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Maintaining the Racial, Economic, Social and Political Status Quo:

Exclusion, Marginalization and Criminalization


Historically, the United States' criminal justice system and its intelligence agencies have been used to shore up the institution of slavery, crush labor movements, protect explicitly colonial and imperialist ventures overseas, and undermine movements for social change, all in the name of protecting national security or American interests.

In this context, calling the United States a nation of immigrants sanitizes its history by focusing on those who immigrated voluntarily, initially from northern and western Europe [Whites] and later from other parts of the world. This characterization completely excludes American Indians as members of the polity and conveniently reinforces the notion that they are 'extinct.' Further, it renders invisible the genocidal practices which have accompanied the colonization of the continent since 1492, and justifies an occupation that even U.S. government lawyers have conceded is not, for the most part, based on anything resembling valid title to the land. Likewise this characterization disregards or, more accurately, attempts to eradicate the history of African chattel slavery in this country, the forced annexation of the northern half of Mexico, and the illegal overthrow and occupation of the Kingdom of Hawai'i, leaving us with the myth that this was an essentially uninhabited land made prosperous by the hard work of freedom-seeking European settlers.

African Americans were not made citizens until the Fourteenth Amendment was ratified in 1868, while most American Indians only became U.S. citizens in 1924 when Congress, in an attempt to undermine native sovereignty, unilaterally imposed citizenship on them. Further, even though the U.S. Constitution's original draft did not identify who was considered a citizen, the first U.S. Congress passed an act in 1790 restricting naturalized citizenship to free Whites.

As a result of this initial construction of who was legally an 'American' and the related racially restrictive immigration and naturalization policies, 'foreignness' has become part of the racialized identity of Asian Americans, Latino/as, and those of Middle Eastern descent.. The perception that only settlers [of European descent] are 'real' Americans persists in many ways despite the elimination of racial restrictions on the acquisition of citizenship by birth or naturalization. Asian Americans and Latino/as are still commonly treated as 'foreigners,' regardless of how long their families have lived in the United States. Arab Americans and South Asians have been subjected to a dramatic increase in hate crimes since September 11 as they have been 'raced' in popular consciousness as not only foreign but as having terrorist sympathies as well. Ironically, even those truly native to this land are perceived as foreign, as attested to by the tragic death of Kimberly Lowe, a twenty-one-year-old Creek woman killed in Oklahoma on September 18, 2001, by young white men in a pickup truck who yelled, 'Go back to your own country!'

The laws that have resulted in the increasing criminalization of immigrants and other marginalized sections of the U.S. population did not begin with the PATRIOT Act or with the George W. Bush Administration. The long history of criminalization of dissent and foreignness within the United States is also reflected in various laws passed during earlier administrations.

How Did We Get here?
War on Crime -> War on Drugs -> War on Terrorism

To understand the weapons that are available to, or being sought by, the government in its current 'war,' however, we need to consider not only the United States' history of racial subordination and ideological repression, but also the powers that have been given to law enforcement and intelligence agencies in their sweeping 'war on crime' and in particular, the 'war on drugs.' The use of the criminal justice system to control the poor and people of color is not new, but it appears to be intensifying. While many factors contribute to the spiraling incarceration rate, such as the soaring profitability of the prison-industrial complex and the political capital gained by appearing 'tough on crime,' it is also a very effective mechanism for maintaining the economic and racial status quo. This strategy is made more socially palatable by the portrayal of its primary targets as Other by virtue of race, and as the 'enemy' by the declaration of war on crime and drugs. All of these deeply rooted trends-the portrayal of persons of color as not fully 'American,' the labeling of social protest as seditious, and the dramatic expansion of the criminal justice system-have set the stage for the measures currently being taken in the 'war on terror.'

