Freedom of association under attack by federal courts
- From: "Kickin' Ass and Takin' Names" <PopUlist349@xxxxxxxxxxx>
- Date: Thu, 29 Nov 2007 03:37:59 -0800 (PST)
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 by the US Court of Appeals for the Second Circuit (in
New York) 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. My apologies, by the way, for linking here to the vile
islamophobe Daniel Pipes, but he preserves information about earlier
news stories which it's impossible now to link to directly--news
accounts which reveal, 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 from the US Court of Appeals
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.
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. The exact expression the Court uses is
"in the wake of the creation of the Department of Homeland Security,"
as if it were talking about a hurricane that had devastated the entire
judicial landscape.
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 Protection] 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.), by applying the test enunciated in Roberts
v United States Jaycees, 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 presumed
to be 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.
.
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