MARGARET WARNER: To discuss the government's post-9/11 dragnet, we're joined by: Kate Martin, director of the Center for National Security Studies, a human rights and civil liberties organization in Washington. Andrew McBride, former assistant U.S. Attorney for the Eastern District of Virginia. He is now in private practice; Jan Ting, a professor of law at Temple University, he served as assistant commissioner of the INS during the Clinton Administration. And Muzaffar Chishti, an immigration lawyer and a senior analyst at the Migration Policy Institute, a think tank in Washington.
Welcome to you all. Kate Martin, beginning you with -- what's your overall assessment of this dragnet as it's evolved since 9/11?
KATE MARTIN: Well, I think what we've seen is that this is, in fact, a dragnet based on religion and ethnicity.
It is not a targeted law enforcement effort aimed at finding individuals who actually have links to terrorism. We've seen secret arrests of hundreds of individuals, two of whom maybe have some connection to the terrorists, all of whom are either Arab or Muslim or mistaken to be Arab or Muslim.
And I think we've seen a whole series of measures, which give the message and send the message from the Justice Department that the Arab community and the Muslim community are communities under suspicion.
MARGARET WARNER: Mr. McBride, racial profiling here.
ANDREW McBRIDE: I disagree with that profoundly. I think after Sept. 11 the Attorney General was charged with making sure that there were no further attacks, and I think he did so in a common sense and prudent manner by identifying country of origin, visa status, and certain other criteria to use to try and identify possible al-Qaida members.
This is al-Qaida profiling, not racial profiling. You could be from any one of a number of countries.
And the point is that after the first attacks, they had been so successful in hiding themselves from law enforcement, it was necessary to disrupt any future attacks. I think down the road we may be able to refine our tactics, but the initial, which you have to call a success, the initial goal was to make sure there was not a second wave of attacks.
And the attorney general has been successful in that.
MARGARET WARNER: Mr. Chishti, since all the 9/11 hijackers were young males of Middle Eastern origin, do you think there's anything wrong with focusing on them throughout these policies, the detentions, the deportations and the questioning?
MUZAFFAR CHISHTI: First of all, I mean, keeping aside the constitutional issues that an operation like that would entail, it would be totally ineffective.
I mean, if you look at the entire Middle Eastern population in the United States, it runs into millions. It's just physically impossible to track down and interrogate and detain all the Middle Eastern men hoping that that will lead to results of ties to terrorism.
The second important point to make is that if you look at three or four well known cases about the al-Qaida sympathizers that we have apprehended since 9/11, it's the shoe-bomber who we picked up on the airplane; it's Charles Bishop, this young kid who flew a plane in Tampa, Florida; it's John Walker Lindh.
These are American men. If we had simply been looking at Arab-American men we would not have caught the three most important suspects we have caught linked to al-Qaida since 9/11.
So just targeting enforcement on the basis of profile because they fit an ethnic community just is ineffective. And I think the proof is in the pudding.
The 1,200 people that have been caught in the dragnet since 9/11, we haven't shown any connection to these 1,200 people, to al-Qaida or terrorism.
In fact, the only two people that we have caught since 9/11 are the shoe-bomber and Moussaoui Zacaria, both of which took place not as a result of the apprehensions after 9/11, these detainees, but out of very good simple intelligence and by vigilance of flight attendants on the plane.
MARGARET WARNER: Mr. Ting, what's your view of this dragnet?
JAN TING: I think the dragnet makes a lot of sense. Let me just say first that I served in the first Bush administration not in the Clinton administration.
But I think in response to the last speaker, no one is profiling Arab-American men. We're profiling foreign men who have temporarily come to the United States in the past couple of years. It seems to me that's a legitimate focus.
The government has a compelling interest, as Mr. McBride said, in preventing another terrorist attack. We know that all the Sept. 11 terrorists were young males from other countries who came to the United States recently. So that's a reasonable profile. I think the case could be made for more profiling and not less profiling. I don't think that it's racial profiling. I don't think it's ethnic profiling in the sense of identifying people on the basis of skin color or on the basis of appearance.