Crime

During the 1960s, the United States faced massive challenges to the status quo, not only from organized social and political forces-such as the civil rights movement, the women's movement, massive anti-war mobilizations, and the resurgence of organized labor-but also from the hundreds of urban rebellions that rocked every major U.S. city. These rebellions were particularly frightening to those in power because they were spontaneous and widespread and, as a result, were not susceptible to the 'neutralization' tactics of COINTELPRO-type operations [Counter-Intelligence Programs by the FBI designed and implemented against leftist/progressive/liberal movements, groups, and individuals in the United States beginning in the 1950s]. In 1967, following 'riots' in Newark, Detroit, Cleveland, and nearly 150 other cities, President Lyndon Johnson convened a National Advisory Commission on Civil Disorders, commonly referred to as the Kerner Commission. The Commission concluded that the primary cause of the rebellions was 'pervasive discrimination and segregation in employment, education and housing' and the resulting 'frustrations of powerlessness' which permeated the 'ghettos.'

Nonetheless, despite its stated awareness of the underlying causes of and solutions for 'social disorder,' the government's primary response since the late 1960s has been to wage an ever intensifying 'war on crime.' As Richard Nixon said in campaigning for president, 'doubling the conviction rate in this country would do more to cure crime in America than quadrupling the funds for [Hubert] Humphrey's war on poverty.' In the war on crime, the people-at least those residing in poor communities of color-quickly became the enemy, as illustrated by some San Francisco police officers' reference to their community relations work in black neighborhoods as 'Commie relations. In Christian Parenti's words, 'Crime meant urban, urban meant Black, and the war on crime meant a bulwark built against the increasingly political and vocal racial 'other' by the predominantly white state.' Or, as H.R. Haldeman [Nixon's chief of staff] bluntly reported, '[President Nixon] emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.'

Drugs

Nixon had assumed office on a 'law and order' platform and, perhaps because he soon discovered that there was little federal jurisdiction over most criminal activity, rapidly declared war on drugs]. Besides having Congress pass a number of Acts related to drugs, Nixon also created the Office of Drug Abuse Law Enforcement (ODALE), which reported directly to the White House. As ODALE engaged in a series of dramatic no-knock entrances in the houses of what turned out to be entirely innocent citizens, its director 'explained that extraordinary procedures, to the limit of the law, were necessary because the nation was engaged in an all-out war against drugs and the very survival of the American people was at stake.' With massive federal subsidies available for weapons, training, prison construction, and automated information systems, many states followed the federal lead.

Under the Reagan administration, the drug war's focus on 'foreign' enemies was intensified, with large-scale operations targeting Mexico and Colombia and an increased focus on immigrants as drug traffickers. These operations set the stage for heightened military involvement, facilitated by amending the Posse Comitatus Act and welcomed as a way of maintaining military budgets in a time of apparent peace. Federal police powers continued to be strengthened, as the 1984 Comprehensive Crime Control Act allowed federal preventive detention, established mandatory minimum sentences, eliminated federal parole, scaled back the insanity defense, increased penalties for acts of terrorism, and greatly expanded asset forfeiture provisions. Other laws passed during Reagan's two terms included the 1986 and 1988 Anti-Drug Abuse Acts. As these laws were being passed, huge sums of money allocated for police and prisons, and an increasing proportion of the population incarcerated, President Reagan was also dismantling the social programs which the Kerner Commission had identified as the only feasible alternative to urban rebellions.

Terrorism

With all of the powers obtained in the war on drugs [and the earlier war on crime] firmly entrenched, the 1990s saw a gradual shift in emphasis from combating drugs to the 'war on terrorism.' In the process, Congress has consistently expanded the power of law enforcement and intelligence agencies to control the lives of those who are perceived as potential threats to the racial, economic, or political status quo. While the PATRIOT Act and the proposed Patriot II have generated the most public scrutiny, these laws are simply the latest developments in 'anti-terrorism' legislation which has been enacted over the past decade.

