms of
418 Muslim Community Reparations were subjected to invasive surveillance and scrutiny in their places of worship and as they went about their daily affairs, as undercover officers and informants combed through their community in search of indicia of suspicious activity.161 The group assigned to this operation, the “Demographics Unit,” “dispatched plainclothes detectives into Muslim neighborhoods to eavesdrop on conversations and built detailed files on where people ate, prayed, and shopped.”162 Ultimately, the program, through its intrusive tactics and categorical reliance on “ethnic, orientation, leadership, and group affiliation,” managed to narrow down an initial list of some 250 mosques to “fifty-three ‘mosques of concern.’”163 It should be noted that despite the expansive sweep of this program, not one of these, nor the collected effort itself, yielded any solid link to terroristic activity.164 As reported by the Associated Press, “the documents ‘paint the clearest picture yet of how the past decade’s hunt for terrorists also put huge numbers of innocent people under scrutiny as they went about their daily lives in mosques, restaurants and social groups.’”165
intradepartmental indoctrination targeting Muslims and identifying them as the primary threat to national security, such as training involving instruction that “Islam is a highly violent radical religion that mandates that all of the earth be Muslim.” Aziz, supra note 40, at 477. For example, “The Third Jihad, a film shown to over 1400 NYPD officers in 2010, claims that ‘[f]ew muslim leaders . . . can be trusted’ and that Muslims are engaging in jihad ‘covertly throughout the West today.’” Id. 161 Raza v. City of New York, 998 F. Supp. 2d 70, 76-87 (E.D.N.Y. 2013); Matt Apuzzo & Adam Goldman, Documents Show NY Police Watched Devout Muslims, (Sept. 6, 2011), http://www.ap.org/Content/AP-In-The-News/2011/Documents-show-NY- police-watched-devout-Muslims. The report surrendered by the NYPD disclosed that agents and informants had repeatedly targeted New York City mosques, restaurants, and other Muslim-owned businesses considered to be “security risks,” based on criteria such as “ endorsing conservative religious views or having devout customers.’” Id.; Aziz, supra note 40, at 443; Matt Sledge, NYPD Forced To Produce Muslim Surveillance Records, Huffington Post (Nov. 26, 2013, 11:22 AM), http://www.huffingtonpost.com/ 2013/11/25/nypd-muslim-surveillance_n_4339419.html. 162 Apuzzo & Goldstein, supra note 160. 163 Aziz, supra note 40, at 443-44. “Since 2002, the NYPD has spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim Student Associations in New Jersey.” Court Gives NYPD Green Light to Conduct Religious Surveillance, Ctr. for Const. Rts. (Feb. 20, 2014) [hereinafter Court Gives Green Light], http://ccrjustice.org/newsroom/press-releases/court-gives-nypd-green-light- conduct-religious-surveillance. Involved in this monitoring is “video surveillance, photographing, community mapping, and infiltration. Moreover, internal documents, including a list of 28 ‘ancestries of interest,’ reveal that the NYPD used racial and ethnic backgrounds as proxies to identify and target adherents to the Muslim faith. After more than a decade in operation, the surveillance program has produced not a single lead on terrorist activity.” Id. 164 Apuzzo & Goldstein, supra note 160. 165 Id.; Aziz, supra note 40, at 444.
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b. Voluntary Interviews The use of voluntary interviews represents another device the U.S. government uses as a pretext for terrorist investigation.166 Voluntary interviews contribute to various forms of harassment, further aggravating the terrorist other stigma associated with Muslim Americans. 167 Additionally, the government’s abusive use of this device weakened the trust between Muslim Americans and the U.S. government, largely because of the perceived fear that law enforcement will use the interview as a fishing expedition in the War on Terror as a basis for a material witness warrant.168 Between September 11, 2001, and November 9, 2001, the Attorney General authorized the Immigration and Naturalization Service (INS) to generate a list of 7,602 names of individuals who entered the U.S. legally on non-immigrant visas since January 2000, for the sole purpose of conducting voluntary interviews to support the government’s terrorist investigations. Meanwhile, another source alleges the list targeted 5000 men of ages ranging from of 18 to 33, even though the U.S. government reports only interviewing 3216 individuals of varying demographics from the Immigration and Naturalization Service’s list as of 2003.169 Moreover, whether the interview questions were aggressive or the circumstances of the interviews highly disruptive, the voluntary interviews implicitly suggested that Arabs and Muslims were presumably disloyal.170 This bias suggests to the Arab and Muslim communities that Arabs and Muslims are second-rate citizens, thus further marginalizing these communities.171 Worse, the
166 U.S. Gen. Acct. Off., Homeland Security: Justice Department’s Project to Interview Aliens after September 11, 2001 3-10 (2003) [hereinafter Interview Report], available at http://www.gao.gov/ new.items/d03459.pdf; see 18 U.S.C. § 3144; Harris, supra note 25, at 17 (defining the terrorist pretext as “laws meant for other situations and other purposes, but which could be pressed into service as an excuse to allow the government to detain and investigate persons suspected of terrorist involvement.”). 167 See, e.g., FBI Reaches Out to Community, ADC Reissues ‘Know Your Rights’ Advisory, American-Arab Anti-Discrimination Committee (2006) [hereinafter FBI Reaches Out to Community], http://www.adc.org/media/press-releases/ 2006/june-2006/fbi-reaches-out-to-community-adc-reissues-know-your-rights-advisory/. 168 18 U.S.C. § 3144 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (Kennedy, J., concurring); United States v. Awadallah, 349 F.3d 42, 49-75 (2d Cir. 2003); Harris, supra note 31, at 133-41; see, e.g., Mark Sherman, U.S. Citizen Recalls ‘Humiliating’ Post-9/11 Arrest, NBC News (Feb. 27, 2011, 9:21:29 AM), http://www.nbcnews.com/id/41808706/ns/us_news-crime_and_courts/t/us-citizen- recalls-humiliating-post--arrest/#.U_x_O_ldWMd (discussing al-Kidd’s detainment for allegedly pre-textual reasons and consequential issues after release); FBI Reaches Out to Community, supra note 167. 169Akram & Johnson, supra note 4, at 334 (noting that no evidence exists showing that any of these interviewees had been involved in terrorists activity and these interviews undoubtedly felt compulsory as opposed to voluntary); Evan Thomas & Michael Isikoff, Justice Kept In the Dark, Newsweek (Dec. 5, 2001), reprinted at http://www.bintjbeil. com/articles/en/011205_justice.html; Interview Report, supra note 166, at 3-10. 170 Akram & Johnson, supra note 4, at 335; see, e.g., Awadallah, 349 F.3d at 49-75. 171 Akram & Johnson, supra note 4, at 327-41.
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FBI approached some Muslims in the workplace for questioning, which created a demeaning setting and exacerbated the work environment by serving as the source of harassment, discrimination, suspicion from co-workers, or even termination.172 These broad sweeping tactics further perpetuate and bolster deeply held stereotypes of Arabs and Muslims as foreign and disloyal by seemingly confirming private suspicions and allowing law enforcement officials and judges breathing room for private biases.173 Voluntary interviews continue to plague the Muslim community and often result in severe consequences for many Muslims, who commonly do not understand their rights or appreciate the gravity of such interaction.174 Over the past years, the FBI has subjected thousands of individuals to voluntary interviews, which are arguably more coercive in practice. 175 Consequently, many Muslim Americans are highly cooperative to assist the FBI and consent to voluntary interviews with the FBI without legal representation but later face prosecution “for making false statements on issues unrelated to terrorism.”176 On the other hand, the voluntary interviews are riddled with a lack of legal protections as the interviewee assumes the risk talking with the FBI and becomes merely an involuntary informant in exchange to escape the terrorist label or “threat[s] of prosecution for false statements.”177 The FBI’s abuse of voluntary interviews has become notorious within the Arab and Muslim communities. Now, advocacy groups are reaching out to these communities and informing these communities to refuse voluntary interviews and seek legal representation.178
c. Community Outreach Particular offices contained within the Department of Justice, the FBI, and the Department of Homeland Security are responsible for conducting outreach to Muslim communities. Purportedly in an effort to address the concerns and establish a forum for constructive dialogue between law enforcement and Muslim community, these community outreach programs were set up as a reformative endeavor. Severe abuse, however, has resulted in the opposite effect. Instead of a tool of reform and reconciliation, these programs have been repurposed as
172 Aziz, supra note 15, at 40-41; see, e.g., Mary Beth Sheridan, Interviews of Muslims to Broaden, Wash. Post (Jul. 17, 2004), http://www.washingtonpost.com/wp- dyn/articles/A56080-2004Jul16.html. 173 Akram & Johnson, supra note 4, at 327-55; Aziz, supra note 15, at 50-69. 174 See, e.g., FBI Reaches out to Community, supra note 167; Joseph Goldstein, New York Police Recruit Muslims to Be Informers, N.Y. Times (May 10, 2014), http://www. nytimes.com/2014/05/11/nyregion/new-york-police-recruit-muslims-to-be- informers.html. 175 Aziz, supra note 40, at 442; Goldstein, supra note 174; Harris, supra note 31, at 141-57; Tariq A. Shah, Islam, Muslims and Terrorism: Secret Evidence and Guilt by Association, 10 Mich. St. U. Det. C. L.J. Int’l. 589, 598-601 (2001); Petra Bartosiewicz, To Catch a Terrorist: The FBI Hunts for the Enemy Within, Harper’s Mag. 38-39 (2011), http://harpers.org/archive/2011/08/to-catch-a-terrorist/. 176 Aziz, supra note 40, at 442. 177 Id.; Goldstein, supra note 174; Harris, supra note 31, at 141-57. 178 Aziz, supra note 40, at 442; see, e.g., FBI Reaches out to Community, supra note 167.
421 Savannah Law Review [Vol. 2:2, 2015] methods of reconnaissance and counterterrorism. 179 Quite apart from the insincerity of these programs, the distortion of reformation engendered by the manner in which the “outreach” is carried out may have decidedly thwarted its effectiveness and hopelessly desensitized the Muslim community to similar efforts moving forward.180
C. U.S. Immigration Policies Shun Muslims in America Immigration policies are particularly troubling because of the way in which those perceived as national security threats are singled out, and, in turn, strengthen negative stereotypes and popular prejudices. Through various immigration polices the government sends an unmistakable message that Muslims and Arabs are under suspicion and deserve a higher level of scrutiny than others. This further fractures a previously weak Muslim confidence of those in power and has institutionalized a policy of discrimination against Muslim and perceived Muslim immigrants on the basis of their name, race, religion, ethnicity, or national origin.181 Under U.S. immigration laws for deportation or removal, law enforcement officials do not need to prove criminality, but merely that the nonimmigrant is “out of compliance with [one’s] visa conditions . . . [such as] overstaying one’s visa.”182 Concurrently, the Immigration and Naturalization Service (INS) entered information for civil immigration violations—usually for overstays after one’s visa expired—into the National Crime Information Center database so that law enforcement would more than likely use this information as probable cause to make an arrest.183 Not only do these immigration policies ostracize the Muslim American community and engender a momentous distrust toward government, these policies also represent a significant failure of counterterrorism efforts and
179 Aziz, supra note 40 456-59. According to documents obtained by ACLU through freedom of information requests, “the FBI secretly recorded names and conversations at community meeting, religious dinners, and job fairs.” In fact, one particular document revealed “that an FBI agent ‘collected and documented individuals’ contact information and First Amendment-protected opinions and associations, and conducted internet searches to obtain further information about the individuals in attendance, including, in one instance, the photo of a dinner participant.’” Id. (quoting ACLU Eye on the FBI, Am. Civ. Liberties Union, (Dec. 1, 2011), https://www.aclu.org/files/assets/aclu_eye_on_the_fbi_alert_- _community_outreach_as_intelligence_gathering_0.pdf). 180 Aziz, supra note 40, at 458-59 (noting that “community leaders [have] resign[ed] themselves to the ineffectiveness of government outreach . . . [and that s]uch programs are perceived as nothing more than pro forma, political cover for the government in the face of allegations of systemic unlawful profiling.” Id. at 458. 181 Aziz, supra note 15 at 42. 182 8 U.S.C. § 1227(a)(1)(C)(i); Harris, supra note 25, at 18-19. 183 8 U.S.C. § 1253 (ascribing punishment for failure to depart with imprisonment up to 4 years or 10 years if a criminal); Id. § 1324d (ascribing punishment for failure to depart as a civil fine for $500 a day); Id. § 1326 (ascribing punishment for reentry after deportation of imprisonment from 2 to 20 years); Harris, supra note 25, at 27-28. Failure to respond to a removal or deportation proceeding is considered a felony with harsh sanctions, notwithstanding the nonimmigrant’s inadvertence.
422 Muslim Community Reparations conjure unpleasant images of excluding a particular group based solely on appearance or religion without any particularized suspicion.184 The negative consequences of this discriminatory targeting of American Muslim charities not only chills religious freedom, but also damages America’s credibility with respect to foreign relations. The widely propagated Muslim outreach initiatives hamper America’s foreign policy in the Middle East. 185 America’s credibility in foreign policy depends upon how Muslims abroad view America’s treatment of Muslims in America.186 The marginalization of Muslims in American sends the message that America lacks sincerity toward the Muslim community at large. 187 When the American government discriminates against Muslims at home, its democratic legitimacy is cast in doubt, which detracts from America’s standing in anti-discrimination, human rights, and the rule of law discourse internationally.
