In the face of a post-September 11 wave of racially motivated attacks against people from the Middle East and South Asia, the Justice Department’s Civil Rights Division announced in a September 13, 2001 press release that “any threats of violence or discrimination against Arab or Muslim Americans or Americans of South Asian descent are not just wrong and un-American, but also are unlawful and will be treated as such.”
To demonstrate further the administration’s sensitivity to attacks on Muslims, George W. Bush visited the Islamic Center of Washington, DC on September 17. Shortly thereafter a resolution was passed by Congress “condemning bigotry and violence against Arab-Americans, American Muslims and Americans from South Asia in the wake of terrorist attacks in New York and Washington.”
Some Arab-American advocacy groups have applauded the Bush administration’s rhetorical opposition to the disturbing backlash against Arabs and Muslims. The director of the Arab American Institute, James Zogby, stated that “the president saved lives by speaking out against anti-Arab and anti-Muslim violence.” Zogby goes on to claim: “There is no question the collective effort of the national leadership stopped hate crimes in their tracks, changed the national discourse and brought out our better angels. I will never forget what [Bush] did.” (1)
Despite the enthusiasm of Zogby and other Arab and Muslim Americans for the administration’s response, the “national security” measures undertaken during the last 12 months by the Justice Department have targeted almost exclusively people from the Middle East and South Asia, and led to the incarceration, deportation and interrogation of numerous individuals who had nothing to do with September 11. In other words, the imposition of the rule of law on behalf of Arabs and Muslims coincided with an aggressive Justice Department attack on people from the Middle East and South Asia. Even if the administration deserves some credit for opposing individual acts of racial violence against Middle Easterners and South Asians, its present treatment of Arab and South Asian immigrants amounts to a legal assault based largely on an unstated policy of racial profiling.
Racial profiling, according to David Harris, author of Profiles in Injustice, uses “race or ethnic appearance as a broad predictor of who is involved in a crime or terrorism.” As a de facto policy, racial profiling dismisses the legal principles of “innocent until proven guilty” and “preponderance of evidence,” and instead relies on “probable cause,” “reasonable suspicion” and, perhaps most importantly, “compelling interest” to justify arbitrary interrogations and detentions. In effect, racial profiling constitutes the criminalization of entire groups within the US. Racial profiling is the domestic counterpart of Bush’s new foreign policy based on preemptive strikes: profiling and preemption work together to define the human targets of the “war on terror.” Objectionable on legal and political grounds, racial profiling of Arabs and others from the Middle East is also a particularly imprecise law enforcement mechanism given the tendency in the US to confuse and collapse Arabs and Muslims into one category, or to misidentify South Asians, Latinos, Africans and others as Arab Muslims. In the case of Arabs, racial profiling is premised on equating an “Arab-looking” person with terrorism. This equation conditions the October 2001 USA PATRIOT Act, which grants US law enforcement and intelligence authorities unprecedented surveillance and investigative powers.
A New Exclusion Act
Since September 11, many Arab and Muslim immigrants have faced dire prospects of detention, secret trial, deportation and what is now beginning to look more and more like a new exclusion act aimed at impeding the immigration of people from the Middle East. The Justice Department announced on August 12 its intention to implement the National Security Entry-Exit Registration System (NSEERS) on September 11, 2002. The system involves the fingerprinting of “high-risk” foreign visitors. In addition, the program will require targeted foreign nationals to register their residence with authorities and to confirm their exit. According to a Justice Department statement, foreigners “will be selected according to intelligence criteria reflecting patterns of terrorist organizations’ activities.” But the system will begin by tracking “all nationals of Iran, Iraq, Libya, Sudan and Syria,” though no nationals from these countries were involved in the September 11 hijackings. In addition, the system will tag for fingerprinting any “non-immigrant aliens whom the State Department determines to present an elevated national security risk, based on criteria reflecting current intelligence” as well as aliens “identified by INS inspectors at the port of entry, using similar criteria.” The ultimate design of the system is to create an enormous database of foreign visitors that can be used to track and locate “terrorist suspects.” Rather than relying on “intelligence criteria,” NSEERS will generate intelligence to facilitate the detention and deportation of certain visitors and immigrants.
The National Security Entry-Exit Registration System is the most recent component of the police action launched by the Justice Department and the Immigration and Naturalization Service (INS) against Middle Easterners, which began with a campaign of secret detentions of immigrants, mostly Arabs and South Asians. By November 5, 2001, the Justice Department had, according to its own count, detained 1,182 persons, but detentions continued after November 5. An INS statement issued in mid-June claimed that 751 persons were detained on immigration charges, and have been deported. An additional 74 remain in custody for alleged immigration violations. There have been 129 federally charged detainees, of which 73 were still in custody in mid-June. An untold number of people defined as material witnesses are still detained. Attorney General John Ashcroft has refused to release the total number of detainees, the names of the detainees or the location of their detentions.
