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The aftermath of September 11, 2001: The targeting of Arabs and Muslims in America.

Words and images [run] together like watercolors on a child's easel--Arabs, mosque, terrorism, Muslims, extremists--making it hard to tell where one began and another left off. (1)

THE DEMONIZATION OF ISLAM AND ARAB-AMERICANS

THE DEMONIZING OF ARABS AND Muslims in America began well before the terrible tragedy of September 11, 2001. It can be traced to deliberate mythmaking by film and media, (2) stereotyping as part of conscious strategy of 'experts' and polemicists on the Middle East, (3) the selling of a foreign policy agenda by US government officials and groups seeking to affect that agenda, (4) and a public susceptible to images identifying the unwelcome 'other' in its midst. (5) Bearing the brunt of these factors are Arab and Muslim non-citizens in this country. A series of government laws and policies since the 1970's have steadily targeted Arab and Muslim non-citizens for selective interrogation, (6) detention, (7) harassment, (8) presumption of terrorist involvement, (9) and removal from this country. (10) The Patriot Act, (11) recent round-up and detention of over 1,000 (12) and list of interrogation targets of 5,000 individuals, (13) and the Presidential Order to establish quasi-military 'tribunals' (14) exacerbate the selective targeting of Arab and Muslim non-citizens in a climate of fear that completely sanctions blatant racial profiling. (15)

A. The Stereotype of Arabs as Demonic Terrorists and Religious Fanatics

Commentators fit anti-Arab, anti-Muslim animus into various 'racist' theories, from anti-immigrant sentiment that targets whichever group represents the most recent immigrant population (16) to a more dynamic process of 'racialization' that focuses on a social-political order that requires a marginalized 'other.' (17) The former only partly explains the demonizing of Arabs and Muslims in America, especially as Arabs (not necessarily Muslims) in particular have been part of the fabric of United States society since the late 1800's. (18) The latter, Omi and Winant's characterization, is more helpful, but does not precisely delineate the very specific factors that have come together to 'racialize' Arabs and Muslims in the United States. Still, the reasons for defining race as a process are particularly valid, as they indicate both the severe damage 'racialization' can do to the communities and individuals affected, and that the process can be reversed. (19) Social or historical analysts focusing on the problem h ave identified how and why Arabs and Muslims in particular have been racialized in America:

Anti-Arab racism does not emanate from a single source, and certainly is not limited to passions stemming from the Arab-Israeli conflict. Several types of anti-Arab racism and violence can be discerned. The first, and most obvious, is the political violence of Jewish extremist groups, which is correctly viewed as emanating from the Arab-Israeli conflict.... The second is a more nativistic violence which is xenophobic and local in nature.... The third is a form of jingoist hostility and violence usually associated with international crises involving U.S. citizens.... (20)

Nabeel Abraham is not alone in identifying these sources of anti-Arab and anti-Muslim racism, but his work is particularly helpful in marshalling evidence to corroborate each factor. (21) His second factor is better viewed as including xenophobia fed by film and media stereotypes about Arabs and Muslims. His third factor is also more accurately broadened to include hostility and violence related to foreign or domestic crises in which U.S. citizens are seen as victims. To his list, however, must be added a fourth factor, which is deliberate misinformation, distortion and institutionalized racism existing in government, law enforcement and influential institutions that target Arabs and Muslims both within the U.S. and abroad. Evidence on each point is discussed below.

Politically-Motivated Violence And Intimidation

The Arab-Israeli conflict is a consistent thread in the stereotyping of Arabs and Muslims as 'terrorists' in the United States since at least the 1970's. According to Abraham: "Jewish extremist groups constitute an undeniable source of anti-Arab hate violence not discussed in conventional accounts of racist violence in the United States." (22) In the 1980's the Jewish Defense League (JDL) was "one of the most active terrorist groups in the United States." A 1987 study published in an FBI Bulletin indicated that Jewish extremist organizations committed "approximately 20 terrorist incidents and numerous other acts of violence, including extortion or threats..." representing about one quarter of the total terrorist acts in the United States in the 1980's. (24) Yet well-regarded hate crimes listings and studies do not separately identify Arab ethnic origin in their victim classifications, (25) and others completely omit Jewish extremist groups from the categories of perpetrators. (26)

Even less known is the phenomenon of politically-motivated threats and intimidation against Arabs and Muslims in the U.S. by such mainstream Jewish organizations as the Anti-Defamation League (ADL) of B'nai B'rith. The ADL, established in the early 1900's as an organization with the mission to fight anti-Semitism, has gained a reputation as one of the foremost anti-racism groups in the U.S. It has cultivated an image of defending not only the rights of Jews, but also of other minorities, and of promoting racial justice. Unfortunately, the ADL appears to have also had another mission, which began sometime after the establishment of Israel in 1948: to discredit or silence critics of Israel or defenders of Palestinian human rights. (27) In 1983, the ADL released a handbook entitled Pro-Arab Propaganda in America: Vehicles and Voices, apparently planned as the first of a series. (28) Groups or individuals who criticized Israel or Zionism were listed in the handbook, along with quotes and descriptions of their act ivities. All were characterized as 'extremists' intent on eradicating Israel or inciting prejudice against Jews in America. (29) Included in the handbook are some of the most prominent academics, thinkers and writers on issues of the Middle East, from Columbia University's Edward Said to Harvard University's Walid Khalidi. Virtually every human rights and humanitarian organization dealing with the Middle East or Palestine is on the list. (30) Dr. Alfred Lilienthal, himself on ADL's 'blacklist,' claimed "[m]any ADL charges against critics of Israel and Zionism are totally inaccurate, questionable, or based upon half-trths." (31) The handbook was widely distributed through ADL's 31 U.S. regional offices and Canada, in an effort, according to many critics, by Zionist activists to use to challenge, harass and silence groups and individuals on the list. (32) Nor is ADL the only Jewish organization to compile and distribute 'lists' of Arab-American individuals and groups and those working in solidarity with them. T he American-Israel Public Affairs Committee (AIPAC) issued two similar lists. (33) Through a campaign primarily on college campuses organized against groups and individuals on these lists, AIPAC and ADL harassed and intimidated academics and activists for years. (34)

But the full extent of ADL's harmful activities against Arabs in the US did not become public until January 1993, when the results of a two-year FBI investigation against veteran San Francisco Police Department officer Tom Gerard and an ADL-paid undercover agent Roy Bullock, came to light. On December 10, 1992, law enforcement authorities executed search warrants on Gerard and Bullock's homes as well as ADL offices in San Francisco and Los Angeles. (35) The search of Gerard's houseboat uncovered computerized files on thousands of Arab Americans, 36 Arab organizations, 33 anti-apartheid organizations, 412 "pinko" organizations, 349 right-wing organizations, and 35 skinhead groups. Bullock's records showed files on 77 Arab organizations, 647 "pinko" and anti-apartheid organizations, 612 right-wing organizations and 27 skinhead groups. The ADL's offices contained identical files to Bullock's. (36)

Bullock's, Gerard's and ADL's files showed a massive surveillance operation against not only right-wing and anti-Semitic groups, but hundreds of mainstream and progressive groups including anti-apartheid, peace and justice, religious and human rights organizations all over the country. Among the groups targeted for surveillance were the ACLU, the NLG, NAACP, Rainbow Coalition, Greenpeace, Jews for Jesus, Mother Jones, Americans for Peace Now, Asian Law Caucus, United Auto Workers, Rep. Nancy Pelosi (D-Cal), House Armed Services Committee Chair Rep. Ron Dellums (D-Cal), and former Representative Pete McCloskey. (37) Thousands of Arab-Americans were listed in the files. The information included confidential law enforcement files from the FBI and CIA. By far the most troubling was the discovery of ADL's close ties to Israeli officials and the Mossad, and evidence that ADL, Gerard and Bullock had passed on information about individuals and groups to Israeli and South African intelligence. (38) At least one Arab-A merican whose name was in the files was arrested by Israeli authorities when he traveled to the Occupied Territories. (39) Nineteen groups and individuals charged Gerard, Bullock, Executive Director of ADL's Central Pacific Region, Richard Hirschhaut; and the ADL with violating California laws by collecting and disseminating confidential information. (40)

ADC et al. v. Anti-Defamation League of B'nai B'rith was settled in December 1999, after nearly six years of litigation. Under the injunction issued by Federal Judge Richard Paez, the ADL is permanently enjoined from engaging in any further illegal spying against Arab-American and other civil rights groups. (41) Information routinely gathered by ADL on groups and individuals is to be removed and maintained by the Special Master pending further claims against ADL. (42)

Despite the settlement and the permanent injunction, the harm to the civil liberties of Arabs in the US from the ADL remains significant and permanent. For one thing, it has contributed to the climate of fear and 'otherness' that Arab-Americans experience. Information that endangers Arab and Palestinian residents or citizens of the U.S. has already been turned over to Israeli government agencies. That cannot be reversed. U.S. government and law enforcement agencies have obtained information on politically active Arab groups and individuals from ADL that may place them under heightened government scrutiny. Arab-Americans' perceptions that the U.S. government and law enforcement agencies are in collusion with Israeli and anti-Arab Jewish organizations is supported by concrete evidence. Information from the ADL triggered the FBI investigation of the LA-8, resulting in the roundup and arrests of Hamide, Shehadeh and the others. (43) That case, as described below, now in its 15th year of litigation, is a classic e xample of targeting Arab and Palestinian residents of the U.S. for politically unpopular speech and associations.

Moreover, no major Jewish American organization has condemned the ADL for its political excesses or its documented association with Israeli intelligence organizations, (44) sending the signal that ADL's surveillance activities against Arabs in America are not of much concern. Finally, ADL itself has never admitted culpability, or disavowed its activities. The perception remains widespread that ADL continues to engage in surveillance of Arab and Muslim groups, and that it will continue to intimidate and silence those voices it deems 'anti-Semitic' under its broad definition that equates anti-Semitism with anti-Zionism or criticism of Israel. (45) "The overall effect of the ADL's practices is to reinforce the image of Arabs as terrorists and security threats, thereby creating a climate of fear, suspicion, and hostility towards Arab-Americans and others who espouse critical views of Israel, possibly leading to death threats and bodily harm." (46)

Anti-Arab Xenophobia and Demonizing Images in Media and Film

The popular caricature of the average Arab is as mythical as the old portrait of the Jew.

He is robed and turbaned, sinister and dangerous, engaged mainly in hijacking airplanes and blowing up public buildings. It seems that the human race cannot discriminate between a tiny minority of persons who may be objectionable and the ethnic strain from which they spring. If the Italians have the Mafia, all Italians are suspect; if the Jews have financiers, all Jews are part of an international conspiracy; if the Arabs have fanatics, all Arabs are violent. In the world today, more than ever, barriers of this kind must be broken, for we are all more alike than we are different. (47)

In his work on anti-Arab racism, Abraham has studied localized racism and violence that does not emanate from a particular hate group or organization with a political/ideological agenda. (48) This type of anti-Arab/anti-Muslim hostility is not necessarily related to the Arab-Israeli conflict, U.S. foreign policy, or particular events in the Middle East, but is, of course, exacerbated by any or all of these factors. Abraham has focused on the Arab and Muslim communities of the greater Detroit area, because of the increase in such xenophobic-driven violence in areas where Arabs are highly visible. (49) He has documented a huge range of hate messages, discrimination and violence directed at Arabs, both from private citizens and from town, state and other officials. (50) As examples, mayoral candidate Michael Guido distributed a brochure in Dearborn, a Detroit suburb, in which he claimed the city's Arab-Americans "threaten our neighborhoods, the value of our property and a darned good way of life." (51) In 1981, Michigan governor William Milliken, said in a newspaper interview that Michigan's economic woes were due to the "damn Arabs." (52) Such statements and campaigns by public officials fuel the perception that violence against this 'other' community is acceptable. (53)

Feeding already-existing stereotypes in American society about Arabs and Muslims, media and film have found a ready audience for dangerous and one-dimensional images. Jack Shaheen's meticulous work reviewing 900 Hollywood films over a period of four years is the most convincing evidence of deliberate vilifying of Arabs and Muslims by the movie industry. (54) Hollywood has made hundreds of movies in which Arabs or Muslims are portrayed as terrorists or dishonest sub-humans. According to Shaheen, there are only five Arab 'types': villains, sheikhs, maidens, Egyptians and Palestinians. (55) Arab women are portrayed primarily in two roles: as weak and mute, covered in black, or as scantily clad belly dancers. (56) There are three and one half million Americans of Arab heritage, yet Jack Shaheen was able to find Arabs portrayed in a favorable light in only five percent of the 900 Hollywood films he reviewed (57), and only a handful in which Arabs had leading roles as protagonists. (58) According to Shaheen, part o f the explanation also lies in a political agenda: one-seventh of all films made since the 1970's have been shot in Israel or made by Israeli teams (59). Moreover, the U.S. Department of Defense has cooperated with Hollywood in making over 14 films showing American soldiers killing Arabs or Muslims. (60)

Nor has Islam fared any better on the silver screen. Islam is inextricably linked with 'holy war', male patriarchy, and terrorism. Arab Muslims are shown as hostile invaders, or 'lecherous oily sheikhs intent on using nuclear weapons'. (61) A far-too-common scene shows a mosque with Arabs at prayer, cutting away to showing civilians being gunned down. (62)

Most important about film portrayals of Arabs and Muslims is the omission of Arabs as ordinary people, families with social interactions, or outstanding members of communities such as scholars or writers or scientists. Stereotyping and demonizing of the Arab or Muslim by American film has been so complete and so successful that film critics, most Americans and social commentators have barely noticed. (63)

Patriotic Racism in Times of Crises in Which US is seen as the Victim

There is a well-documented high correlation between international or domestic crises in which American citizens are seen as victims of foreign aggression and an increase in hostility towards non-white, non-Christian people the U.S. (64) Perpetrators of hostile acts or aggression in such situations do not appear to differentiate among victims--they target brown-skinned people of any religion or ethnic origin, from Pakistanis, Indians, Iranians and Japanese to Muslims, Sikhs and Christian Arabs. However, the public perception of "Arabs" as responsible for most terrorism against Americans and American interests results in Arab-Americans feeling the greatest impact of this hostility. One can readily track the causal relationship between international crises involving 'Arabs' and Arab-bashing here at home.

Taking only the 1980's to the present, there is a plethora of evidence to document this cause-effect relationship. On June 14, 1985, TWA flight 847 was highjacked to Beirut by Lebanese Shi'i gunmen. One young American was beaten to death on the plane, and the 39 remaining passengers were detained for 17 days before being released. (65) In the wake of a huge media reaction and sensationalist print and live journalism (66), there was an outbreak of violent attacks on Arab-Americans and U.S. residents of Middle Eastern origin around the country. (67) In June, Islamic Centers in San Francisco, Denver, Dearborn and Quincy, Massachusetts, were either vandalized or threatened, as were Arab-American organizations in New York and Detroit. A Houston mosque was firebombed. In August, a bomb placed in the door of the ADC in Boston detonated, severely injuring two policemen. (68) The same pattern was repeated in the fall of 1985, when the Achille Lauro cruise liner was hijacked and Leon Klinghoffer was killed. A wave of a nti-Arab violence ensued in the U.S., including the bombing of the Los Angeles ADC office, in which the director, Alex Odeh was killed. (69)

Again in 1986, in apparent response to the Reagan Administration's 'war on terrorism', at the time directed at Libya, another episode of anti-Arab hysteria broke out. (70) The same night of the U.S. raid on Libya, the national ADC office in Washington received threats indicating ADC has some connection with Libya. The Detroit ADC office, the Dearborn Arab community center and the Dearborn Arab-American newspaper all received bomb threats. (71) Beatings and other violent attacks on Arabs were reported around the U.S. (72) One of the incidents reported was that of a Palestinian immigrant family whose house was broken into and a smoke bomb thrown inside, with the words "Go Back to Libya" scrawled on the walls. (73)

The Gulf War intensified anti-Arab hostility in the United States. Before the invasion of Kuwait in 1990, ADC had recorded five anti-Arab hate crimes for the year. Immediately after the invasion, from August 2 1990 until February 2, 1991, ADC recorded 86 incidents. (74) The reports noted that 56 percent of the incidents targeted Arab-American organizations, political activists and dissenters of US foreign policy. (75) When U.S. intervention began in January 1991, Arab and Muslim community organizations were bombed, vandalized or subjected to harassment from one part of the country to the other. (76) Arab-owned businesses were vandalized or destroyed by arson in many states. (77)

In the 1980's, the government initiated a series of new policies to silence Arab-American and Arab immigrants' political speech and activism under the guise of fighting 'terrorism' (described in Section B below). These policies might have more serious long-term consequences than sporadic, although individually devastating, private acts of anti-Arab/Muslim violence. Events since September 11 have exacerbated all the factors underlying the racializing of Arabs in America, with predictable results.

