Youths Take On Homeland Security

By Rebecca Onion, WireTap
Posted on May 24, 2005, Printed on December 21, 2009
http://www.alternet.org/story/22077/

Asmaa Elshinawy was on a holiday break road trip with her friends. The 20-year-old Brooklynite, a born-and-raised American citizen whose parents come from Egypt, decided to take a trip to Toronto to be part of a conference called Reviving the Islamic Spirit, held in December 2004. “I went with six girlfriends, and we rented a car from Jersey,” Asmaa, who works as an assistant at an early childhood center and wants to get a degree in speech therapy, says. They had a great time at the conference, and met countless new people.

At about 11:30 a.m. on the day they were slated to leave, Asmaa and her group got in their rental car in Toronto. At about 3 p.m., they reached the border between Canada and New York State. They didn’t leave the checkpoint until almost 9 pm -- with a new understanding, says Asmaa, of how the government views Muslims in America.

What happened to Asmaa, her friends, and dozens of other attendees of the conference at the border checkpoint is the subject of the lawsuit that she and four other co-plaintiffs are bringing against the national Department of Homeland Security. Border regulations, explains Udi Ofer, staff attorney at the NYCLU (New York Civil Liberties Union), allow agents to ask questions, look inside your car, ask you for your passport, and do a patdown. The search that the Buffalo group underwent “wasn’t routine because of how intrusive it was,” says Ofer. “We want to know what triggered that unusual behavior.”

The case doesn’t have a direct precedent, Ofer says. “This case combines several constitutional issues in one question. There is past law addressing when the government can punish you basically for engaging in religious expression. It’s clear that the government cannot do so unless it has a compelling interest that’s narrowly tailored.”

“And the second issue is watching what the government can do to a US citizen at the border,” Ofer continues. Under the Fourth Amendment, the government has authority to verify your citizenship and ask questions about what you were doing overseas. But to target people based solely on religious expression overseas? Your First Amendment rights should extend to that area.”

Unusual among lawsuits, this case doesn’t seek monetary damages. Rather, the plaintiffs want reassurance that people who leave the country to attend religious conferences, as they did, will not be detained on their return and treated, as Ofer says, “like criminals.”

Asmaa says that the official who came up to their car at the border asked where they were coming from. They said that they had been at an Islamic conference, and told him that they were all American citizens. The officer asked them to pull over into the customs building.

“I thought they were going to check our car for crops or something,” Asmaa remembers. “I thought I’d give them the benefit of the doubt, that this was a random search. But when I got into the building, I saw tens and twenties of Muslims -- women in hijabs, people who said As-Salaam-Alaikum to us. I thought, ‘This can’t be all of these Muslims’ lucky day.”

Asmaa and her friends, having waited for about two and a half hours, were clearly concerned about what was happening to them. Their confusion was compounded when they saw a couple of non-citizens who wanted to go shopping in Buffalo cross the border in about fifteen minutes flat. They asked one of the customs officials when it would be their turn. “Ma’am, this is not McDonald’s,” Asmaa remembers the official saying.

Hassan Shibley, 18, another plaintiff in the case who was at the checkpoint with his mother --also a plaintiff -- and two younger siblings, including a 3-year-old sister, had a similarly ominous experience with a rude customs official. One of his friends asked how long the wait would be, pointing out that some people had been there for four hours already. An official replied “Maybe we’ll keep you here for eight hours.” “I knew at that point that this was going to be an ordeal,” Hassan says. “My baby sister was crying, and there was an old couple with two baby kids in their laps. There was a young pregnant lady who was pretty sick. The bathrooms were outside, so if you had to go you went out in the freezing cold.”

Asmaa, Hassan and their friends weren’t allowed to use their cell phones to call their parents, or anybody else. After about five hours, Asmaa says, “They took us one by one inside the back and fingerprinted us, searched us. They asked me if the wire in my bra was a weapon. …The official also asked me how many pins I had in my hijab.”

Although Asmaa and her friends knew that the way they were being treated was wrong, she says, “I realized that if we didn't do it we weren't getting out of there any time soon. We were exhausted, and it was getting towards nine o’clock. Even though we were arguing and screaming and flipping out, they grabbed our hands and took our fingerprints. They took our pictures and searched us all physically.”