1. Absconder Apprehension Initiative The U.S. border security process serves four primary functions: “(1) issuing visas, (2) controlling entry, (3) managing stays, and (4) controlling exit.” 188 Another program known as the National Security Entry-Exit Registration System (NSEERS) imposed special registration requirements on nonimmigrants who posed “a national security or law enforcement risk, including the risk that the alien may violate the terms of his visa or exceed his authorized period of stay.”189 In 2002, the Deputy Attorney General released a memo regarding the Absconder Apprehension Initiative that used the Immigration and Naturalization Service to deport several thousands of non-citizens from the U.S. because those individuals came “from countries in which there has been Al Qaeda [sic] terrorist presence or activity.”190
184 Aziz, supra note 40, at 448. 185 Id. at 462. 186 Id. (including initiatives of the democratization projects, the defense of human rights, and the strengthening of civil society). 187 Id. 188 U.S. Gen. Acct. Off., Information Technology: Homeland Security Needs to Improve Entry Exit System Expenditure Planning 6-13 (2003), available at http://www.gao.gov/new.items/d03563.pdf. 189 Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 40581, 40582 (June 13, 2002) (to be codified at 8 C.F.R. pt. 214 & 264), http://www.gpo.gov/ fdsys/pkg/FR-2002-06-13/pdf/02-15037.pdf; see Akram & Johnson, supra note 4, at 342- 43. 190 Memorandum from the Deputy Attorney General, Guidance for Absconder Apprehension Initiative (Jan. 25, 2002), http://news.findlaw.com/hdocs/docs/ doj/abscndr012502mem.pdf; see Joo, supra note 1, at 36-38 (referring to hundreds of letters that the Federal Bureau of Investigation and other law enforcement agencies sent to Arabs and Muslims requesting a voluntary interview about September 11 and presenting no evidence to indicate the recipient’s involvement, if any); Volpp, supra note 35, at 1576-86; Lee, supra note 105, at 19. This list acts like a bill of attainder, the list of individuals who shared a common criteria: the individuals arrived to the U.S. from countries supposedly harboring al-Qaeda terrorist organizations irrespective of any actual affiliation with terrorism other than national or religious affiliations. But, does the
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Under NSEERS, the U.S. government identified men who share commonalities with the hijackers of September 11: young nonimmigrants on visas, of ages 14 and older, and from certain countries.191 NSEER focused on monitoring nonimmigrants from countries flagged for terrorist affiliations with al-Qaeda as follows: “Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq, Lebanon, Libya, Morocco, North Korea, Oman, Qatar, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan[,] and Kuwait.”192 If the nonimmigrant met a secret criteria according to the immigrations inspector, the immigration officer submitted the nonimmigrant to “fingerprint[ing], photograph[ing], and question[ing] by immigration officers.”193 Initiated in December 2001, by the Attorney General, NSEER required nonimmigrants to “appear before, register with, and provide requested information to the Immigration and Naturalization Service on or before January 10, 2003” according to nonimmigrants’ nationalities from countries deemed a threat to national security because of al-Qaeda presence or activity.194 In January of 2002, the Immigration and Naturalization Service conducted a mass arrest of nonimmigrants suspected of violating the terms of their visas: 6,000 men from the
profiling limit to merely a geographic region or include religious affiliations too? And at what point does one draw the line? The slippery slope becomes rather obvious in practice. See Whitehead & Aden, supra note 23, at 1129. 191 See Akram & Johnson, supra note 4, at 342-43 (including high profile terrorist activity or affiliations in Iran, Iraq, Libya, Sudan, and Syria as top priority); National Security Entry-Exit Registration System, Dep’t of Just. (June 5, 2002), http://www. justice.gov/archive/ag/speeches/2002/natlsecentryexittrackingsys.htm; Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. at 40582. 192 Akram & Johnson, supra note 4, at 342; U.S. Terminates Re-registration Requirements for Visitors, IIP Digital (Dec. 2013), http://iipdigital.usembassy.gov/ st/english/texttrans/2003/12/20031202192511awajuka0.9966852.html#axzz3Bvxkp5qy. 193 See Ibish, supra note 69, at 26-27 (discussing the transition from NSEERS and US-VISIT stating that “many elements remain and are subject to abuse, including: departure registration, registration at ports of entry, as well as the potential for the re- initiation of domestic ‘call-ins’ and enforcement action based on information collected through the program”); Lisa Seghetti, Cong. Res. Serv., R43356, Border Security: Immigration Inspections at Ports of Entry 7, 18, 26-28 (2014), available at http://fas.org/sgp/crs/homesec/R43356.pdf (describing requirements for nonimmigrant visas still remain largely unchanged and “[v]isa applicants are required to submit biographic and biometric data, and usually must participate in an in-person interview . . . [as well as] physical and mental examinations[,]” if necessary). Lawful permanent residents and U.S. citizens continue to face such fingerprinting, photographing, and questioning each time a citizen returns to the U.S. from travel overseas. Ibish, supra note 69, at 15; but see Removing Designated Countries from the National Security Entry-Exit Registration System (NSEERS), 76 Fed. Reg. 23830 (Apr. 28, 2011), http://www.gpo.gov/fdsys/pkg/FR-2011-04-28/pdf/2011- 10305.pdf (retiring the program as a duplicated process). 194 Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 70526 (Nov. 22, 2002), http://www.gpo.gov/fdsys/pkg/FR-2002-11-22/pdf/02- 29958.pdf.
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Middle East faced removal for ignoring deportation orders. 195 Whether these 6,000 men received proper notice—a Notice to Appear—of these proceedings is another matter. The NSEER’s call-in program stirred the most controversy requiring legally admitted nonimmigrants to do as follows: (1) re-register with INS on the sole basis of nationality from twenty-five countries of Arab or Muslim (or both) affiliations; and (2) “report to immigration offices around the country for fingerprints, photographs, and lengthy questioning by officers.”196 As of September 3, 2003, 117,260 nonimmigrants complied by registering in this NSEER program, but roughly 13,000 to 14,000 individuals were still placed in removal proceedings.197 Meanwhile, less than one percent of every 140,000 registrants (.008%) had a connection to terrorism.198 Arguably, the call-in program served as a pretext for terrorist investigations to detain additional, possible suspects after baiting suspects into a re-registration program. This program fed nonimmigrant information into a biometric database to support future counterterrorism efforts in the War on Terror. In contrast, NSEER also served as a pretext for terrorist investigation based on one’s
195 Akram & Johnson, supra note 4, at 342; Dan Eggen, Interrogations to Begin Soon for Illegal Mideastern Aliens, Wash. Post (2002), reprinted in The Tech, Feb. 8, 2002, at 2, available at http://tech.mit.edu/V122/PDF/V122-N2.pdf; Muzaffar A. Chishti et al., America’s Challenge: Domestic Security, Civil Liberties, and National Unity After September 11, Migration Pol’y Inst. 22 (2003), available for download at http://migration policy.org/research/americas-challenge-domestic-security-civil-liberties-and-national- unity-after-september-11. 196 See Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584, 52585 (Aug. 12, 2002) (to be codified at 8 C.F.R. 214 & 264, http://www.gpo.gov/ fdsys/pkg/FR-2002-08-12/pdf/02-20642.pdf; Ibish, supra note 69, at 26-27. 197 U.S. Changes National Security Entry/Exit Registration System, IIP Digital (Dec. 2003), http://iipdigital.usembassy.gov/st/english/article/2003/12/ 20031201191333atarukp0.23547.html#axzz3hKB6NFE8; Thomas R. Eldridge et al., 9/11 and Terrorist Travel, National Commission on Terrorist Attacks Upon the United States 157-60 (2004), http://govinfo.library.unt.edu/911/ staff_statements/911_TerrTrav_Monograph.pdf; Ibish, supra note 69, at 26-27. Although the goal of special registration under NSEERS was to track terrorist activity in the U.S., the NSEERS program served more as a law enforcement tool “against those who were found to be in violation of immigration or other laws when nonimmigrants sought to register or who violated program rules by, for example, failing to register at all.” Eldridge, supra note 197, at 157. Moreover, the NSEER program harmed U.S. foreign relations abroad and on the home front because of the perceived injustices from targeting a group of people on a racial, national, or religious basis. The NSEERS program was counterintuitive deporting nonimmigrants who complied with the program thus disincentivising other nonimmigrants to comply with the program in the future. Ibish, supra note 69, at 26-27. The punitive nature of this program also damaged critical relationships and trust between law enforcement and immigrant communities in the U.S.—“a relationship that is vital to the national security of the United States and the safety of those communities.” Id. at 27. 198 Eldridge, supra note 197, at 159-60.
425 Savannah Law Review [Vol. 2:2, 2015] nationality instead of establishing and confirming immigration violations that led to further detentions and failed to produce any arrests for terrorist crimes.199
NSEERS Statistics as of September 3, 2003200 Total Number of Registrations: 290,526 Total Number of Individuals Registered: 177,260 Port-of-Entry Registration 207,007 Total Port of Entry Registration: Number of Individuals: 93,741 Domestic Registration 83,519 Total Domestic Registrations: Referred to Investigation 13,799 Notices to Appear Issued: Total Number Removed/Deported: 13,000 Total Number Detained: 2,870 Total Number In Custody: 23 Total Number of Criminals: 143
In December of 2013, the U.S. government terminated NSEER affecting 177,260 registered nonimmigrants and replaced the program with the United States Visitor and Immigrant Status Indicator Technology program (US-VISIT) as an automated entry-exit system that used biometrics to monitor nonimmigrants entering or exiting the U.S.—the focus being primarily on individuals instead of nationalities.201 A decade later, US-VISIT never produced the biometric tracking component for monitoring visa overstays and the Department of Justice subsumed this program into the Department of Homeland Security in 2013.202 Today, the U.S. government uses Arrival and Departure Information System (ADIS), which is a hybrid approach that collects and stores “biographic entry data (e.g., name, date of birth, travel history) from almost all non-citizens entering the
199 Thomas M. McDonnell, Targeting the Foreign Born by Race and Nationality: Counter-Productive in the “War on Terrorism”?, 16 Pace Int’l L. Rev. 19, 30-34 (2004). 200 Press Release, U.S. Department of Homeland Security, Fact Sheet: Changes to National Security Entry/Exit Registration System (NSEERS) (Dec. 1, 2003) (on file with Savannah Law Review); Thomas R. Eldridge et al., National Commission on Terrorist Attacks, 9/11 and Terrorist Travel: Staff Report of the National Commission on Terrorist Attacks Upon the United States 157-60 (2004), available at http://govinfo.library.unt.edu/911/staff_statements/ 911_TerrTrav_Monograph.pdf. 201 U.S. Terminates Re-registration Requirements for Visitors, IIP Digital (Dec. 2013), http://iipdigital.usembassy.gov/st/english/texttrans/2003/12/2003120219251 1awajuka0.9966852.html#axzz3Bvxkp5qy; Sam Dolnick, A Post-9/11 Registration Effort Ends, but Not Its Effects, N.Y. Times (May 30, 2011), http://www.nytimes.com/ 2011/05/31/nyregion/antiterrorism-registry-ends-but-its effects remain.html?_r=1. 202 Zach Rausnitz, US-VISIT Reorganized But Not Diminished, DHS Official Says, Fierce Homeland Security (Aug. 26, 2013), http://www.fiercehomeland security.com/node/89463/print.
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United States, but only collects biometric data (e.g., fingerprints and digital photographs) from non-citizens entering at air or seaports.”203
2. Student Visas In 2001, 741,921 students on visas comprised 3.4 percent of the total 32,824,088 nonimmigrants in the U.S. who were admitted legally.204 Because two of the hijackers from September 11 had student visas, foreign students became the targets of governmental scrutiny under the guise of visa-related matters.205 In the fall of 2001, the FBI singled out Arab and Muslim students in American universities, which accounted for many of the nonimmigrants selected for questioning between the ages of 18 to 33 years old.206 Consequently, some of these students returned home, deserting an educational pursuit in the middle of the school year, rather than risk questioning by the FBI under the pretext of voluntary interviews.207 However, because of the small percentage of student visas, comprising less than 4 percent of total visas issued annually, some critics denounce the U.S. government for targeting foreign students and stigmatizing foreign students as terrorists that will backfire in future foreign affairs.208 The following table shows the percentage of student visas over thirteen years amounting to an average of 2.8 percent of the total visas issued annually:
203 Seghetti, supra note 193. 204 Off. of Immigration Statistics, Dep’t of Homeland Sec., 2009 Yearbook of Immigration Statistics 63-66 (2010), available at http://www. dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf. 205 DOJ Orders Incentives, ‘Voluntary’ Interviews of Aliens to Obtain Info on Terrorists, 78 No. 46 Interpreter Releases 1816, 1816, 1819-20 (2001); James H. Johnson, Jr., U.S. Immigration Reform, Homeland Security, and Global Economic Competitiveness in the Aftermath of the September 11, 2001 Terrorist Attacks, 27 N.C. J. Int’l L. & Com. Reg. 419, 438-49 (2002); Susan Sachs, Under Fire, I.N.S. Begins Rolling Out a New Database to Track Foreign Students, N. Y. Times (Jun. 22, 2014), http://www.nytimes. com/2002/06/22/nyregion/under-fire-ins-begins-rolling-out-a-new-database-to-track- foreign-students.html. Misinformation spread regarding many or all hijackers obtaining student visas, which is not the case. Only two hijackers obtained student visas; fourteen obtained six-month tourist visas; and four obtained business visas. Two hijackers later changed the status of the visas to vocational visas. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report 162-69, 176-82, 238-39 (2004). 206 Sachs, supra note 205; see Interview Report, supra note 166, at 7 (discussing the U.S. government’s criteria to target demographics similar to the hijackers of September 11 as: (1) men who entered the U.S. on a nonimmigrant visa after January 1, 2000; (2) men who were citizens from one of the 15 countries identified by intelligence to having al-Qaeda terrorist presence or activity; and (3) men of the age between 18 and 33 years old); Lee, supra note 105 at 21. 207 See Lee, supra note 105, at 21; Sachs, supra note 205. 208 Flávia R. da Silva-Benson, New United States Immigration Policies and How the Curtailment of Student Visas Will Affect the Interests of Diversity in American Society, 38 New Eng. L. Rev. 807, 839 (2004).
