US: Neither security nor rights

            MORE than one year after the attacks of 11 September 2001, the United States government's draconian policies against Muslim immigrants from South Asia, the Middle East, and North Africa took another turn for the worse. On 6 December 2002, after months of speculation fuelled by informal information releases, the Department of Justice formally announced rules for a new "special registration" programme.

Sadly, the programme shows both how much the principle of equal treatment before the law - a cornerstone of international human rights obligations on racial discrimination -- has been eroded in the United States and how little the American government has learned about effective domestic security policy in the year and a half following the attacks of 11 September 2001. The programme constitutes yet another example of the arbitrary and discriminatory immigration policy which the government has pursued since the attacks. Like many of the other programmes implemented since that time, this one raises significant human rights concerns.

On 18 March 2003, the US government addressed the Commission on Human Rights, lauding the government's record and its connection to international standards. The US government's own words, however, show the circumscribed nature of who gets equal treatment in the United States. "For the United States, the enjoyment and protection of the rights stipulated in our Declaration of Independence and Constitution lie at the heart of our identity as a nation. The struggle to ensure that those rights are respected by each and every one of our citizens - a struggle still in progress - has been the engine of our history and our development as a nation." What about the rights of foreign citizens living in the US and the struggle to protect their rights? The new special registration programme indicates the unfortunate answer to that question. (see box: Special Registration)

Discrimination

As with every other immigration policy implemented against people from Middle East, South Asia, and North Africa since 11 September 2001, the government has repeatedly claimed that the special registration programme does not constitute race, national origin, or religious discrimination. However, those claims ring hollow given that the list of countries involved, with the sole exception of North Korea, includes only countries from what has come to be called the Muslim world. Also, countries that are not predominantly Muslim, such as the Philippines, Spain, and Germany, have not been listed even though Al Qaeda cells have operated in those nations according to other government statements.

Put simply, the registration programme discriminates because it assumes that certain people are a greater security risk merely because they are from a particular country, rather than because of any individualised behavioral characteristics associated with those people as individuals. Compounding this problem, the programme seems to treat certain countries as greater security risks simply because those countries contain large Muslim populations. At times the policy has been implemented to target people because they were born in a listed country, even if they are nationals of an unlisted country, such as Canada. Because the programme fails to target people based on behavioral characteristics, and instead utilises stereotypical group characteristics such as national origin, religion, and race, it constitutes discrimination in violation of international standards.

Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination (CERD), which the United States ratified in 1994, calls on all states to "guarantee the right of everyone without distinction as to race, colour, or nationality or ethnic origin, to equality before the law," including "equal treatment before the tribunal and all other organs administering justice."  Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which the US ratified in 1992, prohibits discrimination "on any ground such as a race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." As currently practised, the special registration programme violates these international prohibitions.

Arbitrary Arrest and Detention

            The special registration programme has resulted in a large number of arbitrary arrests and detentions. While arbitrary arrest and detention has been a hallmark of the government's immigration policy since the attacks, the arrests occurring under the special registration programme are particularly disturbing because the people arrested, by definition, have reported voluntarily to the immigration service in order to attempt to comply with the new programme. 

While detentions have occurred in a variety of cases under the registration programme, the most common situation involves individuals detained in the process of adjusting from one visa status to another. Under US immigration law, immigrants often come into the country under one visa status but later remain in the country by changing that status. Common examples include students who graduate, thus rendering their student visas invalid, but then obtain employment and qualify for a work visa. Similarly, a worker may lose his or her job, but then marry a United States citizen and gain legal status through the marriage. During the transition process between different statuses, it is common for the first visa to lapse while the application for a second visa is pending. In fact, the immigration law specifically contemplates this possibility and provides for people to adjust their status in such situations. 

Despite the fact that the immigration laws obviously contemplate the possibility of such people remaining in the US, the government has dealt very harshly with immigrants attempting to adjust status when they attempt to register. In many cases, the immigration service chose to arrest, detain, and even deport many of those with pending adjustment applications who reported for registration.

Most shockingly, the immigration service often chose to follow this course of action even though such people had already provided information as to their whereabouts to the immigration service in order to apply for their adjustment of status. Even though these people voluntarily provided all relevant information about themselves to the government prior to the registration interview, the authorities targetted them for detention and removal. 

International human rights law strictly forbids the arbitrary detention of individuals. In particular, Article 9(1) of the ICCPR proscribes arbitrary detention. That provision states that "Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention." To implement this directive, Article 9(4) states that anyone "who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Whither National Security?

            A tragic consequence of the special registration programme is that, in addition to violating international human rights standards, the programme is highly unlikely to improve the nation's security and may compromise it. Unsurprisingly, the government does not claim to have arrested anyone preparing to attack the US as part of the process (despite its having loudly proclaimed high profile arrests in several cases unrelated to the registration programme). Indeed, it would be very odd if someone planning to attack the US submitted to a voluntary interview with the immigration authorities.

At the same time, however, the programme has resulted in the detention and deportation of a number of immigrants who are not connected with terrorism in any way, and has resulted in a great diversion of resources that could be used to more successfully track those who are bent on harming the United States. This has led some to suspect that the real purpose of the special registration programme is simply to provide the government with another tool to use in deporting as many Muslims from the country as possible.

While the evidence does not require this conclusion, it makes clear that the programme has served to alienate the communities whose cooperation the government most desperately needs at this time. Thus, ironically and tragically, the programme has actually served to undermine counter-terrorism enforcement in the US, even while it has been pursued in the name of the so-called "war on terror." 

Of course, essential human rights guarantees may not be contravened simply because a government claims that security needs are pressing. In the case of the special registration programme, it appears that the government's programme has not served either human rights principles or the nation's security. The United States government should terminate the programme or replace it with a rational and rights-respecting policy.