History Repeats as We Watch
The Treatment of Arab Americans Today

Natsu Taylor Saito, Symbolism Under Siege: Japanese American Redress And The "Racing" of Arab Americans as "Terrorists", 8 Asian Law Journal 1, 11-17, 24-26 (May 2001)(Citations Omitted)

One way to examine whether the wrong done to Japanese Americans during World War II has been righted is to look at how the media and our political and judicial systems are responding to discrimination against Arab Americans and Muslims in the United States today. The possibility that Arab Americans could be interned just as Japanese Americans were lies just below the surface of popular consciousness, occasionally emerging as it did in the movie The Seige. We have no more legal protections against such a scenario than we did in 1942. However, we need not postulate the wholesale internment of Arab Americans to see how many of the issues faced today by Arab Americans parallel those Asian Americans have encountered.

Just as Asian Americans have been "raced" as foreign, and from there as presumptively disloyal, Arab Americans and Muslims have been "raced" as "terrorists": foreign, disloyal, and imminently threatening. Although Arabs trace their roots to the Middle East and claim many different religious backgrounds, and Muslims come from all over the world and adhere to Islam, these distinctions are blurred and negative images about either Arabs or Muslims are often attributed to both. As Ibrahim Hooper of the Council on American-Islamic Relations notes, "The common stereotypes are that we're all Arabs, we're all violent and we're all conducting a holy war."

Recent Hollywood movies both reflect and perpetuate these stereotypes. The Seige, which depicts the U.S. military declaring martial law and imprisoning American Muslims and Arab Americans en masse following a series of terrorist bombings, "graphically connects Islamic religious practices like prayer, ritual cleansing, ... Islamic dress and beards, and even the emblematic color green with terrorism." Rules of Engagement, in which a mob of Yemenis, including women and children, attack a U.S. embassy, has been described as uniformly negative in its depictions of Arabs in Yemen. Speaking for the American-Arab Anti-Discrimination Committee, Hussein Ibish said, "It can only be compared to films like the Birth of a Nation and The Eternal Jew insofar as the principled [sic] purpose seems to be the demonization and vilification of an entire people."

Such portrayals, combined with the perpetuation of these stereotypes in news reporting, feed the public perception that Arab or Muslim terrorists must be responsible for events such as the bombing of the federal building in Oklahoma City in 1995 and the 1996 midair explosion of TWA Flight 800 off the coast of Long Island. Even though white American terrorists were quickly identified as prime suspects in the Oklahoma City bombing, Arab Americans across the United States reported a surge of harassment and intimidation in the following weeks. In Oklahoma City a mosque was fired upon and a young Iraqui woman had a miscarriage after men shouting anti-Muslim epithets shattered the windows in her home. As far away as northern Virginia, a U.S.-born Muslim woman reported that cars blew their horns at her, people avoided her in stores, and she was accosted with the line, all too familiar to Asian Americans, "Why don't you go back where you came from?"

The stereotypes of Muslims and Arab Americans as "terrorists" affect law enforcement as well. In Detroit, attorney David Steingold represented an Arab American client accused of organizing a credit card fraud ring. After meeting with FBI officials on the case, he reported that "it was the stated opinion of the FBI that every single Arab in Dearborn is either in member of Hezbollah or a sympathizer." More significant than the prejudices of individual law enforcement officers, however, are the systematic plans being considered to give governmental agencies even more sweeping powers in the "war on terrorism."

Immediately following the crash of TWA Flight 800, President Clinton appointed a White House Commission on Aviation Safety and Security, headed by Vice President Gore. Among other things, the Commission recommended systems for bomb detection and automated passenger profiling which have been criticized by civil liberties groups. Although the National Transportation Safety Board and the FBI have since concluded that the TWA crash was most likely caused by mechanical failure, the selective targeting of Muslims and Arab Americans is an ongoing problem as airlines continue to profile people based on criteria such as "Arab sounding names" or passport stamps from Arab countries.

