Challenging homeland security policies that violate rights

This week I participated in a panel of leaders and experts invited to address the civil rights challenges facing the Department of Homeland Security.

In post-9/11 America, the Bush administration and politicians in both parties were desperate to demonstrate that they could act to protect the country. As a result, they authorised a number of policies and programmemes that were supposed to make us safer as well as creating the Department of Homeland Security (DHS), a new Cabinet-level entity that brought under one roof a number of agencies that had previously been part of the Departments of State, Justice, Treasury and Commerce.

Such a panicked response during a crisis was, however, ill advised. Concerns grew that the policies and programmemes created during that period would have long-term negative impact on the civil rights and civil liberties of American citizens and residents. For example, large-scale roundups and deportations of immigrants from predominantly Arab and Muslim-majority countries were initiated, as well as widespread surveillance and profiling of these same groups at airports, at border crossing points, and in their communities and places of worship. Other programmemes put in place resulted in targeting and securitising the government's relationship with Arabs and Muslims, causing a breakdown of trust between the communities and government and promoting suspicion of Arabs and Muslims in the broader public. In addition to these profoundly negative impacts, according to the government's own reports, these policies and programmemes made no contribution to our security. 

Initiated during the Bush era, most of these policies and programmes continued and even grew during the Obama years, reaching their apex during the Trump administration. During his presidential campaign, Joseph Biden pledged to put an end to many of these policies, specifically promising to halt ethnic and religious profiling and programmes that viewed the Arab and Muslim communities exclusively through a national security lens, and to promote a just, non-discriminatory immigration policy.   

With this background, just nine months into the Biden administration, I was delighted to accept the invitation of DHS leadership to examine the corrective measures they have taken to date and the challenges they still face to make the president's commitment a reality. The panel of civil rights and civil liberties advocates was convened to address the DHS leadership on "The State of Civil Rights on the Twentieth Anniversary of 9/11".

Joining me on the panel were leaders from the American Civil Liberties Union, the Centre for Immigrants' Rights and the Centre for Constitutional Rights. Representing DHS were the heads of the Customs Border Patrol, the Transportation Safety Administration, and the directors of immigration and customs enforcement and the immigration service. 

In their remarks, the DHS leadership described their efforts to address past rights abuses and the continuing need to promote more humane treatment of immigrants and asylees. While welcoming these efforts, our panel countered that it was important not only to correct some of the policies that had been put in place by the previous administration, but also to turn their attention to negative policies and practices that were part of the very DNA of the "homeland security" mandate.   

In my contribution, I identified several programmes and policies that were launched during the Bush and Obama administrations that resulted in considerable damage to my Arab American community and the Muslim community. Specifically, I called for closing the loopholes that still exist in the "ban on profiling". The odious practice of profiling that had allowed various law enforcement entities to target individuals because of their race, religion, or national origin, originally banned in 2003, has continued, even after the welcomed 2014 Obama-era revisions, because significant loopholes remain. The “ban” does not apply to "national security" investigations or screening of individuals at the borders or most state and local law enforcement. As a result, for example, Arab Americans living in Michigan visiting family in Windsor Canada were routinely harassed, detained, and humiliated by US border officials. 

I also called on DHS to terminate efforts like the SPOT (Screening of Passengers by Observation Techniques) programme that a member of Congress referred to as “fundamentally flawed, cannot be proven effective, and should no longer be funded with taxpayer dollars.” Today, it remains operational, rebranded as the BDA (Behavioral Detection and Analysis) programme, with expenditures far exceeding a billion dollars. I also called for the elimination of Countering Violent Extremism programmes as both CVE and “behaviour detection” programmes are based on faulty premises, are costly, and have been proven ineffective in promoting public safety or national security.  

Finally, I urged DHS leadership to take corrective measures to counter the damage that has been done to the culture within law enforcement and the broader political culture by these policies and programmes that target our communities as "threats". This problem dates back to the Bush era during which the president cautioned Americans not to target Arabs and Muslims, while his attorney general was indiscriminately treating these communities as the enemy. In the minds of law enforcement agencies and the public, at large, the attorney general's policies trumped the president's caution.  

The challenges facing the new leadership at DHS are, no doubt, enormous. While continuing to fulfill their mandate to keep our nation secure, they must also clean up the mess they've inherited from the past two decades, including actions often taken in haste in the aftermath of the attacks on 9/11. We welcomed their initiative to invite our criticisms and proposals for change and we promised them and the communities we serve that we'll continue to push back until we see: An end to programmes that discriminate without contributing to making us safer; an end to programmes that unfairly target vulnerable communities; and an effort to change the culture of suspicion and surveillance that drives the violation of our civil rights and civil liberties.

The writer is president of Washington-based Arab American Institute