Civil Rights Issues Facing Arab Americans in Michigan
Chapter 6
Committee Observations
The U.S. Commission on Civil Rights is an independent, bipartisan agency of the federal government charged with studying discrimination or denials of equal protection on the basis of race, color, religion, sex, age, disability, or national origin. In each of the 50 states, an Advisory Committee to the U.S. Commission on Civil Rights has been established made up of responsible persons who serve without compensation to advise the Commission of all relevant information concerning its respective state on matters within the jurisdiction of the Commission.
To ensure its independence and bipartisanship, the Michigan Advisory Committee is constituted to include individuals representing both major political parties, a broad spectrum of political philosophies, different geographic regions of the state, and different occupations. It is independent of any national, state, or local administration, political organization, or advocacy group.
Profiling
Resulting from a 1997 report by the White House Commission on Aviation Safety and Security, a plan was implemented to augment security measures by complementing airline security checks with an automated passenger profiling system. By 1998, the Computer Assisted Passenger Screening (CAPS) system was operational industrywide.
Such profiling involves the collection of data on passengers prior to their boarding a plane. The information is entered into a computer database that determines whether the passenger poses a potential security risk and should be subjected to heightened security procedures. Different profiles are to be employed depending upon whether the travel is domestic or international.
The criteria for selection are secret. The Federal Aviation Administration denies that its profiling procedures are discriminatory and insists that the CAPS system does not target any group based upon race, national origin, or religion.
In addition to FAA security checks at most airports and border crossings, U.S. Customs officials can detain passengers for lengthy periods sometimes days without court approval in its attempts to interdict drugs and other contraband. When Customs believes there is reasonable suspicion of contraband with a traveler, Customs may detain a person and ask for the traveler's consent to medically supervised body searches. If consent is not given, Customs may proceed with X-rays and physical exams.
Regarding profiling, and its use by the federal government, the Michigan Advisory Committee observes that:
1. It is apparent that somehow and in some manner officials within the federal government have determined that Arab Americans and Muslims fit some common physical and/or traveling description of terrorists. This group of individuals is clearly being disproportionately selected by the FAA's Computer Assisted Passenger Screening system.
Committee Response: The Michigan Advisory Committee takes exception to the claim of Federal Aviation Administration officials that its profiling procedures are nondiscriminatory and the CAPS system does not target any group based upon race, national origin, or religion.
As long as the current system continues to discriminatingly target one particular ethnic and religious group, the Michigan Advisory Committee objects to its continued use.
2. Removing the profiling responsibility from local officials and centering the system in Washington, D.C., has not made the system racially and ethnically neutral. The fact that the system is now administered and controlled in the nation's capital does not by itself eliminate all vestiges of prejudice.
The Department of Justice did conduct a civil rights review of the automated passenger screening system prior to its implementation and found that the FAA s proposed Computer Assisted Passenger Screening system will not discriminate on the basis of race, color, national or ethnic origin, religion, or gender nor includes as a screening factor any passenger traits that may be directly associated with race, color, national or ethnic origin, religion, gender, surname, or mode of dress.
Committee Response: The U.S. Department of Justice's civil rights review of the CAPS system was conducted before the system was implemented industrywide. The FAA has relied on this study to justify the nondiscriminatory nature of CAPS. Since its implementation, however, the system seems to be operating in a discriminatory manner against Arab Americans and Muslims.
Both the CAPS system and the criteria for the profiling used by the CAPS system need a second independent review.
3. The basis of the Computer Assisted Passenger Screening system is secret. Compounding the secrecy of profile criteria, the test at Detroit Metropolitan Airport by the Executive Office of Wayne County demonstrates the inherent ambiguity over who has authority to profile. The airlines? Federal officials? Baggage inspectors?
Committee Response: The secrecy surrounding the profiling criteria used in CAPS is a serious problem. Further, who is responsible for administering the system?
The Michigan Advisory Committee holds that the American public has a right to understand the rudiments of the profiling criteria and who is responsible for administering the system and selecting those to be detained, questioned, and searched.
