Arab "Registry" Upheld; Policy About Immigration, Not Counter-Terrorism

More than 140,000 Arabs and Muslims in the United States were forced to register with the government after the September 11 attacks in a heavy-handed effort to keep terrorists out of the country. The registration scheme did not uncover any terrorists, but it did find some 13,000 immigration violators, who were then deported.

Last week a New York appeals court upheld the program. The court ruled unequivocally that the U.S. Justice Department had the authority to enforce the so-called National Entry-Exit Registration Scheme (NSEERS) that was set up in 2002, and to deport anyone who ran afoul of its rules. Constitutionally, the court was right; in every other respect -- economically, diplomatically, and morally, it was wrong.

Of all the programs set up after 9/11 with the goal of catching terrorists on U.S. soil, none was more ill-conceived than NSEERS. It set out special rules for most male visitors from two dozen Arab and Muslim countries, requiring lengthy security screenings before they came to the United States and forcing them to register with the government again if they spent more than a month here. Citizens of those countries living here already without green cards were also required to register, and if they were found to be out of immigration status, they were deported. While the special registration requirements were abolished at the end of 2003, much of the program remains in place today.

Imad Daou, a young Christian from Lebanon, is just one of thousands -- none of whom has ever been shown to have any connection to terrorism -- who got caught out by the scheme. I met Daou this spring in Nuevo Laredo, Mexico, a violent border city that has been crippled by the drug wars. It was the last place Daou ever expected to end up when he left his home in Beirut in July of 2003 to come to Texas A & M International University (TAMIU) to do a master's degree in computer science.

TAMIU is in Laredo, only a few miles from the border with Mexico. During his first weekend at the school, he was standing at a bus stop when he met Maria Guadelupe Garcia, a Mexican-American who was studying for her master's in international business at TAMIU and teaching at a Laredo high school. He seemed, as she later put it, "lost and in great need of help"; the bus he was waiting for did not run on the weekends. She later invited him to attend Catholic mass with her and other students from the university dorms. They fell in love, and got engaged, with plans to marry when the academic term ended in the spring of 2004.

In November, 2003, she decided to make it official with her family. First, she introduced him to her parents in Del Rio, Texas and then, with the easy informality that had long connected both sides of the border, they crossed the Rio Grande into Acuna, Mexico to meet her sister and to invite her to a Thanksgiving dinner in Texas the next day. The two had already been to Mexico several times together and had faced no problems coming back. But when they returned to the border after a two-hour visit, the U.S. inspector looked at Daou's Lebanese passport, checked in his computer system and determined that Daou had failed to register with the U.S. government after 30 days as was required under NSEERS.

Rather than simply issuing him a stern warning and forcing him to register, the U.S. border inspectors slapped him in handcuffs and hauled him off to a prison in Laredo. He would spend the next two months in jail, and in January, 2004 he and Maria were married in the prison just before Daou was deported back to Lebanon. As a deportee, he was automatically banned from returning to the United States for at least five years under harsh laws passed in 1996, following the first, unsuccessful terrorist attack on the World Trade Center towers. Desperate to get him back, Maria moved across the border to Nuevo Laredo, and after a year of e-mails and long distance telephone calls to Lebanon, she was able to get permission from the Mexican government to bring him to live with her in Mexico.

They are both scared; the husband of Maria's best friend was shot and killed in front of his house recently. I asked Imad which city was safer, Beirut or Nuevo Laredo. "Beirut," he told me without hesitation. Maria has continued to teach high school in Laredo, crossing the border early each morning and returning at the end of the day. Next month, Daou's five-year ban from the country will end, and the two are hoping they and their two-year-old daughter will be allowed by the U.S. government to move together back to Laredo. "They put the rules in place to catch bad people," he told me, "and the good people fall into the trap, because the bad people know how to get around them."

The NSEERS program was a failure on every front. For Muslim and Arab allies of the United States, it showed that the United States was incapable of distinguishing between friend and foe. State Department cables that were released to me under the Freedom of Information Act revealed the outrage that greeted the program across the Muslim world. In Indonesia, the world's largest Muslim nation, NSEERS "has created an enormously negative backlash [that] has undercut our efforts with key policymakers and elites that had done the heavy lifting for us on our most difficult issues," the U.S. ambassador wrote in a 2003 cable.

In Bangladesh, the ambassador there wrote, "many Bangladeshis were shocked and hurt by the country's inclusion in NSEERS" despites its unequivocal support for the U.S. war on terror.

Domestically, it showed the abysmal state of the FBI's relationship with Muslim communities in the United States; faced with the fear that more Islamic extremists might already be inside the United States, the best the Justice Department could come up with was a vast and indiscriminate profiling program.

