A decision in the case of five Muslims who were detained for up to six hours at the Canadian border after attending a religious conference confirms that the post-9/11 war on civil liberties has a staunch ally on the 2nd U.S. Circuit Court of Appeals.

The court last week rejected the Muslims' challenge to their “enhanced processing” in December 2004, when U.S. Bureau of Customs and Border Protection (CBP) agents interrogated, fingerprinted, searched and photographed them even though they had no criminal records and the government had no individualized suspicion that they were associated with terrorism.

The five plaintiffs, all U.S. citizens, were detained simply because the CBP had received intelligence that “terrorists or those with terrorist ties” would be among the 13,000 people who attended the Reviving the Islamic Spirit Conference in Toronto.

That vague intelligence helped satisfy any concerns that 2nd Circuit Judge Chester J. Straub might have had about the plaintiff's constitutional rights or the chilling effect of the government's “guilt by association” tactics.

“[G]iven the intelligence the government received, subjecting RIS Conference attendees to enhanced processing at the border –- including fingerprinting and photographing -– was a narrowly tailored means of achieving the government’s compelling interest in protecting against terrorism,” he wrote in affirming a trial court's summary dismissal of the case.

Straub also said the “searches were not so invasive as to be beyond the type of 'routine' border searches that do not require reasonable suspicion or probable cause” and generously deferred to the professionalism of the CBP officials.

“[S]ome measure of deference is owed to CBP due to its considered expertise in carrying out its mission of protecting the border,” the opinion said.

Straub did not mention that these experts lifted the blouse of one of the plaintiffs to confirm that she really was pregnant. But this is the same judge who last year upheld New York City's anti-terror program of random, suspicionless searches of passenger baggage on the subway.

The program “satisfies the special needs exception to the Fourth Amendment’s usual requirement of individualized suspicion” and “it is unwise for us to substitute our judgment for that of experienced, accountable experts,” he said in MacWade v. Kelly, 460 F.3d 260.

President Bill Clinton appointed Straub, a former New York state legislator, to the 2nd Circuit in 1998. The New York Civil Liberties Union, which represented the plaintiffs in the border detention case, took a sanguine view of his ruling, noting that he said the strict scrutiny standard of review should be applied to border actions implicating the First Amendment.

The decision “will likely have positive reverberations in the future,” it dubiously predicted in a press release.

But the Daily Kos blog said that “Only a half-wit would justify trampling on constitutional rights in this way.” Whether or not Straub is a half-wit, his deference to power and lack of empathy for plaintiffs have made him a rubber-stamp for intrusions on civil rights.

By Matthew Heller
12/2/07