Dalia Hashad Advocates Against Racial Profiling

Dalia Hashad is an advocate in the ACLU's Campaign Against Racial Profiling, focusing specifically on issues confronting Arab, Muslim and South-Asian Americans following September 11, 2001.

Dalia received her B.A in Environmental Policy from the University of California at Berkeley and her law degree from New York University's School of Law. While studying at NYU, she was a staff editor of the Journal of Law and Social Change. She also founded and served as Chair of NYU's Middle Eastern Law Student Association. Upon graduating from NYU, Dalia worked as a litigator at Skadden, Arps, Slate, Meagher and Flom. As a member of the Palestine Peace Project, Dalia worked in the West Bank with LAW: Palestinian Society for the Protection of Human Rights and the Environment.

In her capacity as an advocate at the ACLU, she works closely with Arab, Muslim and South Asian organizations in the US to coordinate national campaigns and events. She runs a flexible and inclusive campaign so that the organization can best serve the needs of these communities. Her work focuses on civil liberties advocacy and protection; the plight of detainees; community outreach and empowerment; and racial profiling.

In this interview with Asia Society, Ms Hashad discusses, among other things, the curtailment of civil liberties, the USA PATRIOT Act*, illegal detentions, racial profiling and INS registration.

What are the important elements of the USA PATRIOT Act? And how does this infringe upon civil liberties in this country?

With great haste and secrecy and in the name of the "war on terrorism," Congress passed legislation that gives the Executive Branch sweeping new powers that undermine the Bill of Rights (and are not necessary to keep us safe). This 342-page USA PATRIOT Act was passed on October 26, 2001 with little debate by members of Congress, most of whom did not even read the bill. The Administration then initiated a flurry of executive orders, regulations, and policies and practices that also threatened our rights.

The USA PATRIOT Act expands terrorism laws to include "domestic terrorism" which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy. It expands the ability of law enforcement to conduct secret searches, gives them wide powers of phone and internet surveillance, and access to highly personal medical, financial, mental health, and student records with minimal judicial oversight. It allows FBI Agents to investigate American citizens for criminal matters without probable cause of crime if they say it is for "intelligence purposes". It permits non-citizens to be jailed based on mere suspicion and to be denied re-admission to the US for engaging in free speech. Suspects convicted of no crime may be detained indefinitely in 6 month increments without meaningful judicial review.

This lack of due process and accountability violates the rights extended to all persons, citizens and non-citizens, by the Bill of Rights. It resurrects the illegal COINTELPRO-type programs of the '50s, '60s and '70s, where the FBI sought to disrupt and discredit thousands of individuals and groups engaged in legitimate political activity.

It contains a number of provisions that civil libertarians have been fighting against for years, such as "sneak and peek" warrants and open records of what books we read at libraries and buy at bookstores, online and offline. These provisions infringe upon civil liberties and do not do anything to protect people against terrorism.

Normally, a search warrant must specify exactly what the police can look for and where. If they take things they are not permitted to, or if they search in places not on the warrant, then the individual being searched has recourse to the law and can fight in court against an illegal search. But under the "sneak-and-peek" warrant, the police can just walk in as soon as the person in question leaves for work, execute a warrant without their knowledge, and not tell them for what they call a "reasonable" period of time afterward: it could be weeks, months, or years. The warrant still says specifically where the police can look, but since there is no one to monitor where the police are looking and if they are properly executing the warrant, there is no question of having recourse to the law.

The Patriot Act also allows the government to go to public libraries and bookstores and request every book that a particular individual -- any individual -- has checked out or bought. Librarians and shopkeepers are not allowed to tell you that your reading habits are being spied on. Many librarians are very angry about this, and we know of some who have been threatened with criminal charges if they tell their patrons that their reading habits are being investigated by the authorities.

There has been a huge backlash against the Patriot Act. As I mentioned earlier, it is a very large document that was touted by Bush and Ashcroft as a response to September 11th, but in fact the 342-page document was presented on September 17th, only six days later, and it is doubtful that a document this size could have been drafted in six days.

Recently we discovered that for months John Ashcroft and his staff at the Department of Justice have been drafting in secret a "PATRIOT II," that is in many ways even more frightening than the first, with even more disturbing provisions. It is called the Domestic Surveillance Enhancement Act of 2003 and it adds 15 new categories to the death penalty. Under PATRIOT II, among other things, John Ashcroft wants the unilateral power to strip US citizens, whether naturalized or American-born, of their citizenship.

See the ACLU website for a Section-by-Section Analysis of Justice Department draft, Domestic Security Enhancement Act of 2003, also known as "PATRIOT Act II".

