Advertisement
The unchecked executive power commanding masked border agents in Chicago, Minneapolis, and rural communities across the US has been decades in the making.
In 1986, a secret memo leaked an “Alien Terrorists and Undesirables” border control plan to register and detain “alien activists” who are “engaged in acts of international terrorism.” The report opens with these words:
The government of the United States has an obligation to protect its interests, and those of its citizens, throughout the world … Nowhere is this obligation more difficult than here at home, where our constitutional rights and privileges, and our democratic processes and institutions must not be compromised or sacrificed in fulfillment of that duty.
Written long after the civil rights era and before September 11, the report affirms that the government must protect and not violate rights. At the same time, the report subtly positions constitutional rights as obstacles to security. That tension between constitutionalism and security was at play a decade later, in 1996, when lawmakers built a new infrastructure through the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In so doing, they repurposed the immigration system to create legal grey zones and to expand executive power.
Three earlier moments of attempted legal overreach converged in the final passage of the AEDPA and the IIRIRA. From these converging moments, we can see that the infrastructure currently used by Immigration and Customs Enforcement (ICE) was not erected through overt authoritarian laws, but by fusing the War on Crime, the War on Immigrants, and the War on Terror, all in the name of safety and protection. Strikingly, these moments also reveal how lawmakers—including Chuck Schumer, Joe Biden, and Bill Clinton—invoked civil rights ideals while they narrowed legal protections from detention, deportation, policing, and unchecked executive power.
Looking back, we can see how the border militarization of the 1990s shifted: first to border security’s expansion to the interior and throughout the world after 9/11; next to the current overreach of border agents into the private sphere, through surveillance, psychological tactics and disappearances. But each of these shifts, including today’s devastating ICE campaigns, are all built on the foundation laid by AEDPA and IIRIRA three decades ago.
Building Blocks of Infrastructure: AEDPA’s Three Convergences
1. Restricting Habeas Corpus as a Backlash Against the Prisoner Rights Movement
In 1995, Representative Bill McCullom, a Republican from Florida, introduced HR 3: Taking Back Our Streets Act. McCullom’s bill sought to expedite death penalty cases by “reforming” the writ of habeas corpus. Habeas corpus, also known as “The Great Writ,” prevents the government from disappearing or detaining people indefinitely without a legal justification. (Suspension is allowed in extreme cases like rebellion or invasion.) It requires the government to justify a person’s imprisonment and detention in court, and to release that person if the detention is unlawful.
During the prisoner rights movement of the 1960s and ’70s, incarcerated activists used habeas corpus to challenge their imprisonment. Writ writers or “jailhouse” lawyers prepared writs of habeas corpus for themselves and others to contest abusive prison conditions and inhumane treatment. Detained Cuban and Haitian refugees in the 1980s made use of the same tools to challenge their detention in US prisons. (After 9/11, this strategy was also used to challenge detention at Guantanamo. And it is currently used today to challenge detention when agencies within the Department of Homeland Security, such as ICE, disappear people.)
But in response to the prisoner rights movements of the 1960s through 1980s, Republicans and Democrats began restricting the use of habeas corpus, especially in death penalty cases, in the late 1980s and early ’90s. By this time, use of the death penalty had dwindled. Indeed, since the end of World War II, many countries had abolished the death penalty because of its association with fascism. Yet starting in the late 1980s in the United States, the death penalty began making a comeback as a cost-saving measure in an overcrowded prison system.
Republicans argued that limiting habeas corpus prevented people on death row from challenging their cases through lengthy appeals. And Democrats—like then-senator Joe Biden—accepted the provisions as a public safety issue and political strategy, so as to help Democrats take back the issue of crime from the GOP and appear tougher on crime.
And so, by the late 1980s and early 1990s, bipartisan political coalitions began framing habeas appeals as an abuse of the system. They justified restricting habeas corpus as a way to speed up executions, reduce prison overcrowding, and weaken constitutional protections that the police lobby argued “handcuffed” law enforcement.