Following bombings at the U.S. embassies in Tanzania and Kenya and a U.S. barracks in Saudi Arabia, Congress established a National Commission on Terrorism, which released its report in June 2000. Although the attacks took place overseas, the Commission report focuses almost exclusively on increasing domestic security measures. FBI Director Louis Freeh testified that "since the World Trade Center bombing of 1993, no single act of foreign- directed terrorism has occurred on American soil," and that in 1998 the FBI had foiled ten planned terrorist attacks, all linked to domestic white supremacist and militia groups. Nonetheless, the first page of the Commission's report warns ominously, "Today international terrorists attack us on our own soil."

The racialized identification of Muslims and Arab Americans as "terrorists" has not gone unnoticed. In a 1997 report, Maurice Glele-Ahanzano, the United Nations' special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related phenomena, noted racism and discrimination against Arabs in the U.S. and highlighted the media's tendency to identify Arabs and Muslims with terrorists. In 1999 a bipartisan coalition in Congress sponsored a resolution condemning "anti-Muslim intolerance and discrimination," urging recognition that "organizations that foster such intolerance create an atmosphere of hatred" and noting that law enforcement agencies should avoid the "rush to judgment" that followed the Oklahoma City bombing. However, just before Congress adjourned, the bill was effectively gutted and pulled off the calendar. Discouraged, James Zogby, president of the Arab American Institute, noted, "Instead of becoming a salve to heal the wounds of the Muslim community, this has become evidence of the problems that created the wounds in the first place."

B. "Anti-Terrorist" Legislation, Indefinite Detention and the Use of Secret

Evidence

The "racing" of a group identified by religion and/or national origin has once again been combined with the portrayal of the group as a threat to national security. The government's association of Arab Americans and Muslims, however loosely, with "terrorism," has much in common with both the treatment of Japanese Americans on the basis of their presumed disloyalty and the anti- communism that followed closely on the heels of World War II. With the "fall" of communism one would think there would no longer be a perceived need for the repressive measures of the Cold War, but many of these continue under the rubric of fighting "terrorism." In this new war, Arab Americans and Muslims have quickly become the most visible "enemy." As Edward Said has noted, "As a word and concept, 'terrorism' has acquired an extraordinary status in American public discourse. It has displaced Communism as public enemy number one, although there are frequent efforts to tie the two together." This McCarthyist response to the perceived dangers of "terrorism" has resulted in legislation and executive action which, when combined with the racialization of Arab American and Muslims as "terrorists," looks quite similar to the conditions which led to the internment of Japanese Americans.

Even though it was almost immediately known that the Oklahoma City bombing was the work of "home-grown" terrorists, the incident spurred the passage of bills purporting to clamp down on foreign terrorism in both criminal and immigration law. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") made it a crime to contribute to any group deemed a "foreign terrorist organization," and created special deportation procedures for aliens accused of being terrorists. Calling it "one of the worse assaults on the Constitution in decades," David Cole and James Dempsey summarize the AEDPA as follows:

It resurrected guilt by association as a principle of criminal and immigration law. It created a special court to use secret evidence to deport foreigners labeled as "terrorists." It made support for the peaceful humanitarian and political activities of selected foreign groups a crime. And it repealed a short-lived law forbidding the FBI from investigating First Amendment activities, opening the door once again to politically focused FBI investigations.

The ban on fundraising has had a particularly chilling effect in Arab American communities, as Islamic social groups and mosques have come under scrutiny across the country. Federal grand juries in New York, Chicago and Tampa have investigated as many as twenty organizations with suspected links to terrorism. As reported by the Detroit News,

The law explicitly puts support for social or charitable programs affiliated with terrorist groups in the same class as providing money for guns or bombs. That complicates matters in areas such as the West Bank and Gaza Strip, or in southern Lebanon, where many of the schools, orphanages and charity programs Arab Americans want to support are linked to groups such as Hamas and Hezbollah.