To date the CAPS system has yet to successfully identify any traveling terrorist.
Secret Evidence
The use of classified, or secret, evidence in certain immigration proceedings was first authorized in 1955. Essentially, the use of secret evidence allows the Immigration and Naturalization Service of the U.S. Department of Justice to use as evidence during deportation proceedings information that is not shared with the individual facing deportation.
The lack of a defendant's access to the secret evidence makes it nearly impossible for him or her to make a defense against serious deportation charges and makes it possible for an individual with extensive family and community ties in the United States to be deported on the testimony of unnamed informants whose charges are taken as fact and cannot be challenged.
In 1996, following the World Trade Center and Oklahoma City bombings, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996. Though the earlier 1955 provisions continue to be used as federal authorization for the use of secret evidence, one of the byproducts of the act has been the increased use of secret evidence in proceedings against immigrants.
While court rulings have held that residents in the United States are entitled to the same constitutionally guaranteed protections afforded to citizens, secret evidence is being introduced in trials across the country. The controversial provision has been used in approximately two dozen cases in which the Immigration and Naturalization Service asserted national security concerns as the basis for depriving immigrants of the right to examine and confront adverse witnesses and evidence. All of the cases are against Arab or Muslim immigrants.
Regarding the use of secret evidence, the Michigan Advisory Committee observes that:
1. In October 1999, a federal judge ruled that the use in court of secret evidence against immigrants is unconstitutional. The U.S. Constitution is the people s safeguard for their political and civil liberties.
Committee Response: Despite claims of national security, the Michigan Advisory Committee holds that this practice needs serious legal scrutiny. Since it has almost exclusively been directed against those from the Arab and Muslim communities, it is very difficult not to conclude that these cases are politically motivated proceedings targeting specific communities.
The rights to confront your accuser, hear the evidence against you, and secure a speedy trial are fundamental tenets of the American justice system embedded in the Constitution. The use of secret evidence violates those constitutional rights, and its continued use is a threat to the civil liberties of all Americans.
2. In Congress, a bipartisan group of House members, led by Rep. Tom Campbell (R-Calif.) and Rep. David Bonior (D-Mich.), introduced legislation to disallow the use of secret evidence. All members of Congress from the state of Michigan have given the legislation their support.
Committee Response: The Michigan Advisory Committee endorses legislation and regulatory changes to disallow the use of secret evidence.
Other Issues
Arab Americans and Muslims have suffered discrimination from employers, law enforcement officials, and service providers on the basis of their ethnicity and religion. Forms of discrimination may include a denial to Arab Americans with high levels of education the opportunity to work in the professional field of their training, refusal to hire Arab Americans who hold to different religious practices and/or different dress codes, a lack of accommodation by educators and service providers to individuals who adhere to different religions and/or dress codes, and a tendency by those in the entertainment industry to portray Arabs and Muslims in a negative light.
In our nation's recent history, thousands of Americans were unjustly imprisoned and denied their civil rights. The event was the internment of Japanese Americans during the Second World War.
The unprovoked actions by the federal government gave individuals the tacit license to be overtly hostile and discriminatory toward these individuals. The Michigan Advisory Committee concludes that:
1. The federal government's profiling system and selective use of secret evidence may be having a similar adverse effect on those in Arab and Muslim communities in this country. The permissive attitude by the federal government that allows its systems and programs to target the Arab community and the Muslim community may inadvertently be sending a message to the general populace that the Arab and Muslim communities are foreign and separate from the American mainstream, and as such are less deserving of civil rights and equal treatment.
To the Michigan Advisory Committee the abuses of the system against Arab and Muslim communities in profiling and secret evidence are clear. And failure to address them has worsened the situation for Muslims and those of Arab descent in this country.
Committee Response: The federal government needs to cease its targeting of the Arab and Muslim communities as suspect communities. Such targeting has complicated the access of many Muslims and Arab Americans into the mainstream of American society.