Misinformation, Distortion And Institutional ized Racism In Government, Law Enforcement And Influential Institutions Targeting Arabs And Muslims

One of the factors with the greatest impact on the targeting of Arabs and Muslims is what might best be termed 'institutionalized racism' in government and law enforcement, in collaboration with institutions and think-tanks having a specific ideological or foreign policy agenda driven by anti-Arabism. This is also possibly the least well-documented phenomenon in the racializing of Arabs and Muslims leading to the widespread acceptance of profiling and related loss of civil liberties. Although this article focuses primarily on post-1990 events, institutionalized racism within U.S. government agencies began long before then. One can pinpoint the initiation of the Nixon Administration's "Operation Boulder" as perhaps the first concerted U.S. government effort to target Arabs in the U.S. for special investigation with the specific purpose of intimidation, harassment, and to discourage their activism on issues relating to the Middle East. (78) "Operation Boulder" comprised a series of Presidential directives issue d by President Nixon, ostensibly to deal with the terrorist threat posed by the Munich Olympics hostage-taking and its bloody outcome. The directives authorized the FBI to investigate individuals of 'Arabic-speaking origin,' supposedly to determine their potential relationship with 'terrorist' activities related to the Arab-Israeli conflict. (79) It is important to note that at that period of time, the only terrorist acts in the U.S. related to the Arab-Israeli conflict had been committed by the JDL. (80) Later investigations, both by the press and by organizations in the Arab-American community, confirmed that "Operation Boulder" was initiated as a result of pressure from Zionist groups both within the U.S. and from Israel to silence Arab-Americans from voicing opposition to U.S. and Israeli policies in the Middle East. (81) Under "Operation Boulder", the FBI investigated, interrogated and intimidated non-citizens and citizens only of Arab origin, often in early-morning visits, without making formal charges of any kind. (82) The most striking case that emerged from this period was the wiretapping and surveillance of prominent Detroit lawyer Abdeen Jabara, then-President of the Association of Arab-American University Graduates. The Associated Press reported the investigation of Jabara as follows:

The US Justice Department admits it repeatedly used electronic devices to eavesdrop on Detroit lawyer Abdeen Jabara. . . .In a statement filed Tuesday in a US district court in Detroit, the Federal Bureau of Investigation (FBI) and Justice Department admitted the surveillance of said information about Jabara was handed over to Jewish, Zionist or Israeli organizations. The admission came in response to questions growing out of a lawsuit filed by Jabara in October, 1972.... (83)

In the 1980's, the Reagan Administration also used foreign policy 'imperatives' selectively to target Arabs in the U.S. for harassment and intimidation, again on the grounds of combating terrorism. In early January 1986, President Reagan publicly began laying the foundation for striking against Libya in supposed retaliation for Arab terrorist attacks at the Rome and Vienna airports that had resulted in multiple deaths and injuries. (84) Reagan announced that the U.S. government had "irrefutable" evidence that Libyan leader Muammar Qaddafi was responsible, and in August 1981, the U.S. navy shot down two Libyan planes off the Gulf of Sidra as part of US 'war games.' (85) President Reagan also announced that "we have the evidence" that Qaddafi was sending hit teams to assassinate him. In fact, the U.S. government as well as foreign governments apparently were aware that there was no evidence that Qaddafi was behind the terrorist attacks in Rome and Vienna or that any Libyan 'hit squads' had been sent to the U.S. (86) According to the FBI, there was also no evidence connecting Libya to the hijacking of a Rome to Athens TWA flight or the bombing of a West Berlin nightclub, but the U.S. carried out bombing raids against Libya nevertheless. (87) The other consequence of the disinformation campaign was a rash of vandalism and violence against U.S. residents of Arab or Middle Eastern origin and their community centers, mosques, businesses and homes. (88)

In the 1990's, after the invasion of Kuwait, Iraq and Saddam Hussein became the focus of the first Bush Administration's 'war on terrorism.' Creating a climate in which anti-Arab sentiment was inevitable, the Administration called the Iraqi leader Saddam Hussein "the new Hitler of the Middle East," (89) accusing Iraqi forces of atrocities against Kuwaitis, many which later proved to be fabricated. (90) Of far greater significance for Arab-Americans' civil rights, however, was the Administration's decision to launch massive surveillance against Arabs in America. The FBI initiated a nationwide interrogation effort against Arab-American community leaders, activists and others, particularly harassing antiwar demonstrators. (91) Additional policy measures put in place were nationwide fingerprinting of all residents and immigrants in the U.S. of Arab origin, and the institution of an FAA system of airline profiling targeting individuals from the Arab world. (92) Private harassment and violence against the Arab and Muslim communities was exacerbated by these government policies targeting the selfsame communities. (93)

Whether feeding into foreign policy imperatives or political interests, or playing a deliberate role in shaping those imperatives, a group of Middle East/terrorism "experts" have made careers out of demonizing Islam and Arabs for America. A number of these "experts" have been closely involved with government targeting of Arab and Muslim Americans for arrest and detention when there is no evidence of criminal wrongdoing by the targeted individuals, (94) or they appear as 'expert witnesses' in such cases. (95) The involvement of some of these "experts" is detailed below in the LA-8 and secret evidence cases. Edward Said describes their likely motivation:

Never mind that most Islamic countries today are too poverty-stricken, tyrannical and hopelessly inept militarily as well as scientifically to be much of a threat to anyone except their own citizens; and never mind that the most powerful of them--like Saudi Arabia, Egypt, Jordan and Pakistan--are totally within the U.S. orbit. What matters to "experts" like [Judith] Miller, Samuel Huntington, Martin Kramer, Bernard Lewis, Daniel Pipes, Steven Emerson and Barry Rubin, plus a whole battery of Israeli academics, is to make sure that the "threat" is kept before our eyes, the better to excoriate Islam for terror, despotism and violence, while assuring themselves profitable consultancies, frequent TV appearances and book contracts. The Islamic threat is made to seem disproportionately fearsome, lending support to the thesis (which is an interesting parallel to anti-Semitic paranoia) that there is a worldwide conspiracy behind every explosion. (96)

In the secret evidence cases, a number of expert opinions were submitted by the government; the qualifications of the experts on the countries at issue were negligible or nonexistent. (97) Their "expertise" was simply formulation of the thesis that the Muslim and Arab world is waging a 'jihad' against the West. (98) One of these 'experts' played a large and troubling role in instigating the unfounded investigation against Florida State University, the World and Islam Studies Enterprise (WISE), and Mazen al-Najjar and Sami Al-Arian. (99) The close connections that a number of these individuals have with Israeli intelligence and Zionist groups, as well as within the U.S. State, Justice Department and the FBI, has surfaced in a number of instances, raising troubling questions in cases where the government seeks to use their 'expertise'. (100)

B. Efforts to Stifle Political Dissent on a Racial and Religious Basis: The Case of the LA-8 and Its Precursors and Progeny

The targeting of Arab and Muslim non-citizens by law enforcement, particularly the FBI and INS, began in earnest in the mid-1970's. Foreign policy has played a large role in reinforcing discriminatory legislation and policies against Arabs and Muslims in the cases involving attempted deportation of individual U.S. residents of Palestinian origin such as Fouad Rafeedie (101) and the LA-8, (102) were brought at the same time as the U.S. Administration was attempting to shut down PLO-representative offices in the U.S. (103) and at the UN. (104) At about the same time, President Reagan issued a secret National Security Decision Directive, creating the National Program for Combating Terrorism. (105) The Directive authorized the creation of the Alien Border Control Committee, which was designed to prevent "terrorists" from entering or remaining in the United States. The Border Control Committee, an inter-agency task force comprising members of the FBI, CIA and Department of State, considered a number of different p roposals to carry out its mission, including one to implement a "registry and processing procedure" to keep information on aliens in the United States. Under this proposal, the CIA, FBI and other agencies were to "immediately provide" the INS with "names, nationalities and other identifying data and evidence relating to alien undesirables and suspected terrorists believed to be in....the U.S." (106)

Among the plans of the Border Control Committee was an INS-created strategy called "Alien Terrorists and Undesirables: A Contingency Plan." (107) This thirty-one page memorandum, which only came to light as part of the LA-8 litigation, suggests use of ideological exclusion grounds in the Immigration Act to apprehend and detain aliens only from designated countries--all Arab countries and Iran. (108) The memo also proposes detaining aliens apprehended "as a result of any special projects undertaken by INS" in the large, then-newly-constructed INS detention facility in Oakdale, Louisiana.

Many critics have pointed out that the United States has discriminated against Arabs in applying the terrorist exclusion provisions of the INA even before the passage of the most recent anti-terrorism legislation, the USA Patriot Act. (109) Palestinians are the only group ever prosecuted for their activities under the pre-Patriot Act terrorist exclusion laws. (110) During the Gulf War crisis, government officials fingerprinted and photographed all entrants of Iraqi and Kuwaiti origin--regardless of past activities or evidence that they actually intended to engage in terrorism. (111)

At the same time as Congressional and judicial efforts were curtailing the authority of the INS and the Administration to deport and exclude non-citizens based on political beliefs and associations, such efforts were stymied or ineffective when Arabs and Muslims were the targets. INS' decisions to exclude and deport individuals for their speech or affiliation were based on provisions in the now-discredited McCarran-Walter Act, (112) particularly the provisions allowing deportation/exclusion on terrorist or communist affiliation grounds. (113) In 1977, the US enacted the McGovern Amendment that permitted the Attorney General to waive the exclusion of any alien that was based on affiliation with an organization the INA designated as 'terrorist.' (114) There remained loopholes that allowed consular officers to continue to base exclusion decisions on ideology, (115) and in 1979, Congress created a single exception to the McGovern Amendment, applying it only to the PLO. That sole exception allowing exclusion on th e basis of ideology vis-a-vis the PLO and no other group, remained in the law. (116)

The case of the LA-8 began before dawn on January 26, 1987, when FBI, INS and LA Police officers descended on the Los Angeles home of Khader Hamide, a U.S. lawful permanent resident, and his Kenyan-born wife Julie Mungai. The couple were handcuffed, told they were being arrested for 'terrorism,' and taken into custody while police blocked the street and an FBI helicopter hovered overhead. (117) That same morning, six other individuals were arrested in the LA area as part of the same sweep: Michel Shehadeh; Bashar Amer; Amjad Obeid; Ayman Obeid; Aiad Barakat; and Naim Sharif. These individuals, all legal immigrants or nonimmigrants of Arab origin (except Mungai) were shackled and held in Terminal Island maximum security prison for 23 days while the INS sought to litigate its case against them in the immigration courts in LA. (118)

The initial charges against the LA-8 were based on the ideological exclusion grounds of McCarran-Walter. (119) When the evidence underlying the government's charges in the case was finally revealed, it amounted to a claim that the eight read or distributed pro-Palestinian literature linked to the Popular Front for the Liberation of Palestine (PFLP). (120) All eight denied membership in the PFLP. Applying the same First Amendment standard that would apply to the speech and association rights of a citizen, the first federal court judge to review the case, Judge Steven Wilson, struck down the ideological exclusion grounds as being unconstitutional and overbroad. (121) The court found that unless an alien's speech is "directed to inciting or producing imminent lawless action and likely to incite or produce such action," such speech may not be curtailed by the chill of deportation or otherwise. (122) In fact, both the then-director of the FBI and the regional counsel of the INS, testified to Congress that the sole basis of the government's efforts to deport the LA-8 was their political affiliations. "All of them were arrested because they are alleged to be members of a world-wide Communist organization which under the McCarran Act makes them eligible for deportation....if these individuals had been United States citizens, there would not have been a basis for their arrest." (123)

Partly in response to the District Court decision in the LA-8 case, Congress amended the NA and repealed the McCarran-Walter provisions. Thereafter, the INS instituted new proceedings against the LA-8 based on non-ideological grounds, adding new terrorism charges under the IMMACT 90 amendments. Under these provisions, the INS could remove individuals for 'terrorist activity', defined (under 1990 law, now amended) as "[Committing], in an individual capacity or as a member of an organization, an act of terrorist activity or an act which the actor knows or reasonably should know, affords material support to any individual, organization or government in conducting a terrorist activity at any time..." (124) The NA permits the INS to deport or exclude an individual who has supported or given money to an organization for its legal, social, or charitable activities if any arm of that organization also has engaged in terrorism. (125) Since this provision had never been used to seek to deport anyone from the U.S. befor e, the LA-8 filed a complaint in federal court claiming selective enforcement of the immigration laws in retaliation for their exercise of constitutionally protected associational activity. (126) The INS filed a petition for writ of certiorari to the Supreme Court on the question of whether the federal courts had jurisdiction under the newly-passed IIRIRA judicial review provision of 242(g) to review a challenge to the deportation proceedings prior to the entry of a final order of deportation. (127)

The Supreme Court, in a novel reading of the provisions that was not raised by either set of litigants, held that an alien unlawfully in the United States has no constitutional right to assert selective enforcement as a defense to deportation. (128) Specifically opining on selective enforcement of the immigration laws, the Supreme Court said: "[T]he Executive should not have to disclose its "real" reasons for deeming nationals of a particular country a special threat--or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals--and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy." (129) The Court decided that the respondents' challenges were an attack on the Attorney General's decision to "commence proceedings" against them; this thereby within Sec. 242(g)'s proscription of non-final-order judicial review. (130) No other pro vision in Sec. 242, according to the Court, prov ided the federal courts with jurisdiction over the LA-8 claims. (131)

The LA-8 have continued to fight the deportation proceedings, pursuing claims for relief from removal. The INS has opposed their applications for relief of two of the LA-8 under the legalization provisions of the Immigration Reform and Control Act (IRCA), 1996, (132) on the basis of secret evidence. Barakat and Sharif filed suit in district court challenging the use of secret evidence to bar their claims for relief on several grounds, including denial of due process. The district court ultimately found that using classified information against Barakat and Sharif violated the Fight Amendment's due process guarantees, and issued a permanent injunction against its use. (133)

C. Secret Evidence Cases and Their Implications

One of the primary strategies implemented by the FBI and INS selectively to target Arabs and Muslims is the use of secret evidence, or evidence that the agencies refuse to disclose to the non-citizens or their counsel, to charge, detain, and deny bond or release in deportation or removal proceedings. Although secret evidence has been used by various law enforcement agencies and INS under various legal provisions to detain and deport since the 1950's, its use was virtually prohibited by the federal courts (134) or by congressional action (135) --except in extremely limited circumstances of foreign intelligence surveillance--until the 1990's. Illustrative of earlier courts' attitude towards the use of secret evidence to detain and deport is the D.C. Circuit's decision in Rafeedie v. INS. Fouad Rafeedie, a 20-year lawful permanent resident of Palestinian origin, was arrested on returning to the United States after a two-week trip in which he attended a conference in Syria sponsored by the Palestine Youth Organiz ation. He was placed in summary exclusion proceedings--the first time such proceedings had ever been used against a lawful permanent resident--and charged under the McCarran-Walter Act ideological exclusion grounds under INA 212(a)(27)-(29) (136). The summary exclusion provisions allowed the INS to proceed against Rafeedie without a hearing and without revealing its evidence in open court or on the record. According to the INS, disclosing its evidence against Rafeedie would be "prejudicial to the public interest, or endanger the welfare, safety, or security of the United States." (137) The D.C. Circuit rejected both the INS' use of secret evidence and its grounds for excluding Rafeedie. It remanded the case to the District Court, mandating application of the normal due process analysis in deciding whether the governments' national security interests outweighed Rafeedie's First Amendment rights.'38 On remand, the District Court found for Rafeedie. (139)

All of the courts in the Rafeedie case expressed profound concern over the use of secret evidence in the proceedings, and ultimately found them unconstitutional. The district court found that secret evidence "affords virtually none of the procedural protections designed to minimize the risk that the government may err." (140) The circuit court stated that the only way Rafeedie could prevail would be "if he can rebut the undisclosed evidence against him...it is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden." (141)

Following repeal of the McCarran-Walter provisions, the INS initiated a series of cases using secret evidence to detain and deport that have virtually exclusively targeted Muslims and Arabs. The secret evidence cases dovetailed the Contingency Plan's proposal for using secret evidence as part of the targeting of Arabs and Muslims for long-term detention and deportation and, in an extreme scenario of the Plan, internment in camps in Oakdale, Louisiana. (142)

The secret evidence cases began after passage of anti-terrorism and immigration legislation that was pushed through Congress in the wake of the Oklahoma City bombing. Immediately after the bombing of the Alfred P. Murrah Federal Building, a host of commentators and 'experts' rushed to condemn "Middle Eastern terrorists" for the carnage. (143) Although evident within a short time that self-styled U.S. 'militia' groups were responsible and Timothy McVeigh was soon arrested, Congress focused its efforts on antiterrorist legislation that targeted immigrants and laid the foundation for selective targeting of Muslim and Arab non-citizeus. The Antiterrorism and Effective Death Penalty Act (AEDPA), (144) and the Illegal Immigration Reform and Individual Responsibility Act (ILRJRA) of l996, (145) brought about sweeping immigration, law enforcement and criminal provisions widely criticized for years for seriously curtailing civil liberties, for dangerously expanding law enforcement powers with minimal judicial scrutiny , and for resurrecting the discredited strategy of ideological exclusion in immigration. (146) Commencing after passage of AEDPA and IIRIRA, the INS initiated approximately two-dozen deportation proceedings around the country, charging, detaining and opposing relief on the basis of evidence it refused to reveal, claiming it would compromise the security of the United States. The INS has claimed it does not selectively use secret evidence against Arabs and Muslims, but has been unable to name a single secret evidence case involving a non-Arab/Muslim individual. (147) All the cases researched by the author, and whose counsel were part of the nationwide secret evidence legal defense network, involve Muslim or Arab respondents. (148)

The political and public climate that fostered the 1996 legislation provided the apparent license to INS to seek deportations on the basis of its secret evidence strategy. Oddly enough, although AEDPA established a special procedure for detaining and deporting "alien terrorists," permitting the use of secret evidence in such cases, but with certain safeguards (149), the INS did not seek a single prosecution under these proceedings. Instead, the INS relied on a pre-IIRIRA Immigration Regulation to authorize the use of secret evidence in the immigration courts. (150) There are obvious advantages to the Service in bypassing the AEDPA procedures for the use of secret evidence. By doing so, the Service avoids having to conform to procedural safeguards, such as producing an unclassified summary of the Service's evidence to the alien; (151) having its arguments and evidence scrutinized by a federal judge with authority to assess the constitutionality of the use of secret evidence; (152) and having to charge the indi vidual under some substantive 'terrorism' provision of law, which would require the government to sustain its burden of proof on the charge. (153)

The strategies used, and the evidence ultimately revealed by the INS, in cooperation with the FBI, in the secret evidence cases, reflects the agencies' clear motivation to selectively target Arabs and Muslims. They highlight the rampant institutionalized bias within those agencies and within the Department of Justice against these groups. Just a few examples from the cases underscore the selective targeting of Arabs and Muslims by the government agencies involved.

The cases of the 'Iraqi Six' (154) illustrate the way in which FBI and INS anti-Arab bias affects the government's ability fairly to prosecute Arabs and Muslims in the immigration context. The Iraqi cases arose out of the government's resettlement program of 6,000 Iraqi Kurds after the Gulf War. The Iraqis were initially flown to Guam, where their asylum claims were processed, and then they were brought for resettlement to the U.S. (155) The Iraqi men were initially recruited by the U.S. in an attempted coup against Saddam Hussein, and then airlifted out of Iraq with their families when the attempt failed. (156) Seven of the Iraqis were put in exclusion proceedings for entering without valid visas, and then detained in Southern California as "security risks...against the United States." (157) The INS claimed the evidence it had to support the security risk claim was classified and would not reveal It. (158) The Immigration Judge in Los Angeles reviewed the secret evidence and ordered the men excluded. (159) A ll men s families had already been granted asylum. The men were detained for two years while the INS prosecuted the cases. (160) The government's evidence was, in the end, discredited, but not until after five of the Iraqis entered into a settlement agreement withdrawing their pending asylum claims in order to obtain release from detention. (161)

The legal team for the Iraqi cases being litigated in Southern California included James Woolsey, the former Director of the CIA who directed the U.S. effort to organize Kurdish opposition to overthrow Saddam Hussein. Woolsey sought to use his top security clearance to obtain the classified evidence, but the government denied him access, claiming that it did not trust him to keep the information confidential. (162) Woolsey testified at congressional hearings and launched a public attack on INS' tactics. As a result, INS released 500 pages of its 'classified' evidence. Woolsey stated that the INS admitted that hundreds of pages of hearing transcript had been 'erroneously classified'. Moreover, about the so-called 'classified' evidence, Woolsey summarized it as revealing serious errors in Arabic-English translations; ethnic and religious stereotyping on the part of FBI agents involved in the case; and government reliance on information that was nothing more than the result of inter-group rivalries and rumors am ong the Iraqis themselves. Even more serious, Woolsey pointed out that either INS counsel or intelligence agents made significant false statements to the immigration judge in the cases.

