[*PG1]BLURRING THE BOUNDARIES BETWEEN IMMIGRATION AND CRIME CONTROL AFTER SEPTEMBER 11TH

Teresa A. Miller*

Abstract:  Although the escalating criminalization of immigration law has been examined at length, the social control dimension of this phenomenon has gone relatively understudied. This Article attempts to remedy this deficiency by tracing the relationship between criminal punishment and immigration law, demonstrating that the War on Terror has further blurred these distinctions and exposing the social control function that pervades immigration law enforcement after September 11th prioritized counterterrorism. In doing so, the author draws upon the work of Daniel Kanstroom, Michael Welch, Jonathan Simon and Malcolm Feeley.

Introduction

The formal legal distinction between criminal punishment and civil regulation remains quite salient after the events of September 11, 2001, as does the distinction between citizens and noncitizens. In combination, however, these distinctions differentiate between the punishment of criminal offenders with the status and privileges of U.S. citizenship and those without. The line dividing citizens and noncitizens thus justifies the radically different treatment of criminal offenders and so-called criminal aliens under the law. Where these lines are drawn within immigration law and policy profoundly affects the manner in [*PG2]which the U.S. government may legally combat terrorism.1 However, these lines did not wholly emerge—as one might suspect—from immigration laws passed by Congress in a flurry of lawmaking after 9/11. To the contrary, immigration legislation passed years before the attacks, embraced the criminal justice system’s severe treatment of drug offenders and the poor. As the criminal justice system created punishments that “got tough” on all convicted drug offenders,2 immigration law adopted harsh consequences for convicted noncitizen drug offenders.3 Under immigration reforms enacted in 1996, these so-called “criminal aliens” could be detained and deported—often retroactively—and denied relief from either, regardless of particular mitigating circumstances.4 And because courts characterized these harsh measures [*PG3]as regulatory rather than punitive, the U.S. Constitution did not stand in their way.5

In the years between 1996 and 2001, the immigration system bought into the “severity revolution” occurring within the criminal justice system.6 Some describe it as the “criminalization” of immigration law,7 whereas others describe it as a convergence between the criminal justice and deportation systems.8 Under either characterization, the interaction of the two systems produced outcomes that were unprecedented, and even unintentional at times, in their harshness. For example, criminal sentencing enhancements for past offenses coalesced with immigration law’s enhanced “aggravated felony” designation to man[*PG4]date the incarceration9 and removal10 of noncitizens with mere misdemeanor convictions on their criminal records.11 These outcomes aided the advance of not only the crime control agenda of the War on Drugs, but the social reform agenda of retrenching the welfare state as well.12

The most significant immigration reforms enacted by Congress during this era dramatically enhanced collateral civil penalties pertaining to noncitizens. Two major immigration laws enacted in 1996—the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)— subjected both noncitizens convicted of crimes and those with past criminal convictions to mandatory detention and deportation without the avenues of relief traditionally available to detainable and deportable aliens.13

Prior to these reforms, only certain serious felony convictions subjected noncitizens to detention and deportation, such as murder, drug and firearms trafficking.14 The 1996 legislation, however, greatly expanded the litany of crimes subjecting foreigners to detention and de[*PG5]portation.15 Today, a single misdemeanor conviction of one year or more for a crime as minor as shoplifting subjects a non-U.S. citizen to detention and deportation.16 This expansion of the types of crimes mandating detention and deportation applied to all categories of noncitizens, including lawful permanent residents (“LPRs” or “green card holders”), long privileged as aliens on the “fast track” to citizenship.17 It also applied retroactively, so that noncitizens convicted of crimes that would not have rendered them deportable before 1996 suddenly faced deportation after Congress passed AEDPA and IIRIRA.18

Thus, by the time of the tragic events of September 11, 2001, immigration law had already enhanced the collateral civil penalties to noncitizens convicted of crimes in the United States.19 The nation’s swift response to terrorism capitalized on immigration law’s utility as a mechanism for crime control and social control to confront the “hypercrime” of terrorism. Indeed, the scope of the War on Terror has expanded to encompass the incarceration and removal of noncitizens who have committed unrelated criminal offenses.

For example, in July 2003, the newly formed Department of Homeland Security (DHS) initiated “Operation Predator” to apprehend and purge noncitizens with past sex offenses from the nation’s [*PG6]borders.20 According to Michael Garcia, the Assistant Secretary for Immigration and Customs Enforcement (ICE), taking these ex-offenders off the streets pursuant to this operation helped to safeguard America, one broad mission of the Department of Homeland Security.21 He indicated further that pooling government resources under the umbrella of Homeland Security aided the frequency and accuracy of these detentions.22 Pursuant to this program, ICE—fashioned from the investigative and intelligence arms of the former INS and the U.S. Customs Service, as well as the Federal Protective Service and the Federal Air Marshal Service—had arrested approximately 6,000 fugitives by March of 2004.23 In analyzing legal line drawing after 9/11, it is more accurate to say that the preexisting distinctions setting “criminal aliens” apart from ordinary criminal offenders—lines drawn principally in efforts to achieve welfare and drug enforcement reform—gained renewed utility and significance after September 11, 2001.

Part I of this Article surveys several major developments in immigration law and policy since 9/11 that underlie the merger of the criminal and immigration systems. Part II examines three major theoretical responses to this ongoing merger. Finally, Part III illustrates how the “new penology” blurs distinctions between illegal aliens, criminal aliens, and terrorists.

I.  The Domestic Legal Response to the 9/11 Attacks

In the months and years following September 11, 2001, much of the domestic response to the terror attacks was a legal one. Broad counterterrorism legislation, such as the USA PATRIOT Act,24 the Homeland Security Act (HSA),25 and the Enhanced Border Security [*PG7]and Visa Entry Reform Act (EBSVERA)26 were passed to expand the exclusion, detention, and surveillance of noncitizens who could threaten national security, as well as to increase the flow of intelligence on these individuals across governmental agencies. To supplement these measures, presidential directives were issued, regulations promulgated, and policy initiatives undertaken to strengthen national security through stricter enforcement of immigration laws and greater coordination of governmental resources. Several such policies illustrate the accelerating criminalization of the immigration system.

A.  Zero-Tolerance Immigration Law Enforcement

In response to the attacks, immigration officials and criminal law enforcement authorities took a zero-tolerance approach to non-compliance with immigration laws that disproportionately punished immigrant communities, targeting them for tough law enforcement measures only indirectly related to counterterrorism efforts. Zero-tolerance was a prominent aspect of pre-9/11 reforms that used immigration law as a tool of criminal law enforcement—particularly drug enforcement.27 After the attacks, however, zero-tolerance enforcement of immigration law was extended to non-U.S. citizens who did not bear the taint of having been processed by the criminal justice system, such as asylum seekers and undocumented aliens.

