Emboldened by the “success” of its preventive war in Iraq, the Bush Administration appears to be expanding its preventive law-enforcement strategy at home. The centerpiece of that strategy is the use of minor infractions as pretexts to lock up suspects on whom the government lacks sufficient evidence to accuse them of more serious crimes. Immigration law violations have been the pretext of choice. The Justice Department has invoked every immigration charge under the sun–including the failure to file a notice of change of address within ten days of moving–to detain and in-
terrogate “suspected terrorists,” virtually none of whom have turned out to have anything to do with terrorism. Now Attorney General John Ashcroft seeks to extend that strategy nationwide, ultimately giving every police officer, from a rural county sheriff to a state police traffic cop, the same pretextual tools. This development should sound alarm bells, for it is likely to undermine criminal law enforcement, affecting the safety of us all.
Until recently, only the Immigration and Naturalization Service was authorized to enforce immigration law, for two very good reasons. Immigration law is notoriously complex, and its enforcement requires specialized training. And more important, it interferes with criminal law enforcement. Foreign nationals with any possible immigration problems who are victims of or witnesses to crimes simply will not come forward if the price of doing so might be deportation. For those reasons, we have always divided criminal and immigration law enforcement.
That tradition appears to be coming to an end, however. In March, Ashcroft for the first time ever authorized FBI officials to make immigration arrests. And in a secret memo, which the ACLU and others recently filed suit to obtain, Justice has reversed its longstanding position that state and local law enforcement officials are barred from enforcing routine immigration laws.
The Justice Department has already begun entering immigration data into the National Criminal Information Center (NCIC) database, the system that state and local police check whenever they confront a person in a traffic stop or other encounter. That database was supposed to be limited to criminal records. But now the Justice Department is including civil immigration information from two programs selectively targeted at Arabs and Muslims–Special Registration and the Absconder Apprehension Initiative.
In late March, Justice went still further. It eliminated a longstanding requirement that the government insure that information in the NCIC database is accurate and current, saying the requirement is an impediment to investigations. So if Ashcroft gets his way, we’ll see state and local police arresting foreign nationals on immigration charges, without any training in the technicalities of immigration law and relying on information whose accuracy the government will not even vouch for.
Ashcroft’s ultimate goal is to use immigration law to fight terrorism in much the way that traffic regulations have been used in the war on drugs. Just as police looking for drugs can now stop and search virtually anyone in a car on the pretext of a traffic violation, without any objective basis for suspecting them of carrying drugs, so the Justice Department has used immigration violations to target, hold and interrogate “suspected terrorists” without any objective basis for their suspicion. And just as the drug war strategy resulted in thousands of innocent African-Americans being stopped for “driving while black,” so the Justice Department’s enforcement has facilitated ethnic profiling of thousands of innocent Arabs and Muslims. Now Ashcroft wants every law-enforcement officer in the country to enlist in this effort.
But here’s where federalism plays to our advantage. Under the Tenth Amendment, the federal government cannot compel state and local officials to implement a federal program. In the end, it will be up to every state, city and county to decide for itself whether it wants its police force to take up Ashcroft’s dubious enterprise. Shortly after September 11 police departments in Portland, Oregon, Madison, Wisconsin, and elsewhere refused to cooperate with the FBI’s “voluntary interviews” of Arab and Muslim foreign nationals. Now, dozens of police departments and police associations have expressed concern about taking on immigration enforcement. As Sacramento Police Chief Arturo Venegas Jr. argued, “We’ve made tremendous inroads into a lot of our immigrant communities. To get into the enforcement of immigration laws would build wedges and walls that have taken a long time to break down.” For reasons of equality and security, we must fight to keep state and local police out of the business of regulating immigration status.