by Ivan Eland
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 of 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, which can best point out the rare extremist plot in its midst, 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.
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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