Not long after the 9/11 attacks. a group of senior U.S. intelligence specialists combating terrorism circulated a memo to American law enforcement agents worldwide cautioning against relying on ethnic profiling as a counterterrorism tool. As reported in the Oct. 12 issue of The Boston Globe, "the four-page memo warns that looking for a type of person who fits a profile of a terrorist is not as useful as looking for behavior that might precede another attack." One of the authors of the memo, all of whom spoke on condition of anonymity. said,

"There are at least a million people of Middle Eastern descent in the U.S. Do we consider them all potential terrorists?"

Another explained,

"... Fundamentally, believing that you can achieve safety by looking at characteristics instead of behaviors is silly. If your goal is preventing attacks...you want your eyes and ears looking for pre-attack behaviors, not characteristics." 2

Another expert, Vincent Cannistano, the former head of counterterrorism at the CIA, told Newsweek, "It's a false lead. It may be intuitive to stereotype people, but

Bill Dedham. "Fighting Terror/Words of Caution on Airport Security. Memo warns against use of profihng as a defense," The Boston Globe. Oct. 12, 2001

profiling is too crude to be effective. I can't think of any examples where profiling has caught a terrorist." }

But in spite of the overwhelming evidence that racial profiling is counterproductive, and in spite of the counsel of intelligence experts that the better method for identifying potential terrorists is through observation of "pre-attack" behaviors, Attorney General John Ashcroft immediately launched a counterterrorism strategy that centers on profiling based on national origin. Moreover, even as it became obvious that the strategy was not producing results, the attorney general continued to conceive and implement increasingly grandiose schemes based on ethnic profiling. These are the "activities and other efforts" President Bush has exempted from his guidelines. The purpose of this report is to demonstrate that the exemption is both unnecessary and unwise.

ETHNIC PROFILING HAS BECOME OFFICIAL GOVERNMENT POLICY

The Secret Roundup

In the hours and days immediately following 9/11, the Department of Justice launched what amounted to an extensive program of preventive detention. It was the first large-scale detention of a group of people based on country of origin or ancestry since the internment of JapaneseAmericans during World War II. Within hours of the terrorist attacks, federal agents swept through Arab, Muslim and South Asian neighborhoods throughout the country, snatching men from sidewalks, as well as their homes, workplaces and mosques.

veil of secrecy, leaving wives, children, classmates and employers wondering where these people had been taken, and who would be next. The Federal Bureau of Prisons imposed communications blackout that prevented the detainees from contacting family, friends, the press and even attorneys. And in another act of almost unprecedented secrecy, the attorney general ordered that the deportation hearings of immigrants deemed of "special interest" to the government be closed to the public and the press, effectively concealing all immigra tion hearings of Arabs and Muslims. In a scenario eerily reminiscent of the "disappearances" of labor and student activists in Argentina during the 1980s, Arab, Muslim and South Asian men were plucked off the streets of American cities. America now had its own "disappeared."

Once it became clear that scores of individuals in New York City and elsewhere were being arrested and detained, the ACLU and other immigrant rights organizations immediately took steps to learn the identities and locations of the detainees, and the charges upon which they were being held. We wanted this information, which is routinely accessible in immigration cases, in order to determine whether or not

the roundup was within constitutional bounds. But we were met with a wall of silence.

On Oct. 17, 2001 the ACLU wrote to the attorney general asking him for information about the detainees. He did not respond. We posed the same questions to FBI Director Robert Mueller at two meetings on Sept. 25 and Oct. 25, but were once again rebussed. On Oct. 29, 2003 the ACLU and several other organizations filed a Freedom of Information Act (FOIA) request for the names and locations of the detainees. But Attorney General Ashcroft, in a radical departure from past practice and basic democratic principles of

open government, issued a directive discouraging federal agencies from releasing the information requested.

