Immigrants or Inmates
Two months after the US entered World War One, Congress passed the 1917 Espionage Act, making it a crime for anyone to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States.” Under this Act, a man named Charles Shaffer was convicted for mailing a book that had a ‘probable tendency’ to interfere with the military’s goals. Indeed, Shaffer was “presumed to have intended the natural and probable consequences of what he knowingly did,” by the Ninth Circuit of Appeals.
Shaffer’s words had not caused any actual effect on the military, but the government was worried about what they might do. The government approached speech as something that should be surveyed, for even the most inconsequential speech appeared to have the potential to be the spark that could ignite a far greater fire. And so, the judicial and legislative branches approached speech much like firemen: their primary aim was prevention.
Indeed, the question of what speech might do seemed to be the guiding impetus in the creation of subsequent laws. In times of war or supposed peril, the government uses the people’s panic as a vacuum that they can fill with overbroad and unconstitutional legislation. Today, this vacuum is filled with the lives of Arabs, Muslims, and South Asians.
In 2001, the Patriot Act was passed after 9/11 with an aim to arm “law enforcement with new tools to detect and prevent terrorism.” The means of doing which, however, were far from advertised. Section 802 of the Act makes it so that acts which “seek to influence the policy of government” can be considered domestic terrorism. Section 213, the ‘sneak and peak,’ clause, is as invasive as it sounds. It allows the conduct of searches and seizures in people's homes without warrants or notifications to the owners: you do not need to demonstrate that there is an imminent risk of destruction of evidence, but rather you need only provide that notification to the owner would have an adverse effect on an investigation. Moreover, this provision is not limited to terror investigations, but is available to all investigations. Anyone at any time could be privy to this kind of search that is in complete violation of the Fourth Amendment, which upholds the right to be secure in their property. And finally, this section does not contain a ‘sunset clause,’ meaning that it is permanent to the Patriot Act.
Knowledge of this legislation, though important, would not be nearly as distressing if Congress had allowed the Patriot Act to disappear into the vault of shameful law along with the Espionage Act, but it was reauthorized through the “USA Freedom Act.” Unequivocally, these Acts offer great discretion and deference to the powers of Congress, effectively blurring the lines between the reach of the judicial and that of the legislative.
After this Act was passed, everyone who had been given an order of removal, meaning they were staying in the country “illegally,” was put on the Absconder list. But the deportations subsequent to this list’s creation were focused on Muslims, Arabs, and South Asians, who made up just 2% of the list. Indeed, the INS was using immigration laws as a tool to respond to 9-11, effectively blurring lines and producing a synonymity between immigration and terrorism.
Aside from mere policy implementation, the government took swift action to ensure that these ‘potential terrorists’ would be evicted as quickly as possible. Those on the list would be quickly removed from their homes, without any notice given to families regarding where they were being taken. To make the situation more of a labyrinth, they would continuously change the facilities at which they would hold these ‘inmates’ and would maintain very strict hours during which family could visit. And finally, to beat a horse whose corpse should have been buried years ago, the prison-industrial complex made this situation far worse. These ‘inmates’ were subjected to private facilities that were investigated by the OIG, finding consistent physical and mental abuse. Moreover, a detainee was only allowed one legal call a month, and the list of legal contacts that had been given to him was outdated and inaccurate, so there would be no answer to his calls. This detainee only obtained legal counsel when he finally was able to make a social call to his sister, four months after his arrest.
What was once McCarthyism is now the Muslim Ban. Indeed, ‘war-time’ legislation has consistently been used to persecute perceived threats by unconstitutionally targeting ideology, race, and religion. The means by which the government passes wrongful legislation have been established, but the target of this oppression is a variable. Those protected today may be the inmates of tomorrow.