Monday, December 1, 2008

The Constitution survives 9/11

A federal judge in the Eastern District of New York has held that two Arab men can sue federal agents for detaining them in August 2004 for engaging in innocuous behavior on a trans-Atlantic flight. In what may be the first case of its kind, Judge Block also held that Arab ethnicity has no relevance in determining whether a detention is supported by probable cause.

The case is Farag v. United States, 2008 WL 4965167, decided on November 24. Two Arab-Americans were flying from San Diego to New York City. They were friends but not sitting together. During the flight, one of the Arab men kept looking at his watch. The Arab men talked loudly to each other in a mixture of Arab and English. As they were not sitting together, they talked over the heads of passengers. One of the Arabs wanted to sit closer to his friend, so he asked two men if he could take the vacant seat between them. That arrangement would have cost the Arab man his window seat. These two men got suspicious and said no to the new seating arrangement. They got even more suspicious when the two Arabs moved their seats to another location on the plane without carrying their overhead baggage with them. Then, as the plane dallied on the tarmac upon landing, one of the Arab men deleted phone numbers from his cell phone.

The Arab men were actually upstanding fellows. One was a former police officer and corrections officer. The other one worked for General Electric and had a valid U.S. visa. The two men who sat near them -- whom one of the Arabs wanted to sit in between -- were actually counterterrorism agents. When the Arabs got off the plane, they were greeted by Port Authority Police Officers who were carrying shotguns. The Arab men were handcuffed and taken to the Port Authority police station, where they were interrogated for several hours, and they were not free to leave. As they were completely innocent, the Arab men were let go at 4:00 a.m., scared out of their wits.

The lawsuit against the federal agents raises a question that has not arisen since 9/11. Can federal agents take Arab ancestry into account in their decision to detain people suspected of terrorist activity? The reason for the question is obvious to anyone familiar with "reasonable suspicion" and "probable cause" analysis. The "unusual" events on the plane -- speaking in Arab and English, moving around to different seats, checking the time and other facially innocent events -- are not enough to detain for a terrorism investigation. There are too many rational explanations for this activity, and the judge in this case seems a little disturbed that the U.S. Attorney's office is trying to argue that this behavior alone creates reasonable suspicion to detain these men.

But what about the fact that they are Arab? Is that enough? No, says Judge Block, who notes that our world has changed since 9/11 in ways large and small. But it has not changed so much that the Constitution has been erased. Although the government argued that Arab ancestry is relevant because the 9/11 hijackers were Middle Eastern males, that is not enough. The government did cite a Supreme Court case from 1975, U.S. v. Brignoni-Ponce, 422 U.S. 873, which held in dicta that, while a border patrol agent could not make a traffic stop solely because of the apparent Mexican ancestry of the car's occupants, their ancestry could be a relevant factor. But Judge Block suggests that the precedential value of this decision has diminished greatly over the last 25 years, as more and more Hispanics live in the United States such that the statistical analysis relevant in 1975 is outdated today. Other federal courts have similarly revised the vitality of Brignoni-Ponce's analysis.

Writing on a fresh slate, Judge Block cites a scholarly analysis that notes "an increasing 'hostility to the use of race as a basis for police action under the Fourth Amendment." And you thought no one read law review articles. But law professors are not judges. So Judge Block says it himself: "Although this is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the Court cannot subscribe to the notion that in the wake of 9/11 this may now be permissible."

Federal judges like to include in their opinions language that reflects the gravity of issues like this to ensure that civil liberties must survive even the most horrible terrorist attack. Judge Block does so here: "The Court 'fully recognizes the gravity of the situation that confronts investigative officials of the United States as a consequence of the 9/11 attack, and that the mindset of of airline travelers has understandably been altered by 9/11. This justifiable apprehension must be assuaged by ensuring that security is strictly enforced, and by the passage of time without, hopefully, other episodic affronts to our country; but fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed."

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