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. Thank you very much for coming. We very much appreciate it. We’re going to start and people will settle down as we go along.
The panelists are Ms. Jeanne Butterfield, executive director of the American Immigration Lawyers Association. She is a law graduate of Northeastern and is a member of the Massachusetts bar. She is a lead spokesperson on immigration policy issues for the American Immigration Lawyers Association. Thank you for coming.
Mr. David Harris is a professor of law and values at the University of Toledo Collect of Law. He has a chair. He’s called the Balk Professor of Law and Values. And I understand that, because people often write letters to me saying, “You’re the Siegel Professor, so what is the subject of Siegel? We’ve never heard of that study before.”
(Laughter.)
So I won’t ask you what the field of Balk is.
MR. HARRIS: Nothing to do with baseball.
CHAIRPERSON BERRY: Ms. Elisa Massimino is the director of the Lawyers Committee for Human Rights Washington Office. She’s a B.A. graduate of Trinity and MA from Johns Hopkins and has a law degree from my law school, the University of Michigan. Hail to the victors valiant. She’s a former legal director of the Lawyers Committee for Human Rights.
Karen Narasaki is the executive director of the National Asian Pacific American Legal Consortium. She’s magna cum laude graduate of Yale and UCLA School of Law, and she is also chairperson of the Compliance Enforcement Committee of the Leadership Conference on Civil Rights and is on the Executive Committee. And she also before used to be a Washington representative for JACL, the Japanese American Citizens League. Welcome to you.
I would like to start, for reasons I don’t understand but the staff told me to, with Professor Harris, for some reason. I don’t know what the reason is. Something about profiling or something.
MR. HARRIS: I hope I can justify their reason. Thank you very much, Madam Chair, members of the Commission. Thank you for having me here, and I do thank you for your hearing on these matters, your briefing and your interest in the subject.
I’ve heard any number of times Since September 11 that the world has changed. I know we’ve heard that over and over on television, the world is different now, and I think there’s a lot of truth in that. One aspect in which there has been a major shift in public discussion involves racial profiling. I’ve been studying racial profiling for six or seven years. My book will be out in February on the subject.
And if you needed any better indication of the change in the public discussion of the issue, there is today’s Wall Street Journal on the front page which reads in a small article, “Racial profiling is no longer the issue it was before September 11,” detailing a number of things that have happened, including the political advertisements of Representative Cooksey, who’s the fellow who made the unfortunate comments in the wake of September 11. He is now running a campaign commercial for his Senate campaign in which he says—in which he comes out and says profiling is the right thing to do. He’s using it as a political issue and says that the reaction has been very favorable to him. So if you needed a better indication, I don’t know what it would be.
I think that the issue has been changed and recast, but there is still much we can learn from our experiences and our learning before September 11 that should inform the public discussion on this issue, that should tell us that there are reasons, strong reasons to hesitate to use any profile or profiling device, a major component of which is Middle Eastern or Arab or Muslim appearance.
All of our American experiences of the 20th century, when our nation has gotten into national security crises, would caution us, as has already been raised, the internment of Japanese citizens and non-citizens, the Palmer raids and the McCarthy era and even the secret evidence controversies of the last few years. Beyond that, though, we have learned things in the last couple of years that I think can be of assistance to us as our country decides what kind of tact to take.
I’m a law professor. Had I stood up on September 10 in my classroom and tried to come up with the single most difficult hypothetical to justify profiling, I couldn’t have come up with a better one than the events of September 11. As other analysts have already said, catastrophic loss of life and seemingly, we don’t know for sure, but according to what the government tell us, everybody involved was from one particular set of groups. It’s got to be the strongest case one could imagine.
Yet I think there are reasons to stop, think carefully and hesitate and real reasons to wonder whether any profile in which Middle Eastern or other racial or ethnic appearance plays a role would be productive at all. Just to in the briefest possible way review what we knew about profiling before September 11, a lot of data had been gathered over the past two to three years and analyzed. Much of this is at the heart of my book, I won’t bore you with it.