Detainees subsequently released have complained of solitary confinement, restrictive ankle and wrist restraints and lack of physical activity. The INS arrested and subsequently deported many immigrants because they had apparently failed to submit change of address forms in the allotted period of time. But the Washington Post reported on August 3 that more than 2 million documents filed by foreigners, including 200,000 change of address notices, are sitting in a warehouse awaiting processing. Many immigrant advocates believe that some detainees caught in the post-September 11 dragnet had in fact submitted their forms on time and were removed from the US illegally.
The Center for National Security Studies, the American Civil Liberties Union and 21 other organizations, including the American-Arab Anti-Discrimination Committee and the Arab-American Institute, have challenged the legality of Attorney General John Ashcroft’s secret detentions and are seeking a court order for the release of all information on the detainees connected to September 11 events. On August 2, 2002, District Court Judge Gladys Kessler ordered the Justice Department to make public the names of the detainees and their lawyers, but on August 15, the same judge granted a stay while the government appeals the decision.
A good number of the detainees being held on immigration violations have been awaiting deportation — including two of the known Arab detainees, Rabih Haddad, a Lebanese citizen living in Ann Arbor, Michigan, and Mazen al-Najjar, a Palestinian who formerly resided in Tampa, Florida. Both worked with Islamic organizations and both were detained without charge in the sweep after September 11. Both have been subject to secret deportation trials. Though a Federal appeals court has ordered that the courts open the deportation hearings to the public, notably with regard to Haddad’s case, the Justice Department continues to insist on the need for secrecy. (2)
Al-Najjar’s case reveals the continuity between pre- and post-September 11 treatment of Arab Muslims in the US. He was first detained in 1997 and held without trial on the basis of secret evidence until December 2000, when he was released following a court order. He was arrested again, according to a Justice Department press release, on the grounds that “he violated his visa and was ineligible for any form of relief from deportation.” The government claimed that al-Najjar “had established ties to terrorist organizations and held leadership positions in the Tampa-based Islamic Concern Project (ICP) and the World and Islam Studies Enterprise (WISE).” But the judge who ordered al-Najjar’s release in 2000 found that “WISE was a reputable and scholarly research center and the ICP was highly regarded.” The judge also asserted “that there are not�bonafide reasons to conclude that [al-Najjar] is a threat to national security.” Since al-Najjar is a stateless Palestinian, no country was willing to accept him, leaving him to languish in a cell while his family seeks to obtain for him a travel document and visa. Bahrain finally accepted al-Najjar, then turned him away, leaving a US Customs plane to dump al-Najjar in Beirut without the approval of Lebanese officials. While al-Najjar is no longer in jail and his deportation order was based solely on a minor visa violation, government authorities are still labeling him a terrorist.
Ashcroft’s initial dragnet was followed by plans to deport some 6,000 Middle Easterners who have violated the terms of their visas. It has become increasingly evident that the Justice Department and the INS intend to use September 11 as a pretext to crack down on immigrants in general and specifically to reduce the number of Arabs and Muslims residing in the US. These policies are supported by the conservative Center for Immigration Studies (CIS), which published a report in May 2002 titled “The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, 1993-2001.” While the report focuses mostly on Arab immigrants, it recommends a reduction in overall immigration. The Bush administration has seized on September 11 to reinforce US borders and scapegoat immigrants in a period of unprecedented growth of the immigrant population.
Arabs, Race and the Law
Arabs and Muslims who are citizens have been less directly affected by the anti-terrorism measures, but they too have been subject to blanket suspicion and racial profiling and have reason to be concerned that these practices could intensify. Bush’s controversial appointee to the US Civil Rights Commission, Peter Kirsanow, stated in public that “if there’s another attack by Arabs on US soil, ‘not many people will be crying in their beer if there are more detentions, more stops, more profiling.'” (3)
Ashcroft has ominously suggested that it might be necessary to establish camps for US citizens designated as “enemy combatants,” an idea that found expression in the 1998 film The Siege. In spite of the apparent racial blindness of the term “enemy combatant,” it would appear, judging from the contrasting treatments of John Walker Lindh and Yasser Hamdi, that a perceived racial difference is a significant criterion in defining “enemy combatant.” As noted by legal scholar Jonathan Turley in the Los Angeles Times, “Hamdi has been held without charge, even though the facts of his case are virtually identical to those of the case of John Walker Lindh. Both Hamdi and Lindh were captured in Afghanistan as foot soldiers in the Taliban units. Yet Lindh was given a lawyer and a trial, while Hamdi rots in a floating Navy brig in Norfolk.” Enemy combatant and terrorist operate along the same rhetorical register and are virtually synonymous — the main difference being that the former is also applied to non-white US citizens (like Hamdi, but also José Padilla), while the latter is primarily reserved for foreign Middle Easterners.
