NSEERS and the Muslim Registry: A Symptom of the Disease

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On December 23, 2016, the Obama administration officially removed the National Security Entry-Exist Registration System (NSEERS) regulations. After 9/11, the Bush Administration instituted the NSEERS registry system that targeted individuals based on national origin, of the 25 designated countries, 24 were majority Arab or Muslim. The discriminatory NSEERS program disparately profiled Arabs and Muslims by questioning and fingerprinting individuals and registering this identifying information in a database. Nearly 14,000 people in the registry were deported, many of which were eligible for immigration benefits and/or had pending application for legal permanent residence.

But what does this mean? Well there is one less tool, one less authority framework in place to surveil, monitor, and collection information on individuals based on their identity. But if we look past the optics of an actual registry; the idea of requiring certain people to physically stand in line to sign their name on a master list, the problem is not merely a registry, the registry is just a symptom of a disease. The disease is surveillance and the impermissible use of current surveillance authorities.

The existence of NSEERS, a “Muslim registry”, and surveillance are not distinct, but inherently interconnected. The creation of the surveillance state and NSEERS rose in frenzy reaction to 9/11 fear, “war on terrorism” rhetoric, and the criminalization of Arabs and Muslim Americans. The improper and in many cases outright unconstitutional uses of surveillance has discriminatorily targeted individuals s based on their identity, disproportionately individuals whom identify as Arab and/or Muslim.

Many of the surveillance programs that emerged post-9/11 including NSEERS operated under a fundamentally flawed premise that people of a particular religion or nationality pose a greater national security risk and thus should be subject to profiling. The low legal threshold of reasonable suspicion set for many surveillance programs, and in some case less – nomination and placement on the watch-lists – in contrast to probable cause standard play a significant role in the surveillance apparatus impact on Arab and Muslim communities. The low threshold for nomination and placement results in arbitrary placements on the watch-list – at times based on a person’s country of birth and name – with inefficient review of accuracy, placement and no substantive way to address concerns and be removed. In 2014, National Counterterrorism Center documents revealed that Dearborn with a population of less than 100,000, one of the largest communities of Arab Americans in the country, has more watch-listed individuals than any other U.S. city except for New York – more than Chicago (population 2.7 million), Houston (2.1 million).

While a great deal of the focus by the Arab and Muslim community has been on the watch-list and use of informants, and rightfully so, there are vast surveillance authorities (like EO 12333 and 702) that can be and likely have been used to monitor and surveil the community as well. Arab Americans, as encompassing a large immigrant based community, communicate with relatives, friends, and colleagues’ overseas and thus personal identifiable information captured as incidental collection under 702 or EO 12333, and often automatic surveillance inquires are conducted based solely on communication with a non-U.S. citizen whom is subject to an inquiry. In 2005, the FBI’s monitoring of the American-Arab Anti-Discrimination Committee, a national civil rights organizations providing legal assistance to persons of Arab ancestry, for its political advocacy was exposed. As revealed in July 2014 by the Intercept, the National Security Agency and the FBI were monitoring the emails of prominent Muslim-Americans—including a political candidate and several civil rights activists, academics, and lawyers. There are also surveillance programs targeting the community pre-9/11, including but not limited to Operation Boulder and Immigration Naturalization Services contingency plan to deport politically active persons of Arab nationality.

The existence of current DHS law enforcement authorities is provided as a reason why NSEERS is obsolete. The rule recession publication states, “DHS now engages in security and law enforcement efforts that were not possible when NSEERS was established in 2002.” This statement is fairly suggestive of the surveillance powers that were given to the newly formed DHS post-9/11 including the watch-lists, and the secret Foreign Intelligence Surveillance Courts and so on. The rule recession publication specifically states the “Department continues to make significant progress in its abilities to . . . collect and analyze biometric and biographic data . . . target high-risk travelers for additional examination.” The rule recession publication also provides that the Visa Waiver Program Prevention in Terrorist Travel Act (VWP Act) which profiles based on national origin to determine eligibility of visa waiver requirement for travel under the Visa Waiver Program, as reasons why NSEERS is obsolete.

What does this mean? Well first the government, DHS, already possess and requires now through immigration processing collection all the information they need to surveil and monitor virtually any and everyone it wants. Second, DHS has also been authorized to profile by Congress under the VWP Act in terms of allowing dual nationals from particular countries to enter the U.S. DHS is further exempt from the DOJ Profiling Guidance under the national security loophole. So the Obama administration removing the NSEERS regulatory framework, while with the best intentions and commendable, addressed a symptom of the disease, not the disease. We all have to understand that the source is surveillance, and the use of surveillance authorities based on profiling. If we do not address the disease, we will just continue to see different mutations of a Muslim registry.

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