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Construction of an Enemy

Eleanor Stein teaches telecommunications law at Albany Law School, and women and the law at the State University of New York.


Remember the Nazi technique: “pit race against race, religion against religion, prejudice against prejudice. Divide and conquer!”
—President Franklin D. Roosevelt (January 1942) admonishing Americans not to discriminate against aliens, weeks before he signed the Japanese exclusion order (Greg Robinson, By Order of the President, 2001).

The aggressive measures instituted by the Bush administration against immigrants and visitors of Muslim faith, or from primarily Muslim Arab and South Asian countries, seem aimed less at their putative foreign targets than at the hearts and minds of our domestic population. Packaged as post-September 11 law enforcement, the new racial profiling has netted few if any prosecutions for terrorist acts, but has done a great deal to demonize Arabs, South Asians, and Muslims, to dehumanize them, and to construct them as the enemy of America in the twenty-first century. Once the state successfully constructs an enemy group, it can justify detentions without charge, military occupation, and other drastic means of waging war against that other, the enemy.

Nativist and xenophobic identification of immigrants with national security threats is a theme coincident with the history of the United States. The Naturalization Act of 1790 prohibited citizenship and civil rights to immigrants of disfavored ethnicity. The Alien and Sedition Acts of 1798 placed restrictions on which ethnicities or nationalities could apply for citizenship, and authorized the president to order the deportation of all immigrants judged dangerous to national security. The “sedition” of concern in 1798 were the ideas of the French Revolution. The Chinese Exclusion (Geary) Act of 1882, in violation of the express terms of a treaty in force between China and the United States, forbade Chinese laborers from entering the United States.

The National Origins Act of 1924 established immigration quotas privileging “Nordic” immigrants. The Smith Act of 1940, required registration and fingerprinting of aliens, and added vague classifications of “subversives” and “excludables” to the list of deportable persons. The McCarran-Walter Act of 1952 empowered the Department of Justice to deport immigrants or naturalized citizens engaging in “subversive” activities. The Anti-Terrorism and Effective Death Penalty Act of 1996, granted the executive the authority, based upon secret evidence, to designate any foreign organization a terrorist group and to deport noncitizens as terrorists.

But it was the internment of Japanese Americans during the Second World War that elevated xenophobia into national policy. And it was in the internment cases that the Supreme Court, upholding the internment as a matter of military necessity, wrote the requirement of strict judicial scrutiny of “invidious” distinction into American jurisprudence.

Based upon reports by the military that it had intercepted radio and light signals between offshore locations and the California coast, the evacuation and internment orders forced persons of Japanese descent to leave their homes in specified control areas in California, Arizona, Oregon, and Washington, and move to internment camps. Over 120,000 persons, two-thirds of them U.S.-born citizens, spent the years of the war in such camps.

The internment order was rationalized not only by military necessity—the fear of sabotage and espionage—but also by the military’s claim that the normal criminal investigatory work of the Justice Department had been overly slow and inadequate to guarantee U.S. security. The racist hysteria in which the roundups took place was fed by the Hearst press and by California economic interests—such as the White American Nurserymen—in competition with small entrepreneurs of Japanese descent.

Two brave individuals, Fred Korematsu and Gordon Hirabayashi, refused to report for internment and sought to challenge the order in the Federal Courts. In a shameful decision, the U.S. Supreme Court upheld as constitutional this mass internment; included were 80,000 citizens deprived of liberty solely by reason of their ethnic origin. Forty years later, when the two whose refusal to report for internment had led to Supreme Court cases sought (and received) judicial exoneration, it was discovered that the military report, which was the justification for the internment order and the Supreme Court decision, was a complete fabrication. An archival researcher, working in conjunction with a congressional commission appointed to investigate the internment, found the original report. The supposed intercepted radio and light signals, dutifully repeated in the Supreme Court opinion, had never occurred.

The shadow of Manzanar—the California interment camp—looms today over all of the current measures being taken against Arab and Muslim immigrants. These measures can be seen as internment for the twenty-first century—or to coin a more accurate term, externment.

Shortly after September 11, 2001, the “Ashcroft Raids” occured, the secret detention and deportation of up a thousand or more Arab or Muslim men. Some were held for months, even as long as one year, without access to lawyers and in some cases, to families. Ashcroft stated he intended to jail every terrorist he could find, and that net included thousands of Muslim noncitizens. What were the results of this dragnet? Not a single person charged with involvement in the September 11 attacks, and four indicted on charges of support for terrorism, with none of the indictments including any specific violent acts. The Justice Department now admits that at least 766 persons were detained on “special interest” charges after September 11 and held incommunicado; of these, 511 have been deported. The Justice Department claims that among those deported were some who could have been—but have not been—charged with terrorism offenses. This in turn has led to reported speculation that one purpose of the mass detention policy was the recruitment of intelligence agents (www.law.com/jsp/article.jsp?id=1052440755868). An additional six thousand were deported for violations of immigration status. Eight thousand were called for interviews on the sole ground that they were recent male immigrants from Arab countries.