The major insight that we now have is that, number one, profiling was happening. It was not the imagination of people of color. The data showed it across the board. Number two, and perhaps even more importantly, it doesn’t work as a law enforcement tactic. That’s the justification put forth for profiling by many people, not just law enforcement but members of the public. Well, don’t police officers just have to concentrate on African Americans and Latinos because those are who the bad guys are? Look who gets arrested, and look who’s in jail.
Well, we’ve been able to measure it—and I’m glad to get into this in further detail in response to questions if you like—we find that it does not work. The success rates of stops and searches of cars, of pedestrians, of people going through Customs, the success rates when profiling is used on African Americans and Latinos are lower than the success rates of searches and stops on whites who are not profiled. They’re not the same success rates, they’re not the—what you would predict, if that position makes sense. You’d predict a higher success rates. Instead it’s across the board lower—different data, different context, different law enforcement agencies. And all across the success rate is not as good. It’s not good law enforcement, as Mr. Zogby said, and the data show that.
Now, here are the things that I think, very briefly, we can learn for our present situation and the reasons that I think we should really hesitate to get into—
CHAIRPERSON BERRY: Time in 30 seconds.
MR. HARRIS: Thirty seconds. Number one, it will dilute our enforcement efforts. We will spread our enforcement resources, which, after all, are finite, over many more people, most of whom we would not be interested in at all but for their appearance.
Number two, it will take our attention off of the twin pillars of any law enforcement and that is observation of suspicious behavior and gathering of intelligence. It’s too easy to regard people who look different as strange and therefore threatening. That may be how the human mind works, but it’s not how law enforcement should work.
And number three, it will damage our ability to gather any intelligence from the communities affected. Because just like African Americans and Latinos were in the so-called war on drugs, those same people, if we treat them all like suspects, they will be alienated from our efforts and that is an asset we simply, at this juncture, cannot afford to lose.
So it moves us away from what we should be doing, which is observing behavior—what is suspicious in these actions—and towards a sort of set of surface details. And while nobody can say for sure that this would not in any case, that you couldn’t produce results with it, I’d say there are reasons to hesitate, to be careful and not to go down the path that we went before with this crisis.
CHAIRPERSON BERRY: Okay. Thank you very much. Ms. Butterfield, please.
MS. BUTTERFIELD: Yes, Madam Chairman. Thank you very much for having me here today, and I think my principal task is to bring you up to date and outline a bit more detail about the pending legislation and some of the activities of the Justice Department and the INS in the wake of the FBI investigation.
I had some materials I think have been handed out—a comparison chart, so it can give you as much detail as you care to delve into, and I’m just going to hit on the high points or the low points, as they may be.
I think, first, it’s important to note that we’ve come a long way in the last month from where the Administration started with its request and its legislative proposal for the sweeping kinds of powers that you heard about in the previous panel. The Administration basically put a proposal on the table a month ago that would have allowed them to not only detain but deport people based on mere suspicion, without having to present any evidence, without giving the person the opportunity for any hearing whatsoever—administrative deportation of suspected terrorists. And the Administration asked for that extraordinary power along with an explicit prohibition on any judicial review of those actions.
It also put forward an expanded definition of “terrorist activity” or “terrorism” in the immigration law that would have broadened the grounds of inadmissibility and deportability to sweep up within its scope purely innocent, speech association membership fundraising for the purely humanitarian projects of a later designated or suspected terrorist organization.
I’m happy to report that on all of those fronts we’ve made significant improvements in the pending legislation over the last month. And I think that due to the work of many in Congress who are concerned about maintaining that very important balance between our legitimate security and law enforcement needs and our constitutional freedoms and civil liberties, which are so precious, that they’ve tried to make that within this expansion of power, which still exists in the legislation, there are some checks and balances to try to prevent any potential abuse. So I think we’ve moved a great distance.
Three specific examples. We’ve eliminated from the legislation the power to deport without any hearing whatsoever. That’s just not in there anymore. On the detention—
VICE CHAIRPERSON REYNOSO: I’m sorry, say that again.
