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Tabbaa v. Chertoff (Challenging DHS policy or practice of detaining, interrogating Americans returning from Islamic conference)

This case challenged a federal policy that targeted thousands of people who attended Islamic conferences taking place outside the United States in December 2004 for a special terrorism-screening process. The policy authorizes border agents to detain and interrogate American citizens returning to the U.S. from Islamic conferences, and to enter the names and information of these citizens into a federal database. Organized by college students, the Reviving the Islamic Spirit (RIS) Conference is a mainstream cultural and religious gathering that advocates peace, tolerance, and unity. The plaintiffs in this case attended the December 2004 RIS Conference, held at the Toronto Skydome, which featured speakers, included religious activities, and was endorsed by prominent politicians. The plaintiffs’ activities at the conference were entirely lawful, and nothing about those activities would provide any basis for suspecting the plaintiffs of unlawful conduct. As happened with dozens of other RIS Conference participants, the plaintiffs were singled out by U.S. Customs and Border Protection (CBP) agents. Although the plaintiffs are American citizens and showed valid identification, each was detained at the U.S.-Canadian border for several hours before being released. They were frisked, interrogated, photographed and fingerprinted for entry into CBP and other federal databases.

On April 20, 2005, the NYCLU, ACLU and the Council on American-Islamic Relations filed a suit against the Department of Homeland Security (DHS), claiming that by implementing a policy authorizing such actions, the DHS violated the plaintiffs’ rights under the First and Fourth Amendments to the U.S. Constitution and under the Religious Freedom Restoration Act. The suit sought to enjoin the defendants from detaining, interrogating, fingerprinting, and photographing U.S. citizens who are Muslim and are returning to the country after attending religious conferences. The suit also sought an order to expunge or destroy all information, fingerprints, or photographs that were unlawfully obtained from the plaintiffs during their detention.

In December 2005, both parties moved for summary judgment. On Dec. 21, 2005, the District Court ruled that the plaintiffs’ First and Fourth Amendment rights were not violated and granted the defendant’s motion for summary judgment and dismissed the plaintiffs’ case. The NYCLU filed a notice of appeal to the U.S. Court of Appeals, Second Circuit, on Jan. 4, 2006. Oral argument was heard on April 19, 2007. On Nov. 26, 2007, the Second Circuit affirmed the District Court’s grant of summary judgment to the defendants. In doing so, it ruled that the challenged policy was subject to strict scrutiny, rejecting the defendant’s contention that border detentions were governed exclusively by a very relaxed Fourth Amendment standard. Nonetheless, the court held that the policy met heightened scrutiny because it was sufficiently tailored to a government concern that terrorists might attend the Toronto conference. 

E.D.N.Y., Index No. 05 Civ. 1918 (direct) 

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