Here is your freedom of association
This is a very dangerous precedent, and I believe that the New York Civil Liberties Union is being far too sanguine about the import of it.
“This decision is in keeping with a historical pattern of judicial rulings in times of high national anxiety when courts have articulated a legal standard that protects civil liberties, but have applied that standard to sustain government actions that interfere with individual rights,” Lieberman said. “Just as the landmark 1919 Schenck case established the clear and present danger standard under which a Socialist was jailed for distributing an anti-draft flier, but which was later used to prevent the government from criminalizing speech, today’s decision will likely have positive reverberations in the future.”
Positive reverberations?! Such as giving us that nauseating canard about shouting fire in a crowded theater? Such as the nearly ubiquitous supposition that Schenck ‘proved’ the government can, indeed, limit the right of free speech? That its putative right to limit free speech is even greater during war time? That the 1918 Sedition Act is constitutional? Chiz, chiz…I think I can do without more such positive reverberations.
The case heard in NY concerns several dozen Muslim Americans who in late 2004 attended a large convention in Toronto, "Reviving the Islamic Spirit". When they returned to the US, though their passports were in order, they were detained for long periods, searched, interrogated by DHS officials, harassed, and even photographed and fingerprinted.
Their crime? They’d attended a conference that was also attended by some non-Americans whom the US suspects of terrorist connections. From the Associated Press:
In late 2004, U.S. law enforcement agents became concerned that supporters of terror groups might try to attend several Islamic religious conferences, including the "Reviving Islamic Spirit" conference that drew 13,000 people to Toronto's SkyDome. So, as a precautionary measure, they instituted an unusual dragnet, instructing border agents to detain and search anyone entering the U.S. after attending one of these conferences abroad…
The government has not said how many people were searched trying to re-enter the U.S., but five of the Americans stopped in Lewiston sued, saying the government had infringed on their religious liberties and right to be free from unreasonable search and seizure.
NYCLU lawyer Christopher Dunn said the detainees were manhandled and intimidated during their long stays in customs.
"This is not just going through someone's bags," Dunn said. "This sort of guilt-by-association approach ... is not consistent with the First Amendment" of the U.S. Constitution, which guarantees basic freedoms.
This notion of guilt by association can of course be extended almost indefinitely, to peaceable assemblies both abroad (a pilgrimage to Jerusalem, say) and at home (a peace rally in Washington).
And what does guilt by association look like, in actual practice? In January 2005 the Buffalo News summarized some of the victims’ stories:
- Hassan Shibly, 18, says he was "led by three armed officers into a separate room for questioning and fingerprinting. In the room, he was told to stand face-first against the wall and spread his legs apart for a pat-down search. ‘I was just forced to go along. I refused, but they said legally I had no choice. We weren't treated as American citizens. We were treated as suspects.'"
- Sawsan Tabbaa, his mother, called being fingerprinted humiliating: "This was something I thought was only for criminals."
- Abeer Rizek, seven months' pregnant, said that border agents lifted her blouse to ascertain that she really was pregnant: "They patted everyone down. The whole thing was embarrassing, the whole ordeal."
The federal government’s defense of these outrages, delivered at an April 2007 hearing in New York, was grossly disingenuous:
The government was defended by Department of Justice attorney Lewis Yelin, who acknowledged that the stops had not been handled well but rejected the idea that travelers had been singled out because they were Muslim…
"Doesn't this look like profiling of Muslim-American citizens as they enter this country?" Judge Rosemary Pooler asked.
Yelin said it did not. "This could have been an airline pilots association meeting," he said, and attendees still would have been detained.
"If there was a non-Muslim CNN anchorman" returning from covering the event, Yelin said, "he would have been searched, too."
The federal government also claimed that there was no chilling effect on the victims’ rights to assembly because some of them had stated that they would be willing to attend such conferences in the future. Yes, that is how low the Justice Department has sunk under George Bush.
Despite these transparent lies, the panel of judges at the hearing reserved their severest skepticism for the argument by the New York Civil Liberties Union that the border searches were unconstitutional (which of course they were, on the face of it).
And yet DOJ lawyer Yelin even admitted during the hearing that DHS had put in place new regulations that would make such obnoxious searches less common, as a result of this incident. Indeed, in 2005 DHS admitted that the searches should never have occurred under federal policies.
The DHS inquiries will examine whether U.S. border agents incorrectly detained the Muslims by misusing a government database that is aimed at identifying potential terrorism suspects and violent gang members.
The list, which is kept by the FBI and is known as the Violent Gang and Terrorist Organization File (VGTOF), is part of a network of databases that have been compiled by U.S. agencies since the Sept. 11 attacks to monitor traffic at border crossings and airports.
The VGTOF list includes hundreds of names. It has been expanded during the past three years to include "associates" of suspected terrorists and gang leaders. The FBI acknowledges that in some cases, people have been flagged for increased scrutiny only because their names are similar to someone who has been targeted for surveillance, or because they unwittingly have had contact with the targets.
Under federal guidelines, such "associates" are not supposed to be detained or questioned. U.S. agents who come across them are merely supposed to make note of them as possible contacts in investigations.
Only a half-wit would justify trampling on constitutional rights in this way (apologies for linking to the vile Daniel Pipes, but he preserves information about earlier news stories which it’s impossible now to link to—revealing, for example, that during this incident a Pace University student, Miriam Soliman, was asked by a border guard whether the wire in her bra was a weapon; and that the Islamic scholar Hamza Yusuf Hanson, keynote speaker at the convention, stated "They asked me about the religion of my family and wanted to make photocopies of my notebook and other material.").
And yet, somehow, the panel of judges in NY found nothing illegal about the federal government harassing citizens at the border just because they’d taken it into their heads to attend a peaceable religious gathering.
U.S. immigration authorities acted constitutionally when they subjected dozens of people returning from an Islamic convention in Canada to screening tactics usually reserved for people suspected of being terrorists, an appeals court said Monday…
"We do not believe the extra hassle of being fingerprinted and photographed — for the sole purpose of having their identities verified — is a significant additional burden that turns an otherwise constitutional policy into one that is unconstitutional," a three-judge panel wrote.
At the risk of overusing this word, the court’s ruling in this case (PDF) is utterly perverse. To my mind, the ruling begins to go completely off the rails at p. 11, where the court argues that the establishment of the Department of Homeland Security changed everything.
DHS, it reasons, is tasked with keeping terrorists out of the US, and therefore any procedures it implements to achieve that (so the court believes) are legal “so long as [Customs and Border Patrol] is not violating the individual’s constitutional or other statutory rights.”
Then, at pp. 19 ff., the court rejects the government’s claim that these searches did not interfere in, or chill, the plaintiff’s free association rights.
So how in the world did the court reach such a perverse ruling in the end?
It determined (pp. 21 ff.) that the government had a compelling interest in keeping potential terrorists out of the country, that this interest was “unrelated to the suppression of ideas” [not even ideas associated with Islam, evidently—smintheus], and that this interest could not possibly have been achieved “through means significantly less restrictive of associational freedoms”.
Because the only way to tell whether a Muslim is a terrorist sympathizer is to photograph and fingerprint her, peer at her belly, and examine her bra.
crossposted from unbossed.com