The Palmer Raids were one of the most notorious episodes in American legal history. A. Mitchell Palmer, President Woodrow Wilson's attorney general from 1919 to 1921, rounded up 3,000 allegedly "subversive" aliens for deportation. Only about 300 were actually deported, but the roundup was widely deplored as crude and lawless intimidation.
In the wake of September 11, current Attorney General John Ashcroft carried out the most sweeping roundup of aliens since the Palmer Raids. Between 1,100 and 2,000 people were arrested and detained. The exact number is unknown because the Department of Justice, after criticism grew, stopped announcing a running total. The last published figure, in November 2001, was 1,147. Perhaps in part because he put a lid of secrecy on the operation, Ashcroft's roundup has not aroused the kind of outrage that Palmer's did.
David Cole, a law professor at Georgetown University and the country's foremost civil-liberties advocate in the immigration field, provided the most complete discussion of the Ashcroft sweep. In the December 2002-January 2003 Boston Review, he describes it as a program that used thin legal pretexts to hold aliens for extended periods so that the FBI could question and investigate them.
After days or even weeks without being given a reason for their detention, Cole wrote, most detainees were charged with minor immigration-status violations -- working without authorization, for example, or taking too few courses for a student visa, neither of which would ordinarily call for such draconian treatment. Many detainees who had violated the conditions of their visas agreed to leave the country voluntarily but were nonetheless held for months more until finally being allowed to leave. As of September 2002, only four detainees had been charged with crimes related to terrorism. The clear implication is that the real purpose was to keep people incommunicado while the FBI investigated them, a form of intimidation not ordinarily allowed under U.S. law.
Because of pervasive secrecy, little was known about how the detainees were treated until The New York Times published a story by David Rohde on Jan. 20, 2003. It was datelined Karachi, Pakistan. Rohde had interviewed six Pakistani men deported from the United States after being detained in Ashcroft's sweep.
One of the men, Anser Mehmood, said he was held for four months during 2002 in solitary confinement in a windowless cell in a Brooklyn federal detention center. Two overhead fluorescent lights were on at all times. "No official from the FBI and [the Immigration and Naturalization Service (INS)] came to interview me," Mehmood said. The other five men said they had been asked only cursory questions such as, "Do you like Osama bin Laden? ... Do you pray five times a day?"
Detainees charged with deportable offenses had secret hearings that were closed to family members, the press and the public. On orders from the attorney general, the chief immigration judge, Michael Creppy, told immigration judges to close all hearings deemed of "special interest" by the government. Those cases were not to be listed on the public docket, and their existence was not to be confirmed or denied if anyone asked. As in other matters, the Bush administration asserted the need for secrecy on the unilateral -- and, in the administration's view, not-to-be-challenged -- initiative of the executive branch.
The order for closed deportation hearings was challenged in two lawsuits that reached the 3rd and 6th U.S. Circuit Courts of Appeals. The two courts came to opposite conclusions. A three-judge panel of the 3rd Circuit upheld the secrecy directive by a vote of 2-to-1. Chief Judge Edward Becker said that even though a Supreme Court decision had held that the First Amendment barred closed trials, because trials had been traditionally public, there was an insufficient tradition of open immigration trials to be governed by that ruling. "Although there may be no judicial remedy for these closures," he said, "there is, as always, the powerful check of political accountability on executive discretion." It was a singularly inapposite -- some might say cynical -- comment given that the very secrecy at issue prevented public accountability.
A panel of the 6th Circuit held unanimously that the Creppy directive violated the First Amendment rights of the press and public to attend deportation hearings. The government could move to close particular hearings, the court said, by making a showing of security concerns to the judge; but it could not simply rule a whole class of cases out of bounds without any showing of need. The opinion, written by Judge Damon Keith, had some strong language on the role of the press and the danger of secrecy. The government has very great power to establish immigration policy and law, Keith wrote. He added:
The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty. Today the executive branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks to deport a class if it unilaterally calls them 'special interest' cases. The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door.
Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.
The secrecy imposed by Ashcroft was challenged in a third case, brought in the District of Columbia. The government defended the secrecy rule as required by national security. Disclosing the names of those held, it argued, would give al-Qaeda clues as to how the government was searching for terrorists. Federal District Judge Gladys Kessler rejected the argument. "The first priority of the judicial branch," she said, "must be to ensure that our government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship. Unquestionably, the public's interest in learning the identity of those arrested and detained is essential to verifying whether the government is operating within the bounds of law." The government appealed Kessler's decision.
In the atmosphere of fear after 9-11 and Ashcroft's orders to use sweeping measures against possible terrorists, INS and FBI agents inevitably made mistakes -- at a high human price. Muslims, citizens as well as aliens, were picked out for treatment that was often harsh and humiliating. But because of the pervasive secrecy, only occasionally did these episodes come to public attention.
Nacer Fathi Mustafa and his father, American citizens of Palestinian descent, were on their way back home to Florida on Sept. 15, 2001, after a business trip to Mexico. At the Houston airport they were stopped by immigration agents, arrested and charged with altering their passports. The implication was that they had done so because they were terrorists. For 67 days they were held in a Texas jail. Then the government decided that there was nothing wrong with their passports after all. "What bothered me most," Nacer Mustafa said in a New York Times interview, "was at the end, they just said I could go. Nobody ever apologized."
Ali Erikenoglu, an American-born Muslim of Turkish descent, was at home with his family in Paterson, N.J., when four FBI agents knocked at the door late one night a year after 9-11. They had questions for him: Are you anti-Semitic? What kind of American are you? Why do you have a Bible? (He had attended a Catholic high school.) Many Muslims live in Paterson, and Erikenoglu was one of hundreds questioned on the basis of his religion. He told Newsday: "Not only am I terrified. I am angry. You feel essentially at their mercy. For the first time I felt like I had to justify my innocence."
M.J. Alhabeeb, a professor of economics at the University of Massachusetts Amherst, was visited in his office by an FBI agent and a campus police officer. They said they had gotten a tip that Alhabeeb had anti-American views, and they asked him to explain. Alhabeeb, a U.S. citizen who came to this country from Iraq, told The Boston Globe that he felt obligated to prove his loyalty by saying that his brother-in-law had been executed by Saddam Hussein's regime. "I came to this country to get away from that kind of thing," the suspicion of disloyalty, he told the Globe. "Every Iraqi has this fear. For Americans, it's hard to comprehend."
The focus on people of Muslim religion and Middle Eastern names was not the random work of individual agents. It was Justice Department policy. Regulations approved by Ashcroft also required that all males from 25 listed countries, who were older than 16 years of age, and who were in the United States without permanent resident status had to register with the INS. All 25 countries are Arab or Muslim, except North Korea. Those rules set off the first large-scale public protest against post-9-11 security measures in which hundreds of men, mostly from Iran, were detained when they registered in southern California in December 2002. Most were said to have violated the terms of their visas.
The government of Pakistan, which has supported American policy, especially resented the inclusion of its citizens in the registration order. Pakistani Foreign Minister Khursid Mahmud Kasuri personally visited Ashcroft and Secretary of State Colin Powell in January to protest. He suggested that the rules so offended Paskistani opinion that it was now more difficult to defend U.S. military action in Iraq.
Given the identity of the 9-11 attackers, it was not surprising that U.S. authorities have kept a more careful watch on visitors from Arab and Muslim countries. But the peremptory handling of foreigners by the Justice Department, their extended detention in many cases and the sweeping together of the plainly innocent with legitimate suspects were not only offensive to American values but likely to intensify anti-American feelings.