Ideological and Security-Based Exclusion and Deportation

Antidiscrimination and National Security

Immediately after the September 11, 2001, terrorist attacks, hundreds of noncitizens were detained for immigration violations and minor crimes under the rationale of antiterrorism. The administration was criticized for not providing basic information about the whereabouts and exact number of these detainees and worse for not providing basic due process and practicing racial profiling in its antiterrorism efforts.

Historically, the U.S. government has excluded noncitizens on the basis of their membership in certain organizations deemed to pose a threat to national security. This practice implicates freedom of association and First Amendment rights. The Supreme Court’s Brandenburg holding of 1969 held that the government may not ‘‘proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’’ (Brandenburg v. Ohio, 395 U.S. 444, 447, 1969). The immigration statutory scheme enacted after September 11, 2001, provides the federal government with unprecedented powers, of which ideological exclusion, after a period of being out of favor, has been resurrected.

Legal outcomes in terms of who should be excluded or deported are closely affected by the ideological nature of Citizenship rights, an area of study that has traditionally fallen within the purview of Citizenship theory rather than the law. On the other hand, the law makes the determination of who does or does not belong in the United States through a balancing of interests. These competing interests are on the one hand the civil rights protections for individuals and on the other the interests of society as a whole. But, the law’s process of interpreting these interests has historically been subject to the popular ideology within mainstream politics, culture, and society and to the law’s peculiar jurisprudential methods of determining what groups are excludable or includable.

In the post-September 11 era, the concern over global terrorism has resulted in the enactment of a statutory regime in the United States that has pushed (some say exceeded) the boundaries of the traditional balance of interests between individual rights and those of society (here national security) to the edge. Critics of this new statutory scheme, in particular the USA PATRIOT Act, Pub.L. 107-56, 115 Stat. 272 (2001), have argued that aspects of it practice racial profiling and are discriminatory by nature. These changes have had far reaching effects on the immigration controls regulated by administrative agencies and the courts. As in the past, this new national security paradigm’s approach to exclusion and deportation has implicated American society’s views on race and national origins.

In the aftermath of the September 11 terrorist attacks there was a large increase in the reported number of hate crimes perpetrated against Middle Easterners and those misidentified as being such. Is this rise in hate crimes a consequence of the federal government’s endorsement and practice of racially profiling Middle Easterners? This essay compares some important historic examples of the convergence between popular attitudes towards outsider groups as un-American and the law’s role in creating categorizations of these groups as beyond the protections of the law and thus excludable.

The determination that a particular group should be excluded or deported is the tail end of a longer process in which popular and elite ideological views converge with legal processes to identify that group as a threat. The outcome of this determination is that members of such groups are accorded noncitizen status socially (regardless of their actual immigration status) and are at risk of being determined noncitizens legally. The selection of what persons or groups are excluded from the United States depends upon a matrix of factors that include domestic and international conflicts and pre-existing views on immigration, race, and class.

These ideological perspectives have historically played a large role in the law’s treatment of different groups in the United States. Therefore, legal frameworks for exclusion and deportation trigger questions of equality and antidiscrimination principles and law. These practices are controlled through statutory schemes and the federal institutions that interpret and apply the laws to individuals and groups on a daily basis. Historically, these institutions have used exclusion and deportation for mixed purposes of short-term political ends, demographic control, and national security. Each of these political and social objectives is subject to ideological views and biases specific to its historical moment.

David Cole cautions that in times of crisis, such as the current era of the ‘‘War on Terrorism,’’ the groups that have suffered most when the law has deemed that certain civil liberties should be curtailed for the benefit of improved national security has been noncitizens, a result he defines as a double standard. In the current era, practices such as racial profiling, which normally would be viewed with much scrutiny, are viewed as necessary evils. Cole argues that such shifts in fact harm society as a whole. What we allow our government to do to noncitizens has consequences on how it treats citizens. For example, the Enemy Alien Act of 1798 remains on the books. This act authorizes the president during wartime to detain, deport, or otherwise restrict the liberties of any citizen over fourteen years of age of a country with which the United States is at war, without any individualized showing of disloyalty, criminal conduct, or even suspicion. The internment of Japanese (two-thirds of whom were citizens) during World War II was an extension of this logic.

Critics have argued that one example of the double standard of treatment is John Walker Lindh, a U.S. citizen of Caucasian descent, coined the ‘‘American Taliban,’’ who was taken into custody at Mazar-el Shariff in Afghanistan for fighting on the side of the Taliban against U.S. troops. President Bush opted not to have Lindh tried in a military tribunal—a venue lacking many of the procedural protections of a civilian criminal court. Bush limited military tribunals to noncitizens although there is no such constitutional bar and citizens have been tried in such venues and the Supreme Court has upheld this.