In ex parte testimony, belatedly declassified, more than one [US government] interrogator expressed clear bias [to the immigration court]. For example, and I quote, "Arabs lie an awful lot...[T]here is no guilt in the Arab world..."

Another drew bold negative conclusions about one of the men on the basis of having misread his own notes about certain dates. And either INS counsel falsely assured the immigration judge, in this case, that she personally asked the CIA and FBI to prepare unclassified summaries of evidence, or those organizations subsequently falsely stated that they had not been so asked.

Those are the only two possibilities. (163)

Mazen al-Najjar and Anwar Haddam were the longest-held detainees in secret evidence proceedings, Al-Najjar initially being detained for over three years, (164) and Haddam for four. (165) Al-Najjar, a stateless Palestinian with past residences in Saudi Arabia and the U.A.E, was the editor-in-chief of a research journal of the World and Islam Studies Enterprise (WISE), a think-tank based at the University of South Florida that was engaged in dialogue on issues related to the Middle East. (166) Al-Najjar was arrested and placed in deportation proceedings in May 1997 as part of an FBI investigation against a former administrator of WISE who became head of the Islamic Jihad. (167) The FBI and INS arrested Al-Najjar and detained him on secret evidence. (168)

Anwar Haddam was an elected member of the Algerian Parliament in the first round of elections in 1991. (169) He was a Professor of Physics at the University of Algiers when he ran for election on the Islamic Salvation Front ("FIS") platform. (170) The FIS, a moderate Islamic party, swept the 1991 elections by 80 percent of the popular vote (171). Before the final round of elections could be held, the Algerian military staged a coup d'etat, arresting the president of the FIS, annulling the elections, and rounding up thousands of FIS members. Top FIS officials were killed or imprisoned, and thousands of FIS supporters were put in concentration camps, tortured, killed or executed by the military junta. (172) A blood civil war ensued in which, to date, over 100,000 Algerians have been killed. (173) Anwar Haddam was one of the very few elected FIS officials who managed to escape Algeria with his life. He made his way to the United States where he had previously studied and obtained his doctorate degree, entering l egally on a valid non-immigrant visa in December 1992. (174) Haddam filed for asylum in April 1993, and while his claim was pending, the INS took him into custody on the basis of evidence it refused to disclose. (175) The INS also opposed his asylum claim, stating that he was barred from asylum as a 'persecutor of others.' However, the government rested its position primarily on evidence it maintained was classified and would not produce in court. (176)

In both the Al-Najjar and Haddam cases, as the secret evidence has either been unclassified or disclosed, it is evident that the government's 'terrorist' claims have been based on unprovable hearsay, (177) biased sources, (178) and, most troubling, motivated by U.S. and foreign government policy considerations. (179) Moreover, in all the cases, there has been an unmistakable pattern of unethical behavior by government counsel and the FBI. For example, in Anwar Haddam's case in the initial proceedings, the INS submitted over 200 exhibits on the record, aside from what it claimed it had as 'classified' exhibits. (180) In its brief to the immigration court, the INS claimed that its exhibits proved that the FIS and the Armed Islamic Group (GIA) were terrorist organizations, that Haddam was a member of both, and that he and they were waged in an "Islamic jihad." (181) The FIS has never been listed by the US government as a terrorist organization, (182) and the INS never produced any credible evidence that FIS was linked to terrorism in Algeria. (183) As for the GIA, it is indeed on the State Department's list of terrorist organizations, (184) but Haddam never claimed membership in the GIA. (185) To prove its claim, INS submitted a series of Arabic documents to the immigration court, purporting to show Haddam's membership or official position with the GIA. To make that link, every one of these documents was mistranslated into English by INS' translators. (186) The original Arabic documents, re-submitted by Haddam's counsel with certified translations by a highly-qualified interpreter, reveal no link between Haddam and the GIA. (187) On its "Islamic jihad" claim, the INS submitted testimony, affidavits or unsworn statements of "experts." (188) The INS submitted "expert statements" (none of the government's experts testified in court) from Yonah Alexander, Khalid Duran, (189) Patrick Clawson and Daniel Pipes.

None of these "experts" had any expertise on Algeria at all. (190) Their "testimony" amounted to the thesis that Arabs and Muslims are waging a "jihad" against the West, and that Haddam was part of that jihad. (191) In Al-Najjar's case, the primary motivation to arrest and deport him apparently came from the Israeli government itself, which wanted to shut down the Islamic Institute. (192)

Nasser Ahmed was also held in custody and denied bond for over three years on secret evidence. (193) An Egyptian native residing in the U.S. since 1983, Nasser Ahmed is the father of three U.S. citizen children. (194) He was charged in April 1995 with overstaying his visa, and had been free on $15,000 bond while he pursued his claim for political asylum. (195) However, before his release on bond, FBI and INS agents tried to convince Ahmed that he should assist the government in an unspecified investigation and if he did not, he would be deported. Ahmed refused. (196) In 1996, while his own deportation proceedings were ongoing, Ahmed became court-appointed translator for the legal defense team of Sheik Abdel Rabman for the conspiracy to bomb buildings and facilities in New York City. (197) As Ahmed was going into court for his own asylum hearing on April 23, 1996, INS took him into custody, opposed bond and release, and opposed his asylum claim on the basis of undisclosed evidence. (198)

After losing his case in the immigration court because he could not refute the government's secret evidence, Ahmed filed a habeas proceeding in the southern district of New York. (199) In the federal court action, the INS proceeded to release some of its secret evidence. Once the evidence was disclosed, Ahmed was able to refute it. (200) On remand, J. Livingston dismissed the 'evidence' underlying the government's remaining contentions. The court found that one of the main government witnesses, Sheik Al-Sharif the imam at the Brooklyn mosque where Ahmed worshipped, was under INS' control and simply incredible. About Sheik Al-Sharif, Livingston said:

It is obvious that there is a bitter and implacable conflict between the respondent, who supports the chief religious opponent of the present Egyptian government, and Sheik Al-Sharif, who appears to have regular contact with the Egyptian government representatives in New York.. Sheik Al-Sharif's interest in employment by the mosque and his interest in remaining in the United States would be threatened by respondent's release from INS custody [because Ahmed opposed continuing Al-Sharif's employment as imam at the mosque upon which INS approval of his employment-based visa was contingent]. Sheik Al-Sharif has a substantial interest in seeing that the respondent remains in INS custody and that he be deported from the United States. Accordingly, Sheik Al-Sharif is considered by this court to be seriously prejudiced against respondent, highly interested in the outcome of this case and he appears to be under the control of the INS which holds his future immigration status in its hands. Under these circumstances, I cannot give substantial weight to testimony of Sheik Al-Sharif regarding the actions of the respondent. (201)

Following three years in solitary confinement in New York City jail as a 'security threat', Nasser Ahmed was able to refute the government's terrorist charges as based on purely biased sources as well as INS and FBI improper conduct. As the immigration court stated in the final decision granting him release: "... I find that the internal affairs of the mosque do not implicate any legitimate national security concerns of the United States." (202)

As these cases have worked their way through the immigration and federal courts, the government's claims in all the cases have unraveled. Either as a result of court orders to review, declassify and produce the classified evidence, or federal court findings that the use of secret evidence in the proceedings was unconstitutional, (203) the government's evidence has slowly been revealed. In none of the cases was there sufficient evidence to support a prima facie claim of terrorism-related activity to justify detention. (204) The government has so far lost every one of the secret evidence cases that have been litigated to conclusion, (205) at the cost of huge sums to American taxpayers. (206) While the cases were being litigated, the individuals involved remained detained anywhere from one to four years, losing liberty, livelihoods, professional careers, financial resources and precious time with their families and friends. One of the greatest losses from a constitutional standpoint has been the chill to their p olitical speech, associations and lawful activities. In fact, one can safely conclude that the latter has remained one of the main goals of the government's strategy. It may well be one of the main goals of the new government strategy to 'combat terrorism' after September 11, 2001.

THE IMPACT OF THE POST 9-11 "WAR ON TERRORISM" ON ARABS AND MUSLIMS

The Aftermath of the Terrorist Attacks

The devastating terrorist attack of 9-11 caused a familiar and predictable response in the United States on two fronts: government policies specifically targeting Arabs and Muslims; and nationwide violence against Arabs and Muslims. As the government stepped up its "war on terror", the Administration and federal agencies put in place one set of policies after another that focused on the Arab and Muslim communities. A review of those policies gives a clear picture of their cumulative impact on the affected groups.

Arrests and Detentions

Within weeks, the U.S. government arrested and detained over 1,200 Muslim and Arab non-citizens. (207) Although the roundup included Arab and Muslim men from many countries, the majority was from Pakistan and Egypt. None of these individuals were found to have any direct links with the terrorists or their actions. Approximately 100 of them were charged with minor crimes, and another approximately 500 were held in custody on immigration violations such as overstaying temporary nonimmigrant visas. (208) Attorney General Ashcroft stated publicly that minor immigration charges would be used to detain non-citizens while the criminal investigation continued. (209)

On September 20, INS issued a rule extending to 48 hours the time during which aliens may be detained prior to custody or bond determination, or a decision as to whether a notice to appear and warrant of arrest will be issued. The rule also provides for longer detentions of unspecified duration in "emergency or other extraordinary circumstances." (210) The rule implies that, despite the Supreme Court's decision last term in Zadvydas v. Davis, the INS can, and will, indefinitely detain non-citizens. (211)

"Voluntary" Interviews

On November 9, Deputy Attorney General Larry Thompson issued guidelines for the "voluntary" interviews of up to 5,000 non-citizen men in the United States on nonimmigrant visas from countries suspected of harboring terrorists (all Arab or Muslim). (212) The Attorney General sent the memo to all US attorneys and anti-terrorist task force members, asking for their assistance with the interview process. (213) The Memo set out a series of suggested questions, clearly indicating the interviewees were suspected of disloyalty. For example, the Memo stated: "You should ask the individual if he noticed anybody who reacted in a surprising or inappropriate way to the news of the Sept. attacks. You should ask him how he felt when he heard the news." (214) The letters were sent to men between 18 and 33 years old who came to the U.S. after January 2000 on student, work or tourist visas. (215) Although the interviews were supposedly "voluntary", (216) there was an implicit condition that an individual's visa could be revoke d for non-cooperation. (217) Apparently, only five people declined to be interviewed, and 104 letters were returned because of incorrect addresses. (218) None of the interviews turned up information relating to the 9-11 terrorist attacks, although a number of the interviewees were held on minor immigration charges. (219)

Despite obtaining no useful information concerning terrorism, the Justice Department indicated soon afterwards that it would be contacting another 3,000 young Arab men for 'voluntary interviews.' (220) Major Arab and Muslim organizations, initially supportive of the government's efforts to combat terrorism, widely condemned the continued singling-out of their communities, and indicated they were no longer willing to cooperate with such tactics. (221)

Deportation and Removal, and Visa Issues

Also in November, the Department of State announced it had slowed the process for granting visas to men ages 16-45 from certain Arab and Muslim countries, and put heightened scrutiny of visa applications from those countries in place. (222) Shortly afterwards, INS announced its first mass arrest of nonimmigrant students who had violated the terms of their visas. The arrests were only of students from countries accused of having terrorist ties: Iran, Syria, Pakistan, Libya, Saudi Arabia, Afghanistan and Yemen (223) On December 5, Attorney General Ashcroft sent a directive to INS to round up 6,000 "young Arab men" who had ostensibly ignored deportation orders (out of 314,000 individuals INS has identified who are violating deportation orders). (224) Thus, although it is widely known that the vast majority of individuals violating final orders of deportation are Mexican or Hispanic, the INS has specifically targeted only one ethnic and religious group for mass deportation or removal on a nationwide basis. (225)

Monitoring of Attorney-Client Communication

The Department of Justice's Bureau of Prisons published an interim rule, without providing for public comment, authorizing the monitoring of attorney-client mail or communications of inmates and detainees in federal custody. (226) Department of Justice spokesperson Mindy Tucker defended the Regulation, by saying: "The team that does the monitoring won't be part of the prosecution. Anything that is protected by attorney-client privilege is still protected. Our goal is not to catch them doing something wrong. It's to prevent terrorist acts." (227) Nevertheless, both the substance of the Regulation and the manner in which it was issued, were the seriously criticized, including by leading members of the Senate. (228)

Secret Proceedings and Government Non-Disclosure of Public Information

On November 8, the Department of Justice announced that it would not reveal the total number of people detained pursuant to the investigation into the September 11 attacks. (229) Initially, the Attorney General released a figure of approximately 1200 individuals in detention after the September 11 attacks. Foreign embassies and families seeking information about the detainees encountered difficulty in getting basic information about where the individuals were being held, or why, and began protesting the detentions. (230) There was also widespread criticism based on reports of civil and human rights abuses of the detainees, including those of a Jordanian college student who displayed bruises from mistreatment in jail, (231) and of 55-year old Pakistani Mohammed Rafiq Butt who died in jail from apparent heart failure. Neither of these individuals--nor apparently hundreds of others--was charged with criminal or immigration wrongdoing. The American Civil Liberties Union, with other organizations, filed a Freedom of Information Act lawsuit in federal court in Washington, D.C. to require the Attorney General to identify all the detainees being held in anonymity. (232)

On September 21, 2001, Chief Immigration Judge Michael Creppy issued an internal rule ordering immigration hearings to be held behind closed doors, and requiring immigration judges to refuse to confirm the existence of proceedings in post 9-11 cases. (233) When the Immigration Judge presiding over the case of detained Muslim pastor Rabih Haddad (234) declared his hearing in Detroit closed, Rep. John Conyers, Jr., publicly opposed the decision. (235) The district court agreed with Rep. Conyers, ordering the hearing to remain open to the public, and enjoining the blanket closure of hearings. (236)

Quasi-Military Commission

On November 13, President Bush issued a "Military Order" authorizing detention and trial by military commission of those aliens believed to have terrorist ties, or aliens who harbor such individuals. (237)

The USA Patriot Act

On October 24-25, the House and Senate approved sweeping antiterrorist legislation, the USA Patriot Act, without following the usual committee process. The Act, besides providing law enforcement with new powers to conduct searches, employ electronic surveillance and detain suspected terrorists, made great changes in parts of the immigration law. The new grounds of inadmissibility and removal broaden the definition of terrorist activity to include the use of any dangerous device. (238) It adds a definition of terrorist organization to include any organization so designated by the Secretary of State after certain findings, which include a finding that the organization 'provides material support to further terrorist activity.' (239) It also broadens the grounds of inadmissibility to include persons who endorse, (240) 'use their prominence to endorse, (241) or have been 'associated with' terrorist activity, as well as spouses and children of persons engaging in terrorism. (243)

The Act further provides mandatory detention of non-citizens until they are removed in those cases which the Attorney General issues a certification he has "reasonable grounds to believe" the non-citizen has engaged in terrorist activity or 'any other activity that endangers.. national security.' (244) Although the Act permits the detention of foreign nationals for up to seven days while the government is deciding whether to bring immigration charges against them, a Regulation passed by the Department of Justice seems to permit indefinite detention without charge at the fiat of the Attorney General. (245) This Regulation has also been criticized on a number of grounds, including that it is unconstitutional. (246)

Additional provisions in the Act permit retroactive application of the terrorist provisions. Thus, a non-citizen can be removed or denied entry for actions s/he took even before the law was passed. (247) Non-citizens can also be denied entry and removed for associating with terrorist organizations even if the organization was not so designated at the time of his/her association with it. (248)

Other Policy Measures Proposed Or Implemented

Among the policy options considered by the federal government was the use of torture to extract information from individuals under interrogation or in detention. (249) Torture was apparently seriously considered because many of the 'material witnesses' arrested and detained in the roundup after September 11 did not provide relevant information to their interrogators. Under circumstances in which the arrests were indiscriminate and based primarily on religion and ethnic origin, it is unsurprising that few of those arrested had any relevant information to provide. More surprising, perhaps, was that the use of torture was discussed as a legitimate tool by supposed civil libertarians. (250)

THE IMPACT ON CIVIL LIBERTIES OF ARABS AND MUSLIMS

Racial Profiling

One of the patterns emerging from the post 9-11 government policies is the use of race, religion and ethnicity to target particular communities in the U.S. for arrest, detention and removal. Using race profiling for law enforcement in the non-immigration context has been seriously challenged when the African-American or Asian-American communities have been the target. Race profiling has been discredited in that it violates the Fourth Amendment probable cause requirement; (251) it violates equal and is poor law enforcement strategy. (253)

Yet in the immigration context, race profiling might well pass constitutional muster. There are a number of significant legal obstacles to the use of the Fourth Amendment as a constraint on race profiling. (254) The first and possibly most significant, is the plenary power doctrine, which was first used to disallow substantive constitutional protections to non-citizens on entry, (255) but has since been extended to prevent the application of substantive constitutional rights to non-citizens both in the admission and deportation context. (256) The courts have interpreted plenary power both to give Congress extreme deference in its decisions concerning immigration, and to limit the scope of constitutional review over such decisions. The second obstacle is the judicial determination that the exclusionary rule will not ordinarily apply to correct Fourth Amendment violations in immigration proceedings, both because immigration proceedings are 'civil', not criminal, and because there is no deterrence justification to apply the rule against the INS. (257) The third obstacle has been the transformation of the exclusionary rule from one based on constitutional principles to a procedural remedy based on a balancing of its use as a deterrent against wrongful law enforcement behavior and the social costs of suppressing probative evidence. (258) The fourth significant problem is the judicial-review stripping provisions of recent legislation that makes it difficult if not impossible for non-citizens to challenge violations of the Fourth Amendment--or, for that matter, to make any constitutional challenges in the federal courts. (259)

Ideological Exclusion and Chilling Speech

The Administration's post-9-11 policies and new provisions of the USA Patriot Act once again raise the specter of ideological exclusion: denial of entry and deportation solely on the basis of Constitutionally-protected speech and association that is disfavored by the U.S. government. Despite the resounding defeat given to ideological exclusion both by courts and Congress in recent years, the Patriot Act and related Administrative rules discussed above, place ideological exclusion at the center of the 'war on terrorism.' The Patriot Act gives extraordinarily broad powers to the government to exclude and deport under a vague and expansive definition of terrorist activity that reaches broadly to persons supporting terrorist activity who may themselves have no knowledge of the alleged terrorist acts. The provisions allow INS to deny admission or deport as a terrorist anyone who threatens another using a "dangerous device." Thus, someone who protests outside an abortion clinic with a sign in a way that appears thr eatening would be deportable. The critical intent requirement of prior law has been eliminated, and a non-citizen can now be found "engaging in terrorist activity" even if he does not intend to further the terrorist activity, or did not know an organization was a terrorist organization. The law creates a presumption that the government's designation of someone as engaging in 'terrorist activity' is provable, and places a very high burden on the non-citizen for rebuffing the presumption (and in some circumstances, the burden will be impossible to meet). (260)

The Patriot Act's expansion of the terrorist organization designations, and new provisions related to terrorist organizations, are designed to suppress legitimate charitable activities if disfavored by the U.S. government. In light of the way the government has used far more limited provisions in prior law to target disfavored Arabs and Muslims (for example in the secret evidence cases), these new provisions give the government greater authority to single them out for detention, removal and suppression of speech and associations. (261)

Stripping Judicial Review and Eroding Due Process

Several problematic trends initiated by IIRIRA and AEDPA in 1996, are furthered by the Patriot Act. The Act extends the judicial review-stripping provisions of the 1996 legislation, (262) and provides that judicial review of any action or decision under the detention or Attorney General certification provisions is only available in habeas corpus proceedings. (263) Judicial review of the decision to detain or to certify will thus be unavailable in federal courts absent grounds for a habeas proceeding. (264) The Act also authorizes the Attorney General to certify an alien as a terrorist, or a danger to national security, on grounds that he need not disclose to the non-citizen, thus legitimizing the government's use of secret evidence for removal and detention. (265) Equally troubling for due process concerns are the provisions in the Patriot Act and administrative rulemaking that impinge on privacy and confidentiality of attorney-client communication and visa records. (266) Other recent actions by the Administr ation prohibit public access to information about government policies and tactics that bear little relationship to terrorism, but will have a severe impact on non-citizens and citizens' ability to challenge governmental actions that are arguably unconstitutional.

