Reclaiming Our Rights:
Reflections on Racial Profiling in a Post-9/11 America
A project of the Tides Center
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Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America Published September 2011
About Rights Working Group
Formed in the aftermath of Sept. 11, 2001, Rights Working Group (RWG) is a national coalition of civil liberties, national security, immigrant rights and human rights organizations committed to restoring due process and human rights protections that have been eroded in the name of national security. RWG works to ensure that everyone in the United States is able to exercise their rights, regardless of citizenship or immigration status, race, national origin, religion or ethnicity. With over 300 member organizations across the United States, RWG mobilizes a grassroots constituency in support of a policy advocacy agenda that demands accountability from the U.S. government for the equal protection of human rights. RWG is led by a Steering Committee, composed of leading organizations representing the key constituencies of the coalition. Steering Committee members are the American-Arab Anti-Discrimination Committee; American Civil Liberties Union; American Immigration Lawyers Association; Arab American Institute; Arab Community Center for Economic and Social Services; Asian American Justice Center; Bill of Rights Defense Committee; Border Network for Human Rights; Breakthrough; Center for National Security Studies; Coalition for Humane Immigrant Rights of Los Angeles; Human Rights First; Human Rights Watch; The Leadership Conference on Civil and Human Rights & Education Fund; Muslim Advocates; National Council of La Raza; National Immigration Forum; National Immigration Law Center; New York Immigration Coalition; OneAmerica; Open Society Policy Center; South Asian Americans Leading Together; and the Tennessee Immigrant and Refugee Rights Coalition. The full breadth of RWGâ€™s work can be seen at www.rightsworkinggroup.org.
Rights Working Group is greatly appreciative of the hard work and dedication of the authors who contributed to “Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America.” All the contributors are committed to combating the use of racial profiling, which is the focus of RWG’s campaign, Racial Profiling: Face the Truth. We thank them and look forward to continued collaboration in the future. The authors include: The Honorable Benjamin L. Cardin, Senator, Maryland The Honorable John Conyers, Jr., U.S. Representative, Michigan Shahid Buttar, Executive Director of the Bill of Rights Defense Committee Pramila Jayapal, Founder and Executive Director of OneAmerica Dr. Tracie L. Keesee, Executive Director of Operations for the Consortium of Police Leadership in Equity and Division Chief, Research Training and Technology Division, Denver Police Department Monami Maulik, Founder and Executive Director of Desis Rising Up & Moving Laura W. Murphy, Director of the ACLU Washington Legislative Office Karen K. Narasaki, President and Executive Director of the Asian American Justice Center Christian Ramirez, National Coordinator of the American Friends Service Committee’s Project Voice Nadia Tonova, Director of National Outreach of the National Network for Arab American Communities Arturo Venegas, Retired Police Chief; Project Director, Law Enforcement Engagement Initiative The Rights Working Group would like to thank The Atlantic Philanthropies, The Ford Foundation, the Open Society Foundation, and the U.S. Human Rights Fund for their generous financial support, which made this report and the Racial Profiling: Face the Truth campaign possible. We also wish to acknowledge the hard work and contributions of the Rights Working Group staff. Pabitra Benjamin, Mitzi Bowen, Sameera Hafiz, Margaret Huang, Jumana Musa, Sian Miranda Singh ÓFaoláin, Keith Rushing and Aadika Singh all contributed to the conception, recruitment, review and production of this report. A special thanks to Christina Zola who designed this report.
Table of Contents Foreword: September 2011 1 Margaret Huang, Executive Director, Rights Working Group
Introduction: The Evolution of the Debate Over Racial Profiling
The Honorable John Conyers, Jr., U.S. Representative, Michigan
The “New” Post-9/11 Realities 7 Karen K. Narasaki, President and Executive Director, Asian American Justice Center
Reflections on Racial Justice and Ending Racial Profiling
Laura W. Murphy, Director, American Civil Liberties Union, Washington Legislative Office
Reflections from the Frontlines: 10 Years of Organizing in New York City
Monami Maulik, Founder and Executive Director, Desis Rising Up & Moving
Those Who Remain Subject to Law 29 Shahid Buttar, Executive Director, Bill of Rights Defense Committee
The Open Wound of the U.S.-Mexico Border
Christian Ramirez, National Coordinator, American Friends Service Committee’s Project Voice
Profiling At Our Northern Borders
Nadia Tonova, Director of National Outreach, National Network for Arab American Communities
Racial Profiling in the Context of Interior Immigration Enforcement
Pramila Jayapal, Founder and Executive Director, OneAmerica
To Honor the Constitution
Retired Police Chief Arturo Venegas, Project Director, Law Enforcement Engagement Initiative (LEEI)
Conclusion: Congress Should Prohibit Racial Profiling by Law Enforcement Agencies
The Honorable Benjamin L. Cardin, Senator, Maryland
About the Authors
Foreword September 2011 Margaret Huang Executive Director, Rights Working Group
In the summer of 2001, racial justice advocates were in the midst of a flurry of exciting developments. After years of work by advocates to fight back against the racially discriminatory impact of the “war on drugs,” the End Racial Profiling Act (ERPA) had been introduced in both houses of Congress. An August hearing in the Senate encouraged hopes for passage within the year. In the private sector, giant corporations Xerox and Microsoft were being sued for racial and gender discrimination, and Coca Cola had just reached, in 2000, a record $192 million settlement in a racial bias case brought by African American employees. The Third World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance was held in early September in Durban, South Africa, to celebrate the end of apartheid and a new global commitment to fighting racial injustice. Then, on September 11th, the tragic attacks on the World Trade Center in New York and the Pentagon in Washington, D.C., changed the nation in a single day. The loss of human life was staggering—there were nearly 3,000 victims killed by the attacks including nationals of more than 70 countries of every race and religion. Not only did all of the passengers on the planes used in the attacks die, but thousands more were killed in the crash sites of the Twin Towers, the Pentagon, and the field in Pennsylvania, and hundreds of rescue workers, fire fighters and police officers also gave their lives. Many more residents and rescue workers became ill and some also died in the months and years after the attacks, as debris and dust from the collapsed buildings were proven to be toxic for nearly one year after the attacks. In addition to these terrible losses, another significant loss occurred—the loss of civil liberties and human rights protections for many communities in the U.S. In particular, the problem of racial and religious profiling expanded dramatically under a number of new or revised government policies and programs. The decision in 2001-2002 by the Bush Administration to detain men of Arab, South Asian, or Muslim backgrounds as suspects in the new “war on terrorism” resulted in the arbitrary detention of more than 1,200 individuals. It coincided with a dramatic increase in harassment of and hate crimes against people in those communities. The newly-created Department of Homeland Security (DHS) devoted new and expanded resources toward the detention and deportation of immigrants, increasingly encouraging local police to enforce federal immigration laws and raising concerns about the racial profiling of Latino communities. DHS also joined forces with the Federal Bureau of Investigation and other law enforcement agencies to dramatically expand surveillance and information-sharing activities through such initiatives as fusion centers and suspicious activity reporting. These activities have led to allegations of racial profiling of Arab, South Asian, Muslim, and Latino communities by federal agencies. Many state governments joined their federal counterparts in implementing racial profiling as a law enforcement technique. In 2007, the Los Angeles Police Department was forced to cancel a mapping program designed to identify potential extremists in Middle Eastern, Arab, and Muslim communities in Los Angeles after residents protested the plan. In the last two years, a number of states have claimed new authority to enforce federal immigration laws, enacting “papers please” legislation and mandating that local police ask individuals about their immigration or citizenship status. The infamous law enacted in
Foreword by Margaret Huang
Arizona in 2010—SB 1070—has now been copied and passed in Alabama, Georgia, Indiana, South Carolina, and Utah, with Pennsylvania holding legislative hearings on similar legislation. Ten years later, the Rights Working Group (RWG) coalition sees the anniversary of these events as a chance to pause and remember—to reflect on our losses since September 11th and to reclaim those rights lost in the aftermath of the attacks. This collection of essays, from public officials, policy advocates, grassroots organizers, law enforcement officials, and community leaders, shares personal reflections of the struggle to overcome the pervasive human rights problem of racial profiling. Their stories and suggestions are insightful views into the challenges of the work but also the significance of the struggle.
Congressman John Conyers, Jr., who first introduced ERPA in 2001, offers an introduction for this collection of essays, noting why the legislation is needed today more than ever. Karen K. Narasaki reminds us that racial profiling is not new, and that we must remember the historical lessons from World War II and the internment of Japanese Americans in order to avoid making the same errors of targeting a particular community out of fear. Laura W. Murphy shares her personal recollections of the encounters her African American family had with law enforcement, and how her experience drove her and others at the ACLU to promote ERPA as an important response to biased policing. Monami Maulik describes her work as a community organizer who was overwhelmed by the racial and religious profiling targeting her community after September 11th and the steps she took to fight back. Shahid Buttar notes that September 11th was used to justify new government powers of surveillance and information-sharing that have resulted in further racial profiling of Muslim, Arab, South Asian, and other immigrant communities. Nadia Tonova and Christian Ramirez discuss the pervasive use of racial profiling on the northern and southern borders of the United States, where border communities increasingly fear contact with both the police and Customs and Border Protection officers. Pramila Jayapal offers insight into the expansion of immigration enforcement programs that have led to racial profiling of Latino and other immigrant communities across the country, impacting community safety and residents’ trust in the police. Former Police Chief Art Venegas highlights the importance of law enforcement officers taking steps to combat racial profiling within their own departments in order to be effective at promoting community safety. In the concluding essay, Senator Benjamin L. Cardin explains his commitment to reintroducing ERPA later this year, noting that racial profiling is not only an ineffective law enforcement technique but also a violation of our constitutional rights. Rights Working Group is grateful to all of them for contributing to this effort. In considering where we go next in the fight against racial profiling, Rights Working Group has provided a list of recommendations at the end of the report, including urging policymakers and community members to join the RWG Racial Profiling: Face the Truth campaign. Dr. Tracie Keesee has graciously contributed recommendations to law enforcement officers working to end racial profiling within their departments. To learn more about the campaign, or to get involved in RWG’s activities, please visit www.rightsworkinggroup.org. During this time of remembrance, let us work together to reclaim those rights sacrificed in the name of national security over the last 10 years. Let us emphasize the values that reflect the best intentions of our country’s history—democratic governance, embracing diversity, and equal justice under the law. While we grieve the losses felt by so many after the tragic deaths of September 11th, let the anniversary serve as a call to action. Together, let us recommit ourselves to reaffirming that the human rights and civil liberties of all people must be upheld. Margaret Huang Rights Working Group
Introduction The Evolution of the Debate Over Racial Profiling The Honorable John Conyers, Jr. U.S. Representative, Michigan
The debate over racial profiling has become a central element in a much larger history of adversarial relationships between the police and communities of color. When I introduced data collection legislation during the 105th Congress, the phenomenon of driving while black was well known in the African-American and Latino communities. However, some commentators still tried to deny the credibility of people who came forward to tell stories about their treatment by the police. But as the litigation mounted and data was collected, it became obvious that the nation had a serious problem with the use of race by law enforcement. Over the past two decades, tensions between police and communities of color have grown as allegations of racial profiling by law enforcement agents, sometimes supported by data collection efforts, have increased in number and frequency. Around the nation, “flying while Arab” has joined “driving while black” in the lexicon of civil liberties issues. Few have been spared from suspicion, based upon their outward appearance. For example, Rep. Darrell Issa, an Arab-American U.S. Congressman, was prevented from boarding a flight in Paris in the wake of 9/11, even after providing his congressional identification. More ironically, an American Muslim Capitol Hill staffer, Rashad Hussain—who would ultimately be appointed Special Envoy to the Organization of the Islamic Conference—was harassed by airline employees after boarding, and was asked to produce four pieces of identification, in addition to his congressional ID, on his way back to Washington. Because neither of these incidents were triggered by recognition of suspicious behavior, they beg the question of whether the time and effort put into targeting innocent individuals, based on race and ethnicity, diverted the focus from rooting out those with malicious intentions. The terrorist attacks of September 11, 2001 and the ongoing immigration enforcement debate have only complicated profiling issues that traditionally were centered on state and local law enforcement. Despite the fact that the majority of law enforcement officers perform their duties professionally and without bias—and we value their service highly—the specter of racial profiling has contaminated the relationship between the police and minority communities to such a degree that federal action is justified to help achieve some resolution of the issue. Racial profiling is a direct affront to the constitutional promise of equal protection under the law. Because it can happen anywhere and anytime, on the street, the highway, at the border or in an airport, racial profiling forces millions of minority Americans to alter their lives and habits in ways that would never occur to most white Americans. Moreover, racial profiling deeply undermines the legitimacy and effectiveness of the criminal justice system, making police work much more difficult and dangerous. In response to these concerns, the Department of Justice, under the past two presidents, and members of Congress have introduced a variety of measures designed to combat the practice. Since our early data collection proposals, racial profiling legislation has evolved to address a more complex law enforcement landscape. Though data collection legislation passed the House on suspension of the rules on May 24, 1998, the legislation stalled in the Senate. Next year, during the 106th Congress, this legislation again obtained bipartisan support, but was essentially outdated due to its lack of a remedial focus, and did not come to the floor for a vote in either chamber. Ultimately, however, the data collection legislative effort proved successful at both the state and federal levels. President Clinton directed federal agencies to begin the process of collecting data on the race and ethnicity of persons stopped or searched by federal agents in June 1999 and all but three states have some version of mandatory or voluntary data collection, patterned on my federal bill.
Introduction: “The Evolution of the Debate Over Racial Profiling” by the Honorable John Conyers, Jr.
By the time we had reached the 107th Congress, the legislative efforts around racial profiling had achieved a level of acceptance, with bipartisan and bicameral support. The zenith of the effort was reached when President Bush called for the passage of profiling legislation that would end the practice during his first, February 2001, State of the Union address. The End Racial Profiling Act, introduced that June in response to the President’s request, reflected changes in the legal and political climates that had occurred since the initial introduction of traffic-stop data-collection legislation. The bill expanded to include a prohibition on profiling and a programmatic response, which reflected the need for the development of systemic policies to battle deep-seated bias that damages law enforcement, and the criminal justice system as a whole, by undermining public confidence and trust in the police, the courts and the criminal law. In mandating a programmatic response, the legislation made the Department of Justice the focal point for organizing the provision of financial and technical support to ensure that best practices were deployed to fight racial profiling at all levels of law enforcement. With a strong legislative history in the House and an August 1, 2001, hearing in the Senate, the bill was primed for passage before the October recess deadline set by the President.
While the “war on terror” in response to 9/11 dealt a blow to the profiling reform effort, the process was not completely stalled at the federal level. The next major reform step occurred in June 2003 when the Bush administration promulgated a series of guidelines designed to end the practice of racial profiling by federal law enforcement agencies. While the guidance demonstrated some commitment to reform, it was actually a half step short of the full commitment articulated by the President two years earlier. The guidance failed in several significant ways: (1) not reaching the actions of state and local law enforcement agencies, which are the source of most complaints; (2) containing a national security carve-out, which has contributed to complaints of profiling in airports and at borders and (3) omitting a reference to religious and national origin profiling. Although technically still in place, this provision has served only a symbolic purpose and is under review by the Obama administration. In the post-9/11 climate, one can almost become nostalgic about how simply the issue presented itself in political terms during the late 1990s. Then, racial profiling was represented by the classic pretext traffic stop, where an African-American driver was pulled over for a minor traffic violation and then asked for consent to search their vehicle. Today, traffic and pedestrian stops have given way to airport passenger profiles and immigrant sweeps. The arrest of Harvard Professor Henry Louis Gates and the passage of Arizona SB 1070 demonstrate that the combination of race and law enforcement still represents a volatile mix across all strata of the minority community. Our challenge today is recapturing the legislative momentum lost as a result of the 9/11 attacks. By September 11, 2001, there was significant empirical evidence and wide agreement among Americans, including President Bush and Attorney General Ashcroft, that racial profiling was a tragic fact of life in the minority community and that the federal government should take action to end the practice. Moreover, many in the law enforcement community acknowledged that singling out people for heightened scrutiny based on their race, ethnicity, religion, or national origin had eroded the trust in law enforcement necessary to appropriately serve and protect our communities. Advocates of policing reform again find ourselves mired in the debate of freedom versus security. In many ways, we have returned to square one, debating whether profiling is a useful law enforcement tactic, this time focusing on a new ethnic group. Just like in the drug war, the war on terror places minority communities on the front line and asks them to sacrifice their liberty for the pursuit of some common good. We are also left with the more delicate political issue of whether it makes legislative sense to divide the street enforcement debate from that of airports and borders, with some commentators and politicians boldly suggesting again that racial profiling is an appropriate law enforcement tactic for ferreting out terrorists and enhancing the nation’s sense of security.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • Sept. 2011
While supporting the expansion of the government’s powers to reflect the new threats of the 21st century, I wholeheartedly reject this strategy of divide and conquer. This sentiment falls into the pattern of seeking out domestic scapegoats when America faces a domestic attack from forces outside its borders. Invariably, clear-headed historical analysis has shown that violations of the civil liberties of Americans who share some ethnic heritage with our enemies not only failed to enhance domestic security, but created a blight on the national conscience. Moreover, this argument has quickly evolved to subsume the immigration debate, allowing some commentators to conflate the issues of immigration and terrorism. Even though we have confronted mixed political signals which have slowed progress toward reform, I remain optimistic about the chances of success. Decades ago, this country made clear through the passage of sweeping civil rights legislation that race should not affect the treatment of individual Americans under the law. We must reaffirm the concept today that when law-abiding citizens are treated differently by those who enforce the law simply because of their race, ethnicity, religion, or national origin, they are denied the basic respect and equal treatment that is the right of every American. I believe that this principle will eventually win the day, just as constitutional principles prevailed during the civil rights movement, and will allow us to heal the rift caused by racial profiling.