Hassan adds, “They took me into a separate room, made me empty out my pockets, put me against the wall. It was really rough, and they almost pushed me over. Then they took me in another room, took my fingerprints, took my picture—I wasn't even looking at the camera, they just snapped it right away. I asked them, ‘Can you at least tell me why I'm being put through this?’ and they wouldn't say anything.”

When Asmaa and her friends were finally allowed back out to their car, they found it turned upside down. “You know how you have a trash bag in your car during a road trip?” Asmaa asks. “They had gone through the trash, and then just left it on the floor. There were clementine peels all over the place. They’d taken out our video camera, everything.” The group was “hysterical, disoriented, crying,” Asmaa says. “We called CAIR (The Council on American-Islamic Relations) and the NYCLU from the car. It was a reality check to me. I realized that even though I'm a US citizen, there are still double standards for everything.”

The most ironic thing about this incident is that, by all accounts, the Reviving the Islamic Spirit conference was far from a militant gathering. It’s organized by college students, and focuses on ways in which the Islamic community can cooperate and contribute to mainstream society. The NYCLU complaint points out that the Premier of Ontario, Dalton McGuinty, “…expressed his best wishes for an inspirational conference, stating, ‘I applaud the thousands of enthusiastic young people who have come together this weekend in a spirit of optimism to explore ways in which Muslim youth can make a difference in the life of their community—and make the world a better place.’”

The complaint goes on to point out that Hamza Yusuf, an imam from California who was a keynote speaker at the conference, has advised President Bush several times on matters of American-Islamic interaction, and that Yusuf even “sat near First Lady Laura Bush during President Bush’s September 20, 2001 address to a joint session of Congress.” (At that time, Yusuf also said “Islam was hijacked on September 11, 2001, on that plane as an innocent victim.”) To the NYCLU, and the plaintiffs, the fact that Asmaa, Hassan and the others were targeted for having gone to this very officially sanctioned conference is all the more ominous.

Udi Ofer says that the NYCLU knew from the moment they started getting calls that “to litigate this case would be the morally right thing to do.” “Any time the government starts to infringe upon civil liberties,” he says, “it’s important to bring attention to it, so it doesn’t continue.” Arsalan Iftikhar, the national legal director of CAIR, which are acting as co-counsel on the suit (along with the NYCLU and the ACLU), says, “We believed very strongly in this case. We want to try to make sure that the constitution is applied equally to all Americans, regardless of religious affiliation.”

Ofer says that the case is at the beginning of its procedural journey. “We’ve filed the complaint now, so the government has a certain amount of time to respond. Typically the opposing party files a motion to dismiss, and then depending on what happens with that motion to dismiss, we'll see what happens. Instead of spending a bunch of money on the litigation, the government might be willing to agree to many of the things the lawsuit asks for.”

“What’s good about a lawsuit like this, if we get past the motion to dismiss,” Ofer adds, “is that through discovery, you can learn more about the government’s motives. When the government, through the press, has been asked, ‘What about the conference triggered this behavior?’, they have this kind of one line answer that, ‘The job of the Department of Homeland Security is to prevent terrorists from entering the nation’. Hopefully through this process, we can have more transparency about why they do what they do.”

Some conservatives (and some scared liberals!) might argue that the government is able to protect us from terrorists by having the power to look in likely places for them. If you can put aside the problematic destruction of civil liberties, another concern is that by putting resources into patting down good citizens like Hassan, Asmaa and the others, the government could be diverting resources and energy from more important cases. Hassan says he made this argument to one of the customs officials when he was at the checkpoint. “I asked ‘Why are you guys wasting time with us -- young kids and pregnant women -- while real criminals might be getting over the border?’ And one of the guys was sympathetic. He [said] ‘That's what I’m worried about, too,’ and then [added] ‘But I can't do anything about it, they won't listen to us.’”

Hassan, whose family came to the US from Syria when he was four, says, “What’s sad about this incident is that America is beginning to feel more like home every day. What we're worried about is that the civil rights of this country are being broken apart piece by piece. We’re bringing this suit because we want to protect the civil rights that we came to this country for in the first place.”

Rebecca Onion is a freelance writer who lives in Brooklyn.

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