Recent History of Exclusion and Deportation

A broad interpretation of what constitutes ‘‘securitybased’’ concerns is necessary to understand the role that race and national origins have played in exclusion and deportation. The important early instances of legal exclusion were based on fears of threat to the domestic labor market by what were deemed inassimilable outsiders. The view that such groups were inassimilable was based on the assumption that the cultural and social practices of these groups, their racial bloodlines, and thus their ability to be a proper part of the American polity posed a threat to American political and cultural sovereignty. Therefore, such groups could not be trusted with full-Citizenship status.

The most notorious example of exclusion through the denial of Citizenship rights is the U.S. Supreme Court’s pre-Civil War case Scott v. Sandford, 60 U.S., 393 (1857). Dred Scott is not traditionally categorized under the rubric of national security-based exclusion, but it reveals the close jurisprudential and ideological connection between views on race and Citizenship rights that are important factors in cases categorized thusly. Therefore, in order to understand the basis of some of the current critiques of the USA PATRIOT Act as practicing racial profiling, it is necessary to understand cases such as Dred Scott and other cases involving racial prerequisites and immigration restrictions as part of having similar ideological and legal histories.

Dred Scott upheld the property rights of slaveholders, thus denying African Americans Citizenship rights. The plaintiff, Dred Scott, was a slave who escaped to a non-slave-holding state. The Taney Court’s rationale was that even a ‘‘free Negro’’ whose ancestors were slaves could not be considered a citizen within the meaning of the Constitution and therefore lacked standing to sue. Taney balanced the interests of African Americans in being recognized as citizens rather than chattel against what he viewed as broader social interests in the status quo and the stability it implied, finding for the status quo.

The Chinese Exclusion Case

Although Dred Scott was roundly criticized, even in its time, there are a series of legal statutory and court decisions after it that exercised the balancing principle and found against the interests of outsider groups on the basis of race and national origin. In the midnineteenth century, the multiracial environment in California resulted in competition between European ethnic groups and Asians, Mexicans, Native Americans and blacks. In this environment, ideological views of nonwhite groups as outsiders played an important role in the consolidation of power by European ethnic groups around a white identity. By default, this white identity became established as the norm in terms of who was an American citizen.

On the other hand, groups such as Chinese Americans came to be identified as inassimilable outsiders who posed a threat to free white labor and American democratic ideals. What followed were a series of exclusionary laws and related cases that solidified and sanctioned the popular view that Chinese immigrants posed a threat to democratic ideals of free labor. These legal outcomes were driven by labor competition with labor that had already coalesced around white identity; integral to this was a model of what constituted an appropriate American and the Chinese did not satisfy this. Those that did not fall within the paradigm of American identity were inassimilable and thus were more likely to be perceived as national security threats.

In what has since been categorized as the ‘‘Chinese Exclusion Case,’’ a Chinese American plaintiff argued for the right to re-enter this country. This case is the progeny of The Chinese Exclusion Act. Passed by the U.S. Congress in 1882, the treaty suspended immigration of Chinese laborers for ten years and was renewed through 1952. The act allowed for the departure and return of Chinese laborers already in the United States, requiring that they carry certificates of identity. But six years later, Congress passed a statute that prohibited the re-entry of laborers who had left the United States relying upon the current law and possessing the certificates of identity. In 1888, Chinese laborer Chae Chan Ping, who left for a visit to China before the subsequent passage of the act denying re-entry, was denied re-entry to the United States.

Terrorism and Racial Profiling

The internment of Japanese Americans during World War II represents a moment when important civil liberties such as due process and equal rights were set aside for citizens and noncitizens alike, due to concerns over national security. As with today’s War on Terrorism, the concern then was how to balance individual rights vs. those of society. The case of Japanese internment is relevant to the post- September 11 context since it involved the assumption that Japanese Americans as a racial group were potential enemy aliens regardless of Citizenship status. Critics have charged that the detention of noncitizens of Middle Eastern background parallels the internment of Japanese Americans during the Second World War.

Through a similar process in which mainstream ideological views and the law interacted to construct an identity of Asian Americans as inassimilable outsiders who posed a national security threat, people of Middle Eastern descent in the post-September 11 era have become reconstructed as ‘‘terrorists.’’ Leti Volpp describes a process in which, after September 11, 2001, ideology, law, and politics converged with the resulting consolidation of a new identity category grouping together persons who appear ‘‘Middle Eastern, Arab, or Muslim.’’ This consolidation reflects a racialization in which members of this group are identified as terrorists and are thus not identified as citizens regardless of their official Citizenship status.

