America must end the scourge of profiling Arabs and Muslims

A Muslim and Arab community gathering held by the Arab American Institute in Brooklyn, New York in 2021. Michael Falco

Twenty years ago, Americans were caught up in the drama of the early stages of the disastrous war on Iraq. While that was unfolding, Arabs and Muslims in the US were also reeling from George W Bush’s assault on their civil liberties.

While the Bush administration wasn’t the first or last to implement policies that violated the rights of Arab and Muslim immigrants, its behaviour post-9/11 was the most egregious – and came in waves of far-reaching programmes that caused widespread fear and had terrible consequences for tens of thousands of innocent victims and their families.

In the wake of the horrific terrorist attacks of 9/11, there was deep concern that some Americans would lash out against Arabs and Muslims in the US (I personally experienced such a backlash, receiving numerous threats against my life and the lives of my children. In all, three men were convicted and sent to prison for making death threats against us.)

To his credit, Mr Bush spoke out cautioning Americans against targeting Arabs and Muslims and blaming them for the crimes of 9/11. But while the president was saying the right things, his administration was implementing policies that did exactly the opposite.

First came the immediate round-up of thousands of recent Arab and Muslim immigrants – many of whom were summarily deported. This was followed by two national “call-ins” in which more than 8,000 Arab and Muslim immigrants (and some citizens) were ordered to report for “interviews” with immigration officials.

In late 2002, about the same time as the US was preparing to launch its invasion of Iraq, the Bush administration launched the National Security Entry-Exit Registration System (NSEERS), a large profiling programme that required all non-immigrant males who were 16 and over (students, visitors, businesspeople) from 25 Arab and Muslim-majority countries (and North Korea) to report to immigration offices around the US to be photographed, fingerprinted and interrogated.

By every measure, NSEERS was a disaster. It was poorly conceived, badly managed and arbitrarily executed. The result was chaos and fear, and it wrecked lives. Local immigration offices were not given resources to handle the intake of those who came to register. Affected communities were not given the information they needed to know when they should report. Nor were immigration officials given specific guidelines as to how to administer the registration.

When hundreds reported at the Los Angeles office for the first deadline and were detained en masse because the office didn’t have the manpower to interview them, other immigrants recoiled in fear. Compounding the fear were stories of men being ordered for deportation despite having their papers in order. As a result, many who were to have reported went into hiding, while thousands of others simply fled the country.

In the end, of the estimated 160,000 to 180,000 immigrants who were to have reported, only 83,000 did – with almost 14,000 placed in deportation proceedings. Because the Bush administration rebuffed all requests for information, all that is known are stories from victims, their families, or their attorneys. Some were immigrants who married or students who changed their academic programmes and had a “change in status pending”. While this was accepted by some immigration offices, in others, these men were ordered held for deportation.

Justine El-Khazen, a writer whose husband was one of NSEERS victims, recently sent me an article that propelled me back to this nightmarish period. Her piece prompted a rush of memories: the frightened calls from students who missed their NSEERS deadlines; the school administrator who had told his students they didn’t need to report because they were enrolled and was now fearful that their non-compliance, based on his advice, had put them at risk of deportation; and the wives whose husbands had arbitrarily been deported. In all, my office handled hundreds of such anguished calls. Because the Bush administration was so unresponsive, we were unable to find remedies for any of these cases. And so, their trauma became a shared experience. And 20 years later, those involved still feel it.

If the purpose of NSEERS was to create distrust between Arabs and Muslims and the US government or to generate fear and insecurity, then the programme was a success. But if it was, as the Bush administration claimed, “an essential tool in making the US more secure”, then it was a total failure. The Office of the Inspector General released a report in 2012 stating that US officials found “little value in the interviews they conducted with NSEERS registrants” and that maintaining the regulatory structure for the programme provided “no discernible public benefit”. NSEERS did not produce a single known terrorism-related conviction.

The failure of NSEERS was that it was based on the crudest of methods – mass profiling based on country of origin. It wasn’t the first such effort. Such large-scale profiling efforts were used by former presidents such as Richard Nixon, Ronald Reagan, Bill Clinton, Barack Obama and Donald Trump. All have been flawed, wasting law-enforcement resources and eroding trust with affected communities. Most importantly, none have resulted in making America safer.

Towards the end of the Bush years, even senior administration officials were promising to terminate the programme. They did not. The Obama administration suspended the programme in 2011 by removing the 25 countries from the list subjected to the special registration requirements, but did not officially terminate NSEERS until December 2016, just before Mr Trump, with his threat of a Muslim ban, took office. And though Mr Obama removed NSEERS’s regulatory framework, the impact of the harmful and discriminatory registry was fully entrenched in various government databases where the registrants’ information remained.

Data about NSEERS registrants are housed in US-Visit and the Enforcement Case Tracking System, where information about those profiled by NSEERS can be found among the list of “Known or Suspected Terrorists” or “Wanted Persons” or “Sexual Registrants”. As a result, local and federal law enforcement can tap into a national database of Arab and Muslim visitors and use it, as they have done, to harass, intimidate and surveil them. This is what they did to Ms El-Khazen’s husband, prolonging the nightmare that began 20 years ago. As a result, he felt the need to leave the US, shattering their family and abandoning his dream of a life in the US.

Twenty years after Mr Bush’s assault on civil liberties, it’s time for the Biden administration to bury, once and for all, the discriminatory underpinnings that enabled NSEERS by finally updating the Department of Justice and Department of Homeland Security’s profiling guidance so that we actually ban profiling in all its forms. Until then, the crude profiling of Arabs and Muslims, including Arab Americans and American Muslims, will continue. Discriminatory programmes such as NSEERS have not made America safer. They have only made the country less free.