The chill effect: Law enforcement activities, Muslim-American political views and free speech rights

When a State attempts to make inquiries about a person’s beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas […] discourage citizens from exercising rights protected by the Constitution.

Baird v. State Bar of Ariz., 401 US 1 (1971)

“What do you think of events in Syria and Israel?”
“What’s your opinion of Iran’s president?”
“Do you hate the US government?”
“What kinds of political activism do you engage in?”
“What do you think about Jews and the state of Israel?”
“What do you think of Barack Obama?”

–Questions US customs agents ask to US citizens and legal residents (Asian Law Caucus, 2009, pp. 11-12)

One of the most overlooked aspects of the numerous surveillance operations targeting Muslim-Americans is the disconcerting amount of interest various law enforcement questioners have shown in the political views of their subjects. A pattern has emerged, especially at border crossings, wherein US citizens, legal immigrants and visitors who happen to be Muslim are stopped and subjected to instrusive searches, lengthy detention periods and bizarre questions about their personal religious practices and political beliefs. This post will go into specific details about the inquiries made into political views. The fact that US border and customs agents often engage in lengthy interrogations of US citizens on their First Amendment protected political views offers a deep insight into how the US government could come to view its own citizens as suspects in terror-related investigations. It also raises disturbing implications about the chilling effect this behavior could have on Muslim Americans expressing their political views. The US Supreme Court has in the past recognized the way such investigations could “discourage” citizens from speaking their mind and put a limit on the manner political views can be probed.

Consider the experience of Zakariya Muhammad Reed, a 20-year National Guard veteran and firefighter in Toledo, Ohio. Over a period of six months in late 2006 to early 2007, Reed was detained four times by border agents upon crossing from Canada to the US. The agents damaged his property while searching his car, made menacing comments about putting a bag over his head and zip tying his hands “like we do in the desert,” intimidated him with a firearm during an interrogation and inquired about a letter to the editor he wrote. Published in the Toledo Blade on 8 September 2006, the letter attempted to explain how the rest of the world saw America as “arrogant” and criticized the Israeli campaign against Lebanon as well as the Iraq War. A printed copy of the letter was on a table during one interrogation. The questioning agent said he found it through a Google search of Reed’s name and said he was “curious” about its content.

“I was terrified,” [Reed] says. “This is a whole new ball of wax here. Now, not only am I being persecuted for my faith, but I’m being persecuted for a personal opinion. This is getting too Orwellian. Is this what it comes down to? Is this where I live? Is this the country I love?” (Progressive, 9 May 2007)

[Reed would later be detained a fifth time and asked about the complaints he made to The Progressive.]

It is not hard to see how such conduct by law enforcement can dissuade Muslim-Americans from expressing their political views.

When an ACLU client complained to the US CBP about border agents asking questions about his religious practices, the chief officer of the US CBP Field Office responded to him via email: “If a CBP Officer inquires as to a person’s religious beliefs in order to uncover signs of extremist tendencies, that Officer is well within his authority” (ACLU & Muslim Advocates, 2010, p. 4). This raises numerous concerns about what types of religious practices and political beliefs that counter-terror officials associate with “extremist tendencies.” Consider a question one US citizen was asked in 2004: “Do you prefer Fox News or Al-Jazeera?” (Ibid, App. A). It is incredibly disturbing to think that law enforcement could reach any type of actionable conclusion based on the response given.

Furthermore, it should be noted that:

Questioning by CBP agents is inherently coercive, since individuals at the border cannot enter the United States without satisfying border agents. Unlike individuals inside the United States who are called in for questioning by the police, FBI, or other law enforcement officers, travelers at U.S. borders cannot simply walk out of an interview. Although U.S. citizens have the right to enter the United States and are not subject to the admissibility requirements applicable to foreign nationals, even citizens who refuse to answer questions may be threatened with further detention, more intrusive searches, or other consequences of refusing to cooperate. Non-citizens may be denied entry at the border altogether, and even those who decide they would rather return to their home countries rather than submit to the questioning cannot simply depart from the international arrivals terminal of an airport without approval from CBP officers. In the no man’s land of the U.S. border, CBP officers wield unique and unrivaled power over incoming travelers (Asian Law Caucus, 2009, p. 12).