CHAIRPERSON BERRY: On both House and Senate?
MS. BUTTERFIELD: Yes. There’s no provision now that would allow the government to deport someone administratively without any hearing, just based on suspicion of terrorist activity. The detention provision was strengthened with some checks and balances where the government cannot detain someone longer than seven days without filing actual immigration charges against them, number one.
Number two, the Attorney General is required to present reasonable grounds to believe that the person is encompassed in the terrorist definition in order to exercise the mandatory detention. And while that standard may not be what we would have liked, it’s greater than where we started a month ago.
And, thirdly, and I think most importantly, habeas review was preserved even of the substance of the Attorney General’s certification decision to detain a suspected terrorist. So there is preserved there a very fundamental protection of a court review.
The terrorist definition is something that it’s very difficult, as you can imagine, to talk about on Capitol Hill right now. Who wants to stand up and say, “We shouldn’t expand the definition of what constitutes terrorist activity,” but I think that remains a point of concern, because if you read the language in the pending House bill, the language extends so far as to say in one of its sections that a terrorist activity is the use of any object with the intent to harm a person. Well, that kind of encompasses anything one might imagine, and I think that demonstrates and illustrates the potential for abuse here. Of course nobody expects John Ashcroft to be rounding people up and detaining them based on throwing a rock at another person, but if we don’t intent that, then I don’t think our laws should state that. And that remains a point of concern.
On the material support issue, which the previous panel touched on, we did manage to scale back and protect innocent support and association but only as to groups that are not yet designated officially on the Secretary of State’s list of terrorist organizations. And as the previous panel, my colleague Tim Edgar stated, one of the versions of the pending legislation would give the Secretary of State extraordinary new power to designate groups merely upon publication in the Federal Register and without the attached opportunity to challenge that designation that exists in the current Section 219 of the immigration law.
CHAIRPERSON BERRY: Thirty seconds, Mr. Butterfield.
MS. BUTTERFIELD: Great. The legislation’s pending right now. I can tell you about the procedural status if you care to hear that in questions.
The final point I want to make and urge your action and attention to is the situation of detention right now of those swept up in the FBI investigation. Ashcroft reports that there are some 148 persons being detained currently on immigration violations, and they are in this kind of never-never land where the rights that attach in the criminal justice system, to counsel, to probable cause, all of those things that are so familiar to us, do not attach.
And in this situation they are being held without being charged yet, in many cases. In some cases, they have appeared for bond hearings, some of these people, and Immigration judges have actually set bond. And when the family has showed up to post the bond, the INS has refused to release the person. In other cases, the bond that was set has been rescinded, and the person has been transferred somewhere else in the country, and the attorney can’t find out where they are.
So we have a huge concern here that in this investigation the use of immigration charges allows the government to detain people without really guaranteeing that they’re being allowed to contact counsel, that they’re being given access to representation that they might need and that within a timely manner the charges are being presented to them so they have the opportunity to defend. And I think that your Commission’s watchdog oversight on that question and demand of the government that they be more forthcoming with information about these cases and individuals and procedures that can provide them some modicum of due process would be very welcome indeed.
CHAIRPERSON BERRY: Okay.
MS. BUTTERFIELD: Thank you.
CHAIRPERSON BERRY: Thank you very much. Ms. Massimino, please.
MS. MASSIMINO: Yes, thank you. And thank you again for convening this hearing and for the opportunity for the Lawyers Committee to share its views on this subject of such great importance, not only to all of our organizations but to the country.
The Lawyers Committee, as many of you may know, has for 20 years worked on a range of human rights issues, both internationally and here in the United States, including in many countries whose justice systems have been perverted by their response to terrorism: Northern Ireland, Turkey, to name only two examples. We have a particular focus on promoting international justice, democratic and accountable police practices, protecting the rights of workers and the protection of refugees, which is the subject on which I’ve been asked to speak by you today.
