November 26, 2007 — A federal appeals court today rejected a challenge brought by the New York Civil Liberties Union to a December 2004 special border operation under which law-abiding American citizens were treated as terrorists when they returned from a mainstream Muslim religious conference held in Toronto. In an opinion issued earlier today, the United States Court of Appeals dismissed a case brought on behalf of Muslim Americans who were detained for up to six hours, interrogated, fingerprinted, patted-down and photographed by border authorities when they returned from the 13,000-person conference at the Skydome.
In dismissing the case, however, the court rejected the government’s contention that American citizens have few if any First Amendment rights at the border. Rather, the court expressly held that border actions targeting First Amendment activity are subject to strict scrutiny, which means the government will have to go to great lengths to justify future border operations that implicate the First Amendment.
“It’s deeply disappointing that the court refused to vindicate the rights of innocent Americans treated as terrorists simply because they attended a religious conference,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “Nonetheless, there is a silver-lining in the court’s rejection of the government’s claim of unfettered discretion at the border to interfere with the lawful expressive and religious activities of U.S. citizens.”
Noting that the five American citizens with no criminal records and no suspicion of any association with unlawful activity were “subject to the kind of screening procedure normally reserved for suspected terrorists,” the court nonetheless affirmed the lower court’s decision in favor of the Department of Homeland Security. The lower court held in December 2005 that border agents could treat as potential terrorists every single person they could identify as returning from an Islamic conference at the Skydome because of secret intelligence reports that “terrorists or those with terrorist ties” would be attending the conference. The event, Reviving the Islamic Spirit, featured Canadian political leaders and law-enforcement officials, and was attended by more than 13,000 people.
“This decision is in keeping with a historical pattern of judicial rulings in times of high national anxiety when courts have articulated a legal standard that protects civil liberties, but have applied that standard to sustain government actions that interfere with individual rights,” Lieberman said. “Just as the landmark 1919 Schenck case established the clear and present danger standard under which a Socialist was jailed for distributing an anti-draft flier, but which was later used to prevent the government from criminalizing speech, today’s decision will likely have positive reverberations in the future.”
“While we are extremely disappointed in the outcome, it is quite significant that the court rejected the government’s contention that American citizens have few if any First Amendment rights at the border,” said NYCLU Associate Legal Director Christopher Dunn, who was lead counsel on the case. “In the future, government border actions targeting First Amendment activity will face close scrutiny from the courts.”
Other attorneys involved with the case were NYCLU Legal Director Arthur Eisenberg, NYCLU staff attorneys Udi Ofer and Corey Stoughton and ACLU staff attorney Catherine Kim. Cooperating attorney Michael Wishnie was also a counsel on the case.