October 12,
2001
This is an unverified transcript of the full and complete proceedings of the U.S. Commission on Civil Rights in the matter of its “Briefing on Boundaries of Justice: Immigration Policies Post-September 11th.”
CHAIRPERSON BERRY: Okay. All right. We’re ready now, without objection, to go to the briefing. Could we ask the panelists for the first briefing to come forward? They are Mark Krikorian—I’ll introduce you further as you come—after you come up—Najeeba Syeed-Miller. Am I reading the right thing? Tim Edgar, Charles Kamasaki—all of these people? Jim Zogby—I mean, James—James Zogby. James “Jim” Zogby.
Do we have names for everybody? Everyone has a name?
Okay. I want to welcome you. I, first, have an opening statement, and then I will introduce the panelists. If we could have order among the staff, I would appreciate it. Could we have order, please?
The terrorist attacks of September 11 and the tragic loss of thousands of lives has had a devastating effect on our nation. These attacks have caused us to reexamine policies and practices dealing with immigration, intelligence-gathering, and national security.
Overlooking ground zero of the attack on the World Trade Center is the Statue of Liberty, our nation’s beacon of hope to countless numbers of oppressed people throughout the world. The attacks of September 11 seriously test the enduring message inscribed there: Give me your tired, your poor, your huddled masses yearning to breathe free.
Americans have a long and proud tradition of keeping our doors open to the world through immigration. The Commission is confident that America can and will remain the most free and open society in the world. At the same time, we must ensure the safety and security of all Americans.
How do we, as a nation, balance the need to secure ourselves from terrorist attacks with the need to maintain the freedoms and civil rights we cherish so dearly? It is this delicate, but vitally important balancing act, that will be examined today.
While the United States has declared war on terrorism, there has not been a formal declaration of war against another country. Certainly, when the nation is at war, greater deference must be given to government decisions about what is required for national security. As Justice Oliver Wendell Holmes wrote in 1919, the power of the government to regulate undoubtedly is greater in time of war than in time of peace because war opens dangers that do not then exist at other times. But, of course, we are not formally at war.
At the same time, however, we are keenly aware that not only have thousands of American lives been lost, but men and women in uniform are putting themselves in harm’s way even as we speak to carry out important operations and missions that will, hopefully, lead to a more safe and secure nation and world.
As new laws and regulations are being passed and implemented concerning immigration and other issues, to what extent are freedom and civil rights being curtailed in a manner that might be acceptable during a time of war, but that is not acceptable during any other time?
Peace and security existed for so many years in this nation. It seemed nearly inconceivable to many of us that anything could change. But it did on September 11, and we watched the horrific events unfold on national television, footage shown repeatedly since the tragedies occurred. And in the thousands of images, articles, and newscasts we have all seen, read, and heard in the last four weeks, it is clear that America has lost a certain innocence.
While this is a new feeling to many younger Americans, there are countless older Americans who lived through a similar experience more than a half a century ago when Pearl Harbor was unexpectedly bombed during the morning of December 7, 1941. History does indeed repeat itself.
After Pearl Harbor was bombed, there were discussions about laxes in intelligence gathering and national security. More than 120,000 Americans of Japanese ancestry were rounded up and forced to live in interment camps, this at a time when more than 30,000 Japanese Americans served in the U.S. military during World War II. And the U.S. Supreme Court approved the interment of Japanese Americans in 1944.
And while legal scholars and commentators have almost universally scorned that case as one of the worst betrayals of Americans’ constitutional rights in the Supreme Court’s history, there are few who believe that similar measures could be implemented today. While the United States Government formally apologized for the internments in 1988, the Supreme Court has never overruled the decision that interred the Japanese Americans.
this Commission was not established until the passage of the Civil Rights Act of 1954. We would like to believe—and I’ve thought about this long and hard—that if the Commission had been in existence in 1944, perhaps the Commission could have helped steer public opinion and public policy toward answers and solutions that did not violate the civil and constitutional rights of so many thousands of loyal Americans, just as if the Commission had been in existence during World War I it might have kept violations of the civil and constitutional rights of so many German Americans from being violated at that time.
Which brings us back to the realities of today. While the President and other public officials have eloquently appealed to Americans not to seek revenge on their fellow Americans who happen to be Middle Eastern or Muslim, some Americans have nonetheless waged vigilante attacks, including harassment, beatings, and murder, against persons because of their race, ethnic origin, and religion.
The Commission has utilized its hotline with a toll-free number so people could report the incidents of discrimination and harassment. Since we started publicizing the phone number, the Commission has received almost 500 calls.
As we hold this briefing today, we are mindful that reportedly terrorists may be planning additional attacks. This notice screams to us from the headlines and from the television and the radio. It appears that our heightened state of vigilance and alertness may have to become a way of life for years to come.
Clearly, we want our law enforcement and military personnel to have the most advanced capabilities and resources possible—the tools necessary to combat and prevent terrorist acts. However, as police powers are expanded, some new proposals could have serious unforeseen consequences for freedoms and civil rights that we take for granted.
As Lyndon Johnson once said, we have to worry not so much about whether legislation passed as good in evil times will really work in those times. We have to worry about who it will be used against then and after forevermore, and that this is an important worry for us who believe in and are responsible in the cause of civil rights.
These attacks on September 11 appear to have created the willpower among Americans to accept sacrifices in order to combat terrorism. The rights and freedoms that make this country a beacon of hope for oppressed people the world over must remain assured. So we ask the question again—how much must we sacrifice our values, our beliefs, our civil rights, and our civil liberties, to prevail in the daunting task at hand?
So what this briefing is addressing is the civil rights implications of anti-terrorism legislation on immigrant populations in particular and on all Americans. The briefing will also focus on the civil rights implication of new immigration policies, such as detention, implemented since the most recent U.S. Supreme Court cases on this subject.
We will hear testimony from community-based organizations on the effects of the anti-terrorism legislation and other immigration standards and policies on their constituents. Panelists representing various organizations will address the first-hand experiences of their constituents and the potential impact of this legislation and other new immigration regulations on their communities.
And then we will have legal experts and scholars who will talk about the constitutionality of the legislation, the civil rights implications of the evolving immigration laws and policies on the populations, and the constitutionality of such things as racial or ethnic or religious profiling in times of heightened national security.
Finally, there will be representatives from federal agencies, including the INS, Immigration and Naturalization Service, and the FAA of the Department of Transportation, who will address the civil rights implications of the proposed legislation, their role in implementing proper security procedures, while ensuring civil rights protections of affected populations, and their overall view on the protection of civil rights in times of national emergency.
We very much appreciate the participation of the panelists and expert witnesses as we discuss these important civil rights issues.
The panelists are Mark Krikorian, executive director, Center for Immigration Studies on this first panel. Mr. Krikorian holds an M.A. from the Fletcher School of Law and Diplomacy and is a Georgetown University graduate. He was a manager of a newspaper and other publications before joining the Center for Immigration Studies, and he has appeared on all of the media that everybody appears on and talks about this stuff. And in the center is a nonprofit/nonpartisan research organization.