The “New” Post-9/11 Realities Karen K. Narasaki President and Executive Director, Asian American Justice Center
On 9/11, I had just returned from the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance that had been held in South Africa. The Asian American Justice Center had led an Asian American delegation, held workshops on immigration and hate crimes, and participated on panels with the Leadership Conference on Civil and Human Rights. Like the rest of America, my eyes were glued to the surreal images on television. And, like many minority Americans, I thought, “I hope these terrorist attacks were not the work of anyone who looked like me.” I grew up dreading December 7th. My parents had been teenagers living in San Jose and Seattle at the time of Japan’s bombing of Pearl Harbor—another day that “lives in infamy.” They, along with more than 120,000 other Americans of Japanese descent, were rounded up and shipped to remote desert internment camps. This imprisonment, with no due process or any individualized suspicion, is one of our history’s more extreme examples of racial profiling. When it became clear in the wake of the 9/11 attacks that a handful of radical men from a few Middle Eastern countries were to blame, I felt grief and fear for all of those who would now face a backlash due to their religion and ethnic appearance. I knew this would be true not just in the immediate aftermath, but—likely—for at least a generation. Although President Bush immediately called on the nation not to blame all Muslims or Arabs for the attacks, the actions his administration took through his War on Terror sent Americans the opposite message. My fears were realized. The appearance-based backlash was swift. Hate crimes against Muslims, against Arab Americans and against anyone who just looked as though he or she might be a Muslim or Arab American, such as Sikhs and other South Asians, skyrocketed. AAJC documented over 500 hate crimes against Asian Americans and Pacific islanders in 2001, a 23 percent increase over the previous year. Not only were the numbers higher despite chronic under reporting, but the incidents involved a higher degree of physical violence. In addition to aggravated assaults, there was arson and other forms of vandalism. Indeed, the first person killed in the backlash was Balbir Singh Sodhi, a 49-yearold Sikh American, who was shot outside a gas station in Mesa, Arizona. Waqar Hasan, a Pakistani-American store owner in Dallas, Texas was also murdered soon after. Representative John Cooksey (R-LA) called Arab and South Asian Americans “towel heads,” going on to note: “If I see someone [who] comes in that’s got a diaper on his head and a fan belt wrapped around the diaper on his head, that guy needs to be pulled over.” Taking their cue from Representative Cooksey, Congress rushed through pieces of legislation, such as the USA PATRIOT Act, which gave excessive police powers to the executive branch that were unchecked by judicial review. A new, massive Department of Homeland Security was created to oversee this new legislation.
“The “New” Post-9/11 Realities” by Karen K. Narasaki
While Attorney General John Ashcroft met with Arab American and Muslim American leaders to hear their concerns, the Department of Justice was rounding up and imprisoning thousands of individuals, denying them access to attorneys and their families, without charging them with a specific crime. The department urged the public to report anyone who appeared to be “suspicious” (which many interpreted as having a beard or wearing a turban) through a special 800 number, resulting in numerous raids of innocent people’s homes and businesses. At the same time, the airlines began using racial profiling to search and deny boarding to passengers, simply because they looked Arab or Muslim. AAJC helped to organize a meeting between Arab American and South Asian American community leaders and the Department of Transportation, which still had jurisdiction at the time. Fortunately, the secretary of the Department of Transportation was Norman Mineta, a Japanese American who had experienced internment himself as a boy during World War II. Secretary Mineta’s presence in the cabinet was very likely one of the reasons the Bush Administration stopped short of wholesale internment of Arab and Muslim Americans. However, the War on Terror’s policies and programs did result in the detention and deportation of very large numbers of otherwise innocent immigrants. In a meeting at the Department of Justice, where I laid out the Asian American Justice Center’s concerns about the administration’s policies, then-Deputy Attorney General Larry Thompson, who led the Bush Administration’s counterterrorism efforts, earnestly put forth his belief in the necessity of the Administration’s strategies. He shared that someone in his family had almost been in the World Trade Center Towers. I realized, then, how the internment of my parents happened—something I had never been able to fully understand before. That day, at the Department of Justice, I witnessed how otherwise well-meaning people, in times of national crisis, are so easily able to justify the wholesale sacrificing of constitutional principles and the rights of others. 8
Two months after 9/11, Attorney General Ashcroft announced a so-called “voluntary” program to interview 5,000 Arab American immigrants. In 2002, the Bush Administration announced the National Security Entry-Exit Registration System (NSEERS), which required noncitizen males over the age of 18 from Arab and Muslim countries, as well as North Korea, to go through a special registration process. If there had been any doubt before, it was now indisputable that the Administration was employing racial profiling on a massive scale. Throughout 2002 and 2003, AAJC struggled to keep pace with the Bush Administration’s sweeping moves. AAJC opposed pieces of the Patriot Act and the legislation to put the Immigration and Naturalization Services agency under the control of the newly-created Department of Homeland Security, fearing that all
Ken Nobe and Richard Narasaki (right),of the 442nd Regimental Combat Team, WWII
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • Sept. 2011
immigrants would be treated as potential enemies, rather than as new Americans. AAJC pulled together a meeting of two dozen South Asian organizations from across the country to discuss the new post-9/11 realities. AAJC also joined the Leadership Conference on Civil and Human Rights in pulling together a series of meetings of human rights organizations, civil liberties groups, civil rights and immigrant rights groups. It had become clear that the different stakeholders were all struggling to respond. And, because we worked with different parts of the laws being put into play, we were potentially working at cross purposes because of our disparate priorities and approaches. Human rights groups and civil liberties groups didn’t always understand the immigration laws that were now intersecting with human rights and civil liberties, principles which weren’t always fully understood by the immigrant rights groups. In 2003, this coalition was formalized as the Rights Working Group and was staffed out of AAJC. In 2004, the coalition worked with Congress on the Civil Liberties Restoration Act, a modest attempt to roll back some of the policy excesses that were enacted in the immediate aftermath of 9/11. Ironically, President Bush had campaigned for the Arab American vote for his first term before 9/11. One of his promises was to end the practice of racial profiling. Indeed, a significant percentage of the Arab American community supported Bush for exactly that reason. Racial profiling had been a hot topic during the Clinton Administration. At the time, focus was mainly on traffic stops and customs searches. As part of President Clinton’s “One America” initiative on race, Attorney General Janet Reno called together stakeholders in the debate for a ground-breaking series of meetings to examine the issue from every angle. Federal, state and local law enforcement agencies sat down with civil liberties and civil rights advocates. Law enforcement included chiefs of police, sheriffs, police unions and minority police organizations. The Department of Justice representatives included top leadership from the FBI, Community Relations Service and other relevant agencies at the department. At the time, this also included the Immigration Naturalization Service (INS) and the Border Patrol. In the end, Congress and the Clinton Administration failed to address the problem. I heard that it was, at least in part, because of opposition from the INS to ending racial profiling in immigration enforcement and by the FBI and national security agencies. Initially, there was a debate over whether or not the End Racial Profiling Act would be limited to the more traditional occurrences, like traffic stops. It was believed that a more limited bill would have an easier time winning passage. AAJC joined Latino and Arab American groups who felt strongly that the legislation needed to cover immigration and related enforcement. Much to their credit, the African American groups agreed and momentum was beginning to build toward passage. Unfortunately, the clock ran out as the Clinton Administration continued to waver on the issue. After the election, the Bush Administration and Attorney General Ashcroft did begin working on an internal executive order to stop racial profiling. However, in the aftermath of 9/11, what came out was a toothless policy with no provisions to hold violators accountable and coverage limited to only federal agencies and race, rather than including religion and national origin. Additionally, it has wide-reaching exceptions for national security that renders the policy almost useless. I have debated many advocates of racial profiling and the unfair treatment of Arab Americans, Muslims and South Asians since 9/11. They argue that if you are not guilty, being racially profiled isn’t a problem since it is but a temporary inconvenience to be stopped, searched and even detained. They have no understanding of the confusion and betrayal that is felt when you are someone who loves this country and believes in its promises, and are suddenly treated as if you were the enemy simply because of your name, your face or your religious practices.
“The “New” Post-9/11 Realities” by Karen K. Narasaki
I fly frequently and often overhear complaints in the security line when TSA is stopping and searching anyone who does not look like they would be “a terrorist.” Put aside for a moment that the U.S. has experienced terrorist attacks from extremist groups and from crazy people of every race. The importance of this evenly administered “inconvenience” forces all of us to experience the embarrassing process. As a result, it ensures that we have a healthy debate about how much groping, loss of privacy and loss of civil liberties we are willing to take in the name of national security. The Morchida family, Hayward, California, May 8, 1942, as they wait for an evacuation bus
The trauma that results from racial to take them to an internment camp. profiling is real and the consequences can be life-altering. I’ve personally witnessed the pain that lingers in the Japanese American community. 10
Last year, I also heard heart-rending testimony in hearings across the country that documented rampant racial profiling. The hearings were organized by the Rights Working Group. I know a Pakistani American family that no longer wants to travel because their children are so traumatized by the inevitable stopping and questioning. I met a Hispanic mother and her daughters who no longer trust the police in their communities to protect and serve them. And, when government is racially profiling, we can’t expect that ignorant vigilantes won’t follow their lead with violence toward people, places of worship, and small businesses. A decade after that awful day in September, have we learned anything? On one hand, the answer would appear to be no. The Gainesville Times ran an editorial just this May, stating, “[T]here’s no way to tell which Muslims seek to do us harm.” The newspaper used the editorial to applaud a Delta pilot who refused to fly with two Muslims aboard and issued a call to “get the Muslims out of the U.S.” This is the same claim that was made about Japanese Americans during World War II to justify internment. General DeWitt, the Western Defense Commander famously said, “A Jap’s a Jap,” when it was pointed out that he was rounding up American citizens. The Obama Administration recently de-listed the original countries covered by NSEERS. However, the program’s infrastructure remains in place and sends the wrong message that its reuse is a possibility. On the other hand, there are signs that we have learned and are learning. There is an increasing pushback against the “new normal.” With the capture of Osama Bin Laden, perhaps the fog of fear and panic will finally subside and we can begin, again, to seek to have a rational debate about racial profiling.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • Sept. 2011
About the images Pg. 6: Graphic rendering derived from original photograph by Dorothea Lange, San Francisco, California, April 11, 1942. “On a brick wall beside air raid shelter poster, exclusion orders were posted at First and Front Streets directing removal of persons of Japanese ancestry from the first San Francisco section to be affected by evacuation. The order was issued April 1, 1942, by Lieutenant General J. L. DeWitt, and directed evacuation from this section by noon on April 7, 1942. Evacuees will be housed in War Relocation Authority Centers for the duration.” Courtesy of the Bancroft Library. University of California, Berkeley. Original photo may be viewed here: <http://oac.cdlib.org/ark:/13030/ft9k4009cm/?brand=oac4>. Pg. 8: Richard Narasaki, Karen Narasaki’s father, is the driver in this photograph, with Ken Nobe seated beside him. Mr. Narasaki served in F company in the 442nd Regimental Combat Team and fought in Italy and France. The 442nd was a segregated, all Japanese American Unit during WWII and is the most highly decorated Army unit of its size. Mr. Narasaki voluntarily joined the Army from an internment camp in Topaz, Utah, where his American-born mother was still imprisoned. Pg. 10: “Hayward, Calif.—Two children of the Mochida family who, with their parents, are awaiting evacuation bus. The youngster on the right holds a sandwich given her by one of a group of women who were present from a local church. The family unit is kept intact during evacuation and at War Relocation Authority centers where evacuees of Japanese ancestry will be housed for the duration.” Photographer: Dorothea Lange, Hayward, California, May 8, 1942. Courtesy of the Bancroft Library. University of California, Berkeley. 11
Reflections on Racial Justice and Ending Racial Profiling Laura W. Murphy Director, ACLU Washington Legislative Office
“Are you lost?” the police officer asked Yawu Miller, a black reporter, one night in 1998 as he drove in Brookline, Mass., a predominantly white community. Not just one, but three police cruisers tailed him, as if he had done something wrong. Instead, the charge was simply, “You’re from Roxbury,” a predominantly black community nearby. The policeman’s message was as clear as if he had said it outright: “black people don’t belong here.” Alvin Penn, who was deputy president in the state Senate of Connecticut, was stopped in Trumbull in 1996 and the officer asked if Penn knew which town he was in. Bridgeport, the state’s largest city where blacks and Hispanics compromise 85 percent of the population, borders Trumbull—which is 98 percent white. Mr. Penn responded, understandably, “What difference does it make?”1 These policemen didn’t see law-abiding, professional men honorably serving their communities; all they saw was their skin color. This fact, combined with stubborn prejudice, was all the evidence they needed to justify using their authority—not to uphold the law, but simply to harass and humiliate these men. As I think about these stories and too many others like them over the years, I reflect upon my own history growing up in South Baltimore, Md., and my early awareness of the interplay between race and injustice and the practice of racial profiling in police encounters. While crucial milestones have been reached, often at great cost and individual sacrifice, it requires constant vigilance to maintain these gains. We must correct the continuing errors and abuses and we must make sure that the laws on the books carefully guide and monitor police practices on the streets. As our society evolves and reacts to changing economic circumstances and national security challenges, our laws must be updated to identify and respond to new threats to racial justice. I am inspired to engage in this enduring struggle by a family tradition of community service and resistance against racism by vigorously exercising our constitutional rights and holding government accountable to the promise of freedom and equality for all. My great-grandfather escaped slavery to start The Baltimore Afro-American in 1893, which became one of the most widely circulated newspapers serving the black community. My father, William H. Murphy, Sr., was the second African American in Baltimore to be elected to a judgeship, winning over a white incumbent. In learning from their experiences fighting legal racial discrimination in the form of slavery and Jim Crow, I understood state-sanctioned discrimination’s devastating impact and the personal and professional costs of combating it. Having so many outspoken black men in the family, including three older brothers, I saw firsthand how the government’s policing practices single out black men for harsher treatment. I grew up fearing the police, not viewing them as protectors of public safety, because I could see evidence of conscious and unconscious bias through the stories of my brothers and elders. 1 “Driving While Black: Racial Profiling on Our Nation’s Highways: An American Civil Liberties Special Report,” <http://www.aclu.org/racial-justice/ driving-while-black-racial-profiling-our-nations-highways>.
“Reflections on Racial Justice and Ending Racial Profiling” by Laura W. Murphy
Despite rates of criminal offenses similar to their white counterparts, black men were prosecuted at a much higher rate, were more likely to be convicted, were more likely to receive harsher penalties and more likely to receive the death penalty. During my childhood, violent vigilantism toward blacks was discussed at the dinner table, whether it was about the terrorism of the Ku Klux Klan or mob lynchings of black men. I watched my eldest brother, William H. Murphy, Jr., become a lawyer and argue criminal cases in the Maryland and U.S. Supreme Courts, and help change Maryland state criminal law and policing practices.
The Fever A series of incidents in the 1990s like those of Mr. Miller and Mr. Penn, above, finally took the issues off American streets and onto the front pages of American newspapers.2 Grassroots organizations were speaking out, individuals were contacting local offices of the American Civil Liberties Union to help with lawsuits, and national news outlets were covering these stories. While the overtly racist police practices of decades past were disavowed in law enforcement circles, racial profiling was like a lingering illness that sickened and corrupted police departments throughout the country, where just because of skin color, racial minorities were singled out for stops and harassment that sometimes led to arrest, physical assaults and even police killings. Indeed, this illness was like a fever that had spread across America.
I, however, had developed a headache long before the fever was noticed by the rest of the country. I was hyper-conscious of these issues growing up in Baltimore, but when I moved to Los Angeles in the 1980s, I saw that racially biased policing wasn’t a localized phenomenon. In fact, my work at the ACLU’s Southern California affiliate in the early part of that decade seared the scope of the crisis in my mind in the beginning of my career. I was married to an African-American man at the time and was firmly entrenched in the African-American community in Los Angeles, where the fear of the police was unlike anywhere else I had experienced. When my husband drove his white sports car to the law firm where he worked in Beverly Hills, he was all too frequently stopped by police merely for being black in the wrong neighborhood. I saw how racial profiling corroded relations between targeted communities and the authorities, making law enforcement less effective. One could see the sorry state of police relations with the black community in vivid display in popular culture. In 1988, the rap group N.W.A. had released an album entitled, “F--- tha Police.” This album resonated with members of the black community, and black youth in particular, but it was offensive to the majority in power. It was emblematic of the two different worlds that silently lived side by side and were about to collide. Racial profiling was catapulted into the national consciousness after the 1991 beating of Rodney King by Los Angeles Police Department (LAPD) officers was captured on videotape and became one of the best-documented cases of police brutality ever seen. As TIME Magazine recounted— . . . Rodney King was detected speeding by the California Highway Patrol while driving down the 210 freeway with friends. Fearing that his probation for a robbery offense would be revoked because of the traffic violation, King led the CHP on a high-speed chase, eventually hitting 115 miles per hour, according to the police. By the time he was caught and ordered to exit his vehicle, several LAPD squad cars had arrived on the scene. A struggle ensued, and some of the officers quickly decided that King was resisting arrest. Sergeant Stacey Koon fired two shots into King with a TASER gun, and after that failed to subdue him, the officers, including Laurence Powell, beat him mercilessly with their batons. The incident was videotaped by a man named George Holliday, who lived nearby, and it didn’t take long for the tape to send shockwaves around the world and enrage the already frustrated Los Angeles African American community, which felt that racial profiling and abuse by the police had long gone unchecked.3
2 Ibid. 3 Gray, Madison. “The L.A. Riots, 15 Years After Rodney King,” Time Magazine, April 27, 2007. <http://www.time.com/time/specials/2007/la_riot/ article/0,28804,1614117_1614084,00.html> (accessed May 20, 2011).
By this point, I had returned to Washington, D.C., but I saw the video played repeatedly on national television. It was a stunning and ugly display of police brutality and it became a clarion call for those who sought equal treatment under the law. It also started a national conversation within the ACLU. Before the King incident, ACLU offices and civil rights lawyers generally received complaints about bias in traffic stops and initiated suits to quash such violent police encounters, searches and arrests. The video led to more conversations among the ACLU affiliates and in the Protest march, Washington, D.C., April 30, 1992 national offices about the increasing volume and scope of such complaints, and we began to look for a broader solution. We were also finding increasing support for our arguments. The Christopher Commission’s investigation of the LAPD cited the hostility bred among young African American and Latino males by such traffic stops as a factor in the 1991 Los Angeles race riots sparked by the Rodney King beating. The Rodney King incident was the culmination of a long-standing nightmare for residents of color, including former residents like me, who were treated and abused as if they were second-class citizens. One of my friends back in Los Angeles was Johnny Cochran, a black lawyer renowned for suing the LAPD for use of excessive force and racial discrimination. I was not only motivated by injustice in theory, but also by the reality of those close to me who were trying to change police practices.