CONCLUSION

The Patriot Act and related Administration policies since 9-11 rely primarily on racial profiling--the singling-out of Arabs and Muslims for extreme treatment--to prevent or investigate terrorist activity. However, for the same reasons that racial profiling has been discredited when used against other minority groups, it should be discredited in the current context. As a criminal law enforcement tool, race/religion profiling is counterproductive: it alienates minority communities and increases the difficulties of obtaining much-needed cooperation in law enforcement. (267) Profiling of Arabs and Muslims spreads precious law-enforcement resources too thin, and ignores the significant data that race profiling does not work. For resourceful would-be terrorists, it is a simple matter to enlist individuals who do not fit the "profile" to be the next candidate for a hijacking. (268) Richard Reid, the "shoe-bomber", a British citizen of West Indian origin, is a perfect example of the inaccuracy of law enforcement bas ed on pro files. (269)

In many ways, the post 9-11 dragnet resembles the Japanese internment during World War II because, instead of individualized suspicion, statistical probabilities are being used to target discrete and insular minorities who are being classified as enemy aliens. Loyalty and national identity are thus being defined by 'foreign' appearance, whatever that may mean to the particular officer or agency in charge of the decision. This has grave consequences, not only for the civil liberties of Arabs and Muslims, but for all citizens who are members of minority groups. Similar concerns affect U.S. citizens, as their rights to confidentiality and privacy are eroded by government rules that violate fundamental notions of fair trial such as attorney-client privileged communication, open trials and hearings, the right to confront adverse government information, access to government records under the Freedom of Information Act, and limits on detention. (270) These fundamental tights are being eroded for non-citizens and cit izens alike.

Weak immigration laws were not the problem before 9-11; arguably, enforcement was. The terrorists were able to enter the U.S. and remain, not because of insufficient legal safeguards, but because of INS and other agency inefficiencies in implementing existing laws. (271) Mohammad Atta, for example, was admitted as a tourist. On entry, INS inspectors learned he planned to attend pilot training school--something he needed a student visa for. INS agents in Florida questioned him, saw that he had the wrong visa, but allowed him entry. (272) Neither Congress nor the Administration has made a convincing argument that law before 9-11 was insufficient to prevent the hijackers from entering the U.S. or getting on airplanes. Under the broader definition of terrorist in the Patriot Act, the 9-11 hijackers would not have been screened out because they had no previous criminal history, and had not announced their intention of attacking anyone. In contrast, the new provision will deny visas to broad classes of aliens who w ill now be ineligible for adjustment of status, release pending deportation, asylum and withholding of removal, with no more than an urebutted presumption on the part of the government that they were associated with someone engaging in terrorist activity. Anyone who has been involved in a knife fight will be inadmissible under the new law. No more than prior law, the Patriot Act will not make immigration officers mind readers, to be able to determine what an individual with no past criminal history plans to do on entering the United States.

The government's actions in the 'war on terrorism' after 9-11 do not appear to meaningfully enhance the security of the American people against terrorism. They are, on the other hand, exacting an extraordinarily high price on Arab and Muslim non-citizens, already demonized through historical animosity by private and government groups and individuals. They are, indeed, rapidly eroding the civil liberties of other non-citizens and U.S. citizens as well.

ENDNOTES

(1.) Larry B. Stammer and Somini Sengupta, "Muslims Enter American Mainstream," Los Angeles Times, April 6, 1993, p. 4.

(2.) Jack Shaheen, Reel Bad Arabs: How Hollywood Vilifies a People (New York: Olive Branch Press, 2001); See also Shaheen, Arab and Muslim Stereotyping in American Popular Culture (Springfield, IL.: Southern Illinois University, 1997); and Shaheen, The TV Arab (Bowling Green, Ohio: Bowling Green State University Press, 1984).

(3.) Edward Said, "A Devil Theory of Islam," The Nation, August 12, 1996. See also, Ahmed Yousef and Caroline Keeble, The Agent: The Truth Behind the Anti-Muslim Campaign in America (Springfield, VA.: United Association for Status and Research, 1999).

(4.) See the American-Arab Anti-Discrimination Comm. v. Anti-Defamation League (ADC v. ADL) case and foreign government and political organizations' influence on law enforcement.

(5.) See Adrien Katherine Wing, "Reno v. American-Arab Anti-Discrimination Committee: A Critical Race Critique," 21 Columbia Human Rights Law Review 561 (2000); Natsu Taylor Saito, "Symbolism Under Siege: Japanese American Redress and the "Racing" of Arab Americans as Terrorists," 8 The Journal of Asian Law 1 (2001). See also Michael Omi and Howard Winant, Racial Formation in the United States (New York: Routledge, 2d ed., 1994) (analyzing how "race" is constructed in the United States).

(6.) See discussion of 'Operation Boulder'; the FBI questioning and fingerprinting of Arabs during the Gulf War; and the post-Oklahoma city interrogations.

(7.) See discussion of the secret evidence cases.

(8.) After the July 1986 TWA flight 800 crash off Long Island, President Clinton appointed Vice President Al Gore to form the White House Commission on Aviation Safety and Security (Gore Commission). The Gore Commission made a number of recommendations, including a system of automated passenger profiling. See White House Commission on Aviation Safety and Security, Final Report (1997), http://www.aviationcommission.dot.gov212fin1.html. Following reports of discrimination against people of Arab or Muslim appearance, the Department of Transportation issued a Policy Statement that a person could not be treated differently based solely on national origin or religion. See U.S. Dept. of Transportation, Carrying out Transportation Inspection and Safety Responsibilities in a Nondiscriminatory Manner, October 17, 2001 (www.dot.gov/airconsumer/OGCreminder1./htm).

(9.) Since 1986, one of the major tools by which the government has sought to suppress 'terrorist activities' has been to designate specified organizations as "terrorist organizations." Such designation permits the government to freeze the assets of such groups and otherwise criminally and civilly prosecute both the groups and individuals associated with them. See 2001 Report on Foreign Terrorist Organizations, Office of the Coordinator for Counterterrorism, October 5, 2001, available at http://www.state.gov/s/ct/rls/fto/2001/5258.htm; updated at www.state.gov. The federal government's efforts at shutting down funding, assets and activities of groups presumed to be involved in terrorism have so far produced little evidence of terrorist links, but have caused great hardship to individuals and organizations involved in global humanitarian and social causes in the United States. For press reports on some of the most recent actions, see Neely Tucker, "Muslim Charity's Lawsuit Raises 'Distressing' Issues, Judge Sa ys," Washington Post, April 23, 2002, A 04; see also, Tim Golden, "A Nation Challenged by Money: 5 Months After Sanctions Against Somali Company, Scant Proof of Qaeda Tie," The New York Times, April 13, 2002, p. 10.

(10.) There were 33 documented secret evidence cases between 1987 and September 11, 2001. For discussion of the cases litigated between 1996 and 2001, see Susan M. Akram, "Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, 14 Georgetown Immigration Law Journal 51, (1999), 52 n. 4. See also, David Cole, "INS Terrorizes Arabs in the U.S.," Legal Times, May 18, 1998, p. 29. Secret evidence proceedings against the following individuals, among others, were initiated after the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Individual Responsibility Act (IIRIRA) in 1996: Mazen Al-Najjar; Nasser Ahmed; Anwar Haddam; the "Iraqi Six."

(11.) Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism, USA Patriot Act of 2001, Pub. L. No. 107-56. PATRIOT Act [section] 802 (amending 18 U.S.C. [section] 2331) creates a new crime of "domestic terrorism", defined as "acts dangerous to human life that are a violation of the criminal law"...and "appear to be intended...to influence the policy of a government by intimidation or coercion," and if they "occur primarily within the territorial jurisdiction of the United States." [section] 411 of the Act (amending 8 U.S.C. [section] 1182(a)(3), INA 2 12(a)(3) expands grounds of inadmissibility to include a 'representative of' a terrorist organization or a "political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities." [section] 412 of the Act (amending 8 U.S.C. 1101, et seq) imposes mandatory indefinite detention of su spected terrorists; eliminates the tight to habeas corpus; and the right to federal judicial review. The Act's [section] 416 institutes a stringent mandatory student monitoring program. [section] 503 institutes DNA identification of 'terrorists' and other violent offenders.

(12.) David Firestone and Christopher Drew, "A Nation Challenged: The Cases; Al-Qaeda Link seen in only a Handful of 1,200 Detainees," The New York Times, November 29, 2001, p. 1. Christopher Drew and William K. Rashbaum, "A Nation Challenged: The Arrests; Opponents' and Supporters' Portrayals of Detentions Prove Inaccurate," The New York Times, November 3, 2001, p.1. William Glaberson, "A Nation Challenged: The Arrests; Detainees' Accounts are at Odds with Official Reports of an Orderly Investigation," The New York Times, September 29, 2001, p.2.

(13.) Michelle Mittelstadt, "Justice Seeks to Question More than 5,000 Men in U.S. from Countries Tied to Al-Qaeda Network," The Dallas Morning News, November 14, 2001. See also, Fox Butterfield, "A Nation Challenged: Background Checks; Justice Dept. Bars Use of Gun Checks in Terror Inquiry," The New York Times, p.1; and Eetta Prince-Gibson and Richard A. Serrano, "What Price Security?" The Los Angeles Times, November 2, 2001.

(14.) Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Federal Register: Nov. 16, 2001 (Vol. 66, No. 222), Presidential Documents, p. 57831-57836. Unlike Pres. Roosevelt's order permitting trial of spies and war criminals during World War II, this Order was issued without Congressional authorization, as required by the Constitution, which gives Congress, not the President acting alone, the power "To define and punish....Offences against the Law of Nations." Military tribunals should be authorized by Congress only if the regular courts cannot function in particular cases. Regularly-constituted courts have so far proven completely competent to prosecute and sentence terrorist cases such as the prior WTC attempted bombing cases. Moreover, military tribunals, if authorized by Congress must comply with basic international and constitutional due process standards, which are not provided for by the Order. For a detailed summary of civil libert ies concerns about the Order, see ACLU Memorandum to Congress Re: President Bush's Order Establishing Military Tribunals, November 29, 1991, at http://www.aclu.ora/congress/112901b.html.

(15.) A number of organizations have been documenting hate crimes against Arabs, Muslims or those mistaken for Arabs/Muslims for many years. The Council on American-Islamic Relations (CAIR) reported 1717 such incidents around the country between September 11 and February 8, 2002. For an updated report, see http://www.cair-net.org. The American-Arab Anti-Discrimination Committee (ADC) reported some 600 violent incidents between September 11 and March 27, 2002. Not all incidents have been confirmed as hate crimes, but all were directed toward Arab Americans, or those mistaken for Arabs or Muslims; see ADC Fact Sheet: The Condition of Arab Americans Post 9/11, American-Arab Anti-Discrimination Committee, available at http://www.adc.org. The Sikh Coalition compiled a listing of 185 attacks against Sikhs for the same time period. See http://www.sikh.org. At the beginning of April 2002, The Department of Justice was investigating 350 incidents nationwide, see U.S. Department of Justice Civil Rights Division, enforc ement and Outreach Following the September 11th Attack, available at http://www.usdoj.gov/crt/legalinfo/discrimupdate.htm. The current climate in which dissenters are labeled "unpatriotic" contributes to fear of retribution for speaking out. For example, the American Council of Trustees and Alumni, a "non-profit educational organizations" chaired by Lynn Cheney, published a report that included a list of quotes by academic dissenters that has been likened to the blacklists of the McCarthy Era. See Defending Civilization: How Our Universities Are Failing America and What Can be Done About it, American Council of Trustees and Alunmi, February 2002, available at www.goacta.org/Reports/defciv.pdf. See also, Brian Knowlton, "On US Campuses, Intolerance Grows, New Pressures on Free Speech," International Herald Tribune, February 12, 2002, at Special Report, 19.

(16.) See Natsu Taylor Saito, "Symbolism Under Siege: Japanese American Redress and the "Racing" of Arab Americans as Terrorists," 8 Journal of Asian Law 1, 11-26 (2001); see also, Kevin R. Johnson, "Fear of an "Alien Nation": Race, immigration, and immigrants," 7 Stanford Law & Policy Review 111 (1996).

(17.) Omi & Winant break with classic race theories that characterize 'race' as fixed or objective, suggesting "racial formation" as a more accurate theory to explain how race operates in the United States. They describe 'race' as "an unstable and 'de-centered' complex of social meanings constantly being transformed by political struggle." Michael Omi and Howard Winant, Racial Formation in the United States, p. 68.

(18.) Alixa Naff, "The Early Arab immigrant Experience," Ernest McCarus, (ed.), The Development of Arab-American Identity (Ann Arbor: University of Michigan Press, 1994), PP. 24-26. Hagopian and others note that it was not until the creation of Israel in 1948 that political and legal discrimination and monitoring, both by US government and by private groups, targeted Arabs in America. Before that time, Arabs were as assimilated in U.S. society as any other group--and in fact, did not develop strong ethnic institutions like other immigrant groups until the '60's and '70's. Thus, much of the 'racializing' of Arabs in America (separate from Muslims in America, although there is some overlap) can be directly traced to the organizing efforts of Zionist Jewish interests in the United States. Elaine Hagopian, "Minority Rights in a Nation-State: The Nixon Administration's Campaign Against Arab-Americans," Journal of Palestine Studies, pp. 104, passim. For information on the transformation of the role of leading Jewis h institutions and agencies from a focus on Jewish social, cultural, religious and educational concerns to a focus on defense of Israeli Zionism, see: Hearings Before the Committee on Foreign Relations, U.S. Senate Committee on Foreign Relations, "Activities of NonDiplomatic Representatives of Foreign Principals in the United States," Part 9 and 12, May 23 and August 1, 1963 (US Printing Office); Bernard H. Baum, "Zionist Influence on American Higher Education," Issues, American Council for Judaism, Autumn 1965; A Program Manual for Zionism on the Campus, Student Zionist Organization, New York, 1963; Lawrence Mosher, "Zionist Role in US Raises New Concern," National Observer, May 18, 1970. For more recent reports on the continuing role of major Jewish groups to further Israeli Zionist agendas, see: Robert I. Friedman, "The Jewish Thought Police: How the Anti-Defamation League Censors Books, Intimidates Librarians, and Spies on Citizens," The Village Voice, July 27, 1993; Matt Isaacs, "Spy vs. Spite: The Clint on Administration has praised the Anti-Defamation League for Helping Shield Kids from Internet Hate. But Should a Group that Spied on Thousands of Californians be Allowed to Police the Web?" San Francisco Weekly, February 2, 2000; Robert I. Friedman, "The Israel Lobby's Blacklist: Exposing AIPAC's Activities," The Village Voice, August 4, 1992. See also, Alfred Lilienthal's mammoth work on the subject, The Zionist Connection II: What Price Peace? (New Brunswick, NJ.: North American Publishers, 1982).

(19.) "It is imperative [to understand race as a dynamic complex of social meanings] for two reasons. First, because today as in the past racial minorities pay a heavy price in human suffering as a result of their categorization of "other" by the dominant racial ideology; this is true not only in the United States, but across the world. Second, because racial politics are emblematic, we believe, of a new stage of US politics as a whole, a new socially based politics." Omi & Winant, pp. 68-69.

(20.) Nabeel Abraham, "Anti-Arab Racism and Violence in the United States," The Development of Arab-American Identity, p. 180.

(21.) See Nabeel Abraham, "The Real Target of the Airport Atrocities," Middle East International, January 24, 1986, pp. 14-16 (1986); Nabeel Abraham, "Arab-American Marginality: Mythos and Praxis," in Arab-Americans: Continuity and Change, Baha Abu-Laban and Michael Suleiman, (eds.), (Belmont, Mass: Association of Arab-American University Graduates Press, 1989); Nabeel Abraham, "The Gulf Crisis and Anti-Arab Racism in America," in Collateral Damage: The New World Order at Home and Abroad, Cynthia Peters (ed.), (Boston: South End Press, 1991). See also M. Cherif Bassiouni, "The Civil Rights of Arab-Americans: "The Special Measure," Information Paper No. 10. Belmont, Mass: Association of Arab-American University Graduates, 1974; Elaine Hagopian, "Minority Rights in a Nation-State: The Nixon Administration's Campaign Against Arab-Americans," Journal of Palestine Studies, Autumn-Winter, 1975-76; Paul Findley, They Dare to Speak Out (Westport. CT.: Lawrence Hill, 1984); Edward Said, Orientalism (New York: Pantheon , 1978); Edward Said, "A Devil Theory of Islam," The Nation, August 1996; Ahmed Yusuf and Caroline Keeble, The Agent: The Truth Behind the Anti-Muslim Campaign in America.

(22.) Abraham, p. 157.

