In the immediate wake of the September 11, 2001, terrorist attacks, as one State Department official would later recall, the Bush administration’s Department of Justice “wanted to shut down visas like they shut down airplanes” — completely.
They never followed through; they didn’t come close. Officials ultimately settled on adding an extra security check before issuing visas to men from countries where al-Qaeda was active (in addition to putting a three-month pause on refugee resettlement). Even a major terrorist attack wasn’t enough to turn people away from the US categorically.
It took the election of Donald Trump (or, more precisely, exactly one week of his administration) to do that.
The chaos that followed Trump’s immigration executive order on Friday — the rushed implementation; the contradictory and fast-changing information about what exactly was going on; the casual due-process violations and mistreatment; the disruption of, at a conservative estimate, hundreds of lives so far — was reminiscent of what happened, often out of sight of most of the American public, in the weeks and months after 9/11.
I have not witnessed this kind of fear and uncertainty since the days following 9/11. It's for this reason that we are sharing information. https://t.co/qzkDBijjVg— Sgt. Pete Simpson (@SgtPeteSimpson) January 31, 2017
Then, as now, the government took the defense of “national security” as a justification to unleash the power of the federal immigration system to disrupt people’s lives.
After 9/11, the courts and the public deferred to the administration. If perhaps the government had been a little over-broad, or a little cruel, in detaining and deporting mostly-Muslim immigrants, that was understandable; there was a crisis to respond to.
Trump is already finding much less deference. Protesters have swarmed airports to denounce him. A judge in Boston blocked part of his order. Other court challenges are brewing, and senators and governors are massing against him. He fired his acting attorney general when she refused to defend the ban.
He has moved at the speed of a president confronting crisis, only to find that much of the country sees no crisis but the one of Trump’s own making.
“I think that national security is more important right now”
On September 13, 2001, Hady Hassan Omar was expecting to be released from custody. He’d been picked up by FBI agents as they tried to track down anyone who might possibly have been connected to the 9/11 hijackers — but he’d passed a lie detector test, and the FBI agents were satisfied Omar had just been in the wrong place at the wrong time.
Still, he was clapped in leg irons and transferred into the custody of the Immigration and Naturalization Service. He’d overstayed a visa in the past, and even though he was married to a US citizen and applying for a green card at the time of his arrest, INS intended to prosecute him for it.
Omar’s wife, Candy, frantically drove 12 hours to the detention center she’d been told Omar was held in — only to find he’d been taken to a maximum-security prison, where no one would even confirm he was in custody.
“I begged the administrator,” Candy Omar told the New York Times in 2002. “‘I said, 'He is my husband -- I need to find him!' But the woman just said, 'I think national security is more important right now.'''
Similar scenes would unfold around the country over the next weeks and months. On September 19, Border Patrol officials took a 19-year-old Pakistani student off a Greyhound bus on his way home to New York; his aunt drove from Houston to find him in a Mississippi prison, only to be refused permission to see him. On September 13, a 35-year-old Egyptian man was arrested at a gas station near his home in San Bernardino. After a few days in jail, he was banned from making contact with the outside world, and his lawyer lost track of him entirely; she called the INS, the FBI, and the Bureau of Prisons, but no one would acknowledge they had him in custody.
In all, over 1,200 people were detained in the two months after the attacks — and many more in the months after that. “They released the numbers at first and then they stopped releasing the numbers,” says Muzaffar Chishti of the Migration Policy Institute. “The best guess is that 3,000 were picked up.”
Some immigrants, like Omar, were picked up as part of the initial FBI investigation into the September 11 attacks — as agents tried to track down every connection to the hijackers they could possibly find.
Others were arrested in the subsequent weeks, as the FBI started tracking down nearly every lead they’d gotten on their public “tip line” — including “tips” about a grocery store staffed by Middle Eastern men that employed “too many people to run a small store,” or a man who offhandedly mentioned in a conversation that he’d like to learn how to fly an airplane — and rounding up immigration violators they found in the meantime, even if the terrorism “tip” was a dud.
“There were cases of people who were living in an apartment building, and the INS agents would start looking for Mr. X, and they would not find Mr. X and they would look for the next door, and they would ask for people’s documents,” says Chishti.
By fall of 2002, the government started forcing immigrant men currently in the US from 25 countries (24 of which were majority-Muslim) to register in the US under the NSEERS program, making them deportable if they didn’t (and making it easier to deport them for other violations if they did.
In all, says Chishti, “There is reason to believe that they may have put 13,000 people” into deportation proceedings in the wake of September 11. “We don’t know how many were removed.” We never will.
Yes, these deportees were “immigration violators” — they were unauthorized immigrants (or had been unauthorized at some point in the past and hadn’t disclosed it when they applied for legal status), or they’d violated the terms of their visa. But in 2001, the power to deport immigrants simply for being unauthorized wasn’t a power the government used very often. Immigrants didn’t expect to be deported; they had no reason to.
That made the sudden, crisis-response crackdown on immigration violations all the less expected and more disruptive — just as the sudden crackdown on admitting immigrants who had legal visas, another power the government has but doesn’t often use, disrupted lives under Trump.