On Dec. 5, 2001 the ACLU and several other organizations filed a lawsuit in federal court under the FOIA demanding that the government disclose the names and whereabouts of the detainees. Judge Gladys Kessler ordered the government to release the information on the grounds that "secret arrests are 'a concept odious to a democratic society,' and profoundly antithetical to the bedrock values that characterize a free and open one such as ours." But soon after her ruling, the government appealed and Judge Kessler issued a stay of her order. *

As the days turned into weeks and then months, information began to trickle out as some of the detainees were released or deported, and immigration lawyers fought for, and sometimes won, access to the detention centers. It soon became clear that most, if not all, of the several thousand detainees picked up by federal agents in the immediate aftermath of 9/11 were guilty of little more than being Arab, Muslim or South Asian, and in the wrong place at the wrong time.' The "tips" leading to their arrests were often tainted with ethnic bias. The vast majority of the men were detained on pretexts: They may have been guilty of minor immigration law offenses for which they would not have been detained, much less deported, under normal circumstances. The men were held for months on end under extraordinarily restrictive and, in some cases, abusive conditions. Of the thousands of men who were detained and questioned, not one has been publicly charged with terrorism.

An ACLU Report

FBI Questioning of Arab, Muslim and South Asian Men

On Nov. 9, 2001 Attorney General Ashcroft directed the FBI and other law enforcement officials to search out and interview at least 5,000 men between the ages of 18 and 33 who had legally entered the U.S. on non-immigrant visas in the past two years, and who came from specific countries linked by the govern ment to terrorism. The list of individuals was compiled solely on the basis of national origin. and even the Justice Department acknowledged that it had no basis for believing that any of these men had any knowledge relevant to a terrorism investigation. Unannounced, the FBI descended upon thousands of Arabs, Muslims and South Asians at their workplaces, homes, universities and mosques. Although called "voluntary," the interviews were inherently coercive and few felt free to refuse. The FBI agents, sometimes accompanied by immigration officials, asked questions about sensitive activities protected by the First Amendment such as religious practice, mosque attendance and feelings towards the United States.

In March 2002, the Department of Justice announced another round of interviews of an additional 3,000 Arab, Muslim and South Asian men legally in the U.S. as visitors or students. The federal government requested that local police departments assist in this dragnet. While many police departments enthusiastically participated in the biased targeting of innocent individuals, some police officials publicly declined to take on the task of immigration cnforcement. In

of its requirements have been adequately publicized or translated into all appropriate languages. Many people are not even aware that continuing regulations require registration upon change of address, employment or academic institution and when leaving and entering the country.

In December, 2002 up to 700 men and boys from Iran, Iraq, Libya, Sudan and Syria were arrested in Southern California by federal immigration authorities after they voluntarily complied with the NSEERS "Call-In" program. In many cases, the men were arrested for minor visa problems caused by the INS a federal agency whose incompetence is legendary. Some were awaiting the approval of their green card applications. Others were students who had allegedly not attended enough classes at the universities where they were enrolled. The summary arrests of so many people spread panic in Arab, Muslim and South Asian communities across the country and discouraged men from other countries from reporting on successive registration dates." In December 2003, the Department of Homeland Security suspended two parts of the registration requirement, but most of the program's discriminatory provisions remain in effect, and there is no relief for the thousands who fell afoul of the program's confusing requirements." In one year, the Special Registration program registered 83,310 foreign nationals, placing 13,740 into deportation proceedings. Not a single one of these individuals was ever publicly charged with terrorism.

"In addition to Iran, Iraq, Libya, Sudan and Syria, Special Registration countries include Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan and Kuwait.

"The Department of Homeland Security subsequently implemented a new immigrant tracking program, US VISIT. It is an addition to, not a substitute for, Special Registration.

An ACLU Report

TWO YOUNG VICTIMS OF NSEERS

Ahmad and Hassan Amin think of themselves as regular American teenagers. Ahmad, 17, is a star on his Cupertino high school's football team. His brother, Hassan, 19, is studying accounting at De Anza College in Cupertino. They live with their mother, Tahira Manzur, who is a full-time teacher at a children's development center. "We sold our house in Pakistan to come to this country so that my sons could have a better education and a better life," she explains. "Our life is here."

The boys and their mother believed they were in the U.S. legally and in the process of becoming permanent residents. But unbeknownst to them, their visas had expired because of bad advice from an immigration lawyer. When they reported for Special Registration, Hassan was detained, arrested and sent to Yuba County Jail, where he was held overnight in a criminal cell until he was released on $4,000 bail. Ahmad is now required to miss school every third Wednesday to register with the INS offices. Both brothers will likely soon face deportation."

"ACLU of Northern California,

www.aclune.org/aclunews/news0309/backlash.html