Although Arabs and other people from the Middle East are classified racially as white according to the US Census and most affirmative action forms, since the 1960s, the US government has unofficially constituted them as a distinct racial group by associating Arabs with terrorism and threats to national security. Unlike other racial constructs, such as blackness or Asian-ness, which are defined officially in opposition to whiteness, the contemporary racialization of Arabs appears to be linked to US foreign policy in the Middle East and its translation into the domestic context. US support of Israel and its occupation of Arab lands casts a shadow upon Arab-Americans, who are treated as perpetual foreigners and denied the rights of other citizens and immigrants.
The secret evidence trials of the 1980s and 1990s illustrated perfectly how a distinct system of justice was used prior to September 11 to deal with Arabs. (4) Secret evidence trials prior to September 11, most infamously that of the Los Angeles Eight, which continues to this day, have concerned Arabs or individuals associated with Arabs accused of links to terrorism. Linguistic, religious and “ethnic” differences play a part in the racialization of Arabs, but the hatred, suspicion and unequal treatment of Arabs by the justice system is more significantly tied to the perception that “they” are foreign enemies of the US. On this basis, they have been denied equal rights before the law. Ironically, the official classification of Arabs as white emerged from a series of court decisions in the first half of the twentieth century, in which immigrants from “Syria” and “Arabia” sought citizenship rights. The so-called prerequisite court cases reveal both the emptiness of racial categories and the uneasiness caused by an Arab presence in the US.
The Arab Prerequisite Cases
In December 1913, Faras Shahid, a 59 year-old immigrant “born at Zahle, in Asia Minor, Syria” who had resided in the US for 11 years, went before a court in South Carolina to establish his right to naturalization. Presiding Judge Smith denied Shahid’s application because, according to the court, the applicant did not meet the racial prerequisites for citizenship established in the 1790 Naturalization Act. This act limited citizenship to “free white persons.” Judge Smith argued in his decision that the words “free white persons” “mean persons as then understood to be of European habitancy or descent.” (5)
Several months later, in a February 1914 hearing for George Dow, another “Syrian” immigrant residing in the US, Judge Smith reiterated his decision that “Syrians” are not entitled to citizenship because they do not meet the prerequisite of whiteness. Again, in an April 1914 rehearing brought before the same district court by Dow’s lawyer and the Syrian American Association, Judge Smith restated with greater elaboration his argument that “Syrians are not white.” Judge Smith went to substantial length in his Dow decisions to refute definitions of whiteness based on physical appearance, as well as linguistic and ethnographic racial classifications. Rather he asserted that “[t]he test becomes mainly one of geography” and that in the case of Dow “the applicant was excluded because he was an Asiatic and not an European.” (6)
Judge Smith’s attempts to limit the definition of “white persons” and reinforce the exclusionary character of US citizenship law was completely antithetical to the decisions of three other Federal courts that in 1909 and 1910 had granted the right to naturalization to “Syrians” on the grounds that they fall within “the classification of the white or Caucasian race.” In the important 1909 case of George Najour, which came before a Georgia District Court, Judge Newman wrote in his decision that “I consider the Syrians as belonging to what we recognize, and what the world recognizes, as the white race.” (7) While Dow took his case to the Fourth Circuit Court in 1915 and succeeded in establishing the legal precedent that “Syrians” meet the racial prerequisite for naturalization, the logic of Judge Newman’s decision in the Najour case was rejected by the Supreme Court in 1923. The split in the courts persisted even as the cases made their way up the judicial ladder, revealing both the ambiguous position of “Syrians” within the US racial system and also the legal construction of racial categories.