Even though the FBI [Federal Bureau of Investigation] had reported only two incidents of international terrorism in the United States between 1985 and 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) whose 'sweeping provisions served to license almost the full range of repressive techniques which had been quietly continued after COINTELPRO was supposedly terminated [in 1971]. AEDPA defines 'national security' as encompassing the 'national defense, foreign relations, or economic interests of the United States' and gives the Secretary of State broad authority to designate groups as 'engaging in terrorist activity' if they threaten 'the security of United States nationals or the national security of the United States,' a provision similar to that authorized by President Truman's 1947 Executive Order. Under this Act, it is a felony to provide any form of material support to designated organizations, even if the support goes directly to an entirely lawful activity of the group, and noncitizens can be deported on the basis of secret evidence for belonging to organizations deemed 'terrorist' without any showing of personal involvement in terrorist or criminal activity; in other words, for engaging in what would otherwise be associations protected by the First Amendment.

AEDPA 'resurrected guilt by association as a principle of criminal and immigration law. It created a special court to use secret evidence to deport foreigners labeled as 'terrorists.' It made support for the peaceful humanitarian and political activities of selected foreign groups a crime. And it repealed a short-lived law forbidding the FBI from investigating First Amendment activities, opening the door once again to politically focused FBI investigations.

At the same time AEDPA was passed, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which not only made it easier to deport immigrants for their political associations but also for minor criminal convictions. Noncitizens, who were already excludable or deportable for serious criminal offences and for virtually any drug offenses, no matter how minor, became retroactively deportable for a wider range of minor crimes that were redefined as 'aggravated felonies.' As a result, numerous long-time permanent residents [foreign nationals with U.S. green cards] have been deported for misdemeanor pleas or convictions several decades old. Invoking the specter of terrorism, the Clinton administration was able to implement many laws that had long been on the executive branch's 'wish list.' Thus for instance, George [H.W.] Bush had twice proposed to allow secret evidence in deportation hearings, and both the Bush and Reagan administrations had tried unsuccessfully to criminalize 'support' for terrorism.

With the September 11 attacks on the Pentagon and the World Trade Center, the stage was set for swift passage of the next level [PATRIOT Act] of police and intelligence powers on the executive branch's wish list, as Americans were informed once again that they would have to 'sacrifice some liberties for their security.'

In January 2003, the United States Justice Department's latest wish list was leaked to the press. Entitled the 'Domestic Security Enhancement Act of 2003,' but more commonly known as 'PATRIOT II,' it would expand the already impressive list of powers given law enforcement and intelligence agencies by the USA PATRIOT Act, which Congress hurriedly enacted in the weeks following the September 11, 2001 attacks on the Pentagon and the World Trade Center. Patriot II, if passed, would go even further than the PATRIOT Act in dramatically curtailing the civil liberties of U.S. citizens as well as immigrants and legitimizing measures long sought-and in the meantime illegally used-by law enforcement agencies to suppress political dissent.

A particularly striking provision of PATRIOT II would allow the government to 'expatriate' U.S. citizens, i.e., strip us of our citizenship, for becoming members of, or providing material support to, a group that is deemed a 'terrorist organization . engaged in hostilities against the United States.' The terms 'material support' and 'terrorist organization' are defined very broadly, and 'hostilities' is left undefined. In light of the United States' long history of race-based exclusion from citizenship, its denial of constitutional protections to large groups of people identified as "Other," and its repression of movements for social change and racial justice in the name of 'national security,' this proposal should be especially alarming to everyone concerned with civil and constitutional rights.

Conclusion:
Maintaining the Racial, Economic, social, and Political Status Quo

Perceived racial and ethnic distinctions are clearly a significant factor in who is considered an American for purposes of social inclusion and legal protection. But the measures taken in the name of 'our security' are much more than reflections of or attempts to maintain racial hierarchy in America. In fact, the state's law enforcement and intelligence powers are being used to protect the status quo-which includes but is not limited to racial hierarchy-rather than the people as a whole.