We have also Najeeba Syeed-Miller, who is executive director of the Asian-Pacific American Dispute Resolution Center in Los Angeles. She is a South Asian American Muslim with a law degree from Indiana School of Law in Bloomington, and an undergraduate degree in psychology from Gilford College. The Asian-Pacific American Dispute Resolution Center has programs in community intergroup and peer mediation.
We also have Tim Edgar, who is legislative counsel of the Washington National Office of the American Civil Liberties Union. He is a Harvard Law School graduate and has an undergraduate degree from Dartmouth. And he is with us today, and he is responsible for defending and promoting civil liberties in the areas of national security, terrorism, and immigration in the Congress and the executive branch working on these issues.
We also have Charles Kamasaki, who is senior vice president, Office of Research, Advocacy, and Legislation, National Council of La Raza, where he has been for many, many years.
(Laughter.)
La Raza is one of the foremost—you have been. You’ve been there almost as long as I’ve been here, Charles.
(Laughter.)
And doing good work.
Jim Zogby, James Zogby, is the president of the Arab American Institute. He has been working on these issues for a long time, too. I won’t say years and years and years. He’s the founder and president of the Arab American Institute, and we are pleased that he can be with us today.
We’re going to begin the discussion with Mr. Krikorian. The staff has told you how long you should talk, I think, and you should do that and you should follow the instructions. And there will be questions from the Commissioners when you are finished.
Please proceed, Mr. Krikorian.
MR. KRIKORIAN: Thank you, Madam Chairwoman. Although unlike Congress, you don’t have a red light, so I—
(Laughter.)
—won’t know when to stop talking.
I thank you for the opportunity to participate in this briefing.
We’re faced here I think with two questions relating to civil liberties. One is, is immigration a civil right? And the second is, what is the best way to create an environment respectful of the immigrants living among us?
The Constitution grants Congress the power to establish a uniform rule of naturalization from which is developed what’s called the plenary power doctrine, under which Congress has essentially complete authority over immigration matters.
The Supreme Court has said that “over no conceivable subject” is federal power greater than it is over immigration. And as a consequence, as the Court has said elsewhere, “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”
This is as it should be, since control over immigration is fundamental to national sovereignty. If we, the people of the United States, have ordained and established a constitution, then we, by definition, retain the power to determine who is and is not a member of the American people. Thus, the decision to admit or exclude foreign citizens is a matter solely in the hands of the elected representatives of the people.
And anyone from overseas who is admitted to travel or to live among us does so as a guest, remaining here at our pleasure until such time as we agree to permit him to become a member of our people. In effect, foreign citizens, even if they are here illegally, enjoy the human rights endowed them by God, but remain here at our discretion, and the specifics of their due process rights are determined by Congress.
This is relevant in assessing many of the measures to tighten immigration control recommended in the wake of the September 11 attacks. All 19 hijackers were, after all, foreign citizens, as are many of those detained as possible accomplices or witnesses.
This was also the case with the conspirators in the first World Trade Center attack, the 1993 CIA assassinations, the foiled bomb plot in New York in 1995, and in Washington State in 1999. And dare I venture a prediction foreign citizens or perhaps naturalized immigrants are virtually guaranteed to be responsible for the next attack, whether it actually does come in the next couple of days as the FBI has warned or farther in the future.
To begin at the first step in the process of coming to America, there is likely to be special scrutiny applied to visa applicants from Muslim countries or to people of Middle Eastern birth who have other citizenships.
Now, whether or not ethnic or religious profiling is an appropriate tool in the government’s dealings with American citizens, there simply are no civil rights implications of such profiling of foreign citizens abroad. The United States Government may refuse entry to any foreign citizen for any reason at any time. It is precisely to preserve this irreducible element of national sovereignty that repeated attempts to subject visa refusals to review have been rebuffed by Congress.
One of the grounds for exclusion may well be expanded as a result of these attacks, a ground that would be unacceptable if applied to citizens but clearly permitted or even mandated when applied to non-citizens overseas. What I mean specifically is that current law makes it extremely difficult to turn down a visa applicant because of his “beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States.”
To keep out a terrorist sympathizer, in other words, one who publicly cheers the murder of Americans but who, as far as we know, is not a member of a terrorist group or raised money for terrorist organizations, the Secretary of State must personally make each decision and then report each individual instance to four separate congressional committees. Law is essentially written to apply the first amendment to foreigners abroad.
Whereas it seems to me imperative that visa officers be given a freer hand in excluding enemies of America, even if that hatred would be constitutionally protected if articulated by citizens—and, again, this is not—this has no civil rights consequences.
The next stage in coming to the United States is at the border. Here a tool to prevent the penetration of our society by terrorists and others has already been implemented to some useful effect. Although many have claimed that there are civil rights consequences to the procedure known as expedited exclusion, which was enacted in the 1996 immigration law, there are no such consequences.
That provision sought to end asylum abuses through the expedited exclusion from the United States of false asylum claimants at airports, generally speaking. When a person who arrived in the United States with no documents or forged documents claimed asylum, the initial plausibility of his claim is determined by an immigration officer, or then by his supervisor, if he’s turned down. And if he is turned down, he is excluded from the United States without going through the whole asylum process.
This is part of Congress’ plenary power over immigration. And, again, there are no civil rights consequences of such a policy.
Finally, within the United States, non-citizens do have rights, more if they are permanent residents, which means they are, in effect, candidate members of the American people, fewer if they are non-immigrants, which is to say visitors or long-term temporary residents, tourists, workers, what have you.
One change in the treatment of non-immigrants that is I think useful to look at would be that—it’s almost certain to be implemented in the wake of the attacks—is the tracking of foreign students. Congress mandated a pilot program to track foreign students much more thoroughly than today, and that pilot program is very limited. It applies to a couple of colleges. The INS is certain to speed up the full implementation of this system.
Many foreign students and university spokesmen have complained about this as unfair or discriminatory, using civil rights language to express their displeasure with it. But as I’ve mentioned, these students are here purely as guests in our house, and we are entitled to place whatever conditions we deem appropriate on their stay.
Deportation policy is another area within the United States where some have warned that measures recently passed or proposed would have civil rights implications.
CHAIRPERSON BERRY: You have one more minute, Mr. Krikorian.
MR. KRIKORIAN: I’ll speed it up. The problem with this view is that deportation is not punishment. Only non-citizens may be deported, and they are either here as our guests, as legal residents, or they are illegal aliens and may be removed at any time so long as lawful procedures are followed.
One example where this is relevant to the current discussions is the 1996 legislation which permits the use of secret evidence in deportations. Virtually all of the small number of people who have been subjected to the use of secret evidence in deportation proceedings have been Arabs or Muslims, and this has given rise to civil rights complaints.
Little has been heard of the measure—the efforts to repeal secret evidence legislation, but it—they will resurface. But, again, deportation is not punishment. The Supreme Court has said that the purpose of deportation proceedings are administrative and they—the function—what they do is “provide a streamlined determination of eligibility to remain in this country. Nothing more.”
