Forsaking Liberty: The Legal Lynching of American Muslims

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By: Dr. Aref Assaf

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What Muslim rights? With the blessing of Mr. John Brennan, President Obama’s top counterterrorism advisor, the NYPD has finally been vindicated for spying on American Muslims. If the NJ Attorney General follows suit and does not commence a formal investigation, the sole demand of American Muslims will have gone unfulfilled. Coupled with several recent polls that have approved the forsaking of Muslims’ civil and religious liberties, consequently, and perhaps irreversibly, the ‘legal” discrimination of American Muslims will have begun in earnest.

Visiting New York last week, John Brennan blessed the NYPD, saying the agency “has struck an appropriate balance between keeping people safe and protecting their rights.” When news of the massive NYPD domestic spying campaign broke out in February, the choices for the Muslim community were limited: either recoil into the safety of its cocoons, or go public with its anger by demanding a formal investigation by both the NJ and US Attorney General- two entities with sweeping mandates over law enforcement in NY and NJ. Resigned and sensing defeat, the community’s reaction to Mr. Brennan’s words has been noticeably muted.

I was at a gathering of Muslim leaders in Hackensack recently, where I was asked to opine on the recent polls and Mr. Brennan’s statement.

The recent rash of polls to gauge public responses to NYPD’s spying activities seems consistent in their conclusions. Even if they judged spying as violation of civil liberties, the majority of respondents are willing to forsake the liberties of Muslim citizens for the promise of security for all. I suggested four possible scenarios, all of which carry certain risks, and none of which could be considered a permanent solution to the growing division between the Muslim community and law enforcement.

1- The leaders of the Muslim community should accept the prevailing reality that the public, law enforcement, and elected officials have downgraded the citizenship of millions of American Muslim citizens to a second class, one whose faith and loyalties are questionable and consequently are deserving of more scrutiny. No less than four recent polls, inaction by the NJ AG, indecisiveness by the US AG, and now unambiguously NYPD supportive statements by Our President’s chief counterterrorism officer. All these facts were once seemingly disconnected but now, arguably, are deliberate and must be seen as a formal response to the community’s cries for a redress of their grievances through a formal investigation. Should the community accept this fate; two possible outcomes can be expected: Eventually, America will recognize the grave injustice wrought upon the community and will reconcile itself with accepting Muslims as equal citizens. Another scenario is for Islamophobes to claim victory and possibly intensify their castigation and denouncement of Muslims and the religion of Islam.

2- Call for a total boycott of collaboration between law enforcement and leaders of the Muslim community. Why should we offer any assistance when every aspect of our lives is on the radar of law enforcement? Does the very act of surveillance imply distrust of the community’s intention or behavior? However, law enforcement will quickly find willing Muslim ‘leaders’ who not only will praise the questionable tactics of law enforcement but also indeed consider them proper and effective. The group led by Zuhdi Jasser that came into NYC to declare its support of the NYPD’s spying is a clear example of divide-and-conquer-tactics meant to weaken the Muslims voice. There is no guarantee the wedge will grow wider, however.

3- Explore the possibility of a class action suit. Legal pundits argue the real plausibility of a class action suit against both the NYPD and the yet to be identified law enforcement agencies in New Jersey that may have aided or abetted the surveillance to proceed unhindered. The focus of the potential suit will rest not on the jurisdictional violation charges highlighted by Governor Christie, but by the racial and profiling techniques employed by the NYPD in its spying activities. Racial profiling is illegal, and pundits argue that if it can documented and its harm quantified, all responsible police leaders can be held accountable for their decision to cast such a wide net of espionage on innocent people solely because of their faith and ethnicity.

4- Make the spying and the response to it a litmus test for public officials seeking our votes and money this fall. In NJ’s contested Ninth District, both Congressmen Pascrell and Rothman were unequivocal in their condemnation of the NYPD spying, but to my knowledge, they have not supported the call for a formal investigation. On the presidential elections side, Mitt Romney, the presumptive Republican candidate, has yet to weigh in on the matter. It remains to be seen if President Obama will disavow or distance himself from Mr. Brennan. The American Muslim vote, come November, may rest on how or if President Obama responds.

The political, religious, and now ‘legal’ lynching of American Muslims will only produce a mirage for those who seek America’s security. They have become a sacrificial lamb for America’s ills and its desire for vengeance. Admittedly, the louder and more determined shouting of Islamophobes has muffled American Muslim’s categorical denouncement of terrorism. Doubtless, Intelligence-gathering, when effectively performed in ways consistent with Americans’ rights and expectations, is similarly essential. Such intelligence programs help to secure our liberties against that plot to harm them. The better these efforts function, the likelihood increases that they will protect our security and ensure our liberty.

Striking the right balance between the pursuit of security and the assurance of liberty has always been the litmus test of law enforcement. On balance, however, we should not imply an inherent tension between the two ideals.

As our Constitution emphasizes, liberty and security are mutually inclusive engaged not in a zero-sum game but in a permanently reinforcing struggle. The Muslims have lost the battle. But the war for America’s soul is far from over.

Aref Assaf is president of the Paterson based American Arab Forum, a think tank specializing in Arab and Muslim American affairs.