We have 20 years of experience on this issue in particular, and this is hands-on experience through our pro bono asylum representation project through which we represent more than 900 indigent refugees. Today, as we convene this discussion about the boundaries of justice in the wake of September 11, we need to recognize that those boundaries were already profoundly affected five years ago at a time after the Oklahoma City bombing and the first attack on the World Trade Center when anti-immigrant sentiment in this country ran very high.
Much of the Lawyers Committee’s work over the last five years has been—on refugee protection has been focused on addressing the impact of those sweeping changes that were made to the ‘96 law in asylum procedure—expedited removal, the new summary deportation power granted to immigration inspectors, expanded mandatory detention authority, even for those that the government recognized as having credible claim to protection, and an arbitrary one-year filing deadline under which refugees who fear persecution in their home countries have been barred from receiving asylum because they didn’t meet the deadline.
My organization has documented the real-life impact of these provisions on refugees in a series of reports, including one entitled, “Refugees Behind Bars,” which deals with the effect of detention and an arbitrary exercise of the detention authority under the ‘96 law, and a report called, “Is This America?” of which you have the executive summary in front of you. The report’s title is based on a real-life incident in which under the expedited removal authority a young Jamaican student with a valid student visa was told by an INS airport inspector, “You may be standing in JFK Airport, but until I say you’re in, this is not America.” That was in response to his request if he could call a lawyer.
In response to these and other incidents, the Senate convened a hearing in May of this year at which it heard from legal experts, religious leaders and from refugees themselves about the well-documented abuses, mistaken return of refugees, lengthy detention and abusive treatment that have proliferated under the 1996 law. Following that hearing, six weeks before September 11, Senators Leahy, Brownback, Kennedy, Collins and a number of others introduced the Refugee Protection Act, S. 1310, that would address many of these problems. The need to recommit to that effort is greater now than ever before. We’re now looking at S. 1510, 200 bills later and seemingly a world later, that would still leave open some serious risk that people would be detained for long periods of time without adequate access to the courts.
Since September 11, my own organization has noticed some distressing developments in our own work. Our volunteer lawyers—some of our volunteer lawyers were turned away from a detention facility in New York. One of them had an Arab-sounding name, a Muslim-sounding name. Another appeared to be of South Asian background. They were told—they went to see their clients. They work for a big law firm in New York, and they were told by people at the detention facility that they not only couldn’t get in to see their clients that day, but they ought to expect to be stopped on the street and questioned—they, themselves, not their clients. And an Immigration judge has lectured some of our volunteer lawyers about the need not only to document that their client is eligible for refugee protection, having suffered persecution, but also to prove that they’re not a terrorist.
So the importance of getting this right, I think, is demonstrated best by the experience of our clients, and I just want to leave you with this story. A young woman from Afghanistan who was a medical student until the Taliban ordered all women out of the schools, she and her sister also ran a school for young girls and that particularly enraged the Taliban authorities. They arrested her, they beat her up, they threatened her with death, and she fled here, as you might expect, without official travel documents from the Taliban government, looking for help and protection. When she got here she was interrogated at the airport, shackled to a bench, told to remove her clothes, put in a prison uniform and fainted because she was so shocked by the treatment that she received here. She stayed in jail for three months. When did this happen? October, not of this year but three years ago. I just wonder what would happen to her today if she came here. Thank you.
CHAIRPERSON BERRY: Thank you very much. Ms. Narasaki?
MS. NARASAKI: Thank you, Chair. On behalf of the National Asian Pacific American Legal Consortium, I also join in thanking the Commission for holding this important hearing. I’d like to try to, as quickly as I can, focus on the challenges that faced us before September 11, then talk about the impact of September 11, and if I have time, talk about some of the collateral issues.
Even before September 11, as my co-panelists have pointed out, the INS was an extremely dysfunctional agency. Anti-immigrant groups were already running multi-state advertising campaigns designed to appeal to the basest xenophobic instincts, and immigrants faced a multitude of policies that were inhumane and sometimes totally unjust.
Congress has repeatedly failed to adequately fund the service side of the Agency, and despite massive increases within the last three years of fees charged to immigrants for these services, the INS has unable to bring its backlog of citizenship and green card applications current. In many parts of the country it still takes more than two years to get citizenship.