Therefore, as the FBI general counsel noted last year in testimony, “The full range of rights guaranteed a criminal defendant, including the Sixth Amendment’s right to confrontation of evidence, are not applicable in immigration proceedings.”
I’ll—of course, my written statements are much more extensive than this, and I’ll be happy to take questions from the Commissioners afterwards.
CHAIRPERSON BERRY: We will keep your—if you have a written statement, you may submit it.
MR. KRIKORIAN: Yes, I do.
CHAIRPERSON BERRY: Without objection. Okay.
If you don’t, no one was required to have a written statement. But if he has one, he may submit it.
MR. KRIKORIAN: They were making copies of them, I was told.
CHAIRPERSON BERRY: Yes. Ms. Najeeba Syeed-Miller?
And thank you, Mr. Krikorian. We will have lots of questions.
MS. SYEED-MILLER: Thank you. I am honored to be invited to this public briefing on immigration policies. The nature of my comments are reflective, based on my professional work as a mediator in the Asian-Pacific Islander community. I will explore various issues that the South Asian community faces as a result of the recent terrorist attacks on September 11, 2001.
I have been asked to focus particularly on the South Asian Muslim American community. My comments are offered as points to consider and not recommendations on specific policies.
One of the predominant—I will first talk about the demographics of the South Asian community in the United States. One of the predominant misconceptions of the South Asian community is that they are included in the description under Arab or Middle Eastern. Indeed, recent violence has made this clear. South Asians have been targets of hate-based incidents because of the fact that some people view them as Arabs or linked to the 9/11 attacks.
For instance, a murder in Mesa, Arizona, of a Sikh man, Balbir Singh Sodhi, may be considered a racially motivated attack.
It may be helpful to consider the breakdown of major South Asian religious communities here in the United States. Estimates for the Sikh community in the United States number at 234,000. The number of Hindus—1,320,000.
The South Asian Muslim community is harder to track because of the continued discussion among scholars about the actual number of Muslims in the United States. It is estimated that they represent 25 to 35 percent of the total number of six to eight million Muslims here in the United States.
The South Asian American presence is extremely diverse in its ethnic, religious, and linguistic makeup.
Second, the history of immigration policies in the United States—Asian Americans have had a long history of increases and decreases in the number of immigrants allowed to naturalize. In 1882, Congress passed the Chinese Exclusion Act, which was to limit or exclude Chinese immigration for the next 60 years.
In 1907, the U.S. and Japan came to a gentleman’s agreement which restricted Japanese immigration. South Asian Indians were affected in 1917 when Congress made India part of the Pacific Barred Zone of Asian countries which were included in certain exclusionary practices. It may be interesting to note that at that time it was considered a Hindu invasion as one of the terminologies that we use to consider India as a country that should be barred perhaps from some of the naturalizing processes.
Other groups face similar laws and some states prohibited the ownership of agricultural land by aliens ineligible to citizenship. Immigration, as we know, was later liberalized in the 1960s.
One of the most important time periods in the history of immigration for the Asian community was the internment of 120,000 Japanese Americans in the 1940s. No evidence of actual subversive activities were required for the interment, and some bank accounts of Japanese Americans were frozen at that time.
The experience is perhaps best explained by Elsi Hashimoto’s quote, “Most of us failed to mention our experience for close to 40 years, because to this day our emotions overwhelm us.” This is the opening quote for the exhibit, America’s Concentration Camps: Remembering the Japanese Experience.
Reflections on how to foster pluralism—no one would consider similar actions as possible against minority communities in the present time of war as were carried out in the 1940s. The relevance of the Japanese American experience to today’s situation is that we must understand the implications of policies that are applied sweepingly to one ethnic community.
Decisions made out of hysteria, or the yellow scare, as they were done in the 1940s, can be ones that we regret for generations. One of the results may be feared based on the particular community’s view that they will be treated as inherently un-American because of the society’s stereotype of them as possible criminals.
A number of clients have called me and were hesitant to report hate crimes because they were afraid that no one would take them seriously. At a more extreme level, people of South Asian descent have been afraid to go out of their homes alone. One positive aspect of this experience is that it has brought together various communities who have escorted or accompanied those who are experiencing fears to go outside.
What I wish to discuss is the current situation that we face as a nation. Our President has rightly identified that one of the tenets that was under attack on September 11 was that of pluralism. As a mediator, I work constantly to create spaces for diverse, complex, and interesting interactions between individuals and groups. I am blessed to be in a nation that values these freedoms. I will attempt to identify some potential areas for discussion regarding the recent attacks and interethnic and interreligious dialogue.
First, this is a time to work even harder to build coalitions between groups who find themselves targets of ethnic-based violence. The target of hate-motivated crimes has spilled over from the Arab and South Asian community into other groups. For instance, hate crime charges are currently being filed against two men who followed a Latino American man home in Los Angeles. They reportedly mistook him for someone from the Middle East.
Minority communities have the opportunity to engage one another and find common ground on issues they face together. I attended a powerful candlelight vigil in Los Angeles sponsored by the Nikkei for Civil Rights and Redress. This was a chance to bring together South Asians, Muslims, and Japanese Americans and reflect upon similar issues.
One powerful statement was made by Ayako Nagihara, NCRR co-chair that evening. She said, “We have many lessons to draw from the camps. We learned that we must safeguard our civil liberties, especially in times of perceived threat, and support those who face discrimination or threats based on race or ethnicity.”
Second, it is important to recognize the losses that certain communities may face as a result of this recent horrible event.
CHAIRPERSON BERRY: You have one minute, please.
MS. SYEED-MILLER: These are losses that are not always protected by law and can often go unmeasured. For instance, South Asian businesses have been losing profits by closing early because of recent threats.
The second issue that we want to face is also the continued need for cultural exchange. In particular, our universities have shown to be viable forums for cultural exchange. A number of students have been called back from their universities here in the United States back home because of feelings of threat—fear of reprisal attacks, so their parents have called them back.
Indeed, our country’s universities have fostered connections abroad with international students who gain an affinity for similar values. There are currently initiatives to block such access to American universities. While this is an understandable reaction, it may limit exposing groups of people to the opportunity to gain insight into the democratic processes of our nation.
At the local level, we must continue to dialogue and build bridges between various communities and groups. The combination of anger and ignorance can ignite problems and disputes that are violent in nature. Through carefully constructed interactions, we can dull anger and erase ignorance.
If such actions are not taken, long-term suspicion can ensue, and the process of fixing high levels of distrust is one of the most difficult tasks as any mediator will tell you.
I recently received an e-mail from a group that will be working on—
CHAIRPERSON BERRY: Your time is up, Ms. Syeed-Miller.
MS. SYEED-MILLER: Okay.
CHAIRPERSON BERRY: You can finish the sentence.
MS. SYEED-MILLER: May I finish my sentence?
(Laughter.)
