Just one look 

Is racial profiling legal post-9/11?

Last summer a U.S. District Court Judge in Great Falls threw out a lawsuit against two Montana-based U.S. Border Patrol agents who stopped and detained an Iraqi refugee in Havre on his way to Washington, D.C. The lawsuit alleged that the two agents singled out Abdul Ameer Yousef Habeeb for questioning based on his race or ethnicity and sought compensatory and punitive damages against the arresting agents and their superiors. The American Civil Liberties Unions of Montana and Washington supported Habeeb in his suit, hoping it would prove a good test case for the government’s respect of Fourth Amendment laws post-9/11.

But last June District Judge Sam Haddon dismissed the case on all counts. In his 20-page ruling, Haddon stated that “It would be absurd for this Court to declare that law enforcement personnel, and border protection officers in particular, were acting unconstitutionally if they availed themselves of their ability to distinguish between people based on appearance.”

Last month, Habeeb, with the legal backing of the ACLU, appealed Haddon’s ruling to the 9th U.S. Circuit Court of Appeals, arguing that the judge wrongly interpreted Habeeb’s Fourth Amendment claim, among others.

Scott Crichton, executive director of the ACLU of Montana, describes Haddon’s ruling as a “blanket endorsement of racial profiling.”

“If you have probable cause to stop somebody, you’re entitled to do that. But to subject an ethnicity, class or race of people to being second-class citizens is patently un-American,” Crichton says.

According to the complaint, Habeeb came to the United States in July 2002. His brother was executed by Saddam Hussein’s regime in 1982, his father died in a suspicious car crash in 1999 and Habeeb was imprisoned twice, most recently in 1997 (his hands and face still bear the scars from the torture he suffered at the hands of Iraqi police). In 2000, shortly after his father’s death, Habeeb fled to Syria and was later admitted to the United States as a political refugee.

In April 2003 Habeeb was offered a job at an Arabic-language newspaper in Washington, D.C. He accepted, packed up his belongings, bought an Amtrak ticket and headed east on the Empire Builder from Seattle, Wash., near his home, to Chicago and then on to Washington, D.C.

“I want to see this country, so Amtrak,” Habeeb told National Public Radio last year. (Through his attorney, Habeeb declined to speak to the Independent for this story.)

According to the complaint, Habeeb stepped off the train during a scheduled stop at the station in Havre, and that’s where his trip came to a screeching halt. When he tried to get back on the train, he was stopped by U.S. Border Patrol agent Thomas Castloo. The agent asked where Habeeb was from and asked to see his immigration papers, which Habeeb provided, along with his Washington state ID and social security card.

After confirming Habeeb’s refugee status, the Border Patrol agents detained Habeeb on the grounds that he “failed to appear for special registration.” They were referring to a 2002 law that requires certain groups of men from Muslim and Arab countries to present themselves to the U.S. Immigrations and Customs Enforcement (ICE) for fingerprinting. However, refugees such as Habeeb are exempt from the special registration. But according to the ACLU, Habeeb’s poor command of English and lack of knowledge of immigration law left him unable to defend himself to the Border Patrol agents. He was arrested and spent three nights in the Hill County jail while deportation proceedings began against him. Then he was transported to Seattle where he spent four more nights detained by ICE. It took eight days before he was freed, and by that time he’d lost his new job.

“They weren’t doing a random sampling,” says Betsy Griffing, a Missoula-based ALCU-Montana attorney working on the appeal. “They were stopping anybody who looked Muslim, or Middle Eastern or Arab. Once they did the initial stop and they discovered he was a refugee then that whole other line of inquiry did not apply to him.”

Heather MacDonald, a senior fellow at the Manhattan Institute for Policy Research, disagrees. MacDonald, who has analyzed illegal immigration for the Los Angeles Times and has testified on immigration issues before congress, says that while appearance alone shouldn’t be the primary reason for questioning anyone, she agrees with Judge Haddon that law enforcement officials shouldn’t rule appearance out when deciding whether to question somebody.”

“We’re talking about national origin here and that by itself is not enough for any kind of extended stop,” MacDonald says. “But if there are other factors involved that could be suspicious, national origin should be taken into account.”

Habeeb admits he became nervous when he noticed a uniformed Border Patrol officer watching him, and tried to rush back to the train, though it’s unknown if Habeeb’s behavior had anything to do with the initial Border Patrol stop.

“I think if law enforcement agents have behavioral grounds to look into somebody for an additional level of inquiry, given the fact that Osama bin Laden has called on Muslims and Muslims only to wage war on Americans, that somebody’s apparent national origin may be one factor that law enforcement may take into account in questioning them,” MacDonald says. “What we’re talking about in most cases is a few extra questions. That is not a massive infringement on liberty.”

In Habeeb’s case, a few extra questions ultimately led to his eight-day incarceration.

A Border Patrol official declined to comment on the case and directed us to a spokesman who didn’t return our call. However, an official who answered the phone said agents “used to” question people on the Empire Builder but “don’t do that anymore.”

Crichton says Habeeb’s lawsuit, regardless of the outcome of the appeal, has already resulted in improvements at the Havre train station. He says he’s heard reports from frequent passengers who say agents “are not shaking people down like they used to.”

Attorneys for the ACLU say it will be at least a year before they expect a decision from the appeals court. In the meantime, Crichton hopes the case will open Montanans’ eyes to civil liberties issues in the post-9/11 era.

“We’re not necessarily any safer, but we’re a hell of a lot less free,” says Crichton. “It seems so far that people are numb to how painful it is to give up your rights, but when you give them up it’s really hard to get them back.”


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