A border patrol agent stationed at a checkpoint on a highway near Douglas, Arizona, pulls over vehicles during spot inspections. (Photo: Monica Almeida / The New York Times)
“Let the terrorists among us be warned,” then-attorney general John Ashcroft intoned before the US Conference of Mayors on October 25, 2001: “If you overstay your visa - even by one day - we will arrest you.”
Ashcroft’s vow to “use all weapons within the law” against noncitizens to “enhance security for America” initially targeted Muslims.
They have been singled out for discriminatory enforcement of immigration regulations, from the post-9/11 “special interest” arrests to the present. But the search for the “terrorists among us” has had a broad reach. In March 2003, The Philadelphia Inquirer found, among cases classified as “terrorism” by the Justice Department, one involving 28 Latinos charged with working illegally at the airport in Austin, Texas.
True to his word, Ashcroft made any infraction of the rules - the airport workers were found to be using false Social Security numbers - grounds for arrest, detention and interrogation about terrorism connections, generally followed by deportation. The notion that anyone who crossed our borders could be bent on doing us harm made the time ripe for the zero tolerance enforcement of immigration laws.
Ever since 1798, when the passage of the Alien and Sedition Acts gave President John Adams the power to deprive immigrants of due process of law and deport those he thought suspicious, politicians have recognized that the fear of “enemy aliens” could be manipulated for political gain. While part of an old tradition, the post-9/11 targeting of immigrants breaks new ground in at least three respects that are connected to the emergence of the surveillance state: it has militarized borders and shrunk the portion of the mainland in which Constitutional protections apply; it has blurred traditional law-enforcement roles and the division between federal and state power to meet the goals of the Immigration and Customs Enforcement’s (ICE) Operation Endgame - the removal of all unauthorized aliens from the country; it has further accustomed the public to the collection of biometric material and the increasingly dominant role that giant, interoperable databases will play in all our lives.
Policing Borders and the “Constitution-Free” Zone
Soon after the Department of Homeland Security (DHS) unveiled its “Secure Border Initiative” in November 2005, President Bush sent the National Guard to the border with Mexico to establish “full control,” and Boeing beat out Lockheed Martin, Northrop Grumman and Raytheon to win the contract to erect a “virtual fence” along the border. In April 2007, the government announced it planned to spend $30 billion for a 700-mile-long wall-and-fence, border communications and monitoring by drones. President Obama later sent additional National Guard soldiers to patrol the border, and by the middle of 2010, its entire length was being monitored by predator drones transferred from the battlefield.
The result? Some $90 billion spent on 650 miles of walls and heavy-duty fencing, surveillance cameras, sensors, thermal imaging, X-ray machines, and the deployment of 1,200 National Guard soldiers and drug-sniffing dogs, with “fewer illegal immigrants but little impact on the terrorism issue and no stopping of the drug supply, officials said.
As for Boeing’s “virtual fence,” there has reportedly been little to show for the $1.1 billion spent on it, “beyond the two testing sites in the Arizona desert and a series of embarrassments, including radar that could not function properly in the rain and wind-blown trees mistaken for border-crossers.” The plug has been pulled on the project.
As the number of its border patrol officers doubled to 20,000 during the years 2004 to 2010, Customs and Border Protection finally had the personnel to implement the authority given it by the Immigration and Nationality Act of 1952 to set up checkpoints and conduct searches of cars and their passengers within 100 miles of the US border with Mexico, Canada and the sea. The result has been the creation of a Constitution-free zone where Fourth Amendment protections against unreasonable searches and seizures no longer apply - just as they don’t apply at the actual border. The American Civil Liberties Union (ACLU) has calculated that nearly 200 million people live within this 100-mile-wide band which encompasses many of the country’s major metropolitan areas and some entire states. Within that territory, anyone can be forced to show proof of citizenship or risk being detained as a threat to the “homeland.”
Arbitrary searches of people on ferry boats in Washington State and in cars, buses and trains within the 100-mile zone have become increasingly common and especially ominous for people who don’t “look American.” Border Protection officials have set up checkpoints outside San Diego to arrest and detain departing immigrants who might not have proper documentation. And they have, on occasion, behaved with impunity outside the 100-mile zone. For instance, in July 2010, plainclothes Border Protection agents from Arizona boarded a bus in Las Vegas, more than 200 miles from any border, and demanded proof that people were in the country legally. Those who lacked documents or refused to hand them over - some 16 people in all - were reportedly taken away.