The Term Racial Profiling Comes Into Being In 1993, I was back in Washington, D.C. and become director of the ACLU’s Washington Legislative Office. Although a few years had passed, the Rodney King beatings and case were still firmly embedded in my mind, then, and later, when the O.J. Simpson allegations and murder trial heightened the level of race-consciousness in my office and in America as a whole. While I had often interpreted issues of race through a personal lens, I became determined to frame the debate as one of ubiquitous injustice that needed to be remedied by federal legislation. During the early 1990s, the term “racial profiling” was coined, as was “driving while black” and “driving while black or brown.” It was a metaphor for the harassment black and Latino men and women driving cars in predominately white neighborhoods faced when police officers thought that minorities “did not belong.” While Rodney King incident was particularly notable because of the video recording, it was only one of a number of cases of abuse by police officers throughout the country where race was a factor: •
In 1997, San Diego Chargers Football player Shawn Lee was pulled over and he and his girlfriend were handcuffed and detained by police for a half hour on the side of Interstate 15 in California. Lee was told that he was stopped because he was driving a vehicle that fit the description of one stolen earlier that evening. Lee was driving a Jeep Cherokee, a car that was nothing like the Honda sedan that was stolen.4
“Reflections on Racial Justice and Ending Racial Profiling” by Laura W. Murphy
Also, in 1997 in Florida, Aaron Campbell was pulled over by Orange County sheriff’s deputies while driving on the Florida Turnpike. The stop ended with him being wrestled to the ground, hit with pepper spray and arrested. It turned out that Campbell was a major in the Metro-Dade Police Department and had identified himself as such when he was pulled over for an illegal lane change and having an obscured license tag.5
In 1998, 37-year-old U.S. Army Sergeant First Class Rossano V. Gerald, a highly decorated career soldier, found that he could not drive more than 30 minutes across the state of Oklahoma without being stopped by the state troopers. During one of the stops, the police terrorized Gerald’s 12-year-old son with a police dog, separated them, sat them in chokingly hot cars and turned off their video cameras so that their misconduct could not be uncovered.6
Clearly, these humiliating instances were provoked primarily by race; the description they fit was that of a “black man” and nothing else. An army sergeant, a police officer, and an NFL football player? These were not the gangsters and drug-dealers they were assumed to be, but upstanding citizens who were judged differently because of the color of their skin. As Mr. Campbell stated poignantly in response to his arrest, “I went from being an ordinary citizen and decorated officer to a criminal in a matter of minutes.” I recall thinking that de facto policies of racial profiling were making law enforcement so ineffective that they were targeting and eliminating the good guys while the bad guys went free.
As the result of many of the stories we and others uncovered, the ACLU and other civil rights organizations began using class action litigation to resolve the problem. In 1993, the ACLU of Maryland brought a class action lawsuit on behalf of Robert Wilkins and members of his family in federal court against the Maryland State Police (MSP), charging that they were the victims of “racial profiling” (“driving while black”).7 The ACLU’s goal was for this class to serve as a model for other states. The ACLU also wanted the state to disclose its procedures for determining who is stopped and to change any procedures that are discriminatory. Documents showed that MSP illegally targeted African-American motorists for stops and searches along Maryland’s highways. In 1995, the parties entered into a settlement under which MSP, among other things, agreed to collect data on traffic stops and searches and take measures to prevent racial profiling. Two years later, the federal court overseeing the case ruled that MSP was continuing to target non-white motorists for traffic stops and searches, in violation of the Wilkins agreement.8 In 1998, based on accumulated evidence showing a continuing pattern and practice of discrimination by MSP troopers, the ACLU, on behalf of the Maryland NAACP and several individual plaintiffs, filed another lawsuit charging that MSP troopers were continuing to engage in racial profiling. The parties ultimately agreed to resolve some of the litigation by entering into a consent decree9 that obligates MSP to take a number of steps to address concerns raised in the lawsuit, including providing the Maryland NAACP with quarterly reports containing detailed information on the number, nature, location and disposition of racial profiling complaints. This lawsuit finally was settled in April 2008.10
The ACLU Issues a Report The ACLU continued to chronicle stories like these that appeared in news outlets across the nation, from Colorado, Maryland, Florida, Indiana, and Kentucky and summarized some of the more harrowing cases in a report, in 1999, entitled, “Driving While Black: Racial Profiling on Our Nation’s Highways.”11 That report comprehensively outlined the affront policing practices posed to constitutional protections. It used raw data on traffic stops and sobering anecdotes to convey the pervasiveness of the problem, which set the context for the work we did to seek an outright ban of racial profiling.
5 6 7 8 9 10 11
Ibid. Ibid. Wilkins v. Maryland State Police et al., Civ. No. MJG-93-468 (D.Md. 1993). http://www.aclu.org/racial-justice/driving-while-black-maryland. http://www.clearinghouse.net/chDocs/public/PN-MD-0002-0005.pdf. http://www.aclu.org/files/pdfs/racialjustice/mdnaacp_v_mdstatepolice.pdf. Ibid.
For the ACLU, the litigation and related report was not just about a few unjustified stops on I-95, but the pervasiveness of discrimination generally, especially as authorized by local police departments in targeting African Americans. I stated at the time that what we needed was a “fundamental focus on the civil rights crises created by our criminal justice system.” The ACLU made it an organizational priority to combat such cases, as it counts racial justice as one amongst its list of primary issues in keeping with its mission to create equal access and an equal opportunity to participate in all aspects of society. Key to this effort was enlisting civil rights groups to embrace criminal justice reform as a civil rights issue. The ACLU successfully petitioned the Leadership Conference on Civil Rights to create a criminal justice task force and we formed partnerships with the NAACP and the Rainbow Push Coalition, among others.
Taking Our Case to Congress While the ACLU was fighting the good fight in our nation’s courts, our attention turned to federal legislation as an alternative path to change. There were moments of both challenge and opportunity, as members of my staff and I lobbied to convince many members of the U.S. Congress that the racial profiling cases were not isolated incidents, but routine behavior for a number of years now. Many of the federal law enforcement officials we encountered were in denial about the scope and magnitude of racial profiling. The Clinton Administration was unwilling to promulgate regulations to rein in profiling in federal law enforcement and the Administration was missing in action on the racial profiling debate on Capitol Hill. The ACLU ultimately decided to take a proactive approach and took the lead in drafting a definitive federal anti-racial profiling bill that would apply nationwide. That bill aimed to stop the practices of local and federal law enforcement officials.
105th Congress (1997–99) In the 105th Congress, Rep. John Conyers (D-MI) introduced a modest bill called the Traffic Stops Statistics Act.12 The bill encouraged states to collect data, voluntarily, on traffic stops in order to ascertain if the state had a problem with racial profiling. The attorney general was then required to conduct a study with this data to determine the extent to which racial profiling was a problem. The bill passed the House on a voice vote on the suspension calendar (used for bills deemed noncontroversial) but never went anywhere in the Senate; there was no companion bill. It likely passed the House because of its moderate nature and, as a result, many members did not give it much attention. After it passed the House, a spokesperson for the Fraternal Order of the Police (FOP) vowed that his organization would do whatever possible to kill the bill in the Senate. When asked by a Washington Post reporter why the FOP had not opposed the bill in the House, he said, dismissively, “It was a Conyers bill, we didn’t think it would go anywhere.” That the Senate ultimately took no action on the bill was a sign of the influence that police unions have maintained over elected officials of both parties.
106th Congress (1999–2001) Mr. Conyers re-introduced his bill in the 106th Congress.13 This time we had a companion bill in the Senate, sponsored by Senator Frank Lautenberg (D-NJ) and Senator Russ Feingold (D-WI).14 It basically was still the Traffic Stops Statistics Act with a few minor changes. The bill passed through the House Judiciary Committee, but was never brought up for a floor vote. A hearing was conducted by Senator John Ashcroft (R-MO) in the Senate Judiciary Constitution Subcommittee. Although Ashcroft kept promising Feingold he would sponsor the bill if Feingold agreed to minor changes, he
12 13 14
Traffic Stops Statistics Study Act, H.R. 118, 105th Cong., 1st Sess. (1998). Traffic Stops Statistics Study Act, H.R. 1443, 106th Cong., 1st Sess. (1999). Traffic Stops Statistics Study Act, S.821, 106th Cong., 1st Sess. (1999).
“Reflections on Racial Justice and Ending Racial Profiling” by Laura W. Murphy
never did, even though Feingold agreed to the changes. We had been targeting Ashcroft and Senator Spencer Abraham (R-MI) and when neither of them supported our bill, we ran racial profiling television ads in their districts criticizing their failure to take action on the issue. The voters made their displeasure known by reelecting neither Ashcroft nor Abraham, but we will never know whether our ads were material to that outcome. Unfortunately, President George W. Bush appointed them to cabinet positions, reigniting our concerns. Ashcroft became Attorney General and Abraham became Secretary of Energy. We were able to get one Republican cosponsor in the Senate—Sen. Arlen Specter (R-PA). 107th Congress (2001–03) By the 107th Congress, we were disillusioned by the lack of a clearly defined, substantive bill on the issue of racial profiling. As such, we reached out to the civil rights community in a collaborative effort to draft the definitive bill to prohibit all racial profiling in police enforcement. The civil rights community embraced this innovative project, and the ACLU and Leadership Conference on Civil Rights15 subsequently hosted a meeting at the beginning of the session with leaders on the issue around the country. We came up with a vital bill, instrumental in promoting our cause (The End Racial Profiling Act). The bill defined racial profiling as the targeting of individuals by police officers for investigation because of the individual’s race, ethnicity or national origin, except where race, ethnicity or national origin is a part of a specific suspect description; the bill then specifically prohibited racial profiling and provided a course of action for individuals to bring who were victims of such abuse. The ACLU and the Leadership Conference were the primary drafters of the legislation.
Once the bill was drafted, we worked on attaining the requisite support for passage. The ACLU thought that it was incredibly important for the bill to be bipartisan. We did not want the bill introduced until it had bipartisan support and so we initiated a campaign to garner the assistance of Republicans. Rep. Asa Hutchinson (R-AR) was particularly helpful in the House, as he emphasized the importance of attaining bipartisan support for this legislation. He wanted those that had been victimized to bring their message directly to Republican districts. Representative Hutchinson and I worked to appeal to those who were not convinced of the universality of the problem and thereby gain support, through both emotional connections and raw numbers, due to an increased emphasis on data collection. Unfortunately Rep. Hutchinson moved to the Drug Enforcement Administration (DEA) right around the time of introduction of the final bill, but we were pleased to have six original cosponsors, with his help: Rep. Jim Greenwood (R-PA), Rep. Frank LoBiondo (R-NJ), Rep. Chris Shays (R-CT), Rep. Rodney Frelinghuysen (R-NJ), Rep. Jim Walsh (R-NY), and Rep. Mike Ferguson (R-NJ). However, on the Senate side, we were not as successful. Freshmen Senators John Corzine (D-NJ) and Hillary Clinton (D-NY) wanted to join Feingold as primary sponsors. Senator Clinton was particularly anxious to introduce a bill because she was getting a lot of pressure from African American constituents in New York, especially Reverend Al Sharpton, president of the National Action Network, and his allies, about problems of racial profiling in New York City. Although we counseled against introducing the bill without a Republican cosponsor, Clinton prevailed and they went ahead with the introduction. Because we believed so staunchly in addressing the cause of racial justice, we put together a remarkable press conference at the time of introduction, with Republicans and police officers in attendance. Speaking at the news conference were Sheriff Robert Ficano of Wayne County in Michigan, who had instituted data collection in his county, and Thomas V. Manahan, the prosecutor of Union County in New Jersey. Major Aaron Campbell from Miami Dade County, who was himself a victim of racial profiling and who wrote a book, And Justice for Some, also attended the press conference. Finally, Rhode Island State Rep. Joseph Almeida, a former police officer who sponsored and won passage of strong racial profiling legislation in his state 15 In 2010, in recognition of “the full sweep and scope” of their mission, the Leadership Conference expanded their name to the Leadership Conference on Civil and Human Rights.
in 2001 also supported the bill. Though the House Judiciary Committee press conference room was filled with reporters, unfortunately, the event remained largely in the shadows, as no one wrote the story that would give the issue the momentum it needed to progress. After President Bush’s 2001 State of the Union address, in which he mentioned ending racial profiling, Attorney General John Ashcroft wrote a letter to the chair and ranking member of the House and Senate Judiciary Committees requesting that they pass legislation to address the problem of racial profiling and stating that if Congress failed to pass legislation, he would conduct his own study similar to that proposed in the Traffic Stops Statistics Act. In response to Ashcroft’s letter, Feingold and Conyers sent a copy of the End Racial Profiling Act to Ashcroft asking him to endorse the bill. The ACLU anticipated hearing back from Ashcroft, who had promised to give an answer on whether the Bush Administration would support the bill by September 21, 2001. President Bush himself told the National Organization of Black Law Enforcement Executives, “[W]e owe you something in return . . . for your service, and that is justice.” Racial profiling is wrong in America, and “we’ve got to get rid of it,” he stipulated. Then, of course, the terrorist attacks of September 11th changed the course of the rhetoric and expectations we had to that point. We never got a response back from the attorney general and instead of ending racial profiling, the administration started engaging in it on a large scale, this time against Arabs, Muslims, Sikhs and South Asians. In November 2011, the Department of Justice announced that it would begin conducting 5,000 “voluntary” interviews of Middle Eastern and Muslim men living in America, selected because of their ethnic background. To allay fears of profiling, the attorney general publicly stressed that these interrogations would be wholly voluntary; the government was simply asking for help. This proved to be a paradox for many Muslim men—why would they help the same government that was unfairly targeting them based simply on their status in a group? The ACLU fought these prejudicial efforts, even suing four major airlines—American, Continental, United and Northwest—for blatant discrimination against five men who were ejected from flights based on the prejudices of airline employees and passengers and for reasons wholly unrelated to security. In the months following the 9/11 attacks, the tenor of American discourse on racial profiling changed dramatically for the worse. Understandably, the nation was in shock and wanted the planners of the attacks to be held accountable. Some African Americans at first favored special law enforcement scrutiny of Muslims, Arabs and South Asians, even as they recognized their own ongoing profiling issues. I remember the shock I felt when I heard an African American ACLU member whisper that the practice of racial profiling might be necessary to fight terrorism. Other, traditionally liberal-leaning members of Congress suggested that these communities come under heightened scrutiny. As I heard such statements, I felt it was incumbent upon me, as an African-American woman, to be a leading voice on the universal harm of racial profiling and its impact on all communities. In a CounterPunch essay,16 I wrote that “steps by the Administration to . . . blanket interrogate and detain Arab Americans and Muslims are problematic for liberty in America.” I became a familiar face on the talk show circuit, appearing on such programs as PBS News Hour with Jim Lehrer, NBC Nightly News, and CNN’s Crossfire to discuss issues of civil liberties post-9/11— specifically racial profiling. In doing so, the ACLU worked to increase the dialogue about racial profiling around the country and to keep civil rights groups at the table with the newer victims of profiling. My thoughts were these: (1) that racial profiling was never a necessary evil, (2) it poses just as much of a moral and practical danger when applied on the New Jersey turnpike against African Americans as it does when applied in LaGuardia Airport against Muslims, and (3) every credible study of policing practices has shown that race, religion and ethnicity are not effective predictors of criminality, making racial profiling as ineffective as it is offensive. 16
“Ashcroft’s Jihad” by Laura W. Murphy, <http://www.counterpunch.org/murphy1.html>.
“Reflections on Racial Justice and Ending Racial Profiling” by Laura W. Murphy
To counteract the new form of racial profiling, the ACLU organized a rally at the Washington, D.C. Convention Center on January 19, 2002 entitled, “Dr. King’s Legacy: Protecting Civil Liberties in the Wake of September 11th”. Over 1000 people, many of whom drove hours to the nation’s capital, came to listen to a call for unity, restraint and effective law enforcement in the wake of 9/11. Anthony Romero, the executive director of the ACLU; Karen Narasaki, executive director of Asian American Justice Center; James Zogby, president of the Arab American Institute; Al Sharpton, president of the National Action Network and others declared that the country could not do to Arabs and Muslims what the nation wrongly did to Japanese Americans during World War II, i.e. scapegoat, arrest and incarcerate people based solely on ethnicity, national origin or on immutable characteristics.17 The ACLU was actively engaged in helping to write and edit a report issued by the Leadership Conference on Civil Rights entitled: “Wrong Then, Wrong Now: Racial Profiling Before & After September 11, 2001.”18 The report highlighted the fact that generalizations based on race profoundly affect all Americans regardless of the reasons applied. The report concluded that we cannot protect national security while threatening individual liberty. The report reminded Americans that their overwhelming distaste for racial profiling before September 11th should not be accepted as justified after that date. Americans can, both, combat terrorism and take decisive action to remedy the decades old problem of racial-profiling. In fact, using terrorism as an excuse to justify racial profiling actually thwarts counterterrorism efforts by redirecting precious resources away from effective law enforcement and undermining public support for the government’s counterterrorism efforts.
