6 Jan - USA:

NEW YORK (AFP) – An airline passenger forced to cover his T-shirt because it displayed Arabic script has been awarded 240,000 dollars in compensation, campaigners said Monday.

Raed Jarrar received the pay out on Friday from two US Transportation Security Authority officials and from JetBlue Airways following the August 2006 incident at New York's JFK Airport, the American Civil Liberties Union (ACLU) announced.

"The outcome of this case is a victory for free speech and a blow to the discriminatory practice of racial profiling," said Aden Fine, a lawyer with ACLU.

Link

2,500 people investigated by immigration officials as part of Operation Front Line


When federal immigration agents paid a visit to his Santa Clara workplace a month before the 2004 presidential election, the Pakistani engineer assumed they came to talk about his pending visa renewal application.

What they wanted to know, however, was what mosque he attended and if he associated with anyone who has "anti-American" views. And what prompted their attention, according to a copy of the investigation, was an incident three years earlier, in which he attracted suspicion for taking "detailed photos" of the Golden Gate Bridge.

Newly released government documents show the engineer was one of roughly 2,500 immigrants investigated by Immigration and Customs Enforcement as part of Operation Front Line, a 2004 probe that civil rights groups say was biased against Muslims.

An estimated 77 percent of those investigated were from predominantly Muslim countries, and none was charged with terrorism-related crimes, according to a sample of 300 cases released to civil rights groups last month after years of legal battle.

"The most striking thing about all of this is it doesn't work," said Yousef Munayyer, policy analyst at the American-Arab Anti-Discrimination Committee, which sought the information alongside Yale Law School's National Litigation Clinic. "The numbers show that racial profiling didn't lead to any national security-related charges." [Link]

An operation in 2004 meant to disrupt potential terrorist plots before and after that year’s presidential election focused on more than 2,000 immigrants from predominantly Muslim countries, but most were found to have done nothing wrong, according to newly disclosed government data....

[D]ocuments show that more than 2,500 foreigners in the United States were sought as “priority leads” in the fall of 2004 because of suspicions that they could present threats to national security in the months before the presidential election and the inauguration. Some of those foreigners were detained and ultimately deported because they had overstayed their visas, but many were in this country legally, and the vast majority were not charged....

“This was profiling,” said Michael Wishnie, a professor at Yale Law School who helped lead the research effort. He added that the findings raised questions about both the effectiveness and the propriety of the program.

“The resources devoted to this were enormous,” he said, “but the results clearly were not.” [Link]

There are times when the U.S. government allows politics to interfere with policy and ends up shooting itself in the foot. Guidelines set to take effect Dec. 1 for the FBI may be a perfect example.

Issued by Attorney General Michael Mukasey's Department of Justice, the new guidelines for FBI agents will be a dangerous step back into J. Edgar Hoover's era of disregard for civil rights and civil liberties.

The guidelines permit agents to use criteria such as national origin, travel history, race or ethnic background as part of opening an investigation. Ironically, the attorney general's original guidelines in this area were established to curb such profiling, after information surfaced about the unwarranted investigation of Dr. Martin Luther King Jr.

These new guidelines represent a danger to the Arab- and Muslim-American community in particular, but to all Americans as well. In the era in which we live, it has almost become cliché -- sadly -- to point out that an attack on one American's civil liberties is an attack on all Americans and the American ideal.

But, to all Americans, the danger of this new policy is less romantic than that. The reality is that little or no scientific evidence supports the idea that racial profiling actually works. This alone should make every American concerned about the massive inefficiencies in the use of resources by the FBI in national security, an area in which we cannot afford to misappropriate one cent.

Furthermore, the guidelines will put a strain on a relationship that, contrary to racial profiling, has been proved to lead to the arrests of terror suspects. For years, leaders of the Arab- and Muslim-American community have been working with the FBI, and other law enforcement throughout the country, to break down barriers and create trust.

For these leaders, convincing community members that federal law enforcement is trustworthy after a long history of less-than-pleasant encounters is not an easy task. From Operation Boulder, a spying operation targeting Arab Americans initiated by President Richard Nixon in 1972, to the post-9/11 response, law-abiding Arab and Muslim Americans have often been unfairly targeted by law enforcement officials.

Still, community leaders and organizations have made great strides into bridging this gap and have created the type of cooperation that stops terror. This cooperation, for example, led to the FBI's breakup of a terror cell, the Lackawana Six, in Buffalo, N.Y., in 2002, which was greatly aided by a tip from the Arab and Muslim community in the area. Or other various cooperative meetings between FBI agents and Muslim community leaders to combat radicalization at the grassroots level.