As the attorney general says, it's clearly being done on the basis of documentation. That's a reasonable basis I think for carrying out an effort, which I think has been very successful.
MARGARET WARNER: Ms. Martin, that is the case, isn't it, that it's really about the country of origin?
KATE MARTIN: Well, that's not... first of all, we don't know. The government's refused to give us the names of hundreds of individuals whom it has jailed, and we don't know on what basis they picked them out.
It's also not true that it's solely aimed at non-citizens. Again, we don't know how many -- number of citizens, all of whom were either Arabs or Muslims or taken for that were in fact arrested in the weeks after Sept. 11.
MARGARET WARNER: But are they in the group that's still... not the group being detained on immigration charges?
KATE MARTIN: No but some of them may still be in jail. Again we don't know.
Some of them may be in jail on material witness warrants, which the government has been completely secretive about.
It is clear from the government's own admissions that the hundreds of people in jail have not been linked to terrorism or to terrorist activities or to the hijackers. The government has admitted in the lawsuit that was brought that it has cleared more than 300 of the people.
It is working on clearing the rest. But it had a policy of jail first, ask questions second.
And that policy swept up only Arabs and Muslims.
MARGARET WARNER: Let's look at the secrecy aspect, the one that your lawsuit is about. Mr. McBride, why the secrecy?
ANDREW McBRIDE: Well, you know, I think there's a myth of secrecy here in the sense that the Department of Justice has not prohibited any lawyer who represents an INS detainees or any other INS detainee from identifying themselves.
And of course, when criminal charges are brought after an arrest an indictment is unsealed and the matter is public.
But I think for the Department of Justice to give out a list of all the individuals that it has detained in its investigations for INS violations, material witness warrants, or in criminal charges -- first of all, I do agree with the Attorney General, it does tell our enemies where we have successfully disrupted them.
And secondly, I think it's unfair to the people being detained.
It essentially would be a government blacklist. Here's our list of people who we picked up after Sept. 11. If those people wish to identify themselves, they're free to do so but I don't see any reason why the government should issue a list of their names.
MARGARET WARNER: Mr. Ting, comment on that point and also the broader array of charges, for instance, in the Amnesty International report that these people, being detained, most of them don't seem to have a right to counsel…I mean, they aren't guaranteed a right to counsel, that they're held for months without specific charges against them and that even sometimes after they're cleared, quote unquote, or at least nothing is found about them, they're still being held up even from being deported.
What's the rationale here?
JAN TING: Well, I think people need to understand that immigration cases are different from run-of-the-mill criminal cases.
Immigration cases are not considered criminal cases, and for that reason a lot of the constitutional protections that would normally apply in the normal criminal case do not in fact apply in immigration cases. Alien subjects to removal proceedings cannot, for example, demand a jury trial.
They're not entitled to invoke the exclusionary rule if evidence against them has been improperly obtained. They're not guaranteed a right to counsel unless they can pay for it themselves.
And that's because immigration law is not criminal. It's civil. It's administrative. And that's the way our immigration system has been set up. So that's just part of the normal functioning of the immigration system.
Now no one wants to hear about anyone who is being abused in prison and whether someone should be able to wear their head scarf or not. But that's a different issue it seems to me -- that these people are being held in accordance with normal immigration procedures.
It's not unusual for people to be detained until they can be removed from the United States, until their removal from the United States is assured, and I think the government obviously has ongoing investigations going on.
They are investigating people that they suspect of terrorism. They don't have enough evidence to make a clear case of terrorism yet, and they may never be able to have that evidence but they want to build the case that they can, whether it's on other criminal charges, or whether it's on immigration charges.
MARGARET WARNER: Muzaffar Chishti, do you agree with that that this is perfectly legal under immigration law and procedure?
MUZAFFAR CHISHTI: It's perfectly legal but it's completely discriminatory. There are a large number of people in this country who have had immigration violations, but we are not going after each one of them.
We are going after a selective group of people only on the basis of their national origin, or religion, or race.
And that is very offensive to our very core constitutional values. I think that's the set of concerns that people have here. It's not just one single act of the Department of Justice since 9/11 that has raised the concern among the civil rights community.