The Border Patrol sees a future in fighting terrorists, however few cross the borders. Hoping to encourage new recruits, it has trained thousands of young “Explorers” - an affiliate of the Boys Scouts of America - to fight “terrorism, illegal entry, drugs and human smuggling.” The training features armed teen scouts in paramilitary outfits engaged in role plays, with one role-player wearing traditional Arab dress.
Blurring Traditional Law-Enforcement Roles
At the end of the 20th century, local police forces were in no hurry to get involved in immigration enforcement, despite the limited authority to do so provided by legislation signed into law by President Clinton. Those who had embraced community policing in the 1990’s feared it would undermine the relationships of trust they had built up with immigrant communities.
But in 2002, when the Justice Department used the fight against terrorism to justify including in the FBI’s National Crime Information Center database certain categories of civil (not just criminal) immigration violations, they increasingly found themselves involved in immigration matters. When police accessed the database to find out if someone they had stopped on a highway had an outstanding warrant, they would now see whether he had missed his National Security Entry-Exit Registration System (NSEERS) “Special Registration” interview or was an “absconder” who had remained in the country after immigration records indicated he or she had been told to leave.
Once the branch of the new DHS immigration bureaucracy known as ICE was established in 2003, there was a push to enlist all possible support for its Operation Endgame goal of locating, detaining and deporting all “removable aliens” by 2012. ICE worked closely with other federal agencies and police in Joint Terrorism Task Forces (JTTF) and fusion centers where fighting “terrorism” and “crime” had been “fused” into a single mission and civil immigration violations became increasingly criminalized. In the prevailing climate, all categories of offenders, as well as asylum seekers who had failed in their claims, could be arrested at their homes, places of work or on the streets and immediately deported or detained awaiting deportation. The DHS also encouraged local police to be deputized to do the work of immigration enforcement through the flawed 287(g) program. It was supposed to target serious criminals, but primarily led to arrests for misdemeanors and traffic offenses, with racial profiling a factor in many traffic stops.
In 2006, ICE established arrest quotas for its Operation Return to Sender program aimed at rounding up “fugitive aliens,” and 200,000 people were removed from the country. Detention centers were crammed with people awaiting deportation in generally harsh conditions that made it difficult for them to communicate with the outside world, mount a legal defense, secure adequate medical treatment or even to be located by their families. In June 2008, as the numbers of detainees continued to mount, The New York Times editorialized that “a Nation of immigrants is holding another nation of immigrants in bondage, exploiting its labor while ignoring its suffering, condemning its lawlessness while sealing off a path to living legally ... An escalating campaign of raids in homes and workplaces has spread indiscriminate terror among millions of people who pose no threat ... Children someday will study the Great Immigration Panic of the early 2000’s, which harmed countless lives, wasted billions of dollars and mocked the nation’s most deeply held values.”
More than four million American children has at least one parent who lacks legal immigration status, and over 70 percent of all children of undocumented parents hold American citizenship, so children have been especially hard-hit when families are ripped apart or live in fear of separation. A 2009 study by the DHS Office of the Inspector General found that among 2.2 million people who were recently deported, 108,404 had American children. Some native-born Americans have been among the deportees, including Pedro Guzman, who was mistakenly sent to Mexico after serving 20 days in jail for a misdemeanor. Guzman, who is developmentally disabled, foraged out of garbage cans during the three months his family searched for him.
The “Great Immigration Panic” did not end when Barack Obama became president. Indeed, during his time in office, the number of annual deportations has approached the unprecedented 400,000 mark.
That has not satisfied the politicians and ideologues rallying to “take our country back.” The American Legislative Exchange Council (ALEC) has used the failing economy and failure of federal immigration reform to fuel efforts in state legislatures across the country to pass laws similar to Arizona’s SB1070, requiring police to do the work of immigration agents and hunt down so-called “illegals.” A major beneficiary would be an ALEC member, Corrections Corporation of America, which anticipates a windfall of new for-profit prison contracts.
Immigration Enforcement by Database
The negative publicity surrounding brutal workplace raids and a study showing that police used racial profiling to stop drivers and refer them to ICE led the Obama administration to ease up on mass raids and instead harness technology - deemed immune to racial profiling - to locate people to deport.
Despite the troubled history of an electronic verification system called E-Verify, the administration has expanded its use in confirming eligibility to work. By the fall of 2009, all government contractors had to check the documents of all employees and new hires against error-ridden Social Security Administration (SSA) databases.