1.  Absconder Apprehension Initiative

Only three months after the attacks, the U.S. government responded to terrorism by prioritizing coordination between immigration and criminal law enforcement officials, as well as by demanding strict compliance with civil immigration orders. In January of 2002, Deputy Attorney General Larry Thompson announced a new initiative to “locate, apprehend, interview, and deport” approximately 314,000 noncitizens who had been ordered deported, but had failed to comply with their deportation orders.28 Referring to these individuals as absconders, the Department of Justice (DOJ) focused on 6,000 of the estimated 314,000 total “absconder” population that came to the United States from countries “in which there ha[d] been Al Qaeda terrorist [*PG8]presence or activity.”29 In an internal memo dated January 25, 2002, to the INS, the Federal Bureau of Investigation (FBI), the U.S. Marshals Service, and U.S. Attorneys, Deputy Attorney General Thompson directed federal law enforcement agencies like the FBI and the U.S. Marshals Service to focus their efforts on apprehending these so-called “priority absconders”.30 According to the memo, once apprehended, priority absconders would be interviewed by teams of immigration and federal law enforcement agents about their knowledge of terrorism, and then either criminally prosecuted for failing to depart or reentering illegally after removal, or deported pursuant to the existing removal order.31 Although the Absconder Apprehension Initiative was criticized roundly for involving local law enforcement officials in the enforcement of civil deportation orders and for singling out entire communities of individuals of Arab descent as potential terrorists,32 it jointly and effectively deployed crime and immigration control resources and led to the apprehension of 1,139 fugitives by May of 2003.33

2.  Enforcement of Address Change Reporting

In July, 2002, the DOJ announced its intention to begin strictly enforcing  265 of the Immigration and Nationality Act34—an obscure immigration law virtually ignored by immigration officials since 1952— which requires all noncitizens, whether in the country legally or illegally, to report address changes within ten days of changing their residence.35 Most non-U.S. citizens, particularly longtime permanent resi[*PG9]dents who have likely moved numerous times over their extended residence, know nothing of the requirement since the rule had never been enforced prior to the 9/11 attacks.36 Aliens who entered the United States illegally are likewise unlikely to divulge their whereabouts to the agency charged with apprehending and deporting them. Moreover, it seems unlikely that terrorists operating surreptitiously within the United States will comply with the rule. Even when aliens do comply with the reporting requirement, a dismal record of bureaucratic inefficiency and misplacement of documents cast doubt on the ability of the old INS—or the new U.S. Customs and Immigration Service (USCIS)—to process the forms.37 Nevertheless, the newly strict enforcement of filing requirements is consistent with the government’s interior counterterrorism strategy of tracking more closely the movements of aliens, thus blurring distinctions between criminal and non-criminal aliens.38

B.  Immigration Detention

In addition to strictly enforcing immigration regulations, the U.S. government has used both immigration detention and the threat of it against non-U.S. citizens to conduct its criminal investigation of the attacks. Indeed, zero-tolerance policing of immigration violations has led to numerous detentions of noncitizens as a direct result of the [*PG10]heightened penalties for immigration violations, including mandatory detention, enacted in the decade prior to the attacks.39

Immediately after the terrorist attacks, the Department of Justice detained noncitizens who were either suspected of having connections to the attacks or ties to terrorism pursuant to the FBI’s investigation of the attacks.40 Rather than arrest Arab and Muslim men as criminal suspects, law enforcement agents utilized the greater latitude and reduced accountability under federal immigration law to immobilize Arab and Muslim communities.41 Once individuals were detained, federal law enforcement officials could interrogate them as part of a criminal investigation, while checking their compliance with immigration regulations.42 In the eleven months after the attacks, 762 aliens were detained pursuant to the FBI terrorism investigation for various immigration offenses, including overstaying of visas and illegally entering the country.43 The government claimed that further acts of terrorism could be prevented if terrorists and terrorist sympathizers were incapacitated, which rationalized the massive round-up of Arab and Muslim foreign nationals.44

[*PG11] Immediately after the attacks, and lacking express legal authority to detain terrorism suspects preventively, Attorney General John Ashcroft revised INS detention rules to expand the government’s power to detain aliens.45 The new rules doubled—from twenty-four to forty-eight hours—the time allotted to the INS to either release detained immigrants or charge them with a crime or visa violation.46 Moreover, if the agency can claim emergency or extraordinary circumstances, the forty-eight-hour deadline is waived, and the alien can be held for an additional “reasonable period of time” without charges.47

C.  Closer Cooperation with Local Law Enforcement

Federal law enforcement officials have begun to work more closely with state and local law enforcement agents to police compliance with federal immigration laws.48 Metropolitan areas with large populations of non-U.S. citizens—particularly illegal aliens—have traditionally opposed the deputizing of their police officers, believing that it would erode the trust local police seek to build over time with immigrant communities and discourage immigrants from reporting crimes, thereby rendering those communities less safe.49 Nonetheless, in August of 2002, Florida became the first state to deputize law enforcement officers to assist federal INS agents in enforcing federal immigra[*PG12]tion laws.50 Thirty-five officers from across the state were deputized as part of a pilot program, responding to a DOJ finding that local officers have “inherent authority” to enforce federal immigration laws.51 Not long afterward, South Carolina Attorney General Charlie Condon initiated a similar plan to deputize a special unit of state law enforcement officers to investigate potential immigration violations.52

A few federal lawmakers are seeking to carry these partnerships one step further. They hope to institutionalize the growing cooperation between federal, state, and local law enforcement through legislation. The Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, proposed by Republican representative Charlie Norwood of Georgia, would explicitly confirm the authority of local and state law enforcement officers to apprehend, arrest, detain and remove criminal and illegal aliens during the normal course of their duties; provide funding to state and local law enforcement agencies that participate in arresting undocumented immigrants; and withhold certain funding to state and local governments that refuse to allow law enforcement to enforce federal immigration laws.53 Although the bill garnered 125 co-sponsors in the House, the CLEAR Act has stalled in committee while congressional representatives debate the enormous expense involved in implementing the Act nationwide,54 and scores of [*PG13]police departments, immigrant advocacy groups, mayors, and city councils across the country speak out against the legislation.55

