Imagine for a moment that you are “Munir,” a well-respected Arab-American community leader from the Detroit area driving home from Connecticut with your wife and two young daughters. When you pass through Canada and re-enter the U.S. at the Port Huron land crossing 40 miles north of Detroit, you and your wife are forcefully dragged from and thrown against your car, handcuffed, and separated from each other and your children and detained for over four hours while being aggressively interrogated. You ask to call your lawyer, but the federal agent who is guarding you denies your request for counsel. Meanwhile, your wife is separated from her daughters for nearly 40 minutes while they cower in fear. Although you possess no weapons, to their colleagues, agents describe you as “armed and dangerous”.
After this ordeal, you seek the help of a senior government official, who advises you that the only way to see if your status has been resolved with authorities is to cross the border again. Again, you are subjected to similar detention and treatment and denied access to legal counsel. How does this make you feel? Terrified?
Imagine that you’re “Malik,” an American citizen, engineer, and Houston area community leader who dedicates his spare time as an organizer for a major political party and participates in roundtable discussions with senior U.S. government officials on outreach to Muslim Americans. During a return trip home from Canada, you’re taken to a small, private room by an armed, federal border agent and repeatedly asked such questions as, “What is your religion?” and “What mosque do you attend?” as well as questions about the membership in your mosque. While you’re answering question after question, your laptop and flash drives containing your tax returns and other personal information, are searched. Business cards with Muslim names are removed from your sight and presumably copied.
Historically, one’s politics, faith, and associations have been protected from government scrutiny and surveillance under the First Amendment of our Constitution, and they should remain so. However, no Department of Homeland Security policy limits the scope of interrogations on religious and political matters. For Muslim Americans, questions probing our politics, faith, finances, associations and charitable contributions to lawful organizations have become the price of admission to return home.
This week, Muslim Advocates released a report, Unreasonable Intrusions: Investigating the Politics, Faith, & Finances of Americans Returning Home (PDF), documenting the stories of dozens of law-abiding Muslim, South Asian, and Arab American travelers who have been harassed and intimidated by federal border agents each time they have returned from an international trip or visited family in places like Toronto or Montreal. The Muslim, Arab, and South Asian American travelers mentioned in the report come from all walks of life: young, old, male, female, military veterans, students, lawyers, doctors, senior executives with major high tech companies, academic researchers at Ivy League institutions, and a firefighter. Their interrogations take place at land crossings and international airports – from San Francisco to New York, Detroit to Houston.
The experiences of these travelers are not isolated incidents. Rather, they suggest a new set of rules guiding Customs and Border Protection (CBP) agents. To ensure that Americans returning home are guaranteed their constitutional rights, Congress can bar CBP agents from inquiring about Americans’ First Amendment-protected beliefs and activities; require these agents to have reasonable suspicion before searching laptops, cell phones and other electronic devices; and allow Muslim American citizens re-entry to the country without fear of detention or interrogation.
One place lawmakers can begin to restore the rule of law at our borders is by passing the Travelers Privacy Protection Act (TPPA). The TPPA contains robust limits on searches of electronic devices, as well as reporting requirements to determine whether racial and ethnic profiling is taking place. However, TPPA should be expanded to include a prohibition on questioning of First Amendment-protected beliefs and activities and should extend its proposed tracking of potential discriminatory policing to those who are subjected to interrogations. Additionally, TPPA should include a training requirement for CBP agents to ensure they are receiving accurate guidance about the permissible scope of questioning and searches. Congress also needs to pass effective anti-profiling legislation, such as the End Racial Profiling Act, in order to ensure that federal law enforcement does not engage in discriminatory policing and to specifically guard against profiling based on religion.
President Obama has pledged to restore the rule of law, and we commend him for doing so. Critical to this process is congressional oversight and action to examine whether policies crafted in the name of national security are keeping us safe while respecting constitutional rights and protections.
(Today in a Senate hearing, Secretary Napolitano committed to a review of CBP policies and practices and a report back to Congress. You can read more about it here. This article previously appeared in the Washington Post’s On Faith)
Farhana Khera is Executive Director of Muslim Advocates and the National Association of Muslim Lawyers (NAML). Muslim Advocates provides a legal resource to promote the full and meaningful participation of Muslims in American public life. Ms. Khera also served as Counsel to the U.S. Senate Judiciary Committee, Subcommittee on the Constitution where she worked for Senator Russell D. Feingold (D-WI), focusing substantially on the USA PATRIOT Act, racial and religious profiling, and other civil liberties issues raised by the government’s anti-terrorism policies since September 11, 2001.