(23.) Bruce Hoffman, Terrorism in the United States and the Potential Threat to Nuclear Facilities, 11,15 (Rand Corp, 1986); Robert Friedman, "Nice Jewish Boys with Bombs," The Village Voice, May 6, 1986; Friedman, "Kahane's 'Good Jewish Boys,'" Nation, January 16, 1988. One former JDL member stated that in 1982 "fifty good, dedicated JDL people.. would prowl the streets of New York in search of Arab or Russian victims. That summer there were twelve to fifteen bombings. We had an underground bomb lab in a house in Borough Park crammed with explosives, Tommy guns, Uzis..." quoted in Robert Friedman, "Kahane's 'Good Jewish Boys.'"

(24.) John W. Harris, "Domestic Terrorism in the 1980's," FBI Law Enforcement Bulletin, October 1987, p. 6, cited in Abraham, Anti-Arab Racism, p. 157. See also, Michael J. Whidden, "Unequal Justice: Arabs in America and United States Antiterrorism Legislation," 69 Fordham Law Review 2825 (2001).

(25.) FBI, Terrorism in the United States, yearly reports, at http://www.fbi.gov/publications.

(26.) Chris Lutz, "They Don't All Wear Sheets: A Chronology of Racist and Far Right Violence--1980-1986." Atlanta: Center for Democratic Renewal/National Council of Churches, 1987. See ADL, "Hate Groups in America," New York: Anti-Defamation League, 1988; ADL, "Extremism on the Right: A Handbook," New York: Anti-Defamation League, 1988. For a critique of the accuracy and objectivity of these hate crimes statistics and summaries, see Abraham, pp. 155-157. Well-known violent crimes against Arabs and Muslims by Jewish hate groups are simply omitted from the reports. See descriptions of the bombings and arson of American-Arab Anti-Discrimination Committee (ADC) offices in Boston, Washington, and Los Angeles, the rash of vandalizing or telephone threats against mosques and Muslim institutions in Denver, Dearborn, Quincy, Los Angeles, considered by the FBI to be the work of the JDL or related Jewish hate groups, cited in Abraham, Anti-Arab Racism, p. 162.

(27.) Alfred Lilienthal, "The Changing Role of B'nai B'rith's Anti-Defamation League," The Washington Report on Middle East Affairs, June 1993, p. 18.

(28.) Pro-Arab Propaganda in America: Vehicles and Voices, A Handbook (1983-First Edition), Anti-Defamation League of B'nai B'rith. Copy on file with the author.

(29.) Ibid.

(30.) As an example, the Handbook states: "Dr. Walid Khalidi, a Palestinian scholar and author is one of the leading pro-PLO intellectuals and theoreticians in the U.S....Khalidi's pro-Palestinian activities go back many years...Khalidi has been a close advisor to PLO leader Yasir Arafat...In his article, titled "Thinking the Unthinkable: A Sovereign Palestinian State," which appeared in the July, 1978 issue [of Foreign Affairs], Khalidi advocated the establishment of a PLO-led Palestinian state on the West Bank and Gaza Strip." The thrust of the comments and the campaign was to equate every Palestinian who supported Palestinian independence or criticized Israel as 'anti-Semitic,' pp. 75-76. On file with the author.

(31.) Lilienthal, Ibid.

(32.) In November 1984, the Middle East Studies Association (MESA) passed a resolution criticizing the ADL for defaming students, teachers and researchers as "pro-Arab propagandists;" MESA passed a second Resolution to the same effect in 1997. Betsy Barlow, "Middle East Studies Association Condemns ADL Philadelphia Office," Washington Report on Middle East Affairs, January/February 1997, p. 72, available at www.washingtonreport.org/backissues/0l97/9701072.htm. MESA members had been targeted after the ADL and AIPAC list of allegedly anti-Israel, pro-Arab individuals and groups was distributed among student leaders at college campuses. See ADL letters by Leonard Zakim and Jordan Millstein (student coordinator), dated November 1983, on file with the author. Millstein's letter states: "the New England Regional Office of the Anti-Defamation League (ADL) is putting together its 1983-84 program designed to help Jewish students deal with anti-Zionist and anti-Semitic activities on the college campuses."

(33.) The Campaign to Discredit Israel, Washington, DC: American Israel Public Affairs Committee, 1983; Kessler, J.S., and J. Schwaber, The AIPAC College Guide: Exposing the Anti-Israel Campaign on Campus, Washington, D.C: American Public Affairs Committee, 1984.

(34.) Paul Findley, They Dare to Speak Out; Naseer Aruri, "The Middle East on the US Campus," THE LINK, New York: Americans for Middle East Understanding, May-June, 1985; Edward Tivnan, The Lobby: Jewish Political Power and American Foreign Policy (New York: Simon and Schuster, 1987); Robert Friedman, "PACmen," The Nation, June 6, 1987; Rachelle Marshall, "The Decline of the B'nai B'rith: From Protector to Persecutor," Washington Report on Middle East Affairs, April, 1989.

(35.) Dennis Opatray and Scott Winokur, "S.F. Spying Case Details Laid Bare," San Francisco Examiner, April 11, 1993.

(36.) Abdeen Jabara, "The Anti-Defamation League: Civil Rights and Wrongs," 45 Covert Action, Summer 1993, pp. 28-29. Abdeen Jabara was counsel for the ADC in the ADC v. ADL litigation that ensued from the 1993 ADL spy scandal.

(37.) Jabara, p. 29.

(38.) Although the direct connection between ADL and Israeli and South African intelligence only became public as a result of the ADL 1993 lawsuit, ADL's intelligence-gathering in cooperation with Israel apparently began years before. In a July 7, 1961 letter, ADL national director Benjamin Epstein asked Saul Joftes, a senior official of the B'nai B'rith for $25,000 to help fund spying operations against Arabs. "As you know...the Anti-Defamation League for many years has maintained a very important, confidential investigative coverage of Arab activities and propaganda...In the course of our work, we have maintained an information-gathering operation since 1948 relating to activities emanating from the Arab Consular Offices, Arab United Nations Delegations, Arab Information Center, Arab Refugee Office, and the Organization of Arab Students. In order to obtain complete and thorough data on these activities, we must follow the Arab diplomatic corps in their political efforts, lobbying activities and propaganda p rograms emanating from their embassies...[as well as] Arab relations with organizations like the American Friends of the Middle East and all their professional publicity efforts. Our information, in addition to being essential for our own operations, has been of great value and service to both the United States State Department and the Israeli Government. All data have been made available to both countries with full knowledge to each that we were the source..." Quoted in Robert Friedman, "How the Anti-Defamation League Censors Books, Intimidates Librarians, and Spies on Citizens," The Village Voice, July 27, 1993, p. 38.

(39.) Opatray and Winokur, "Israeli Detainee Linked to S.F. Police Spy Case," San Francisco Examiner, February 12, 1993; Robert Friedman, "The Enemy Within," The Village Voice, May 11, 1993; Jim McGee, "Jewish Group's Tactics Investigated," Washington Post, December 19, 1993.

(40.) Final Settlement, American-Arab Anti-Discrimination Comm. v. Anti-Defamation League, Civ. Action No. 93-6358 RAP (Sbx) (C.D. Cal). The class action was brought by the American-Arab Anti-Discrimination Committee, numerous civil rights organizations, and several individuals.

(41.) See Michael Gillespie, "Los Angeles Court Hands Down Final Judgment in Anti-Defamation League Illegal Surveillance Case," The Washington Report on Middle East Affairs, December 1999, www.washingtonreport.org. ADL is required to provide an annual statement to the court and to ADC's legal counsel explaining the steps it is taking to comply with the court order. A court-appointed Special Master will supervise the removal of illegally obtained information from ADL's files, and hold those records for no more than 10 years to allow time for other potential complainants to file actions against ADL. The ADL is to contribute $25,000 to a community relations fund, and to pay $175,000 for plaintiff's legal fees. See Final Settlement, American-Arab Anti-Discrimination Comm. v. Anti-Defamation League. For press reports on the different legal actions against the ADL, see Bob Egelko, "Jewish Defense Group Settles S.F. Spying Suit," San Francisco Chronicle, February 23, 2002, A23; see also Dan Evans, Adversaries Go Ins ide ADL's Spying Operation," San Francisco Examiner, April 1,2002.

(42.) Information routinely obtained by ADL, primarily from police, FBI and other law enforcement agencies through SFPD officer Tom Gerard included fingerprint cards, mug shots, Social Security numbers, vehicle registration numbers, Post Office boxes, surveillance reports and political intelligence. Gillespie, p. 4.

(43.) Ron Soble, "Deportation Bid in Arab Case Focuses on Magazines," Los Angeles Times, February 17, 1987; Jabara, p. 37.

(44.) Gillespie, p. 3.

(45.) ADL maintains a very public profile of its 'filekeeping on hate'. See, for example, ADL advertisement in New York Times, May 11, 1997, entitled "we hate keeping files on hate", in which it claims "For 83 years, ADL has considered it our duty to collect and process information on racists, antiSemites and extremists by monitoring and analyzing publications of all kinds and to share our findings to help focus American public opinion on the dangers of bigotry and hatred. No other organization has published the quality of such information as we have. The FBI, law enforcement agencies and the media have used our research and fact finding publications as a dependable source of information about prejudice and hate crimes..." Copy on file with author.

(46.) Abraham, Anti-Arab Racism, p. 187. For recent examples of ADL's intimidation tactics, see The Washington Report on Middle East Affairs, January/February 2002, "ADL and AJC Demand Muslim Panelists be Excluded" (reporting that the Florida Commission on Human Relations rejected a demand by the Florida ADL to exclude a Muslim representative from a panel at a civil rights conference. The article also reports a November 18, 2001 incident of the American Jewish Committee seeking to exclude Ghazi Khankan, executive director of the Council on American-Islamic Relations (CAIR), New York Chapter, from participating in a public forum on intercultural understanding because he was "anti-Israel." In another reported incident, ADL demanded that CAIR's Northern California director Helal Omeira be prevented from offering testimony on hate crimes before a hearing of the California Select Committee on Hate Crimes.

(47.) Sydney Harris, "The World Shrinks and Stereotypes Fall," Detroit Free Press, April 11, 1986, editorial page.

(48.) Abraham, pp. 188-192.

(49.) Greater Detroit has the highest concentration of Arab residents and citizens of Arab origin of any other community in the United States. Abraham, p. 196.

(50.) See Abraham, Anti-Arab Racism, pp. 188-92. For detailed reports on anti-Arab hate crimes, see American-Arab Anti-Discrimination Committee, 1991 Report on Anti-Arab Hate Crimes: Political and Hate Violence Against Arab-Americans; American-Arab Anti-Discrimination Committee, 1995 Report on Anti-Arab Racism: Hate Crimes, Discrimination and Defamation of Arab-Americans; American-Arab Anti-Discrimination Committee, 1996-97 Report on Hate Crimes and Discrimination against Arab-Americans; American-Arab Anti-Discrimination Committee, 1998-2000 Report on Hate Crimes and Discrimination Against Arab-Americans (reports archived at http://www.adc.org).

(51.) "Let's Talk About City Parks and the Arab Problem," brochure of the Guido Mayoral campaign, cited in Abraham, p. 191.

(52.) Abraham, p. 196.

(53.) Prominent politicians have returned money donated by Arab-American and Muslim-American groups, with or without explanation, presumably fearing that such donations carry political risk. For example, in the 1984 presidential campaign Walter Mondale returned $5,000 in contributions because they were from five citizens of Arab ancestry; see "Mondale Camp Returns Funds to U.S. Arabs," New York Times, August 25, 1984, p. 28; in 1983, Philadelphia mayoral candidate Wilson Goode returned over $2,000 in campaign contributions from Arab-Americans, see Stephen Franklin, "Arab-Americans Fall Victim to Mid-East Kuwaiti Ship Flagging Sparks Fears," Chicago Tribune, July 12, l987,p. 19; in 1986, Joe Kennedy in his first congressional race returned $100 to James Abourezk, Arab-American and former Democratic senator from North Dakota; see "The Untouchables, Immigration Service Arrests Palestinians," The Nation, March 21, 1987; and in 2000, Senate hopeful Hilary Clinton returned $50,000 to Muslim organizations, see Dean Murphy, "Mrs. Clinton Says She Will Return Money Raised by a Muslim Group," New York Times, October 26, 2000, Al. Most recently, New York City Mayor Rudolph Guiliani returned ten million dollars donated by Saudi Prince Alwaleed Alsaud for the victims of the World Trade Center bombing. See Neil MacFarquhar, "Saudi Sheik Regrets Giuliani Turning Down his Donation," New York Times, October 13, 2001, B4. For an interview with Prince Alwaleed in which he discusses his offer of $10 million for the WTC victims, see Middle East Insight, January-February, 2002), (available online at: www.mideastinsight.org)

(54.) Jack G. Shaheen, Reel Bad Arabs.

(55.) Hundreds of movies, according to Shaheen, show Westerners hurling such epithets at Arabs as "assholes", "bastards", "camel-dicks" "pigs", "devil-worshipers", "jackals", "rats", "rag-heads", "towel-heads", "scumbuckets", "sons-of-dogs", "buzzards of the jungle", "sons-of-whores", "sons-of-unnamed goats", "sons-of-she-camels". Shaheen, p. 11.

(56.) Shaheen, pp. 22-23.

(57.) Shaheen p. 34.

(58.) Shaheen, pp. 10,11.

(59.) Menachem Golan and Yoram Globus, two Israeli producers, formed the American film company, Cannon. In 1982, Globus was appointed Israel's director of the Film Industry Department, which monitors all movies made in Israel. Cannon films, meanwhile, produced more than 26 "hate-and-terminate-the-Arab movies." Shaheen, p. 6.

(60.) Shaheen, p. 15. Shaheen describes how audiences fully accept the demonization in these movies. "To my knowledge, no Hollywood WWI, WWII, or Korean War movie has ever shown America's fighting forces slaughtering children. Yet, near the conclusion of Rules of Engagement, U.S. marines open fire on the Yemenis, shooting 83 men, women, and children. During the scene, viewers rose to their feet, clapped and cheered. Boasts director Friedkin, 'I've seen audiences stand up and applaud the film throughout the United States.'"

(61.) Shaheen, p. 9.

(62.) Ibid.

(63.) Shaheen, p.33. Shaheen describes it as "an injustice: cinema's systematic, pervasive, and unapologetic degradation and dehumanization of a people," p. 1.

(64.) 1990 ADC Annual Report on Political and Hate Violence, Washington, DC: American-Arab Anti-Discrimination Committee, February, 1991; "Hate Crimes Chronology, Update," Washington, DC.: ADC, February 6, 1991; Noam Chomsky, Pirates and Emperors: International Terrorism in the Real World (New York: Claremont and Amana, 1986); Bob Baker, "Anti-Arab Violence Represents 17% of Racial, Religious Attacks in 1985," Los Angeles Times, March 1, 1986; "Arab-Bashing in America," Newsweek, January 20, 1986. See also, Abraham, Anti-Arab Racism; and Abraham, "The Gulf Crisis and Anti-Arab Racism in America."

(65.) "Stalemate Continues; Hijackers Let Television Reporters Interview Jet Pilot," The Record, June 19, 1985, p. 1.

(66.) Abraham, Anti-Arab Racism, pp. 161-162.

(67.) Bob Baker, "Anti-Arab Violence."

(68.) See Hearings of the Committee on the Judiciary, Subcommittee on Criminal Justice, Ethnically Motivated Violence Against Arab-Americans, 99th Cong., 2d sess., July 16, 1986 (cited in Abraham, Anti-Arab Racism, p.162).

(69.) The day before his death, Odeh had appeared on a television interview in which he condemned the highjacking and terrorism in general, but said he believed Yasser Arafat was not behind the event. The program cut out of the televised interview his condemnation of the terrorist act, but kept the rest of his statement. John P. Egan, "Another Victim: Alex Odeh," Chicago Tribune, November 6, 1985, p.19. The New York Post reported his death and television statements as "publicly prais[ing] Yasser Arafat's role in the seajacking", under the title "Arafat Fan Killed, 7 Arabs Injured in Car Bomb Blast," New York Post, October 12, 1985. At the time, JDL head Irv Rubin, stated to reporters: "No Jew or American should shed one tear for the destruction of a PLO front in Santa Ana or anywhere else in the world. The person or persons responsible for the bombing deserves our praise for striking out against the murderers of Americans and of Jews." "Bomb Kills Leader of U.S. Arab Group," New York Times, October 12, 1985. To the Washington Post, Rubin said: "I have no tears for Mr. Odeh. He got exactly what he deserved." October 13, 1985. The main FBI suspect in Odeh's killing were JDL members who emigrated to Israel. The Odeh murder remains unsolved. See Detroit Jewish News, January 6, 1989; ADC Times, September, 1993, p. 9; Jerusalem Post, International Edition, October 9, 1993, p. 3. Rubin has recently been indicted for conspiring to bomb a mosque in Los Angeles, and the office of Congressman Darrell Issa, who is of Lebanese ancestry. See Greg Krikorian and Richard Winton, "JDL Leader accused in L.A. mosque bomb plot," Los Angeles Times, December 13, 2001; David Rosenzweig, "2 JDL Leaders are Indicted by U.S. Grand Jury," Los Angeles Times, January 11, 2002, part 2, p. 3; see also Delinda C. Hanley, "Freeze on Jewish Defense League Assets Called for After JDL Bomb Plot Foiled," Washington Report On Middle East Affairs, January/February 2002, p. 16 (discussing JDL violence against Arabs and Muslims).

(70.) Abraham, Anti-Arab Racism.

(71.) Abraham, p.171.

(72.) ADC reports; ADC "Harrassment and Violence Log Sheet," Congressional Hearings, Ethnically-Motivated Violence, 1988.

(73.) The family reported that their house had been broken into a bedroom set on fire the prior year. Steve Lerner, "Terror Against Arabs in America," New Republic, July 28, 1986, p. 24.

(74.) ADC reports, 1991.

(75.) Ibid.

(76.) Abraham, Anti-Arab Racism, p. 204.

(77.) ADC also logged 36 incidents of hate crimes against both Arab-Americans and others who were mistaken for Arabs between August 8, 1990 and February 2, 1991. ADC reports, 1991.

(78.) See Published Papers of the President (1974). For discussion of the Operation Boulder directives and their effect on civil rights of the Arab-American communities around the U.S. see The Civil Rights of Arab-Americans, Information Paper No. 10, Association of Arab-American University Graduates (M. Cherif Bassiouni (ed.), January, 1974).