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Student Visas209 Year Student Visas Percentage Total Visas (I-94) 2013 1,669,225 2.7% 61,052,260 2012 1,653,576 3.1% 53,887,286 2011 1,788,962 3.4% 53,082,286 2010 1,595,078 3.4% 46,471,516 2009 951,964 2.6% 36,231,554 2008 917,373 2.3% 39,381,928 2007 841,673 2.3% 37,149,651 2006 740,724 2.2% 33,660,320 2005 663,919 2.1% 32,003,435 2004 656,373 2.1% 30,781,330 2003 662,966 2.4% 27,849,443 2002 687,506 2.5% 27,907,139 2001 741,921 3.4% 32,824,088 2000 699,953 2.0% 33,660,320
While normally student records are confidential under the Family Educational Rights and Privacy Act of 1974,210 the USA Patriot Act overrides student privacy and requires “automatic disclosure of educational records to federal law enforcement authorities upon an ex parte court order based only upon certification that the educational records may be relevant to an investigation of domestic or international terrorism.”211 Essentially, the federal government has sweeping authority to obtain all educational records for aliens holding a student visa.212 In the fall of 2001, the FBI reached out to over 200 universities or colleges to obtain information and later approach students for questioning.213 When the U.S. government uses such discriminatory and intimidating tactics, the long-term harm will more than likely cause foreign students to opt out of America’s higher education.214 Ultimately, by excluding foreign students to reach
209 Katie Foreman and Randall Monger, Nonimmigrant Admissions to the United States: 2013 3 (2013), available at http://www.dhs. gov/sites/default/files/publications/ois_ni_fr_2013.pdf; Office of Immigration Statistics, 2009 Yearbook ofImmigration Statistics 63-75 (2009), available at https://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_ 2009.pdf. 210 20 U.S.C. § 1232g (2013). 211 USA Patriot Act, 115 Stat. at 367-68; Whitehead & Aden, supra note 23, at 1132. 212 Whitehead & Aden, supra note 23, at 1132. 213 Matthew Purdy, Bush’s New Rules to Fight Terror Transform the Legal Landscape, N.Y. Times (Nov. 25, 2001), http://www.nytimes.com/2001/11/25/politics/25LEGA. html?pagewanted=1. 214 As of July 2014, two of every three foreign student are from Asia, ranking China (with 25 percent) the largest percentage of students, followed by India, South Korea, India, and Saudi Arabia. More than a third of foreign students (35%) study in California, New York, and Texas, and almost two of every three foreign students (72%) enroll in higher education. U.S. Immigr. & Customs Enforcement, Student and Exchange Visitor Information System: SEVIS by the Numbers-
428 Muslim Community Reparations a small percentage of Arab or Muslim students, these policies will destroy “diplomatic relations among nations and create[] hostility . . . [instead of] develop[ing] the understanding and respect that is achieved through diversity [of] education.”215
3. Long Term Delays in Naturalization To become a citizen, a person must meet the requirements under the Immigration and Nationality Act, which include: “sufficient period of physical presence in the United States, good moral character, an understanding of the English language, and some knowledge of the history and government of the United States.” 216 Currently, the Muslim community suffers from long-term delays in naturalization and adjustment petition processing, which deprive Muslims of many of the protections, comforts, and services that come with citizenship. This barrier to gaining legal status within American society further ostracizes the Muslim community in an unwelcome environment. Under federal law, the U.S. Citizenship and Immigration Services (USCIS) is required to grant or deny citizenship within 120 days of an applicant’s examination.217 Nonetheless, between 2006 and 2007, the American-Arab Anti- Discrimination Committee (ADC) filed 86 naturalization delay complaints with the Department of Homeland Security, Office for Civil Rights and Civil Liberties.218 Delays described in the report surpassed the 120-day requirement and, in some instances, delays were as long as four to five years.219
General Summary Quarterly Review July 2014 2, 10-11 (2014), available at https://www.ice.gov/doclib/sevis/pdf/by-the-numbers.pdf. 215 da Silva-Benson, supra note 208; Lee, supra note 105, at 21 (explaining that discriminating immigration policies regarding student visas may curtail the Arab preference for American higher education, a trend that has endured since the 1960’s). Cultural, ethnic, and religious diversity in higher education is of great and powerful importance, especially at times when non-Arab and Muslim Students’ fears and prejudices are on the rise in relation to counterterrorism efforts. 216 8 U.S.C. §§ 1423 & 1427(a) (2012); Jennie Pasquarella, Am. Civ. Liberties Union of S. Cal., Muslims Need Not Apply 12 (2013), available at https://www.aclusocal.org/CARRP/ (last visited Nov. 30, 2014). 217 See 8 U.S.C. § 1447(b) (2012); Ibish, supra note 69, at 32. But see 8 U.S.C. § 1571(b) (2012) (stating that “an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition”). 218 Ibish, supra note 69, at 32 (“For every individual who follows through with filing a complaint through ADC, three to four individuals contact [ADC] about naturalization delays but do not wish to file complaints, thus the number of individuals approaching [the] ADC with this problem is in the hundreds.”). 219 Id. (referring to “delays [in expanded security checks] deny individuals a legal status that facilitates that enjoyment of many including, the right to vote, the right to file immigrant petitions for family relatives, the right to obtain a U.S. passport, and the right to freely enter and exit the country, among others”); Jennifer Kim et al., Ctr. for Human Rts. & Global Just., NYU School of Law, Americans on Hold: Profiling, Citizenship, and the “War on Terror” 2-6 (2007),
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Many of these delays are likely attributable to a secret program instituted in 2008, in an effort to monitor the immigration and naturalization process for individuals thought to pose “national security concerns.” 220 Under the Controlled Application Review and Resolution Program (CAARP), the USCIS (with the assistance of the FBI) can delay, potentially indefinitely, or deny an applicant based on vague and broadly worded criteria without any notice or explanation to the applicant. 221 As an application winds its way through the veritable obstacle course imposed under this program, it is constantly confronted with hurdles and barricades erected by related discriminatory governmental practices and polices, as well as the CARRP program itself. If an applicant’s name is found on the “terrorist watch list,” the applicant is labeled a “Known or Suspected Terrorist” and is summarily placed on the “CARRP track.”222 The ominous label of “national security concern” can attach from conduct as seemingly innocuous as “travel[ing] through or [having] liv[ed] in areas of known terrorist activity, wir[ing] money back to their families, attend[ing] a mosque of interest to the FBI or even giv[ing] a voluntary interview to the agency . . . .”223
4. Airline Discrimination from the FBI’s Terrorist Screening Center Since September 11, Muslims, and those perceived to be, have experienced discrimination from airlines while traveling, whether at points of ingress and egress or during international travel. Under the Aviation and Transportation Security Act of 2001, 224 the Transportation Security Administration (TSA) is responsible for “securing all modes of transportation, including commercial aviation . . . [and] ensuring that all commercial air carrier passengers are prescreened against government terrorist watch lists prior to boarding an
available at http://chrgj.org/wp-content/uploads/2012/07/AmericansonHold Report.pdf. 220 Pasquarella, supra note 216, at 1. Under the program, “national security concern” is defined broadly “as an individual with a ‘link to prior, current, or planned involvement in, or association with, an activity, individual or organization described in [the security and terrorism sections] of the Immigration and Nationality Act,’ but then further expands the breadth and vagueness of that definition by explicitly instructing officers to ignore the legal standards of proof set forth in those sections of the Act.” Id at 2. 221 Pasquarella, supra note 216, at 1; see also Karen McVeigh, FBI Granted Power to Delay Citizenship for Muslims, ACLU Report Says, The Guardian, (May 29, 2014 3:10 PM), http://www.theguardian.com/world/2013/aug/21/fbi-power-delay- citizenship-muslims-aclu. 222 Pasquarella, supra note 216, at 18. Due to the unreliability and over breadth of this list, as discussed elsewhere, hope of the “American Dream” for many in the Muslim Community is dashed through no fault of their own. See id. at 39 (noting that “USCIS’S reliance on the Terrorist Watch List . . . to identify applicants that pose a ‘national security concern’ leads to the unjustified misidentification of many immigrants as ‘concerns.’”). 223 McVeigh, supra note 221; Pasquarella, supra note 216, at 1-5, 9-10. 224 Aviation and Transportation Security Act of 2001, Pub. L. No. 107-71, 115 Stat. 597 (2001).
430 Muslim Community Reparations aircraft.” 225 Often, Muslims face “inexplicably prolonged stops, and the apparently arbitrary nature of many detentions and delays.”226 Based on a certain, undisclosed criteria, the FBI has created a blacklist identifying and nominating possible terrorist threats in the airline industry that pertains to two subset lists: (1) the No-Fly list, and (2) the Selectee list.227 The No- Fly list prohibits certain individuals from boarding an aircraft, whereas the Selectee list requires additional screening before being cleared to board.228 Both lists act more like a Venus flytrap for Muslims in America when traveling within the United States or abroad.229 First, the TSA required airline compliance with reporting or checking individuals on these lists according to the discretionary profiling of airline or airport personnel in relation to the airport’s security.230 Maintained by airlines, the effect of these lists on the Muslim community is comparable to the “driving- while-black” dilemma that results from law enforcement’s use of racial profiling when pulling over African Americans for drug searches.231 That is, the driving- while-black dilemma is to the War on Drugs what the flying-while-Muslim is to the War on Terror. However, the impact of the No-Fly and Selectee lists was broader because airline and airport personnel could use religious and racial profiling when denying or removing a passenger from the passenger’s flight.232
225 Off. of the Inspector Gen., U.S. Dep’t of Justice, OIG-09-64, Role of the No Fly and Selectee Lists in Securing Commercial Aviation (2009) [hereinafter No Fly and Selectee Lists], available at http://www.oig.dhs.gov/assets/Mgmt/OIGr_09-64_Jul09.pdf. 226 Ibish, supra note 69, at 18. 227 Id. at 20. 228 Id. 229 49 U.S.C. § 114 (requiring the Transportation Security Administration to report “individuals identified on Federal agency databases who may pose a risk to transportation or national security”); Aaron H. Caplan, Nonattainder as a Liberty Interest, 2010 Wis. L. Rev. 1203, 1240-59 (2010). 230 49 U.S.C. § 114 (requiring the TSA to report “individuals identified on Federal agency databases who may pose a risk to transportation or national security”); Caplan, supra note 229, at 1240-59. 231 See Yvonne R. Davis, “Flying While Arab” Continues to Soar, Huffington Post (April 16, 2009, 5:12 AM), http://www.huffingtonpost.com/yvonne-r- davis/flying-shile-arab-continu_b_174367.html. 232 Steuter & Wills, supra note 50, at 192-93; compare Sharon L. Davies, Profiling Terror, 1 Ohio St. J. Crim. L. 45, 57-60 (2003) (referencing discrimination against African Americans in the driving while black scenario “when an officer’s decision of whom to stop and question for suspected criminal activity proceeds from the individual’s race or ethnicity itself”), with Caplan, supra note 229, at 1240-59 (discussing the blacklisting of Arab or Muslim Americans, or those perceived to be, on the No-Fly list that allows impermissible racial, religious, and ethnic profiling of individuals to prevent those individuals from flying). Individuals wearing headwear, such as turbans, hijabs, or headscarves were subjected to more searching and screening than others based on racial and religious profiling by airlines. Ibish, supra note 69, at 15-16. For Muslims, as well as other religious groups, this trend raises potential issues of both modesty and suspicion based solely on protected religious practice. See id. This policy also raises troubling First Amendment issues since wearing religious headwear represents an exercise of religion for certain religious sects the removal of which is interference of free exercise. See id.; Top
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Second, these lists cause hindrances largely due to false-positives since the Terrorist Screening Database is notorious for including “erroneous identities and often [ ] incomplete information.”233 These lists include some names for which a legitimate basis exists, but broadly sweeps many other innocent people for whom insufficient foundation exists.234 For instance, common names such as Gary Smith and John Williams were found on a copy of the No-Fly list obtained by 60 Minutes.235 According to the Office of Inspector General, in 2007, the FBI and other agencies used inconsistent methods “in selecting names to be placed on the watch list.”236 Now, under the Secure Flight Program, the TSA bears responsibility for dictating to airlines who is on the No-Fly or Selectee list.237 But, these lists were not necessarily screened against the full Terrorist Screening Database managed by Terrorist Identities Datamart Environment (TIDE) with the U.S. National Counter-Terrorism Center.238 As of 2013, the TIDE list includes over 875,000 names with supposedly less than one percent, or 9,000 names, being U.S. citizens or legal permanent residents.239 Even more troubling, evidence has come to light showing that the government was using these lists as a sort of leverage by which to force individuals into becoming informants.240
Democrat Slams Govt for ‘Discrimination’ of Sikhs, Econ. Times (Sept. 13, 2007, 9:20 AM), http://articles.economictimes.indiatimes.com/2007-09-13/news/27682897_ 1_sikh-americans-tsa-turban. 233 Ibish, supra note 69 at 20-21. 234 See, e.g., id., at 22. Some citizens cannot escape repeated ensnarement in the government sweep. Asif Iqbal, the name of a former Guantanamo detainee, is presumably a legitimate name to be on the list (though he was released presumably because of lack of evidence of terror involvement), which is unfortunate for a Rochester, New York management consultant who shares his name and flies weekly to Syracuse for business. Id. 235 60 Minutes (CBS television broadcast Jun. 10, 2007); Ibish, supra note 69, at 21. 236 No Fly and Selectee Lists, supra note 225, at 3-5; Ibish, supra note 69, at 21 (reporting commentary by American Civil Liberties Union Senior Legislative Counsel, Tim Sparapani, who states “‘[i]f finding a terrorist is like finding a needle in a haystack, the Terrorist Screening Center has been hard at work creating a bigger haystack, by adding thousands of new names with no end in sight [but t]he terrorist watch list is not a serious security tool [and a]t the rate it’s been growing, eventually all 300 million Americans will be on the terrorist watch list’”). 237 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004); No Fly and Selectee Lists, supra note 225, at 3-5; Transportation Security Administration, Secure Flight Program (June 7, 2014), http:// www.tsa.gov/stakeholders/secure-flight-program. 238 See No Fly and Selectee Lists, supra note 225, at 3-5. 239 Shaun Waterman, Terror Watch List Grows to 875,000, Wash. Times (May 3, 2013), http://www.washingtontimes.com/news/2013/may/3/terror-watch-list-grows- 875000/?page=all. 240 Ramzi Kassem & Baher Azmy, Spying or No Flying?, Al Jazeera (May 7, 2014, 13:35 PM), http://www.aljazeera.com/indepth/opinion/2014/05/spying-no-flying- 201457125644834437.html (reporting that the Centers for Learning on Evaluation and Results (CLEAR) and the Center for Constitutional Rights “sued US federal agents, officials and agencies last week on behalf of four American Muslim men with no criminal records who were approached by the FBI in an effort to recruit them as informants . . . [as o]ne of them was asked if he would go to online Islamic forums and ‘act extremist,’ while
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These discriminatory policies have continued long after the aftermath of September 11. In 2010, the TSA promulgated a policy that called for enhanced screening for individuals “from and traveling through thirteen Arab and Muslim Countries and Cuba.” 241 Not only do these discriminatory practices cause unnecessary delay or cancelation of important flights, they raise troubling First and Fourth Amendment concerns. 242 Moreover, this kind of unfettered discrimination perpetuates the public’s fear of Muslims flying based on unfounded stereotypes and general uneasiness associated with September 11 Muslim terrorists.243
III, Counterterrorism Acting Under the Color of National Security Terrorism thrives in countries without democracy or the rights and privileges to enjoy freedom from the tyranny of despotism. Osama bin Laden’s strategy depends upon destroying that which makes the United States uniquely independent: democracy and capitalism. September 11 was psychological, guerrilla warfare that incited blind rage in Americans to (1) retaliate against the Muslim nation; (2) persecute Muslims, or those perceived to be Muslim, who are unaffiliated with September 11; (3) undermine the very foundation of the United States’ government; and (4) upend the U.S. justice system for all by marginalizing Muslims. Well over a decade after September 11, Osama bin Laden has won. Since September 11, the continual peppering of terrorism by Muslims waging a military Jihad ignites a retaliatory backlash against the Muslim community at large. Muslims in America are in a constant state of risk, subject to the terrorist other stigma and its consequences. These risks will only reoccur and intensify given the unfortunate propensity and inevitability of terrorist attacks in the United States. This lone-wolf terrorist effect is merely the reincarnation, the dead-hand specter, of Osama bin Laden. Ultimately, effective counterterrorism will require the U.S. government to honor the tenets of democracy for Muslims in America.