Okay. I recently received an e-mail from a group that will be working on Muslim Jewish dialogue in Los Angeles County. Some may think that this is precisely the wrong time to embark on such interreligious work. Rather, I think this is the most appropriate time to continue our grass-roots efforts to bring together all segments of society.
In the wake of this tragedy, we have a choice: to unite or to divide even further as a result of it.
Thank you.
CHAIRPERSON BERRY: Thank you very, very much.
Mr. Edgar, please.
MR. EDGAR: Good morning, Madam Chairperson and members of the Commission. My name is Timothy Edgar, and I am a legislative counsel for the American Civil Liberties Union.
The ACLU appreciates the opportunity to make a statement before you today on the government’s response to the attacks on September 11, 2001, and its impact on civil rights and civil liberties. My testimony will focus primarily on proposed anti-terrorism legislation and its impacts on the civil rights and civil liberties of immigrants. I will also briefly address the issue of secret searches.
Every new measure proposed by the government in response to the terrorist attacks must meet a basic test. It must provide the maximum effectiveness in the fight against terrorism while minimizing any adverse impact on civil rights and civil liberties.
In that spirit, the ACLU has welcomed new measures to increase airport security and also believes that many provisions of proposed anti-terrorism legislation will provide law enforcement with needed tools and are unobjectionable from a civil liberties standpoint. However, as a whole, proposed anti-terrorism legislation flunks the basic test of making us safer without sacrificing essential civil liberties.
Among the most troubling provisions are measures that would allow for detention of immigrants on the basis of suspicion and lawful political associations for a potentially indefinite period of time. Expand the ability of the government to conduct secret searches. Minimize judicial supervision of federal telephone and internet surveillance by law enforcement authorities.
Give the Attorney General the power, for the first time, to designate domestic groups as terrorist organizations, permitting their non-citizen members to be detained and deported without evidence of any involvement in terrorist activity. Grant the FBI broad access to sensitive business records about individuals without having to show evidence of a crime. And lead to large-scale investigations of American citizens for intelligence purposes.
We believe that the detention and removal provisions are the most troubling provisions in the legislation. As we explain, these provisions present three fundamental constitutional problems. First, they permit individuals to be imprisoned in INS facilities not on the basis of evidence but solely on the basis of an Attorney General certification of the kind of reasonable suspicion that ordinarily would permit no more than a brief stop-and-frisk encounter.
Second, these provisions still permit potentially indefinite detention of immigrants who are not terrorists, despite press reports that this problem has been fixed.
Third, the Senate bill contains provisions that permit immigrants to be punished for associational activity with groups our government later chooses to regard as terrorist organizations or terrorist fronts, without notice to the immigrant and without an effective defense for truly innocent associations.
Madam Chairperson, we believe that the recent sad history of INS proceedings on the basis of evidence not revealed to the defense, which as George Bush has recognized were directed almost exclusively against persons of Arab or Muslim background, dramatically illustrates the dangers of the even greater and—detention and deportation powers the Attorney General now seeks.
The Attorney General has broad detention authority under our immigration laws. Under current law, any non-citizen can be arrested and detained pending a decision on whether or not he should be deported. However, before the attacks on the World Trade Center and the Pentagon, regulations required the INS to file a notice to appear and warrant of arrest within 24 hours, which has now been extended to 48 hours, and an additional reasonable time in an emergency.
However, those who are not charged with being deportable as terrorists do have the opportunity to ask for relief at a hearing before an immigration judge will be granted if the alien poses no danger to property or persons and is likely to appear for a future proceeding. The purpose of the legislation is to eliminate that hearing for those that the Attorney General has certified.
The legislation uses the standard of reasonable grounds to believe that an immigrant poses a danger to national security. This standard is identical to the standard of proof by the Supreme Court for a stop-and-frisk encounter in the criminal context.
In addition, the proposed legislation permits any non-citizen who is in violation of immigration status to be detained for a potentially indefinite period of time if their country refuses to accept them. This is directly contrary to the Supreme Court’s most recent ruling on the subject of Zadvydas v. Davis, which says that allowing indefinite detention of immigrants not deported would pose a serious constitutional problem.
The Supreme Court did not allow the government to hold such immigrants, even those who the government said were dangerous and who had no right to remain in the United States, if their deportation was not likely in the reasonably foreseeable future.
While the Zadvydas court did not address the indefinite detention of persons ordered removed on terrorism grounds, it made clear in its analysis that preventive detention would not be allowed in the absence of strong procedural protections.
CHAIRPERSON BERRY: Mr. Edgar, you have one minute.
MR. EDGAR: And that proceedings must place the burden of proof on the government. It also said that indefinite detention would not be allowed broadly for aliens ordered removed for many and various reasons, including tourist visa violations, which would be permitted under the legislation.
Madam Chairperson, our country’s record in time of war in ensuring the civil rights of every person protected by our Constitution, including immigrants, is mixed. For example, during and after World War I, hysteria about subversive foreigners led to the notorious Palmer raids.
Those raids led to the detention of thousands of immigrants who had done nothing other than take seriously our country’s promise of political freedom by becoming active in labor unions and political organizations. Many were imprisoned and deported for their political beliefs.
Those excesses directly led to the founding of the Civil Liberties Bureau, later to become the American Civil Liberties Union. Establishment opinion was not with us then. The New York Times editorialized that good citizens willingly submit to infringements on civil liberties in wartime, dismissing the Civil Liberties Bureau as a little group of malcontents, troublesome folk, an unimportant and minute minority out of all proportion to their numbers.
The Washington Post applauded the Palmer raids, saying, “There is no time to waste on hairsplitting over infringement of liberty.”
Madam Chairperson, our country has, thankfully, come a long way since those dark days. You should not turn back, and your continued oversight can help ensure that we do not, even with the increased, dramatic, extraordinary powers the Attorney General is seeking.
CHAIRPERSON BERRY: Thank you.
Although you’re sitting there, Jim, you’re not next.
(Laughter.)
Charles Kamasaki is next. I don’t know how you guys did that. Mr. Kamasaki, please proceed.
MR. KAMASAKI: Thank you, Madam Chair. On behalf of the National Council, I thank you for the opportunity to be here today. In the interest of time, I’ll try and be even briefer than five minutes—famous last words, right?
Hispanic Americans are committed to supporting effective efforts to make all residents of this country safer, but we also caution against moving too quickly and acting on emotion rather than implementing well thought out and reasonable policies. With this in mind, I would like to put forward three general principles that ought to govern the debate over anti-terrorism policies.
First, new anti-terrorism policies must be effective and necessary and should be narrowly tailored to respond to real security threats. Second, these policies should be carefully considered so that they do not have unintended negative outcomes that adversely affect entire communities. Third, we believe that the events of September 11 should not prevent the nation from moving forward in due course on immigration and civil rights policies that remain in the national interest. And, Madam Chair, our written statement includes numerous examples of these.
If I may, what I would like to do is skip to some recommendations—
CHAIRPERSON BERRY: Sure.
MR. KAMASAKI:—and then briefly address some points Dr. Krikorian made.