(79.) For reporting on "Operation Boulder," see The New York Times, October 5, 1972; "Israel Fighting Terror with Terror," Washington Post, October 15, 1972; Lawrence Mosher, "Arabs Taste US Terror," National Observer, November 18, 1972; the Chicago Sun-Times, July 9, 1973; Newsweek, June 18, 1973, p. 32; and American Report, June 18, 1973.

(80.) Hagopian, "Minority Rights in a Nation-State: The Nixon Administration's Campaign Against Arab-Americans," Journal of Palestine Studies, Autumn-Winter, 1975-1976.

(81.) New York Times investigative report on "Operation Boulder," May 24, 1973. See also, The Civil Rights of Arab-Americans, M.Cherif Bassiouni, (ed.), Information Paper No. 10, Association of Arab-American University Graduates, January, 1974, and Hatem Hussaini, "The Impact of the Arab-Israeli Conflict on Arab Communities in the United States," I. Abu-Lughod and Baha Abu-Laban, (eds.), Settler Regimes in Africa and the Arab World: The Illusion of Endurance (Wilmette, IL.: Medina University Press, 1974), pp. 216-218. The Nixon Administration may also have had a domestic agenda for putting "Operation Boulder" into effect on the behest of the Zionist pressure groups. Nixon wanted to siphon Jewish votes and funds from the Democrats in the 1972 Presidential election. See Hagopian, p. 106. Commentators opined that the Munich Affair was simply an excuse for the Nixon Administration to target Arabs in America for domestic and foreign policy purposes. See Bassiouni, pp. 14, 22-23; Hussaini, pp. 216-218; Hagopian, p. 101.

(82.) Hagopian, p. 102.

(83.) Associated Press, May 22, 1974. Abdeen Jabara was not the first, nor the last, Arab-American lawyer or lawyer representing Arabs in the courts, subjected to long-term FBI surveillance. During the FISA litigation in Washington, DC, related to the LA-8 proceedings in California, the INS and FBI admitted to wiretapping not only the conversations of the LA-8, but their attorneys' conversations as well. Robert A. Dawson, "Shifting the Balance: The DC Circuit and the Foreign Intelligence Surveillance Act of 1978," 61 George Washington Law Review 1380, 1398 (1993). More recently, Lynne Stewart, counsel for Sheikh Omar Abdel Rahman, the blind cleric convicted for conspiracy in the first WTC bombing plot, has been indicted for violating the terms of the special agreement under which the government permitted her to visit her client in solitary confinement. The information upon which the indictment is based was obtained by government monitoring of her conversations with her client. See Alexandra A.E. Shapiro and N oreen A. Kelly-Najah, "Indictment Raises Questions About Scope of Federal False Statements Statute," Law. com, April 22, 2002, available at www.law.com; see also Michale Powell, "An Advocate For Radicals Whom Most Lawyers Spurn," Washington Post, April 10, 2002, A09.

(84.) Chomsky, Pirates & Emperors: International Terrorism in the Real World, p. 135.

(85.) Chomsky, pp. 138-140.

(86.) The Abu Nidal faction of the PLO, which had broken with Arafat, was ultimately found responsible for the attacks on the Rome and Vienna airports. The Italian and Austrian governments provided information that the terrorists were trained in Syrian-controlled parts of Lebanon, and had come to Europe via Damascus. Then Defense Minister of Israel, Yitzhak Rabin reaffirmed that conclusion. Months later officials of those governments reiterated that "there is not the slightest evidence to implicate Libya." Chomsky, pp. 135-36. Moreover, the FBI itself claimed it had no evidence of any Libyan hit squads in the US. FBI assistant director Oliver Revell stated in an interview to the Washington Times in January 1986 that claims that Qaddafi had sent terrorists to the US was "a complete fabrication." Washington Times, March 27, 1986.

(87.) According to commentators, the Reagan Administration had targeted Libya early in its first term in 1981, as part of its 'war on terrorism'. The U.S. bombing raids on Libya from 1981 to 1986, although apparently based on no evidence of Libyan involvement in any of the terrorist attacks of the time--the Rome and Vienna airport attacks, the TWA Rome to Athens flight and the West Berlin nightclub bombing--have been explained in the context of a decision made by Reagan in 1981 to attack Libya. Chomsky, pp. 149-150; see also Jeff Madrick, "Economic Scene, Effective Victory in the War Against Terror Hinges on Cutting Off Resources," New York Times, March. 21, 2002, C2; Peter Slevin, "Bush White House Reconsidering Reagan's 'Evil Man'; Gaddafi's Gestures May Change Policies," Washington Post, March 11, 2002, A14. The consequence of the Administration campaign, however, was repeated U.S. attacks and bombings on Libya and Libyan territory, causing the deaths of over a hundred Libyan people. See Chomsky, pp. 142-1 43.

(88.) Abraham, Anti-Arab Racism, pp. 193-194.

(89.) Cited in Nabeel Abraham, "The Gulf Crisis and Anti-Arab Racism in America," Cynthia Peters, (ed.), Collateral Damage: The New World Order at Home and Abroad (1992), pp. 259, 265, 266, 269; see also Sarah Helm, "Famine After the Desert Storm," The Independent (London), January 8, 1995, p. 4.

(90.) One frequently-cited 'atrocity' cited by President Bush and others in his administration was that Iraqi soldiers took babies out of incubators in Kuwaiti hospitals to die. This story proved to be a fabrication. See Alexander Cockburn, "Beat the Devil," The Nation, February 4, 1991. See also, Abouali Farmanfarmaian "Did you Measure Up? The Role of Race and Sexuality in the Gulf War," Collateral Damage, p. 114. For critique of the official versions justifying US intervention in the Gulf, see Chomsky, "The Gulf War," The Real Story Series: What Uncle Sam Really Wants (Tucson, AX.: Odonian Press, 1997), pp. 60-68. Although much information was disseminated in the U.S. about Iraqi atrocities against Kuwaitis, very little information was publicly available about atrocities committed by the U.S. against Iraqi civilians and Iraqi combatants who had put down their arms. Well-documented accounts indicate that between 16 January and 27 February, 1991, some 88,000 tons of bombs were dropped on Iraq, apparently the equivalent of seven Hiroshima-size atomic bombs. Before the end of the war, the U.S. killed between 6,000 and 7,000 civilians from the bombing alone (including napalm, white phosphorous incendiary devices and depleted uranium projectiles). . An estimated 50,000 Iraqi children died during the first eight months of 1991 as a direct or indirect result of these weapons ("cancer, kidney failure and internal diseases not known before." US and its Allies' Crimes and Violations of Human Rights in Iraq. A Report on Part I: Crimes of the Military Aggression Against Iraq, Part II: The Blockade and its Violations, prepared by a panel of international law experts in Iraq, The International Symposium, Baghdad, February 5-8, 1994, p. 13). News reports and later studies corroborated that Iraqi soldiers fleeing Kuwait and in Iraqi territory, were massacred by U.S. forces as they fled. American aircraft attacked the fleeing forces with cluster bombs, napalm and depleted uranium shells on the Jahra-Basra road at Mitla ridge. Ph ilip M. Taylor, War and the Media: Propaganda and Persuasion in the Gulf War (Manchester: Manchester University Press, 1992), pp. 251-253. Similar killings took place on the Jahra-Umm Qasr Highway. Michael Kelly, "Carnage on a Forgotten Road," The Guardian, London, April 11, 1991. For a thorough documentation of the U.S. campaign against Iraq, the Gulf War and Iraqi sanctions, see Geoff Simons, The Scourging of Iraq: Sanctions, Law and Natural Justice (New York: St Martin's Press, 2d ed., 1998). Simons and others have confirmed that one million Iraqi children have been killed by US biological warfare through the 1990's, and that hundreds of thousands will die because the US-led sanctions prevent adequate treatment, medicine and the massive environmental cleanup required to spare their lives. See also, Michael T. Klare, "High-Death Weapons of the Gulf War," The Nation, June 3, 1991; and Eric Hooglund, "The Other Face of War," Middle East Report, (July-August 1991).

(91.) "Domestic Repression and the Persian Gulf War," MSN News, Vol. 7, Issue 1, special ed., 1991.

(92.) Akram, pp. 52-53; Sharon La Franiere, "FBI Starts Interviewing Arab-American Leaders," Washington Post, January 9, 1991, A14; Emily Sachar, "FBI Grills NY Arab-Americans," Newsday, January 29, 1991, P. 6; Lisa Belkin, "For Many Arab-Americans, FBI Scrutiny Renews Fears," New York Times, January 12, 1991.

(93.) American-Arab Anti-Discrimination Committee, 1999-2000 Report, pp. 2879-2880.

(94.) See discussion above.

(95.) Ibid.

(96.) Edward Said, "A Devil Theory of Islam," The Nation, August 12, 1996.

(97.) See discussion of this issue in the secret evidence cases, Akram, p. 110. One of the 'experts' whose opinion was proffered in the Anwar Haddam case, Khalid Duran, has been unable to verify his academic credentials, was found guilty in Germany of slandering the Aachen Islamic Center, and has been challenged for fraud by a number of attorneys and organizations in the United States. See Affidavit of Pamela H. Chesebrough, In the Matter of Khalid Duran and PARDS, September 22, 1999, with attachments including Ruling of the State Court of Aachen Against Dr. K Duran, on file with author. See also, "Muslims Ask Jewish Groups to Delay Release of Book on Islam," PR Newswire, May 1, 2001, available at LEXIS, Newsgroup File.

(98.) For discussion in the secret evidence cases, see Akram, pp. 108-112. See also, Ahmed Yusuf and Caroline F. Keeble, The Agent: The Truth Behind the Anti-Muslim Campaign in America (1999) (for connections and funding between right-wing and Zionist organizations and 'experts', including Daniel Pipes, Khalid Duran and Steven Emerson).

(99.) Ibid.

(100.) Ibid.

(101.) Rafeedie v. INS, 688 F.Supp. 729 (D.D.C 1988), aff'd. in part, rev'd in part, and remanded, 880 F.2d 506 (D.C. Cir. 1989). (violation of due process to seek to deport a lawful permanent resident alien on secret evidence).

(102.) The 'LA-8' is an acronym for a series of cases involving seven Palestinians and the Kenyan wife of one of the seven who were arrested and placed in deportation proceedings in 1987. The litigation is now in its fifteenth year. AADC v. Meese, 714 F. Supp. 1060 (C.D. Cal. 1989), rev'd on other grounds, AADC v. Thornburgh, 970 F.2d 501 (9th Cir. 1991); AADC v. Reno, 70 F.3d 1045 (1995); Reno v. AADC, 119 S.Ct. 936 (1999).

(103.) In 1987, Congress enacted an Anti-Terrorism Act that mandated the closure of the Palestine Information Office (PIO) in Washington, D.C, the official institution representing the PLO in the U.S. The Act also mandated closure of the PLO Observer Mission at the UN. The Anti-Terrorism Act was challenged, both by the PLO and by U.S. citizens who claimed the right to hear what the PLO had to say. See Palestine Information Office v. Schultz, 853 F. 2d 932 (D.C. Cir. 1988); Mendelsohn v. Meese, 695 F. Supp. 1474 (S.D.N.Y. 1988) (seeking declaratory judgment that the Act violated First Amendment rights of free speech and association, and bill of attainder of U.S. Constitution).

(104.) Following on the heels of the Anti-Terrorism Act of 1987, the U.S. Department of Justice sued to close the PLO's UN Observer Mission in New York. United States v. Palestine Liberation Organization, 695 F. Supp. 1456 (S.D.N.Y. 1988).

(105.) National Security Decision Directive 207 is appended to Legislation to Implement the Recommendations of the Comm'n on Wartime Relocation and Internment of Civilians: Hearings on H.R. 442 before the Subcomm. On Admin. Law and Gov't Relations of the House Comm. on the Judiciary, 100th Cong., 67 (1987). See Eve Pell, "Kicking Out Palestinians," The Nation, February 5, 1990, pp. 167-68 (discussing government's efforts to deport the LA-8 because of their criticism of U.S. policy towards the Middle East).

(106.) Legislation to Implement the Recommendations of the Comm'n. on Wartime Relocation and Internment, Ibid.

(107.) See Memorandum from Investigations Div., Immigration & Naturalization Service, Alien Border Control (ABC) Group IV-Contingency Plans (November 18, 1986) (with attachments including INS, Alien Terrorists and Undesirables: A Contingency Plan (1986) (hereinafter INS Contingency Plan), on file with author. See also, Border Control Committee, INS, Border Patrol Response to an En Bloc Registration or En Bloc Revocation of NIV Status of a Class of Aliens. These plans envision a phased process of registration, detention, and removal of aliens from specified countries. The first phase contemplates apprehending 200 to 500 aliens and detaining them in INS holding facilities. See INS Contingency Plan. The second phase contemplates INS detaining between 500 to 1000 aliens in the isolated facility at Oakdale, Louisiana. The third phase, in the event over 1,000 aliens were to be apprehended, would require detention of aliens in military barracks and in tent facilities on 100 acres of land in Louisiana.

(108.) Nationals of only the following designated countries were targeted under the plan: Algeria, Libya, Tunisia, Iran, Jordan, Syria, Morocco and Lebanon. INS Contingency Plan, Id, at 16.

(109.) David Cole, "Secret Tribunal," The Nation, May 6, 1991 (criticizing the FBI and INS investigations of Palestinian-born resident aliens accused of affiliating with terrorist organizations); Susan Aschoff, "Appeal to Stay in Country Rejected," St. Petersburg Times, October 8, 1999 (reporting that Mazen A1-Najjar was a political target).

(110.) David Cole, "Guilt By Association: It's Alive and Well at the IN," The Nation, Februrary 15, 1993 (stating that the LA 8 were the only noncitizens that the INS had ever sought to remove under terrorism provisions of the 1952 INA up until that time). See also John A. Scanlan, "American-Arab--Getting the Balance Wrong--Again!" 52 Administrative Law Review 347, 363-68 (2000) (describing U.S. government use of ideological exclusion grounds against Arabs and Muslims).

(111.) Sharon LaFraniere and George Lardner, "U.S. Set to Photograph, Fingerprint all New Iraqi and Kuwaiti Visitors; Unusual Move Taken to Try to Counter Possible Terrorist Attacks," Washington Post, January 11, 1991, A23. DOJ ordered all immigrants with Iraqi or Kuwaiti passports to be fingerprinted and photographed, with the explanation that Iraq had confiscated the documents of Kuwaitis during the Iraqi invasion. The FBI also interviewed 200 Arab-American business and community leaders under the guise of uncovering "terrorist" affiliations. For plans to resurrect these procedures, see Fingerprinting of Nonimmigrants Designated by the Attorney General, 58 Fed. Reg. 68,024 (1993) (proposed December 23, 1993).

(112.) According to a 1984 internal report of the INS, over 8,000 aliens from 98 countries were excluded from the US for their political beliefs or associations under this Act between 1952 and 1984. See Dave Martella, "Comment, Defending the Land of the Free and the Home of the Fearful: The Use of Classified Information to Deport Suspected Terrorists," 7 American University Journal of International Law and Policy, 951, 962-63 (1992) (citing INS estimates).

(113.) NA [section] 212(a)(27)-(29), 8 U.S.C. 1182(a)(27)-(29) (1952).

(114.) 22 U.S.C. [section] 2691 (1988).

(115.) The McGovern Amendment permitted waivers to be granted only to subsection (a)(28), not to (a)(27). Moreover, the waivers were completely discretionary and unlikely to be approved if the Department of State recommended against approval. See Keisha A. Gary, "Congressional Proposals to Revive Guilt by Association: An Ineffective Plan to Stop Terrorism," 8 Georgetown Immigration Law Journal, 227, 237 (1994).

(116.) The exception states that the waiver is inapplicable to any "officials [or] representatives....of the PLO". Congress' reasons for excluding the PLO from the McGovern Amendment was that its terrorist activities against Israel endangered the Camp David Accords and failed to comply with the Helsinki Accords. See Deborah L. Zimic, "Note, National Security Visa Denials: Delimiting the Exercise of Executive Exclusion Authority under the Immigration and Nationality Act," 28 Virginia Journal of International Law, 711, 731 no. 99 (1988). This exception became permanent under the Foreign Relations Authorization Act, Pub. L. No. 101-246, [section] 128 (1), 104 Stat. 15, 30 (1990), before removal of most of the ideological exclusion provisions by the Immigration Act of 1990, Pub. L. No. 101-649, [section] 601(a), 104 Stat. 4978, 5071 (1990).

(117.) The published decisions in the case include Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999); American-Arab Anti-Discrimination Comm. v. Reno, 170 F. 3d 1264 (9th Cir. 1999); American-Arab Anti-Discrimination Comm. v. Reno, 132 F. 3d 531 (9th Cir. 1997); American-Arab Anti-Discrimination Comm. v. Rena, 70 F. 3d 1045 (9th Cir. 1995); American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F. 2d 501 (9th Gin. 1991); American-Arab Anti-Discrimination Comm. v. Nelson, 940 F. 2d 445 (9th Cir. 1991); American-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp. 1060 (C.D. Cal. 1989). For detailed descriptions of the arrests, detentions and proceedings against the LA-8, see William Overend and Ronald L. Soble, "7 Tied to PLO Terrorist Wing Seized by INS, "Los Angeles Times, January 27, 1987; William C. Banks, "Rights after Reno v. American-Arab Anti-Discrimination Committee: The LA Eight and Investigation of Terrorist Threats in the US," 32 Columbia Human Rights Law Review, 47, Symposi um: Deportation, National Security, and Aliens. See also, James Dempsey and David Cole, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: The New Press 1999); and Susan M. Akram, "Scheherezade Meets Kafka."

(118.) Berta Esperanza Hernandez-Truyol, "Nativism, Terrorism, and Human Rights--the Global Wrongs of Reno v. American-Arab Anti-Discrimination Committee," 31 Columbia Human Rights Law Review, 521 (2000).

(119.) The INS claimed that the 8 were members of the PFLP, and that Hamide "was the California head of an active but furtive recruiting and support system for the PFLP," Michael J. Ybarra, "Domestic Dilemma: Long Effort to Deport Terror Suspect Raises Difficult Rights Issues," Wall Street Journal., November 11, 1991, A1. See American-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp. 1060 (C.D. Cal. 1989).

(120.) Ibid.

(121.) Ibid: p. 1053. See also, Susan M. Akram, "Historic Court Decision Protects First Amendment Rights of Dissident Aliens," 18 Immigration Newsletter (National Immigration Project of the National Lawyers Guild, Boston, Mass.), Spring 1989.

(122.) American-Arab, p. 1060.

(123.) Hearings Before the Senate Select Committee on Intelligence on Nomination of William Webster to be Director of Central Intelligence, 100th Cong. 94-95 (1987) (testimony of FBI Director William Webster); see also Dempsey & Cole, p. 35.