another was asked whether he would travel to Pakistan for the FBI [a]nd the agents don't[sic] beat around the bush [a]s one agent told our client who had turned to his elected representatives for assistance: ‘The Congressmen can’t do shit for you; we’re the only ones who can take you off the list’”). 241 Mike Ahlers, TSA, Enhanced Screening for People Flying to U.S. from Certain Nations, CNN (Jan. 3, 2010), http://www.cnn.com/2010/TRAVEL/01/03/tsa.measures/ index.html; Aziz, supra note 15, at 41. 242 See Charu A. Chandrasekhar, Flying While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, 10 Asian L.J. 215, 220-27 (2003); Caplan, supra note 229, at 1206, 1242 (2010). 243 See Chandrasekhar, supra note 242, at 220-27; Mussarat Khan & Kathryn Ecklund, Ph.D., Attitudes Toward Muslim Americans Post-9/11, 7 J. Muslim Mental Health 1, 7 -14 (2012), http://hdl.handle.net/2027/spo.10381607.0007.101; Aziz, supra note 15, at 41, 47.
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A. Judicial Policy Supports Terrorist Other Stigma in the Name of National Security Legally, national security represents sufficient justification for a “compelling state interest” so as to prevail under strict scrutiny against claims of racial discrimination by Muslims and to overcome equal protection rights under the Fourteenth Amendment. 244 Historically, the courts have deferred almost exclusively to Congress when it comes to matters of national security.245 Rather, recognizing the constitutional authority granted Congress and the Executive during times of crisis, courts express hesitance to substitute its judgment for that of the other two branches.246 Moreover, the courts possess and utilize a litany of other means of disposing seemingly legitimate claims from the Muslim community even when not expressly deferring to the Legislature. These include: the states secrets privilege, 247 qualified immunity, 248 the special factors
244 Elver, supra note 24, at 157. 245 See Holder v. Humanitarian Law Project 561 U.S. 1, 34 (2010) (quoting Rostker v. Goldberg, 453 U.S. 57, 68 (1981) (noting that “when it comes to collecting evidence and drawing inferences in [the national security context], ‘the lack of competence on the part of the courts is marked,’ and respect for the Government’s conclusions is appropriate”)). 246 Hirabayashi v. United States, 320 U.S. 81, 93 (1943) (Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Where . . . the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”); Humanitarian Law Project, 561 U.S. at 34 (quoting Rostker, 453 U.S. at 68 ) (“It is vital in [the national security] context ‘not to substitute . . . our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.’”) 247 See El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (affirming dismissal of plaintiff’s claim that he was illegally detained as part of the CIA’s “extraordinary rendition” program, tortured, and subjected to inhumane treatment because, if allowed to proceed, the case “posed an unreasonable risk that privileged state secrets would be disclosed”). 248 See Ashcroft v. al-Kidd, 131 S. Ct. 2074 (finding that then-Attorney General John Ashcroft was shielded from liability under the doctrine of qualified immunity in an action challenging the constitutionality of a policy instituted by Ashcroft allowing the use of material witness orders as a pretext for detention and investigation of individuals suspected of terroristic activity).
434 Muslim Community Reparations exception, 249 the special needs exception, 250 and standing. 251 In other words, whether disposition of cases brought by those harmed by post-September 11 practices and policies under the auspices of counterterrorism ultimately is cast in terms of deference, or the cases are dismissed on some other ground, the result is the same—the victim is left without a remedy in the courts. One may also posit that law enforcement officials’ use of improper legal tactics creates a de facto bill of attainder for Muslim Americans using racial and religious profiling–which is expressly prohibited under the Constitution.252 Under the Bill of Attainder Clause of the United States Constitution, Congress may not summarily punish an individual or class of individuals through a legislative act.253 By extension, it should not be permitted to sidestep this constitutional requirement by delegating such authority to the Executive Branch. Indeed, despite its inclusion in Article I of the Constitution, which concerns the powers and limitations of the legislative branch and the use of the term “bill,” persuasive authority exists for the proposition that the Bill of Attainder clause has a much broader application. 254 Yet, through the various governmental watch lists
249 Arar v. Ashcroft, 585 F.3d 559, 565 (2nd Cir. 2009) (holding that “when a case presents the intractable ‘special factors’ apparent here . . ., it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for judges—to decide whether an individual may seek compensation from government officers”). 250 Cassidy v. Chertoff, 471 F.3d 67, 82 (2nd Cir. 2006) (finding that “the prevention of terrorist attacks on large vessels engaged in mass transportation and determined by the Coast Guard to be at heightened risk of attack constitutes a ‘special need[,]’” warranting application of the special needs doctrine against passengers Fourth Amendment challenge to suspicionless search). 251 Mayfield v. United States, 599 F.3d 964, 972-973 (9th Cir. 2010) (holding that Mayfield and his family lacked standing to pursue a constitutional challenge to the Foreign Intelligence Surveillance Act after he and his family were placed under surveillance, subjected to “covert physical searches” of their home, and subjected to “electronic surveillance targeting Mr. Mayfield at the Mayfield home and at Mr. Mayfield’s office” due to an erroneous fingerprint match implicating Mayfield in a subway bombing in Madrid Spain because Mayfield’s injuries were deemed sufficiently redressed by a previous settlement agreement arising from the incident and declaratory judgment was not believed to be impactive on him or his family). 252 U.S. Const., § 9, cl. 3; Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, 14 Geo. Immigr. L.J. 51, 91-95 (1999); Akram & Johnson, supra note 4, at 327-55; Caplan, supra note 229, at 1224; Daniel C. Costello, Mendelsohn v. Meese: The Impact of the Constitution on the Antiterrorism Act of 1987, 13 Md. J. Int’l L. & Trade 331, 336-37 (1989); Whitehead & Aden, supra note 23, at 1129-30 . 253 United States v. Lovett, 328 U.S. 303, 315 (1946). 254 Peters v. Hobby, 349 U.S. 331, 352 (1955) (Douglas J., dissenting) (noting that if the defendant in that case “were condemned by Congress and made ineligible for government employment, he would suffer a bill of attainder, outlawed by the constitution. An administrative agency—the creature of congress—certainly cannot exercise powers that Congress itself is barred from asserting”); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 144 (1951) (Black, J., concurring) (finding it incomprehensible “that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution”).
435 Savannah Law Review [Vol. 2:2, 2015] congressional acts, and the composition of a mandated interagency sharing of information, individuals are singled out and exposed to severe consequences without any specific findings of guilt or procedural protections that attend trial. Ineffective discriminatory programs ultimately weaken government legitimacy with lasting ramifications, as the message spills over and influences private biases. Singling out nonimmigrants based on ethnicity or religion not only diminishes that group’s sense of belonging and faith in American institutions, it also legitimizes and reinforces stereotypical thinking and suspicion of others toward that group.255 Discriminatory governmental policies and practices help to reify private biases when the discriminatory effect of these policies and practices is keeping in with those biases.256 In short, these policies reify a negative public perception and a lack of trust toward Muslim Americans on a baseless concept of racial and religious discrimination.
1. The FBI’s TIDE list is a Modern Day Bill of Attainder Article I, section 9 of the United States Constitution provides that “[n]o Bill of attainder or ex post facto Law shall be passed.” 257 A Bill of Attainder is a legislative act that classifies and punishes a particular individual or group without trial.258 In other words, it is a summary adjudication of guilt by legislative fiat. “Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial are bills of attainder prohibited by the Constitution.”259 The terrorist watch list fits this bill. While Congress may not have expressly defined and identified by name the individuals on the watch list, it has clearly affected this result through various statutes.260 Moreover, it has done this through
255 See Volpp, supra note 35, at 1595-96. 256 Aziz, supra note 40, 433-35. 257 U.S. Const. art. I, § 9, cl. 3. 258 Lovett, 328 U.S. at 315. 259 Id. 260 See, e.g., 49 U.S.C. § 114 (h)(2) (2009) (“In consultation with the Transportation Security Oversight Board, the Under Secretary shall establish procedures for notifying the Administrator of the Federal Aviation Administration, appropriate State and local law enforcement officials, and airport or airline security officers of the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety.”); Id. (“The Secretary of Homeland Security, in consultation with the program manager of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004, the Secretary of Transportation, and public and private stakeholders, shall establish a Transportation Security Information Sharing Plan.”); 6 U.S.C. § 485 (2010) (“The President shall create an information sharing environment for the sharing of terrorism information in a manner consistent with national security and with applicable legal standards relating to privacy and civil liberties[.]).” 50 U.S.C § 1861(a)(1) (2006) (“[T]he Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a
436 Muslim Community Reparations the Intelligence Reform and Terrorism Prevention Act of 2004. Congress created the National Counterterrorism Center “[t]o serve as the central and shared knowledge bank of known and suspected terrorists and international terrorist groups, as well as their goals, strategies, capabilities, and networks of contacts and support” through the Intelligence Reform and Terrorism Prevention Act of 2004.261 This knowledge bank is the Terrorist Identities Datamart Environment (TIDE), or rather the consolidated Terrorist Watchlist. 262 These legislative enactments accomplish, implicitly, what Congress is constitutionally prohibited from doing explicitly. Through these various statutes, Congress directs the executive to designate and share information regarding individuals believed to pose a threat of terrorism. As previously discussed, “terrorism” has a specific connotation post-September 11, especially when it concerns government action. To assume that Congress did not have this connotation in mind when it passed these statutes, or that this connotation was lost on the executive when implementing them, would be to ignore reality.263 Professor Caplan further suggests that “nonattainder”—the right to be free from bills of attainder— should itself be a due process interest protected by the Fifth Amendment, warranting procedural safeguards when that interest is threatened. 264 This supplements a host of other well-established, individual interests threatened by the inclusion of one’s name on the government watch list, which counsels heavily in favor of notice and an opportunity to be heard before the government may deprive an individual of those interests. The right to travel is an important liberty interest protected by the United States Constitution.265 The No-fly list, a subset of the more general watch list and
Untied States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”) 261 50 U.S.C. § 3056(d)(6) (2004). The National Counterterrorism Center was created under this act [t]o serve as the primary organization in the United States Government for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.” 50 U.S.C. § 3056(d)(1) (2004). 262 Terrorist Watchlist, Information Sharing Environment, http://www.ise.gov/terrorist-watchlist (last visited Nov. 30, 2015). 263 See Caplan, supra note 229, at 1244 (noting that “the category ‘persons known to pose a risk of terrorism’ is, under current political conditions, equivalent at the very least to a statement that ‘members of Al Qeada shall not ride in airplanes” and that “Congress had a good idea of who it had in mind, as did the agency implementing Congress’s instructions.”). 264 Id. at 1227-50. 265 Kent v. Dulles, 357 U.S. 116, 125 (1958) (“The right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.”); Saenz v. Roe, 526 U.S. 489, 499 (1999) (“The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one state to another’ is firmly embedded in our jurisprudence.”) Specifically the Court in Saenz found the right to travel to encompass three different concepts: (1) “the right to enter and leave another State;” (2) “the right to be treated as a welcome visitor rather than an
437 Savannah Law Review [Vol. 2:2, 2015] a list specifically codified by Congress, substantially interferes with this right when erroneous names are carelessly placed on it. As discussed earlier, the watch list is notorious for containing inaccurate information. Moreover, oftentimes individuals who share the same or similar names to those found on the list are subjected to detention, harassment, and delay. The list also subjects individuals to various invasive procedures, many of which substantially impinge fundamental religious freedoms and privacy interests, when singled out for additional screening because their name is on the list. Due to the highly secretive nature of the watch list, most people do not know, and are likely foreclosed from finding out, whether their names appear on the list. The utility and effectiveness of the list necessarily depends on the secrecy of its contents. The purpose behind the list would be significantly thwarted if those who wished to carry out terroristic attacks knew of their inclusion on the list. As such, the government has a vital interest in keeping the list private. Consequently, when an innocent becomes ensnared by the list, his only opportunity for challenge occurs after an infringement has taken place. The ex post facto nature of this circumstance and the weighty liberty interest at stake counsel heavily in favor of rethinking and retooling how the government goes about delineating and flagging suspected terrorist activity.