It is the cumulative effect of the policies of the Department of Justice since 9/11. That is creating the kind of dragnet concern that people are talking about.
I mean, it's the secrecy around the 1,200 people, it's to decide that the proceedings in many of these cases will be kept closed to the press, will be kept closed to the members of the family, and that lawyer-client communication will not be privileged, and people who the judge -- immigration judge -- decides no longer need to be held, that the Attorney General suddenly decides that despite the judge's decision they'll be held over.
It's only Arab-Americans or Muslims who have been absconding after the final order of deportation, that they have been targeted for enforcement and it's only 5,000 -- and now I think 3,000 -- have been added of young men from the Middle East and Muslims from South Asia who are being targeted for questioning.
So it's not just one single issue. It's the cumulative effect of the set of policies by the Department of Justice since 9/11 that I think is what we all are concerned about.
MARGARET WARNER: You're shaking your head, Mr. McBride.
ANDREW McBRIDE: I disagree in the sense that the absconder issue, for instance, these are people who have had hearings who have been held to be deportable, who are here in violation of the law of the United States.
MARGARET WARNER: And this was before 9/11.
ANDREW McBRIDE: This was before 9/11. And to say that as a matter of law enforcement resources we're going to put our effort on deporting illegal... people who are illegally in the United States who fit a profile of individuals likely to be associated with al-Qaida is prudent.
If North Korea had declared war on us, or launched a missile at New York, we would be looking for illegal North Korean immigrants and deporting them from the United States as a potential danger.
I think here al-Qaida has declared war on the United States, and we have to look for adherence to al-Qaida and get them out of the United States.
And country of origin and visa status are legitimate criteria to use.
JAN TING: And, Margaret, if I can add to that.
MUZAFFAR CHISHTI: I mean al-Qaida…
MARGARET WARNER: Go ahead. Mr. Ting first. And then I'll try to get back to all of you.
JAN TING: There are no Arab-Americans involved in the absconder initiative.
I mean as Mr. McBride says it only involves foreign nationals who have already exhausted all their administrative remedies, all their hearing... their appeal rights have been exhausted. They've been ordered removed from the United States. The immigration judges work for the Attorney General. They enforce immigration policy. And there are no Arab-Americans or Muslim Americans included in this absconder initiative.
MARGARET WARNER: You were trying to get in.
KATE MARTIN: But it is important, I think, to recognize....
MARGARET WARNER: Ill get right back to you. Mr. Chisti, go ahead.
MUZAFFAR CHISHTI: I was saying that al-Qaida clearly has declared a war against the United States, but all the Arab countries have not declared a war against the United States. Pakistan and India have not declared a war against the United States.
There are absconders for similar reasons from all over the world, and we are not targeting against them. We are clearly engaging in selective enforcement only on the basis of national origin and religion. And that I think is constitutionally impermissible.
MARGARET WARNER: Ms. Martin.
KATE MARTIN: And I think it's important to recognize that there are eight million undocumented non-citizens living in the United States. They have U.S. citizen children. They have U.S. citizen spouses.
If President Bush has his way, many of them will be granted amnesty to become legal residents of the United States -- and that what we have seen here is rather than making a case and finding those individuals who might have some link to al-Qaida, the Justice Department instead uses national origin, ethnicity, or religion as a proxy for a link to terrorism.
That is discriminatory. It is unconstitutional in my view, and it is bad law enforcement.
MARGARET WARNER: Mr. Ting?
JAN TING: As the Attorney General has said, you know, if anyone thinks that there's anything unconstitutional in the way that this questioning of the recent arrivals in the United States is going on, if anyone thinks there's anything unconstitutional about the absconder initiative, they ought to bring a lawsuit.
No one has brought a lawsuit. I think it's because the people who have looked at this question recognize that there's no constitutional issue involved here -- that this is a legitimate government function.
The government would like to find all 300,000 absconders and remove them from the United States. And if they had that capability to do it all at once, they would.
The reality is you have to start somewhere. It's reasonable under the circumstances in our effort to disrupt the al-Qaida efforts in the United States to put this group first.
MARGARET WARNER: All right. And that has to be the last word. Thank you all very much.