(124.) INA [section] 212(a)(4)(B)(iii), 8 USC [section] 1182 (a)(4)(B)(iii) (1990).

(125.) Ibid. The United States Code includes a number of definitions of "terrorist activity" for law enforcement, surveillance, and other purposes. The NA broadly defines "terrorist activity" for purposes of the immigration laws. See, e.g., INA [section] 212(a)(3)(B)(ii), 8 USC 1182(a)(3)(B)(ii) (listing terrorist activities without intent or political motivation requirements). The USA Patriot Act expands the definition of "terrorist activity." For criticism of the definition of "terrorist activity" in the INA, see Gerald L. Neuman, "Terrorism, Selective Deportation and the First Amendment after Reno v. AADC," 14 Georgetown Immigration Law Journal, 313 (2000); Susan Dente Ross, "In the Shadow of Terror: The Illusive First Amendment Rights of Aliens," 6 Comm. Law and Policy 76 (2001); Nadine Strossen, "When and How: Criticisms of Federal Counter-Terrorism Laws," 20 Harvard Journal of Law and Public Policy 51 (1997).

(126.) The FBI had conducted an over three year investigation against the LA-8 before turning the case over to the INS for lack of evidence which the government could use to criminally prosecute. See Dempsey and Cole, pp. 37-38. The entire thrust of the government's case to deport the LA-8 was based on their affiliation with the Popular Front for the Liberation of Palestine (PFLP), a PLO-splinter organization. The District Court in AADC v. Reno, 70 F.3d 1045, found that the PFLP is engaged in a wide range of lawful activities, from providing education, health care, social services and day care, to cultural and political activities. The government has characterized the PFLP as a terrorist and communist organization, and the Attorney General has listed the PFLP on its terrorist organizations list. See John Kifner, "Roots of Terror: A Special Report--Alms and Arms: Tactics in a Holy War," NewYork Times, March 15, 1996, A1; see also Whidden, (discussing data before September 11, 2001, showing that most recent ter rorist acts in the United States were not committed by Muslim or Arab groups). Mother Palestinian organization on the Attorney General's list, Hamas, was described by Israeli security services as devoting 95 percent of its resources to social services. Ibid

(127.) INA [section] 242(g), 8 USC 1252(g) provides: "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."

(128.) Reno v. AADC, 119 S. Ct. 936, 938 (1999).

(129.) Ibid: p. 947.

(130.) Iibid: p. 945.

(131.) Ibid.

(132.) Immigration Reform and Control Act of 1996, Pub. L. No. 99-603, 100 Stat. 3359 (1986).

(133.) AADC v. Reno, 883 F. Supp. 1365 (1986). Following the District Court's decision, the case was remanded to the immigration court. In 2001, the court dismissed the primary removal charges on the grounds that they were not meant to apply retroactively to acts--participating in demonstrations, distributing newspapers, and fund-raising for humanitarian causes for a group classified by the U.S. government as a "terrorist" organization--committed before Congress enacted the removal grounds. See Stephen H. Legomsky, Immigration and Refugee Law and Policy 86 (Westbury, NY.: Foundation Press, 3d ed., 2002).

(134.) See Rafeedie v. INS, 688 F. Supp. 729 (D.D.C. 1988), aff'd in part, rev'd in part, remanded, 880 F. 2d. 506 (D.C. Cir. 1989).

(135.) See Jay v. Boyd, 351 U.S. 345 (1956); Jay v. Boyd, 350 U.s. 931 (1956); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States ex rel. Mezei, 345 U.S. 206 (1953).

(136.) NA 212(a)(27)-(29), 8 U.S.C. [section] 1182(a)(27-29).

(137.) Rafeedie v. INS, 688 F. Supp. at 734.

(138.) Ibid.

(139.) Rafeedie, 880 F. 2d, 525.

(140.) Rafeedie, 795 F. Supp. 19.

(141.) Rafeedie, 880 F.2d, 516.

(142.) Ibid.

(143.) Arnold Hamilton, "Terror: Oklahoma City Car Bomb Kills at Least 31," Dallas Morning News, April 20, 1995, 1A;see also Jere Hester and Dave Eisenstadt, "Terror Blast Kills Scores: Suspects Spotted in Texas," Daily News (New York), April 20, 1995,p. 2; see also Sam Vincent Meddis, "Oklahoma Learns 'No Place is Safe,'" USA Today, April 20, 1995, p. 1A (quoting Daniel Pipes, editor of the Middle East Quarterly).

(144.) Pub. L. No. 104-132, 110 Stat. 1214 (1996).

(145.) Pub. L. No. 104-208, Title III, 110 Stat. 3009 (1996).

(146.) For some of the extensive critique of the provisions in the 1996 legislation on these issues, see Gerald L. Neuman, "Jurisdiction and the Rule of Law after the 1996 Immigration Act," 113 Harvard Law Review, 1963 (2000); Michael Scaperlanda, "Are we that Far Gone?: Due Process and Secret Deportation Proceedings," 7 Stanford. Law and Policy Review, 965; John A. Scanlan, "American-Arab--Getting the Balance Wrong--Again!" 52 Administrative Law Review, 347 (2000); Nancy Morawetz, "Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms," 113 Harvard Law Review, 1936 (2000); Kevin R. Johnson, "The Antiterrorism Act, the Immigration Reform Act, and Ideological Regulation of the Immigration Laws: Important Lessons for Citizens and Noncitizens," 28 St. Mary's Law Journal, 833 (1997).

(147.) Testimony of INS General Counsel Paul Virtue on October 8, 1998. The National Security Considerations Involved in Asylum Applications: Hearings Before the Senate Judiciary Committee on Technology, Terrorism and Government Information, 105th Cong., at 5-14 (FDCH Political Transcripts).

(148.) See Whidden discussing the disparity in U.S. government treatment of Arabs/Muslims alleged to have terrorist connections and Irish non-citizens actually convicted of terrorist acts.

(149.) Title IV of AEDPA addresses suspected "alien terrorists." AEDPA [section] 401 defines an "alien terrorist" as "any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity," including an act that "affords material support to [any person or group]....conducting a terrorist activity." AEDPA [section] 401 (codified at 8 USC 1531(1), 1227(a)(4)(B), 1182(a)(3)(B)(iii). AEDPA [section] 302 established the authority of the Secretary of State to designate a "foreign terrorist organization," which is a) a foreign organization; b) engaging in terrorist activity (as defined under 8 USC 1182(a)(3)(B); c) that threatens the security of the US or its citizens. AEDPA 302 (codified at 8 USC 1189(a)(1) (Supp. V 2000). [section] 401 created a special removal court for "alien terrorists" that gives the special court the power to "examine, ex parte and in camera, any evidence for which the Attorney General determines that public disclosure would pose a risk to the national securi ty of the United States or to the security of any individual because it would disclose classified information." AEDPA 401 (codified at 8 USC 1534(e)(3)(A).

(150.) 8 C.F.R. 240.33(c)(4) provides: "The Service counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order, provided the immigration judge or the Board has determined that such information is relevant to the hearing... The agency that provides the classified information to the immigration judge may provide an unclassified summary of the information for release to the applicant whenever it determines it can do so consistently with safeguarding both the classified nature of the information and its source..." On the failure to utilize the Terrorist Removal Court, see 78 Interpreter Releases 363 (Feb. 12, 2001).

(151.) See Akram, p. 72 (reviewing AEDPA's procedural protections in terrorist court).

(152.) Ibid.

(153.) Ibid. and Whidden, pp. 2874-2876. For additional critique of the government's tactics, see Niels Frenzen, "National Security and Procedural Fairness: Secret Evidence and the Immigration Laws," 76 Interpreter Releases 1677 (November 22, 1999).

(154.) The 'Iraqi-6' were so labeled by the media, but actually were a series of removal and detention cases simultaneously proceeding in the immigration courts in Northern and Southern California. Initially, 25 of the airlifted Iraqis who were to be resettled were detained by the INS for various reasons. Of these, INS proceeded against 16 in San Francisco, and nine in the Los Angeles area. Two of the nine were granted asylum and released, but the INS continued detaining and opposing relief to six in Southern California. It is the latter six who received considerable media attention, and were dubbed the 'Iraqi-6'. Message by e-mail from Niels Frenzen, lead counsel for the 'Iraqi-6', and other individuals from the group of detained Gulf War Iraqi asylum-seekers, dated March 6, 2002 (on file with author).

(155.) In re Mohammed Jwer Al-Ammary (A76-201-016), Ali Jahjoh Saleh (A76-200-369), Adil Hadi Awadh (A76-201-533), Mohammed Jassin Tuma (A76-200-974), Ali Yasim Mohammed Karim (A76-200-431), Safadim Hassan Al-Batat (A76-201-494), Haidar Al-Bandar (A76-200-959), Mohammed Yassin Mohammed Karim (A75-010-669). There are no published cases, see Niels Frenzen, "National Security and Procedural Fairness: Secret Evidence and the Immigration Laws,' 76 Interpreter Releases 1677 (November 22, 1999). See also, The National Security Considerations Involved in Asylum Applications: Hearings Before the Tech., Terrorism and Gov't. Information Subcomm. Of the Senate Comm. on the Judiciary, 105th Cong., at 23-37 (1998) (statement of James R. Woolsey).

(156.) Frenzen, Ibid.

(157.) Ibid.

(158.) Ibid.

(159.) Ibid.

(160.) Ibid.

(161.) Ibid.

(162.) Ibid.

(163.) The National Security Considerations Involved in Asylum Applications: Hearings Before the Tech., Terrorism and Gov't. Info. Subcomm. Of the Senate Comm. On the Judiciary, 105th Cong. (1998) (statement of James. R. Woolsey) "In navigating this predictably treacherous ground, the government's lack of competence and lack of professionalism has been appalling. Government witnesses got confused about the difference between Iraq and Iran...Translation between English and Arabic during the interrogations was so bad on occasion that one man spent a year in prison, this is Mr. Hawleri, because an interpreter flippantly invented an acronym and produced confusion about a Kurdish organization."

(164.) Mazen Al-Najjar was re-arrested by INS in November, 2001. See St. Petersburg Times, November 28,2001.

(165.) re Anwar Haddam, 2000 BIA LEXIS 20, at I (BIA December 1, 2000); see also Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D. N.J. 1999) (ordering release of Palestinian detained for one-and-a-half years based on secret evidence).

(166.) Al-Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001); Al-Najjar v. Reno, 97 F. Supp. 2d 1329, 1333 (S.D. Fla. 2000). See also David Cole, "Islam: Secrecy, Guilt by Association and the Terrorist Profile," 15 Journal of Law and Religion 267, 275 (2000-2001); "FBI Terror Probes Focus on Muslim," Washington Post, October 31, 1988, Al. For discussion of various developments in the A1-Najjar case, see 77 Interpreter Releases 1747 (December 18, 2000); 77 Interpreter Releases 1712 (December 11, 2000); 77 Interpreter Releases 1566 (November 6,2000); 77 Interpreter Releases 9377 (July 17,2000).

(167.) The FBI apparently targeted the Muslim community in Tampa for a period of four years, looking for evidence that money raised in the U.S. was being sent to terrorist groups in the Middle East. See John F. Sugg, "Secret Evidence," THE LINK (Americans for Middle East Understanding, New York, N.Y.) July-Aug. 1999, p. 3. No such evidence was found, no charges were ever filed based on this investigation, and it simply wound down. Retired chief of FBI counter-terrorism, Bob Blitzer, stated that although the investigation revealed that WISE's Muslim academics supported Palestinian causes, "no federal laws were broken."

(168.) Ibid

(169.) Re Anwar Haddam, No. A22-751-813, at 2-3 (BLA Sept. 10, 1998) (hereinafter, Haddam BIA Appeal) (unpublished decision on file with author); see also Appellant's Brief at 2-5 (on file with author), Haddam BIA Appeal. For the published decisions in this case, see In Re Anwar Haddam, 2000 BIA LEXIS 20 (BIA Dec. 1, 2000) (hereinafter, Haddam, BIA LEXIS); Haddam v. Reno, 54 F. Supp. 2d 588 (E.D. VA 1999).

(170.) Haddam BIA Lexis, p.6.

(171.) Ibid p. 9.

(172.) Ibid.

(173.) See U.S. Department of State, Country Reports on Human Rights Practices, Algeria (2000), at 2, available at www.state.gov/g//drl/rls/hrrpt/2000/nea/644.htm.

(174.) Haddam BIA Lexis, p. 9.

(175.) Ibid. p. 7.

(176.) Ibid.

(177.) re Haddam, No. A22-751-813 (BIA September. 10, 1998), aff'd In re Anwar Haddam. On the government's lack of evidence, biased and hearsay sources in the secret evidence cases, see Akram, pp. 81-84.

(178.) Al-Najjar v. Reno, 97 F.Supp. 2d 1329, at 1333-1334. On improper and unethical conduct by the government in the secret evidence cases, see Akram, pp. 84-90.

(179.) Ibid: 1333-1334. On the government's foreign policy considerations in the secret evidence cases, see Akram, pp. 108-113.

(180.) Trial record government exhibits, In re Haddam, No. A22-751-813 (Va, EOIR. Immigr. Ct. July 14, 1997) (Bryant, IJ) (hereinafter Haddam Immigr. Ct. I) (on file with author).

(181.) INS Brief submitted in Closing Argument at 5, Haddam BIA Appeal.

(182.) See Designation of Foreign Terrorist Organizations, 64 Fed. Reg. 55,112 (1999), amended, 2001 Report on Foreign Terrorist Organizations. available at www.state.gov/s/ct/rls/rpt/fto/2001/5258.htm.

(183.) Haddam BIA Appeal, pp. 4-5; see also Appellant's Brief at 9-10 (on file with author). For discussion of this issue, see Akram, pp. 83-84.

(184.) Ibid.

(185.) Ibid.

(186.) Haddam Immigr. Ct. I, govt. exhibits 147, 161, 164-165 (on file with author). For discussion of this issue, see Akram, pp. 83-84.

(187.) Ibid

(188.) See Applicant's Opposition to the Receipt into Evidence of the Expert Affidavits of Patrick Clawson and Daniel Pipes, pp. 4-5, Haddam Immigr. Ct. I. For discussion of this issue, see Akram, pp. 110-112.

(189.) Ibid.

(190.) See Akram, pp. 110-112.

(191.) Applicant's Opposition, Haddam Immigr. Ct I.

(192.) Investigative reporter John Sugg describes in great detail the attack on WISE and the motivation for the FBI investigation of the Institute and Mazen A1-Najjar. Sugg, "Secret Evidence," THE LINK. The affidavit of INS agent Bill West states that the federal government initiated the investigation of the WISE and USF because of a series of articles published in the Tampa Tribune in May 1995 which alleged that WISE was a command post for Islamic Jihad. Tampa Tribune, "Ties to Terrorists," May 1995. Two of the Tampa Tribune journalists who left the Tribune reported that "Ties to Terrorists" was written at the insistence of Israeli consulate officials from Miami who visited the paper every six months, and said that Israel intended to silence the Middle East Committee at USF. Sugg, p. 3, interviewing Andrea Brunais, former Tribune columnist and editorial board member. See Akram, p. 109.

(193.) Matter of Nasser Ahmed, No A90-674-238 (Immigration Court June 24, 1999). The BIA denied Ahmed's appeal seeking a bond redetermination. See In re Nasser Ahmed, No. 90-674-238 (BIA September 1996);see also Dempsey and Cole, pp. 12-31 (discussing case); Cole, pp.273-274.

(194.) Ibid.

(195.) See Petitioner/Plaintiff's Memorandum in Support of Motion for a Preliminary Injunction, Civil No. 97 (September. 15, 1997), p. 2, copy on file with author.

(196.) See Matter of Nasser Ahmed

(197.) Sheikh Abdel Rahman was convicted of seditious conspiracy, solicitation and conspiracy to commit a number of other crimes in January, 1996. Ahmed was not accused of being involved in any of those crimes. He had no criminal record at all. See Petitioner/Plaintiff's Memorandum in Support of Motion for a Preliminary Injunction, p. 3.

(198.) Dempsey and Cole, p. 129.

(199.) In re Nasser Ahmed, No. 90-674-238 (BIA September 1996).

(200.) Cole, p. 274.

(201.) In Re Nasser Ahmed, at 7 (N.Y. EOIR Immigration Court, July 30, 1999) (decision following remand).

(202.) Ibid.

(203.) Al-Najiar v. Reno, 97 F. Supp.2d 1329; Kiareldeen v. Reno, 71 F. Supp. 2d 402; In Re Nasser Ahmed, at 7 (N.Y. EQIR, Immigration Court, July 30, 1999) (decision following remand); see In Re Anwar Haddam, 2000 BIA LEXIS 20 (BIA December 1, 2000).

(204.) See decisions in Al-Najjar; Kiareldeen; Nasser Ahmed; Anwar Haddam, Ibid.

(205.) Mazen Al-Najjar and Anwar Haddam remain pending; a number of the Iraqis settled their cases in order to obtain release from detention.

(206.) In June, 2000, the House voted to cut $173,480 from federal prison funding, stating that it was the equivalent of the average cost of detaining the non-US citizens held on secret evidence. Susan Aschoff, "Funds for Secret Evidence Cases Cut," St. Petersburg Times, June 24, 2000, 3A; see also, Khalil Osman, "Opposition Mounting Against US's use of 'Secret Evidence' against Muslims," Crescent International, July 16-30, 2000, available at www.muslimedia.com/archives/world00/us-evidence.htm.

(207.) David E. Rovella, "Clock Ticks on 9/11 Detentions," National Law Journal, November 5, 2001, Al. See Testimony of Nadine Strossen, President of the American Civil Liberties Union, Submitted to the Senate Judiciary Committee, Department of Justice oversight: "The Massive Secretive Detention and Dragnet Questioning of People based on National Origin in the Wake of September 11," December 4, 2001; see also, Susan Sachs, "A Nation Challenged: Detainees; Civil Rights Group to Sue Over U.S. Handling of Muslim Men, "New York Times, April 17, 2002, A13.

(208.) See Josh Meyer, "The Investigation: The Dragnet Produces Few Terrorist Ties," Los Angeles Times, November 28, 2001, Al; see also Greg Smith and Joe Calderone, "No Big Fish in 9/11 Dragnet," Daily News (New York), November 30, 2001, p. 6. The first indictment for conspiracy in the hijackings was of a non-citizen in federal custody for immigration violations on September 11. See David Johnston and Philip Shenon, "Man Held in Custody Since August is Charged with a Role in Sept. 11 Terror Plot; "New York Times, December 12, 2001, Al.