2. Entrapment by Fake Terrorism In the famous case United States v. Aref, coined as the Albany missile plot, the FBI used an informant to stage the entrapment of two Muslim men from a local mosque under surveillance by using a fake terrorism plot.266 Through primarily the material support statutes, the District Court sentenced these two Muslim men to fifteen years in federal prison after a jury convicted them of various offenses including: money laundering, providing material support in connection with an attack involving a weapon of mass destruction, providing material support to a designated terrorist organization, and conspiracy for the listed offenses.267 Referred to by the code name Green Grail, the FBI obtained evidence against Mohammed Hossain, a local businessman who owned a struggling pizzeria, and Yassin Aref, who served as the imam at the mosque, through a sting operation.268 The informant involved in the operation posed as a wealthy Pakistani businessman, and after befriending Hossain, agreed to loan money to Mr. Hossain, a husband and father of six, in order to bolster Hossain’s failing business.269 Mr. Hossain agreed to the loan and Mr. Aref, as Imam, witnessed the
unfriendly alien when temporarily present in the second State;” and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.” Id. at 500. 266 United States v. Aref, 285 F. App’x 784, 792 (2d Cir. 2008); see Bartosiewicz, supra note 175, at 37-38. 267 United States v. Aref, No. 04-CR-402, 2007 WL 603508, at *3-4 (N.D.N.Y. Feb. 22, 2007). 268 Bartosiewicz, supra note 175, at 37-38. 269 Id. at 38.
438 Muslim Community Reparations loan agreement in accordance with the Islamic tradition.270 The deal was illegal according to prosecutors because the informant previously showed Mr. Hossain a missile and expressed that he “also [did] business for [his] Muslim brothers[,]” alluding to his involvement with terrorists.271 Prosecutors claim that Mr. Hossain knew, or should have known, the money he was accepting came from terrorist activity. 272 However, as later acknowledged by FBI agents, Mr. Hossain was merely collateral damage for the FBI to hook in Mr. Aref, the FBI’s real target..273 When asked at a press conference at the conclusion of sentencing about the connection between Aref to terrorism the prosecutor admitted: “Well, we didn’t have the evidence of that, but he had the ideology.”274 In the end the Albany Missisle Plot was hailed a victory in the amorphous War on Terror despite the fact that, by the government’s own admission, it involved no terrorists, no terrorism plot, and a missile supplied by the FBI.275 Mr. Hossain and Mr. Aref fell into the FBI’s web of entrapment in a sting operation promoting fake terrorism to ensnare those suspected of being domestic terrorists because Mr. Hossain and Mr. Aref shared the right ideology. To understand the government’s logic is to criminalize thoughts and ideas and religious affiliations turning the presumption of innocence upside down with the FBI’s antics of mapping, fake terrorism, and entrapment.
3. Unwarranted Surveillance from Religious Profiling In Hassan v. City of New York, Muslim Americans in New York raised the first direct, legal challenge against the surveillance of Muslims by the New York Police Department. 276 However, the court dismissed the case for lack of standing because the plaintiff’s claims of discrimination from the New York Police Department’s surveillance program were not plausible based on religion and “[t]he more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.” 277 Moreover, the court cabined the New York Police Department’s surveillance program in the interests of national security as a pro- law enforcement approach to combat terrorism and abdicated the court’s role to
270 Id. 271 Id. 272 Id. 273 See id. 274 Id. 275 Id. 276 Hassan v. City of New York, No. CIV. 2:12-3401 WJM, 2014 WL 654604, *7 (D.N.J. Feb. 20, 2014); see Court Gives Green Light, supra note 163. Plaintiffs brought this action after suffering through invasive spying by the New York Police Department. Comprising of a broad group of Muslim Americans from various backgrounds, the Plaintiffs included Mr. Farhaj Hassan in particular, who was a decorated Iraq war veteran. After the court dismissed the case, a disappointed Mr. Hassan commented “‘I have dedicated my career to serving my country, and this just feels like a slap in the face—all because of the way I pray.’” Tom Hays, NYPD Spying On Muslims Was Legal, Judge Rules, Huffington Post (Feb. 21, 2014, 10:59 AM), http://www.huffingtonpost. com/2014/02/21/nypd-spying-on-muslims-legal_n_4830310.html. 277 Hassan, WL 654604, at *7.
439 Savannah Law Review [Vol. 2:2, 2015] evaluate intrusive surveillance as violative of various federal and state constitutional rights: “[t]he police could not have monitored New Jersey for Muslim terrorist activity without monitoring the Muslim community itself.”278 In effect, the court set a dangerous precedent for Islamophobia by sanctioning the arguably illegal, discriminatory surveillance practices of the New York Police Department—to target and spy on Americans “anywhere and everywhere in this country, without limitation, for no other reason than their religion.”279 The Hassan decision, regrettably, mirrors Korematsu v. United States, which sanctioned the internment of Japanese Americans during World War II solely because of their ancestry.280 The Hassan decision, and more generally, the tacit acceptance of racial profiling, so long as it remains Muslim-exclusive, is yet another sordid example of government and societal acquiescence in the alien and suspicious treatment of the Muslim community.281 When the courts abdicate the role of upholding individual constitutional rights in the face of blatant abuse of police power, the judiciary’s treatment of these victims paints broad brushstrokes over the structural inadequacy and governmental complicity that has conscripted the terrorist other stigma into the Muslim community.282 Failure to provide redress to the Muslim community demotes the Muslim community to a lesser status in the American society.283
B. Civil Liberties Wane As War on Terror Sees No End in Sight Ultimately, the USA Patriot Act ignores the civil liberties of Americans and aliens alike under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.284 Both Americans and aliens have rights to due process and a jury trial, despite law enforcement’s so-called reasonable guise of viewing terrorism through the lens of racial and religious profiling.285 However, Muslims in America continually face discrimination on the basis of their religion, appearance, national origin, or association. Muslims eventually suffer a loss of rights and become swept up in broad brushstrokes of a poorly administered, maintained, and conceived U.S. counterterrorism policy. Because Muslims, or those perceived to be, presumably eat, live, and pray like the enemy—or simply look like the enemy, being Muslim has become a crime. Harms and injustices against Muslim Americans from the
278 See Court Gives Green Light, supra note 163. 279 See Id. 280 Korematsu v. United States, 323 U.S. 214, 223 (1944); see Court Gives Green Light, supra note 163. 281 Hassan, WL 654604, at *6-7. 282 See Chon & Arzt, supra note 17, at 225-30; Wayne McCormack, U.S. Judicial Independence: Victim in the “War on Terror,” 71 Wash. & Lee L. Rev. 305, 306 (2014). 283 Volpp, supra note 35, at 1592-98. 284 U.S. Const. amend. I; US. Const. amend. IV; U.S. Const. V; U.S. Const. amend. VI; U.S. Const. amend. XIV; see Whitehead & Aden, supra note 23, at 1096-1131 (providing a constitutional review of the USA Patriot Act). 285 8 U.S.C. § 1182(a)(3)(B) (West 2013); USA Patriot Act, 115 Stat. at 350-52; Volpp, supra note 35, at1576-86; Whitehead & Aden, supra note 23, at 1126, 1133.
440 Muslim Community Reparations terrorist other stigma manifest in a variety of different forms; some subtle, some glaringly overt. To compound matters, the courts frequently accept such odious stereotypes as an unfortunate, though expected, reaction to the terrorist attacks of September 11 in the interest of national security.286 Many states embrace national security policies and practices that pertain solely to Arabs, Muslims, or those perceived to be either Arab or Muslim.287 Regrettably, judges unsurprisingly misconstrue racial slurs and epithets as protected political viewpoints rather than discrimination.288 In times of national crisis, especially of the scale that America faced in the wake of the terrorist attacks of September 11, the safety, protection, and well-being of the Nation understandably assumes paramount priority. When a crisis hits unexpectedly, as it often does, and prompt action is required to assure this protection, civil liberties often step aside to allow national security to fulfill its role unimpaired. That the Founders were well aware of this concession is clear in Hamilton’s declaration: Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and
286 See, e.g., Padilla v. Yoo, 678 F.3d 748, 758-62 (9th Cir. 2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (Kennedy, J., dissenting); United States v. Awadallah, 349 F.3d 42, 49-75 (2d Cir. 2003); compare Hassan v. City of New York, No. CIV. 2:12-3401 WJM, 2014 WL 654604, at *7 (D.N.J. Feb. 20, 2014) and Saint Francis Coll. v. Al- Khazraji, 481 U.S. 604, 612 (1987), with Korematsu v. United States, 323 U.S. 214, 223 (1944); see also Aziz, supra note 15, at 36-39, 50-70; Studnicki & Apol, supra note 107, at 520-27; Laura S. Underkuffler, Odious Discrimination and the Religious Exemption Question, 32 Cardozo L. Rev. 2069, 2076-78 (2011), available at http://scholarship. law.cornell.edu/facpub/649; see McCormack, supra note 282, at 306 (discussing the role of the judiciary in the War on Terror abdicating the court’s role of enforcing constitutional protections thus creating a rift in the separation of powers between the judiciary and executive branch of the U.S. government as a result); see generally Roach & Trotter, supra note 31 (delineating odious discrimination of Muslims within the U.S. criminal justice system). 287 See generally Harris, supra note 25, at 1-13 (explaining the increased participation of local and state law enforcement agencies playing a role in the War on Terror). 288 U.S. Const. amend. I; R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382-97 (1992) (protecting racial slurs as political speech); Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2987-98, 3009-12 (2010); see Aziz, supra note 15, at 54-70; see, e.g., Hussain v. Highgate Hotels, Inc., 126 F. App’x 256, 268 (6th Cir. 2005) (dismissing an employment discrimination claim on summary judgment regarding the wrongful termination of a Pakistani Muslim, who was suffering from a coworker’s bullying discrimination that included repeated name-calling as Taliban on a daily basis, in addition to stating the U.S. should drop an atomic bomb on Afghanistan).The court explained that, in light of surrounding world events, one would not reasonably view such derogatory statements as threats to one’s safety but rather as another’s political views in addition to imposing the burden onto the victimized employee to notify the employer of repeated instances of discrimination. Id.
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political rights. To be more safe, they, at length, become willing to run the risk of being less free.289 The federal government derives expansive authority because of the federal government’s primary responsibility and purpose to safeguard the United States—an obvious and unarguable power of Congress. In turn, the courts acknowledge and regard the premise of national security as the most compelling governmental interest to justify intrusive behavior during times of crisis.290 Unable to foresee or define the scope of national exigencies, the Founding Fathers created a necessary power under the Constitutions for the government’s power to protect the Nation “without limitation . . . the means which may be necessary to satisfy [those exigencies].”291 Because infinite possibilities of circumstances may endanger the Nation’s safety, the government may act without regard to the Constitution in times of national crisis, thus warranting that “no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”292 On the other hand, safety and liberty are on two sides of the same pendulum, creating an opportunity cost should the pendulum swing too far in either direction: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”293 Thus, during times of war and national crisis, there exists a palpable tension between national security and individual liberties. How the government adjusts the balance between these two competing interests plays a large role in defining the nation and shaping its perception among other groups and nations. Cognizant of this, when the balance justifiably shifts in favor of national security in the interest of the safety and protection of a nations’ people, the balance must be restored once the necessity for the shift has subsided. As former Chief Justice William Rehnquist points out, the courts have historically played a somewhat limited role in this respect: It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government’s claims of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.294
289 The Federalist No. 8 (Alexander Hamilton). 290 Haig v. Agee, 453 U.S. 280, 305 (1981) (citing Aptheker v. Sec’y of State, 378 U.S. 500, 509 (1964)). 291 The Federalist No. 23, at 146-47 (Alexander Hamilton) (J. Cooke ed., 1961); Hamdi v. Rumsfeld, 542 U.S. 507, 580-89 (2004) (Thomas, J., dissenting). 292 Id. 293 Walter Isaacson, Benjamin Franklin: An American Life 169 (Simon & Schuster ed., 2004) (2003); Stanley T. Mortensen, Gant: Restoring Balance to the Fourth Amendment’s Search-Incident-to-A-Valid-Arrest Exception, 9 Appalachian J. L. 259, 278-79 (2010). 294 William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime 21-22 (1998).