Given the increased discriminatory nature of laws facing non-citizens in the United States who have not completed the transition to citizenship and the vulnerability that immigrants without green cards have always faced in this country, these waiting times are a serious civil rights matter.
The INS has also routinely failed to issue regulations to implement programs legislated by Congress in a timely manner, and let me just give you one example. Congress passed, a year ago today, a law that would allow refugees from Southeast Asia and from other parts of the world who are here on a status called “Public Interest Parolee” to adjust their status so they can become legal permanent residents, which is the next step to becoming citizenship. Yet INS has yet to even come close to issuing regulations. In the meantime, many of these individuals still remain in legal limbo.
President Bush has made reorganizing INS a priority, and it should be, but with sufficient funds to make sure that the service sides of the Agency does not falter. Congress is looking at adding additional burdens, and I would caution against that until they can clean up what the INS is already unable to accomplish.
As I pointed out, one of the reasons why this processing is so important is because of the discriminatory nature of the laws. Legal permanent residents who are not citizens are not eligible for many government safety net programs. In other words, for example, a recent immigrant survivor from the World Trade Center disaster who became disabled in the attack would not be eligible for Medicaid or any other federal assistance. An immigrant injured in a hate crime who came into the country after August 1996 would similarly not be helped.
The problem with distinctions based on citizenship status is all too often that the enforcement is based on racial profiling. For example, we’ve already seen in the welfare context of people who were being turned away who were still eligible were the people who looked Latino or Asian. Moreover, so long as you’re not a citizen you’re subject to deportation for even the most minor of legal infractions. Under the proposed terrorist legislation, their First Amendments are also, as you heard, severely compromised.
Finally, the events of September 11 generated such xenophobia that it slowed the momentum that President Bush and Congress seemed to have in moving to overhaul our immigration system to make it humane and more effective and efficient. I hope that Congress will pick it up again, because I believe that it is in fact in the interest of our national security to get the people, particularly the undocumented, out of the shadows so we know who they are.
After September 11, Americans of every color and creed were injured and lost their lives in these attacks. As many may not have really focused on, many of these were immigrants—some legal, some temporary employment-based, and a number who were undocumented or who have undocumented family members. The heroes of September 11 also came in all colors and creeds and immigration status. Yet immediately after the attacks, as you’ve heard, anti-immigrant advocacy groups cynically began exploiting American’s worst fears to push our country to close our borders, and attacks began as Americans began to seek personal retribution.
According to a report recently issued by South Asian American Leaders of Tomorrow, in the first week of the attack, the media reported on 645 hate crime incidents in one week. Just to give you an idea of the magnitude of that, my organization tracks anti-Asian violence. In a typical year, we report maybe 500 in the entire year. Ironically, one of the groups most heavily targeted was the Sikh community who are generally descendants of India and whose faith is not Islamic. However, they wear turbans and beards similar to the news clips that we keep seeing over and over and over again of bin Laden. And so they’ve been chased by mobs with baseball bats, attacked in malls and schools. In a few tragic cases, they have been murdered. One sick woman in San Diego was knifed in the head by two men who pulled up in a motorcycle next to her car while she waited in traffic.
As you’ve heard, too many of our community now are afraid to leave their homes, to send their children to school, to even go grocery shopping. In addition, their businesses have been hit by rumors about their loyalties. There are some reports about people being refused services in restaurants and hotels, and we’re beginning to hear about discrimination in the workplace. One South Asian working at a clinic was waving to a friend across the room while others were watching the news coverage of the terrorist attacks. And he was fired the next day because some of his coworkers mistakenly interpreted his behavior as being supportive of terrorism.
Just as during World War II when my parents were interned for the crime of looking like the enemy, there is a risk that the fear of those who are Arab or Muslim may lead us to betray our most sacred American principles of justice and fairness. A poll of New Yorkers in another CNN general Gallup Poll found that one in three of those polled would support the internment of Arab Americans.