Before September 11th, passing pro-active legislation was a primary goal of the ACLU and we were fairly optimistic that we would pass some type of racial profiling bill, if only the Traffic Stops Statistics Act. After September 11th, it was pretty clear that racial profiling was fashionable again and that we were not going to be able to pass ERPA in the foreseeable future (S. 989/H.R. 1444). I participated in many late night phone calls with civil rights leaders to enlist their vocal opposition to the new form of profiling while also bemoaning the fact that we had lost so much ground so quickly with elected officials and the public on the need for anti-racial profiling legislation. Indeed, the post-9/11 period also drove us in a new direction fighting against legislation promulgated by the Bush Administration. For instance, we were inundated with work fighting the PATRIOT Act and a slew of administrative actions. The racial profiling coalition continued to meet, but we were challenged by whether we should take the position that ERPA covered the types of activities the administration was engaging in (rounding up people, especially Muslims, Sikhs and South Asians) or if there should be a national security exception in our bill. There was some dissension over how far such an exemption should go or even if there should be one at all. ACLU leadership was always inclined to think that a blanket national security exception was a bad idea. The ACLU fought to curtail the Department of Homeland Security’s National Entry-Exit Registration System (NSEERS) program, which required tens of thousands of men over the age of sixteen who were citizens or nationals of mostly Muslim countries to register with their local immigration office or face possible arrest and deportation. These issues highlight the complexity of the matters at hand and the care needed to assure that Latinos and African Americans were not pitted against Arabs, Muslims and South Asians. Ultimately, the fight for racial justice continues and the ACLU stands at the forefront of that endeavor. Ending racial profiling has been a challenge, but our vigilance has not wavered. This is a necessary fight to assure the government lives up to its obligation to provide true equality under the law. The fear mongering perpetrated by some government officials has perpetuated distrust of some communities and made the effort to end its practice particularly difficult. In fact, the racial profiling crisis has worsened due to discriminatory 17 http://www.youtube.com/watch?v=mtbkbysvGI0. 18 “Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001,” <http://www.civilrights.org/publications/wrong-then/racial_ profiling_report.pdf>
immigration enforcement actions targeted primarily at Latino communities and the eleven million, mostly Hispanic, undocumented people in America. We have learned that biased police practices like racially targeted stops often create resentment among minority citizens and undermine the respect and trust that are essential to successful community policing and national security. As I have described, the ACLU worked tirelessly in the latter part of the 20th century and the early part of this century to reverse the process of such unjust police practices. Crime, terror and immigration are critical issues, which depend on an effective, responsible justice system. Unfortunately, racial profiling undermines these efforts by exercising police authority in ineffective, misguided and irresponsible ways. We have worked with our coalition partners and members of Congress to advocate for bipartisan support of the End Racial Profiling Act (ERPA)—an essential piece of legislation. Rather than placing blame, our work on ERPA has sought to curtail racial profiling’s threat to justice and equal protection. ERPA promotes a return to fundamental fairness without sacrificing public safety. Crucial to the success of our combined efforts to end racial profiling will be the leadership promised to the American people during the 2008 presidential campaign. Then-candidate Barack Obama promised that, if elected, Obama and vice-presidential running mate Joe Biden would “ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.” During his 2009 confirmation hearing, Attorney General Eric Holder similarly declared that racial profiling was “simply not good law enforcement” policy and that ending the practice was a “priority” for the Obama Administration. We look forward to continuing to work with them on fulfilling these important goals.
About the images Pg. 12: Graphic rendering based upon original photo by ShellyS on Flickr. Original photograph may be viewed here: <http:// www.flickr.com/photos/shellysblogger/1810975660/in/photostream/>. Pg. 15: The beating Rodney King endured at the hands of police sparked demonstrations across the country like this one, in Washington, D.C., in front of the White House in 1992. Photograph courtesy secorlew on Flickr.
Reflections from the Frontlines: 10 Years of Organizing in New York City Monami Maulik Founder and Executive Director Desis Rising Up & Moving
I remember clearly those first few days after September 11, 2001. For the first time, I was afraid to walk around in my neighborhood and the city where I grew up. For the first time, I watched law enforcement ‘disappear’ people from their homes and workplaces in my community. For the first time, I knew what it meant to organize out of necessity, not choice, in a new global era of permanent war and state violence. It had only been one-and-a-half years since I founded DRUM: Desis Rising Up & Moving. DRUM was one of the first South Asian, working-class, mass-based organizations in the U.S. for social and global justice. In 2000, I decided to start DRUM because, having growing up in a working-class immigrant family in the Bronx, and having been politicized by the first Gulf War, Operation Desert Storm, when I was in high school, I knew that our future as migrant communities in the U.S. would be inextricably linked to global struggles and to our ability to organize for racial and economic justice here. I saw around me the legacies of powerful Black, Latino, and Native American liberation movements. These were people who had shaped me as a person of color in the U.S. and as an organizer. In the 1990s, as the first huge waves of South Asian and Muslim low-wage workers migrated to New York City, and as organizing against racial profiling for police accountability under ‘Giuliani time’ blossomed, I knew that our relatively new immigrant community must be a part of building Black and Brown unity toward racial and social justice in the U.S. I knew we could not sit on the sidelines. So on September 11th, 2001 as I sat in my apartment (and then office of DRUM), watching events unfold in my city and around the world, I knew it was our turn to step up to the plate against what probably would become the greatest racial backlash and political awakening the South Asian and Muslim communities had seen so far in the U.S. Immediately, we few DRUM volunteer organizers decided to go out and do ‘community patrols’ into all the boroughs. We created a voicemail hotline—which I operated from my living room, as we had no office or funds yet. We made flyers in English, Bengali, and Urdu and fanned out daily into each South Asian neighborhood. We mobilized what was then our only base to do outreach: low-income high school youth we had been training in DRUM’s YouthPower! Summer Organizing Institute. Little did we know the scale and scope of repression that was to be unleashed or the level of organizing we would have to do in the years that were to come. Within a few days, the voice mail hotline in my living room was ringing incessantly. I was receiving 40–50 calls a day from families, wives, roommates, and friends of South Asian, Arab, and Muslim men who seemed to have ‘disappeared.’ I barely slept a full night for months. I got calls all night long from jails as more and more detainees spread the word about DRUM and knew my name. In most cases, all I was able to retrieve was a name and sometimes an alien registration number. I compiled lists and began searching for these men in the immigration detention system in the New York and New Jersey area. In 2000, DRUM had already begun our “Immigrant De-Detention” program where we were visiting and advocating for South Asian INS (Immigration and Naturalization Service) detainees in local jails. Because the 1996 IIRIRA laws had accelerated immigrant detention into the fastest growing arm of the U.S. prison industrial complex, we witnessed growing rates of people
“Reflections from the Frontlines: 10 Years of Organizing in New York City” by Monami Maulik
being detained and deported. This was not only true in the South Asian communities, but among all immigrant communities in New York City. Moreover, there were few, if any, services, never mind political or social organizing, around this emerging crisis. Thus, after 9/11, as DRUM organizers, we already knew how to navigate the immigration system, which was and remains the primary mechanism through which people have been targeted under the war on terror.
Within weeks of calling INS officers and family members, we made our first list Supporters, DRUM press conference on NYPD racial profiling, Brooklyn, N.Y., October 10, 2009 of over two dozen detainees at Passaic County Jail. These detainees had been picked up in ongoing raids by the N.Y. police department, FBI, and INS agents in places like Jackson Heights, Coney Island, Midwood, Jamaica, and Astoria. During our first visit to Passaic County Jail in October 2001, we found over 50 men crowded into a small, dark visitation room waiting to see us. They said we were the first to have found them. They were suffering from a collective terror after weeks of being held without charges, facing anti-Muslim slurs and assaults from guards, and not knowing what was going to happen to them. For over a year, we continued to visit these men as their numbers grew, from dozens to thousands. We formed a “9/11 Detainees Visitation” program with volunteers trained to advocate and find pro-bono attorneys. For months, I remember talking to desperate men and families all day and all night on what was now called our “jail hotline.” Every day I heard stories that made me cry and made me angry at the levels of injustice that were being normalized in the war of hysteria in the U.S. Although my Urdu was poor, I was forced to learn fast as I spoke with the many Pakistani men and their families. One such family became the first leaders of DRUM. They were also the first to speak out nationally about their story. I met Uzma Naheed and her children at the Metropolitan Detention Center (MDC), where we were trying to win the release of her husband and brother. Both men had been jailed because they were driving trucks as delivery workers on 9/11. Uzma and her sons became the first to speak at rallies, to national press, and to officials at an INS community accountability meeting DRUM organized in 2002. Uzma was with us at weekly rallies outside MDC where we demanded, and eventually won, the right for families to visit their loved ones. But, like hundreds of others we would work with over the next few years, Uzma’s husband and brother were deported for immigration violations, without any charges ever being brought against them. And, also like the dozens of women I would work with as leaders in the next few years, Uzma and her children had to leave the U.S. for good, soon after, as they were undocumented, and their family was broken apart. In this period right after 9/11, DRUM was quite alone in organizing for government accountability within the South Asian, Arab, and Muslim communities. We built two core principles that have grounded our work to this day: (1) that our task is to be accountable to the people by holding government and law enforcement accountable, rather than ‘building relationships’ with them as an end in itself; and (2) the root causes of racial profiling and injustice are systemic and not in individuals, so we focus on challenging ‘hate crimes’ being perpetrated by the police, FBI, military, and other institutions.
From 2001 until 2003, DRUM did ‘Community Self-Defense’ organizing to respond to the crisis around mass deportations and detentions, raids, executive orders, and the PATRIOT Act. The impact of racial and religious profiling in our community was unmistakable, so we launched our Stop the Disappearances campaign with prison and detention abolitionist allies. We served over 800 people in casework, mobilized monthly action alerts of mass faxing and called for detainee hunger strikes. We held actions and won reforms on conditions at several local jails, and continued to run what is now the National INS Jail Hotline. We have been slowly building our base. Between 2002 and 2004, a policy known as “Special Registration” forced us into the second wave of federal, post-9/11, law-enforcement backlash. This became one of the gravest historical periods of institutionalized racial profiling in U.S. history. It was akin to the Japanese American internment, the Mexican Bracero deportations, and Jim Crow laws. As the first registration deadline had just passed, I facilitated a meeting with over 100 community members and advocates late into New Years Eve in 2002 to form the Coalition Against Special Registration. I would personally work with several hundred special registrants over the next few years in our mosque-based Know Your Rights training sessions, family membership meetings, and through organizing multiple actions at Federal Plaza at each deadline. Over 84,000 boys and men registered, and over 14,000 were deported nationally; we lost over 100 members of DRUM during this period. I had become close to all of them and loved them as fearless leaders, friends, and mentors. One such mentor was, and remains, Sultana Jahangir Alam—known as Moni to everyone. Moni became one of the fiercest working-class, undocumented, women leaders of DRUM to date. She even came on board as a community organizer. She not only fought her husband’s deportation, but was awakened as a social justice leader who saw the need to organize hundreds of other women, workers, and immigrants who were just like her, for the cause of justice. In 2004, Moni’s husband was deported, forcing Moni and her daughters to leave as well. Fortunately, Moni got a work visa to Canada and, with her personal politicized experience, formed the South Asian Women’s Human Rights Organization, DRUM’s sister organization, in Toronto. By 2004, conditions had shifted again, following the formation of the Department of Homeland Security in 2003, the launching of the endless wars in the Middle East, and the normalization of police unaccountability, prisons, and deportation. It was in the midst of this era, and during Bush’s reelection campaign, that I realized what our growing worker membership was saying. We knew that we must stop reacting to crisis, stop being afraid, and organize a mass-community base as South Asian and Muslim undocumented workers if we were to shift power and win social and economic changes over the long haul. I moved DRUM’s work towards intentional mass base-building Monami Maulik, DRUM press conference on NYPD racial profiling, Brooklyn, N.Y., October 10, 2009
“Reflections from the Frontlines: 10 Years of Organizing in New York City” by Monami Maulik
of adult workers and youth. We joined the immigrant rights, youth justice, and economic justice movements in the U.S., in addition to the racial and global justice work we focused on after 9/11. We built the Immigrant Communities in Action Coalition with Latino groups to deepen our solidarity with Latino, African and other immigrant communities. We launched joint campaigns for driver’s licenses, fought against the Sensenbrenner bill and for just immigration reform that would not betray any of our rights, and advocated to end border militarization. We launched youth-led campaigns to win institutional changes in the education system, to end the schoolto-prison pipeline and to ensure access for undocumented students. We founded the South Asian Workers Center to raise longterm consciousness of our community as workers in the U.S. All of our work placed low-income immigrants directly affected by the issue at the forefront of political and strategic leadership. Our work also emphasized what we have learned and what we must do to end racial profiling and win justice for our communities. We must: continue to build mass movements, led by the poor and most marginalized, to drive out Muslim, Arab, and South Asian racial profiling and the oppression faced by Black and Brown people in the U.S. for centuries; to address the global root causes of domestic policies on immigration and national security; and to insist on systemic change. In these 10 years of organizing in a post-9/11 world, I have realized the great need to move us out of responding to crisis and towards building mass-based social justice movements in the U.S. alongside other communities. We have been immersed in a period when the rollback of hard-won social, economic, and political rights has become common. Post-9/11 racial profiling has morphed from politically overt into less obvious mechanisms, such as the unchecked use of informants in mosques, collaboration between local and federal law enforcement, the creation of Fusion Centers, and growing antiimmigrant enforcement programs, including Secure Communities and 287g. 26
Ten years later, two founding principles proved to be critical. First, Muslims, Arabs, and South Asians must hold the line to end racial profiling, rather than be used to police ourselves against an exaggerated threat. In the coming decade, the roots of the domestic War on Terror will push deeper roots into the immigration and criminal justice system with anti-radicalization programs aimed at all Muslims and political activists. We must organize ourselves, as African Americans and others have before us, to demand accountability and racial justice from our laws and government, rather than turning on ourselves. Second, we must address the systemic root causes of racial profiling and move beyond the individual discrimination paradigm. When we, as Muslims, Arabs, and South Asians, “privilege” our oppression after 9/11, we ignore the continuing struggles of Black, Latino, indigenous, and other communities and inadvertently undermine broader demands. We cannot end profiling against Muslims, Arabs, and South Asians by diverting law enforcement to historically criminalized Black and Latino communities. Yet, when we choose not to mobilize against police or prison issues in Black communities, or against anti-immigrant measures such as SB 1070, this is, in effect, what we are doing. Our collective task should be to roll back an out-of-control policing, prison, and deportation industrial complex rather than to amplify its reach. Our task should be to fight for economic and social access for marginalized people, not jails and the criminalization of all of us. Perhaps one of the greatest lessons I have learned from racial justice organizing in the 10 years since 9/11 has been to build true, long-term solidarity amongst people. Within the U.S., I see my community, and DRUM’s work, as the newest participants in a long chain of people who have struggled and fought for racial, economic, and social justice in the U.S. Globally, DRUM members always say that we cannot truly win rights here without working to end the wars abroad and winning justice for our brothers and sisters in our home countries, who face the impact of 9/11 as well.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America â€˘ Rights Working Group â€˘ Sept. 2011
About the images Pg. 22: Graphic rendering based upon original photograph by James Steidl, May, 2010. Licensing through iStockphoto. Original can be viewed here: <http://www.istockphoto.com/stock-photo-12923355-behind-bars.php?st=53d4285>. Pg. 24: Supporters at DRUM press conference on NYPD racial profiling, Brooklyn, N.Y., October 10, 2009. Photograph by Thomas Altfather Good. Pg. 25: Monami Maulik at DRUM press conference on NYPD racial profiling, Brooklyn, N.Y., October 10, 2009. Photograph by Thomas Altfather Good.
Those Who Remain Subject to Law Shahid Buttar Executive Director Bill of Rights Defense Committee
My second year of law school had just started when the terror attacks of September 2001 captured the world’s attention. The events of that day—and, more importantly, its aftermath over the past decade—have each cast formidably long shadows, dramatically shifting the trajectory of global events. While our nation has endured those events as an experience shared among millions, their impact, for me, has proven to be profound. During my first year in law school, I focused primarily on antitrust and environmental law, driven by my concern about the role of corporations in our society. September’s attacks changed the course of my career, and presaged a constitutional crisis that, in retrospect, I am disappointed to have foreseen. My regrettable prescience may have been a result of having watched The Siege, starring Denzel Washington and Bruce Willis, not long before. Or it could have been built on my disgust from the previous spring, when I discovered in constitutional law class that the Korematsu decision, which upheld the internment of hundreds of thousands of Japanese-Americans during WWII, remains to this day what law professors, sometimes ironically, call “good law.” On one hand, I was pleasantly surprised that the immediate aftermath of the attacks did not yield even worse abuses. The post-9/11 roundup of Arab and Middle Eastern men through the National Security Entry and Exit Registration System (NSEERS) obviously raised civil liberties concerns. And the PATRIOT Act unnerved me as much as anyone else. But the baseline I envisioned was far darker, far worse than the muted precursors of fascism that emerged in the first term of the Bush administration. On the other hand, my relief proved premature, as the abuses that gripped others expanded over time. Policies metastasized from isolated programs marginalizing specific communities and demographics to include vicious, and ultimately senseless, policies placing entire populations at risk. NSEERS was bad; the Secure Communities Initiative is worse. Muslims, Arabs, and South Asians joined the ranks of the racialized “other” overnight, and the subjugation of our rights to the political posturing of the post-9/11 era laid a foundation for further abuses that have grown to impact even more communities. In retrospect, it is ironic that we would establish the Bush administration and Ashcroft’s Justice Department as the high water mark for civil rights and civil liberties over the past decade. While that may prove uncomfortable for supporters of the Obama administration, it is a sobering reflection of the civil rights crisis that has only expanded since the 2008 presidential election. The second half of my law school career mostly entailed studying the assault on the Constitution, writing hip-hop songs including a screed denouncing “big brother Ashcroft” (whom I had observed, as a senator from my home state, for years before his appointment as attorney general), and organizing grassroots resistance to the war in Iraq. In the spring of 2003, I came face-to-face with the domestic surveillance apparatus when a mobilization by Direct Action to ‘Stop the War’ at the
“Those Who Remain Subject to Law” by Shahid Buttar
Oakland docks was classified a threat of terrorism and prompted vicious assaults by the Oakland police. The assaults landed images of bloodied and beaten peace activists across headlines all over the world. Later that spring, while organizing a direct action at the Lockheed Martin facility in Santa Clara, CA, supporters noticed mysterious individuals outside my apartment taking photos of visitors before and after our organizing meeting. I graduated from Stanford Law School a few months after the war in Iraq began. I headed east with the feeble vision of helping to build a grassroots community of resistance in the nation’s capital that would rival what I’d witnessed on the West Coast. While organizing grassroots mobilizations in my free time, I had had a chance to work on impact litigation seeking marriage rights for same-sex couples in the state of New York, as well as on an appeal that, for a time, saved the campaign finance regulations of the McCain–Feingold Bipartisan Campaign Reform Act of 2002. Little did I, or anyone else, realize what the next several years had in store. A stint at the American Constitution Society acquainted me with a broader sphere of issues under the second half of the Bush administration. It was during the struggle surrounding the Supreme Court nomination of John Roberts that the NSA’s warrantless wiretapping program was revealed by diligent journalists at The New York Times. The saga became increasingly clear as the disclosures mounted. Struck down by every federal court ever to have reviewed it on its merits, the program was initially resisted by none other than Attorney General John Ashcroft, who mustered the will from a hospital bed to resist White House pressure to authorize a clearly unconstitutional (and, at the time, entirely secret) surveillance program.