442 Muslim Community Reparations
Hence, to properly reset the delicate balance between national security and individual liberties and restore the definition and perception of the United States at home and abroad is a task more aptly suited to efforts outside the judicial realm. Especially when the War on Terror has no end in sight. Injustices against Muslims continue to permeate society and affect not only the Muslim community, but also American society as a whole. Without prompt action, this problem will continue to erode the very fabric of society the terrorists of September 11 sought to destroy.
IV. Muslim Community Reparations Muslims in America face religious persecution under the pretext of national security that inflicts systemic harms on Muslims as a marginalized community. After September 11, the Muslim community has suffered serious injustices from the American society, for which no one legal remedy is truly adequate to make Muslims whole or to put Muslims in the position they were in before the backlash of September 11. Stigmas of otherness, foreignness, disloyalty, and imminently threatening drive the hate, discrimination, and violence directed toward Muslims. Only with a united front of public opinion, public policy, and judicial policy will the United States counter terrorism effectively by preserving freedom and democracy for all. The reparative process will involve removing these stigmatic labels by recalibrating, rethinking, and retooling negative perceptions that are responsible for creating such stigmatic labels. The Muslim community, the U.S. legal system, and the legislature are not adept to handle redress for Muslims effectively on this scale without a triage of public opinion, public policy, and judicial policy acting in concert. While some progress has occurred to address the substandard treatment of Muslims in America, more progressive action is required to repair the damage and move forward. America must learn from past mistakes and avoid repeating those mistakes to repair the wrongs committed against Muslims in America. The Japanese Internment Reparations is an illustrative example of America overcoming its fear of mass violence and reintegrating a marginalized community—who are associated with that mass violence simply because of shared characteristics. This Note calls for a collaborative effort between the Muslim community and those who contributed to and legitimized these wrongs to the Muslim community.
A. Reparations for Systemic Harms Inflicted on Marginalized Communities Reparations has become a loaded, controversial concept that has evolved over four generations. In essence, reparations is a type of remedy to address the systemic marginalization of a targeted community by the American society.295 The classical view of Reparations is a hybrid remedy that originated from tort law and state responsibility.296 Within the U.S. justice system, tort law imposes liability for
295 Naomi Roht-Arriaza, Reparations Decisions and Dilemmas, 27 Hastings Int’l & Comp. L. Rev. 157, 159-60 (2004). 296 Id. at 160.
443 Savannah Law Review [Vol. 2:2, 2015] a civil wrong as a form of private justice. 297 In contrast, state responsibility “obligates states to repair harm they cause to other states.”298 The various goals of Reparations may include some or all of the following: compensating for loss, exonerating those who were defamed, reintegrating a marginalized and isolated society, and rebuilding the country. 299 The heart of Reparations appeals to normative values of social justice for a country to show “recognition, remorse and atonement for harms inflicted” toward a marginalized society. 300 As a form of social accountability and a proactive measure to protecting other communities in the future, Reparations allow for a public commitment by society to repair long-term damage from society’s failure to enforce the law.301 Whether a community has a compelling case for awarding reparations depends upon several factors: (1) the government is culpable to a certain degree; (2) survivors from that community are still alive today; (3) the harm inflicted is concentrated; and (4) the government’s actions were publicly condemned as morally wrong at the time of the harm.302 The first generation of reparations “introduced the idea of repair as a moral justification for reparations.”303 More importantly, early theories on reparations identified the shortcomings with lawsuits as inept to deliver social justice for slavery and other racial crimes in a holistic manner beyond monetary damages.304 The second generation of the reparations movement began when Congress addressed the Japanese Internment during World War II, providing reparations by legislative action and enacting the Civil Liberties Act of 1988. 305 This generation incorporated a new framework that included a “comprehensive strategic legal and political plan.”306 The third generation of reparations focused on legal aspects of formal reparations claims presented to the court and how to “construct a legally
297 The French Civil Code bears great influence over tort law with respect to Reparations: For any act by a person that causes injury to another, the person who is at fault for the injury is obligated to repair that injury. C. Civ. art. 1382 (Fr.) (“Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.”); John Locke, The Second Treatise of Government, in Two Treatises of Government 265, 267-68, 273 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690); John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 544-54 (2005). 298 Roht-Arriaza, supra note 295, at 160. 299 Id. 300 Id. at 159. 301 Alfred L. Brophy, Reconstructing the Dreamland 112 (2002) [hereinafter Brohpy, Dreamland]. 302 These four factors operate as limiting principles to restrict reparations claims to egregious examples of social injustice to a marginalized community. Id. at 105-07, 118. 303 Eric K. Yamamoto et al., American Reparations Theory and Practice at the Crossroads, 44 Cal. W. L. Rev. 1, 17 (2007). 304 Id. at 19-20; Alfred Brophy, Reparations Talk: Reparations for Slavery and the Tort Law Analogy, 24 B.C Third World L.J. 81, 81-82 (2004). 305 See Yamamoto et al., supra note 303, at 18-20; Brophy, supra note 311, at 81-82. 306 Yamamoto et al., supra note 303, at 21.
444 Muslim Community Reparations enforceable claim for reparations[.]”307 The fourth generation maintains a focus on the utility of legal claims but “recalls and expands on the original repair paradigm for reparations.”308 Through these various schools of thought, litigation remains a significant influence to public awareness and serves a viable role in bringing about redress.309
1. The Shortcomings of the U.S. Justice System Under the model of classic tort law, “plaintiffs have to show that they (or someone for whom they hold the right to sue) were injured, that the injury was caused by some person who had a duty to not injure that person, and that said injury resulted in damage.”310 These claims must fall within the ordinary statute of limitations requirements.311 However, the traditional remedy in tort law focuses on monetary damages and fails to repair the “‘bodies, minds and spirits’ of individuals and communities.”312 Compensatory damages award money to put the victim in the position the victim would have occupied had the harm never taken place.313 Reparations aim to build “something better for the future by correcting past injustice.”314 Whether the harm to a community lies in the past or in the future determines the measures taken during the reparations process. The types of reparation awards
307 Id. 308 Id. at 31. 309 Id. at 56; Eric K. Yamamoto & Ashley Kaiao Obrey, Reframing Redress: A “Social Healing Through Justice”Approach to United States-Native Hawaiian and Japan-Ainu Reconciliation Initiatives, 16 Asian Am. L.J. 5, 30 (2009). 310 Alfred L. Brophy, Reparations Pro & Con 98 (2006) [hereinafter Brophy, Pro & Con]; Roht-Arriaza, supra note 295, at 160. 311 Brophy, Pro & Con, supra note 310, at 98. 312 Yamamoto & Obrey, supra note 309, at 30 (quoting Eric K. Yamamoto, Interracial Justice: Conflict & Reconciliation in Post-Civil Rights America 156 (1999); see also Yamamoto et al., supra note 303, at 39-40 (noting that legal justice “does not respond to a group member’s need for ‘dignity, emotional relief, participation in the social polity, or institutional reordering’” and that “[e]ven in race or gender cases where courts grant injunctive relief—for instance, ordering a company to halt discriminatory policies—the injunction only stops the offending behavior”). 313 Roht-Arriaza, supra note 295, at 160; Roy L. Brooks, Japanese American Redress and the American Political Process, in When Sorry Isn’t Enough 157, 157 (Roy L. Brooks ed.,1999) (noting that intuitions of public policy, the prejudices that legislatures share with their constituencies, the willingness of political leadership, political inconvenience, and the simple exchange of favors have had the greatest impact on the fate of redress claims). Beyond monetary awards, compensatory reparations may also include broader awards, such as education and health care for the victim or the victim’s family. Roy L. Brooks, Rehabilitative Reparations for the Judicial Process, 58 N.Y.U. Ann. Surv. Am. L. 475, 476 (2003). Typically deriving from “the ruling of a court, the enactments of a legislature, or the funds of a commission responsible for administering transitional justice . . . [these reparations] authorize the payment of damages for physical, political, psychological, economic, and other harms suffered.” Carlton Waterhouse, The Good, The Bad, and The Ugly: Moral Agency and the Role of Victims in Reparations Programs, 31 U. Pa. J. Int’l L. 257, 260 (2009). 314 Brophy, Pro & Con, supra note 310, at 7-8.
445 Savannah Law Review [Vol. 2:2, 2015] include compensatory, symbolic, and rehabilitative awards that are presented to either individuals or to a collective group of people.315 Traditionally, reparations exact past harms to a community in a precise manner and provide compensatory awards.316 Beneficiaries of this method tend to find this process dissatisfactory and money an inadequate form of compensation: “What could replace the lost health and serenity; the loss of a loved one or of a whole extended family; a whole generation of friends; the destruction of home and culture and community and peace?”317 In contrast, reparations such as community outreach programs may also ameliorate future conditions to improve the lives of a marginalized community as a whole, rather than exact a precise harm from an event or triggering condition.318 Symbolic reparations fall under efforts of reconciliation through tokens or gestures and typically include “apologies, rehabilitation, the change of names of public spaces, the establishment of days of commemoration, the creation of museums and parks dedicated to the memory of the victims, etc.”319 Under the atonement model, redress includes society’s ability to mend broken relationships through “reconciliation and reclaiming moral character . . . .” 320 Rehabilitative reparations take a transformative approach by improving the living conditions of victim communities and empowering the victim community within the nation’s social and cultural transformation. 321 A spin-off of this approach is the communal approach, which encourages a victim community to take an active role in remedying harms and serves a dual role of providing and receiving relief beyond the government’s involvement in the reparative process.322 This approach takes an independent role from the government by creating financial funds and building social institutions geared toward gaining and maintaining power in economics, education, and politics for the victim community. 323 However, this approach still maintains a distrust of the law
315 Pablo De Greiff, Justice and Reparations, in The Handbook of Reparations 451, 456 (Pablo De Greiff & The Int’l Center for Transitional Justice eds., 2006). 316 Brophy, Pro & Con, supra note 310, at 7-8. 317 Roht-Arriaza, supra note 295, at 158; see also Brooks, Rehabilitative Reparations, supra note 313, at 476 (noting that “[c]ompensatory reparations . . . are intended to be compensatory, but only in a symbolic sense; for nothing can truly return the victim to the status quo ante.”). 318 Brophy, Pro & Con, supra note 310, at 7-8. 319 De Greiff, supra note 315, at 453. The Japanese Internment Reparations included symbolic reparations such as dedicating “memorials, school curricula, media presentations, or scholarly publications.” Yamamato & Obrey, Reframing Redress, supra note 316, at 35. 320 Roy Brooks, Getting Reparations for Slavery Right—A Response to Posner and Vermeule, 80 Notre Dame L. Rev. 251, 274 (2004). 321 Brooks, supra note 320, at 476. 322Andre Smith & Carlton Waterhouse, No Reparation Without Taxation: Applying the Internal Revenue Code to the Concept of Reparations for Slavery and Segregation, 7 Pitt. Tax Rev. 159, 170 (2009). 323 Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law From 1619 to 1972 and a Challenge to
446 Muslim Community Reparations responsible for subordinating the victim community.324 This approach relies upon the victim, who is viewed as in a better position to protect that community “as the guarantor of their status and well-being.” 325
2. Social Healing Through Justice Framework Building and expanding on the reconciliation model, the Social Healing Through Justice framework endeavors to reclaim the moral side of reparations that has gotten lost in the minutia of legalistic reparatory claims, and seeks to dispel some of the negative connotations frequently ascribed to the term “reparations.”326 It does so by clothing reparatory and reconciliatory vocabulary in the language of justice and by providing a framework designed toward social healing.327 Recognizing the disenchantment the conflation of reparation claims with monetary award (or payoff) has engendered, it seeks to move past the tort law model and inject humanistic and holistic elements back into reparations claims.328 The idea is that a shift in reparatory thought from compensation to healing will better capture the “deeper aim” of repair—that of social healing— especially in established democracies, and shed the divisive, controversy-laden baggage the compensatory model carries with it.329 The four basic tenets of this framework include: recognition, responsibility, reconstruction, and reparation.330 Recognition involves a searching inquiry into the root cause of the condition afflicting the affected community. 331 It entails an assessment of the circumstances and structures that led up to and contributed to the harms. Responsibility requires an acceptance of the role that faulty policy and power abuse have played in the relegation and marginalization of the affected group. 332 Reconstruction is an affirmative effort on the part of those in power to reestablish structures and relationships that have been damaged in an effort to move forward. 333 Lastly, reparations represent a sincere apology for past wrongs and a commitment to sustained reform in the future through “restoration of property, rebuilding of
Prevailing Notions of Legally Based Reparations, 26 B.C. Third World L. J. 207, 251- 52, 265 (2006); Smith & Waterhouse, supra note 322, at 166, 170. 324 Waterhouse, supra note 323, 251-52. 325 Id. at 251-52. 326 Yamamoto et al., supra note, 303, 83-84, 3-4, 31-41. 327 Id. at 6. 328 Yamamoto et al., supra note 303, at 39-41; Yamamoto & Obrey, supra note 309, at 27-28. 329 Yamamoto & Obrey, supra note 309, at 27-28. 330 Id. at 49. 331 Id. at 33. 332 Id. at 34. 333 Id. Yamamoto and Obrey note that these actions can take the form of “apologies and forgiveness (if appropriate); a re-framing of the history of interactions; and, most important, the reallocation of political and economic power.” Id. Significantly, included in this power restructuring is “remak[ing] institutions to assure non-repetition of the underlying abuses through ‘legislative or other reforms affecting the state’s social, legal or political institutions and policies.” Id at 35.