According to media reports, the FBI has demanded that almost 200 schools turn over financial and academic records of foreign students, generally targeting only those of Arab and Middle Eastern descent without any individual suspicion of these students. The schools are complying often without even giving notice to the students that their records have been turned over.
As you’ve heard, we’re concerned about racial profiling. Even if it’s not done intentionally, a lot of the investigation has been tip-driven. While many—as we’ve come to find, many neighbors are turning on neighbors and reporting people who—what are they being suspected of? Looking Middle Eastern. One innocent Sri Lanken reported in New York his fear when government agents burst into his apartment with their guns drawn based on a tip from a neighbor, and all he could think of was it had to be because he was dark.
Other panelists have talked about civil liberties, and I just want to make a particular point. Immigration laws talk about detention as if it’s some holiday in a motel, but it is generally incarceration in a federal or other kind of facility. And even one day of detention can change someone’s life. For example, a young Pakistani American college student was nervous about flying back to New York so his aunt dropped him off in a Greyhound bus to travel from Texas. The INS raided the bus in Mississippi, and he was held there because he’d overstayed a tourist visa and not yet changed to a student visa. While the guards watched, he was brutally beaten by three white inmates who called him bin Laden, threatened to kill him, stomped on his back and kicked him in the head.
The hysteria has also damaged efforts to improve other public policies that were moving quickly to address some of the most egregious problems faced by undocumented immigrants in our community, which is detailed in my longer written statement.
The one thing I do want to point out is that immigrants are among the most vulnerable in our community to civil rights violations. They don’t know our laws, they don’t know who the agencies are who are supposed to protect them, they’re often unable to access attorneys who can communicate with them in their native languages. Language, in fact, is a troubling barrier to our justice system, in general, for the many immigrants who call the U.S. their home.
And I want to point out one problem with this. When initially pressed for its plan, pursuant to President Clinton’s executive order asking all the federal agencies to detail their plans to service limited English-proficient Americans, the INS, of all agencies, claimed that it did not come into contact with that many people who didn’t speak English.
I thank the Commission for taking up this issue of national origin, ethnic and race discrimination. Generally, community-based organizations all to often have to bridge the gaps that the agencies leave behind, and my concern is it’s even more difficult given the slowing economy, the lack of limited funds that already existed and the pressing needs that have been generated by this national crisis. Thank you.
CHAIRPERSON BERRY: Thank you very much, Ms. Narasaki. I will ask if Commissioners have questions, but I have half of one myself. The half a question is we heard from an earlier panel, in particular from Mr. Kamasaki, about what this Commission might do, and what we have to figure out, one of the reasons why we’re having this, is what we should do. And if, as the President states, this is a long, long crisis, it’s not going to be over anytime soon, then we have to think of it in terms of the long haul. Is the best thing we can do, in addition to the hotline and other stuff, to monitor what the federal agencies do and try to keep after that or is there something else in terms of particular communities you think we ought to do? And, also, are things likely to get better or worse based on the legislation that’s being passed that you described, Ms. Butterfield? So if someone would address any of that, I’d appreciate it, and then I’ll see if anybody else has a question.
MR. HARRIS: That’s half a question?
CHAIRPERSON BERRY: Yes.
(Laughter.)
MR. HARRIS: I guess we’d like to see a whole question.
I would just say very briefly that one of the things the Commission can do is to continue to hold briefings and hearings and to keep its voice up, frankly. The watchdog function that so many others have already mentioned is crucial. In a time when most institutions are pointing in one direction, it’s important that there be at least one, and this is a wonderful one, to keep other values in mind and to watch for some of the potential problems that we’ve heard mentioned this morning. So I would just applaud what you’re doing, and I would hope that it will happen many more times during the crisis.
CHAIRPERSON BERRY: Okay.
MS. MASSIMINO: I would just like to focus that a little bit on the issue of detention, particularly of asylum seekers. One of the problems that we’ve documented for so long and why we’ve been urging a change legislatively is because currently the detention authority and the parole power is exercised in a manner that we think is fairly arbitrary. There is so much discretion.