CHAIRPERSON BERRY: All right. Thank you.
MR. KAMASAKI: As your opening statement noted, Madam Chair, the Commission on Civil Rights has a uniquely important role in ensuring the protection of basic civil rights particularly during a time of national crisis. As an independent agency whose members are not required to run for office, the Commission is uniquely qualified to serve as a watchdog, monitoring the activities of law enforcement and other federal and state agencies charged with protecting national security.
We believe, as Mr. Edgar just noted, that this role takes on added importance during emotionally charged and challenging periods when the potential for overzealous behavior is greatest. We believe this Commission can do much to prevent our country from doing things we will later regret, including many of the examples you and others have cited.
With this experience in mind, NCLR respectfully makes a number of recommendations, which I’ll summarize here. We ask, first, that as data become available over time, the Commission continue to hold hearings and issue reports on civil rights implications in the aftermath of the September 11 attacks. One good place to start, we believe, would be to examine the impact of the September 11 events on the civil rights of the Arab American community.
Second, we encourage the Commission to take immediate steps to prepare to examine the government’s response to the terrorist incidents. This may require the establishment of systems now to assure the future collection of relevant agency data.
Third, we solute you for establishing a hotline to report hate crimes, discrimination and other violations of civil rights, and urge you to work with others who are carrying out similar activities.
Fourth, NCLR is concerned about the paucity of legal representation for victims of hate crimes and other acts of discrimination and urge you to work with the bar and civil rights organizations, as well as private philanthropy to assure that anyone whose rights have been violated has meaningful access to legal counsel.
We also encourage you to urge President Bush and Attorney General Ashcroft to take proactive interim steps to address racial profiling. In the short term, this may involve working with the Administration to help shape guidelines for law enforcement, and eventually we believe the President and the Attorney General should reaffirm their public commitments to the eradication of racial profiling by declaring and enforcing a band on such profiling by all federal agencies.
Next, we encourage you to help dissuade the Department of Justice from pursuing proposed collaborations between the INS and local law enforcement agencies in conducting immigration law enforcement operations, and we cite a number of egregious past examples that have resulted in widespread violations of civil rights.
We also encourage you to consider ways to improve accountability in law enforcement and have some specific recommendations there. And, finally, we urge that the Commission should aggressively assert its prerogative to submit comments to federal agencies and other government bodies that are issuing regulations or proposing legislation related to immigration law enforcement to ensure that civil rights concerns are adequately addressed.
Briefly, let me address Dr. Krikorian’s suggestions regarding the absence of civil rights protections for persons who are foreign born or who are in the immigration process. I would note first that the Constitution says very clearly that its protections apply to all persons in the United States. So it seems to me that plain language ought to apply here.
I would note, second, that all of the relevant civil rights statutes do not make distinctions on the basis of alienage for a number of reasons. First, I would note, particularly from a Latino perspective, this is important because national origin or perceived nation origin is itself grounds frequently for discrimination. Thus, citizens who might be endangered by acts of discrimination, it seems to me, would lose protections if we were to follow Dr. Krikorian’s suggestions, because perpetrators of discrimination need merely claim that they thought someone was foreign and would have an automatic pretext for any discrimination that occurred.
CHAIRPERSON BERRY: You have a minute, Charles.
MR. KAMASAKI: Thank you. Second, we believe that the policy and legal rational that protects citizens for previous and ongoing acts of discrimination clearly apply to permanent, legal, lawful residents who have been in the country for a sufficient period of time to experience discrimination.
And, finally, I would note that it’s not terribly easy to make distinctions between foreign born or foreigners and citizens, particularly at a time when the demographics show we have a number of so-called mixed families or citizens and other members of—citizen children and other members of households who are likely to be adversely affected by discriminatory acts perpetrated against foreign-born members of those households.
CHAIRPERSON BERRY: Thank you very much, Mr. Kamasaki. Mr. Zogby, please, Dr. Zogby.
MR. ZOGBY: Thanks. I want to—I will have a statement, but Monday, and I will also have a list—
CHAIRPERSON BERRY: You don’t have to, but if you want to.
MR. ZOGBY: Also we’ll have a document that we are organizing—we had organized it chronologically as we’ve taken in matters of concern, but we are now organizing it by type of incident in weeding it out. This is not a new problem. The problem of hate crimes or crimes of bias or instances of bias against Arab Americans and Muslim Americans negative stereotypes have shaped the understanding of our fellow citizens about who we are and what we’re about.
In many several past crises we have experienced backlashes, even when Arabs themselves were not involved. The Iranian hostage crisis was one such instance where, for example, many of my community, Lebanese Americans who had nothing to do with Iran or with the hostage crisis found themselves attacked. The Gulf War was a time when I remember distinctly the FBI Director telling our community that they were a community, in quotes, “at risk.” We found that we were. Oklahoma City, in the immediate aftermath, within just two days, we reported 230 very serious incidents of backlash. When a passenger flight exploded off the coast of Long Island, again we had such a backlash, and now this.
In the current circumstance, I could describe all of the range of emotions that my community experienced, but let me just tell you that to have to shift immediately from shock and mourning to the fear of backlash was not a pleasant one. Almost within hours watching—while I was watching it, I got the first death threat. It was, “Jim, you towel-head, all you Arabs will die. We will slit your throat and kill your children.”
It affected me, and it affected my family. My daughter got harassing and threatening calls, a 19-year-old girl, at her college. My nephew, the very next day, overhead conversations in rooms on his floor whether it was safe to be rooming on the same floor with him, and his uncle was such and such, and the Zogbys are going to have trouble. My brother got two bomb threats at his home and business and had to shut down for two consecutive days.
We’ve had more than 300 reported to our Organization and the American Arab Anti-Discrimination Committee. We know that there are more than that. You, yourself, noted that you’ve received over 500. New York Times reported just yesterday that New York City police alone have received 120 such complaints. And many go unreported.
And I want to make a comment here and a recommendation, if I can. Many immigrants, in particular, fear law enforcement. Many of my generation simply accept it as par for the course. I don’t know if I reported the hate—I did, actually, call the FBI, but in the past when my office was fire bombed in 1980, I never reported it. When I got death threats in the ‘80s, I never reported them. Many of my generation simply view it as the price you pay for being an Arab American and having feelings about the Middle East. And so many do not go reported.
The main concern I have here is with recent immigrants. There is a fear, for example, if the FBI is investigating hate crimes and Arab Americans, recent immigrants in particular, fear the FBI because of the sweep that is taking place and they don’t want to get caught up in the investigation because they may in some instances be out of status or be concerned about their status or they simply may fear law enforcement. Look, Arab Americans who come from countries in the Middle East where when the Mujabarrat, their secret services, knock on your door you’re in trouble do not necessarily respond favorably.
And the past history of the FBI’s relationship with our community has not always been the kind that encourages people to go to them and report a problem. And, therefore, I think that there is a need for not just improved system for hate crime reporting but for who mediates between victim communities and law enforcement so that we can have a better—more confidence in victim communities that they can report and be safe.