D.  Criminalizing Asylum Seekers

Asylum seekers are foreign nationals who seek to enter the United States based upon allegations of their persecution at the hands of the government of the country from which they are fleeing.56 Unlike refugees, they arrive without prior State Department clearance, but are traditionally treated more sympathetically because of their claims of persecution.57 Since 9/11, however, this favorable treatment has ended; their motives for seeking asylum are now suspect.58 Moreover, the motives of some no longer receive individualized scrutiny, and all “[h]igh risk” asylum seekers are detained across the board.59 Pursuant to the now-defunct Operation Liberty Shield, asylum applicants were automatically detained if they were from thirty-four countries where al-Qaeda or related terrorist groups operate.60 The DHS reviewed the files of certain detained “Liberty Shield” asylum seekers to collect intelligence on potential national security threats.61 Indeed, in 2003, BICE interviewed 2,000 high-risk asylum seekers, resulting in only ninety-two arrests, over 90% of which were for immigration violations.62

[*PG14] The policies and initiatives discussed above are changes in immigration law and policy all draw upon the objectives, techniques, and discourses of a harshly punitive system of criminal justice to deal with noncitizens and the terrorist threat.63 These post-9/11 reforms evidence an evolving symbiosis between criminal law enforcement and immigration regulation, continuing a process of convergence that began in the 1980s and 1990s during the crackdown on noncitizens with criminal convictions.64 Thus, the domestic legal response to the 9/11 attacks has predictably and overwhelmingly relied upon strict enforcement of immigration law and policy to address the threat of terrorism.

Possible explanations for a domestic response focusing upon immigration law enforcement are numerous and varied. Justifications focus on the immigration status of the terrorists and the efficiency of exploiting an immigration system free of constitutional restraints. The nineteen hijackers responsible for the attacks were noncitizens, and fifteen had entered the United States legally on some form of temporary visa.65 Although undocumented aliens and aliens with criminal convictions were long considered immigration “problems,” so-called “non-immigrant” visa holders were not.66 And despite the increasingly punitive nature of U.S. immigration policy toward criminal and undocumented aliens, prevailing sentiment was that foreigners—particularly those lacking the intent to stay—came to the United States for economic advancement.67 The 9/11 attacks shattered that presumption and directed attention to stricter controls of U.S. borders to prevent future terrorist attacks.68

Moreover, the advantages of using immigration law to contain and expel problematic aliens were exploited in the campaign against criminal aliens, begun in the mid-1980s. Immigration authorities employed the immigration system to apprehend, arrest, detain, and de[*PG15]port a wide variety of criminal aliens—non-U.S. citizens with post-entry criminal convictions—without the need for constitutional guarantees of due process (including public notice and full-blown judicial review) and free counsel for indigents that inure to aliens apprehended and detained through criminal law enforcement.69

In addition, the U.S. government’s deployment of immigration law to purge “criminal” populations in the 1980s and 1990s demonstrated both immigration law’s procedural expediency, but its substantive ease as well. As law professor and immigration scholar David Martin commented shortly after the attacks, “There may not be evidence right now to hold someone on a criminal charge, [but it is] very easy to demonstrate a[n immigration] violation, allowing officials to deport or detain suspects.”70

These explanations provide practical reasons for the convergence of criminal control of terrorism and the use of immigration law to achieve it. Less obvious, however, is each system’s use as a method of social control, the subject of the emerging research discussed in Part II.

II.  Analyzing the Merger of Crime and Immigration Control

One reason immigration and criminal law continue to converge after September 11 is immigration law’s development as a more efficient mechanism for social control of noncitizens than the criminal justice system.71 Given the significance of this phenomenon, the social control dimension of this growing intimacy was, for many years, relatively understudied. Several reasons might account for this. First, the two areas of law are doctrinally distinct. To students of criminal law, immigration law is uncomfortably administrative. Criminal law scholars whose bread and butter are Fourth, Sixth, and Fourteenth Amendment challenges to various criminal procedures as written or applied are discomfited by the lack of judicial review or constitutional lawmaking.72 To [*PG16]immigration scholars, the punitive aspects of criminal law are readily apparent, but the constraints of plenary power and administrative law render the broad critique of recent immigration reforms as “criminally punitive” irrelevant to many.73

Second, the criminal justice system carries baggage that some immigration scholars may be reluctant to bear. Even in the face of harsh intolerance of noncitizens deemed undesirable by virtue of poverty, race, or criminal records, many immigration scholars may hesitate to link changes in immigration law to parallel techniques, goals, and objectives within the criminal justice system, as doing so could undermine the immigration system’s legitimacy.74

Third, many immigration scholars feel as many criminal punishment scholars did in the late-1980s: overwhelmed with the pace of harsh reforms and focused most immediately on documenting the reforms before attempting to theorize them.75

Nevertheless, the work of a few scholars spanning several disciplines lends analytic clarity to the coercive social engineering pervading the post-9/11 legal landscape. These analyses all demonstrate that the hybrid system of crime and immigration control created by their convergence functions to socially control non-U.S. citizens and their communities. Criminologists Jonathan Simon and Malcolm Feeley identify a “new penology” that socially controls high-risk criminal subjects through risk management, breaking with assumptions and prac[*PG17]tices shaping the modern, Enlightenment-influenced criminal justice system over two hundred years.76 As crime and immigration control merge, the immigration system likewise socially controls high-risk noncitizens through actuarial and managerial processes, including detention, surveillance, and a host of related tools operating below the constitutional radar.77

Moreover, immigration clinician and scholar Daniel Kanstroom’s theory of the convergence of crime control and deportation law illustrates how post-9/11 immigration reforms have deviated from traditional deportation justifications and now conform more closely to traditional justifications for criminal punishment.78 Kanstroom persuasively argues that deportation—stripped of its formalistic, contract-based, border control rationales, and examined functionally—is now a means to continually and perpetually control the behavior of noncitizens.79

Finally, Michael Welch’s work on immigration detention and its economic ties to the private prison industry sheds light on the entrepreneurial aspects of immigration law after September 11.80 Welch perceives social control functions in the nexus between the heightened use of detention and the economic imperatives of the private prison industry.81 In other words, Welch sees the commodification of immigration detainees as a significant manifestation of socially controlling noncitizens.82 Taken together, these academics have mapped the contours of a theory of social control that links the convergence of immigration law and criminal punishment to the War on Terror.

A.  The New Penology

Jonathan Simon and Malcolm Feeley pioneered a new understanding of contemporary criminal law enforcement, procedure, and punishment that accounts for an enormous shift in institutionalized practices that, over the past three decades, produced zero-tolerance law enforcement, draconian criminal sentences, and mass incarceration [*PG18]vastly disproportionate to the crime rate.83 These new practices break from traditional concerns for an individual offender—his fault or guilt, his rehabilitation, his post-confinement reintegration into society—and are instead concerned with identifying, classifying, and managing aggregates of risk.84 In the process, concern for prevention of criminal deviance falls by the wayside, as a certain level of criminal offending is considered inevitable.85 The issue instead has become simply how to manage it.86 Thus, the new penology, at its core, is managerial, actuarial, and statistical—concerned not with individuals, but with managing subpopulations considered dangerous or risky.