If the ultimate outcome (deportation) was unquestionably legal, the way that immigrants were treated in detention wasn’t.
Immigrants were held for two days, and often longer, without knowing what charges they faced. A few detainees were formally barred from seeing lawyers for days or weeks; many others had trouble reaching an attorney, or their attorneys had trouble reaching them, because they were being shuttled between facilities so often. And hundreds of detainees were brought before immigration judges in secret hearings — their names weren’t on the court docket, the courtroom windows were covered in paper, and their cases weren’t in electronic court files.
In at least one case, a group of immigrants for whom the FBI hadn’t identified a 9/11 connection were deliberately held, “just in case,” in maximum-security solitary confinement with immigrants who were. At the New York facility where dozens of “9/11 detainees” were held, a DOJ Office of the Inspector General report found evidence of “a pattern of physical and mental abuse.”
But “national security” provided a broad justification for even the most egregious misconduct. When detainees told the OIG their faces had been smashed into walls, guards claimed that “the high-security procedures in place during the weeks following the September 11 attacks” required detainees to be “placed” against walls if they “became aggressive.” When guards referred to detainees as “terrorists” as a matter of course, it could have been a racial slur — or it could have been a reflection of the category in which they were being held.
The question of deference
Ultimately, the public and the press were both willing to defer to the government’s assessment of what was needed for security.
In part, that was because most of the post-9/11 crackdown happened out of the public eye. The FBI’s weekly reports bragged about arresting “terrorists,” and local papers were willing to go along. (When more categorical policies were introduced, like the “absconder” roundups, reporters contrasted them to immigrants who’d been arrested earlier on legitimate “leads.”)
Without information, human rights lawyers couldn’t file lawsuits; the first lawsuit against post-9/11 “secret detention” wasn’t filed until December 2001. When lawsuits were filed, they didn’t succeed; “We were kind of surprised by the amount of deference the courts gave to the actions of the government,” says Chishti. “There was not a single piece of litigation that succeeded.”
Lawyers are still litigating those post-9/11 actions, and courts are still largely deferring to the government in those cases.
On January 17, the court heard oral arguments in a case called Ziglar v. Abbasi — in which several ex-detainees (who’ve now been deported) sued top government officials as individuals as a way of holding them accountable for mistreatment in detention.
The detainees in Ziglar argue they have specific evidence that Attorney General John Ashcroft and others were responsible for the treatment they received. The officials were briefed, on a regular basis, about what the FBI knew about detainees and how much of a threat they posed, but still made the decision to add immigrants in whom the FBI hadn’t expressed any terrorism-related interest to the list of “special interest” detainees.
But if oral argument is any indication, the Court appears unlikely to side with the detainees — largely because justices on both sides feel that it would be unwise for the judicial branch to get too strict about what government officials can and can’t do in response to a national crisis.
“There is a problem,” Justice Stephen Breyer said during arguments, “in this time of real national emergency, to over-deter people from doing what they reasonably think is necessary. And they have the authority for security, not the judges.”
That deference to a “national security” argument has characterized the courts’ approach to the government throughout the war on terror — especially when it comes to immigration, in which the executive branch already has a lot of power. But because of the 9/11 roots of most of these policies, it’s been hard to tell whether the court — or the public, for that matter — is deferring to the government’s assertion of “national security,” or to the response to an obvious and real national crisis.
The Trump administration is expecting deference it hasn’t earned
The Trump administration’s executive order makes it look like it might be the latter — like you really need a crisis to earn that level of deference.
In the days since the executive order has been released, cases of detention (and allegations of mistreatment) have come to near-immediate press and public attention. Lawyers have quickly had enough information to sue the government to allow access to detainees, and even to release them. And the courts have, swiftly and decisively, come down on the detainees’ side.
By Saturday night, barely 24 hours after President Trump had signed the executive order, a New York judge barred the deportation of all airport detainees around the country, while a Massachusetts judge ordered them to be released from detention. (Two other federal judges issued narrower orders against the government as well.)
To people used to the government ensuring deference by saying the magic words “national security,” the New York order’s language is striking. It rules that detainees have a substantial chance of proving that deportation would violate “their rights to Due Process and Equal Protection guaranteed by the United States Constitution.” Instead of worrying about the “imminent danger” of an attack, Judge Ann Donnelly worries about the “imminent danger” that the immigrants themselves would be harmed.
“This is an extraordinary court order,” Chishti told me Sunday morning. “There was much more deference to the government in the actions after 9/11 than we have seen in the actions of the two judges (in Massachusetts and New York) in the last 24 hours.”
Resistance extends to the executive branch. Some officials weren’t pleased with the way the Department of Justice rounded up immigrants after 9/11 — but they certainly didn’t declare, publicly, that they didn’t find the policy defensible, as Acting Attorney General Sally Yates did (and got fired for) on Monday night.
The difference, it appears, is context. The over-broad responses, the easy pivot from terrorism concerns to immigration ones, the opportunities for abuse — those are all understandable, perhaps, in the immediate wake of an attack, when the government feels it has to do something. They may not be as excusable when the policy in question is something the government has simply chosen to do.