The problems are in fact serious. Our polling shows, actually, probably more widespread than the numbers indicate. We just completed a poll of Arab Americans, both Christian and Muslim. We found that 32 percent report having experienced some form of discrimination, that 20 percent report specific instances of discrimination based on ethnicity since September 11, 49 percent in the age group 18 to 29, 45 percent, therefore, of students and 37 percent of Arab Americans who are of the Muslim faith. That tracks pretty much with the anecdotal evidence we have.
The most serious problems that are reported to us right now involve students in schools, which is why Community Relations Service that the Justice Department has worked out with us a program to get information to the schools and to be able to do better education in the schools about who Arab Americans and Muslims are. With Ramadan shortly coming up on us, I believe that we may have serious problems as the war effort continues. We’ve always had increased problems during Ramadan, and I fear that the problem may become more serious at that point.
The types of problems that we’re getting fall into about five or so categories. First are assaults. There have been seven deaths reported which may be resulting from hate crimes, 75 other physical assaults, either shooting, beatings or stabbings that have been reported to us. Vandalism to property, special targets, of course, include mosques but also Arab-owned businesses that have Arab signage out front. We have about 80 instances of those across the country. Threats and harassment, including those I’ve mentioned in my own family, but those kinds of death threats or personal threats.
But, frankly, I believe that in this area in particular the numbers must be much higher. I mean just simply getting into a taxi cab in Washington, if it’s a Sikh or a Pakistani or an Arab and asking if he’s been threatened either by passengers or as they leave the cab or cars by driving by, the numbers appear to be—I could probably fill a couple of dozen just with individuals I’ve asked about those kinds of problems.
And we have had a few job-related, not as many as I might have feared, but six have been reported to us where people have been fired and been told the specific reason for their being fired was that their fellow employees didn’t want an Arab in the workplace.
We have had another area that is very troubling to me, and this is this issue of airplane profiling. We’ve had 11 specific instances reported to us involving over 20 passengers where people are either excluded—or taken off a plane or not allowed to board a plane. And in every instance they’ve been cooperative.
Now, we’ve been told that what they’ve said is that the pilot would come and say that FAA provisions allow them to remove, but I’ve looked at the law on this, and it does not allow for that unless the passenger performs some action that makes passengers uncomfortable. Dark guys are not allowed to be removed from the plane because they’re the dark guys on the plane. And, frankly, if you do something that makes people feel that you are unsafe, other than just happened to have an Arab face, the passengers can be asked to leave, not simply because they happen to be Arab or speak—speaking Arabic is not, at this point in time yet, a crime.
CHAIRPERSON BERRY: Jim, you’ve got a minute.
MR. ZOGBY: We have another area of concern, and that’s with the detentions and roundups. It appears the FBI cast a net that was too wide. They’ve acknowledged that to us, but they have too mottos at the FBI. One is the FBI always gets their man; the other one is that they never apologize publicly. The problem with this roundup is that it’s created fear and a lack of reporting of hate crimes, which is why I want to mention it right now. I don’t want to see the FBI, I don’t think anyone wants to see the FBI doing the INS cleanup job, which is what seems to have been the case, and we now know some news agencies are actually trying to investigate those 600 reported detentions to find out exactly what the basis of them are. I think we’ll all learn something in the future. In most cases, the reports that have come to us indicate that family members can’t find the person who’s been detained or lawyers can’t find the person. The person’s been moved, and so we don’t know the exact status of the individuals, but there’s a matter of concern here.
I want to close on a positive note, and that is to say that the problem is serious, but I believe it may have been more serious had it not been that the President and the Administration and officials in the country set such a positive tone. The President worked extensively in this area, as has the Attorney General, the Secretary of State, and most recently Secretary Mineta who has been extraordinary in the statements that he’s been making about this behavior on airlines.
The Senate and the House have passed a concurrent resolution unanimously condemning these kinds of hate crimes and violations of civil liberties and have made individual meetings with our communities, both here in Washington and around the country. Civil Rights Division of Justice Department, Ralph Boyd, has convened several meetings and has set up a program for us to meet with FBI and meet with Community Relations Service and other relevant agencies at the Department.
And the FBI has made a significant effort. We have 130 cases that they tell us are actively being investigated and to indictments. We have never had an indictment before of anyone who’s committed a hate crime against Arab Americans or Muslim Americans. We now have two, and that is very important to us. They are promising many more in the weeks to come.
Efforts are being made. I know that more efforts need to be made. I fear if we have another attack that we may still have more problems, that this will come in ebbs and flows. But right now there are some specific things that can be done, one regarding airline behavior and another regarding the relationship between FBI, INS and victims of hate crimes and how we can improve the reporting system.
CHAIRPERSON BERRY: Okay, Jim. Thank you very much. Now, Commissioners, if you have questions, I will limit each Commissioner to one question only. And then if there’s time after that, then we can have another question. But rather than one person take up the entire time, then we will have one question.
Yes, Commissioner Thernstrom?
COMMISSIONER THERNSTROM: I have a question for anybody who wants to answer it. Nobody around this table, and I think we speak for the overwhelming majority of Americans, would find death threats, assaults, vandalism, harassment, other serious problems, including discrimination, acceptable, although your stories cannot be ignored. But we do face a danger that does raise questions about traditional legal standards. The problem is unprecedented and clearly we need to rethink some of these civil liberties, civil rights questions.
And let me just—I’m curious, let me give you a couple of hypotheticals. Let’s say Pakistani chemistry major, University of Chicago, downloaded two articles about how terrorists might use small planes to start an anthrax epidemic, shown and intense but unexplained interest in crop dusters. What should the government do? Or, hypothetical again, Egyptian tourist arrested on a Boston-bound Amtrak train after the FBI has found in his luggage, through a search of doubtful legality, $8,000 cash, an Islamic Jihad pamphlet and two box cutters. Last hypothetical, Iraqi refugee who has been photographed at a Beirut restaurant frequented by followers of Osama bin Laden, recently toured the Capitol three times during a one-week trip to Washington.
I mean under long-established constitutional law, the government would have to release all of these men after at most a few hours of questioning and investigation unless they had enough evidence to charge them with some kind of crime or deportable offense or could show them to be material witnesses likely to have evidence of crimes and to disappear if they were released. I mean, clearly, this long-established constitutional law has to be, in some respects, rethought in this context, and I wondered if you could respond to that.
MR. EDGAR: Well, I’d like to try to respond to that. I don’t think that it’s a good idea to rethink our belief that people who we have reason to suspect may be involved in crimes can be detained for very long periods of time without any evidence of criminal wrongdoing. And the reason I would use is I would say instead of your hypothetical, I would use a real case, the case of Dr. al Hamsi in Texas, who government officials believed may have been involved in the Osama bin Laden organization because of the number of suspicious circumstances, not unlike the ones you’ve described in your hypotheticals. And he was detained by INS and held for almost two weeks without any immigration charges at all, as he was a local resident. And he was able to explain each of the circumstances to the satisfaction of the officials who were holding him.
