I was just about to give up on finding anything to blog about when I came across this little decision out of the US Court of Appeals for the 3rd Circuit. In George v. Rehiel et.al. Dkt.:11-4292 (3rd Cir. 2013)( a Civil Rights case brought under 42USC1983) an American college student of Middle Eastern Culture at a University in California was boarding a plane in Philadelphia (heading back to school) and under went an "administrative search" (which is a recognized "exception" to the 4th Amendment) at the boarding area. It is an everyday bother for airline passengers but it does keep us safer and it is usually minimally intrusive, that is until the Third Circuit decided to throw America's new obsession with paranoia into it.
During the search, the TSA employees (who seemingly have absolutely no training in law) found handwritten flash cards that included the Arabic/English words for everyday language as well as for some words that if SAID ALOUD, would trigger an arrest in an airport (words like Bomb, Terrorist, Explosion, Attack, Kill, Battle, To Wound, to Kidnap). Now the fact that he was a student and one might want to know these words if involved in Mid Eastern current events did not matter. That he wasn't speaking the words but that the cards were in his carry-on so he could study didn't matter either. That after finding the flashcards and swabbing everything around for explosives and finding zilch well that still did not matter. As far as the TSA was concerned these flashcards (and a treatise a college kid might read on the failures of American Interventionist Foreign Policy) required he be detained for a supervisor to question him AND for TSA to call the police.
The supervisor came and for 15 minutes more she stalled Mr. George in a TSA security room (which by the way he was not free to leave) asking inane questions such as:
Q: Do you know who is responsible for 9-11?
A: Osama Bin Laden
Q: Do you know what language he spoke?
Q: Do you see why these (flash)Cards are suspicious????????????
WTF????? Really???? Needless to say Mr. George was arrested, cuffed, detained for 5 hours, and missed his flight. Yes, if you were wondering, Philadelphia is part of the United States of America...
Mr. George and his attorneys sued the TSA agents, the cops, and FBI agents (who after five hours arrived, questioned the kid another 30 minutes and determined that he was not a terror threat) for violating his civil rights: His rights under the Fourth Amendment, Free speech and further sued for false arrest false imprisonment etc.
The question before the court was: did the TSA agents act outside of their employment authority by detaining young Mr. George, and if so did they have a reason to know that acting that way was against an established rule supporting the rights to privacy and speech.
The court never reached the knowledge element because it ruled that given the "totality of circumstances here could cause a reasonable person to believe that the items George was carrying raised the possibility that he might pose a threat to airline security".
Re-read the quote from the decision that I highlighted above. Have you ever seen a more tepid comment?
"...could cause...to believe...possibility...might pose." Gee he could have been carrying a New York Times and all those words would be in it. It is indisputable he had the right to have those cards and that he had a right to have and read the book on the failure of American intervention in the Middle East. Does it really raise a right to detain someone for 30 minutes or even 5 minutes once they found he had no explosives or contraband on him? Do you know what it feels like to be detained at an airport in an tiny room that you cannot leave. They have your phone? You can't call out check email tell others what's up? WTF??? Then they called the cops who arrested him and held him handcuffed in a cell for up to five more hours!! The court held the cops arrested him on their own. In other words a cop came up and not on the say of the TSA he just decided to bust the kid for five hours without being asked because presumably he found probable cause to make an arrest!! Based on flashcards and a book? (In fairness to the court they did rule that you cannot arrest someone because of the books they read. Evidentially flashcards are far more dangerous...) The court held it was speculative that the TSA ordered the arrest. I am sorry but I don't see that at all, of course that is one of the myriad of reasons I will never be a judge. I cannot suspend my disbelief for a long enough period to excuse people when they act like idiots in the name of the USA.
I am accustomed to government paranoia. Look we are all gonna die someday but really can't we go as men and women and not as frightened sheep? Are these judges for real? Are they going to hide behind 9-11 to support clearly illegal conduct by federal agents for the rest of our lives?? Liberty does hang in the stakes. If the Courts will not rein in the government when it clearly goes beyond our ever more liberal rules for destroying our Constitution, then we are lost.
That the lead judge was a Clinton appointee not some Neo-con Bush appointee. So if you are learning Arabic, and studying Middle Eastern culture, you better watch out...you just gave your government the right to detain you based on what they unreasonably fear might be a possible preparation for an attack or maybe just a learning thing but they are really unsure but they don't need to be any more sure because that could cause them to not detain Osama bin Laden or the ENGLISHMAN who was the shoe bomber or THE LATINO that was an underwear bomber. If you understand any of that, you MAY qualify to be a Federal Judge...
H/t: Justia (US Third Circuit Court of Appeals Opinion Summaries.) and Rueters.
*The title of this post paraphrased the questions but the quotes here are from the decision and are culled from plaintiff's complaint.)