SECRET EVIDENCE AND PROFILING : TWO DISTURBING PRACTICES

Washington Watch

February 24, 2003

Dr. James J. Zogby ©

President

Arab American Institute

In response to the September 11, 2001 terrorist attacks, the Bush Administration has increasingly relied on the use of both secret evidence and ethnic profiling. It was precisely these two practices that many Arab Americans believed President Bush would eliminate during his term in office.

It was in 2000 during his second debate with Vice President Al Gore, that the presidential candidate George Bush appeared to make a commitment to end the use of secret evidence and profiling. In response to a question about racial profiling against African Americans Bush said, “There is other forms of racial profiling that goes on in America. Arab-Americans are racially profiled in what’s called secret evidence. People are stopped, and we got to do something about that.”

Despite mistakenly linking the two practices and displaying confusion as to what they were, Bush’s words electrified many elements of the Arab American community. They were thrilled that he mentioned these concerns and addressed the community by name.

Even though the Bush campaign never formally committed themselves to a total elimination of secret evidence, they continued to suggest that they would. They also provided talking points to campaign supporters who were to address Arab American audiences leaving little doubt that, if elected, Bush would end the use of both practices.

In the past year and one half, however, the use of both secret evidence and profiling has become so widespread that not only Arab Americans, but also the broader civil liberties community, both liberal and conservative, have become deeply concerned.

On a number of occasions the Department of Justice (DOJ) has utilized secret evidence and simplistic and crude profiling in ways that have been hurtful to Arab Americans and South Asian Muslims.

Immediately following 9/11 came the round up of hundreds of recent Arab and Muslim immigrants—all of whom were innocent victims who got caught up in a law enforcement dragnet. Well over 1,200 were arrested; many were deported without judicial review. While some of those involved appear to have been in technical violation of their visa requirements, in many cases they did not know why they had been arrested and were not provided adequate opportunity to defend themselves. Because of the secrecy surrounding this entire process, the false impression was deliberately created by the DOJ that these individuals may have had something to do with terrorism. The entire situation was so shocking that one analyst remarked, “This Administration appears to have gone from using secret evidence to using no evidence at all.”

Next came the DOJ’s infamous questioning of 5,000 and then 3,000 Arab and South Asian Muslim immigrants. This was crude ethnic profiling at its worst. More recently, the DOJ has begun to implement its “Special Registration” program which once again, it appears, is largely directed against recent Arab and South Asian Muslim immigrants.

Finally there was the shocking round up and detention of targeted groups of recent immigrants who worked at or near the site of this year’s Super Bowl football game in San Diego, California.

What all these programs have in common is that they are clear instances of racial profiling and they have all been a waste of law enforcement resources. In fact, all of

these programs did not net terrorists. What they did do was to round up and deport hundreds of recent immigrants who, in many cases, had a minor visa infraction, and spread fear and suspicion in the wider community.

But profiling was not the only problem. The government’s reliance on secrecy was troubling as well. As I noted, many of the detained immigrants never knew exactly why they were being held. When the government became aware of the negative impact of the large numbers being held, they stopped giving out the numbers and refused to give names of those who were arrested and charges against them on the specious grounds that this would only give the terrorists a “road map” of the investigation. Since almost all of those arrested were guilty of nothing more than visa violations, the government’s argument represents a disturbing distortion.

At first secret evidence was used only in deportation cases against non-citizen, immigrants. Now, however, it is being used against U.S. citizens who have been charged as “enemy combatants”. As the father of one of these individuals remarked—“if the government has a case against my son, they should make it and see if he can defend himself. Without knowing the charges, however, we don’t know how to prepare a defense.”

More recently, and for the first time, secret evidence has been used in cases involving citizens charged with criminal non-terrorist related crimes. This very disturbing development only proves the point made by civil libertarians who have argued that once the civil liberties chain is broken in one area, it is impossible to guarantee that any rights will be protected.

Now comes the news that the Administration may seek new legislation that would give law enforcement sweeping new powers that would only further erode basic civil liberties. The draft of proposed legislation contains provisions that would: make it easier for the government to wiretap and carry out surveillance without going to court; allow the government to have access to a person’s private financial records and other sensitive information without any evidence of crime; allow secret arrests; and provide for summary deportations, even without evidence of a crime.

The good news is that there is growing opposition to this disturbing behavior. And not unlike the local anti-war initiatives that have passed in city councils across the United States, dozens of U.S. cities have passed civil rights initiatives as well. The American Civil Liberties Union (ACLU) and major African American, Hispanic and Asian American groups have all unified to fight these practices. Local police departments and some federal law enforcement officials have also expressed their opposition. Finally, Members of Congress, and even some of 2004’s presidential candidates are raising their objections to these practices that threaten constitutional rights.

The struggle to change this situation will be a long one—but it has begun to gather steam.

For comments or information, contact jzogby@aaiusa.org or http://www.aaiusa.org.