New York -- Thousands of American Muslims and activists from progressive groups will march on the White House on Monday in a last-ditch effort to persuade Barack Obama to dismantle a discriminatory program that singled out Arabs and Muslims for surveillance, before it falls into the hands of Donald Trump.
Obama has less than six weeks to rescind the regulatory framework of the National Security Entry-Exit Registration System (NSEERs), an openly discriminatory registry that was introduced in the wake of 9/11 and mothballed in 2011. Civil rights groups fear that should the program still be in place when Trump enters the White House on 20 January he could revive it very quickly, making his threat to impose a database of Muslims a reality.
Talks have been proceeding at the highest levels of the Obama administration, involving senior officials from both White House and Department of Homeland Security. The Guardian understands that scrapping NSEERs is actively being considered within the administration as one of the most concrete steps that the current president could take to protect vulnerable groups and individuals from the threatened actions of his successor.
Organisers hope that the march, which will proceed from the Department of Justice at 950 Pennsylvania Avenue at 1.15pm and end in Lafayette Park outside the White House, will be the final nudge that gets Obama over the line. Several of the largest progressive and civil rights groups will be participating, including the ACLU, MoveOn.org, Desis Rising Up & Moving (Drum) and CREDO.
Petitions calling on Obama to tear up NSEERs have also been started by MoveOn.org and Drum, CREDO, ACLU, Bend the Arc Jewish Action and MomsRising, and have already attracted more than 280,000 signatures. The petitions come on the back of a joint letter from 51 Congress members appealing to Obama to rescind the scheme.
Trump made a threat to ban all Muslims entering the US a centerpiece of his presidential campaign. He later amended that to propose introducing “extreme vetting” of newcomers with a focus on a number of identified countries deemed a terrorism threat.
NSEERs would allow the new president to carry out that threat of “extreme vetting” within days of forming his new administration. Kris Kobach, one of the original architects of NSEERs who is now an influential adviser to the Trump transition team, proposed last month as his No 1 priority for homeland security that he would “update and reintroduce” the program.
NSEERs was created a year after 9/11 by the DoJ as a way of tracking the movements of people coming into and out of the US from specific countries. Some 25 countries were singled out for special treatment, 24 of which were majority Arab or Muslim.
Individuals without immigrant visas arriving in the country from those 25 countries were required to provide fingerprints and a photograph to the Department of Homeland Security (DHS). If they stayed longer than 30 days, they were forced to visit a federal government office where they would be interrogated.
Family members would disappear in the middle of the night, to be thrown into overcrowded jails and then deported. Some 14,000 people on the registry were placed into deportation proceedings.
John Ashcroft, the then US attorney general who introduced NSEERs under the Bush administration, called it a “vital line of defense in the war against terrorism” that would “expand substantially America’s scrutiny of those foreign visitors who may pose a national security concern”.
But it proved entirely ineffective. More than 80,000 people, almost all of them Muslim or Arab, were forced to sign up to the scheme in a way that spread fear and resentment through Muslim American communities across the US, with nothing to show for it.
“NSEERs was a completely failed counterterrorism tool,” said Joanne Lin, legislative counsel with the ACLU. “It was in effect for nearly a decade, but NSEERS didn’t yield a single terrorism conviction. Instead it alienated Muslim and Arab American communities around the country who saw their husbands, uncles, brothers appear for registration, for no reason than their nationality.”
Professor Shoba Sivaprasad Wadhia, director of the Center for Immigrants’ Rights clinic at the Pennsylvania State University, said, “The NSEERs program was counter-productive, discriminatory and costly. It was discredited by leaders across the board.”
NSEERs fell into abeyance in 2011 after its value to counterterrorist agencies was called into question. It was replaced by an upgraded system based on biometrics that allowed for the screening of all newcomers to the US, not just Muslims and Arabs, removing its discriminatory basis.
In 2012, the Department of Homeland Security’s own watchdog, the inspector general, issued a report calling for the program to be torn down. He found the Muslim database to be “unreliable” and “obsolete”, and concluded that DHS should “dismantle the vestiges of the program”.
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But that never happened. The program was effectively halted by removing the names of the 25 targeted countries, but the regulatory framework of NSEERs was left standing.
Civil rights groups now fear that if Trump inherits it he could very easily start it back up simply by reinstating the country names into the system.
So it falls to Obama in the dying days of his presidency to decide whether or not to dismantle the disused shell of the program. He could do so by issuing a “notice and comment rule” announcing the end of the scheme, but that would require a 30-day public consultation period which is now all but impossible.
Alternatively, he could claim an exemption that would allow him to scrap NSEERs without first going to the public. By doing that, and by rescinding the regulatory framework altogether, he would force the incoming Trump administration to start from scratch in rebuilding a Muslim registry.
The process of rebuilding a Muslim registry could be cumbersome for Trump and fraught with delays. More importantly, it would force the new president to face public scrutiny in explaining why he was reintroducing a surveillance scheme that was openly discriminatory and had been found to be unworkable.
“It would put the responsibility for the registry squarely on the shoulders of the new administration. That’s why Obama should do the right thing and wipe this program clean,” Wadhia said.