Feeley and Simon demonstrate the managerialism and actuarialism of the new penology operating in several aspects of crime control. Law enforcement targets “high-risk” subjects,87 and arrests suspects defined by “racial profiles.” Prisons no longer rehabilitate offenders through therapeutic, academic, and vocational programs, but incapacitate them based on risk classification.88 High rates of recidivism no longer demonstrate failure of the parole system’s ability to reintegrate offenders, but rather success in efficiently restoring offenders to prisons that manage the risk of their inevitable reoffending.89

The new penology’s focus is the maximization of social control and efficiency of the criminal justice system. In Feeley and Simon’s view, the new penology “manag[es] a permanently dangerous population while maintaining the system at a minimum cost.”90 Through surveillance, classification, and containment, the system maintains control over specific populations that cannot be disaggregated from society or transformed.91

Such fundamental transformations in the goals of criminal punishment have parallels in deportation law, the most “criminalized” sec[*PG19]tor of immigration law.92 Consistent with the criminal justice system’s abandonment of individualized treatment and rehabilitation for criminal offenders, and its simultaneous embrace of an actuarial approach that simply manages high-risk groups, the immigration system attains social control through the mass expulsion of undesirable non-U.S. citizens, while largely ignoring the significance of individualized, mitigating factors.93 For the small percentage of deportable aliens the United States cannot expel, social control is exercised through indefinite detention or warehousing.94

In the 1980s and 1990s, undocumented aliens were deemed undesirable, perceived as either taking scarce jobs away from Americans or adhering to the welfare magnet.95 Criminal aliens, in turn, were undesirable for their criminal, often drug-related, conduct.96 Immigration reforms have sought to expel both groups of deportable aliens retroactively and to contain individuals in immigration prisons and local jails to minimize the likelihood of evading deportation, all while drastically limiting avenues of relief.97

Criminal aliens are particularly vulnerable to new social controls within immigration law. Prior to the immigration reforms of 1996, a criminal alien committing a single crime of moral turpitude was de[*PG20]portable only if the crime was committed within five years of entry and a sentence of one year or more of confinement was actually imposed.98 This condition thus associated criminal propensities with proximate cause: criminal offenses committed long after entry were considered unlikely to result from criminal propensities developed in a foreign country.99 In other words, an alien’s criminality would likely manifest within five years of entry.100

[*PG21] Since 1996, however, the length of time between entry and offense is irrelevant for most crimes.101 Moreover, crimes with no deportation consequences prior to 1996 were suddenly and retroactively deportable offenses.102 Conviction of a crime for which a sentence of one year or more may be imposed is sufficient to trigger deportation, and a lighter sentence nonetheless triggers harsh immigration consequences.103

These measures reflect a broader transformation resulting largely from changes in perceptions of noncitizens and the risk they present to the U.S. economy, public safety, and—after September 11—homeland security.104 Although noncitizens are being treated increasingly punitively, the causal relationship between the severity revolution in crime control and enhanced punitiveness within the deportation system remains subtle. The new penology explains a great deal about this relationship, particularly in the post-9/11 context. First, the government’s use of immigration law as a tool in the War on Terror is managerial.105 Despite great efforts to better secure U.S. borders, the likelihood that foreign terrorists will enter the United States is still considerable.106 To manage that risk, the DHS subjects a broad spectrum of noncitizens to harsh immigration consequences that are often only indirectly related to terrorist conduct.107

Second, the War on Terror is actuarial, relying upon statistical predictions of risk.108 The apotheosis of this actuarialism is the terror threat warning system that identifies daily the risk of a terrorist at[*PG22]tack.109 Furthermore, immigration law enforcement relies heavily upon religious and ethnic “profiles” of potential terrorists that are both under- and over-inclusive. 110 Targeting Muslim and Middle Eastern men of foreign nationality not only neglects Arab women and U.S. citizens, but also affects adversely a range of immigrant communities, particularly Mexican immigrants with brown skin and dark hair.111

Third, the War on Terror relies on surveillance, classification, and containment to maximize control over populations that can be neither disaggregated from the United States nor transformed.112 Even before 9/11, immigration authorities surrendered the traditional goal of assimilating all foreigners.113 The national insecurity fostered by the attacks enhanced the perception that immigrants—particularly those from Arab or Muslim countries—were inassimilable.114 Conceived of not as individuals, but as aggregates of risk, these foreigners are monitored, classified,115 and controlled through a variety of government initiatives.

Racial profiling and expanded reporting requirements exemplify the new penology at work in the War on Terror. Racial profiling assumes guilt or validates suspicion according to group-based character[*PG23]istics rather than individual culpability. Governmental reliance upon statistical probabilities forms the core of racial profiling.116 Thus, the racial profiling of Middle Eastern men since September 11 is both managerial and actuarial, less about prevention than risk management.117

Prior to September 11, racial profiling of African-American men was publicly condemned at the highest levels of the federal government.118 Even within immigration law enforcement, where noncitizen targets of racial profiling lacked standing to challenge the practice, race-based enforcement of immigration law was being questioned.119 Immediately after the attacks, however, racial profiling of individuals of Arab and Muslim appearance commenced with a vengeance, enjoying wide public support and official sanction.120 Indeed close to two full years after the attacks, the White House, in an unprecedented announcement, issued guidelines barring federal agents from using race or ethnicity in routine investigations, but expressly exempted investigations involving terrorism or national security.121

Similar efforts in the War on Terror have subjected noncitizens to broad reporting requirements that increase their visibility to homeland security and criminal law enforcement authorities. Based on immigration status and nationality, male visa holders from designated “al Qaeda” countries were selected for scrutiny, a tactic that Karen Tumlin has termed “immigration plus” profiling.122 In October of 2003, the INS123 initiated the National Security Entry-Exit Registration System [*PG24](NSEERS)—commonly referred to as “special registration”124—at all ports of entry.125 Initially limited to male visa holders age sixteen and over from mostly Arab and Muslim countries,126 special registration required non-immigrant visa holders to report to local district immigration offices to be photographed, fingerprinted, and questioned under oath, all under penalty of deportation.127 They were required to present any requested documentation, including that of employment, their lawful admission to the United States, place of residence, title to land, or lease and rental agreements.128 Before its phase-out in April of 2003, and absorption into the comprehensive, biometrically-based U.S. VISIT system,129 special registration procedures processed 60,822 non-immigrants.130 The program effectively flushed out thousands of non-immigrants for technical immigration violations, but discovered few terrorists.131