And I would say that that case illustrates two things. It illustrates—the first thing is that we don’t need constitutional protections if every government official was as willing to admit a mistake as those who decided to release Dr. al Hamsi. That’s obviously true. They realized that they had not gotten a terrorist and that he’d explained to their satisfaction and they released him.
But we also know that the liberty that we depend on cannot depend on the good faith of those who have the power to put us in jail, that if the only protection for someone who has circumstances which might lead us to suspect them is that we can try to explain those circumstances to the satisfaction of government officials, that that just puts too much power into the hands of those who can imprison us. It allows them to put us in jail, and if we are not a genial doctor from Texas and if we are not someone who has political views that are acceptable to the majority, we could expect such a person to be imprisoned for potentially first or even indefinitely. And I don’t think that that’s an acceptable outcome, and I don’t think that September 11 changed that.
COMMISSIONER THERNSTROM: Well, wait a minute. The law, as just passed, would not allow indefinite, up to a year.
CHAIRPERSON BERRY: Commissioner Thernstrom, I asked that each Commissioner ask one question.
COMMISSIONER THERNSTROM: Okay, but this was just a clarification, Madam Chair. I’m sorry.
CHAIRPERSON BERRY: Okay. That’s all right. Others may need to ask a question. Let’s see, who else is a lawyer up there? Anybody? If no one is, then I guess the lawyers have to ask the questions. Yes, Vice Chair?
VICE CHAIRPERSON REYNOSO: Well, I have a statement and a question. The statement is that I heard an interview of the doctor, and he said that one of the circumstances that made them suspicious was that he was—he had taken a plane ride with three other individuals who were of Arab descent at the same time. It turned out that the other individuals were his wife and children.
(Laughter.)
So my question has to do with profiling, and it’s directed to Mr. Krikorian. It’s true, of course, that the U.S. Supreme Court has said that with respect to activity with foreigners outside of this country the Constitution doesn’t apply. So if an official says to another person, “I’m not going to admit you to the U.S. I’m not going to give you any visitor visa because you’re black,” the U.S. Supreme Court has said that. It’s up to the government; we can’t do anything about it.
But isn’t it true that in this—that for the person that’s in this country that they in fact do have the protections of the Constitution? So if a person did say to, certainly, a resident alien but even a visitor, “You can’t come into this hotel because you’re black or because you’re Arab,” that the Constitution and the laws do protect that person. So don’t we have to make that distinction?
MR. KRIKORIAN: The laws do in fact protect non-citizens in the United States, whether it’s the criminal law they may file, civil suits, buy and sell property. My point is not, though, related to punishment. Deportation is not punishment. Deportation is withdrawing the permission to remain as a guest in our home, and until you embrace America by becoming one of us, and we make that extraordinarily easy compared to everywhere else in the world, but until you do that you are here on our terms, not on yours.
And in fact we do not do this now, but we may well, Congress ought to have the authority to deport non-citizens based on political opinion. The Palmer raids may well have been a bad idea, but they ought not to be seen as unconstitutional.
VICE CHAIRPERSON REYNOSO: Madam Chair, just—
CHAIRPERSON BERRY: Is it a follow up?
(Laughter.)
VICE CHAIRPERSON REYNOSO: No. It’s actually a statement.
CHAIRPERSON BERRY: Oh, a statement.
VICE CHAIRPERSON REYNOSO: The statement is that many federal courts up here disagree with you. I was just talking to a federal judge who implemented local rules that say when somebody comes before us to plead guilty on a crime, we want to know what the effects are on immigration, because we in fact do consider it punishment. It’s far more serious very often for that person, the immigration consequences, than actually a criminal conviction. So I think you have a lot of judges disagreeing with you. That’s the statement.
CHAIRPERSON BERRY: Does anyone else—
MR. EDGAR: I just wanted to make a comment on that briefly.
CHAIRPERSON BERRY: Yes.
MR. EDGAR: Which is that it is true that deportation is not criminal punishment, but the Supreme Court has said that it’s very serious. It’s a deprivation of their interest, and it involves taking away all made life worth living. Therefore, it does require the protections of the due process clause, and I think that’s important. And, also, I would also remark that the federal courts, at least one federal court, did rule the Palmer raids unconstitutional back then when our understanding of the Constitution was much more restricted than it is today.
CHAIRPERSON BERRY: Commissioner Lee?
COMMISSIONER LEE: Thank you. This question is to anyone on the panel. I’d like to get your perspective, what do you think about U.S. immigration policies post-September 11, specifically family-based immigration, what happened to those people who have been waiting in line for many, many years? Some of them come from countries that are not friendly to us.
Second thing is employment-based immigration. Many folks come from countries, South Asia and other areas. The naturalization process, what happened to those people waiting in line to become citizens who are from Arab or Middle Eastern, South Asian countries? And, finally, asylum programs. Since I only have one question.
(Laughter.)
CHAIRPERSON BERRY: Yes. I think that’s a very good question to ask the government people. Does anyone have a—
MR. KAMASAKI: This is something briefly addressed in our statement, Madam Chair. The President and Mayor Guiliani and others have urged us, over time, to resume our normal lives, and we believe that the government, over time and in due course, ought to be looking at broad policy questions like increasing illegal immigration, like improving the naturalization process, like enacting legalization programs. So that’s sort of part of the answer.
The second part of the answer, it seems to me, goes back to one of the principles I identified. With respect to visitors coming from abroad, it is natural now that there will be both increased scrutiny and hopefully better information sharing and other kinds of measures needed to deter or identify and prevent potential terrorists from entering the country.
The kinds of unintended consequences that are occurring now, for example, is that if you are a Salvadoran national who is part of the so-called NCARA class, it is virtually impossible for you to travel. And the reason is is that the INS has suspended what they call advanced parole. So anybody, essentially, in immigration proceedings, here legally, lawfully and under the immigration work authorization, is not able to travel. We have heard reports that it is terribly difficult now for people to get timely visitors visas for emergencies, things like funerals of family members in the United States, people trying to come in from abroad.
I guess my point being I think it’s extraordinarily difficult to make any kind of connection between imposing restrictions on those processes affecting the kind of people I’m talking about and any potential threat of terrorism. And that’s why I say I think we ought to be careful about sort of broad brush let’s tighten up the visa process. Well, no, let’s tighten up the visa process in a way that’s going to deter terrorist and not affect commerce, family reunification and so forth.
MR. ZOGBY: The individuals who came here to do this deed did not come to become part of our country or part of our civil society. They didn’t join our organizations, they didn’t become part of our community. They actually fit a very specific kind of profile. To not recognize that profile and to kind of extend it beyond that and make simply the profile Middle Easterners or Muslims between the age of 20 and 40 does real damage to entire communities, damage to families, damage to commerce and damage to the traditions of our country. And I think that that’s the direction that some are moving in, and it would be a big mistake.
