Monday, November 26, 2007

Border searches following Islamic conference in Toronto did not violate Constitution

The terror threat continues to pre-occupy the Second Circuit Court of Appeals. This time it ruled that innocent Muslims who were searched at the U.S.-Canadian border following a three-day Islamic conference could not challenge the legality of those searches under the U.S. Constitution.

The case is Tabaa v. Chertoff, decided on November 26. It started when the Department of Homeland Security learned about an Islamic conference in Toronto scheduled for the final week of 2004. The government learned that individuals who were associated with terrorist organizations would be in attendance and that the conference would serve as a possible meeting place for terrorists. But not all in attendance (approximately 13,000) were terrorists. The five plaintiffs who were detained and searched upon entering the United States had no criminal records and the government had no reasonable suspicion that they had any terrorist ties. Since they attended the conference, however, they were subjected to extensive questioning about the conference and their alliances and they were also frisked and searched. Some claimed physical abuse during the detention. While the database no longer contains their fingerprints or photographs, the government continues to hold onto the plaintiffs' identifying information, i.e., their names, date of birth and address.

The Second Circuit held that the law provides no remedy for these plaintiffs, not even expungement of their personal information from the database. Although the Fourth Amendment prohibits unreasonable searches and seizures, the Supreme Court has granted the Federal government broad authority to conduct routine searches at the border. The question is whether this search is "routine" (presumed legal) or sufficiently invasive to require a showing of "reasonable suspicion" before conducting the search. While there may have been a stigma associated with aspects of the search, overall the search was not materially different from other border searches, and pat-down searches and fingerprinting/photographing are not too invasive in this context. While the searches lasted from 4-6 hours, that is more like the (legal) one-hours delay than the (illegal) overnight delays.

The cumulative effect of the search procedures at the border also does not violate the Constitution. The Court reasoned:

And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy – not overall inconvenience – we find that CBP’s searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

The plaintiffs also claimed that the searches violated their First Amendment right of association. The Second Circuit agreed that the plaintiffs did suffer a "cognizable burden" in that the searches may deter them from attending similar conferences in the future. But since the government had a compelling need for the searches (i.e., deterring a terrorist attack), the plaintiffs' rights give way to the need for border security. As it argued that known terrorists were going to attend the conference, the government also proved there was no other reasonable way to further this compelling interest other than to search everyone entering the United States. For you constitutional scholars out there, the Court of Appeals applied the Supreme Court's ruling seminal ruling on freedom of association, Roberts v. United States Jaycees, 468 U.s. 609 (1984), in this context. For these reasons, the Second Circuit also rejected the plaintiffs' argument that the searches violated their religious freedom.

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