A national-security investigation may “not [be] conducted solely upon the basis of activities protected by the first amendment to the Constitution.” That clause, and others similar to it, are found throughout the Patriot Act and other provisions of federal law. They protect Americans from being subjected to surveillance based on nothing except their religious beliefs.
There’s an obvious reason for that — at least, I thought it was obvious until Donald Trump reportedly embraced the idea of forcing Muslims to register in a database. I say “reportedly” because it is not clear to me, after hearing a recording of Trump’s hectic gaggle with reporters, that he intentionally articulated such a proposal. More likely, he thoughtlessly agreed that it should be considered upon being asked some loaded questions — which is better, but not much.
The reason our law forbids investigations based on religion alone is also spelled out in the Patriot Act. As Section 102 explained: “The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.”
Guilt is personal and based on behavior. The idea of collective guilt based on religious affiliation violates our constitutional principles. It is offensive even to people like me, who believe Islam is better analyzed as a political ideology with some religious tenets than as, strictly speaking, a religion. After all, millions of Muslims believe in the religious tenets but do not want sharia imposed on civic life. For them, Islam is a religion, not a religious veneer on subversion.
Surveillance and other forms of investigation in our society have to be triggered by conduct, not religious, racial, or ethnic classifications. But from this correct premise, the commentariat goes wrong by contending that because these status classifications may not trigger investigation, they are irrelevant to investigations in all instances.
To the contrary, they may be highly relevant. Most Muslims are not jihadists, but all jihadists are Muslims and draw motivation from a literalist construction of Islamic scripture. You can’t defend against what our enemies might do without studying what they believe.
Let’s take Islam out of the equation for a moment. A great deal of crime, especially conspiracy crime, has ethnic components. To be a member of the Mafia, a person has to be an Italian male. That does not mean all Italian men are organized-crime suspects; but it does mean that if a prosecutor accused a bunch of guys named McCarthy of being members of the Bonanno Family, the case would be laughed out of court.
When I was a prosecutor, moreover, it was a commonplace for the government to plead in search-warrant applications that suspected cocaine traffickers were Colombian nationals or had taken trips between Colombia and the United States. Such circumstances would not be sufficient in a vacuum; but placed in conjunction with suspicious conduct, courts would rely on the Colombian ties in granting the warrants and upholding them on appeal. Not every Colombian was a suspect, but neither did the law require that we blind ourselves to the fact that Colombia was Cocaine Central.
Here is the point: It is against our law for a person to be targeted for investigative attention solely because of the person’s race, ethnicity, or religious affiliation. But if the person’s conduct is suggestive of criminal activity, terrorism, or espionage, that is a valid basis for triggering an investigation. Once there is a valid basis for investigation, it is relevant — it is common sense — to account for religious affiliation to the extent it may shed light on the suspect’s actions and state of mind.
A Muslim registry is constitutionally offensive because it would subject a person to investigative attention based on nothing other than religious affiliation. But let’s put the law aside: The notion of a Muslim registry is also stupid.
A Muslim registry is constitutionally offensive because it would subject a person to investigative attention based on nothing other than religious affiliation.
When I used to prosecute terrorists, it was a source of sardonic amusement to me that all sensitive evidence and other discovery was disclosed to defendants with the admonition that they would be held in contempt of court if they transmitted the information to unauthorized persons. “Imagine that,” I’d say to myself. “A guy has willingly risked death, capital punishment, and life imprisonment in order to commit mass murder, yet we think we can stop him from leaking by threatening a contempt citation?”
A Muslim registry would suffer from the same flaw. Few if any terrorists would sign up, assuming for argument’s sake that it could be enforced — and just imagine what would happen the first time the Justice Department indicted a Muslim for failing to register.
Newsflash: Jihadists lie whenever lying facilitates the execution of their missions. And they have no compunction about concealing their religion, ideology, or similar personal characteristics. Al-Qaeda, for example, has long sought American, Canadian, and European members because they can freely enter those places. These jihadists may have, say, American or British citizenship and passports, but they are not, in their own minds, Yanks or Brits. They are militant subjects of the ummah who are using a cover to infiltrate and terrorize. On this, the jihadists like to quote their prophet: “War is deceit.”
Therefore, the only people who would end up registering would be law-abiding Muslims, who would be justifiably angry about being coerced in such a lawless and pointless manner.
#share#This gets back to why I have my doubts that Donald Trump actually intended to propose a Muslim registry. It so happens that on Thursday morning, hours before the remarks that got him in hot water, Trump appeared immediately after I did in a telephone interview on the Breitbart News Daily program, which has just debuted on satellite radio. (I cannot find my interview, but Trump’s is here.) The host, Steve Bannon, first queried me about surveillance — in particular about how, in the 1990s Blind Sheikh terrorism prosecution, we proved that mosques and Islamic community centers were used by jihadists to store and transfer weapons, plot attacks, organize training, recruit young Muslims, and raise funds.
I opined that the only sensible strategy for preventing terrorist atrocities like the one last week in Paris (Thursday’s Mali attack had not happened yet) was to emphasize (a) intelligence collection regarding radical mosques (which are not hard to distinguish from non-radical mosques) and (b) the cultivation of cooperation from the American Muslim community, including informants.
Steve and I noted that this was the very successful NYPD approach after 9/11, but it had recklessly been abandoned by Mayor de Blasio’s administration. And, as I’ve previously explained, the Obama administration’s “Countering Violent Extremism” strategy similarly rejects the prudent NYPD surveillance approach pioneered by former commissioner Ray Kelly. Obama prefers to have our law-enforcement officers retrained by the administration’s “partners” in Islamic communities — including Islamist organizations linked to the Muslim Brotherhood, which insist that Islamist terror has nothing to do with Islam.
Trump came on right after I hung up, and Bannon proceeded almost as if it were a continuation of our conversation. He noted that I had made a case for reviving the NYPD approach and the surveillance of radical mosques. Trump agreed that the NYPD had it right, that the development of informants was key, and that intelligence-gathering at mosques had to be stepped up. In tossing out a barrage of ideas about aggressive surveillance, Trump never came close to suggesting a Muslim registry.
#related#For what it’s worth, I don’t think Trump came up with the idea of a Muslims-only database. I do think, though, that when he was fed this noxious suggestion, he did not know enough to dismiss it out of hand. (See Byron York’s report at the Washington Examiner.) And that is the yuuuge problem with a populist par excellence who knows how to give the people what they want to hear . . . with the details . . . um . . . maybe to follow, maybe not, and maybe at 7 p.m. they are different from the ones offered at 7 a.m. — other than that it will be the best registry in the history of history.
Counterterrorism has been undermined by too much “outreach” to all the wrong Muslims. There is no effective counterterrorism, though, without buy-in from all the right Muslims — that’s how we infiltrate terror cells, gather critical intelligence, and stop attacks.
Donald Trump’s blunderbuss tough-on-terror rants are understandably appealing to voters exasperated by a political class that seems more indulgent of Islamist charlatans than concerned about American security. But you can’t actually be tough on terror without good intelligence. Alienating the people you need it from is not the way to get it.