So do you think that this kind of legislation is something the Administration had in mind well before September 11th, 2001?

It seems likely that the Administration had a wish-list of things they wanted and used one of the most vulnerable points in American history to scare people into accepting a lot of these new laws and policies which American legislators would not otherwise support, and the American public would not want. It is not truthful and it is not honest to say that these laws are keeping us safer; they are not. All they are doing is impinging upon our freedom.

John Ashcroft, the Attorney General of the United States, testified at a congressional committee in December 2001 that, "to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists." He went on to say that criticism of the administration "gives ammunition to America's enemies and pause to America's friends." Similarly, White House spokesman Ari Fleisher warned "all Americans … to watch what they say [and] watch what they do." What, in your view, are the implications of this kind of intimidation by the present Administration?

These thinly veiled threats, made by high level government officials, are shocking. In an open democracy, discussion and debate of government policies should not only be encouraged, but required. As Americans, it is our right and responsibility to speak out against injustice. Right now, it is an injustice that the government is taking measures that do not make us safer, but destroy our liberties.

The measures that are taken need to have some relationship to our safety. Racially, religiously and ethnically profiling people is not going to make us safer; this just takes away our freedom and gives us nothing in return. And we need to talk about that. Everyone at the ACLU, like most people, just wants to be safe. We are just as hurt by this as other Americans and we are just as terrified of terrorism. But that is not an excuse to take away our liberties because it does nothing to keep us safer, and simply makes us less free.

Immediately following September 11th, a number of immigrants were arrested and held in detention in the United States for minor visa violations and other unreported alleged offences. Did the arrest and detention of an undisclosed number of people for unspecified charges not constitute an infraction of US law? Can the current administration not be forced to divulge the names, charges, and number of people so arrested?

Immediately after September 11th, Ashcroft announced that they had started rounding up suspected "terrorists." These men were all Arab, Muslim and South Asian with minor immigration violations such as overstaying a student visa, or working on a tourist visa. Many of them had children who were American citizens, some were married to American citizens. Many of them had disappeared through the cracks at the INS and had just overstayed their visas, while still others had pending applications for adjustment of status at the INS. They were not here for purposes of terrorism. None of them have been charged with any crimes.

To make matters worse, the Department of Justice refused to disclose the names of those detained, and closed immigration "9-11 related cases" so we were not able to sit in on immigration hearings to find out what was happening. You can imagine: the government on one side, and a lone man, who may not speak English well, who may not understand the legal process, sitting alone on the other side. There have also been no witnesses and no information on what is happening available to the public.

We filed a couple of lawsuits (Detroit Free Press v. Ashcroft and North Jersey Media Group, Inc. and New Jersey Law Journal v. Ashcroft) to try to get access to these hearings and we are still fighting hard to open up the court system and preserve our open democracy.

To view the details of these lawsuits see the ACLU website.

You gestured at this earlier as well, but does the current administration's policy of racial profiling not constitute a violation of the US Constitution?

We believe, under the US Constitution, that everybody is due equal protection under the law. We feel that part of equal protection is also the right not to be looked at or treated differently by law enforcement officers because of your race or ethnic background. The government has no business solving criminal investigations through racial or religious profiling. It is not right when the person is African-American or Latino, and it is not right when the person is Arab, Muslim or South Asian. It is racist to say that being Arab, Muslim or South Asian makes one criminally suspect. Nobody looked at white men with crew cuts differently after Timothy McVeigh bombed the federal building in Oklahoma, and they should certainly not do so in this instance either.

Can you tell me a little bit about the ACLU's Campaign Against Racial Profiling? When was this started, and what kind of work do they do?

At the ACLU, we believe that law enforcement should not be in the business of using race, ethnicity or religion as a proxy for criminal behavior. Before September 11th, we dealt with more traditional types of racial profiling against African Americans and Latinos. We fought against people being stopped on the highways because of their race. We were achieving great success in communicating the message that racial profiling was not a good crime-solving technique (using race as a proxy for criminal activity).

Then after 9/11, while the government said one thing, their actions clearly contradicted their speech. The government said we support our Arab, Muslim, and South Asian Americans and neighbors; they are our friends and family, you should extend the hand of friendship to them, not hatred. But government actions have done nothing to support that view; instead they have harassed this population.

Since September 11th we've been working quite hard, not only to fight this fight in the courts, but to educate the American public and to provide community support against the backlash. People are angry, not only about what is happening to Arabs, Muslims and South Asians in this country, but about the destruction of our vital civil liberties -- rights that affect us all. The ACLU has hired five national organizers who are working with communities to pass local resolutions in city councils and municipalities in support of civil liberties. Over 80 communities have passed resolutions opposing the Patriot Act and the number is growing daily.