The U.S. government's attempts to portray the threat embodied by the Other as pervading American society has been facilitated by fact that the United States, as a settler-colonial state, has acquired its territory and amassed much of its wealth by exploiting those deemed Other within its claimed borders. In addition, the effective portrayal of the United States as a nation of immigrants has made it easy to use perceived racial and ethnic distinctions to create an internal 'us vs. them' mentality. Taking advantage of this construction, one of the first lines of attack on those perceived as threats to the status quo has been to label them as 'foreign,' either literally because they are immigrants or because they are characterized as representing foreign powers or ideologies.

The current expansion of governmental powers serves to protect the status quo, not the American people as a whole. The presumption implicit in the call to support the measures being taken 'for our security' is that the 'average' (read 'white') middle-class American benefits from the maintenance of the status quo. But this assumption must be examined as well. Americans have not been made vulnerable to terrorist attacks because of a lack of police power, but because American foreign policy continues to breed repression and resistance. While Americans' fears regarding their physical insecurity, . have been explicitly evoked to justify the 'security' measures taken by the executive branch, a more subtle call for their support comes in the subtext-the call to protect 'our way of life.' The government's definition of national security now explicitly incorporates American economic interests. In essence, the U.S. government is asking for unlimited power to bring the rest of the world 'into line' with perceived U.S. interests and to suppress dissent at home in order to retain the economic benefits of its sole superpower status abroad and its settler colonial regime at home.

Who is being protected by these dramatically expanded law enforcement and intelligence powers? It is not the poor, who comprise the bulk of those incarcerated. It is not communities of color, in which at least one-third of all young men are, or will be, imprisoned, on probation, or on parole. It is not immigrants, who have been interrogated, disappeared, detained, and deported by the thousands; or the victims of hate crimes perpetrated against those who appear to be 'foreign.' It is not those individuals who wish to struggle for civil rights, civil liberties, racial justice, or the sovereignty of indigenous peoples. It is not union organizers, environmental activists, advocates for gay and lesbian rights, or those who oppose U.S. military interventions overseas or global economic institutions, who are made safer by such expanded law enforcement and intelligence powers.

Perhaps that 1 percent of the American people who control 40 percent of the wealth, and those who benefit from the billions of taxpayer dollars being given to private prison corporations, or companies like Halliburton to 'reconstruct' Iraq, benefit from this status quo, but the rest of us do not. The government argues that the war on terror is being fought to preserve freedom and democracy, but the measures being taken are undermining those values much more effectively than any terrorist attack could.

Obviously people in the United States, and for that matter elsewhere, are genuinely afraid of terrorism, whether the State variety or that perpetrated by non-State actors like Al Qaeda. Similarly, they are fearful of crime and the devastation that drugs can and have caused in their lives. But governments around the world have exploited this fear and have sought to, and in many cases successfully imposed draconian laws that infringe on people's civil liberties and violate their civil rights. By creating widespread fear the [U.S.] government has convinced much of the U.S. population to cede more and more of our constitutionally guaranteed rights and to 'sacrifice some freedoms for the sake of security.'

But fear is not the key. It is just one element in why the war on terror, or the war on crime, or the war on drugs sells. Despite the mounting evidence that the 'free market' policies being implemented throughout the world are not, in fact, raising the standard of living of the majority of peoples at home or abroad, and the fact that almost 40 percent of American wealth is controlled by the top 1 percent of the population, it appears that the "average" American is comfortable with the belief, however ill-founded, that he or she is in a position of relative privilege and that it is somehow deserved. Unlike people of color or immigrants, the "average [White] American" is generally not at risk of being caught in the crossfire from the war on crime, or the war on drugs, or now the war on terror, unless of course she or he is serving in the military in Iraq or Afghanistan, or if they are members of leftist groups whose civil liberties might be violated.



Natsu Saito is professor of law at Georgia State University. This article is adapted from:"FOR 'OUR' SECURITY: Who is an 'American' and What is Protected by Enhanced Law Enforcement and Intelligence Powers?" Seattle Journal for Social Justice 2(1): 58-59. Printed with permission.

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