In December 2010, as states passed laws requiring businesses to use E-Verify systems, the Government Accountability Office (GAO) issued a report detailing the inaccurate records and other problems plaguing E-Verify, including its vulnerability to identity theft and employer fraud. The administration’s proposed fix is to incorporate more personal information into the database that the E-Verify tool accesses, making the honey pot for identity thieves ever larger.
The immigration enforcement program that best exemplifies the administration’s dedication to enforcement through technology is the misleadingly named “Secure Communities” (S-Comm), which - like 287(g) - is supposed to identify “serious criminals” for deportation. Under this secretive ICE program, introduced in select localities in 2008 and now operational in more than 1,500 jurisdictions in 44 states, anyone arrested by the police for any reason whatsoever has his or her biometric fingerprints taken and sent to the FBI.
The FBI runs them through its Integrated Automated Fingerprint Identification System (IAFIS), which contains some 46 million sets of prints and criminal history information. The fingerprints are also automatically run through DHS’s Automated Biometric Identification System (IDENT). IDENT holds the records of anyone who has been fingerprinted for immigration reasons, including getting a visa, a change of status, becoming naturalized or being stopped at the border. A positive “match” is flagged for ICE, which then can send a “detainer” to the jurisdiction that arrested the person, asking for him or her to be held until an ICE agent can take the person into custody.
Since 2008, more than 110,000 people have been deported under S-Comm. Over three-quarters of those deported have no criminal convictions or are minor offenders. Far from eliminating racial profiling, the program - again, like 287(g) - is open to pretextual arrests by police.
Faced with a growing resistance to the program, ICE first announced some cosmetic changes and subsequently agreed to review, on a case-by-case basis, the files of people without criminal convictions and grant some of them a reprieve from deportation. But despite vigorous opposition from within its voter base, the administration remains committed to S-Comm. Why?
Perhaps because it regards S-Comm as both a valuable source of biometric information on all the nation’s arrestees and as a critical building block in the implementation of the automated sharing of biometric fingerprints - and, soon, other biometric information. According to documents obtained through a Freedom of Information Act (FOIA) lawsuit, S-Comm is “the first of a number of biometric interoperability systems” that will make up the FBI’s Next Generation Identification (NGI) system, which Lockheed Martin has received a $1 billion contract to design. The FBI reportedly pushed for S-Comm to be mandatory, with no opt-out provisions allowed at the local or state level, because it wants to ensure full participation in NGI. The NGI system - with eye scans, palm prints, facial recognition images, latent biometric material collected at crime scenes, as well as the biometric fingerprints that are now being collected under S-Comm on citizens and noncitizens alike - may also include data that has nothing to do with crime. With far-reaching privacy implications, it is due to be up and running by 2013, the year when ICE says S-Comm will be automatic in every jurisdiction in the nation.
In 1798, Thomas Jefferson, Adams’ vice president and political rival, condemned the Alien and Sedition Acts in words which should resonate in our own time: “[T]he friendless alien has indeed been selected as the safest subject of a first experiment, but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey.”
1. He even pressed into service a half-century-old regulation long ago abandoned by the Immigration and Naturalization Service (INS) as unworkable, which made it a deportable offense to fail to notify the immigration authorities of a change of address within ten days of moving. The INS, notorious for its failure to process paperwork in a timely fashion, had been known to shred files when the backlog of applications for a change of status became too large, adding to the number of immigrants - estimated at 12 million - who are in the country without proper documentation.
2. Targeting immigrants as potential terrorists has shown meager results. According to Syracuse University’s Transactional Records Access Clearinghouse, out of 814,073 immigrants arrested and charged with offenses in 2004 and 2005, only 12 faced terror-related charges. Most were charged with “entry without inspection.”
3. The Illegal Immigration Reform and Immigrant Responsibility Act (IRAIRA) of 1996, which mandated the deportation of immigrants who had been convicted of a crime, provided for the delegation of immigration enforcement authority to state and local police in case of a “mass influx of aliens” needing an immediate response. In the same year, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) authorized state and local police to arrest and detain persons who had been convicted of a felony and were unlawfully in the United States after being previously deported. Also in 1996, Congress, for the first time, authorized that the records of convicted felons who were deported after completing their sentences could be entered into the FBI’s computerized National Crime Information Center (NCIC) database, where they could be accessed by all law enforcement officials.
4. The Social Security Administration has reported that approximately 17.8 million of its files contain incorrect data and 12.7 million of those erroneous files belong to American citizens, leading to the very real possibility that millions of workers would be wrongly identified as not authorized to work.