[*PG25] The 8,000 men sought for voluntary interviews by DOJ officials were also chosen based on a combination of ethnicity, nationality, and race.132 Shortly after the attacks, many Arab and Muslim noncitizens living in the United States, with no known ties to terrorism were required to report to law enforcement officials for interviews related to terrorist activities, simply by virtue of nationality or religious affiliation.133 The voluntary interview process not only makes certain aliens more conspicuous, it simultaneously demonstrates how law enforcement officials target certain immigrant communities on the arbitrary bases of nationality or religion rather than on actual knowledge of terrorism. Indeed, the process has been criticized for spreading fear among immigrant communities while producing few leads on terrorism.134

Taken together, these initiatives illustrate the government’s post-9/11 homeland security strategy, specifically to cast a wide net for terrorists using the regulatory discretion of immigration law enforcement and harsh criminal law consequences to noncitizens to purge society of noncitizens considered risks due to nationality, religion, or race.135 Immigration law thus functions to detain vast numbers of noncitizens until their potential dangerousness can be assessed.136

Furthermore, the narrow avenues of relief from detention and deportation encourage those noncitizens caught in the counterterrorism dragnet to cooperate with homeland security officials and, in effect, to work for the department. The DHS’s use of the S-visa clearly [*PG26]illustrates this social control dynamic.137 S-visas have become increasingly attractive to noncitizens in the strict, zero-tolerance immigration law enforcement regime after 9/11, because they allow those aliens cooperating with terror investigations and prosecutions to remain in the United States.138 As criminal and immigration law scholar Nora Demleitner notes, “[Such]immigration benefits in exchange for cooperation have become increasingly more valuable as the number of deportable offenses has risen dramatically, and immigration judges have been deprived of much of their discretion to avert [deportation].”139 Demleitner questions the wisdom of using immigration benefits in this manner, however, citing the grave potential for abuse:

Because of the high stakes involved, noncitizens are more easily coerced and may be more likely to provide doubtful and unfounded information to law enforcement agencies to protect their tenuous status. . . . [T]he harshness [of immigration law] and the limited venues for averting deportation make the only alternative provided—cooperation—even more rife with abuse.140

Significantly, immigration law and policy—as it converges with criminal law and punishment—has embraced the severity revolution occurring in crime control over the past three decades, and its attendant features of risk management, containment, and control.141 The DHS’s social control mechanisms after 9/11—detention, racial profiling, and harsh, zero-tolerance immigration law enforcement with very narrow avenues of relief—raise the question whether these initiatives improve or impede counterterrorism efforts. Zero-tolerance law enforcement breeds fear of the government in communities best-situated to investigate and report suspicious activity sponsored by Islamic fundamentalists.142 Instead of cooperation, however, these policies also breed resentment in those communities that might otherwise denounce terrorism.

[*PG27]B.  Deportation as Social Control

By casting for terrorists using every tool at its disposal—most notably immigration and criminal law enforcement—and then selectively detaining and deporting non-U.S. citizens for typically minor immigration or criminal law violations, immigration law socially controls immigrant communities through the deportation threat. Imposing this threat, or that of detention pending deportation with no consideration of individual merits, is a highly effective instrument of social control.143 So effective, in fact, that significant numbers of foreign nationals from Arab countries residing in the United States legally and illegally—even lawful permanent residents on the track to naturalization—have departed voluntarily rather than risk quasi-criminal confinement in an immigration detention facility or jail.144

A trilogy of articles by Professor Daniel Kanstroom investigates the use of deportation as a means of social control.145 Kanstroom posits that deportation is a vehicle of social control when disconnected from the traditional rationalities of immigration law—specifically, the conception of deportation as a “civil,” regulatory, contractual process by which noncitizens who violate a condition of entry are “returned” outside the territorial limits of the United States.146 Kanstroom emphasizes that deportation is used to “cleanse” society of its least desirable members, including criminal and illegal aliens, noting that the United States is simultaneously admitting and expelling more noncitizens than ever before.147 Thus, deportation’s rigid application to long-term permanent residents nearly amounts to criminal punishment, but lacks the constitutional protections afforded U.S. citizens who are criminally tried or punished.148

An immigration clinician and scholar, Kanstroom has chronicled the social control dynamic as it has developed within immigration law over centuries.149 As an advocate for immigrants, Kanstroom describes [*PG28]the increasing prevalence of crime control to justify increasingly harsh deportation laws, identifies “the ascendancy of the crime control justification” within deportation law as a “rather complete convergence,” and criticizes the use of criminal punishment within the civil, regulatory system of immigration control as constitutionally illegitimate, if perhaps efficient.150 In commenting on the efficiency of deportation in crime control, Kanstroom indirectly acknowledges the social control apparatus of the new penology at work in immigration reforms targeting the post-entry criminal conduct of noncitizens, particularly long-term permanent residents.151

That deportation and criminal punishment function jointly to exercise social control is pertinent to U.S. counterterrorism after September 11 in several respects. It is relevant because the government used immigration laws to pursue their criminal investigation of the attacks. Nearly 1,200 men of Arab or Middle Eastern descent were arrested, detained, investigated and interrogated in immigration prisons, private detention facilities, and county jails across the country.152 Some were arrested as terrorism suspects pursuant to the PENTTBOM investigation, while others were picked up through tips or other leads in the FBI investigation.153 Little attempt was made to distinguish between immigration and criminal detainees.154 Justice Department officials, aware of the constitutional protections that apply to individuals criminally apprehended, regardless of citizenship status, chose to arrest and detain foreign men of Middle Eastern descent on immigration violations, thereby evading the greater level of due process guaranteed to criminal arrestees.155

Moreover, the government’s response to September 11 derailed attempts to ameliorate the consequences of this joint social control; the zero-tolerance regime for minor immigration offenders gained renewed strength. Before the attacks, noncitizens were subject to [*PG29]harsh immigration consequences—most notably, deportation—for a ever-increasing number of minor criminal transgressions.156 As a penalty, deportation was criticized as vastly disproportionate given the expansive scope of deportation-triggering offenses. After the attacks, any deviation from full compliance with the letter of the law became viewed by criminal law enforcement officers as suspicious.157

C.  Detention as Social Control

Detention is another aspect of the hybrid crime/immigration system of social control.158 Michael Welch’s scholarship on the expanding detention industry within the immigration system documents the government’s heavy reliance on incarceration and the economic incentives for expanding this reliance.159 In the context of the War on Terror, those incentives have only grown.