As it turns out, Customs and Border Protection isn’t the only federal agency probing into Muslim-Americans’ political views. It has been estimated that the FBI has carried out hundreds of thousands interviews of Muslims residing in the US (Sinnar, 2011, p. 47). Although widely considered voluntary, the FBI has resorted to intimidating and downright coercive tactics to get Muslims to agree to be interviewed. One FBI strategy is to approach Muslims at their place of employment where a refusal to be interviewed could create a negative backlash from their supervisors. In other cases, the FBI misinformed their subjects that the goal of the interview would be to prevent or investigate hate crimes or to engage in “community outreach.” In a few cases, FBI agents allegedly threatened to arrest Muslims who refused to be interviewed (Ibid, pp. 50-50).

The FBI stands accused of targeting multiple Muslims for interviews based on political statements they have made. Consider the following cases:

  • “A young computer programmer and Muslim American in Northern California was approached for questioning, in his workplace, by the FBI after posting political articles from mainstream news sources on his Facebook page. His Facebook page had privacy settings limiting viewers of his posts to only those in his circle of Facebook friends. Although this young man had no criminal background and was not the subject of an investigation, the FBI contacted him because the articles were interpreted as threatening because of his religious and ethnic background. By approaching him at work, in front of colleagues and managers, the FBI intimidated this young man and jeopardized his job” (Prepared statement of Farhana Khera, 2010, p. 4).
  • “A physician of Pakistani descent in New England was contacted by the FBI for questioning after peaceful, non‐violent comments he made about the political situation in Pakistan were published in his local newspaper” (Ibid).
  • On 27 September 2005, a 16 year old Sacramento high school student was interviewed by two FBI agents at his own school for scribbling the letters “PLO” on his binder two years earlier.  According to the LA Times, the agents asked him “about the Palestine Liberation Organization and whether he had pictures of suicide bombers stored on his cellphone.” Civil rights groups at the time complained that the school had violated a policy requiring that “parents be notified before law enforcement officials interview a student.” (Progressive, 23 December 2005; LA Times, 16 December 2005)

In perhaps the most alarming case I have seen, a Palestinian national who traveled to the US on a valid visa in February 2007 was denied entry for having “anti-American” material on his hard drive consisting of articles from Al-Jazeera and a 9/11 conspiracy theory series. He remains in immigration detention “on the grounds that he is likely to engage in terrorist activity at some point in the future.” This conclusion was based partially on the materials found on his computer as well as his tenuous ties to Hamas members in the Gaza Strip where he grew up.

The Court also pointed to the DHS expert’s conclusion that Abu Fayad’s computer science training, college-education, clean criminal record, and green card would make him an “exceptionally attractive target for recruitment” by Hamas. As a result, Abu Fayad has been languishing in immigration detention for more than four years.

The cumulative effect of interviews like this as well as the widespread infiltration and surveillance of Muslim-Americans has resulted in at least some behavioral changes:

In two quantitative studies, members of the U.S. Muslim community, but not a majority, reported changing their behavior in response to government scrutiny of their community. In the study of New York Muslims described above, one in five surveyed reported altering behavior in response to general law enforcement scrutiny of Muslims, including changes in attendance at group prayers in a mosque (20 percent of respondents), manner of dress (22 percent), everyday activities (17 percent), and travel behavior (26 percent). A 2007 study of Muslim Americans found more modest changes: while almost three-quarters of Muslims surveyed believed that the government was monitoring the general activities and Internet usage of Muslims, only 11.6 percent of respondents reported changing their general activities due to that concern, and 8.4 percent reported changing their Internet usage (Sinnar, 2011, p. 70).

Perhaps it is impressive that these numbers are not higher considering the amount of law enforcement scrutiny towards Muslim-American communities these days.