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Muslim Community Reparations 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. 391 Savannah Law Review [Vol. 2:2, 2015] 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). 392 Muslim Community Reparations 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,
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