Immigrants or Inmates
Two months after the U.S. 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. 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 did not have any actual effect on the military, but the government was worried about what they might do.
The government reacted to speech as if its telos were a spark that could ignite a wild-fire. In areas that are prone to wild-fires, preventative measures are taken: bonfires and matches may be completely banned. And so, the approach of the judicial and legislative branches was akin to that of a fireman’s— their first 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 over-broad and unconstitutional legislation. Today, this vacuum is filled with the lives of Arabs, Muslims, and South Asians.
The Patriot Act was passed after 9/11 with the aim to arm “law enforcement with new tools to detect and prevent terrorism.” The means of doing so, however, were far from advertised. Section 802 of the Patriot 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 state 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, which is in complete violation of the Fourth Amendment, upholding the right to be secure in one’s 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, prompting the legislative branch to encroach upon the powers of the judicial, an overstep that threatens the fragile equilibrium of checks and balances.
After this Act was passed, all of those living in the country “illegally,” despite having been delivered an ‘order of removal,’ were put on the Absconder list. But the deportations conducted after this list’s creation were focused on Muslims, Arabs, and South Asians, even though they made up just 2% of the list. Thus, it seems the INS was using immigration law as a tool to respond to 9-11, and promoting the synonymity between immigrants and terrorism.
Aside from mere policy implementation, the government took swift action to ensure that those who made-up this 2% would be evicted as quickly as possible. They 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. One 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 has been established, but the target of this oppression remains a variable. Those protected today may be the inmates of tomorrow.