Alienated: Immigrant Rights, the Constitution, and Equality in America

2: Immigrants and the War on Terrorism after 9/11

Immigrants and the War on Terrorism after 9/11 One of the first acts of government profiling following the September 11, 2001 terrorist attacks was conducted not against people, but against cargo. As he watched the pillars of smoke billow from the World Trade Center towers from his office across the river, Kevin McCabe, Chief Inspector of the Contraband Enforcement Team of the U.S. Customs Service , determined he needed to take action: “I figured . . . that we were under attack, probably from some group in the Middle East, and I had no way of knowing what was in any of those containers,” a reference to the seven thousand–odd truck-sized cargo containers that had just arrived at port in the last twenty-four hours. McCabe then decided to subject each of the six hundred containers that had originated in or stopped at ports in the Middle East or North Africa to the kind of scrutiny usually reserved for cargo suspected of containing illicit drugs. Upon reflection, McCabe admitted that his decision was “as much an emotional reaction as a practical one. We felt we had to do something.” It soon became clear that, as a practical matter, McCabe’s proposed solution was flawed in two key respects: first, at best, U.S. Customs had the capacity to inspect no more than 2 to 3 percent of the seven to nine thousand containers they received daily; and second, Customs needed a plan to actually prevent the arrival of a terrorist package—discovering a nuclear or biological weapon among the containers already at port might be a case of “too little , too late.”1 McCabe’s predicament that fateful morning parallels the complexity the federal government has faced in finding ways to deploy its immigra2 24 tion power in the post-9/11 war on terrorism. In the three sections that follow, I examine several of the government’s responses, from its initial decision to engage in national origin profiling, to its use of the immigration power to enhance its investigatory might, to its more nuanced approach toward admitting commuting students at the border. I assess the promises and pitfalls of each response, measured against the twin principles of antiessentialism and antisubordination. My goal is not to offer a comprehensive treatment of the government’s entire post-9/11 immigration response—legal scholar David Cole has recently provided an excellent evaluation of just that.2 Rather, I use the three sections to move from a bird’s-eye view of post-9/11 immigration policy, situating it in the broader context of history, sociology, and psychology, to a microanalysis of specific legislation the government has enacted, outlining how it can (and has) reacted appropriately in seeking a fair balance between the rights and responsibilities of noncitizens. And so I offer three observations here, which I explain further in the sections below: first, because of the high correlation between national origin and racial, ethnic, and religious profiling, the federal government should be wary about using such accidents of birth and culture as proxies for disloyalty, especially when such profiling promotes essentialist stereotyping and subordination without the promise of enhanced security . Second, while using its civil immigration laws to detain violators and investigate possible terrorist cells enhances the government’s criminal enforcement power, deportation (the preferred immigration remedy ) risks the release of a terrorist who then is free to strike another day. Put differently, the government should not be able to use its civil immigration authority as a bootstrap to deny due process to suspected terrorists it has no real intention of deporting, but should rather detain and prosecute criminally. And third, the government should resist the temptation to pass legislation like the USA-PATRIOT Act as an emotional reaction to 9/11, when it is also capable of enacting more reasonable laws like the less well-known, but more effective, Border Commuter Student Act of 2002, which grants student visas to Mexican and Canadian nationals who commute to schools in the United States. That the Border Commuter Student Act was enacted only a year after the terrorist attacks suggests that the federal government can use its immigration power to effectively separate the “terrorist” from the “immigrant ” or “noncitizen” without relying on stereotypes or proxies for disloyalty. Immigrants and the War on Terrorism after 9/11 | 25 Proxies for (Dis)Loyalty in Constitutional Immigration...