447 Savannah Law Review [Vol. 2:2, 2015] culture, economic development, and medical, legal, or educational and financial support for individuals and communities in need.” 334 The Social Healing Through Justice framework also takes into account the impact that fidelity to human rights has on national and international perceptions and norms. 335 While human rights claims are rarely enforced, they have the potential of infiltrating normative discourse and shaping perceptions of what is “right, natural, just, or in their interest” at home and abroad.336 Unconstrained by statute of limitation restrictions, human rights claims may be strategically asserted in the court of public opinion and brought to bear on the hearts and minds of the body politic in an effort to impress the need and opportunity for redress. In fact, this sort of open exposure and the generative potential it has on public perception and dialogue have found salience in virtually every successful reparations movement. 337 Human rights norms are also inextricably linked to democratic legitimacy, and the extent to which a nation or power measures up to these norms is necessarily indicative of its perceived legitimacy among others.338 One primary gauge by which to evaluate legitimacy is through an assessment of how well the law integrates the interest of all those within its reach.339
B. Japanese Internment Reparations In this volatile environment, the U.S. government must heed the wisdom learned from past mistakes concerning the adverse reaction to the Japanese Americans after World War II. Karen K. Narasaki, the former Chair of the National Council of Asian Pacific Americans (NCAPA), ominously advises America: Let us take to heart the lessons of World War II when [ ] hundreds of Japanese American families were herded behind barbed wire simply because they looked like the enemy . . . . No one should be presumed to be any less loyal to our country just because of the color of their skin, their national origin, their immigration status or the religion that they follow.340
334 Id. at 35. Additionally Yamamoto and Obrey cite “Japanese American redress” for the proposition that public education can be included here “in the form of memorials, school curricula, media presentations, or scholarly publications[,]” noting that this form of reparations “serves to commemorate, to impart lessons learned, and to generate a new justice narrative about a democracy’s commitment to civil and human rights.” Id. 335 Yamamoto et al., supra note 303, at 51-64. 336 Id. at 56 (quoting Paul Schiff Berman, Seeing Beyond the Limits of International Law, 84 Tex. L. Rev., 1265, 1269 (2006)). 337 Yamamoto et al., supra note 303, at 53-56. 338 Id. at 63 (citing the “invalidation of separate but equal” in Brown v. Board of Education as the “clearest and most potent illustration of this phenomenon”). 339 De Greiff, supra note 315. 340 Americans Who ‘Look Like the Enemy’ Deplore Rising Number of Ethnic Attacks, Seattle PI (Sep. 19, 2001, 10:00 PM), http://www.seattlepi.com/news/article/ Americans-who-look-like-the-enemy-deplore-1066290.php.
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The process of reparations for Japanese Internment survivors is illustrative of aspects of this framework, as well as aspects of the other forms of reparations mentioned above and is considered by some to be the “the most comprehensive model.” 341 The account of Japanese American struggle, and ultimate redress, begins with the issuance of Executive Order 9066 in 1942. Under this order the U.S. government imprisoned in internment camps over 120,000 persons of Japanese descent, many of whom were American citizens, without criminal charges or due process.342 The Civil Liberties Act of 1988 was signed into law as a redressive attempt to correct the “grave injustice” endured by the Japanese community as a result of the internment. The Act sanctioned an apology, an education fund, and individual payments of $20,000 to the surviving internees.343 As Professor Brophy points out, the Act can be seen as incorporating two limiting principles: “a flat fee, which treated everyone’s loss equally, and a requirement that the person had to be living at the time the act was proposed.”344 Another aspect of the Act worth noting here, is that, although the Act was largely intended to be compensatory in nature, it also incorporated a form of community reparations within its framework by providing for a fund to facilitate internment-related education.345 Through the Act, a Civil Liberties Public Education Fund Board was created: to sponsor research and public educational activities, and to publish and distribute the hearings, findings, and recommendations of the Commission, so that the events surrounding the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry will be remembered, and so that the causes and circumstances of this and similar events may be illuminated and understood . . . .346 The Civil Liberties Public Education Fund (CLPEF) was designed to educate the public and promote general public understanding concerning the redress legislation and to suppress prospective racism and abuse of governmental
341 Brophy, Dreamland, supra note 301, at 109. 342 Leslie T. Hatamiya, Institutions and Interest Groups: Understanding the Passage of the Japanese American Redress Bill, in When Sorry Isn’t Enough 190, 190 (Roy L. Brooks ed., 1999). 343 Id. 344 Brophy, Pro and Con, supra note 310, at 109. 345 Brophy, Dreamland, supra note 301, at 109. “The fund generated fresh historical internment research, analysis of the need for governmental national security restructuring, and insight into Japanese American cultural values and practices.” Yamamoto & Obrey, supra note 309, at 17. This fund became integral to the healing process for many of the former internees, “exemplified by the Smithsonian Museum’s permanent internment and redress exhibition and the national internment memorial in Washington, D.C.” Id. at 18. As one Japanese American observer noted: “‘What was evident [from the education projects] . . . was that a great deal of personal [pain and] friction had been replaced with a sense of community accomplishment’—an aspect of social healing.” Id. 346 50 App. USCA § 1989b-5(b)(1).
449 Savannah Law Review [Vol. 2:2, 2015] power.347 Some have hailed the public education portion of the Act as the most meaningful aspect of the reparative endeavor.348 Beyond a glimpse into what a “comprehensive” reparations program might look like,349the Japanese Internment movement also offers a political and legal perspective into the tragic collapse of a democratic system of checks and balances under the burden of national crisis and illuminates various avenues that may be utilized in seeking redress for such a collapse.350 While endeavoring for redress, Asian Americans challenged, used, and changed American law through litigation and political struggle.351 Sparked in the late 1960’s the redress movement caught traction when Japanese Americans initiated a public education and legislative lobbying campaign in support of internment reparations. 352 The movement focused on each branch of the federal government. 353 On the executive front, persistent lobbying resulted in the repeal of Executive Order 9066 in 1976.354 After the initial spark, a couple of events helped to propel the movement. At the legislative level, and representative of the first propulsive event, “Japanese American members of Congress ushered through seemingly innocuous legislation,” which created the Commission of Wartime Relocation and Internment of Civilians (CWRIC). 355 This CWRIC study revealed previously unknown information that provided the foundation for redress.356 The resulting
347 Id. The fund provided financing for several projects including “curriculum, landmarks and institutions, community development, arts and media, research, national fellowships, and research resources.” Eric K. Yamamoto & Liann Ebesugawa, Report on Redress: The Japanese American Internment, in The Handbook of Reparations 257, 275 (Pablo De Greiff & The Int’l Center for Transitional Justice eds., 2006). Included within these projects were “development of internment curriculum for elementary and high school students; development of materials and a book for teaching law and the internment; new research on reparations for historic injustices; oral histories of internment artists; books on the internee draft registers; documentaries on internment camp life; psychological studies on the effect of the internment; and numerous others.” Id. 348 Id. (noting that “[i]n addition to giving voice to those who experienced the internment, the projects also targeted mainstream USA and policymakers to bring home the political and legal lessons of the internment”). 349 Brophy, Dreamland, supra note 301, at 109. 350 Yamamoto & Ebesugawa, supra note 347, at 265. 351 Id. at 207. 352 Yamamoto & Obrey, supra note 309, at 12. 353 Id. at 12-13. 354 Id. at 13. 355 Id. at 12. 356 Yamamoto & Ebesugawa, supra note 347, at 265; see also Yamamoto & Obrey, supra note 309, at 12. Daniel Inouye, one of the four Japanese congressmen, proposed the idea of lobbying for the congressional study commission, which would release a report on the circumstances surrounding the internment, instead of initially seeking monetary compensation. Hatamiya, supra note 342, at 194. Because it merely approved a study of wartime events and did not require actual redress, the bill was largely uncontroversial. Hatamiya, supra note 342, at 195. On the other hand, the commission’s hearings, report, and recommendations proved integral in laying the foundation, both in Congress and in the Japanese American Community, for effective reparation. Hatamiya, supra note 342, at 195. The Commission on Wartime Relocation and Internment of Civilians (CWRIC)
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“Congressional Report concluded the internment was a result of ‘wartime hysteria, failure of political leadership, and racial prejudice.’”357 As for the judicial level, Japanese Americans instituted two varieties of litigation. The first, a coram nobis lawsuit involving Fred Korematsu, represented the second critical juncture believed to have driven the movement forward. 358 “[I]n 1983, Korematsu reopened his World War II exclusion case, [requesting] the San Francisco federal district court to vacate his forty-year old conviction.”359 In light of the discoveries exposed by the CWRIC study, the petition asserted that Korematsu’s “conviction in 1942 for resisting the military’s internment orders and its [confirmation] by the Supreme Court in 1944 [were based] on a ‘long- standing, pervasive and unlawful governmental scheme designed to mislead and defraud the courts and the nation.”‘360 The district court judge “agreed and, finding a ‘manifest injustice,’ vacated Korematsu’s conviction” and further emphasized the need for presidential and congressional accountability. 361 The second was the Hohri class action damages lawsuit, filed by former internees in an effort to collect monetary compensation as a result of material and psychological harms occasioned by the internment.362 The Korematsu decision, along with the Congressional report and a pending Hohri class action lawsuit, “renewed [the] grassroots and legislative lobbying campaign [that] pushed for redress.” 363 These “collective efforts [ultimately] culminated in the Civil Liberties Act of 1988. Signed . . . at a time when the United States sought legitimacy as a democracy committed to civil and human rights in its fight to end the Cold War[.]”364 The President captured the essence of the bill by stating: [N]o payment can make up for those lost years. So, what is most important in this bill has less to do with property than with honor. For here we admit a wrong; here we affirm our commitment as a nation to
proved central to the Japanese American redress process. Yamamoto & Ebesugawa, supra note 347, at 269. It held public hearings in ten cities throughout the United States over 20 days, during which more than 750 witnesses and internees told their stories of suffering then and their continuing pain. Yamamoto & Ebesugawa, supra note 347, at 269-70. 357 Yamamoto & Obrey, supra note 309, at 12. 358 Id. at 13. 359 Id. 360 Id. at 15. 361 Id. “As a legal precedent [Korematsu] is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive[,] and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears that are so easily aroused.” Id. at 16. 362 Yamamoto & Ebesugawa, supra note 347, at 265. 363 Yamamoto & Obrey, supra note 309, at 16. 364 Id.
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equal justice under the law. . . . the ideal of liberty and justice for all— that is still the American way.365
C. Social Justice for Muslims in America As Professor Elver aptly notes, “[a]s long as the ‘War on Terror’ continues, for which there is no time and space limit, state discrimination against Muslims, Arabs, and Middle Easterners will be kept free from strict scrutiny in order to protect American lives and keep the country safe.” 366 Contrasted with the eventual release of Japanese internees at the conclusion of World War II (as all physical wars must eventually end), the Muslim American fate hangs in the balance of an amorphous war with no end in sight.367 The harms occasioned the Muslim community through discriminatory government practices and policies counsel heavily in favor of reparations. Without prompt action, the compelling force of these claims will dwindle, while the harms nonetheless persist to the point that they become regrettable yet accepted. As history has revealed, reparations claims are fragile and peculiar, the success or failure of which is largely dependent on the political and societal conditions in which they arise. Given the vaporous nature of these conditions, the harms felt by the Muslim community will potentially go un-redressed if not acted on while the societal and political climate is accommodating. As Parts I and II of this Note revealed, the government has played a pivotal role in shaping the construction of Muslim Americans that continues to plague its community. The various debilitating harms that discriminatory government actions, policies, and procedures have borne on the Muslim community have relegated them to a second-class position of suspicious “others” and have spurred, validated, and legitimated private bias among their fellow citizens. In short, the government is culpable for the harms inflicted upon the Muslim community.368 Additionally, there are still people alive who have suffered harm. 369 This factor counsels strongly in favor of reparations for the Muslim community. As Professor Brophy points out, this “living connection[,] which has been important in other reparations cases, such as the Japanese Americans interned during World War II, provides a link between the past and the present.”370 This assures the
365 Yamamoto & Ebesugawa, supra note 347, at 270 (citing Ronald Reagan, Public Papers of the Presidents of the United States: Ronald Reagan, 1988-1989, Book II, July 2, 1988 to Jan. 19, 1989 (Washington, D.C.: U.S. Government Printing Office, 1991). 366 Elver, supra note 24, at 157. 367 Id. 368 This satisfies the first factor of governmental culpability outlined by Professor Brophy as a compelling justification for awarding reparations. See Brophy, Dreamland, supra note 301, at 105-07. 369 As Professor Brophy points out, this second factor represents a compelling foundation for awarding reparations because it provides a human connection between the harm and the present and can lead to understanding within the existing Muslim community that the government appreciates the harm, and its role in that harm, for what it is and is taking steps toward correcting it. See id. at 106. 370 Id.