And one of the things that we fear is that because there’s already such broad discretion that we will be seeing even less inclination by the INS to release people who are coming from Arab countries, coming from countries that may be targets of this anti-terrorism effort. So I would urge you to pay particular attention, as we will be, and we can certainly keep you updated on that as to whether that in fact unfolds.
CHAIRPERSON BERRY: Okay. All right. Yes, Ms. Narasaki.
MS. NARASAKI: Well, I think the Commission has an enormous opportunity to help educate the American public on these very difficult issues, particularly on racial profiling. I think one of the most challenging parts of the anti-terrorism bill is the definition of who is a terrorist and what does it mean to engage in that kind of act? And the Commission is in a position to remind people that in the ‘60s that Martin Luther King was one of the people considered to be potentially a domestic terrorist and followed by the FBI very closely, to remind Americans of the McCarthy era, to remind people of the internment of Japanese Americans.
You had mentioned the Korematsu case, and I think the story even after the internment is the most telling one, and that is, as you know, Mr. Korematsu’s actual conviction was subsequently overturned in a writ of coronobus. And the reason was because historians discovered several years, decades later by accident that the Department of Justice had actually lied to the Supreme Court about the military justification of the internment. And based on that evidence, a court ruled that his conviction had been in fact done unlawfully.
Unfortunately, it doesn’t touch the Supreme Court present but it does tell the story of why we need to be concerned about the fact that our government in fact may be abusive. In their zeal to protect all of us, they in fact hurt all Americans.
CHAIRPERSON BERRY: And no one said whether the legislation makes things better or worse. What you said was very positive about—if I heard you right.
MS. BUTTERFIELD: It was positive in the sense of where the Administration wanted to start a month ago and the powers that it wanted. There are some checks, there are some cautions built in now, but I think there’s still room for abuse, and I would urge the oversight function, the watchdog function to continue, specifically on the detention issue. There is a much lower standard for the Attorney General to detain than in any other kind of case. The certification gives him broad discretionary power. The definition of terrorism that I outlined, all he has to say is, “You meet that definition; therefore, I can detain you.”
And there is sort of an open door at the end of the process. If someone is found deportable but the government can’t deport them because the home country won’t take them, the door is left open to continued and indefinite detention in one of the versions of the bill. In the other version, there may be some review inserted there that would help to limit that.
At any rate, I think that, again, in the balance of the extraordinary powers and the protections there is room for excess and abuse, and we all need to keep our watchful eye on that.
CHAIRPERSON BERRY: Okay. Commissioner Edley?
COMMISSIONER EDLEY: I want to push that since we’ve got four terrific lawyers on the panel here, because I want to knit it together with what Charles had recommended in the previous panel about trying to put data collection systems in place. So what I’d like you to think about is a year or two years ahead. And if one were exploring the question of whether or not the Justice Department’s detention discretion was being exercised in a way that was not merely illiberal but constituted, quote, “a civil rights violation.” You with me on the distinction?
MR. HARRIS: Yes.
COMMISSIONER EDLEY: Not merely illiberal but it’s a civil rights violation. What kind of data, what kind of evidence would you think would be needed in order to establish that kind of claim? Is it a mere disparity? Is it that people with a connection to Afghanistan are detained in higher proportions than people with a connection to Peru or Northern Ireland? I mean what’s that?
You see what I’m saying? Because I’m just having trouble figuring out what would constitute a prima facie case of discrimination under current statutes and constitutional interpretations and working backward from that to what kind of data would we or others need to be collecting in order to do an effective job of monitoring?
CHAIRPERSON BERRY: Anybody have any idea?
MS. MASSIMINO: Well, I guess one quick thing and then I think Professor Harris also, who’s the—knows about a lot about data collection and sampling, that kind of thing. But one thing just before we try to construct exactly how we would analyze such data. I just want to point out that on the issue of detention, right now Congress has required the INS to keep and to report on data about the detention of asylum seekers, and it has—that, I think, was a couple of years ago. It has never yet complied with that requirement.
