Global Intifada

Here are the relevant excerpts:

WASHINGTON (AP) — The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.

…

Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.

Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious.

Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person’s race or ethnicity.

…

The change, which is expected later this summer, is part of an update of Justice Department policies known as the attorney general guidelines. They are being overhauled amid the FBI’s transition from a traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.

…

The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.

FBI agents would not be allowed to eavesdrop on phone calls or dig deeply into personal data — such as the content of phone or e-mail records or bank statements — until a full investigation was opened.

…

Courts across the country have overturned criminal convictions when defendants showed they were targeted based on race. Racial profiling generally is considered a civil rights violation, and former Attorney General John Ashcroft condemned it in March 2001 as an “unconstitutional deprivation of equal protection under our Constitution.”

Read the rest of the article here.

The problem with this entire scheme is that it, contrary to the assertions of the Justice Department, violates the Constitution. The Fourth Amendment of the Constitution lays down the prohibition again unreasonable “searches and seizures” by the Federal government (the Supreme Court eventually extended the prohibition to the states through the Due Process clause of the Fourteenth Amendment in Mapp v. Ohio):

“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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Inherent within the Constitutional scheme is a presumption of innocence, which is why it mandates that searches and warrants be accompanied with either warrants with probable clause within them or, if the situation demands, just probable cause by itself. Under certain circumstances, a police officer doesn’t need even probable cause, such as when conducting a frisk (as opposed to search) in order to determine if a person has been carrying a weapon. In order to conduct a lawful frisk, the officer must have a reasonable suspicion that the suspect is carrying a weapon based upon specific and articulable facts. The underlying point is that, at the bare minimum, the onus of proving guilt is upon the state. If the evidence it acquires has been shown to violate the Fourth Amendment, it may be excluded during trial.

However, the entire Constitutional scheme itself may be overturned due to the Justice Department’s decision. I anticipate three potential justifications: (1) pundits engaging in legalese and all sorts of semantical gymnastics to show how the Constitution isn’t being violated, (2) pundits engaging in fear-mongering to the extreme to show how brazenly violating the Constitution is justifiable, or (3) Judges may try and create a new category of exceptions to the probable cause rule, probably based on a national security interest of some sort. Either way, once put in practice, it will take a long time to get rid of.

Also, I wonder if this is a violation of the Equal Protection clause of the Fourteenth Amendment which mandates that “no state shall deny . . . deny to a person the equal protection of the laws.” Although directed to states, the Supreme Court has applied it to the federal government if the right in question is deemed fundamental and if I’m not mistaken, the Fourth Amendment prohibition against unreasonable search and seizure is a fundamental right.

Lastly, I think its clear that this is probably going to be classified as a human rights violation when its applied by various human rights organizations, such as Human Rights Watch and Amnesty International, leading further credence that America as a state is less concerned with democracy and more with world domination and control of valuable resources.

If you want more information on how to respond to law enforcement officers in a variety of situations, check out the following publication by the American Civil Liberties Union entitled “Know Your Rights.”

Remember, just because the government is doing something, it is not always legal. It could be violating a statute, the Constitution, or international law. Don’t be afraid to stand up for your rights. Contact civil rights organizations such as the ACLU or CAIR if you think your rights have been violated. 

Share This