Sunday, November 23, 2003

Correction regarding the Al Haramain Islamic Foundation Inc. (USA)

All nineteen of the hijackers on September 11 were Arab Muslim men from foreign countries. That fact, together with intelligence that Al Qaeda consists largely of Arab Muslim men, has sparked the most widespread campaign of ethnic profiling that this country has seen since the treatment of Americans and immigrants of Japanese descent during World War II. But just as ethnic profiling did not work then to identify true threats to the nation’s security, so the country’s current round of profiling has not worked to identify real terrorists, and has instead obstructed efforts to find those who truly threaten us.

By drawing a wide net of suspicion over virtually every Muslim and Arab man in this country, the government wastes its resources and misdirects its attention. Instead of doing investigative work to come up with a set of real suspects, the Government declares an entire community to be suspicious, and then proceeds to search for the proverbial needle in a haystack.

Unfortunately, examples of such misdirected efforts abound — none more so than from the U.S. Department of Justice. Since September 11, Attorney General John Ashcroft has used immigration and other laws to detain over five thousand foreign nationals, nearly all Arab or Muslim, nearly all with no objective evidence linking them to terrorism. He has also required some 80,000 foreign nationals from Arab and Muslim countries to register and be fingerprinted, has prioritized the deportation of Arab and Muslims, and has subjected them to discriminatory interview and automatic detention policies — all based on nothing more than their country of passport. When all is said and done, however, these efforts have identified no person charged with membership in Al Qaeda or involvement in the September 11 attacks. Only three of the more than 5,000 foreign nationals subjected to preventive detention have been charged with any terrorist-related crime, and two of them were acquitted of the terrorist charges.

In June, the Department of Justice’s Inspector General found a pattern of arrests without charges or evidence of terrorist activity, prolonged detention without justification, coordinated efforts to deny access to lawyers, and physical and verbal abuse. Attorney General Ashcroft’s response was typically unyielding — “we make no apologies.” Ashcroft did not admit the obvious — that the entire profiling effort was a colossal failure and a drastic misallocation of much needed resources in terms of identifying and prosecuting actual terrorists.

In casting their net of suspicion broadly over tens of thousands of Arab and Muslim men, Ashcroft and the Department of Justice have done more than simply misdirect their investigative focus. They have alienated critically important allies in the war on terrorism — the law-abiding and patriotic Muslims and Arabs of this country who, far from supporting terrorism, have long been opposed to the use of violence by religious extremists. Many, having fled their home countries to avoid religious persecution, now find themselves ostracized and under suspicion in their adopted country, not for their conduct but for their identity. Arabs and Muslims are, understandably, disillusioned when their country of choice indiscriminately points an accusing finger at them without cause or even reasonable suspicion. That disillusion, in turn, impedes the cooperation that might lead to real terrorists.

Profiling of Muslims and Arabs, and the hidden costs of profiling, extend far beyond the government. As an example, the Al Haramain Islamic Foundation, Inc. of Oregon has been unfairly accused of links to terrorists. Al Haramain Oregon is a Muslim charity dedicated to distributing Islamic information and Qur’ans to Muslims throughout the United States, and to educating the public at large that Islam is opposed to terrorism in all forms. Its mission, in part, is to spread the word that true Muslims abhor violence against the innocent. It would, therefore, seem to be a natural partner in the war against terror. Its articles of incorporation, filed with the Oregon Secretary of State in 1998, provide that it is dedicated to peace and the fight against terrorism. One of the group’s most vocal supporters is a local rabbi, with whom Al Haramain has engaged in joint public education activities. As an Islamic charity, however, Al Haramain (Oregon) has been suspected and labeled as a terrorist by many who accuse first, and find out the truth later.

The government’s profiling errors are compounded when it relies on shortcuts and unfair procedures to label groups as “terrorists.” The government has formally charged three Muslim charities in the United States as “terrorist,” under a legal scheme that provides no definition for what a “terrorist” organization is, allows the designation process to take place without notice or a hearing, bars the designated group from offering evidence in its defense in court, and authorizes the government to defend its designation by providing secret evidence to a court — evidence that the designated group has no right to see or confront. Once designated, the Department of Treasury freezes these groups’ funds, and criminalizes any transactions with them. This approach has penalized thousands of humanitarian donors, and many more legitimate beneficiaries of much needed humanitarian need. These actions, shrouded in secrecy and never defended openly in a fair process, only increase the suspicions of the Arab and Muslim world about the motives behind the United States’ sweeping approach. In many Arab countries, the most trusted element of those societies is not the government, but Islamic charities and the Islamic scholars who support them. When the U.S. charges major Islamic charities as terrorists, without giving them a fair hearing, the government further alienates Muslims, and provides fertile recruiting ground for al Qaeda and other terrorist groups.

It is widely acknowledged that the United States seriously erred when it interned Japanese-American citizens and legal residents during World War II. Today we know that while their families sat in internment camps, Japanese-American soldiers fought to defend this country, and were among the most decorated U.S. soldiers. We have not interned Arabs and Muslims in the same numbers as the Japanese during World War II. But we have indulged the same kind of ethnic stereotyping by treating large numbers of human beings as suspect not for their individual actions but for their ethnic or religious identity.

Lynne Bernabei is a civil rights attorney with Bernabei & Katz, PLLC (Washington D.C.) and counsel for the Al Haramain Islamic Foundation, Inc. (U.S.A.); David Cole is a professor at Georgetown University Law Center and the author of “Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism” (2003).

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