It was within this context that McCullom introduced the Taking Back Our Streets Act in 1995. At its core, the bill sought to weaken the legacy of the prisoner rights movement’s challenges to state violence. Arguing that defendants in death penalty cases “abused” the writ of habeas corpus through ongoing appeals, McCullom proposed to restrict its use.
Ultimately, the bill died in Congress. Yet, these same habeas corpus restrictions proposed by McCullom reappeared in the AEDPA, which Clinton signed into law one year later.
2. Targeting “Criminal Aliens” to Contain the Rights Revolution in Immigration
Soon after McCullom sponsored Taking Back Our Streets, he introduced HR 668, the Criminal Alien Deportation Improvements Act, on January 25, 1995, to expand deportation for incarcerated refugees and immigrants swept up in the War on Drugs. This bill sought to speed up deportations and bypass the immigration courts, deport permanent residents with convictions, authorize wiretaps in smuggling investigations, expand deportation for crimes of moral turpitude, and support prisoner transfer to other countries.
During the Reagan era of the 1980s and into the 1990s, bills targeting “criminal aliens” emerged in the context of overcrowded prisons. In 1981, Ronald Reagan began detaining asylum seekers from Haiti, Cuba, and Central America, which created a crisis of overcrowding in jails and prisons. These immigrant detainees protested the inhumane conditions in which they were held captive. Building on the legacy of the prisoner rights movements, they challenged their overcrowded confinement through hunger strikes and civil rights litigation, invoking the writ of habeas corpus and anti-discrimination law.
Then, Reagan’s War on Drugs (and, specifically, the mandatory minimum sentences from the 1986 Anti-Drug Abuse Act), packed already overcrowded prisons with mostly Black and Latino youth for low-level drug offenses. Civil rights lawsuits and court orders forced states to reduce prison populations and overcrowded conditions on grounds that they violated the eighth amendment prohibitions on cruel and unusual punishment. As lawmakers sought ways to relieve overcrowding and expand prison capacity, one proposal pushed to create a Criminal Alien Program designed to purge those noncitizens swept up in the War on Drugs through deportation.
This ushered in an era when so-called “Criminal aliens” became new enforcement targets. In 1988, there were 6,622 noncitizens in federal prisons (out of 49,928) for mostly low-level drug offenses and with no prior record. A majority were legal permanent residents with protections in the system and drew on civil rights law to challenge their detention and deportations. Implementing the criminal alien program required rewriting immigration law to purge noncitizens from jails and prisons.
Bills targeting criminal aliens sought to bypass the immigration courts and to limit the use of civil rights frameworks in immigration law. Those targeted were refugees, asylum seekers, and legal permanent residents, and they all used civil rights law and habeas corpus to challenge detention and deportation. Lawmakers sought to restructure immigration law to restrict the legal tools that immigrants could use to challenge state power.
McCullom’s Criminal Alien Deportation Improvements Act died in Congress too. Yet the bill’s most punitive provisions were also written into AEDPA.
Rather than suspend the Constitution, lawmakers went around it—by harnessing the immigration system.
3. Harnessing the Immigration System to Suppress Palestinian Dissent
In 1995, then-representative Chuck Schumer, Democrat from New York, introduced the Omnibus Counterterrorism Act (HR 896), which targeted “alien terrorists” in the United States for providing “material support” to organizations that opposed US support of Israel and “undermine the peaceful resolution of disputes in the Middle East and other troubled regions.” In a longer history of suppressing pro-Palestine activism, this bill targeted mostly Palestinian and Arab American student activists who expressed support for Palestine during the first Intifada (1987–93), the grassroots popular uprising against the Israeli occupation and settlements in the West Bank and Gaza that led to the Oslo Accords (1993–6).
Importantly, Schumer’s Omnibus Counterterrorism Act proposed leveraging the immigration system as a tool against domestic terrorism, as opposed to the criminal legal system (where constitutional protections are stronger). Immigration authority rests on the plenary power doctrine, which grants the federal government broad power to exclude, deport, or deny rights. By harnessing the immigration system, the state could rely on secret evidence, expanded surveillance, and deportation proceedings without the same constitutional constraints. Schumer’s bill attempted to use the immigration system’s broad powers to suppress pro-Palestine activism, without being encumbered by the constitution.