Meanwhile, policies of arbitrary and indefinite detention without trial, coupled with outright torture, made a mockery of the rule of law and our nation’s claim to lead the free world. As a Muslim, constitutional lawyer working in the nation’s capital, the farce of the War on Terror was obvious from the beginning. Studying and combatting its domestic implications has exposed, for me, the extent to which the national security agenda has grown to threaten not only particular communities, but democracy itself, in America. Throughout my brief time in the law, mass incarceration has remained a horror in plain sight. At times, the issue has faded into the background of public conversation. Yet our having imprisoned one quarter of the planet’s prisoners holds crucial implications, not only for those affected, who are primarily from African American and Latino American communities, but also for us as a nation. This travesty, unfortunately, has many dimensions: systemic bias apparent in profiling at every stage of the criminal process; a vicious sentencing regime often applied to the most trivial offenses, and post-sentence penalties that render any amount of jail time a life sentence with respect to voting rights, access to education, access to public housing; and Shahid Buttar & police at protest of 5th anniversary of the war in Iraq. Richmond, Calif., March 19, 2008.
any number of other social benefits. Put simply, the erosion of civil rights over the past two decades has been relentless, yet never has it become the focused center of a national debate. Even worse, the discrete parts of the assault on the Constitution have only proliferated. At the same time that millions of Americans are trapped in jails with dim futures, the architects of policies that authorize torture, and a systematic program to resurrect involuntary medical experimentation on human beings, continue to enjoy the power and prestige—including, most outrageously, a lifetime appointment to the Article III appellate judiciary for former Justice Department official Jay Bybee. The sky has been declared green and water is flowing uphill. At the same time that politically-connected criminals have been declared above the law, those of us who remain subject to it have faced expanding assaults on our constitutional rights. Law enforcement agencies have allowed racial profiling to broaden in scope from “driving while black” to now targeting people who are caught “breathing while Latino,” or “crossing the street while Muslim.” Whether impacted by the wars on drugs, on terror, or on immigration, Americans with ancestry from all over the world face increasingly common abuses at the hands of local police departments inclined to substitute skin color for suspicion, and from a Federal Bureau of Investigation that has once again adopted lawlessness as its modus operandi. In 2008, shortly after the presidential election, the FBI was granted a new set of powers under Attorney General Michael Mukasey that enabled the most widespread and unaccountable domestic surveillance frenzy since the COINTELPRO era. Coupled with the NSA’s warrantless wiretapping scheme, authorized by a preposterously dim-witted act of Congress only a few months before, the implementation of the Mukasey guidelines presaged accelerating abuses that have yet to find their peak. Even before the Mukasey guidelines became operational, the FBI had infiltrated mosques and activist groups around the United States, without suspicion of criminal wrongdoing. In many of these cases, the Bureau paid lavish sums to ex-convicts they hired to work as informants. Their missions were to bribe unwitting individuals into participating in plots and visions equipped, funded, supplied, trained, and enabled by the Bureau. This disturbing and constitutionally offensive enterprise is nothing new. The U.S. Senate found that, in the 1970s, the Bureau had engaged in “a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association. . . .” In 1976, the attorney general’s guidelines aimed to end this sordid practice of political surveillance, but after the 2008 revisions, a series of additional policies and milestones enabled even further abuses. The Humanitarian Law Project case in the spring of 2010 upheld prosecutions even of mere speech-giving under the statute prohibiting “material support” for terrorism, opening the door to the ongoing grand jury investigations that have targeted dozens of peace activists in Chicago and Minneapolis for thought crimes. As cities and counties around the country aimed to restore civil rights eroded by Immigrations and Customs Enforcement (ICE) in the Department of Homeland Security (DHS), the FBI stepped into the breach and took over as the agency that ensured breadwinners of American families would face deportation en masse on the basis of mere accusation of trivial offenses. The Obama administration has deported half a million people whose worst offenses, if the police who detained them are to be believed, amounted to driving with broken tail lights or without drivers’ licenses. Many of them left children with U.S. citizenship behind, often with empty mouths and bellies. Our constitutional rights have suffered a profound erosion in the last decade. The First Amendment rights of association, free exercise, assembly, and speech for all people increasingly are under restrictive conditions set by local, state, and federal governments—upheld by courts at the state and federal level.
“Those Who Remain Subject to Law” by Shahid Buttar
The Fourth Amendment right to be free from unreasonable searches and seizures is essentially meaningless in an age when authorities can seize anything from bank records to medical data without a judicial check. They can search “any tangible thing”, even DNA samples, without ever having to establish the relevance of a target to a national security investigation. Meanwhile, the NSA monitors your e-mail and records your international phone calls. The Fifth Amendment right to due process has suffered, as millions of people have found their way onto no-fly and watch lists without any notice as to why, or opportunities to contest their inclusion. The Sixth Amendment right to counsel and to the corresponding right to confront one’s accusers lies among the casualties of Guantánamo Bay. The Fourteenth Amendment has been left in tatters. Police may unapologetically use race in deciding which individuals to stop, search, beat to a pulp or arrest—as long as their victims can’t find evidence of outright racism—even if patterns of discrimination are apparent across the aggregate universe of cases.
The problem is more than simply doctrinal. It is not merely specific Shahid Buttar, Richmond, Calif., March 19, amendments to the Constitution, enacted centuries ago to protect our rights from precisely what has befallen them in the last decade that have suffered. Profiling has spread beyond a problem impacting particular communities.
Today, it is our democracy that stands at risk. If the president, with a visible commitment to civil rights, is presiding over the worst humanitarian crisis in the nation’s immigrant community in a generation, while seven million Muslim Americans face being made scapegoats by political opportunists, and mass incarceration continues to brazenly place private industrial interests above the needs of communities, families, and individual offenders—not to mention victims threatened by recidivism—what hope do we have? Recall that fascism refers to the subversion of democracy through legal means. It is easy to recognize in historical retrospect, especially when accompanied by visible trappings and outright propaganda. But our own nation flirts today with the same underlying elements that we have decried elsewhere before: a nationalism and xenophobia that supports rising international military belligerence; a media discourse increasingly dominated by vitriol; an alignment between government and private corporations reliant on taxpayer largesse to fund weapons for military or police agencies; and the mounting callousness towards the individuals impacted by our government’s abuses. Like in many other crises, opportunity follows in the wake. While many ethnic communities stand today at the sharp end of the spear, it is precisely the commonality among our various interests that offers hope to restore the rule of law and the Bill of Rights.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America â€˘ Rights Working Group â€˘ Sept. 2011
About the images Pg. 28: Graphic rendering based upon original photograph of surveillance camera. Photographer: Thomas D Morkeberg, licensing through stock.xchng. The original photograph can be viewed here: <http://www.sxc.hu/photo/760731>. Pg. 30: Shahid Buttar confronts police at a protest marking the fifth anniversary of the U.S. war and occupation of Iraq in Richmond, California, March 19, 2008. Photo courtesy Shahid Buttar. Pg. 32: Shahid Buttar addresses the crowd at the same event marking the fifth anniversary of the war in Iraq. Photograph courtesy Shahid Buttar.
The Open Wound of the U.S.-Mexico Border Christian Ramirez National Coordinator, American Friends Service Committee’s Project Voice
I was born in the Mexican city of Tijuana, a sprawling metropolis of nearly two million people located just south of San Diego, the second largest city in California. Together, Tijuana and San Diego make up one of the largest urban centers on the two thousand mile stretch that separates the United States from Mexico. My first childhood memory of growing up on the border was of waiting. Here, one always has to wait in line in order to cross to other side. Wait to get the right documents. Wait for the inspector. Wait for the port entry to open. Wait, wait, wait; sometimes up to three hours, hours that for a child, confined to the back of a car in the middle of summer, felt like a hellish eternity. Ir al otro lado is the term in Spanish used by borderlanders to describe the act of crossing the border. It’s a term I learned to dread, for every time my parents would say, “We’re going to the other side,”—“Vamos a ir al otro lado”—it meant we would be stuck in traffic forever, waiting for a very long time. This odyssey is part of everyday life for many border residents. Up to that moment, the border to me meant no more than an inconvenience. One winter morning, my parents sat my sisters and me down to tell us that we would be going to the other side—to live there. The move would be permanent. I was ten years old and the short distance of less than five miles between my old neighborhood in Tijuana and my new home in San Diego would become the longest journey of my life. It was the mid-1980s when the journey began; the Mexican economy had collapsed overnight, and in a desperate attempt to retain foreign investment, the Mexican government had all but suspended environmental and labor standards, allowing heavy industry to set up shop next to residential areas in Tijuana. The maquiladoras (foreign-owned assembly plants) began to operate next to our family home. The effect was immediate; an array of health problems began to appear, including high rates of pediatric cancer. At age ten, I was diagnosed with a rare form of colon cancer. The nearest treatment was either in Mexico City 2,000 miles away or on the other side, across the border, in San Diego. My parents opted for the shortest route. Beneath its thin layer of history, the U.S.-Mexican border—with its decades of failed, repressive, and inhumane polices that have wreaked havoc in border communities for generations—is an open sore. The U.S.-Mexico border, after all, is a stark reminder of Manifest Destiny, a product of war and occupation, a wound that has not healed. The maquiladora model that poisoned my community and my body paved the way for the establishment of the North American Free Trade Agreement (NAFTA) in 1994. NAFTA is a failed, neo-liberal economic treaty that devastated the Mexican economy and uprooted millions of Mexican workers from their homes, catapulting them into the United States to find lowwage jobs in order to survive. Every single night, from our living room window in our home in San Diego, the drama of forced migration caused by NAFTA unfolded before my eyes. My family’s home was located on a route heavily traveled by migrant workers on their way north. Nighttime brought the muffled voices of migrants and the steady stream of delicate footsteps, followed by bright lights, the
“The Open Wound of the U.S.-Mexico Border” by Christian Ramirez
piercing sound of helicopter blades, and then the sharp metal voices of Border Patrol agents shouting commands in broken Spanish. It was everyday life in the 1990s at the border during the height of Operation Gatekeeper, a federal initiative launched by the Clinton administration. Gatekeeper saturated residential areas with Border Patrol agents, purposely shifting migration flows away from the urban areas and into the inhospitable deserts and mountains of the borderlands, where at least 6,000 men, women, and children have endured horrific deaths. Christian Ramirez speaking during a rally at the U.S.-Mexican border, December 13, 2009.
The militarization of the U.S.-Mexico border was in full swing, complete with a casualty list. The untold number of human rights abuses mounted, building towards a monumental humanitarian tragedy. The militarization of our communities became intolerable; despite the fact that everyone in my family had legal status in the United States, all of us were searched, handcuffed, detained or arrested at some point. The same was true for my friends, my classmates, my teachers, my neighbors: we were living in a state of siege. 36
By this point, tired of the aggression of the Border Patrol towards my community, I became a student and youth organizer. I helped organize rallies and marches—we followed the Border Patrol around with video cameras in order to prove to the elected officials that the actions of federal agents were disrupting the quality of life in our communities. Then the events of September 11th, the creation of the Department of Homeland Security and the so-called “war on terror” that ensued further compounded the tragedy of the U.S.-Mexico Border. The Border Patrol swelled to nearly 20,000 agents. Nighttime raids by plainclothes agents terrorized communities. Our friends and neighbors were rounded up at schools, on public transportation, near places of worship; the threat of deportation hung over our heads. Border communities collectively were being punished by the United States government. During the Bush administration, human rights workers along the border were beaten and arrested for documenting Border Patrol’s abuses. Today, ten years since the events of September 11th, the Obama administration continues the rule of an iron fist and the rhetoric of a “border out of control” in order to justify the excessive use of force by the Department of Homeland Security. In the last year, the southern border region has borne witness to the following tragedies: •
On May 28, 2010, Anastasio Hernández Rojas, a 42-year-old father of five, was brutally beaten, stung with a Taser and killed by border guards near the San Ysidro Port of Entry in San Diego, California while in the custody of Border Patrol agents.
On June 7, 2010, a U.S. Border Patrol agent shot and killed 15-year-old Sergio Adrian Hernández Güereca, near the Paso del Norte Bridge in El Paso, Texas.
On January 6, 2011 Border Patrol agents in the Arizona border community of Nogales gunned down another teenager, 17-year-old Ramses Barrón Torres.
On March 21, 2011, Carlos Lamadrid, 19, was shot and killed by a Border Patrol agent in Douglas, Arizona.
On March 30, 2011, José Gutierrez, 41, a long-time resident of Los Angeles and father of three, was also stung with a Taser by border guards at the San Luis, Arizona Port of Entry, and is clinging to life after suffering various lifethreatening injuries.
During President Obama’s watch, our border communities have suffered a wave of violent incidents caused by Border Patrol agents and other Department of Homeland Security officers. These shameful acts, which have so far gone unpunished, have destroyed families, devastated communities, and left border residents wondering how long we must endure such levels of brutality by our own government. The vibrant and dynamic border region must be treated with dignity and respect by the administration and be given the ability to succeed and thrive with dignity. Rounding up hard-working, honest individuals in their communities, incarcerating immigrants for supposedly not having correct documents, shooting and beating border residents, and deploying National Guard members to our communities diminishes the democratic principles of our society and moves us away from a meaningful and civil discussion on immigration reform. Until the administration acknowledges that border communities deserve respect, transparency, and well-trained and accountable authorities who acknowledge and follow our Constitution, the promise of humane immigration reform will never be fulfilled.
About the images Pg. 34: Graphic rendering adapted from the original photograph, by Tomas Castelazo, of the U.S.-Mexico border at Tijuana, Baja California, Mexico; and California. Photo courtesy Wikipedia. Original image can be viewed here: <http://commons. wikimedia.org/wiki/File:Us-mexico_border_at_Tijuana.jpg>. Pg. 36: Christian Ramirez speaks to gathered supporters a rally at the U.S.-Mexican border, December 13, 2009. Image courtesy Christian Ramirez.
Profiling At Our Northern Borders Nadia Tonova Director of National Outreach, National Network for Arab American Communities
“They asked me if I knew anyone who was affiliated with terrorism.” “I was taken and handcuffed by the officers. They . . . searched me from head to toe.” “They asked for all the names, addresses, birth dates and occupations of the family members we visited.” These are just a few of the experiences Arabs or Muslims related to me after their encounters with the U.S. Customs and Border Protection (CBP) officers at the northern border in Detroit, Mich. The Detroit border with Windsor, Ontario, Canada is the largest commercial border in the United States. It is also a busy crossing point for non-commercial traffic between the two countries. With Canada just across the river, it is common for area residents to take the short drive across the bridge to Windsor for work, to visit family, to go for a weekend getaway, or even just to go out to dinner. 38
But after the attacks of September 11, that began to change for many of the 350,000 Arabs and Muslims who live in greater Detroit. In 2006, I came to work for the Arab Community Center for Economic & Social Services (ACCESS) as coordinator of the Liberty and Justice for All campaign, a national project of the Rights Working Group. My job was to organize the community around the growing problem of police profiling of the Arab and Muslim community. I heard story after story of people who were afraid to travel to Canada because of profiling by federal agents upon their re-entry. Their stories were numerous and similar. As travelers arrived at the U.S. checkpoint, those with Arab or Muslim surnames, those who appeared to be from these communities, or those who were wearing religious dress, were often stopped by CBP agents for no other apparent reason. Others were stopped after their passports were swiped, indicating that their names were on a security watch list. Many of the stops were egregious. People told me of being surrounded by officers with their weapons drawn, of being handcuffed, of being separated from their families and questioned for hours. Many were not allowed to use the restroom or feed their children while they were being detained. While they were interrogated, their cars were searched. Some were questioned about letters to the editor they had submitted to local newspapers, others about their religious beliefs. One case that stood out was that of Zakariya Reed, who attended one of our town hall meetings looking for help. Mr. Reed was born in Toledo, Ohio. He is a firefighter, a member of Toledo’s Homeland Security Emergency Response team, a former twenty-year service member of the Air National Guard, and a Gulf War veteran. Yet, since 2006, he and members of his immediate family have been detained, frisked, and interrogated more than fifteen times at border crossings in Detroit after returning from trips to Canada. He has been held for hours; denied access to an attorney while border officials searched his cell phone, laptop and vehicle; and aggressively questioned about his religious beliefs, political views, associations and contributions to charity.
Since 2003, ACCESS has been working to end this kind of profiling at the border. We began to hold town hall meetings, which generate some press around the issue. We mounted campaigns to help community members understand their rights and to know that they are not alone. And we have reached out to the broader community to help them understand what is happening at our borders and how it is affecting their neighbors. We work in a diverse coalition with our partners. In 2009, we launched a border profiling hotline, housed at the ACLU-Michigan, in partnership with local human rights and immigrants’ rights organizations. Our goal was to collect data on Protest at Oswego, N.Y. Border Patrol ofices, October 2008 what communities were facing at the border and to give the community a place to turn to when incidents occurred. We also engaged in a policy strategy. We began meeting with decision-makers—elected and administrative officials—to share our stories and advocate for an end to profiling. We supported legislation such as the End Racial Profiling Act to strengthen government’s response to profiling and make it clear that such tactics were not only unacceptable, but counterproductive. Despite these best efforts, profiling at our northern border continues to be a serious problem. Evidence of this surfaced in March when the Council on American Islamic Rights in Michigan filed a complaint asking the federal government to launch a comprehensive investigation into profiling of Muslims at the Detroit border crossing. The Department of Homeland Security has pledged to investigate this allegation and, “if appropriate, take corrective action.” While profiling remains a significant problem, some victories have arisen during this struggle. Many within the community have come together and spoken out about the injustice they have faced. Many more have learned what their rights are at the border and when encountering law enforcement. Some have even learned to work within the justice system to fight back. A great example is Julia Shearson, who was stopped at the U.S. border crossing in Buffalo, New York, after a weekend getaway with her daughter. Since January 2006, Ms. Shearson has been trying to learn why this happened to her and how her name ended up on a government watch list. After a long legal battle, on April 6, 2011, the U.S. Circuit Court of Appeals overturned a federal court decision and ruled that Shearson could sue for damages when the government maintains or disseminates documents in violation of the Privacy Act. This is significant because it could affect the way citizens obtain information about themselves from the government.1 All of these victories have empowered the community to stand up for their rights and continue to fight back against profiling. We will continue to educate the community, to amplify their voices and to advocate for policy change until profiling at the northern border is no longer commonplace.
