In a Michigan District Court on 11 June, Federal Judge Avern Cohn gave the green light to a lawsuit filed by the Council on American-Islamic Relations (CAIR) against the US Customs and Border Protection (CBP) and the FBI for the agencies’ repeated singling-out and interrogation of Muslim travelers.
Lawyers for the defense had attempted to have the suit thrown out. The case is a significant accomplishment for advocates of civil liberties who have long decried the dissolution of the rights of Muslim Americans.
“By allowing the suit to go forward the court stated that a policy of directing religious questions against travelers could violate the Constitution. This is the first time a court has said that, and that is a very important for us,” CAIR Staff Attorney Gadeir Abbas told me in a phone interview.
Allegations and evidence in case
CAIR’s complaint alleges that the Customs and Border Protection and the FBI systematically target Muslim travelers, subject them to harassing behaviors, and direct specific religious questions to them — thus violating the Fifth Amendment of the US Constitution’s guarantee of equal protection, and the First Amendment’s guarantee of freedom of religion.
The case involves four plaintiffs, all of whom have crossed the US-Canada border more than twenty times since 2008. Each time they cross the border they are asked a series of questions pertaining to their religious practice such as: How many times a day do you pray? Do you go to mosque for morning prayer? Which Islamic sect do you follow?
Plaintiffs were also repeatedly subjected to invasive body searches, detained for several hours and fingerprinted. Some plaintiffs crossing the border by car had their vehicles surrounded by CBP agents with their guns drawn. Two of the plaintiffs have stopped crossing the border altogether in order to avoid the humiliating treatment.
“Our plaintiffs would receive substantially similar questions every time they crossed the borders. It wasn’t the same agents, or the same time of year. This is the first indication of a pattern of peculiar behavior and questioning, which is really only explainable by some sort of reference to policy,” Abbas explained.
Furthermore, CAIR’s complaint submitted a series of government documents, obtained through a 2011 FOIA request, as evidence of the systematic religious questioning of Muslim Americans. Significantly, the documents reveal the pervasive questioning of Muslims at border crossings all over the US, in addition to an institutional knowledge of this practice.
One such document submitted is a legal memorandum from October 2010 that explores the legality of interrogating travelers about their religious beliefs. The memo was requested after the Department of Homeland Security and Customs and Border Protection had received many complaints of such questioning from Muslim American travelers.
Another document, an internal CBP memorandum, stated that FBI and CBP agents were “repeatedly questioning [Muslim travelers] … about their religious practices or other First Amendment protected activities, in violation of their civil right[s] or civil liberties.”
That memorandum went on to include several examples of questions asked of Muslims throughout the country, questions substantially similar to those that were asked of the plaintiffs.
“Directive in place”
Abbas explained the significance of these documents: “The court didn’t have to just take our plaintiffs’ word for, it could look at government documents and see that Muslim travelers in Miami, Buffalo, New York, Atlanta, Chicago, et cetera, were being asked the same types of questions about religious practices. When you get to that kind of frequency of substantially similar questions over geographically separated places, that indicates there’s a directive in place.”
That this case is going to trial — seeking a court injunction on the practice of directing religious questions to Muslim travelers — is a rare instance in which the judicial branch will review the government’s practice of monitoring and surveilling the Muslim American population.
Why the case can be brought now
“The practice of discriminating against Muslims is not new, but what is novel about this action is that there was an evidentiary basis that we had access to in order to demonstrate an institutionalized discriminatory practice. That’s what has allowed us to go to court, and possibly allowed the case to go forward,” Abbas said.
“What prevents there from being more challenges to law enforcement’s practices is the fact that secret information is unavailable to us so we can’t evaluate from a legal sense what we know to be true from an everyday sense,” Abbas added.
As I wrote on my Electronic Intifada blog last year, a California federal court dismissed a class action lawsuit brought against the FBI for surveilling Muslim communities in southern California, conceding to the government’s invocation of “state secrets” privilege.
Thus CAIR’s present case is significant for its successful breach of the secrecy surrounding government treatment of Muslims in the US.
Of note, Abbas explained that during hearings that took place last month, presiding Judge Avern Cohn compared the questioning of Muslim travelers at the border to New York City’s “Stop and Frisk” program, currently being challenged in court on the basis that it targets specific, though not Muslim, minority communities.
According to Abbas, the lawsuit against the discriminatory practices of New York City’s “Stop and Frisk” program “provided a precedent that the court looked to and used to determined how to proceed with our challenges. That is a promising thing that we see. When someone steps forward it provides institutions and communities opportunities to push things forward.”
Abbas emphasized that while Muslims were the first community to be affected by the broad surveillance powers that the government has assumed over the past dozen years, everyone is affected by its overreaching grasp. Recent revelations attesting to the extensiveness of the US government’s mechanisms of surveillance confirm Abbas’ point.
“Because we’re acting in the midst of a broad era that’s defined by the erosion of civil liberties, small steps have the potential to lead to greater impact.”