The American Civil Liberties Union - Defending the Nazis but Not the Mexicans

The American Civil Liberties Union - Defending the Nazis but Not the Mexicans

In 1978, the American Civil Liberties Union (ACLU) defended the right of the American Nazi Party to hold a rally in Skokie, Illinois. They won in the Supreme Court, but lost a lot of support from their members. In December of 2005, the ACLU put out a memo to 'interested persons' regarding H.R. 4437 "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005."

The recent failure of the American Civil Liberties Union to enthusiastically actualize their opposition to recently introduced legislation is alarming. The past few months have seen wild debate and nonsensical accusations, but not more than a memo and a few statements about privacy issues from the organization even the Nazis can turn to for protection. By remaining noncommittal on illegal immigration reform, the ACLU is violating the very principles it stands for and is helping to perpetuate individual and systemic racism in the United States.

The debate surrounding the new bill centers on the racial stereotypes of lazy non-white people who come to the United States and use the welfare system while not paying money back into it. However, available analytical economic research does not suggest much, except that researchers do not agree.

A glance through the text of H.R. 4437 is similar to glancing through the diary of a paranoid and selfish elementary school age child who refuses to share her toys. The bill proposes increases in personnel, canine units, border patrol in the Virgin Islands, and Biometric data enhancement to stop all illegal entrants (Sensenbrenner, King 2). The overarching mentality of the bill is clear: keep out!

The ALCU structure is part of the reason why little has been done about the recent immigration reform bill. From my personal experience, I have garnered that decisions on behalf of the entire ACLU system are made exclusively by the offices in New York. Although the ACLU has several branches spread out across the country not a single one has made any concentrated effort to oppose the unconstitutional immigration reform bills.

In 2001, the Supreme Court ruled in Zadvydas v. Davis that all persons in the United States, no matter what their legal status, have the right to due process under the law (Hedger). Although subsequent interpretations by John Ashcroft have not exactly followed this ruling, it is the perfect core ruling for the ACLU to step in and take control. By law, illegal immigrants cannot be denied their due process rights once they enter the United States and therefore strike most of the provisions in H.R. 4437 unconstitutional.

Throughout the bill it is apparent that an effort is made to include all borders, not just the Mexico-US border, but when Title IV begins, the focus narrows to Mexicans, Cubans, and terrorists (as if they are all synonymous). The bill then moves on to Section 114, titled "Report on Progress in Tracking Travel of Central American Gangs Along the International Border," (Sensenbrenner, King 4). This section of the bill targets only those from below the southern border of the United States and says nothing of gang activity from other countries outside of Latin America.

Sections 602, 608, and 612 are perhaps the most disturbing areas of the bill. Section 602 details the actions of two Cuban men who came to the United States but were later released because they could not be held for more than six months. The men committed several crimes after being released from Custody. Because of the Supreme Courts decisions to extend due process rights to illegal aliens, "Jonathan Cohn, Deputy Assistant Attorney General, has testified that 'the government is [now] required to release numerous rapists, child molesters, murderers, and other dangerous illegal aliens into our streets. . . . [V]icious criminal aliens are now being set free within the U.S,'" thus implying that all people who enter illegally are dangerous criminals (Sensenbrenner, King 12).

New punishments for immigrants who are with 100 miles of the United States border include expedited removal and anyone helping to smuggle receives the same punishment that the immigrant would have received. This means the churches, shelters, and other various humanitarian organizations would be subject to felony charges. Section 608 renders immigrants who are members of street gangs deportable. This provision makes no distinctions between what kinds of street gangs; it is simply a blanket statement making deportation easier to pursue. Immigrants must also exhibit "good moral character" in order to receive immigration benefits and the bill "clarifies the discretionary authority of DHS [Department of Homeland Security] to find an alien not to be of good moral character," (Sensenbrenner, King 15). Leaving aside the fact that immigrants are judged on their moral character, lack of formal requirements and resorting to judgment calls is a plea for corruption.

Not only are the new punishments and requirements alarmingly of the bill racist in nature because of the language and targets, but they are contributing to systemic racism by writing racism into the law. Under these acts it is required by law that immigration officials discriminate against people because of their national origin.

The American Civil Liberties Union's mission statement is to protect the bill of rights, specifically the right to free speech, due process, privacy, and most importantly, equal protection under the law, ("About"). During my time at the branch in Hartford I found the goals of the organization to be consistent with the mission statement. The actions of the staff were not in conflict with the mission statement of the organization, but they did not foster it.

I interned at the ACLU at the height of the immigration reform process and not once can I recall any office discussion on the topic. The New York Times and the Hartford Courant were delivered to the door and read by most staff, but even when immigrants were having a hard time getting a permit to march on May first in New Haven, no one seemed to be up in arms.