The first hearing on the Omnibus Counterterrorism Act occurred on May 4, 1995, two weeks after the Oklahoma City bombing on April 19. During that first hearing, the bill was widely criticized for concerns about due process, free speech, and Fourth Amendment rights.1 “Are we going to allow deportations based on secret evidence?” asked one ranking House minority member. “Are we going to expand wiretapping authority?” Representative Schumer defended his bill, arguing that “noncitizens do not, and should not, have rights … and that the deportation proceedings are civil proceedings, not criminal trials.”
Constitutional protections apply to persons, not citizens, but Schumer’s framing prioritized citizens. He also acknowledged different sources of authority and rights in both systems and supported using the immigration system as a weapon or tool against domestic terrorism.
After the Oklahoma City bombing, Representative Henry Hyde, a Republican from Illinois, incorporated Schumer’s “domestic terrorism” provisions into a new bill: HR 1710, the Comprehensive Antiterrorism Act. This bill included harsh measures aimed at deporting and denying asylum to immigrants with membership in designated “terrorist organizations.” The “alien terrorist” and “criminal alien” provisions were folded into HR 2703 and, ultimately, S. 735, which would become AEDPA.
Legislators went on record, admitting that the Oklahoma City bombing was caused by “our own people,” not “alien terrorists.”2 Nevertheless, lawmakers invoked the Oklahoma City bombings to push the legislation through. And on April 24, 1996, Bill Clinton signed AEDPA into law.
Critics argued that AEDPA restricted habeas corpus and weakened constitutional protections in exchange for a “quick ‘solution’ to terrorism.” AEDPA also authorized detention, wiretapping, secret evidence in removal proceedings, and limits on relief from deportation and judicial review for immigrants designated as “terrorists” or “criminal aliens.” It also recharacterized misdemeanors as aggravated felonies. All of which ushered in a punitive turn in the immigration system, which blurred the lines between immigration and crime control.3
AEDPA itself was not even an immigration law, but it laid the foundation for the passage of IIRIRA, which fundamentally transformed immigration enforcement through greater cooperation with other law enforcement agencies, as well as the expansion of imprisonment, detention, deportation, and limits on judicial review.
By 2001, mobilization against AEDPA and IIRIRA gained momentum, but the attacks on September 11 thwarted any efforts to repeal or amend the laws. After the creation of the Department of Homeland Security in 2003, Customs and Border Protection (CBP) and ICE became the largest enforcement agencies, and their funding has only grown.
Where We Are Today
Across these three separate moments, we can see how lawmakers fused earlier bills aimed at suppressing dissent. They restricted the use of habeas corpus and mandated detention and “criminal alien deportations” and narrowed paths to challenging imprisonment, detention and deportation. “Counterterrorism” measures went farther to deploy the immigration system, with fewer constitutional protections, as a tool to target anyone and everyone with a criminal or terrorist designation.
What emerged in the 1990s, then, set the stage for a form of what Jothie Rajah calls “authoritarian rule of law”: a legal infrastructure that expands state power not outside the law but through the strategic redesign of it. Rather than suspend the Constitution, lawmakers went around it—by harnessing the immigration system. Through the AEDPA and IIRIRA, the Democrats and Republicans together built an infrastructure in which immigration law became a flexible tool for expanding executive power beyond immigration.
For decades now, the United States has relied on this infrastructure that appears to operate within a legal framework (in this case, of the immigration system). Immigration law has been fundamentally rewritten—by a bipartisan liberal establishment—to carry out authoritarian control by suppressing dissent, controlling civil society, and justifying its power. And it is this power, as Stephen Miller let slip, that orders masked border agents to expand border policing into the private sphere, through home raids in the middle of the night and disappearances, but to suppress political dissent here and throughout the world. 
The author wishes to thank Ernesto Macias, John O’Malley, and the editorial team at Public Books.
This article was commissioned by A. Naomi Paik and Catherine S. Ramírez.