About the images Pg. 39: “October 11, 2008 - Oswego, NY - Detainment Task Force and groups from Central and Upstate N.Y. protest Border Patrol practices in front of the Oswego Border Patrol Office less than two weeks after forty agents raided a community in Sodus, outside of Rochester, as part of a nation-wide immigration ‘sweep’.” Photographer: Richard Vallejo, Flickr. 1 Smith, Robert L., and John Caniglia. “Julia Shearson Tells How a Weekend Trip to Canada Became 5-year Fight for Rights,” Blogs - Cleveland.com, The Plain Dealer, June 4,2011, and June 14, 2011. <http://blog.cleveland.com/metro/2011/06/julia_shearson_tells_how_a_wee.html>.
Racial Profiling in the Context of Interior Immigration Enforcement Pramila Jayapal Founder and Executive Director of OneAmerica
As I write this essay, the Department of Homeland Security has just announced an indefinite suspension of the NSEERS program,1 commonly called the Special Registration program. Enacted shortly after 9/11, the program targeted men over the age of eighteen from twenty-five mostly Arab and Muslim countries to be registered and fingerprinted. The program led to over 10,000 people caught up in a dragnet of suspicion and even deportation, but not a single “terrorist” was identified. The program left the rubble of mistrust, violations of rights and tremendous fear in its wake. At the time, a fledgling organization in Seattle, Washington called Hate Free Zone, that had formed out of the backlash against Arab, Muslim and South Asian communities following 9/11, joined with many others to denounce the NSEERS program. As the founder and executive director of the organization, I made a statement at a press conference in 2003 that included these words: The Special Registration program is simply one more example of a policy that makes us no safer while at the same time institutionalizing racial profiling and selective enforcement. . . . Special Registration furthers the stereotyping of a prejudice against entire nations. That tiny organization grew, changed its name to OneAmerica, and this year will celebrate its 10th anniversary of advancing democracy and justice for all through building collective power in our communities. Today, we are the largest immigrant advocacy organization in Washington State and have worked to build a strong and diverse movement—here in the state and across the country—for immigrant rights. It has not been an easy ten years, and we have experienced both failures and successes—the most recent success being the suspension of the NSEERS program. But we know that maintaining the proper balance between security and liberty has never been easy in the history of the United States. We need look no further than 1942 and the internment of Japanese-Americans. September 11, 2001 was a reminder that fear and patriotism together are a powerful combination for suppressing dissent and that we need the power of people coming together to act as a mirror and fight for the Constitution and allow our core values to prevail. At OneAmerica, we proudly and humbly recognize and accept the enormous responsibility of continuing to make sure that the voices of immigrants, refugees and many marginalized communities remain vibrant and integral to the fight against racial profiling and the fight for a functioning democracy. We do this in partnership with many allies and coalitions, such as Rights Working Group, recognizing that we are always stronger together.
ERPA, Racial Profiling and Border Enforcement The post-9/11 backlash brought to a dramatic halt progress toward fighting racial profiling through federal legislation. The End Racial Profiling Act of 2001 (ERPA), introduced earlier that summer, aimed to prohibit the practice of racial profiling and allow victims to pursue injunctive relief. It seemed that there might actually be an opportunity to push ERPA forward with bipartisan
1 Miriam Jordan, “Controversial Surveillance Program Launched After 9/11 Ends,” Wall St. Journal, April 27, 2011, <http://online.wsj.com/article/SB1 0001424052748704187604576289682985267902.html>.
“Racial Profiling in the Context of Interior Immigration Enforcement” by Pramila Jayapal
support. But 9/11 not only halted ERPA’s momentum: it began a steady and sometimes deep erosion of basic human rights. In addition, the goals of national security became conflated with immigration enforcement and with racial profiling in ways that were not helpful to the fight for basic rights and liberties. After 9/11, the U.S. government began an era of blatant profiling, rounding up more than 1,200 Arab, South Asian and Muslim men and holding them without charge—and, in the Seattle area, raiding Somali grocery stores and money wiring businesses. In the years since 9/11, we have seen the responsibility for enforcing immigration laws and finding undocumented immigrants increasingly delegated to state and local police and, with this, an increase in racial profiling emerging across the country. Immigrants—whether Asian, African, or Latino—have borne the brunt of harsh policies, with the U.S. government allowing raids and arrests without warrants, holding thousands in inhumane detention conditions, and deporting people without a fair trial. Quickly, the “carve-outs” in racial profiling for national security purposes became accepted as standard necessities. This, with several other factors, combined to make it questionable whether the practice racial profiling is actually unacceptable or not. While politically correct to say it is unacceptable to profile, the reality is that the loopholes within proposed legislation and federal guidance to end racial profiling have combined with growing anti-Muslim sentiment and growing practices of harsh enforcement that criminalizes immigrants to ensure that racial profiling is alive and well in most of our communities. And the push to move the End Racial Profiling Act forward has been challenged by a new breed of conservatives in the House and Senate, who are making bipartisan progress close to impossible. Still, there are unlikely champions who remain committed to trying to move ERPA forward. The question is whether we will be able to provide the legislation with enough detail and eliminate carve-outs that would make the Act less than it should be. 42
To help build the growing movement of awareness around racial profiling, OneAmerica worked with Rights Working Group and dozens of other local and state groups last summer on the Racial Profiling: Face the Truth campaign. Together with the Council on American Islamic Relations (CAIR) and several Latino groups, we hosted a hearing in May 2010 in Burlington, Washington. The hearing featured a number of personal testimonies from diverse communities all over Washington state, especially those living near the U.S.-Canada border, and aimed to highlight the devastating consequences of racial and religious profiling against a multitude of communities such as the Muslim, Arab, Native American, Latino and South Asian communities. After several similar hearings across the country, Rights Working Group published a report with many of the testimonies and a call to action, including the need Pramila Jayapal speaks at the March for America in Washignton, D.C., March 21, 2010. to pass the End Racial Profiling Act.
That hearing in Burlington also led to more work along the northern border of the United States. Ironically, Washington’s senators have fought vigorously to ensure that with the enormous amount of money spent on border security, that it is not all spent only on the Southern border. As a result, similar patterns to what we see along the U.S.-Mexico border of biased policing and Border Patrol overreach are evident, even along the nearly twice as long 4,000-mile border between the U.S. and Canada. Washington State shares 427 miles of this border, including four border crossings, and is home to thousands of immigrants from Central and South America, Mexico, China, Russia, Asia, Canada and other countries and regions. In the summer months, the population booms as thousands of migrant workers migrate north to fill agricultural jobs that support a vital part of Washington’s economy. As federal funding for border control and enforcement have increased, so have detentions of non-criminal undocumented immigrants who do not pose a public safety threat, raids, pre-textual traffic stops and other instances of human rights violations or racial profiling. Communities live in fear of both local and federal law enforcement, since Customs and Border Protection (CBP) is regularly seen to both provide interpretation in local law enforcement situations or worse yet, be the first responder in many instances. OneAmerica’s Northern Border Human Rights Project is working to build power and advocate for immigrant, human, and civil rights and to change policy around racial profiling and harsh immigration enforcement that separates families and violates international human rights law. The project aims to document hundreds of human rights violations in immigrant communities and help build leaders who will become stronger advocates for their civil and human rights.
Local-Federal Immigration Enforcement Programs The last ten years has been marked by a growing vitriolic debate around immigration and immigrants. Immigration reform legislation has been stalled. The Obama Administration has increased deportations and other forms of interior enforcement far beyond what any other previous Administration did. In the absence of immigration reform, states are also beginning to take matters into their own hands, passing draconian measures aimed at targeting particularly undocumented immigrants but turning the environment toxic for immigrants of all legal status. In particular, the prevalence of racial profiling in the context of immigration enforcement is starkly revealed when Immigration and Customs Enforcement (ICE)—the agency within the Department of Homeland Security (DHS) charged with detaining and deporting immigrants—collaborates with local law enforcement in formal programs under the umbrella of ICE ACCESS (Agreements in Cooperation in Communities to Enhance Safety and Security). The ICE ACCESS initiative includes 14 federallocal immigration enforcement programs such as the Criminal Alien Program, 287g, and Secure Communities. Since 2006, the ICE enforcement regime has increasingly relied on local criminal-justice systems—the courts, jails, and police—to act as immigration agents and remove “dangerous criminal aliens.”2 Rather than bolstering national security, this regime has resulted in more racial profiling, less-effective policing, and hefty financial burdens for local governments. Racial profiling and unlawful detention by local law enforcement are already prevalent throughout the country, but ICE ACCESS has exacerbated the problem3. In 2010 and 2009, ICE spent an estimated $1.5 billion and $1 billion, respectively, on these programs.4 While other programs such as 287g and Secure Communities have received the most attention publicly, it is actually the Criminal Alien Program (CAP) that is ICE’s bedrock enforcement initiative. CAP relies on jail officials to screen and identify
2 Trevor Gardner II and Aarti Kohli, “The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program,” The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity, Berkeley Law, September 2009, <http://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf>. 3 Azadeh N. Shahshahani, “Time For Cobb County To Walk Away From 287g,” ACLU Blog of Rights, October 15, 2009, <http://www.aclu.org/2009/10/15/ time-for-cobb-county-to-walk-away-from-287g>. 4 Immigrant Justice Network, “Dangerous Merger: Corrupting the criminal justice system for immigration enforcement,” April 2010, <http://www.ilrc. org/immigrantjusticenetwork/HandoutFinal5.pdf>.
“Racial Profiling in the Context of Interior Immigration Enforcement” by Pramila Jayapal
“criminal aliens” so ICE can place them into deportation proceedings. In force in all state and federal prisons, CAP is also active with more than 300 local jails nationwide.5 CAP is the workhorse that has helped ICE multiply immigrant detentions, ICE detainers, and deportations across the country. In 2006, ICE charged 67,000 persons detained for criminal offenses with immigration violations, more than doubled that figure to 164,000 in 2007, and continued the meteoritic rise to more than 220,000 in 2008.6 The reality is that CAP may actually provide incentives for racial profiling through the pre-textual arrest of people who “look” like undocumented immigrants. Numerous studies, including one from the Warren Institute that examined arrest data from an ICE-local partnership in Irving, Texas, have found that CAP “tacitly encourages local police to arrest Hispanics for petty offenses,” which contradicts Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories. Studies also show that misdemeanor charges accounted for the majority of ICE detainers as opposed to tiny percentages of felony charges. Interestingly, the Warren Institute study also indicates that the majority of Hispanics arrested after CAP was initiated, mainly for minor misdemeanor offenses, were lawfully present in the U.S.7
The 287g program allows ICE to delegate immigration enforcement authority to state and local law enforcement agencies. Immigrant rights groups and the Government Accountability Office alike have criticized ICE for aggressively focusing on “easier” targets and detaining immigrants who have committed misdemeanors, such as shoplifting or traffic offenses, rather than people who pose a legitimate threat to public safety.8 Reports by the ACLU and others suggest that there is simply no accountability in place to ensure that local law enforcement is not abusing the program and racially profiling immigrant communities. In North Carolina, which has eight active 287g agreements, local police set up roadblocks outside of Latino markets and stationed themselves near Latino churches for the purpose of checking licenses.9 Despite profiling Latino immigrants in an attempt to link them to violent crime, 83% of the immigrants arrested in one North Carolina county were charged only with traffic violations.10
2009 May Day demonstration, Georgia State Capitol in Atlanta.
The Secure Communities program provides ICE access to the fingerprint data of these arrested noncitizens that is collected during the jail booking process. The goal: to catch “the worst of the worst” as billed by the Obama Administration who chose to expand the Bush Administration’s creation, launched in October 2008.11 As with the other ACCESS programs, immigrants being arrested on minor misdemeanor violations account for the lion’s share of deportations under Secure Communities, often leaving behind families, employers, and communities that depended upon them. Misdemeanor arrests offer police the most discretion—yet too often offer the most direct path to discrimination and biased policing. Like other programs, Secure Communities largely lacks any procedural mechanisms to ensure effective oversight, accountability, or redress. Records obtained only by Freedom of Information Act requests by public interest groups show that seventy-nine percent of people deported under Secure Communities had no criminal records or had been picked up for low-level offenses.12
5 Immigration Policy Center, “The Criminal Alien Program: Immigration Enforcement in Prisons and Jails,” February 17, 2010, <http://www. immigrationpolicy.org/just-facts/criminal-alien-program-immigration-enforcement-prisons-and-jails>. 6 Gardner and Kohli. 7 Ibid. 8 Immigrant Justice Network. 9 Testimony of Deborah M. Weissman, “Joint Congressional Hearing on the ‘Public Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws,’” April 2, 2009, <http://judiciary.house.gov/hearings/pdf/Weissman090402.pdf>. 10 Immigrant Justice Network. 11 Editorial Board, “Immigration Bait and Switch,” New York Times, August 17, 2010, <http://www.nytimes.com/2010/08/18/opinion/ 18wed3.html>. 12 Ibid.
Secure Communities remains untested, yet the Obama administration is expanding it quickly and with bare-knuckle tactics that force doubting localities into participating in the program. A positive development is that local law enforcement—from the Police Foundation and the Major Cities Chiefs Association—are often some of the most compelling voices in making the case for why these kinds of programs that mix local enforcement with immigration do nothing more than harm community-policing efforts and destroy trust. Growing evidence suggests that these programs are used indiscriminately to target, apprehend and deport ever larger numbers of noncitizens, including long-time green card holders with U.S. citizen spouses and children. Immigrant and legal advocates across the country have joined together to demand accountability from the Obama Administration, and to push for suspension of these programs which are costly and destructive, with no clear adherence to this Administration’s immigration enforcement priorities.
Arizona’s SB 1070 and Copycats The flashpoint of last summer was the passage of Arizona’s SB 1070 law. The law makes the failure to carry immigration documents a state crime. It also allows police to detain anyone suspected of being in the country illegally. It was a tremendous setback for civil liberties. The bill essentially gives the green light to racial profiling, despite Arizona Gov. Jan Brewer’s protestation that the practice would not be tolerated, adding, without much comfort, “we have to trust our law enforcement.”13 SB 1070 has been challenged by a lawsuit by the Obama administration, which states that SB 1070 should be blocked on the grounds that immigration enforcement is a federal matter, not a state matter. Despite the costly legal challenge, SB 1070 prompted a surge of copycat bills in statehouses across the country. Pundit declarations, following substantial GOP victories in the 2010 mid-term elections, that said antiimmigrant legislation would coast to victory, proved to be false. One year after SB 1070 was signed into law, momentum for copycat bills has slowed and many have been rejected outright, some for concerns over racial profiling. As of April 2011, bills in five states—Utah, Georgia, Indiana, Oklahoma, and South Carolina—have passed at least one chamber of the legislature. Meanwhile, SB 1070-style bills in ten states either failed to move forward or have been outright defeated, including California, Colorado, Iowa, Kansas, Kentucky, Mississippi, Nebraska, New Hampshire, South Dakota, and Wyoming.14 Others remain in play but are being watered down. Opposition to a bill in Florida has 2010 May Day demonstration, Los Angeles, Calif. grown to include not only immigrant advocates, but the Florida Catholic Conference, Florida Police Chiefs Association, farm-worker advocates, farmers and business groups. The pressure led GOP Sen. Mike Bennett, who introduced the Arizona-style bill, to indicate he might not support his own bill due to deep concerns about racial or ethnic profiling.15 Law enforcement continues to weigh in, warning that it would be difficult for police to maintain public safety if they are required to round up immigrants.16 As El Paso’s 13 Ibid. 14 Van Le, “Latinos Hand Georgia New US House Seat; Get Arizona Immigration Copycat in Return,” America’s Voice, April 18, 2011, <http:// americasvoiceonline.org/blog/entry/latinos_hand_georgia_new_congressional_seat_receive_arizona_copycat_in_retu>. 15 Marc Caputo, “Florida lawmakers size up Arizona-style bill,” Miami Herald, January 10, 2011, <http://www.miamiherald.com/2011/01/10/2009950/ florida-lawmakers-size-up-arizona.html>. 16 Maurice Belanger, ”New Report Describes Slowing Momentum for SB 1070-Style Laws,” National Immigration Forum, March 31, 2011, <http://www. immigrationforum.org/blog/display/new-report-describes-slowing-momentum-for-sb-1070-style-laws/>.
“Racial Profiling in the Context of Interior Immigration Enforcement” by Pramila Jayapal
Sheriff Richard Wiles put it, “I’m concerned that if forced into this immigration issue, we’re going to tear down the trust and respect and crime will rise in our cities. There’s no reason to go down that road.”17 In Arizona, SB 1070 sponsor—and now Senate President—Russell Pearce had all five of his anti-immigrant bills, including one about birthright citizenship, soundly defeated in the Senate in March 2011.18 This brought to a full circle the connection to post-9/11 co-mingling of national security, racial profiling and immigration. We believe the cycle initially started with the Department of Justice’s (under Ashcroft) 2002 “inherent authority” memo that initially served as the basis by some state and local law enforcement agents to arrest individuals they suspected of undocumented status. The 2002 DOJ Office of Legal Counsel “inherent authority” opinion should be immediately rescinded and the Office of Legal Counsel should issue a new memo clarifying that state and local law enforcement agents may not enforce federal immigration laws absent formal authority granted to them by the federal government.
