Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims

This article is part of a symposium on "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy." Although only time will tell, September 11, 2001 promises to be a watershed in the history of the United States. Not long after the tragedy, supporters and critics alike saw the federal government as "pushing the envelope" in restricting civil liberties in the name of national security. This article analyzes the nation's response to the horrific loss of life of September 11 and shows how the centralization of immigration power in the hands of the federal government, may exacerbate the civil rights impacts of the enforcement of the immigration laws. The federal government has acted more swiftly and uniformly than the states ever could, with severe consequences for the Arab and Muslim community in the United States. That the reaction was federal in nature - and thus national in scope as well as uniform in design and impact, and with precious few legal constraints - worsened the civil rights impacts. The civil rights deprivations resulting from federal action reveals that national regulation of immigration is a double-edged sword. Although federal law pre-empts state laws designed to regulate immigration or discriminate against aliens, it can also, with few legal constraints, strike out at immigrants across the nation if it sees fit. That in turn suggests that the role of states, as well as the federal government, in the regulation of immigration and immigrants, especially in times of national crisis, deserves most serious attention. The federal government's response to September 11 also demonstrates the close relationship between immigration law and civil rights in the United States. Noncitizens historically have been the most vulnerable to civil rights deprivations, in large part because the law permits, perhaps even encourages, extreme governmental conduct with minimal protections for the rights of noncitizens. Unfortunately, the current backlash against Arabs and Muslims in the United States fits comfortably into a long nativist history. In sum, a complex matrix of "otherness" based on race, national origin, religion, and political ideology contributes to the current attacks on the civil rights of Arabs and Muslims in the United States. As has occurred in the past, the ripple effects of national security measures in the end may adversely affect the legal rights of all noncitizens, not just Arabs and Muslims. Indeed, as we contend in this article, the civil rights deprivations resulting from the war on terrorism may have long term adverse impacts on the civil rights of citizens as well as noncitizens in the United States. To help us better understand the latest "war on terrorism," Part I of the Article analyzes the general demonization of Arabs and Muslims generally in the United States and how the law has been influenced by, and reinforced, the negative stereotypes. This section reviews the federal government's actions directed at Arabs and Muslims in the name of combating terrorism well before September 11. As Professor Edward Said has observed, terrorism in these times "has displaced Communism as public enemy number one." That has translated into a near exclusive focus on "foreign terrorists," particularly Arabs and Muslims. Part II studies the federal government's zealous investigatory methods after September 11 directed at Muslim and Arab noncitizens, with disregard for their civil rights, and the possible long term impacts of that response.