There is a specific kind of person that we’re looking for here. You’re not looking for my cousin Hisham who came from Lebanon and is trying to get an MBA here in Syracuse, New York and is afraid that he’s not going to be able to get his visa renewed because he comes from Lebanon, one, and, two, because he fits the age profile, et cetera. That is something we have to be careful of here. And I think that legislation that’s being proposed moves, in some cases, in a very wrong direction. It will shut down the relationship between the United States and these critical parts of the world and not help enhance the relationship at what I believe is a very important time in our history.
CHAIRPERSON BERRY: Was there another question? Did you have a question? Go right ahead.
COMMISSIONER THERNSTROM: And I would just like to know if it was possible, Madam Chair, to know what the profile is?
CHAIRPERSON BERRY: Commissioner Thernstrom, would you please let your colleagues who have questions have a shot, and then at the end, if there’s time, then you can—
MR. ZOGBY: Well, I’ll tell you, Commissioner, there was a member of Congress who was of Arab descent who was kept off the plane because FAA—they said FAA said, “We can’t do it until we do a complete check because of who you are.”
COMMISSIONER THERNSTROM: No, I understand that.
MR. ZOGBY: Well, no, you don’t understand it, because the problem here is that the profile that’s being used in too many instances is Arab Middle Eastern looking, between 20 and 40. He was flattered because he’s actually over 40.
(Laughter.)
But I think the point here is that after Secretary Mineta last night spoke eloquently about this issue, eloquently about the fact that when you do this to people you are in fact, in a small way, doing what happened to his entire community 50 years ago.
I was on my way out and one of the executives of the corporation that was sponsoring the event said, “Well, I heard what he said about profiling, but, you know, if a dog bites you five times and you see another wild dog coming your way,” I grabbed him, and I said, “I’m not a wild dog, and I’ve been profiled, and frankly it is humiliating to be treated in this manner.”
But profile and the concept of profiling and the Justice Department’s provision that allows profiling in some instances does not say race alone. It says race or ethnicity and a whole bunch of other factors. It’s 20 to 40 fellow of a particular country, with a three-inch scar, who went in this place and did this thing and has that occupation. You do this at the end of an investigation. You don’t start casting—it’s bad law enforcement, it creates fear, it wastes a whole lot of people’s time in law enforcement, and it victimizes a community of people who simply happen to share the ethnicity or race of the target group.
CHAIRPERSON BERRY: We’ll ask another question and then somebody can tag onto that, because—
COMMISSIONER THERNSTROM: Madam Chair, I’m particularly sorry I asked it since he misunderstood the question.
CHAIRPERSON BERRY: Ten seconds that black people have been putting up with this for years, and I know, and complaining about it. Yes, Commissioner Edley?
COMMISSIONER EDLEY: I’d be interested if any of you, particularly Charles, Jim and Tim, have suggestions about things that this Commission might try to do—might usefully do in connection with, I think, the first two things that Charles mentioned: The impact on Arab Americans and Muslim Americans post-9-11. Is there any useful role that we could play in trying to understand and characterize that for the public or basically do you think that that is a task well in hand between NGOs, CRS, ACLU, et cetera, and there being little value added for us?
And the second is this issue of monitoring oversight of the federal response where, if I can characterize it, I have been, myself, very impressed with much that the President has done, both the content and the effect. And that the question, of course, is whether what actually happens by law enforcement officials, by investigators and so forth is consistently detailed with those broad pronouncements? But, frankly, I am at a loss to understand what it is that we could do institutionally to effectively monitor whether or not there’s a shortfall, a gap, between execution and aspiration.
MR. ZOGBY: I would just make two recommendations. One is that you have 51 advisory panels in all of the states and the District. And I think that to translate what the President and what the Attorney General and what the Director of the FBI have said, quite eloquently, on the national level down to the local level, it would be useful for the local panels to convene situations such as this and actually either visit affected communities or in some way highlight good practices, because there have been many outstanding good practices during this time that I think deserve to have a light shone on them in several communities around the country. So I would suggest that there is that role that the Commission can undertake.
And the second would be you are receiving reports of hate crimes, and therefore have a role maybe in recommending how those hate crimes actually then become investigated. Because as I said, while the FBI Director and the community relations side of the FBI have been great and we’ve actually brought them out to the local community and we’ve created meeting sessions and they’ve been far more responsive than they ever have been before, there still is a fear. And many people who have endured this problem have been afraid to report.
Somehow this question needs to be investigated of how we move from—how we create confidence in reporting crime and then move from once the crime is reported to the investigation of the crime so that people will feel comfortable doing it. I don’t exactly know. I mean there’s been a recommendation that U.S. attorneys offices be involved, that Civil Rights Division at Justice somehow be involved, that the matter be left with local law enforcement and only referred to the U.S. attorney, that maybe the FBI be kept out or that the FBI set up a special Hate Crimes Unit that be charged and that the public know is specifically only to be involved in hate crime investigation and is not then going to in any way become involved in other types of investigations.
I know people who’ve told me that they have reported a hate crime and when they’ve gone to the FBI and reported it, they said that they felt quite distinctly after an hour or so of conversation that they were being plied for knowledge about the community and not about the crime that was committed to them in which they lost confidence in continuing the conversation. I think that somehow I understand that the Civil Rights Division of Justice has sent the FBI a note that says, “Investigate the hate crime and leave the other stuff alone. Create confidence in the victim community.” I think that that can be enforced by this Commission.
CHAIRPERSON BERRY: Could I please intervene to say that I have been reminded that people have schedules who came here to brief us and that we are behind, and that they would like us to move on so that they can keep their commitment to be here and not leave. So if I can be indulged by the Commissioners, could we simply—if you have questions—we got some recommendations from Mr. Kamasaki that were very good, and we appreciate them and others. And if you have anything else you’d like to submit, do that in answer to Edley’s question, will you indulge me?
COMMISSIONER EDLEY: Of course.
CHAIRPERSON BERRY: All right.
COMMISSIONER EDLEY: Are we going to get written statements from—
CHAIRPERSON BERRY: From those who can submit them. This is not a hearing, so we haven’t ordered anybody to do anything. People have come voluntarily. If you have any questions that you’d like to submit in writing, you may do that, and I’m sure—would you guys be responsive?
PARTICIPANT: Absolutely.
CHAIRPERSON BERRY: Yes. We want to thank you very much for coming. Thank you.
COMMISSIONER THERNSTROM: Can I just make one statement to correct the record—perhaps a misunderstanding in the record?
CHAIRPERSON BERRY: Please, please, please.
COMMISSIONER THERNSTROM: I just want to say if there was any impression on Dr. Zogby’s part that I was signing on to any kind of profiling, that was gravely mistaken. I would not—my question was somewhat different, quite different than the one you responded to. But in any case, I just wanted to make it very clear I am very opposed to profiling. Thank you.
CHAIRPERSON BERRY: I want to thank the panel very much for coming. We very much appreciate it. And I wanted to ask the next panel to come forward: Ms. Butterfield, Mr. Harris, Ms. Massimino and Ms. Narasaki, please.
END OF PANEL ONE