Conclusion Ten years after September 11, 2001, the need has never been greater for Americans across the country to fight for what we believe in: an end to racial profiling and a system that respects the balance between national security, human rights and civil liberties. Justice Thurgood Marshall reminded us many decades ago that “when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.” Using fear, patriotism and national security as excuses to erode human, civil and immigrant rights will only lead to a weakened country. Join us in the movement to protect our country’s fundamental values and advance democracy and justice—for all. 46
About the images Pg. 40: Graphic rendering based on photograph by USCG Photo by Lt. Tony Russell, November 20, 2003. Immigration and Customs Enforcement (ICE) Agents help Miami-area police forces maintain the peace while an estimated three to eight thousand protesters converged upon the downtown area. Original imaged may be viewed here: <http://www.d7publicaffairs. com/go/doc/586/25308/ICE-secures-FTAA-summit-High-res>. Pg. 42: Pramila Jayapal speaks at the March for America in Washignton, D.C., March 21, 2010. Photo courtesy OneAmerica. Pg. 44: 2009 May Day demonstration at the Georgia State Capitol in Atlanta, Ga. Photographer: Caitie Leary, as C. Elle, on Flickr. Pg. 45: Sign at May Day protest, Los Angeles, Calif., May 1, 2010. Photographer: Zeke Anders, on Flickr.
17 Ibid. 18 Kristine Harrington, “All Five controversial immigration bills defeated in Ariz. Senate,” Associated Press, March 17, 2011, <http://www.azfamily.com/ news/Four-of-five-controversial-immigration-bills-defeated-in-Arizona-Senate-118209309.html>.
REFERENCES CAP Guttin, Andrea. “The Criminal Alien Program: Immigration Enforcement in Prisons and Jails,” Immigration Policy Center, <http://www. immigrationpolicy.org/just-facts/criminal-alien-program-immigration-enforcement-prisons-and-jails>. Gardner, Trevor II and Aarti Kohli. “The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program,” The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity, University of California, Berkeley Law School, <http://www.law.berkeley.edu/files/policybrief_ irving_0909_v9.pdf>. Immigrant Justice Network. “Dangerous Merger: Corrupting the criminal justice system for immigration enforcement,” <http://www. nationalimmigrationproject.org/resources/deportation/Dangerous_Merger_ICE_ACESS_Programs.pdf>. 287g Capps, Randy, Marc Rosenblum, et al. “Delegation and Divergence: A Study of 287g State and Local Immigration Enforcement,” Immigration Policy Institute, January, 2011, <http://www.civilrights.org/archives/2011/02/1141-mpi-report-287g.html>. “Time For Cobb County To Walk Away From 287(g),” ACLU Georgia, <http://www.aclu.org/2009/10/15/time-for-cobb-county-to-walkaway-from-287g>. U.S. Government Accountability Office, “Immigration Enforcement: Controls Over Program Authorizing State and Local Enforcement of Federal Laws Should be Strengthened (GAO-09-381T),” March 4, 2009, <http://www.gao.gov/new.items/d09381t.pdf>; see also U.S. Government Accountability Office, “Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration Laws,” (GAO-09-109), January 2009, <http://www.gao.gov/new.items/d09109.pdf>. Secure Communities Benson, Ann. “Fed’s Immigration Enforcement Strategies Increasingly Criminalize Immigrants,” Seattle Times, December 10, 2010, <http://o.seattletimes.nwsource.com/html/opinion/2013649885_guest12benson.html>. Weissman, Deborah M. “Testimony before the Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties and the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law,” United States House of Representatives, Joint Hearing on the “Public Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws,” April 2, 2009, <http://judiciary.house.gov/hearings/pdf/Weissman090402.pdf>. “Immigration Bait and Switch,” August 17, 2010, New York Times. <http://www.nytimes.com/2010/08/18/opinion/18wed3.html?_r=1>. Lawrence, Stewart J. “Why Obama’s “Secure Communities” Program May be More Dangerous Than Arizona,” July 26, 2010, Alto Arizona, <http://blog.altoarizona.com/blog/2010/07/why-obamas-secure-communities-program-may-be-more-dangerous-than-arizona.html>. Seattle Police Department and the Department of Justice Carter, Mike. “Justice Department to investigate Seattle Police civil-rights practices,” March 31, 2011, Seattle Times, <http://seattletimes. nwsource.com/html/localnews/2014648060_dojinvestigation01m.html>. Cartier, Curtis. “U.S. Department of Justice Launches Formal Civil-Rights Investigation into Seattle Police Department’s “’Patterns’ and ‘Practices,’” March 31, 2011, Seattle Weekly Blogs, <http://blogs.seattleweekly.com/dailyweekly/2011/03/us_justice_department_ launches.php>. Carter, Mike. “Feds investigating officer’s shooting of woodcarver,” March 31, 2011, Seattle Times, <http://seattletimes.nwsource.com/ html/localnews/2014653058_birkprobe01m.html>. Northern border project: “Advancing Human Rights at the Northern Border,” OneAmerica, <http://weareoneamerica.org/ advancing-human-rights-northern-border>. SB 1070 “Arizona Enacts Stringent Law on Immigration,” The New York Times, <http://www.nytimes.com/2010/04/24/us/politics/24immig.html>. Univision. “Anti-Immigration Bill Dies in CA Legislature,” April 6, 2011, New America Media | Latino, <http://newamericamedia. org/2011/04/anti-immigration-bill-dies-in-ca-legislature.php>. Caputo, Mark. “Florida lawmakers size up Arizona-style bill,” January 10, 2011, The Miami Herald, <http://www.miamiherald. com/2011/01/10/2009950_florida-lawmakers-size-up-arizona.html>. “New Report Describes Slowing Momentum for SB 1070-Style Laws,” March 31, 2011, National Immigration Forum, <http://www. immigrationforum.org/blog/display/new-report-describes-slowing-momentum-for-sb-1070-style-laws/>. Associated Press. “All 5 controversial immigration bills defeated in Ariz. Senate,” March 17, 2011, <http://www.azfamily.com/news/Fourof-five-controversial-immigration-bills-defeated-in-Arizona-Senate-118209309.html>. Inherent Authority Memo: ‘Victims and Witnesses Are Made Criminals When State and Local Police Enforce Immigration Laws,” RWG, June 2, 2011, <http://www.rightsworkinggroup.org/content/victims-and-witnesses-are-made-criminals-when-state-and-local-policeenforce-immigration-law>. Operation Stonegarden: “Fact Sheet,” National Immigration Forum, February, 2010, <http://www.immigrationforum.org/images/ uploads/2010/OperationStonegardenFactSheet.pdf>.
To Honor the Constitution Retired Police Chief Arturo Venegas Project Director, Law Enforcement Engagement Initiative (LEEI)
My law enforcement profession has evolved over my forty years of service. First, as a police officer; second, as a chief of police; and now, as a consultant looking at it from the outside in. Along the way, I’ve always been cognizant of our power and authority. Unlike any other profession—including judges—before any oversight, we can deprive people of their freedom—and sometimes their lives. Unbridled power and authority, once left unchecked, destroys social peace, individual freedom, and liberty. As a student of history, I learned that, time and again, policing authority and power has been unwisely used on behalf of the state, often with a callous disregard for the rights and dignity of people. I also discovered that when law enforcement’s power and authority were used contrary to the Constitution, communities, courts, organizations, legislative bodies, and courageous colleagues—even at the expense of their careers— stepped in to correct the wrong, and we changed. I am proud of my profession for evolving in order to better serve, even if at times it was taken there kicking and screaming. We were the better for it. My primary duty has always been to the public I serve and to the constitutions of the United States and California that I swore to support and defend. This was my oath of office throughout my policing career. My oath didn’t require that we put people in jail, perform social services, or take any other action as we carry out our duties. We know that those are our tools of the trade, but we are also given a lot of latitude in the execution of our tasks and responsibilities. Officers use discretion every day when giving someone a citation, making an arrest, or even letting someone go free. Using it unwisely can have public and officer safety implications and even a detrimental impact on our free society. Abuse of this awesome power and authority can sow the seed of tyranny. I have always believed that not speaking out against it is not an option. Silence in the face of abuse of power goes against my oath of office. Failure to act dishonors the constitutions our law enforcers have sworn to uphold and defend, enables unjust suffering, and deprives human beings of justice, liberty and freedom—all the principles that I wanted for my family when I became a citizen of the United States of America. Sadly, racial profiling has been with us for way too long. Today’s targets are my neighbors; men, women and children who some feel they can abuse, victimize and take advantage of for the very same reasons that others did so in the past. My first experience with racial profiling was during my military basic training in Fort Bliss, Texas. On a weekend pass with a friend who had relatives living in El Paso, we went downtown. At one of the stores, Mexicans lined up outside, waiting to be let in one at a time. I asked my friend why, and he said, very nonchalantly, “It’s because they’ll steal you blind, most of them are thieves.” And he was Hispanic! I had never experienced that before. The anti-immigrant laws in Arizona and elsewhere have a strong support among many Hispanics also. Racism is not owned by any one race. We are going through trying times facing an economy that has plummeted, leaving a trail of shattered lives and a future of uncertainty for millions, not only in this country, but also across our small planet. The fear that comes with these times
“To Honor the Constitution” by Retired Police Chief Arturo Venegas
compounded with the fear and anxiety brought about because of the terrorist acts of September 11, these social demons now pit neighbor against neighbor. It makes scapegoats out of many with little or no political voice in the halls and back rooms where power is exercised and decisions are made. I’ve always seen my job as not just mine but ours—the community and I working together. No cop can be everywhere, and I saw community policing as a natural way of fulfilling my duties and responsibilities as a peace officer. Just like it takes a whole village to raise a child, it takes the entire community to police itself. The responsibility for keeping everyone safe from fear and victimization rests on all of us.
About the images Pg. 48: Graphic rendering derived from official reproduction of the Constitution of the United States, courtesy National Archives. Original image can be viewed here: <http://www.archives.gov/exhibits/charters/constitution.html>.
Conclusion Congress Should Prohibit Racial Profiling by Law Enforcement Agencies The Honorable Benjamin L. Cardin U.S. Senator, Maryland
This fall, I plan to introduce legislation in the Senate that would prohibit the use of racial profiling by federal, state, or local law enforcement agencies. The End Racial Profiling Act (ERPA) had been introduced in previous Congresses by former Senator Russ Feingold of Wisconsin and I am proud to follow his example. Racial profiling is ineffective. The more resources that are spent investigating individuals solely because of their race or religion, the fewer resources are being directed at suspects actually demonstrating illegal behavior. Former DHS Secretary Michael Chertoff stated in response to questions about the December 2001 bomb attempt by Richard Reid that “the problem is that the profile many people think they have of what a terrorist is doesn’t fit the reality . . . and in fact, one of the things the enemy does is to deliberately recruit people who are Western in background or in appearance, so that they can slip by people who might be stereotyping.” Racial profiling diverts scarce resources from real law enforcement. In my own state of Maryland in the 1990s, the ACLU brought a class-action lawsuit against the Maryland State Police for illegally targeting African-American motorists for stops and searches along Maryland’s highways. The parties ultimately entered into a federal court consent decree in 2003 in which they made a joint statement that emphasized in part that: “the need to treat motorists of all races with respect, dignity, and fairness under the law is fundamental to good police work and a just society. The parties agree that racial profiling is unlawful and undermines public safety by alienating communities. . . .” Racial profiling demonizes entire communities and perpetuates negative stereotypes based on an individual’s race, ethnicity, or religion. Earlier this year, I spoke out on the Senate floor and in the Senate Judiciary Committee to share my thoughts on the hearings held in the House of Representatives, entitled “The Extent of Radicalization in the American Muslim Community and that Community’s Response,” chaired by Congressman Peter King (R-NY). This hearing served only to fan flames of fear and division. This spectacle crossed the line and chipped away at the religious freedoms and civil liberties we hold so dearly. Radicalization may be the appropriate subject of a congressional hearing but not when it is limited to one religion. When that is done, it sends the wrong message to the public and casts a religion with unfounded suspicions. I agree with Attorney General Holder’s remarks to the American-Arab Anti-Discrimination Committee, where he stated that “in this nation, security and liberty are - at their best - partners, not enemies, in ensuring safety and opportunity for all . . . I’ve spoken to Arab-Americans who feel that they have not been afforded the full rights—or, just as important, the full responsibilities—of their citizenship. They tell me that, too often, it feels like ‘us versus them.’ That is intolerable. . . . In this Nation, the document that sets forth the supreme law of the land—the Constitution—is meant to empower, not exclude. . . . Racial profiling is wrong. It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing—whatever city, whatever state.”
Conclusion: “Congress Should Prohibit Racial Profiling by Law Enforcement Agencies” by the Honorable Benjamin L. Cardin
Using racial profiling makes it less likely that certain affected communities will voluntarily cooperate with law enforcement and community policing efforts. Minorities living and working in these communities may also feel discouraged from travelling freely, and it corrodes the public’s trust in government. The bill I intend to introduce, the End Racial Profiling Act, would build on the Department of Justice’s current “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies” issued in 2003. This official DOJ guidance certainly was a step forward, but it does not have adequate provisions for data collection and enforcement for state and local agencies. The DOJ guidance also does not have the force of law. ERPA would prohibit the use of racial profiling by federal, state, or local law enforcement agencies. The bill clearly defines racial profiling to include race, ethnicity, national origin, or religion as protected classes. It requires training of law enforcement officers to ensure that they understand the law and its prohibitions. It creates procedures for receiving, investigating, and resolving complaints about racial profiling. It would apply equally to federal, state, and local law enforcement, which creates consistent standards at all levels of government. 52
Interior, U.S. Capitol, Washington, D.C.
The vast majority of our law enforcement officials who put their lives on the line every day handle their jobs with professionalism, diligence, and fidelity to the rule of law. However, Congress and the Justice Department can still take further steps to prohibit racial profiling and root out its use. I look forward to working with the Rights Working Group and other groups on this important effort, as they play an integral role in educating policy makers and the public on this critical issue.
About the images Pg. 52: “The marble statue of Abraham Lincoln is by Vinnie Ream, for whom Lincoln sat. She was the first woman artist to receive a government commission.” –Office of the Architect of the Capitol. Photograph of statue of Lincoln inside the U.S. Capitol, March 30, 2010. Photographer: ThatMakesThree on Flickr.
Recommendations Rights Working Group
Recommendations to President Obama
President Obama should urge Congress to introduce and pass the End Racial Profiling Act, which prohibits profiling based on race, religion, ethnicity and national origin at the federal, state and local level.
President Obama should issue an executive order prohibiting racial profiling by federal officers and banning law enforcement practices that disproportionately target people for investigation and enforcement based on race, ethnicity, religion or national origin. The executive order should also require the collection of data by federal enforcement agencies about law enforcement actions broken down by the apparent or perceived race, ethnicity, national origin and religion of individuals targeted by enforcement agents. This data should include charges lodged against those targeted and the ultimate disposition of the cases.
President Obama should state unequivocally that the federal government should retain its jurisdiction and authority to enforce immigration laws and end Immigration and Customs Enforcement (ICE) programs that involve state and local law enforcement in civil immigration enforcement activities.
Recommendations to the Department of Justice (DOJ) •
DOJ should revise the 2003 Guidance on the Use of Race by Federal Law Enforcement Agencies. The revised guidance should include the following changes: eliminate the loopholes that allow profiling in the context of national security and border security; include religion and national origin as protected classes; include a prohibition against racial profiling for law enforcement surveillance activities; apply the guidance to state and local law enforcement agencies that cooperate with or receive funding from the federal government; and make the guidance enforceable.
The 2008 Attorney General’s Guidelines for Domestic FBI Operations and the 2011 FBI’s Domestic Investigative Operational Guidelines should be revised to ensure that they fully comport with constitutional and international human rights protections.
The 2002 DOJ Office of Legal Counsel (OLC) “inherent authority” memo that reversed historical trends to keep state and local law enforcement out of federal civil immigration work should be rescinded and OLC should issue a new memo clarifying that state and local law enforcement agents may not enforce federal immigration absent formal authority granted to them by the federal government.
DOJ should establish comprehensive, robust, national standards for mandatory training of law enforcement officers on the ban against racial profiling and establish mechanisms to ensure compliance by federal law enforcement agencies and any state or local law enforcement agency receiving federal funds.
DOJ should challenge any state’s SB 1070 copycat legislation that encourages racial profiling, including legislation in Georgia, South Carolina, Utah, and any state that passes similar legislation in the future, by filing a lawsuit as they did in Arizona and Alabama.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • 2011
Recommendations to the Department of Homeland Security (DHS) •
DHS should terminate all existing 287g agreements.
DHS should stop the implementation of the Secure Communities Initiative and the Criminal Alien Program until and unless meaningful and effective oversight mechanisms can be implemented to ensure that these programs do not allow for racial profiling, or other civil and human rights violations, by state and local police.
DHS should terminate Secure Communities in jurisdictions that have chosen to opt out of the program. DHS should immediately suspend Secure Communities in jurisdictions with a documented record of racial profiling or where DOJ is actively investigating a pattern or practice of discriminatory policing.
DHS should mandate data collection by state and local law enforcement related to possible racial profiling as a condition of participating in federal immigration enforcement programs, including the 287g, Criminal Alien or Secure Communities programs.
DHS should eliminate the regulatory framework for the National Security Entry-Exit Registration System (NSEERS). Individuals who did not comply with the program should not lose eligibility for a federal benefit or be denied any specific relief. DHS should also make sure the federal government provides relief to individuals who were deported for lack of compliance with NSEERS but who otherwise had an avenue for relief. DHS should ensure that the data collected under this program is permanently removed from DHS databases.
Recommendations to Congress •
Congress should introduce and pass the End Racial Profiling Act, banning through federal law all profiling based on race, religion, ethnicity and national origin at the federal, state and local levels and mandating the collection of data on racial profiling.
Congress should provide oversight to ensure that the various agencies of the executive branch are undertaking the reforms identified in the recommendations above. If agencies are not adopting these reforms, Congress should adopt legislation mandating relevant and meaningful changes in policy.
Congress should repeal section 287g of the Immigration and Nationality Act.
Congress should eliminate funding for the Secure Communities Initiative, the Criminal Alien Program and other programs that utilize state and local law enforcement agencies to conduct immigration enforcement, until and unless meaningful and effective oversight mechanisms can be implemented to ensure that these programs do not allow for racial profiling or other civil and human rights violations.
Congress should ensure that the Civil Rights Division of the Department of Justice and the Department of Homeland Security’s Office for Civil Rights and Civil Liberties are funded at levels that allow them to effectively promote and protect civil rights and civil liberties.