(209.) See Immigrant Rights Clinic, Administrative Comment: Indefinite Detention Without Probable Cause: A Comment on INS Interim Rule 8 C.F.R. [section] 287.3, 26 N.Y.U Rev. L & Soc. Change 397, at 414 (2000/01) (Ashcroft's public statements).

(210.) 66 Fed. Reg. 56967, 56979-80 (Nov. 14, 2001). For critique of the Regulation, see Immigrant Rights Clinic, supra, A Comment on INS Interim Rule 8 C.F.R. 287.3, p. 397.

(211.) Whether this regulation complies with the Supreme Court decision of Zadvydas v. Davis is unclear. In Zadvydas, the Court held that indefinite detention of noncitizens after the issuance of final removal orders was presumptively unreasonable beyond a period of six months, but left open whether indefinite detention was lawful if on national security of terrorist grounds. ("Neither do we consider terrorism of other special circumstances where special arguments might be made for forms of preventative detention and for heightened deference to the judgments of the political branches with respect to matters of national security."). 121 S. Ct. p. 2502.

(212.) Department of Justice Memo dated November 9, 2001, discussed in "DOJ Orders Incentives, 'Voluntary' Interviews of Aliens to Obtain Info on Terrorists, "78 Interpreter Releases 1816, 1817 (December 3, 2001).

(213.) Tatsha Robertson, "Requests From US Strike Fear in Arabs," The Boston Globe, December 2, 2001, A29; see also, Deborah Barfield Berry, "Arabs Question FBI's Questions," Newsday, December 23, 2001, A23.

(214.) Office of the Deputy Attorney General, "Guidelines for the Interviews Regarding International Terrorism," November 9, 2001, reprinted in 78 Interpreter Releases 1829 (Dec. 3,2001), Appendix I.

(215.) Berry, A23.

(216.) "Administration Defends Military Commissions, Other Antiterrorism Measures During Senate Hearing" 78 Interpreter Releases 1809, 1810 (December 3, 2001) (summarizing congressional testimony of Assistant Attorney General Michael Chertoff that interviews were "voluntary" and based not on race profiles but on the fact that AI-Qaeda recruits from specific nations and encourages use of certain visas).

(217.) Tim Jones, "Interview Requests Chill U.S. Arabs," Chicago Tribune, December 2, 2001, p. 1.

(218.) Berry, Ibid.

(219.) Brooke A. Masters and Cheryl W. Thompson, "U.S. Plans to Query More New Arrivals; 3,000 Foreign Nationals Added to List," Washington Post, March 21, 2002, A18 (about 20 of those questioned in the original sweep were held on immigration charges); Michelle Mittelstadt, "Ashcroft Orders Prosecutors to Question 3000 more Middle Eastern Men," The Dallas Morning News, March 21, 2002, Washington Dateline (The Justice Department stated in a report that most of the interviewees had no information relating to specific terrorists or terrorist acts; however, "key investigative findings were...blacked out in the report.")

(220.) Susan Sachs, "A Nation Challenged: Deportations; U.S. Begins Crackdown on Muslims Who Defy Orders to Leave Country," New York Times, April 2, 2002, A13, Jonathan Peterson, "The Nation: U.S. Will Interview More Foreigners in Fight on Terrorism; Policy: The Justice Dept. will Question 3000 Visitors on a Voluntary Basis to get Information about Attacks. Critics Cite Issue of Ethnic Profiling," The Los Angeles Times, March 21, 2002, A20.

(221.) Michelle Mittelstadt, (Arab-American and civil liberties organizations criticized the interview campaign. The story quotes Omar Ahmad, Chairman of the board of the Council on American-Islamic Relations: "We believe...that rounding up the 'usual suspects' based on nothing more than race, religion or national origin is not an effective law enforcement technique and creates the perception of profiling." Mohamed Elmougy called the interviewing campaign a "government-sponsored hate action against the American Muslim community.").

(222.) Neil A Lewis and Christopher Marquis, "Larger Visa Waits for Arabs," New York Times, November 10, 2001, Al; Matthew Purdy, "Bush's New Rules to Fight Terror Transform the Landscape," New York Times, November 25, 2001.

(223.) James Sterngold and Diana Jean Schemo, "10 Arrested in Visa Cases in San Diego," New York Times, December 13, 2001, B1.

(224.) "DOJ Focusing on Removal of 6,000 Men from Al Qaeda Haven Countries," 79 Interpreter Releases 115 (January 21, 2002).

(225.) Dan Eggen and Cheryl W. Thompson, "U.S. Seeks Thousands of Fugitive Deportees; Middle Eastern Men are the Focus of Search," Washington Post, January 9,2002, A0l.

(226.) 66 Fed. Reg. 55062 (October 31, 2001); Neil A. Lewis and Christopher Margulies, "Larger Visa Waits for Arabs; Stir Over U.S. Eavesdropping "New York Times, November 10, 2001, Al; George Lardner Jr., "U.S. Will Monitor Calls to Lawyers," Washington Post, November 9, 2001, A1.

(227.) Robert Schlesinger, "Bush Plan to Monitor Lawyer-Client Talks Draws Fire, The Boston Globe, November 10, 2001, All.

(228.) Schlesinger, All (quoting Senators Patrick Leahy, Edward Kennedy and others criticizing the rule). Akhil Reed Amar and Vikram David Amar, FindLaw's Writ, "The New Regulation Allowing Federal Agents to Monitor Attorney-Client Conversations: Why it Threatens Fourth Amendment Values," November 16, 2001, http://writ.findlaw.com/amar/20011116.html

(229.) See "Rights Groups Sue DOJ, INS for Information on Those Detained or Arrested Following September 11," 79 Interpreter Releases 5 (January 2, 2002).

(230.) John Donnelly and Wayne Washington, "Diplomats Fault Lack of US Notice on Many Detainees," Boston Globe, November 1, 2001, Al.

(231.) Donnelly and Washington, Al. Foreign embassies have consistently complained of the U.S. government's failure to comply with the Vienna Convention on Consular Relations (1963), which requires a government to give foreign nationals the opportunity to notify their embassies if they are detained. In Mr. Butt's case, the Pakistani Embassy claimed the first time it heard about his detention was when journalists called the Embassy to inquire about his death. Ibid. In a memorandum to President George W. Bush, released on March 14, 2002, Amnesty International harshly criticized the government's detention policies, claiming that the US violated detainees' rights to humane treatment, to prompt access to counsel, to have the opportunity to challenge the lawfulness of their detentions, and to be presumed innocent until proven guilty. Amnesty International Concerns Regarding Post September 11 Detentions in the USA, Amnesty International, March 13, 2002, available at http://web.amnesty.org/ai.nsf/Index/AMR510442002?O pen Document&of=COUNTRIES/USA. See also, Amnesty Charges U.S. Violated Rights of Detainees, Reuters, March 14, 2002, at www.news.findlaw.com/attackdetaineesrightsdc.htm.

(232.) Detroit News, Inc., et al v. Ashcroft, et. al, No. 02-70605, 2002 U.S. Dist. LEXIS 5839, (E.D. Mich. 2002).

(233.) Steve Fainaru, "Judge Rejects Rule Closing Immigration Hearings," Washington Post, April 4, 200, A01. See also, Internal memo available at http://www.aclu.org/court/creppymemo.pdf.

(234.) Rabih Haddad, a well-known Muslim pastor in the Detroit area, faces deportation based on apparent links to terrorism, a claim which has so far not been supported by any evidence. See "Chronology of the federal deportation case against Rabih Haddad," Detroit Free Press, April 4, 2002, at http://www.freep.com/news/statewire/sw53108_20020404.htm.

(235.) Rep. Conyers protested being personally excluded from Haddad's hearing, stating that "the treatment of Pastor Haddad over the last several weeks has highlighted everything that is abusive and unconstitutional about our government's scapegoating of immigrants in the wake of the September 11 terrorist attack...The attack of September 11th should not destroy our Constitution, rather it should strengthen our commitment to it." Council on American-Islamic Relations, "Rep. Conyers Expresses Outrage Over Closing of Detention Hearing for Muslim Pastor," Middle East News Press Release Network, January 4, 2002, available at http://www.middleastwire.com/arabamerican/stories/20020104_memo.shtml . See also Mike Robinson, "Congressman Questions Detention of Islamic Charity's Founder," Detroit Free Press, March. 5, 2002, at http://www.freep.com/news/latestnews/pm7808_20020305.htm.

(236.) See Detroit Free Press v. Ashcroft, Order Granting Plaintiffs' Motion for Preliminary Injunction and Denying Defendants' Motion to Dismiss Complaint for Failure to State a Claim Upon Which Relief Can be Granted, Case. No. 02-70339 (April 3, 2002). See also, Dan Eggen, "Court Papers on Detainee Released; Justice Dept. Says it Will Still Withhold Information About Others," The Washington Post, April 20, 2002, A2; and David Ashenfelter and Niraj Warikoo, "Clerics' Secret File Raises Questions on Terror Role, U.S. Documents Paint Conflicting Picture of Activist's Case," Detroit Free Press, April 20, 2002, available at http://www.freep.com/news/mich/haddad2020020420.htm and David Ashenfelter and Niraj Warikoo, "Revealed Documents Show Conflicting Sides of Figure in Terrorism Probe," Detroit Free Press, April 19, 2002, available at http://www.freep.com/news/latestnews/pm8736_20020419.htm.

(237.) Military Order of November 13, 2001, 66 Fed. Reg. 57833 (Nov. 16, 2001). Discussion of the military commission is beyond the scope of this paper.

(238.) See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), [section] 411.

(239.) Ibid.

(240.) Ibid.

(241.) Ibid.

(242.) Ibid.

(243.) Ibid.

(244.) Ibid. [section] 412.

(245.) 8 C.F.R. 287.3 amends the prior requirement that the INS bring an arrestee before an examining officer within 24 hours, and expands that time to 48 hours. The most critical change is the rule's provision that in "an emergency or other extraordinary circumstance," the INS has "an additional reasonable period of time" to examine the arrestee. There is no specific time period within which INS must conduct the examination, in effect permitting the INS to hold any non-citizen indefinitely without a warrant and without even a minimal showing that INS has prima facie evidence of violation of law. The Patriot Act provision does not change the 'extraordinary circumstance' exception, and if the 7-day requirement is also subject to this exception, then the INS may indefinitely detain without charging the non-citizen at all. This appears to have been the situation in a number of the cases of individuals rounded up after 9-11. See Edward Helmore, "Why Lawyers are Crying Foul," The Guardian, (London), May 7, 2002, F eatures, 10; "Cases Pose Questions About Due Process in Terrorism Probe," The Bulletin's Frontrunner, May 6, 2002, available at LEXIS, Newsgroup File.

(246.) See "Indefinite Detention without Probable Cause: A Comment on INS Interim Rule 8 C.F.R. ?? 287.3," Administrative Comment, 26 New York University Review of Law and Social Change 397 (2000-200 1).

(247.) Margaret Stock, "National Security White Papers: United States Immigration Law in a World of Terror," The Federalist Society (2001), available at http://www.fed_soc.org/Publications/Terrorism/immigration.htm (last visited May 10, 2002). USA Patriot Act, [section] 411.

(248.) Ibid

(249.) Walter Pincus, "New Pressure Possible on Suspects," Newsday, October 22, 2001, A07; Damian Whitworth, "FBI Considers Torture As Suspects Stay Silent," The Times (London), October 22, 2001, at Overseas News.

(250.) Jonathan Alter, "Time to Think About Torture," Newsweek, November 5, 2001, p. 45 (quoting Harvard Law School Professor Alan Dershowitz as stating that torture could be used if judicially authorized).

(251.) Tracey Maclin, "Symposium Article: The Fourth Amendment on the Freeway," 3 Rutgers Race and Law Review, 124 (2001); David A. Sklansky, "Article: Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment," 1997 Supplementary Court Review, 271 (1997).

(252.) Maclin (any law that makes it more difficult for one group of citizens than others to benefit from legal protection is a denial of equal protection). For why racial profiling in immigration law is inappropriate, see Kevin R. Johnson, "The Case Against Race Profiling in Immigration Enforcement," 78 Washington University Law Quarterly, 675 (2000).

(253.) Race profiling in criminal law enforcement has been criticized because it alienates minority communities, and increases the difficulties in securing much-needed cooperation in law enforcement. See David A. Harris, "The Stories, the Statistics, and the Law: Why "Driving While Black Matters," 84 Minnesota Law Review, 265, 298-300 (1999). Statistical evidence by police departments and the U.S. Customs Service shows that race profiling is ineffective as a predictor of criminal behavior. See David A. Harris, Profiles in Injustice: Why Police Profiling Cannot Work (New York: The New Press, 2002).

(254.) On the first three barriers to the application of the Fourth Amendment, see Judy C. Wong, "Egregious Fourth Amendment Violations and the Use of the Exclusionary Rule in Deportation Hearings: The Need for Substantive Equal Protection Rights for Undocumented Immigrants," 28 Columbia Human Rights Law Review, 431.

(255.) Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889).

(256.) Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893) (aliens in deportation proceedings do not have substantive constitutional rights to challenge their deportation orders).

(257.) INS v. Lopez-Mendoza, 469 U.S. 1032 (1984). In dicta, the Lopez-Mendoza Court found that the exclusionary rule might apply in situations of "egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Pp. 1050-51.

(258.) United States vs. Calandra, 414 U.S. 338 (1978). On this point, see also Gerald G. Ashdown, "Drugs, Ideology and the Deconstitutionalization of Criminal Procedure," 95 West Virginia Law Review, 1 (1992).

(259.) Section 440 of AEDPA amended the INA to bar judicial review of deportation orders when aliens are convicted of certain enumerated crimes, see Antiterrorist and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) at Sec. 440(a). IIRIRA further amended the INA to remove judicial review provisions that covered appeals from most immigration decisions. See, for example, INA Sec 242(a)(2)(B), which strips federal courts from reviewing most major affirmative relief decisions; Sec. 242(a)(2)(A), which removes judicial review from expedited removal decisions; Sec. 236(e), which prohibits judicial review of detention decisions (except, under recent decisions, through habeas corpus actions); Sec. 242(g), which strips the courts of review of any decision by the Attorney General to "commence proceedings, adjudicate cases, or execute removal orders..."

(260.) The USA Patriot Act requires the non-citizen to prove that he did not know, and should not reasonably have known that his actions would further terrorist activity. See, "How the USA Patriot Act Allows for Detention and Deportation of People Engaging in Innocent Associational Activity," In Congress: The American Civil Liberties Union Freedom Network (October 23, 2001), available at http://www.aclu.org/congress/110232001h.html; USA Patriot Act, Sec. 411 (amending INA Sec. 212(a)(3)(B)).

(261.) Nancy Dunne, "US Muslims See Their American Dreams Die: Since September 11 The Community Has Felt Threatened," Financial Times (London), March 28, 2002, at The Americas, 10; Joseph Kahn, "A NATION CHALLENGED: AMERICAN MUSLIMS; Raids, Detentions and Lists Lead Muslims to Cry Persecution," New York Times, March 27, 2002 available at http://www.adc.org/press/2002/21March2002.htm. See Mohamed Nimer, "The Status of Muslim Civil Rights in the United States, 2001: Accommodating Diversity," Council on American-Islamic Relations, available at http://www.cair-net/civilrights/2001 Civil Rights Report.pdf.

(262.) Ibid.

(263.) USA Patriot Act, [section] 412 (amending 8 U.S.C. [section] 1101, et. Seq.). See also Calcano-Martinez v. INS, 533 U.S. 348 (2001) (holding that IIRIRA cannot strip the federal courts of jurisdiction to hear habeas corpus challenges to denials of relief from deportation); INS v. St. Cyr, 533 U.S. 289 (2001) (holding that the language of AEDPA and IIRIRA is not sufficient to strip federal courts of habeas corpus jurisdiction.

(264.) Ibid.

(265.) USA Patriot Act, [section] 412 (amending 8 U.S.C. [section] 1101, et. Seq.). The provisions allowing the use of secret evidence in deportation or removal proceedings have not been repealed, and the Attorney General's authority to "certify" aliens as terrorists is essentially unreviewable. Thus, the government is authorized to detain indefinitely and delay charging a non-citizen alleged to have terrorist involvement. This is likely to be the result even under Zadvydas v. Davis.

(266.) Under prior law, State Department records regarding the denial or issuance of visas are confidential and can only be used in the enforcement of U.S. law. [section] 413 now provides that State Department records can be provided to a foreign government to prevent, investigate, or punish acts of terrorism. The new law raises concerns that U.S. government officials might share such information with governments to take action to harm individuals who are not terrorists. See USA Patriot Act, [section] 413 (amending 8 U.S.C. 1202(f)).

(267.) ADC Reiterates Objection to Government Investigations Based on Racial Profiles, information advisory, March 20, 2002, available at www.adc.org/press/2002/20March2002.htm.

(268.) At least two dozen nationalities are represented among the AlQa'eda detainees at Guantanamo. See Stephanie Gaskell, "Pentagon Softens on a Few Detainees," Chicago Tribune, March 31, 2002, C8 (The U.S. refused to identify prisoners by nationality, but some countries with citizens at Guantanamo indicate there are dozens of Saudis, Yemenis, Pakistanis, and lesser numbers from Britain, Algeria, Egypt, Australia, France, Russia, Belgium, Denmark and Sweden). See also, Katharine Q. Seelye, "A Nation Challenged: At Guantanamo, Moscow, Seeking Extradition, Says 3 Detainees Are Russian," New York Times, April 3, 2002, A13 (American officials have said there are prisoners from 33 countries).

(269.) Lynda Guydon Taylor, "ACLU Finds Profiling Ineffective," Pittsburgh Post-Gazette, January 27, 2002, W3; Morning Edition: "Use of Profiling to Discover Would-Be Terrorists" (National Public Radio interview by Tovia Smith with Professor David Cole, et al, February 12, 2002), available at LEXIS, Newsgroup File. See also Siobhan Gorman, "Profiling Terror," The National Law Journal, April 13, 2002, vol. 34, No. 15.

(270.) For the impact on U.S. citizen and lawful permanent resident family members of detainees, see Cindy Rodriguez, "Family Trouble: INS Roundup of Illegal Immigrants Leaves Those Left Behind in Turmoil," Boston Globe, April 27, 2002, B1.

(271.) Margaret Stock.

(272.) See Hugh Dougherty, "September 11 Hijackers Granted U.S. Visas in Immigration Blunder," Press Association, March 13, 2002, available at LEXIS, Newsgroup File.

Susan M. Akram is Associate Clinical Professor, Boston University School of Law. The author thanks Kevin Johnson for his collaboration on a jointly-authored article, from which much material was used for this piece. She also thanks BUSL law student Amy Geyer for her assistance, and Cassandra LaRue Perez for her unstinting work checking, correcting and updating source material for this article.
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