US-VISIT: Its Discriminatory Effect And Its Potential For Abuse
On January 5, the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program took effect in 115 airports and 14 seaports across the country. The program requires all visitors to the U.S. holding visas to be digitally photographed and fingerscanned upon entry. According to the Department of Homeland Security (DHS), the capture of biometric data will expedite legitimate travel and stop terrorists from entering the U.S.
US-VISIT is not itself limited by national origin. Nor is it limited to Muslims. Nor is it limited to males. Accordingly, some have defended it as a reasonable and relatively neutral requirement.
It's true that US-VISIT is an improvement on the prior NSEERS (the National Security Entry-Exit Registration System) program -- which I will describe below. NSEERS was overtly discriminatory, and US-VISIT is not.
Nevertheless, US-VISIT will have a predictable discriminatory effect. Moreover, like NSEERS, US-VISIT poses the risk of leading to serious civil liberties violations.
The NSEERS Program: Overt Discrimination Against Muslims
NSEERS required males between 18 and 45 who originated from any of twenty-five Muslim countries to register with the U.S. government if they had been -- or sought to be -- admitted to the United States on a nonimmigrant visa. Since late 2001, approximately 177,000 men have done so.
Thousands of these men were detained or deported as a result. Some are still in custody-- not on terrorism charges, but rather on immigration violations. And many of these violations were trivial ones, for which other immigrants were not detained.
To see why the INS's practices were so objectionable, it is necessary only to compare them to the common police practice of stopping drivers for "driving while black." Both practices use a minor violation as an excuse for discrimination. And those who do not fall into the discriminated-against group rarely, if ever, get stopped for the same minor violation.
Prior to NSEERS, it was common for individuals on tourist visas to overstay their visas, and subsequently file for green cards. After, NSEERS, non-Muslims could generally still overstay their tourist visas with impunity. But Muslims faced harsh penalties if they did the same. The upshot was that national origin was used as pretext for selective, discriminatory enforcement of the rarely-enforced regulations against visa overstays.
NSEERS came under fire when critics focused on its disturbing decision to use national origin alone as a basis for suspicion and scrutiny. This discriminatory thinking was quite blatant. DHS's website still describes NSEERS, as a pilot program "focusing on a smaller segment of the nonimmigrant alien population deemed to be of risk to national security." (Emphasis added.)
Similarly, on October 25, 2001, Attorney General Ashcroft declared, "Let the terrorists among us be warned: If you overstay your visa -- even by one day -- we will arrest you." Given that the only visitors who were checked, as a group, for possible overstays were Muslims, the message was clear: Muslims were presumed terrorist until proven innocent.
Clearly, the lesson of World War II's internments of Japanese visitors and Japanese-Americans was lost on Ashcroft: Then, too, national origin was judged to be a proxy for disloyalty -- even possible hostility to the United States. Yet even as the U.S. has finally apologized for the internments, it has gone on to intern others based primarily on national origin, once again.
Later, in 2003, as Anita Ramasastry discussed in a FindLaw commentary, even the Department of Justice's own Office of the Inspector General (OIG) critiqued its post-September 11 treatment of detainees. In two 2003 reports, the OIG noted a number of serious abuses. And it concluded that "[w]hile the chaotic situation and the uncertainties surrounding the detainees' roles in the September 11 attacks and the potential for additional terrorism explain some of these problems they do not explain nor justify all of them." (Emphasis added.)
On December 2, 2003 -- amid heavy criticism from Congress and the press -- DHS temporarily suspended NSEERS' automatic 30-day continuing registration requirement and annual re-registration requirements. Then, in February of this year, the Senate passed a law that directed the Attorney General to provide Congress with NSEERS-related documents and materials by March 1, 2003. (Some in Congress also tried to defund NSEERS entirely, but the final version of the law, signed by President Bush, did not do so.)
Meanwhile, other Muslim-only requirements remain in effect. For instance, men from 25 Muslim countries are still required to exit the United States through specific ports of departure and to register their departure with immigration officials. They are also still required to report any change of address, school or employer to immigration officials within 10 days of the change. Thus, overt discrimination against Muslims still persists.
Now President Bush has declared his intent to grant amnesty to illegal aliens who have been in the U.S. illegally for many more years than the post-September 11 detainees ever were. Yet his open embrace may have an implicit limit: Muslims Need Not Apply.
US-VISIT Will Have A Discriminatory Effect
As noted above, US-VISIT does not overtly discriminate against Muslims. But in combination with the Visa Waiver program, US-VISIT will have a predictable discriminatory effect.
The VISA Waiver program allows citizens of certain countries to travel in the United States for business or tourism, for a period of up to ninety days, with no VISA, but only a passport. The following twenty-seven countries participate in the VISA Waiver program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain Sweden, Switzerland, and the United Kingdom.
Note that many European countries appear on the list. As a result, a double standard will be in effect under US-VISIT. Most Europeans will still be able to travel in the U.S. without a visit. Most Arabs and Muslims will not -- and they will be required to submit to digital photography and fingerscanning, to boot. The Europeans will be treated like casual guests; the Arabs and Muslims, like presumed criminals.
The U.S. may well regret this policy in the long run. US-VISIT may well be ineffective, and its ineffectiveness could lead to tragedy: US-VISIT would not, for example, have stopped "shoe bomber" Richard Reid -- who is a British citizen -- from entering the U.S.
Moreover, US-VISIT will only further alienate the Arab world, as Europeans sail through customs without a visa, while Muslim grandmothers are submitted to the indignity of fingerscanning. At the same time that the U.S. tries to convey that its war on terrorism is not a war on Muslims, its Customs Agents will inevitably convey a very different impression.
What a Truly Non-Discriminatory Registration System Might Look Like
If we must have registration, digital photography, and fingerscanning requirements for visitors to the U.S., then all visitors to the U.S. ought to be subject to them -- including those in the twenty-seven VISA Waiver countries.
Security alone demands this. With Al Qaeda proven to be operating in Europe, with adherents who are European nationals, it is the height of folly to exempt most European countries from generally applicable visitor requirements aimed at picking out terrorists.
Plainly, the exemption of the VISA Waiver countries makes no sense from a security perspective. And that opens up the ugly possibility that the real motivation for the presumption is simply discrimination. How can America prove it doesn't discriminate?
Again, the response to "driving while black" allegations is instructive: Either stop everyone, or stop a certain percentage of people randomly -- but do not subject a subset of people to different treatment based on pernicious, discriminatory beliefs about them.