The USA Patriot Act, enacted within six weeks of September 11, permits the Attorney General to detain noncitizens without a hearing; to bar foreign citizens from entering the United States because of their political opinions; and authorizes deportation based upon support of a disfavored group. None of these restrictions is tied to participation in any terrorist act. On April 29, 2003, the Supreme Court approved mandatory detention of “criminal aliens” pending deportation—that is, permanent resident aliens convicted of any of a list of crimes who are subject to deportation have no entitlement to a hearing to consider bail for the period they contest or await deportation.

Also coming soon may be Patriot Act II, which modifies the definition of “foreign power” to include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism; and defines any person who engages in clandestine intelligence gathering activities for a foreign power as an agent of that power, regardless of whether those activities are federal crimes.

One of the most far-reaching forms of racial profiling is the requirement of the Immigration and Naturalization Service, now merged into the Office of Homeland Security, termed Special Registration. These new rules apply to any male, over the age of sixteen, who is not currently a permanent resident (green card holder), from twenty-five countries: Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq, Lebanon, Libya, Morocco, North Korea, Oman, Qatar, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. These men were required to register in person at an immigration office during February and March 2003 on a few weeks notice, to be photographed, fingerprinted, and interviewed, in many cases about their political beliefs and associations. More than 125,000 registered; over 2,000 were detained. All must re-register annually and any time they leave the United States. A widespread panic resulted in immigrant communities, and thousands in the New York and New England areas traveled with their families to the Canadian border to seek asylum; however, the United States had closed the border. Hundreds were detained there, their families left without shelter or resources in the bitter New England winter. Local refugee assistance organizations, overwhelmed, were forced to close their doors.

Government profiling also contributed to a wave of popular violence against Arab, South Asian, and Muslim communities. The number of reported U.S. hate crimes against Muslims and Arabs in 2002 increased 1600 percent over the previous year.

The construction of an enemy, through government targeting with media complicity and a popular echo, endangers and dehumanizes millions of Arabs, Asians, and Muslims. Given a dehumanized enemy, bombing its cities and sacking its history was presented on U.S. TV as an extreme sport. The construction of an enemy provides an effective means of control of the domestic population, which visits its fears and frustrations on its Arab and Muslim neighbors. This control is, however, contested. In communities all over the country, towns and cities have passed local government resolutions criticizing and even refusing to enforce the Patriot Act.

Fred Korematsu and Gordon Hirabayashi waited forty years for vindication and reparations; and few outside the Japanese-American community, with the notable exception of the Quakers, had opposed internment. Hopefully we are doing better this time.

Interfaith groups are building bridges to Muslim communities. In upstate New York, Women Against War organized a toy drive for children of detainees and deportees to celebrate Eid, the end of Ramadan and, with national civil liberties organizations, recruited attorneys and other volunteers to assist men reporting for Special Registration and their families. And shortly after September 11 the National Asian Pacific American Legal Consortium invited Arab Americans to join them at the National Japanese American Memorial to show solidarity in anticipation of racial profiling. Resistance as ever is based on acts of individual decency, which in these sad times appear as acts of courage. But the liberty interests of all U.S. residents are implicated; if we do not stand by our Muslim neighbors in their registration, detention, and deportation nightmare we will have a yet harder time when these techniques are more widely applied.

Comment from Michael Meeropol

Eleanor Stein noted that when people are under attack—whether it be interned Japanese Americans, communists or other leftists accused of crimes in the 1950s and 1960s, or Muslim immigrants accused of being involved in terrorist conspiracies today—the acts of kindness and solidarity are immeasurably valuable to them. I can testify to this wholeheartedly. I had the painful pleasure of editing every word of my parents’ prison correspondence from the originals leading up to the publication of The Rosenberg Letters (Garland, 1994). From the earliest stirrings of a solidarity movement (the creation of the National Committee to Secure Justice in the Rosenberg Case in the Fall of 1951) to the executions in June of 1953, they were constantly buoyed by the knowledge that there were people out there, in the United States and in the world, who were putting pressure on the U.S. government to back away from carrying out the death sentence. That solidarity movement gave them great comfort as they resisted the government’s plan for them to confess, name names, and support the government’s effort to tar all dissenters with the brush of treason. My brother and I benefited from the existence of that solidarity movement as well. The people in that movement played a crucial role in resisting the efforts of some private and public agencies in New York City who attempted to take us away from our adoptive parents, Abel and Anne Meeropol. Because they fought back and won our family’s first victory in an American court, my brother and I ended up being brought up by people who taught us to honor our parents, their lives, and their resistance. (See my brother Robert’s memoir, An Execution in the Family: One Son’s Journey [St. Martin’s Press, 2003]) We must display the same level of solidarity with the victims of today’s repression—with them and with their children.

—Michael Meeropol

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