Astute observers have seen that the zero-tolerance law enforcement policy of thirty years of the War on Drugs has increased criminal convictions for less serious offenses, created demand for greater prison capacity, and fueled a corrections industry whose economic imperatives, in turn, accentuated such net-widening tendencies.160 Michael Welch draws upon this history, the organizational links between immigration and crime control, and the new penology in describing an “economic-punishment nexus” operating within immigration law enforcement.161 Welch asserts that the INS (now the DHS) does not merely imitate the criminal justice system, but responds to market forces that legitimate and elevate the zero-tolerance approach to immigration control, to operate under the same social control canopy.162 Simply stated, he claims that immigration authorities are responding to economic cues from the corrections industry.163 Although his analysis was generated prior to the attacks and pertains primarily to immigration policies developed to fight the War on Drugs, Welch’s observation that zero-tolerance immigration law enforcement—a hallmark of the War on Terror—fuels an industry [*PG30]that influences immigration policy, highlights a fairly overlooked aspect of the social control of non-U.S. citizens in this Age of Terror: the commodification of high-risk aliens.164

The temporal relationship between the Wars on Drugs and Terror is important in understanding the more entrepreneurial aspects of post-9/11 detention policies. The War on Terror was declared on the heels of the War on Drugs.165 The timing is significant for two reasons. Despite assurances from INS officials immediately after the attacks that raids and roundups reminiscent of those during World War II would not occur,166 the punitive immigration laws already in place provided a ready and extensive detention infrastructure.167 Furthermore, the counterterrorism measures taken after 9/11 through immigration law enforcement were implemented when the criminal incarceration rate had begun to slow for the first time after nearly twenty years.168 Due to vacancies, states such as Wisconsin and Colorado had begun to recall prisoners they eagerly exported just a few years earlier,169 while other states failed to renew contracts with private prison companies with whom they were now in competition. Strapped for contracts, private prisons turned to the flourishing federal prison system for business.170 In 2002, record low increases in overall prison population were offset by tremendous growth in the federal prison population.171 This growth initially resulted from the crackdown on illegal immigrants and crimi[*PG31]nal aliens preceding the 9/11 attacks. Continued growth results largely from the detention of illegal and criminal immigrants nabbed in counterterrorism’s heightened enforcement of immigration law.172 Indeed, the relationship between heightened immigration law enforcement and the failing private prison industry after September 11 has been characterized as a “bailout.”173 For example, in May 2002, the Corrections Corporation of America (CCA) won a three-year contract worth $109 million to house federal immigration detainees in an empty CCA prison in Georgia.174

The Absconder Apprehension Initiative typifies the economic boost to private prisons produced by counterterrorism after 9/11.175 Seeking to deport within five years an estimated 400,000 noncitizens ordered deported but still present, in December 2003, the DHS undertook an 8,000 bed expansion of its detention capacity, bringing the number of beds up to 30,000.176 Private prison firms Wackenhut and Corrections Corporation of America were both awarded contracts to meet the demand.177 And although beyond the scope of this Article, it is important to note the leading role of private prison companies in detaining immigrants, including terror suspects, abroad.178

[*PG32] In sum, scholars of both criminal punishment and immigration have discerned elements of social control that are present in post-September 11th counter-terrorism policies. The managerialism that Feeley and Simon discern in a criminal justice system that is no longer founded upon transformation and individualized justice is embedded in counter-terrorism policies that manage the risk of further attacks through the profiling and identification of “risky” foreigners, zero tolerance law enforcement and heavy reliance upon detention. Kanstroom identifies the intensification of immigration screening in the interior of the United States, far from the border (to which deportation was traditionally linked) as a prominent element of social control within post-September 11th immigration policy. Finally, Welch detects social control in the “economic-punishment” nexus fueling the immigration detention industry.

III.  Blurring Distinctions Between Illegal Aliens, Criminal Aliens, and Terrorists

The emphasis on apprehending, detaining, and removing non-U.S. citizens deportable because of past criminal conduct has blurred traditional distinctions between categories of deportable aliens. Although much legislation passed in the aftermath of the 9/11 attacks increases information-sharing among government agencies, creates new grounds for refusing admission to aliens, and increases the surveillance and tracking of visa holders and other visitors, much attention has focused on removing foreigners who are undesirable for a wide variety of reasons. The broad objective of strengthening national security has justified the detention and removal of illegal aliens, criminal aliens, and even asylum seekers, despite the absence of a clear nexus between these aliens and terrorism. That counterterrorism now encompasses so many broad and divergent crime control and social welfare reform agendas suggests that purging the country [*PG33]of unwanted convicts and impoverished, low-wage workers is more achievable and more demonstrably successful than capturing Osama bin Laden, discovering weapons of mass destruction in Iraq, or preventing future terrorist attacks.

If traditional legal categories and the lines drawn between them presumably distinguish clearly between categories of aliens for the purpose of combating terrorism, the criminal/civil line and the citizen/noncitizen line have achieved this goal only in the most superficial sense. Criminal aliens (deportable for their post-entry criminal conduct), illegal aliens (deportable for their surreptitious crossing of the U.S. border), and terrorists (deportable for the grave risk they pose to national security) are all deemed dangerous foreigners for whom criminally punitive treatment and removal are uniformly appropriate and urgently necessary.

A.  Governing Through Terror? Criminal and Illegal Aliens in the War on Terror

Jonathan Simon coined the phrase “governing through crime” to describe the process by which advanced industrial societies like the United States have prioritized crime and punishment to guide and direct the actions of others or, expressed differently, for “governing.”179 Simon rejects the notion that the United States is experiencing a crime “crisis,” suggesting instead that the crisis is one of governance, both at a formal/public/political level (e.g., electoral campaigns and political rhetoric) as well as an informal/private/social level (e.g., schools and family life).180 Simon suggests that this crisis of governance was precipitated not by an increase in crime, but by the failure of traditional institutions of governance, such as the social liberal welfare state and a prosperous industrial economy, to regulate the conduct of urban youth, [*PG34]contain the mentally ill, depress the contraband drug market, and otherwise provide social and economic security.181

Many of the reforms enacted after 9/11 challenge us to consider the extent to which counterterrorism has become an organizing strategy for a nation in crisis or has, at least, exacerbated the insecurity that crime control-centered governance was intended to alleviate through superior risk management. On the one hand, because the impact—indeed, the central purpose—of terrorism is the creation of extreme insecurity, the 9/11 attacks appear to have reinforced the primacy of harsh criminal punitiveness and aggressive law enforcement toward noncitizens as tools of governance. This is consistent with the criminalization of asylum seekers, zero-tolerance of a broad spectrum of immigration violations mostly unrelated to terrorism, the heavy utilization of immigration detention, and other forms of custody discussed above. It also explains the aggressive deportation of noncitizens with criminal backgrounds through DHS initiatives such as Operation Predator and the Alien Absconder Initiative.