Sadly, these new guidelines will put this relationship at risk. The FBI has taken steps to reach out to community members to develop and maintain a relationship precisely because solid human intelligence is invaluable when it comes to stopping crime.

The question that remains is: Does the Department of Justice realize how much more difficult the FBI's job will become if this relationship is in jeopardy, or do they simply not care?

The new guidelines come to light at a curious time, so close to a national election that may pivot on questions of national security and patriotism.

One cannot but wonder how much of this policy-making is being motivated by politics instead of a genuine interest in national security. It's time to focus on the types of methods that put terrorists behind bars, not those geared toward putting politicians in office. [Link]

New Attorney General Guidelines May Legitimize Racial and Ethnic Profiling

The Sikh American Legal Defense and Education Fund (SALDEF)... is deeply concerned by new FBI guidelines that could lower the threshold for federal law enforcement officers to conduct investigations of individuals on the mere suspicion of questionable activity or meeting the FBI’s assessment of what it considers to be a threat.

Last week, SALDEF, along with other civil rights groups, met with Justice Department officials and reviewed draft language of the revised Attorney General (AG) Guidelines governing the investigative powers of the FBI in matters of national security. The new guidelines, which are slated to be approved on October 1, 2008, represent a major shift in public policy.

These new guidelines would allow the FBI to recruit informants, conduct pretext interviews without identifying the agency the investigator works for, and allow for physical surveillance of persons, including U.S. citizens, in the United States without evidence of criminal activity. Additionally, they would replace existing guidelines for five types of guidelines: general criminal, national security, foreign intelligence, civil disorders and demonstrations.

Currently these intrusive investigative measures are already in place to investigate criminal conduct which is based on physical evidence. The new AG guidelines will lower the standard for utilizing intrusive investigative techniques by not requiring evidence of criminal conduct, but simply the mere accusation of impropriety. [SALDEF Press Release]

Critics of the government's secret no-fly list scored a potentially important victory Monday when a federal appeals court ruled that would-be passengers can ask a judge and jury to decide whether their inclusion on the list violates their rights.

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco reinstated a suit by a former Stanford University student who was detained and handcuffed in 2005 as she was about to board a plane to her native Malaysia.

The ruling is apparently the first to allow a challenge to the no-fly list to proceed in a federal trial court, said the plaintiff's lawyer, Marwa Elzankaly.

The decision would allow individuals to demand information from the government, present evidence on why they should not have been on the list, and take the case to a jury, Elzankaly said.

The ruling means that "someone who finds it's likely that their name has been placed on a government watch list will get their day in court," Elzankaly said. [Link]

US Senate Judiciary Committee leaders Arlen Specter (R-PA) and Patrick Leahy (D-VT) sent a letter to Attorney General Michael Mukasey on Monday, calling on the Department of Justice (DOJ) to postpone implementation of new Federal Bureau of Investigation (FBI) guidelines until Congress has had a chance to review the changes. Opponents of the controversial guidelines argue that the changes, if adopted, could allow for inappropriate profiling and would allow agents to open terror investigations without evidence of any crime being committed. The senators wrote that Congress should be consulted because of the change in protocol regarding racial profiling in FBI investigations [Link]

A new program by the U.S. Department of Justice targeting Muslim men of Arab descent for surveillance is unconstitutional, civil rights groups say.

The new "terrorist profile," set to be unveiled as early as this week, is meant to keep tabs on such men who frequently travel abroad and maintain extensive international contacts, the Detroit News reported Monday.

Under the measure, the men may be subject not only to stops at the U.S.-Canadian border, but also to wider investigations that could include electronic surveillance and detentions, whether or not they are suspected of wrongdoing, the newspaper said.

"What is dangerous is that they've moved away from reasonable suspicion of criminality into the area of what they are calling suspicious behavior," Michael German, an attorney for the American Civil Liberties Union, told the newspaper. He said the group is preparing legal challenges to the initiative.

"Our people contribute economically and culturally in all aspects of American life, and this is like a slap in our face," said James Allen of the American Arab Chamber of Commerce in Detroit.

The guidelines won't circumvent constitutional limitations on the use of race, a Justice Department spokesman told the News. [Link]

U.S. says some Arab, Muslim men who regularly travel abroad may face more scrutiny.

Border guards recently began detaining Wissam Charafeddine every time he crosses from Windsor into the United States. Without explanation, he has been handcuffed in front of his parents and held apart from his pregnant wife for hours in isolated detention.