The Nationality Act of 1940 updated the statute on naturalization, but did little to overcome the problems of racial categories, as the statute retained the prerequisite of whiteness. Congress still bestowed upon the courts the power to determine an individual’s race and his or her right to US citizenship. A set of cases in the 1940s concerning applications for naturalization submitted by immigrants from the Arabian Peninsula illustrate the continuing confusion in the court’s treatment of Arabs. Ahmed Hassan presented in 1942 his case for naturalization to the Eastern District Court in Michigan. Judge Tuttle describes Hassan in his decision as “an Arab, being a native of Yemen, located in the southwestern part of the Arabian peninsula. Petitioner was before the court and his skin was undisputedly dark brown in color.” Citing several decisions that followed Judge Smith’s argument in the Dow case, Judge Tuttle claimed that “Arabs as a class are not white and therefore not eligible for citizenship.” The judge also noted that “[a]part from the dark skin of the Arabs, it is well known that they are a part of the Mohammedan world and that a wide gulf separates their culture from that of the predominantly Christian peoples of Europe.” (8)
Religious differences were not relevant in the earlier cases of Shahid and Dow, as both were Christians. In fact, Dow attempted to use religious similarities to challenge the exclusionary logic of the court, and asserted in his petition that according to Judge Smith’s definition of whiteness, not even Jesus would be eligible for naturalization in the US. Despite their knowledge of the historical linkages between the eastern Mediterranean and Europe, Judge Smith and subsequently Judge Tuttle dismissed the suggestion that Europeans shared anything in common with “Syrians,” “Arabs” and others classified as non-white. Conversely, in a 1944 decision concerning the petition of Mohamed Mohriez, “an Arab born in Sanhy, Badan, Arabia,” who was admitted to the US as a permanent resident in 1921, Massachusetts District Judge Wyzanski wrote that “the Arab people stand as one of the chief channels by which the traditions of white Europeans, especially the ancient Greek traditions, have been carried into the present.” (9) Judge Wyzanski’s decision to grant Mohriez’s petition for citizenship was supported by the INS, which had published an article in October 1943 entitled “The Eligibility of Arabs for Naturalization.”
Undoing Racial Categories
In the years from the 1940s to the present, the official position of the US Census Bureau has been that Arab-Americans were to be treated like Italian-Americans, Greek-Americans and some other European immigrant communities. The manual of the 1960 census instructed enumerators to classify “Southern European and Near Eastern nationalities” as white. In contrast, “Asian Indians were to be classified as ‘other,’ and Hindu written in.” (10) The 1980 census, however, listed Asian Indian as a separate category along with 14 other racial designations. That same year, the Census Bureau included a specific question for persons of “Spanish/Hispanic origin or descent,” which included the categories Mexican, Mexican-American, Chicano, Puerto Rican, Cuban and other Spanish/Hispanic. These shifts in racial classifications have resulted in part from political pressure exerted by Latinos and South Asians, but the changes also correspond to increasing efforts of the US government to gather more specific data on “non-white” immigrants to the US.
Despite their official classification as white, Arabs have routinely been subject to forms of racism experienced by blacks, Asians and Latinos. This contradiction underscores the impossible position of the Arab minority, as it seeks to obtain equal political and legal rights in the US. Positioned awkwardly within the category of whiteness, but subject to racial profiling and racist cultural stereotyping, Arabs are denied the rights of other recognized minorities and excluded from the racial privileges of the white majority. In the 1990s, some Arabs in the US undertook an initiative that sought to pressure the Census Bureau into recognizing their position as a minority. In a sense, this initiative aimed to reverse the legal struggle of Arabs during the first half of the twentieth century without sacrificing gains in the area of citizenship rights. Efforts to reclassify Arabs outside the “white” category respond in a belated manner to the increased recognition of minority groups in the post-civil rights era. Helen Samhan, executive director of the Arab American Institute, maintains that “it is important to research the compelling reasons for supporting the official minority status and the drawbacks for the constituency [Arab-Americans], for other minorities and for the society.” (11)
The proposal to create a new minority category is grounded in the assumption that the position of Arabs within the political system will be enhanced if they are so classified. It may be, however, that Arabs and others from the Middle East will simply secure an official position within the racial hierarchy that corresponds more accurately with their second-class status. In the present climate, one of the significant risks of elaborating a Middle East minority category is the possible convergence of ethnic classification and racial profiling. Moreover, as a number of critics of the census have noted, official classifications are one of the principal mechanisms that the state uses to manage minorities.
The contradiction that arises from the classification of Arabs as “white,” on one hand, and the racialist and racist treatment of Arabs by various state agencies, on the other, has assumed increased significance since the events of September 11, 2001 and the beginning of the “war on terrorism.” According to unofficial statistics, the Arab population now approaches 3 million, but the report of the 2000 census claims that there are only 1.25 million people of Arab ancestry presently residing in the US. Whether 1.25 million or 3 million, the relatively small size of the Arab-American population continues to constitute a major challenge to US racial thinking. There is now an urgent and growing need to question the conceptual scheme through which the US government understands its Arab minority population and to resist all instruments of “racial” categorization that facilitate policies of racial profiling.
 Also, “Puerto Ricans, Mexicans or other persons of Latin descent would be classified as ‘white’ unless they were definitely Negro, Indian or some other race.” 200 Years of US Census Taking: Population and Housing Questions (Washington, DC: Bureau of the Census, 1989), p. 78.
 Helen Samhan, “Not Quite White,” accessible online at www.aaiusa.org/arabamericans/helen3.html on .