Business as Usual: Immigration and the National Security Exception
Shoba Sivaprasad Wadhia
Penn State Law
Penn State Law Review, Vol. 114, No. 4, p. 1485, 2010
Pennsylvania State University Legal Studies Research Paper No. 28-2010
Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Following his deportation to Pakistan, Iqbal filed a federal lawsuit in the District Court for the Eastern District of New York against several federal government officials, including the former Attorney General John Ashcroft and the former head of Federal Bureau for Investigations Robert S. Mueller III, claiming that they were responsible for the abuses he suffered while at MDC. While at MDC, Iqbal alleged that he suffered the following abuses “numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with [his] rights to counsel and to exercise of [his] sincere religious beliefs,” among other things. Iqbal alleged that he was singled out for mistreatment based on race, religion and national origin and also “subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the United States Constitution, federal statutory law, and customary international law.”
Over the government’s objections that Iqbal’s legal claim was insufficiently stated and that in any event they were entitled to “qualified immunity” both the district court and the Second Court of Appeals found that Iqbal’s allegations were adequate. The Supreme Court granted certiorari in Iqbal, and in reversing the Second Circuit, concluded that Iqbal failed to allege a “plausible” link between the officials’ conduct and the abuses he said he had suffered. Specifically, the Court found that under Twombly, Iqbal’s complaint “has not nudged his claims of invidious discrimination across the line from conceivable to plausible.”
Since the Supreme Court’s decision was handed down on May 18, 2009, there has been a flurry of news articles, trade journals, blogs, law reviews and even proposed legislation responding to the striking impact of Iqbal on the future of the notice pleading standard. Characterizing Twombly as a “Rule 8 plus” standard, law professor Anthony Renzo argues that since the new standard requires a level of specification that only the government possesses the effect of the Iqbal decision is that plaintiffs are paralyzed from seeking judicial remedies when senior level government officials have breached the Constitution.
This Article draws attention to the role of immigration in Iqbal, and argues that far from creating a new standard in the immigration realm, the Iqbal decision perpetuates a longstanding “Business As Usual” standard that permits the federal government to create and sustain laws that selectively discriminate against foreign nationals during times of national security, with minimal accountability. More specifically, the “Business As Usual” standard can be defined by the sum of the Article’s parts, namely 1) an overreaching set of laws adopted by Executive and/or Legislative branch during times of national security; 2) a tangible set of harms falling on particular foreign nationals as a consequence of these laws; 3) blanket permission to the government to sustain such laws without any evidence of improved national security or stated benefits; 4) less than successful attempts by government ombudsmen to ameliorate the above-stated harms; and 5) extreme deference by the courts to the “political branches” in recognition of the plenary power doctrine.
Part II of this Article places Iqbal in the larger context of how immigration law and policy was made and applied in the aftermath of September 11, 2001. This Part describes the Federal government’s design for arresting and detaining “special interest” detainees in connection with the events of September 11, 2001, and the related procedural defects and concerns of mistreatment documented by the Inspector General. This Part also summarizes a handful of national security policies enacted after 9/11 that at best, had a disproportionate impact on foreign nationals from countries with Muslim-majority populations and at worst, selectively discriminated and targeted nationalities and religions for extra scrutiny without basic safeguards or due process.
Part III shows how many of the policies described in Part II continue to impact individuals and families nine years later. For example, this Part highlights how the special registration program has caused many Arab and Muslim applicants to be denied an immigration benefit or relief based on noncompliance with a component of the registration program. This Part also describes and critiques how many of the policies that originated on a “national security” premise have been recast and sustained as broad immigration enforcement tools.
Part IV of the Article describes the government’s efforts to mitigate some of the harms emanating from many post 9-11 policies. Specifically, this Part describes the multiple public offices, complaint mechanisms, and initiatives established in the Executive Branch to combat 9/11 discrimination. This Part also examines related legislative and to a smaller scale, judicial efforts to redress the overreach of many 9/11 policies described in Part II.
In Part V, the Article discusses whether the impact of 9/11 policies resulted in quantifiable improvements to national security to argue that many of these policies were made with minimum accountability on the creators of such policies. This Part argues that many if not most of the policies identified in Part II have not been shown to have advanced national security and instead have resulted in substantial harms to the Arab and Muslim community.
Part VI of the Article describes the plenary power doctrine and the judiciary’s historical deference to discriminatory immigration laws created by the political branches, especially during times of national security. It also describes the high standard imposed by the judiciary for establishing selective prosecution claims. This Part analyzes how these high standards enabled the Executive Branch to institute otherwise discriminatory policies and practices following 9/11. In this way, the Article shows how the pleading standard created by Iqbal bears a sharp resemblance to how the courts have treated selective discrimination claims in immigration matters, especially during times of national security.
Recognizing the forces of the Business As Usual Standard, the Article offers some recommendations to the Executive, Legislative and Judicial branches moving forward.
Number of Pages in PDF File: 52Accepted Paper Series
Date posted: August 12, 2010 ; Last revised: December 15, 2010
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