Charafeddine says he has done nothing wrong, "not even a driving ticket." But authorities, who always release him, say there is no remedy. Charafeddine is among a large group of Arab-Americans and Muslims who are detained for undisclosed reasons whenever they cross the border.

So far, Charafeddine is affected only when he goes to Canada. But as early as this week, the U.S. Department of Justice says it will announce a "terrorist profile" by which Muslim men of Arab and Pakistani descent who frequently travel abroad and maintain extensive international contacts may be subject not only to stops at the border but also to full-fledged national security investigations, which may include electronic surveillance, detentions, searches and interrogations, regardless of whether they are suspected of wrongdoing. [Link]

The federal government is putting border officials at Mississauga's Pearson International Airport through sensitivity training so they can more appropriately deal with Arab and Muslim passengers.

The Canada Border Services Agency is contracting out training sessions for up to 500 of its border services officers, stressing the need for those who screen passengers to "effectively perform their enforcement responsibilities in a respectful manner" at Canada's busiest hub.

Groups representing Canadian Arabs and Muslims are welcoming the sensitivity courses, scheduled between this September and March 31, 2009, as necessary and overdue.

"After 9/11 we became all potential terrorists without doubt, and we still have some examples of people being picked up from the line because they wear long beards or the hijab," said Mohamed Boudjenane, executive director of the Canadian Arab Federation. "It still happens on a regular basis."

He said his organization has held meetings with several government departments, including the federal border agency, to raise complaints of profiling and discrimination, and even delivered training kits to the CBSA last fall.

"That sort of proactive act, or measure, didn't come out of the blue. We had to lobby very hard with them to realize that you cannot (target certain groups) because you have preconceived perceptions or because there are all sorts of clichés out there."

Mohamed Elmasry, president of the Canadian Islamic Congress, said training courses are an "excellent idea" that are in line with the seminars and speeches that he has delivered to federal employees, including with the Canadian Air Transportation Safety Authority, over the last two years.

But he still hears complaints of Muslim and Arab passengers returning from certain Middle Eastern countries like Iran and Syria being subjected to greater scrutiny than Muslims and Arabs returning from European countries.

Those travellers are also more likely to have their luggage searched, to be questioned about their activities and purchases abroad and to have their passport information taken down, Elmasry said. [Link]

Jawad Khaki, a corporate executive from Sammamish, Wash., was returning home from a business trip to Ireland and Germany last year when a customs agent at the airport asked him to turn on his cell phone.

He already had told the agent in detail where he had traveled and why, so when the agent began looking over the to-do list and calendar in his phone, Khaki was shocked.

"It was an invasion of privacy," he said. "I thought it was going too far."

Khaki's story joins what seem to be growing numbers of similar reports from people - many of them Muslims or of Middle Eastern or South Asian descent - who say that their laptops, cell phones or other electronic devices were searched or seized at airports or U.S. border crossings, and that they've been questioned extensively.

The heightened scrutiny is prompting concern and raising questions among a diverse array of groups, from Muslim associations to law firms, corporate groups and technology organizations. [Link]

The FBI has confronted many threats in its 100-year history, from busting gangsters in the '20s and '30s to hunting for Nazi saboteurs during World War II. But its newest recruits were in college or just out on Sept. 11, 2001, and they're being trained to tackle a new enemy....

Though recruits still put in their hours at the firing range, the FBI is now focusing — some critics would say struggling — to recruit more candidates with specialized skills, including second or third languages to help deal with foreign threats.

But some civil liberties groups say they're concerned the bureau will rely on racial profiling. When FOX News visited Quantico, both arrest and interrogation scenarios included civilians playing roles as Muslim extremists.

One arrest scenario shown to FOX News was built around a Muslim bomb-making cell. Academy officials said it was to ensure that recruits are comfortable with a broad range of people. [Link]

If you're wondering how desperate of a pickle we're in in our "war on terror," check out the following item: The Department of Justice is mulling over whether to let the FBI investigate U.S. citizens and legal residents without evidence of wrongdoing. Instead, investigators would be allowed to use racial profiling, targeting, according to The Associated Press, "Muslim, Arabs or other racial and ethnic groups. ... The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect." Attorney General Michael Mukasey denies this is happening. Then again, just as he doesn't consider waterboarding torture, perhaps Mukasey has a new term for racial profiling ("racial recognition" would sound downright complimentary). Also, senior FBI agents and law enforcement officials spoke to the AP about the potential new guidelines, so we know it was/is being considered. Say hello to the World War II days, when just being Japanese was enough to be seen as a threat. So, we're being told that racial profiling might be allowed as a legitimate investigative tool. I guess that means all that warrantless spying on thousands of Americans, snooping through our mail and e-mail and keeping tabs on whom we call hasn't been yielding much in the way of evidence. Anyway. [Link]

It's unconstitutional, un-American -- and it might hurt, rather than help, the FBI's effort to stop real acts of terror.