And one thing would be to ask the INS whether it’s got the resources. What is the barrier to—you know, this is collecting kind of the most basic sort of data that you would need to make any of the kinds of judgments that you’re talking about, however you would want to analyze it. So I guess I’d just like to start with the fact that they have a pretty tough time right now telling us who’s in, for how long and for what reason.
COMMISSIONER EDLEY: And just to clarify because let’s put aside—let’s put aside individual claims of disparate treatment where you get someone who says, “To hell with all you ragheads,” so that you’ve got a smoking gun of real, racial, ethnic animus behind something. But if we’re looking at pattern practice, disparate impact, of whatever, what are we after?
MS. BUTTERFIELD: In the pending legislation, there is a reporting requirement, and Elisa’s caution about compliance with that is well-taken, but the legislation on the new certification powers requires a report every six months. Who has been certified? How long have they been held? What are the grounds? What are the nationalities? Which one of these folks were granted any relief from removal and were removed? And how many of them continued to still be held?
So I think if that reporting—if you all could help Congress assure that this reporting gets done, then we would have some good data on this new discrete certification detention power to see. If there are five people in the next two years, then it’s probably not of great concern. If there are 5,000 and they were all ordered removed based on technical violations and none of them were even charged as terrorists but they’re all being held as terrorists, that might tell us something else.
CHAIRPERSON BERRY: Good. That’s very helpful.
MS. NARASAKI: I think the other problem is too many people really don’t get access to counsel. They have a right to counsel, but it’s not guaranteed right. So, therefore, it’s very difficult for them to find counsel, for counsel to find them, and INS actually has this program where they move people around like every three weeks, and we find Asians who come into New York are being held in Louisiana or Montana, South Dakota where we can’t get to them, because we don’t have volunteer bases because our populations are not there.
So one of the things I think that the Commission could do to help is to look into this practice and ask the INS to explain how are they—what are they doing in terms of an agreement they actually made with the American Bar Association on these issues of access to counsel, because my concern is it’s—your best data really comes from the attorneys who are representing these people, and the problem is too few of them are actually getting representation.
MS. BUTTERFIELD: And we raised that issue with INS three weeks ago. We have not gotten an answer, and I urge you to ask them in the next panel—
CHAIRPERSON BERRY: What shall I ask them?
MS. BUTTERFIELD:—what about this 148 people being detained on immigration charges, and how are you helping to ensure that they are getting access to counsel? How many of them are represented?
CHAIRPERSON BERRY: Okay. We will.
MR. HARRIS: If I might also, this is a tremendously important question having information and data on which to make judgments down the road. This has been the thing that broke open the national debate on profiling pre-September 11, because in the past little data was kept that could be broken down by race or ethnic group on who police were stopping and what they were doing to them once they stopped them. And that stymied the debate for a long, long time, because the reports then were just, well, they’re just stories. It’s just anecdotes. You can’t do anything with that. And the emergence of the first sets of comprehensive data from Maryland and New Jersey and then from New York and some other places were the key turning point in that debate. So I cannot emphasize more strongly how important that is.
Now I would say that the provisions that Ms. Butterfield read out from the legislation would be a terrific start. I mean that would get us a long way. But I also have to tell you our experience in the profiling area was that as we went along and we collected sets of data, sometimes we learn things along the way that prodded us into getting more data and to saying, well, what we used to think was enough is not enough.
And the one example I’ll give you is that we started at the point of thinking just about who police stopped, and it turns out that one of the better measures of the depth of the problem is who they search. And many police departments who have in good faith started to collect their own data don’t collect any search data just because nobody was thinking about it at that point.
And, therefore, we have to keep open the idea that we will add things as we go along, as necessary, and as they would be helpful. But if we don’t collect any data, we will be just debating what some will call stories when we come back in a year or two years. So it’s tremendously important that information is collected in a systematic way that we can rely on.
CHAIRPERSON BERRY: Okay. All right.
Well, thank you very much. We want to thank the panel. And now we’ll ask the INS and the FAA, and so on, these questions. We very much appreciate you coming.
END OF PANEL TWO