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Muslim community, as well as society, that justice can be done and serves as a beacon of this assurance to others throughout the country and the world.371 The harms are also concentrated to people based on religion and national origin.372 Many of the targeted governmental policies and practices, as well as private discrimination and biases, characteristically profile the Muslim community and primarily affect those bearing traits commonly associated with it, such as “dark-skinned, bearded, males, with Arabic-sounding names.”373 Lastly, many people objected to the initial discriminatory policies and practices of the government that targeted the Muslim community in the wake of September 11 and those voices have certainly grown louder as these harmful actions have continued and expanded into the private sphere. 374 In fact, a recent survey by the Pew Research Center reveals that Muslims are considered by Americans to be the most discriminated against group “when compared to gays and lesbians, African Americans, Hispanics[,] and women.” 375 While the senseless hate, discrimination, and biases continue to this day, American society can certainly see the wrongs for what they are and, at the very least, comprehend objection to them. The attacks of September 11 opened deep wounds in the American conscience that remain largely unhealed, but society must not allow the conscience to influence the imagination and bypass the reasoning faculties it depends on to ensure that every citizen is afforded equal and fair treatment under the law. Different harms will call for different approaches to repair. When, as here, the harm is widespread, systemic, and recursive, a single monetary award will not solve the problem, though it may temporarily help. The government could not legitimately strip thousands of individuals from their homes and herd them behind barbwire in the haze of wartime hysteria today.376 However, it has adopted other comparatively discriminatory tactics, of
371 Id. 372 While the harm here may be characterized as general societal discrimination and not concentrated in time and place, which Professor Brophy initially identifies as a “much stronger” claim. Id. Brophy goes on to offer a “slightly expanded version of the Tulsa factors.” Id. at 118. In the context of reparations for slavery these factors are defined to include: intimate involvement in the maintenance of the institution of slavery by the government, “living victims of the legacy of slavery,” “the harm being remedied was concentrated on people based on race,” and that “many peopled argued at the time that slavery was wrong—and that there should be action to elevate the former slaves after slavery ended.” Id. 373 Aziz, supra note 15, at 33. 374 This particular factor—that people at the time of the harm understood the moral claim for reparations—avoids the pitfall of merely reading present day morality into the context of past events. See Brophy, Dreamland, supra note 301, at 106. And as this is an ongoing harm with exponentially growing dissention the claim is all the more strong and pressing. 375 Jaweed Kaleem, Link Between Islam and Violence Rejected by Many Americans After Boston Bombings: Pew Survey, Huffington Post (June 11, 2014, 11:19 PM), http://www.huffingtonpost.com/2013/05/07/islam-violence-muslims-survey_n_ 3231987.html 376 Though seemingly uncontroversial, this statement may be in some doubt as U.S. Civil Rights Commission’s “Peter Kirsanow . . . argued that enhanced national security is in the interest of Arab American civil rights, because . . . if another terrorist attack occurs
453 Savannah Law Review [Vol. 2:2, 2015] which this Note has attempted to recount, except for a few tactics that are geared toward virtually parallel functions and have similar, if not the same, ostracizing and stigmatizing effects. Although Muslim Americans have not suffered large- scale internment, they continue to be subjected to discrimination by the media and the political apparatus more than a decade after September 11.377 What’s more, given the unfortunate inevitability of terrorist attacks, and the concomitant backlash against the Muslim community, these harms are at constant risk of recurring. It thus makes little sense to heal an open wound only for it to be reopened the next time national tragedy strikes. What is needed is the abandonment of the old structure, which has contributed to and proven against the harms, in favor of a new structure—one that facilitates and fosters cooperative relationships designed to understand, empathize, and heal. This necessarily entails expanding the focus of redress beyond that of the particular harm inflicted upon a specific individual or group to include the very character of society itself, so that when tragedy does occur, misguided suspicions do not continue to arise, perpetuating enduring harms. Putting the Muslim community where it would have been had the terrorist attacks of September 11 never occurred would be of little meaningful consequence, as the perception of otherness has existed in the American imagination long before the attacks. 378 September 11 simply perpetuated and exacerbated this perception. This outlook seems particularly appropriate when what is harmed is beyond repair or when there is nothing to repair, as it has never been fully established. Hence, more is needed to foster the kind of “justice that heals” when considering widespread, systemic, recursive harms that have persisted and plagued the victimized community for a substantial period of time. The first step that must be taken on the road to Muslim American redress is governmental recognition of the harms that its practices and the effects policies have had on the Muslim community, and in turn, have had on the American public.379 However, as history has indicated, governments are slow to recognize harms they have caused or contributed to. Generally speaking, for a government to take this first step, there must be some incentive or pressure that compels this recognition beyond mere knowledge of complicity in the harm. Coincidently, partially as a result of some of these practices, and more generally the War on Terror, the United States has faltered in its democratic legitimacy. As Journalist Julia Swieg described, “the disjuncture between American ideals and actions has had profound effect—while the ‘ideal of the United States as beacon of justice, democracy, freedom, and human rights still garners grudging respect abroad,’ America’s ‘moral standing in the world has
on U.S. soil, public sentiment will support the internment of Arab Americans.” Joo, supra note 1, at 33. 377 See generally, Joo, supra note 1, at 33 (detailing the treatment of Arab and Muslim Americans by the public, media, and politicians since September 11, 2001). 378 See Elver, supra note 24, at 130-37. 379 See Yamamoto & Obrey, supra note 309, at 32-33.
454 Muslim Community Reparations precipitously declined since 2001.’”380 This fall from democratic grace provides strong incentive for the United States to recognize, acknowledge, and repair the harm it has caused in an effort to reclaim its proper footing and legitimacy on the world’s stage. The Japanese American redress movement was born of a time when the United States suffered a similar crisis of legitimacy and provided a promising blueprint to consider when thinking about the ways in which various legal and political avenues may be utilized so as to provide an effective forum to alter public consciousness and provide an outlet for achieving this sort of recognition.381 Next, the government must acknowledge and take responsibility for repairing the damage imposed on the Muslim community through the abuse of its power.382 At this initial stage, the acknowledgment could come in the form of an apology to the community, representing an effort to move forward. After responsibility has been acknowledged and an effort to make amends has been established, reconstruction may begin.383 Here the idea is to “build a new [and] productive relationship.”384 This can begin with acceptance of the government’s apology on the part of the Muslim community and even forgiveness.385 Also, the government and the Muslim community should strive to reframe their history and interactions and make efforts to restructure political and economic powers. 386 Giving the Muslim community a voice in the reparative process calls for a forward-looking approach in which the two sides may put the past behind them and work together toward building something better for the future.387 An effective way to do this would be for the government to establish an Office of Muslim Affairs, similar to what was established during the Japanese American Internment reparations process. However, unlike during Japanese Internment reparations, the Muslim community, too, should establish an office to work in collaboration with the governmental office, as this would necessarily be a collaborative process.388 The
380 Yamamoto et al., supra note 303, at 71 (quoting Julia E. Sweig, Why They Hate Us, L.A. Times, Aug. 15, 2006, at A10). 381 It may be argued that, at least on the legal front, society has witnessed attempts at gaining this recognition. See, e.g., Aschcroft v. Iqbal, 556 U.S. 662 (2009); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Fazaga v. F.B.I., 884 F. Supp. 2d 1022 (C.D. Cal. 2012); Hassan v. City of New York, No. 2:12-3401 WJM, 2014 WL 654604 (D.N.J. Feb. 20). 382 Yamamoto & Obrey, supra note 309, at 34. 383 See id. 384 See id. 385 See id. 386 See id. 387 See Brophy, Pro & Con, supra note 310, at 8. 388 This approach draws on concepts of Restorative Justice, particularly victim- offender mediation, with the governmental office representing the offending class and the Muslim office representing the victimized class, in which the two work together in a “safe and structured setting” toward “closure” and “reconciliation.” Willie McCarney, Restorative Justice: An International Perspective, 3 J. Ctr. for Families, Child. & Cts. 3, 10 (2001). Restorative Justice principles are especially conducive to the repairing of the harm at issue here in that it “value[s] the active participation of victims, offenders[,] and communities, often through direct encounters with each other, in an effort to identify the injustice done, the resultant harm, the proper corrective steps, and future actions that can reduce the likelihood of future offenses.” Daniel W. Van Ness & Pat Nolan, Legislating for Restorative Justice, 10 Regent U. L. Rev. 53, 53 (1998).
455 Savannah Law Review [Vol. 2:2, 2015] goal here is to restructure the institutions that caused the harms that were inflicted on the Muslim community and ensure that they will not be repeated. This endeavor is especially important in this particular context because terrorist attacks will inevitably occur, and inevitably, suspicions will be cast upon the Muslim community.389 As an expression of sincerity and assurance, reparations390 requires that the government commit to repair the harms caused through its actions. Here, the government must offer some action, or as Roy Brooks would call it, “atonement,” to aid the Muslim community in reintegrating into the community as equal citizens, in an effort to undo the harm to which the government has contributed, and move forward.391 This atonement could come in a variety of forms, but given the pervasiveness of the harm and the negative connotation the conflation of reparations with monetary award has engendered,392 true integration as equals might be thwarted by lump sum cash allotments. Rather, in this context, reparations should come in the form of a fund established by the government for the benefit of the Muslim community, to be managed and administered by a board comprised of members from both the governmental Office of Muslim Affairs, as well as an office established by the Muslim community. True reparations for the Muslim community will come in the form of changes to harmful policies and procedures. This change should result from collaboration between the offices. The idea is that close collaboration and targeted aims will better repair and more comprehensively regenerate the Muslim community, while, at the same time, and largely as a result of, give the community a voice and stake in the process and outcome. Much of the discrimination faced by Muslim Americans stems from an interplay and coalescence of poorly administered, maintained, and conceived counter-terrorism mechanisms that broadly sweep innocent individuals within its purview, depriving them of rights they would otherwise enjoy if not for their religion, appearance, national origin, or association. At the center of this interplay sits the consolidated Terrorist Watchlist. The Watchlist is used as a basis for comparison against other national security protocols, rendering a flaw present in its impact on, not just flying restrictions, but on a vast number of other liberties all individuals should freely enjoy. Not to mention the share of discrimination, such as the use of informants, community mapping, and material witness and support statutes, attributable to attempts at expanding the list by employing invasive and coercive means to gain information. Thus, as an initial matter, steps should be taken to provide for more effective management of the list to ensure that names included on the list have a sufficient basis for suspicion of terrorism. Additionally, procedures should be provided for those who believe they are wrongfully included on the list in order to ascertain whether they are wrongfully included, and
389 See, e.g., Gray, supra note 55 (describing the backlash and suspicion directed at the Muslim community following Boston bombings). 390 See Yamamoto & Obrey, supra note 309, at 35. 391 Waterhouse, supra note 313, at 264. 392 See Yamamoto & Obrey, supra note 309, at 29.
456 Muslim Community Reparations opportunities should also be afforded for those individuals to challenge their inclusion and have their name removed if their inclusion was in error. Those who share the same name, or a confusingly similar name, as someone on the list should likewise be provided a mechanism by which to distinguish themselves from those on list for whom a legitimate basis exists. This Watchlist revision is but one example of what reparations might look like through the collaborative efforts of the Muslim community and the government and represents but one step toward social healing. Reparations of this scale should be seen not as a single satisfactory moment in time, but rather a process in which the Muslim community, the government, and society as a whole, all work together in the spirit of mutual respect and understanding in an attempt to gain reintegration—and ultimately reconciliation. The solution to reparations should not be one in which “‘we’ do something for ‘them.’”393 Rather, “it is to construct a we—meaning all Americans—capable of righting whatever social injustices plague our society—for ‘our own sake’ in this country, so that our moral pronouncements on the world stage will not be made into a hollow mockery.”394 The fear is that a governmental payout will only serve to deepen the divide between the Muslim community and American society so that when harms continue to plague the Muslim community, “s[k]eptical onlookers will be able to say, ‘We’d love to help, but you [Muslims] have already been paid.’”395 Moreover, this approach reduces the likelihood that the victimized community will view the government’s reparative actions as an insincere payoff for incalculable harms. By working in collaboration with the government toward reparations, the Muslim community can bring about lasting change and contribute to their own reparation, thereby empowering their community and building relationships of trust and understanding. Moreover, “in a democratic system which distinguishes legitimacy from mere balances of power, the only way to assure that the legitimacy of a law has been attained is by making sure that the law incorporates the interests of all that are affected by it.”396 Under the watchful gaze of society and the global community, any country purportedly devoted to human rights and democracy should take special care to project itself in a way that vividly reflects those ideals.397 One way that this projection is made is through the manner in which the country repairs its relationships with those harmed under its infrastructure.398 Reparations may never fully repair the harm suffered from years of discrimination, hate, and abuse, but it can offer a foundation for recognition,
393 Glenn G. Loury, Transgenerational Justice—Compensatory Versus Interpretative Approaches, in Reparations: Interdisciplinary Inquiries 87, 88 (Jon Miller and Rahul Kumar, ed. 2007). 394 Id. at 88-89. 395 Id. at 89. 396 De Greiff, supra note 315, at 464. 397 See Yamamoto & Obrey, supra note 309, at 37. 398 See id. at 36 (noting “that the legitimacy of a democracy professedly committed to civil and human rights is in part dependent upon how it reconstructs relationships and repairs persisting damage”).
457 Savannah Law Review [Vol. 2:2, 2015] remorse, and commitment upon which to create better relationships going forward. The fact that the optimal result may not ultimately be attained should not work against reparatory efforts, for the effort itself holds the potential of bridging divides deeply entrenched in society.399
V. Conclusion Reparations for Muslim Americans should be part of our nation’s conscience and dialogue. The harms are significant and still amassing. No quick fixes exist, but the time for government acknowledgment and progress is now. Although the process will certainly not happen overnight, the Muslim community, American society, and the American government will be better off as a result. Not only will the Muslim community be elevated to its democratically respective and deserving role, but the United States will also resume its position on the World’s center stage as a beacon of justice, freedom, democracy, and human rights.
399 De Greiff, supra note 315, at 464.
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