The USA PATRIOT Act’s provisions have allowed indefinite detention of noncitizens, thus providing the attorney general unprecedented power to detain aliens without a hearing and without a showing that they pose a threat to national security or are a flight risk. Given that the Immigration and Naturalization Act (INA) now broadly construes membership in designated ‘‘terrorist organizations’’ and lawful activity in support of such organizations as illegal, the attorney general may indefinitely detain such persons.

The broad INA definitions would result today in the designation of noncitizen supporters of the African National Congress (South African President Nelson Mandela’s organization) as deportable had they been in effect in the 1980s. In addition, the USA PATRIOT Act now allows for the ideological exclusion on grounds of pure speech. It bars noncitizens from admissions under a broad definition in which noncitizens ‘‘endorse or espouse terrorist activity’’ or ‘‘persuade others to support terrorist activity or a terrorist organization’’ when the secretary of state feels that it undermines the U.S. combat of terrorism.

In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Supreme Court upheld the Alien Registration Act of 1940, which allowed for the deportation of aliens who had been members of a subversive group before entering the United States, regardless of when or for how long they were members (Alien Registration Act of 1940, Ch. 439, } 23(b), 54 Stat. 673). The rationale for this decision is based on Congress’s plenary power to admit and exclude aliens as held in Chae Chan Ping v. United States, 130 U.S. 581 (1889) and Fong Yue Ting v. U.S. (1893).

Thus, in the immigration arena, the Court has shown great deference to Congress. This approach has created a long-standing conflict over the issue of whether noncitizens have the same constitutional protections as citizens. In Harsiades, dissenting Justice Douglas critiqued the notion that Fong Yue Ting stood for Congress’s absolute power to deport aliens, writing that it was ‘‘inconsistent with the philosophy of constitutional law which we have developed for the protection of resident aliens. We have long held that a resident alien is a person within the meaning of the Fifth and the Fourteenth Amendments’’ and has similar rights as a citizen.

Conclusion

Historically, statutes and court holdings have come out on the side against noncitizen outsider groups in their assessment of the relative rights of individuals vs. the whole. What history tells us is that when we limit the rights of individuals for their membership in outsider groups, we also run the danger of limiting the basic rights of individuals in society at large. The previous examples of the process in which blacks are construed as noncitizen property, Chinese are as inassimilable national security threats, and Middle Easterners as terrorists illustrate the role that race and national origin have played in legal outcomes. The balancing of individual rights vs. those of society at large must be exercised with a calculation for the role that discrimination plays in ideology and its effect on perceptions of who is American or not American, who will be loyal or disloyal, and, finally, who belongs or does not belong in this country.

Soon after September 11, Ariel Dorfman wrote that the photographs of those missing in the World Trade Center reminded him of the photographs of the desparecidos (the ‘‘disappeared’’) of Chile. Volpp asks what it might mean to expand ‘‘who occupies the category of our disappeared, from those killed in the World Trade Center, to consider also those noncitizens in detention? Our government has taken them, and we do not know where they are,’’ and finally ‘‘[w]ho is the ‘us’ in the U.S.?’’

MICHAEL CHANG

References and Further Reading

• Almaguer, Tomas. Racial Faultlines: the Historical Origins of White Supremacy in California. Berkeley: University of California Press, 1994.
• Bosniak, Linda, Universal Citizenship and the Problem of Alienage, Northwestern University Law Review 94 (Spring 2000): 963–1982.
• Cole, David, Enemy Aliens, Stanford Law Review 54 (May 2002): 953, 970.
• Gross, Ariela, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, Yale Law Journal 108 (1998): 109–180.
• Haney Lopez, Ian. White by Law: the Legal Construction of Race. New York: New York University Press, 1996.
• McClain, Charles, The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase: 1850–1870, California Law Review 72 (1984): 529.
• Omi, Michael, and Howard Winant. Racial Formation in the United States: from the 1960s to the 1990s. New York: Routledge, 1994.
• Takaki, Ronald. Strangers from a Different Shore: a History of Asian Americans. New York: Penguin Books, 1989.
• Volpp, Leti, Critical Race Studies: The Citizen and the Terrorist, UCLA Law Review 49 (June 2002): 1575 at Fn.1.

Cases and Statutes Cited

• Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
• Chae Chan Ping v. United States, 130 U.S. 581 (1889)
• Harsiades v. Shaughnessy, 342 U.S. 580 (1952)
• Scott v. Sandford, 60 U.S., 393 (1857)
• Alien Registration Act of 1940, Ch. 439, } 23(b), 54 Stat. 673
• The Chinese Exclusion Act, May 6, 1882, Ch. 126, 22 Stat. 58
• USA PATRIOT Act, Pub.L. 107-56, 115 Stat. 272 (2001)

See also Aliens, Civil Liberties of; Citizenship; Due Process in Immigration; Noncitizens and Civil Liberties