The AEDPA and the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRIRA"), which followed on its heels, also codified special "alien terrorist removal procedures," including a special court and provisions for the use of secret evidence. While U.S. citizens who are identified as Muslim or Arab have also been harassed or discriminated against in many ways, the problems have recently become most visible in the immigration context; a context where, as Asian Americans know all too well, those deemed "other" are particularly vulnerable. Susan Akram notes:

Since the early 1990s, FBI and INS agents have launched widespread investigations of Arab and Arab-American communities in major cities all over the United States. Seeking information that would allegedly inform the government about "terrorist" activities, agents ... have threatened individuals ... that they would initiate deportation proceedings against them or their relatives if they did not "inform" on friends, relatives, or neighbors.

It is much easier to deport non-citizens on "national security" grounds than it is to convict them on criminal charges associated with terrorism, and deportation has become one of the government's primary weapons in its war against those with political associations it deems undesirable. In recent years, the Immigration and Naturalization Service ("INS") has attempted to deport at least two dozen people on the basis of secret evidence, almost all of them Muslim, most of them Arab Americans. ...

C. Internment Logic

Each of these secret evidence deportation cases is a human tragedy. Families are torn apart, careers ruined, years lost. A number of individuals are still in custody and no one knows who will be next.. . ..

These cases pose larger problems as well. In them we see the dangers Eugene Rostow perceived in the Korematsu and Hirabayashi cases being played out, again, right before our eyes. Let us apply Rostow's distillation of the propositions endorsed by the Supreme Court in the Japanese American internment cases, his analysis of the "wrong," to the Arab American deportation cases:

(1) protective custody, extending over three or four years, is a permitted form of imprisonment in the United States: while not labeled "protective custody," the government maintains that detention pending deportation is not "punishment" and it regularly keeps "detainees" imprisoned for at least that long;

(2) political opinions, not criminal acts, may contain enough clear and present danger to justify such imprisonment: petitioners in these cases have almost all been targeted based on their association, however tenuous, with political organizations; they have not even been charged with crimes;

(3) men, women and children of a given ethnic group, both Americans and resident aliens can be presumed to possess the kind of dangerous ideas which require their imprisonment: the widespread association of Muslims and those of Arab ancestry, whether U.S. citizens or not, with "terrorism" is just the sort of presumption Rostow was describing;

(4) in time of war or emergency the military, perhaps without even the concurrence of the legislature, can decide what political opinions require imprisonment, and which ethnic groups are infected with them: rather than the military, in this case we have the INS, in conjunction with the FBI, deciding which expressions of speech or association deserve imprisonment and who is "infected" with them, and this is being done not even in time of war or declared national emergency, but by exploiting the fear created by relatively random, unrelated acts of violence; and

(5) the decision of the military can be carried out without indictment, trial, examination, jury, the confrontation of witnesses, counsel for the defense, the privilege against self-incrimination, or any of the other safeguards of the Bill of Rights: this is exactly what is happening in summary exclusion proceedings and even those petitioners who manage to obtain hearings cannot meaningfully exercise any of these rights when the government's case is based on secret evidence.

Viewed in this light, it appears that Rostow's "five propositions of the utmost potential menace" are a frighteningly accurate description of the current situation, and a disturbing reminder that the wrongs of the Japanese American internment really have not been righted. The government is still subverting our civil rights and undermining the safeguards of judicial review by tapping into race-based fears and playing the "national security" trump card.

Susan Akram says: . .

The use of secret evidence in deportation proceedings is the most powerful tool in an apparently systematic attack by U.S. governmental agencies on the speech, association and religious activities of a very defined group of people: Muslims, Arabs, and U.S. lawful permanent residents of Arab origin residing in this country. Evidence emerging from these cases indicates that the government is spending thousands of U.S. taxpayer dollars on prosecuting and attempting to deport Arabs and Muslims under the rubric of "terrorism," when the "classified evidence" used to charge them is apparently nothing more than hearsay, innuendo, and, at most, guilt by association. Using secret evidence to deport Arabs and Muslims appears to be the latest manifestation of a war waged by various government agencies against these ethnic and religious groups; a war waged ostensibly to combat "terrorism" but which raises the disturbing specter of ideological bias.

Can we let this happen and still believe that redress for the Japanese American internment has any real meaning?