One former Department of Homeland Security official I spoke with called the program "a blatantly racist scheme. The intention seemed at times almost to be to harass people who were somehow seen as being to blame for 9/11. It was in effect a huge indictment of the FBI, which had no sources or contacts in local Muslim communities, and therefore no alternatives to just rounding people up."

NSEERS was the clearest demonstration of the blurring of counter-terrorism and immigration enforcement after 9/11, a toxic mixture that has done little to discourage terrorists but has justified the massive escalation in raids, arrests and deportations of illegal immigrants we have seen across the country. While no terrorists were caught under NSEERS, some 13,000 people who came forward to register were put into deportation proceedings.

The scheme was the brainchild of Kris Kobach, a young, conservative law professor who came to the Justice Department in 2001. Since leaving the government and returning to the University of Missouri-Kansas City, Kobach has become the go-to lawyer for groups like the Federation for American Immigration Reform that have pushed for the current crackdown on unauthorized immigrants.

Working for FAIR, he led an unsuccessful lawsuit aimed at overturning a Kansas law that allows the children of illegal immigrants who graduate from Kansas high schools to pay in-state tuition at universities. He also defended the town of Hazelton, Pennsylvania, one of the first places in the country to try to expel illegal migrants by levying large fines against employers who hire them and landlords who rent to them. Kobach failed in a 2004 run for Congress, but in 2007 he was elected chairman of the Kansas Republican Party.

While the 9/11 Commission and other investigations have demonstrated that the attacks were primarily the result of an intelligence failure, to Kobach and the anti-immigrant groups, 9/11 was a failure of immigration enforcement. "September 11 awakened the country to the fact that weak immigration enforcement presents a huge vulnerability that terrorists can exploit," he said. His Eureka moment was the story of Ziad Jarrah, the hijacker who piloted United Flight 93 that crashed near Shanksville, Pennsylvania.

Jarrah had overstayed his visa and was in the United States illegally, one of five of the 19 hijackers who had fallen out of status at some point during their time in the country. On the night before the attacks, Jarrah had been pulled over driving at 90 miles an hour on a rural section of Interstate 95 near the Maryland border with Delaware. The trooper ran a check for outstanding warrants and, finding none, sent him on his way with a $270 fine. He was not alone -- several of the plot's other leaders had been pulled over for traffic violations at times when they were out of status. Kobach told me that these traffic stops "were missed opportunities of tragic and colossal dimensions."

The NSEERS program was intended to avoid such missed opportunities in the future. The theory was that, had these hijackers been forced to register with the government, they would have been identified as illegal and deported; had they refused, the failure to register would have been a criminal violation, which would have been entered into the database that is available to all state and local police forces around the country.

"If we had some way of keeping track of who had exceeded their period of stay and finding a way to get that information to local police, we might have been able to stop it, or at least impede the attack," he told me.

In practice, however, the program did nothing to help identify terrorists. In December 2003 the Department of Homeland Security shut down the registration requirements that had ensnared Imad Daou and others. "There were not the significant leads we had hoped for," said Asa Hutchinson, the DHS undersecretary who inherited the program from the Justice Department. "It did not prove to be necessary for security purposes."

Much of the program effectively remains in place. The massive expansion of local police enforcement of immigration laws is the primary legacy of the NSEERS scheme. Under the 1996 law, Washington has for more than a decade had the authority to deputize local police forces for immigration purposes. But it was only after 9/11, which unshackled the previous constraints on immigration enforcement, that those powers began to be used aggressively.

Without the belief that somewhere among the millions of unauthorized immigrants living in the United States lurked another wave of terrorists, Americans would never have tolerated the massive civil liberties violations that have come from handing immigration powers to local police. And the main targets, simply by virtue of their numbers, are Latino migrants to the United States, both legal and illegal.

For many Arab and Muslim men still living in the United States, the NSEERS program is a constant reminder that they are still not trusted. Faiz Bhora, a cardio-thoracic surgeon at the Columbia University hospital in New York, was stranded in Pakistan for nine months in 2002 and 2003 while the FBI decided whether it was safe to let him back into the country after his decade of medical training here.

Today, every time he leaves the country, he must do so through certain airports where he can "check out" with U.S. border officials. He went on holiday with his wife last year to Costa Rica, and when he returned he was pulled aside into secondary inspection while the officer emptied his wallet, writing down the names and numbers from every scrap of paper. "He knew I was a cardio-thoracic surgeon who had left for a week on vacation, but it was as though I was entering the country for the first time," he told me.

There is no question that the U.S. government can exercise such powers in whatever way it sees fit. As the New York court noted last week in dismissing the challenge to NSEERS, courts "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercise by the Government's political departments largely immune from judicial control."

But since 9/11, such powers have too often been exercised irresponsibly, changing the face of a country that had long been among the most welcoming in the world for immigrants. For many immigrants, the experience since 9/11 has indeed been like entering the United States for the first time.

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