Click here for more information and to see the communities that have passed such resolutions.

Under the new INS registration program instituted earlier this year, male citizens above the age of 16 from a number of Muslim countries (and North Korea) have to register with the INS. Can you explain the procedure and also the implications of this in the long-term?

The latest in the government's series of ill-conceived and discriminatory policies is the implementation of the National Security Entry-Exit Registration System. The Department of Justice has issued four notices since November requiring all nonimmigrant men over the age of 16 who are from a list of 25 Muslim countries and North Korea and Eritrea to register in person at special Immigration and Naturalization Service offices before certain deadlines and to check in regularly with the government every year thereafter. This amounts to blatant racial and religious profiling and was quickly shown to be nothing more than a pretext for a second wave of roundups and detention of Arab, Muslim and South Asian men and teens.

Thus far, the Special Call-In Registration has been nothing short of a disaster. The INS announced these new requirements in confusing and complicated notices in the Federal Registry. Officials did not appropriately or adequately publicize the new requirements and did not immediately translate the notices into all appropriate languages. The registration proposal was so haphazardly initiated that it did not allow enough time for individuals to learn of the requirements and register. The INS did not even bother to provide a registration facility in every state. It is under these circumstances that officials set the restrictive deadline for registration at one month.

We believe that the Department of Justice and the INS never provided appropriate advertisement, translation or means to register because their goal is not actually to register people. Instead, we believe the government's goal is to take people who are in good status and through no fault of their own, make them deportable; all because these people were born into certain religious and ethnic backgrounds.

Hundreds of men and boys who voluntarily came to INS facilities to register have been arrested, detained and mistreated. Stories of these abuses sent waves of terror through the targeted communities and prevented many people who would have registered from coming in. Now these men and boys -- even those who were in otherwise perfect status -- are technically deportable. The INS should have certainly anticipated this problem and done everything in its power to prevent it from happening in the first place.

This racial profiling is dangerous to our democracy. We have been calling on all citizens of conscience to register their discontent. The Department of Justice and the INS need to know that the broader American public understands and strenuously objects to what is happening with immigrant communities.

These registration schemes are not making us any safer. They do nothing but damage our reputation as a freedom-loving society and a land welcoming of immigrants. Our government must stop wasting precious resources engaging in discriminatory roundups. By design, the Special Call-In Registration scheme is wrong and fundamentally un-American.

There has been some talk about how the INS hopes eventually to extend this mandatory registration to all non-citizens/permanent residents. That is, all people who have a visa for the US will be required to register with the INS by December 2005. Is this correct?

Yes this is what they say.

It is clear that the first 25 countries were targeted on the basis of religion. I think that much is evident. Keep in mind that there are thousands and thousands of people from Europe running around with the exact same visa violations as there are Arabs, Muslims and South Asians who have been arrested, detained and deported after September 11th, and there is no special focus on finding them. There were of course people detained from these countries, but certainly not comparable to what happened in the Muslim, Arab or South Asian communities.

Is the INS legally allowed to interrogate people when they come in to register? They also take copies of all bank cards and credit cards. Is this legally permissible?

They have been interrogating people and taking copies of credit and bank cards. Some people had their Blockbuster cards copied! So what some attorneys started doing was advising their clients not to take their credit cards with them. But people were sent back home to get their financial information. The financial information of these people coming to register is not the business of the INS. These people have the right to keep their financial information private. Furthermore, to say that Special Registration is apprehending terrorists does not make logical sense. Everybody knows a terrorist will not stand in line to hand over his financial information and to answer these questions. And yet the INS asks ridiculous questions of the people who actually go to register. People have even been asked, "Are you a terrorist?"

Other questions that the government has been asking of people show absolutely no respect for or understanding of these communities, and a shockingly immature knowledge of terrorism: questions like how many times a day they pray, how often they go to the mosque, and how religious they are. This is not the business of government in a free society, and it has nothing to do with preventing terrorist crimes.

Even if the present Administration is voted out of power, will it not be very difficult to reverse the legislation that has already been approved?

Precisely, and this is a very important point that we must think about. What the present Administration is doing now destroys in minutes, hours, days and months, rights that took generations to establish. We may not get them back for many, many years, if we get them back at all. These are serious and fundamental losses that change the very character of America in a way that most Americans oppose. The Administration must reconsider the path they are taking us down and realize that it is possible for us to be both safe and free.

* The name in full is: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.

Interview conducted by Nermeen Shaikh of Asia Society.