Recommendations by Rights Working Group
Recommendations to State and Local Governments •
State and local governments should adopt legislation that prohibits profiling based on race, religion, ethnicity and national origin. Such legislation should also mandate that local police departments collect, monitor and make public all data gathered on racial profiling.
State and local governments should establish independent review boards to monitor, investigate and respond to complaints of racial profiling by law enforcement and require them to comply with the recommendations of the
Recommendations for Law Enforcement Agencies on Racial Profiling •
Partner with researchers in order to uncover and identify biases, both conscious and unconscious, that exist within the organization and between individuals. The agency should work toward creating effective training to reduce these biases.
Think about partnering with multiple agencies—our problems are shared and we will not advance past them if we are too nervous, or embarrassed, to pool our resources to address this issue.
Use multiple indicators. One form of measurement, one method of data collection, will not give us the complete picture or direct us toward issues that could be addressed through training and/or discipline.
Engage in true community policing and ensure that the philosophy becomes a part of the organizational culture and not just a programmatic
independent review boards. •
State and local governments should
providing analysis of racial profiling data and measures
practice by agents. •
State and local governments should refuse to participate in federal programs expanding responsibility for civil immigration enforcement to state and local law enforcement, including the 287g Program, the Secure Communities Initiative and the Criminal Alien Program.
Dr. Tracie L. Keesee Consortium for Police Leadership in Equity www.policingequity.org Division Chief Research, Training and Technology Denver Police Department
About the images Pg. 53: U.S. Capitol, southwest corner, by Matt H. Wade, courtesy of Wikipedia: <http://en.wikipedia.org/wiki/File:US_ Capitol_from_NW.JPG>.
About the Authors
The honorable Benjamin L. Cardin Ben Cardin has been a national leader on health care, retirement security and fiscal issues since coming to Congress in 1987. In 2006, he was elected to the U.S. Senate, where he serves on the Finance, Budget, Small Business and Entrepreneurship, Foreign Relations, and Environment and Public Works Committees. He has often been a voice for our most vulnerable citizens, and is dedicated to ensuring protections against any form of discrimination. He is a lifetime member of the NAACP, and in the 110th and 111th Congress he received a grade of â€œAâ€? for his voting record from the civil rights organization. In the Senate, he formerly served on the Judiciary Committee and focused on ending deceptive voting practices in elections. These practices are often aimed at minority communities and are designed to prevent eligible voters from voting. Senator Cardin has introduced legislation that would criminalize voter intimidation and would impose criminal penalties on deceptive election practices. While serving in the U.S. House of Representatives from 1987-2006, he introduced legislation to help those leaving public assistance get the job training, education and childcare they need to work their way out of poverty. In 1999, his bill to increase education and support services for foster care children between ages eighteen and twenty-one was signed into law. He also authored bills to expand child support, hold fathers accountable, improve the welfare-to-work program and increase the childcare tax credit.
the honorable John Conyers, Jr. Representative John Conyers, Jr., a Detroit Democrat, was re-elected to represent the 14th Congressional District in November of 2010 to his 23nd term in the U.S. House of Representatives. The district covers all of Highland Park and Hamtramck, as well as large portions of Detroit, Dearborn and the Downriver communities of Melvindale, Allen Park, Southgate, Riverview, Trenton, Gibraltar and Grosse Ile. Born in 1929, Rep. Conyers was raised in Detroit and educated in the cityâ€™s public school system. After serving in the National Guard and the United States Army Corps of Engineers in the Korean War, he returned to Michigan where he earned both his Bachelor of Arts (1957) and Juris Doctor (1958) degrees at Wayne State University. Having entered the House of Representatives in 1965, Mr. Conyers is the second most senior member in the House of Representatives. He served as chairman of the House Committee on Government Operations (now renamed Committee on Oversight and Government Reform) from 1989 until 1994. From 2006 to 2010, Congressman Conyers was elected by his congressional colleagues to lead, as chairman, the pivotal House Committee on the Judiciary. In addition to its oversight of the
About the Authors
Department of Justice (including the FBI) and the Federal Courts, the Judiciary Committee has jurisdiction over copyright, civil rights, consumer protection, and constitutional issues. Congressman Conyers was also a member of the Judiciary Committee in its 1974 hearings on the Watergate impeachment scandal and played a prominent role in the recent impeachment process, giving him the distinction as the only Judiciary Committee Member to have served on both panels. He is the recipient of many awards for leadership, including the Southern Christian Leadership Conference Award, which was presented to him by Dr. Martin Luther King, Jr. He has also been awarded a number of honorary degrees from colleges and universities throughout the nation.
Shahid Buttar Shahid Buttar leads the Bill of Rights Defense Committee, a national non-profit grassroots organization defending rights and liberties challenged by overbroad national security policies, as executive director. In addition to managing the organization’s strategic direction, he also directs its day-to-day policy engagement, grassroots organizing, communications and fundraising activities. Buttar received his J.D. from Stanford Law School in 2003, where he served as executive editor of the Stanford Environmental Law Journal and a teaching assistant for Constitutional Law. His comments and analysis have been featured by outlets including The Washington Post, The New York Times, USA Today, CNN, al-Jazeera, FOX News, Agence-France Presse, Huffington Post, Truthout, Democracy Now! (which named one of his speeches among the “Best of 2004”), and many others, including dozens of radio stations around the country. In addition to his work leading BORDC, Shahid serves on the advisory bodies of the Rights Working Group , the National Coalition to Protect Civil Freedoms, the National Campaign to Restore Civil Rights, and South Asian Americans Leading Together. 58
Pramila Jayapal Pramila Jayapal is the founder and Executive Director of OneAmerica. An immigrant from India, she has spent over twenty years working for social justice, both internationally and domestically. Under her leadership, OneAmerica has achieved significant policy change in Washington State, leading efforts to win numerous victories for immigrants. Also under her leadership, OneAmerica has engaged in the first large-scale immigrant voter-registration program in the state, registering tens of thousands of new citizens to vote and organizing within immigrant communities to engage and involve immigrants in democracy. Nationally, Pramila has helped to lead the fight for due process and comprehensive immigration reform, serving as Vice Chair of the Rights Working Group national coalition as well as on the Executive Committee of the Fair Immigration Reform Movement. In 2008, she was appointed by Governor Gregoire as Vice Chair of the New Americans Policy Council. Pramila is a frequent featured speaker nationwide and a regular guest on local and national television and radio shows, addressing diverse audiences on issues of immigrant integration as well as immigrant, civil and human rights. She has been recognized both nationally and regionally with several awards, including the national Unitarian Universalists Holmes Weatherly Award and the Civic Justice Equal Partnership from the Access to Justice Foundation of the Washington Bar Association. She has been named by the Puget Sound Business Journal as one of 20 Women of Influence, whose leadership and work “moves the needle on critical issues in the region” (2007); by Seattle Magazine as a Power 25 Leader (2006); and by The Seattle Times Editorial Board as one of twelve Puget Sound Regional Leaders (2005). Prior to founding OneAmerica, Pramila served as Director of the Fund for Technology Transfer for The Program for Appropriate Technology (PATH), operating across Asia, Africa and Latin America; as a Fellow in India for the Institute of Current World
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • 2011
Affairs; and as a nonprofit consultant. She has a Masters in Business Administration from Northwestern University’s Kellogg School of Management and a Bachelor of Arts in English and Economics from Georgetown University. She is the author of numerous essays and articles and a memoir, Pilgrimage to India: A Woman Revisits Her Homeland. Pramila was born in India and came to the United States in 1982. She became a U.S. citizen in 2000, and lives with her husband and one son in Seattle.
Dr. Tracie Keesee Tracie Keesee is the Executive Director of the Consortium for Police Leadership in Equity (CPLE). The CPLE is a research consortium that promotes police transparency and accountability by facilitating innovative research collaborations between law enforcement agencies and empirical social scientists. Through these facilitated collaborations, the Consortium seeks to improve issues of equity–particularly racial and gender equity–in policing both within law enforcement agencies and between agencies and the communities they serve. The Consortium aims to effect cultural transformations within both law enforcement and the academy by creating opportunities that simultaneously preserve the dignity of law enforcement and advance the application of social science to the real world. Tracie, grounded in a strong understanding of the benefits of community partnerships, has implemented the following Programs:, Montebello’s first community store front, located in the Villages a Gateway; the literacy program, “The Reading Police;” Law-Related Education (officer and teacher teams) in Martin Luther King Middle School, Omar Blair, and Montbello High Schools; Neighborhood Police Officers; Yes I Can Program (Gang Awareness program for youth transitioning from middle to high school); and the Latch Key Kids Project. Her most recent publications include: “Fairness and Neutrality: Addressing the Issue of Race in Policing,” with Michael J. Nila, “The Police Chief” March 2011; “Deputizing Discrimination? Causes & Effects of Cross-Deputization Policy in Salt Lake City, Utah,” with P.A. Goff, et al., The Consortium for Police Leadership in Equity 2010; and “Safe Because We Are Fair: How Cross-Deputization Undermines Police Officer and Community Safety,” with P.A. Goff, et al., The Consortium for Police Leadership in Equity, 2010. Tracie Keesee is a native of Denver Colorado and a 22-year veteran with the Denver Police Department and the Division Chief of Research, Training and Technology. Her previous assignments include, Patrol Districts 3 and 5 as Commander, Detective in Crimes against Persons, the Public Information Officer for the Chief, Internal Affairs, the Police Training Academy, the Gang Bureau and Commander of the Information Technology Development Unit. Tracie holds a Bachelors of Arts Degree in Political Science from Metropolitan State College, Academic certifications in Public Policy and Public Administration from the University of Colorado at Denver, a Master’s Degree in Criminal Justice from the University of Colorado at Denver and a Ph.D. from the University of Denver in Intercultural Communications. She is a graduate of the 2003 class of the FBI National Academy, the 1994 class of the African-American Leadership Institute. Additional publications: Joshua Correll and Tracie Keesee, “Bias in the Decision to Shoot?,” The Police Chief 56 (May 2009); Keesee, T. “Yolonda Saldivar.” In C. L. Bankston III (Vol 3, Jan 07); Great Lives from History: Notorious Lives. Pasadena: Salem Press; Correll, J., Park., B., Judd, M., Keesee, T., Sadler., M. & Wittenbrink, B. “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and Social Psychology, June, 2007; Keesee, T. “Early Data on the ‘Communicative Typology of Disciplinary Reform,’” paper presentation at the meeting of Symposium on Intercultural Communication, 2006, Texas A&M University, College Station, Texas; Keesee, T. “Neighborhood Watch,” In P. Gerstenfeld (Vol 3, Sept, 05), Criminal Justice, 2005, Pasadena: Salem Press.
About the Authors
Monami Maulik Monami has served on various social justice movement organizations and boards including: Coalition to Free Mumia Abu Jamal, Same Boat Coalition (NYC), United for Peace and Justice-National Board, Grassroots Global Justice, Racial Justice 911, Third World Within, Movement Rising, and the NYC Organizing Support Center. In 2000, Monami founded DRUM- Desis Rising Up & Moving as one of the first low-income South Asian community-based organizations for social justice in the U.S. Since then, she has continued to serve as the Executive Director and leads campaign strategy in immigrant and racial justice, national security, education reform, and global justice programs. She now serves as a board member of National Network for Immigrant and Refugee Rights, an Advisory Board member of the North Star Fund, and a national Steering Committee member of the United National Anti-War Committee. In 2001, Monami received the Union Square Award as co-founder of DRUM and the Open Society Institute Community Fellowship of the George Soros Foundation. In 2002, Monami received the Jane Bagely Lehman Award from the Tides Foundation, “Honoring Post 9/11 Organizing for Immigrant Rights and Civil Liberties.” She is a 2010 Rockwood Institute National Security Fellow, and is published in Howard Zinn’s book, Voices of a People’s History.
Laura W. Murphy
On February 8, 2010, Laura W. Murphy returned to the ACLU Washington Legislative Office (WLO) to serve as its Director (a position she previously held from 1993 to 2005). Since her return, Murphy has immersed herself in national security, criminal justice, human rights, privacy, civil rights and First Amendment issues. Murphy played a leadership role in the passage of the Fair Sentencing Act of 2010 signed into law by President Obama on August 3, 2010, a law that reduced the sentencing disparity between crack and powder cocaine and that begins to address some of the racial disparities in the criminal justice system. She has met with leaders in the Unites States Congress and the Obama Administration to advance the ACLU’s public policy priorities on military tribunals, the Paycheck Fairness Act, the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), reproductive rights and civil rights, among other issues. Prior to her return, she founded and directed her own firm, Laura Murphy & Associates, L.L.C., where she utilized her 30 years of policy-making and political expertise to guide and advise corporate and non-profit clients at the national, state and local levels. Murphy is well known for her legislative advocacy on human rights and civil liberties. Both major newspapers on Capitol Hill, Roll Call and The Hill, selected Murphy as one of the fifty most influential lobbyists and one of seventeen top nonprofit lobbyists in 1997 and 2003, respectively. In 1997, and again in 2003, the Congressional Black Caucus honored her for her significant contributions to legislation that advances civil rights and civil liberties. She has been given awards for her work with Congress and the White House by the ACLU affiliates in Massachusetts, Mississippi and Maryland. In previous professional positions, Murphy served as chief of staff to a California Assembly Speaker; as a cabinet member for the Mayor of the District of Columbia; as an account executive for a public affairs firm; and as a legislative assistant for two members of Congress. Murphy has testified more than a dozen times before Congress and is an experienced national spokesperson. She has been a frequent guest on PBS Newshour with Jim Lehrer, NBC Nightly News, The Today Show, ABC World News, CNN—including Lou Dobbs and Larry King Live—Fox News, and National Public Radio.
Reclaiming Our Rights: Reflections on Racial Profiling in a Post-9/11 America • Rights Working Group • 2011
Karen K. Narasaki Heading one of the nation’s premiere civil rights advocacy organizations, Karen K. Narasaki is president and executive director of the Asian American Justice Center, a member of the Asian American Center for Advancing Justice. AAJC, which works to advance the human and civil rights of Asian Americans, and build and promote a fair and equitable society for all, pursues its mission through public education, policy advocacy, litigation and community building. AAJC’s programs include affirmative action; broadband and media diversity; census, health care, immigration and immigrant integration; language access; and voting rights. Ms. Narasaki, a nationally respected authority on immigration and civil rights and renowned advocate for the Asian-American community, holds a number of leadership positions in the civil rights and immigrant rights arenas, including vice chairwoman of the Leadership Conference on Civil Rights, the nation’s oldest and broadest civil rights coalition. Ms. Narasaki also leads the Rights Working Group, a coalition of human, civil and immigrant rights groups working to address the erosion of civil liberties and basic immigrant rights since the Sept. 11, 2001 terrorist attacks. Additionally, she sits on the boards of Common Cause and the Lawyers Committee for Civil Rights and serves on the advisory councils for Nielsen Media and Comcast/NBCUniversal, all of which led Washingtonian Magazine to name her one of the “100 most powerful women in Washington” in 2001, 2006 and 2009. Ms. Narasaki is a graduate, magna cum laude, of Yale University and Order of the Coif, of the UCLA School of Law.
Christian Ramirez Christian Ramirez was born in the border city of Tijuana, Mexico. At a young age, along with his family, he made the trek to the other side and lived in San Ysidro, California where he attended middle and high school. Since 1994, he has worked to promote and defend human rights for border communities. He has served in leadership positions in several grassroots organizations in the region. As a promoter of human rights, he has been invited to speak on issues relating to the border and human rights in local, regional, national and international conferences. He is now the national coordinator for Project Voice, a nationwide immigrant-rights initiative of the American Friends Service Committee. In addition, Christian is a columnist for Diario San Diego and Agencia Fronteriza de Noticias. He has been a resident of historic Barrio Logan in San Diego since 1999.
Nadia Tonova Nadia Tonova serves as the Director of National Outreach for the National Network for Arab American Communities (NNAAC), a consortium of twenty-two independent organizations primarily serving the Arab American community in ten states and the District of Columbia. The Network’s primary mission is the development of Arab American community-based nonprofit organizations that understand and meet the needs and represent the concerns of Arab Americans at the local level and collectively address these issues on the national level. Ms. Tonova oversees all aspects of programming within NNAAC, including advocacy and civic engagement, organizational development, and the Arab American Resources Corps, a national AmeriCorps program. She also oversees NNAAC governance and member relations.
About the Authors
Prior to serving in this position, Ms. Tonova led the advocacy and civic engagement with NNAAC for four years. She led a variety of policy initiatives, campaigns, and activities pertaining to immigrant rights, civil liberties and human rights, and civic engagement. She also offers technical assistance to organizations across the country in these areas. Ms. Tonova currently represents ACCESS and NNAAC on the Rights Working Group Steering Committee, the New Detroit Immigration Task Group, and the Alliance for Immigrants Rights and Reform-Michigan. Before coming to ACCESS, she worked with the Democratic Communications Office for the Michigan House of Representatives. She received her Bachelorâ€™s degree in Political Theory from Michigan State University and her Masterâ€™s degree in Near Eastern Studies from Wayne State University.
Retired Police CHIEF Arturo Venegas On April 28, 1958, at the age of nine, Venegas became a Mexican immigrant to the U.S. Among other work, he picked crops, shined shoes, sold newspapers and was even a butcher in Santa Maria, California. He attended public schools and in December 1966, dropped out during his senior year of high school. At 17, with his fatherâ€™s permission, Venegas became a U.S. Army volunteer, then a paratrooper and member of the 101st Airborne Division in the U.S. and Vietnam. In December 1968, before he turned 20, he returned to California from Vietnam and was honorably discharged at the Oakland, California Army Terminal. As a husband, and as a father to his first child, Angela, he decided that this country provided the best opportunity in the world and on January 1969, he became an American citizen. 62
Six months later, on June 9, 1969, Venegas became a Fresno Police Department Cadet, and served Fresno until January 1993, when, as one of its Deputy Chiefs, he left to become Police Chief in Sacramento, California. Chief Venegas served there just over ten years, retiring in February 2003 as an active duty peace officer. Today, he is a consultant. He also engages law enforcement leaders in a sensible dialogue about immigration laws so as to educate elected leaders and the public on the need for reform at the federal level so that these laws can be as just and fair as possible.
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Prominent civil rights activists reflect on the state of civil rights and liberties in the decade that has followed the 9/11 attacks.