On the other hand, several trends suggest that terrorism—
perceived as a hypercrime justifying the most repressive interventions, including the sacrifice of noncitizens’ civil rights and civil liberties—has the potential to become a new avenue for governance. Previously, the punishment of crime seemed to be subsuming the priorities of other systems of social regulation like immigration, juvenile justice, education, and child welfare.182 Now the prevention of terrorism and the strengthening of national security are setting the priorities for the immigration and prison systems. Like fighting crime, counterterrorism has become an all-encompassing goal, with which other systems of regulations are realigning themselves. After 9/11, this realignment is evident both structurally and substantively. On a structural level, the DHS, charged with defending the United States against terrorism, subsumed the immigration system when a large portion of the federal government was reorganized under the Homeland Security Act of 2002.183

In the twenty years before the attacks, crime control monopolized social services systems such as the juvenile justice system, the child welfare system, and the deportation system.184 Since the attacks, however, counterterrorism has caused or justified many reforms and policy re[*PG35]versals within the immigration and criminal justice systems.185 Once excused on the basis of necessity, document fraud by asylum seekers is referred to federal prosecutors for criminal prosecution. And matters of religious practice in U.S. prisons—arguably the most constitutionally protected freedom in prison after decades of judicial assault on prisoner rights—are scrutinized through the lens of counterterrorism. After 9/11, many Muslim religious leaders, or imams, ministering in New York State prisons were targeted for expulsion for adhering to an Islamic sect characterized as extreme and anti-American.186

The War on Terror has a pronounced crime control agenda for several reasons. From the outset, the White House treated terrorist attacks—the 1993 bombing of the World Trade Center, the 2000 bombing of the U.S.S. Cole, and the 1998 bombing of two U.S. Embassies in East Africa—as criminal matters, rather than acts of war, in efforts to “depoliticize” and “delegitimate” the acts.187 Moreover, after the 2001 attacks, the White House emphasized the linkages between drug trafficking and terrorism in a campaign against narco-terrorism. The White House Office of National Drug Control Policy officially stepped into the War on Terror on February 3, 2002, when two of its commercials, aired during Super Bowl XXXVI, appeared during the game’s broadcast.188 Although the White House’s narco-terrorism campaign has since been repealed, the USA PATRIOT Act casts law enforcement resources in the direction of financial crimes, including drug money laundering, in support of terrorist activities.189

Finally, crime control has been incorporated into the mission of the DHS. The mission of the DHS is defined statutorily as preventing [*PG36]and responding to terrorism within the United States and reducing the United States’ vulnerability to terrorism.190 This mission, however, has had broad implications for crime control. The DHS has become involved in a broad spectrum of criminal investigations and crime control initiatives that were the traditional domain of criminal law enforcement. For example, the Arizona Border Control Initiative (investigating and combating human smuggling)191 and Operation Cornerstone (investigating and prosecuting money laundering crimes)192 bear clear relations to immigration control or counterterrorism. Others, however, employ the broad resources of homeland security to perform functions more akin to police work. Through Operation Predator, for instance, the DHS identifies, prosecutes, and (in the case of noncitizens) deports child pornographers, rescues children depicted in pornography, and assists in the prosecution of child pornography distributors.193

The War on Terror is, furthermore, the primary justification for the proposed Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act.194 The CLEAR Act blurs distinctions between illegal aliens, criminal aliens, and terrorists by giving state and local law enforcement officers the authority to arrest and detain criminal and illegal aliens in the normal course of their duties, and requires that the names of individuals violating civil immigration orders be added to the National Criminal Information Center (NCIC) database accessible from patrol cars.195 The bill’s original sponsor, Representative Charlie Norwood, has characterized the proposed legislation as a significant step toward combating America’s criminal alien crisis and apprehending dangerous potential terrorists.196

[*PG37] In addition to its crime control functions, the War on Terror rationalizes the governance of noncitizens in other contexts. As the case of one refugee illustrates, even a tenuous connection to the War on Terror can justify the punitive treatment of immigrants with no criminal history. David Joseph was neither a criminal nor a terrorist; he was a Haitian refugee who sought asylum in the United States and ended up in detention for nearly two years.197 Although both an immigration judge and the Board of Immigration Appeals ruled that Joseph should be released on bond pending a final determination of his asylum petition, Attorney General John Ashcroft blocked his release, thus drastically expanding government detention authority.198 The grounds for Ashcroft’s decision were completely unrelated to any danger Joseph might pose as either a terrorist or a criminal. Instead, his intervention was based on the belief that releasing Joseph would encourage a refugee flow from Haiti that might, in turn, jeopardize U.S. national security, should terrorists from Pakistan or other Arab or Muslim countries choose Haiti as a staging ground for infiltrating the United States undetected.199 Ultimately, Joseph was deported back to Haiti, just three weeks shy of a full two years in detention.200

[*PG38] Although harsh immigration legislation passed in 1996 gave Attorney General Ashcroft broad authority to deny bond to noncitizens in deportation and asylum proceedings with little judicial review, this was the first time he denied bond to an immigrant with no link to terrorism by invoking broader security concerns.201 Attorney General Ashcroft not only directed immigration judges to deny bond to all Haitian boat people seeking asylum, but also directed immigration judges to give credence to any executive branch assertions of “significant national security interests” in future bond proceedings.202 Notwithstanding the government’s actual knowledge that Joseph was neither a criminal nor a terrorist, he refused to individually assess risk in this case, preferring a blanket policy of denying bond to all Haitian boat people by citing national security concerns.203 Factoring in the historical reluctance of the United States to absorb refugees from Haiti when refugees from other Caribbean countries—particularly Cuba—have been greeted with open arms,204 counterterrorism as a rationale for Joseph’s detention justifies a governing policy that punishes Haitians who dare to seek refuge in the United States and sends a message to those who might follow.

B.  Advancing Homeland Security by Apprehending Criminal Aliens: Homeland Security as Crime Control

In the War on Drugs, illegal aliens became criminal aliens. Criminal aliens became uniformly perceived as a threat to public safety. After the attacks of September 11, public safety became national security. And national security has become homeland security.

