The remarkable Supreme Court victories achieved by the ACLU in 2001 and a changing political climate led to a renewed sense of optimism that repealing the draconian 1996 laws was possible. The horrific events of September 11 fundamentally altered that momentum. The Bush Administration’s domestic response created a new, more precarious situation for immigrants with secret arrests and detentions, violations of due process and denial of counsel.
In the months following 9/11, the Justice Department launched a nationwide investigation that led to the arrest, detention and lengthy jailing of thousands of individuals for minor immigration violations, primarily young Muslim men of South Asian, Middle Eastern, and North African descent. Many were quickly cleared by the Justice Department itself of any involvement with, or knowledge of, the 9/11 attacks and none were alleged to have any connection with terrorism. Yet they remained incarcerated.
The ACLU focused especially on the secrecy surrounding these detentions. The government refused to disclose the most rudimentary information about the detainees, including who they were, where they were detained, how long they had been jailed, and whether they had access to legal counsel. Through informal requests, Freedom of Information Act (FOIA) submissions, and litigation challenging the government’s attempt to shroud the detentions in secrecy, the ACLU worked with local and national groups to find and identify the detainees. Because immigration detainees are not entitled to court-appointed counsel, the ACLU also helped volunteer attorneys to gain access to detention centers in order to offer free legal counsel. These efforts helped secure the release of some detainees and led to legal challenges on behalf of others.
In response to the terrorist attacks, Congress and the Executive Branch adopted a dizzying array of policies and practices that diminished existing rights and threatened established protections. The resources of the Immigrants’ Rights Project (IRP) were redirected to address these new challenges to the civil rights and liberties of immigrants and ACLU staff were among the most prominent national spokespersons on the impact of post 9/11 policies. The ACLU undertook a massive effort to help protect the country against a repeat of the excesses that occurred during earlier time of national crises and threats to national security. In response to the fear and confusion in many immigrant communities, the ACLU worked with other advocates to update and disseminate a ‘know your rights’ pamphlet explaining the rights of individuals faced with questioning by the Immigration and Naturalization Service (INS), FBI or other government agencies.
In the xenophobic climate that pervaded the United States in the post-9/11 years, the ACLU brought a series of challenges to state and local anti-immigrant ordinances. These laws usurped federal immigration policy and often resulted in racial profiling. They failed to provide adequate protections against discrimination and undermined American values of fairness and due process. The ACLU won a landmark victory in Lozano v. Hazleton (2007), when a federal judge ruled one such ordinance unconstitutional.
Under the Bush Administration, the Department of Homeland Security was permitted to create and expand programs that allowed state and local law enforcement agencies to engage in federal immigration enforcement activities. These programs, along with the administration’s increasing reliance on detention as an enforcement strategy meant that many individual were unnecessarily detained often in cruel and inhumane conditions for prolonged periods without any finding that they were a danger to society or a flight risk. Dozens of individuals in immigration detention died as a result of the substandard conditions. During this time, the ACLU fought tirelessly against arbitrary and unconstitutional immigration detention policies and practices and sought, through litigation, public education and advocacy, to serve as an effective check on the government’s excesses.
Also under the Bush Administration, Immigration and Customs Enforcement (ICE) began conducting numerous raids that selectively targeted predominantly Latino neighborhoods and worksites. These raids were often conducted without proper warrants and involved entry through coercion or intimidation by ICE officials. The ACLU, along with other civil rights groups and private law firms, sought to document and challenge the constitutionality of this repeated pattern of racial profiling, intimidation, lack of access to legal counsel and other due process violations.
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