The ACLU should be plugging ahead in their quest to bring the Bill of Rights to immigrants, legal or illegal, but we are not seeing this happen. There are several factors that contribute to the lack of action on behalf of the ACLU. Structurally, the lack of staff and poor use of available resources has continued to hinder the ability of the branch to make any real changes. There are only two people at the ACLU in Connecticut who are charged with lawyerly duties, the legal director and the staff attorney. At this time the legal director is engaged in a lawsuit for gay marriage rights and devotes all of her time to and the law intern was set up to mercilessly send out Freedom of Information requests to school superintendents. The ACLU lawyers were more concerned with military recruitment than with discrimination against immigrants.

If racism in immigration is not explored as a civil rights issue, it deserves to be explored as a human rights issue. Explanations for racist immigration laws are endless, but a commonality between human rights dialogue and immigration is that of the theory of the "other." It is common for people to be hostile towards those who do not look of act like them. If someone does not look the same as you, they must not be human. Richard Rorty describes this phenomenon, "[They believe] they are not being inhuman, but rather are discriminating between the true humans and the pseudohumans," (Rorty 242). Lawmakers are capitalizing on citizens' fear of the alien "other" and are trying to put policy in place to keep our country free of immigrants in exchange for votes.

The theory of the other extends to all people not born in the United States; it does not stop with illegal immigrants as it is impossible to tell by looking at someone whether they are here legally or not. The idea that others are not human, simply because they do not look like us, pervades even our laws. "Since the inception of the plenary power doctrine, many immigration laws impacted minorities due in major part to their race and regardless of their citizen or alien status," (Kay-Oliphant).

It is clear that the ACLU has the legal ground to go forward with challenging this bill, but they have chosen not to do so for important reasons. However, more significant than the reasons why they are not acting, are the consequences of their inaction. By remaining silent, the ACLU is allowing the current racist system and stereotypes among individuals to continue. More importantly, by refusing to address the racism in the immigration reform bill the ACLU is allowing the continuation of systemic racism.

"We work also to extend rights to segments of our population that have traditionally been denied their rights, including Native Americans and other people of color; lesbians, gay men, bisexuals and transgendered people; women; mental-health patients; prisoners; people with disabilities; and the poor," ("About").

Like it or not, immigrants are an integral part of our society, but the ACLU seems to have forgotten them in their mission statement. The symbolic meaning of the omitting of national origin in the discrimination section of the ACLU is powerful. When our social justice organizations conveniently forget the rights of this specific marginalized people, it says something about how our society as a whole views immigrants. Lack of protection from discrimination by the ACLU is fostering the negative stereotypes our society has created in regards to not only immigrants but brown skinned people in general. The lack of action by the ACLU to defend immigrant rights is a failure to uphold the mission statement of the organization, but the inaction also takes it a step further. By promoting stereotypes and systemic racism through inaction the ACLU is actually going against their commitment to non-discrimination and upholding the rights of all peoples.

It is fair to say that any group of concerned lawyers could take on the task of proving H.R. 4437 to be unconstitutional, but lawyers at the ACLU are supposed to specialize in just this. "We must begin anew to pick up the challenge to bring justice to all Americans, no matter their race, gender, religion or economic condition. And there is no group more able to do something than America's lawyers," (D'Alemberte).

The new immigration reform before congress reveals itself as a racist piece of legislation set on guarding our country against nonexistent nonwhite predators. The ACLU is failing its constituents and the victims of racism by remaining vague on the new immigration reform. In 1978 the ACLU put its reputation on the line by defending the right of the Nazi party to march in Illinois. So far the ACLU has not made the same effort to protect immigrants in this country. A common theory used in analyzing racism and immigration laws is that of the "other." The theory is prevalent not only in sociology but in human rights as well and provides insight into the debacle of racism and immigration reform. The structural problems of the ACLU is part of reason why they have not focused their efforts on the unconstitutionality of H.R. 4437.

Works Cited

"About Us." American Civil Liberties Union website. http://www.aclu.org/about/index.html

D'Alemberte, Talbot. "The King Crucible: Racism and the American Justice System." American Bar Association Journal. 78 (7). 1992. pp. 7-8.

Hedger, Timothy. "ACLU Memo to Interested Persons Regarding Concerns in H.R. 4437, the "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005.""American Civil Liberties Union. http://www.aclu.org/natsec/gen/22371leg20051207.html

Kay-Oliphant, Eli J.. "Considering Race in American Immigration Jurisprudence." Emory Law Journal. 54 (1). 2005. pp.681-719.

Rorty, Richard. "Human Rights, Rationality, and Sentimentality." The Philosophy of Human Rights. Ed. Patrick Hayden. St. Paul, MN: 2001.

Sensenbrenner, F. James and Peter King. "H.R. 4437 "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005." http://judiciary.house.gov/media/pdfs/immbillsection.pdf

Walker, Richard. "Crimes of the Continental Op: On Reading Joe Nevins' Operation Gatekeeper." Antipode. 36 (1). 2004. pp.146-153.