1.  Illegal Aliens Became Criminal Aliens

Prior to the criminalization of immigration law under the War on Drugs and welfare reform (and now under the War on Terror), illegal immigration was commonly analyzed as a problem of labor regulation rather than crime control.205 Illegal immigrants traditionally faced hostility in border states where they placed greater demands on welfare and other social benefit systems.206 At a national level, however, the [*PG39]country was fairly sympathetic to the plight of Mexicans who crossed the border illegally to work.207 They were perceived as poor but decent people doing what was necessary to secure a brighter future for their families.208 However, during the 1980s and 1990s, immigration restrictionists such as Peter Brimelow, Wayne Lutton, and John Taunton worked to link the crime crisis that was transforming America’s urban areas to the presence of illegal immigrants. Lutton and Taunton characterized illegal aliens as inherently criminal. To them, “all illegal aliens show at least some propensity for crime by the very presence, possible only through the violation of at least one law.”209 As perceptions of illegal immigrants shifted from undocumented workers to dangerous criminals, illegal immigrants became equated with criminal aliens.

2.  Criminal Aliens Became a Present Threat to Public Safety

Immigration reforms enacted in the late 1980s and 90s mandated deportation and detention for most criminal aliens with few avenues for relief from either deportation or detention based upon individual equities. By eliminating traditional avenues of relief from deportation and mandating the imprisonment of criminal aliens pending deportation, Congress mandated zero-tolerance of most categories of criminal aliens. Detained criminal aliens are now subject to disciplinary treatment on par with those in criminal detention.210 To support mandatory detention, the U.S. government cites its duty to protect the public from the risk of future criminal activity by aliens.211 But by [*PG40]narrowly restricting individualized judicial inquiry into detention and deportation circumstances—such as questions of rehabilitation, incentive (or lack thereof) to commit a crime—deportable criminal aliens are uniformly assumed to be predisposed to re-offend, thereby constituting a present threat to public safety.212

3.  Public Safety Is National Security

The White House asserts that the Department of Homeland Security was created with one single overriding responsibility: to make America more secure by “unifying once-fragmented Federal functions in a single agency dedicated to protecting America from terrorism.”213 Consolidating the law enforcement arm of immigration control, customs, border control, and other resources under the umbrella of the DHS, both acknowledged the reality of the convergence of crime and immigration control and created a situation in which traditional distinctions between crime and immigration control would be blurred in advancing the War on Terror. ICE, the largest investigative arm of the DHS’s Border and Transportation Security Directorate (BTS), employs over 20,000 individuals.214 Homeland Security officials openly acknowledge that the job of deporting noncitizen criminal offenders is easier when accomplished with the vast array of law enforcement resources [*PG41]available under the DHS.215 Ridding the country of foreign nationals with criminal convictions and preventing terrorism has become a unified, seamless enterprise: both criminal aliens and terrorists threaten the security of the homeland. As ICE Acting Assistant Secretary Michael J. Garcia stated, “As a new agency under the Department of Homeland Security, ICE is committed to ensuring the safety of the American public. Reducing the number of dangerous criminal aliens hiding in this country is a crucial part of that mission.”216 That the War on Terror has advanced the interdependence of the crime control and immigration control systems is evident in the expansive scope of the department’s mission.

The War on Terrorism has broadly recast the War on Drugs in a light favorable to anti-terrorist initiatives through the rehabilitation and defense of drug war legal enforcement procedures that have become useful in combating terrorism. In United States v. Alvarez-Machain—recently argued before the U.S. Supreme Court—the U.S. government sought to rehabilitate law enforcement methods that the Court of Appeals for the Ninth Circuit found to have constituted torts and violated basic human rights, and therefore exposed the government to liability.217 The Bush administration fought to overturn this holding and a subsequent damages award against the government by arguing that the case “has the potential to dramatically limit [the government’s] power to fight the war on terror.”218

The case emerged out of the U.S. government’s indictment of Humberto Alvarez-Machain, a Mexican physician, for his alleged role in the murder and torture of a U.S. drug enforcement agent in Mexico. When Mexico refused to extradite the defendant, the U.S. government kidnapped him and brought him to the United States with the aid of hired bounty hunters and a U.S. Mexican agent.219 The case was tried in 1992, after the defendant had spent two years in pretrial [*PG42]detention220. At the close of the prosecution’s case, the judge acquitted Alvarez-Machain of all charges, finding the government’s case founded in “wild speculation.”221 Alvarez-Machain returned to Mexico a free man, and promptly sued both the United States under the Federal Tort Claims Act222 (claiming that DEA agents have no authority to carry out arrests on foreign soil) and the Mexican agent of the United States under the Alien Tort Statute223 (claiming that his arrest was arbitrary and therefore violated international human rights law). The United States appealed Alvarez-Machain’s Ninth Circuit victory and modest $25,000 award. As the news media observed, “What started out as a drug case for the U.S. government in 1990 . . . has been transformed into a terrorism case in 2004.”224 In June 2004, the Supreme Court reversed the Ninth Circuit’s decision,225 thereby insulating the federal government from liability for exercising an arrest power likely to be employed again within the context of counterterrorism.

Traditional distinctions between illegal aliens, criminal aliens and terrorists have been blurred by counterterrorism policies that seek to strengthen national security by embracing varied and broad crime control and social welfare reform agendas, including drug control, zero tolerance crime prevention and the purging of an illegal immigrant population perceived as undeserving and costly. The lumping together of these varied categories of aliens, and removing them based on their precarious citizenship status has not only reconfigured the immigration system, but also altered the criminal justice system in ways that will not be understood fully for many years.

Conclusion

The INA has been compared to the tax code in technicality and complexity.226 Since the 1920s, the U.S. government employed non-traditional approaches to controlling organized crime that included [*PG43]vigorous enforcement of tax laws.227 High-ranking Mafia leaders who had insulated themselves so effectively as to evade prosecution for criminal acts committed by their organizations, were nabbed by Treasury officials for violations of the federal tax code.228 These prosecutions for tax evasion underscored the efficacy of a primarily regulatory, administrative legal apparatus to achieve significant penological objectives.229 Likewise, after September 11, immigration law functions as a powerful adjunct to the criminal justice system in its pursuit not only of terrorists, but of a host of objectives, including the apprehension, incarceration, and expulsion of undocumented workers and noncitizens with criminal convictions, some of whom are long-term permanent residents with remote criminal convictions. Clearly, the INA’s ability to achieve similarly punitive outcomes among disparate immigrant populations makes it possible to argue that the United States is more secure simply because more members of a population perceived as threatening have been apprehended, detained, and deported.

Should the success of counterterrorism measures be judged by the number of noncitizens being incarcerated and deported? Does the availability of narrow avenues of relief from harsh immigration consequences for informants produce credible intelligence? To what extent does the resurgence of racial profiling in immigration law enforcement merely reinforce harmful stereotypes with no clear added security benefit? To what extent is the nation made more secure when its alien population is subject to harsh, criminally punitive sanctions for relatively minor criminal or immigration transgressions? These are emergent questions whose contours have yet to be sharply defined.

?? ??