Attorney General
Eric Holder is to be lauded for looking into the constitutionality of the New
York City Police Department’s wholesale snooping into the lives of people based
purely on their Muslim faith. Because Holder is a busy man, he could save a lot
of time by just pulling out the U.S. Constitution and reading it.
Unfortunately,
in the hysteria after 9/11, the executive branch, Congress, and the courts have
allowed police agencies — federal, state, and local — to conduct
extraconstitutional surveillance, search, and seizure. These actions have
muddled what spying should be considered clearly
unconstitutional.
The New York
City police conducted widespread warrantless spying and created police files on
Muslim individuals, businesses, mosques, and campus groups without any probable
cause that crimes had been committed. And this snooping went outside the police
department’s jurisdiction into Long Island, New Jersey, and Connecticut. The
police even sent an undercover agent on a whitewater-rafting trip by
students.
One would think
for Holder’s review that this case would be open and shut, but the courts have
allowed the executive branch to fearmonger its way into warrantless surveillance
and searches as a way of life in the post-9/11 world. The Fourth Amendment to
the Constitution states:
The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause [that a crime has been committed], supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
This amendment
was applied to localities and states by the 14th Amendment, which
states,
No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person of life, liberty, or
prosperity, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The New York
City police did not get warrants from the courts to spy on people merely because
they are Muslims, since they could not have gotten them; as the Constitution
says, probable cause of a crime being committed is needed for any judge to issue
such warrants. So the police did the spying without warrants. However, the
Fourth Amendment protection against unreasonable search and seizures — that is,
those without judicial warrants — does not have a “national security”
exemption.
Furthermore, the
Fourth Amendment requires that surveillance or searches have warrants stating
the specific place related to a crime that can be searched; that is, no general
warrants to search everything, as the British troops did during the bad old
colonial days, were allowed. Yet spying on people, businesses, mosques, and
campus groups just because they are Muslim smacks of a general, and thus
unconstitutional, search.
Finally, the
14th Amendment clearly gives equal protection under the laws to all people, no
matter their religion or politics. Selecting people for surveillance just
because they are Muslim is a flagrant violation of this provision — much as it
was when political activists (Vietnam War protesters and civil rights
proponents) were spied on in the 1960s and 1970s. So objecting to this provision
sticks up not only for the rights of Muslims, but for the rights of all
Americans.
The timeworn
excuse for bad police behavior — that if people, in this case Muslims, aren’t
doing anything wrong, they shouldn’t mind the government snooping into their
business — just doesn’t fly. People do have a right to privacy, the authorities
can and do often make mistakes in arresting innocent people as a result of such
unconstitutional snooping, and when people know the police are watching, it may
chill their lawful activities. For example, Muslims in New Jersey have become
reluctant to join Islam-based groups, pray at mosques, or patronize Muslim
restaurants or businesses for fear of being observed by police or being a victim
of guilt by association.
And not only is
widespread spying on the Muslim community unconstitutional, it is also
counterproductive for security. Alienating the Muslim community by such
over-the-top snooping induces suspicion of the police and a circling of the
wagons against them. As a result, the Islamic community will be more reluctant
to report suspicious behavior to the police.
Thus, as usual, no real conflict exists between upholding constitutional rights and making people secure, but you would never know it hearing the fearmongering by Mayor Michael Bloomberg and the New York City Police Department in defending this atrocious, authoritarian, and un-American domestic spying.
HJ/HJ
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