The U.S. Justice Department is considering a change in the grounds on which the FBI can investigate citizens and legal residents of the United States. Till now, DOJ guidelines have required the FBI to have some evidence of wrongdoing before it opens an investigation. The impending new rules, which would be implemented later this summer, allow bureau agents to establish a terrorist profile or pattern of behavior and attributes and, on the basis of that profile, start investigating an individual or group. Agents would be permitted to ask "open-ended questions" concerning the activities of Muslim Americans and Arab-Americans. A person's travel and occupation, as well as race or ethnicity, could be grounds for opening a national security investigation....

If the aim is to identify al-Qaida operatives or close sympathizers in the United States, racial profiling is counterproductive. Such tiny, cultlike terror organizations are multinational. Richard Reid, the shoe bomber, is a Briton whose father hailed from Jamaica, and no racial profile of him would have predicted his al-Qaida ties. Adam Gadahn, an al-Qaida spokesman, is from a mixed Jewish and Christian heritage and hails from suburban Orange County, Calif. When I broached the topic of FBI profiling to some Muslim American friends on Facebook, a scientist in San Francisco replied, "Profiling Muslims or Arabs will just make al-Qaida look outside Islam for its bombers. There are many other disgruntled groups aside from those that worship Allah."

It is a mystery why the Department of Justice has not learned the lesson that terrorists are best tracked down through good police work brought to bear on specific illegal acts, rather than by vast fishing expeditions. After Sept. 11, the DOJ called thousands of Muslim men in the United States for what it termed voluntary interviews. Not a single terrorist was identified in this manner, though a handful of the interviewees ended up being deported for minor visa offenses. Once it became clear that the interviews might eventuate in arbitrary actions against them, the willingness of American Muslims to cooperate declined rapidly, and so the whole operation badly backfired. [Link]

President Bush and I were on the same page on profiling. Now Attorney General Michael Mukasey has me thinking outside the box.

Mere months after 9/11, with anti-Muslim hysteria peaking, Bush called racial profiling "wrong in America." This after one of his Secret Service agents was kept off a commercial flight because he is Arab-American.

Former AG John Ashcroft called racial profiling unconstitutional. Courts agreed, overturning convictions in which defendants showed they were targeted because of race.

Now, under Mukasey's watch, the FBI is considering authorizing racial profiling for national security investigations. In other words, start with ethnicity and religion.[Link]

The FBI's plan to compare untold numbers of Americans to a terrorist profile could be a sound way to target suspects and prevent attacks -- if the agency could be trusted not to use race or ethnicity or religion as automatic triggers for spying.
We fear the FBI cannot be trusted to wield a profiling pointer with a laser's precision. The temptation would be to compile a list of all Muslims or all Arabs or all members of some other group and only then start checking for legitimate triggers such as explosives training or frequent trips to terrorist-infested areas that should arouse suspicion.

The limited details on the proposed program now leaking out of the Justice Department reveal an effort that could easily boil down to presuming everyone is guilty until proven innocent. Guidelines are broad and vague and don't distinguish between what traits can be used to build profiles and what is lazy stereotyping.

Justice Department assurances that changes to existing -- and much stricter -- policies will "reflect our traditional concerns for civil liberties" are not comforting. Often the only concern the FBI and other agencies have had for civil liberties is that they get in the way of what officials want to do.

From J. Edgar Hoover's obsession 40 years ago with keeping files on John Lennon and anyone else who struck his fancy to George W. Bush's recent warrantless wiretapping, those who would spy on their fellow citizens have proven that the more absolute the power, the more likely that civil liberties will be trampled.

That the FBI profiling would be done for the most compelling of reasons makes no difference. Otherwise, there could have been no legitimate objection to New Jersey State Police using the color of a driver's skin as a proxy for evidence of drug trafficking.

Targeting people based on race or ethnicity isn't just unfair. It also isn't very effective, as profiling on the New Jersey Turnpike showed. The percentage of profiling stops that uncovered drugs, guns or other contraband was lower than for stops based on evidence that some law was being violated.

Broad federal data mining would swamp investigators with worthlessly large lists of potential suspects, just as the aviation anti-terror watch list is now approaching an unmanageable 1 million names. And as with the aviation list, almost all the suspicion would be absolutely baseless.

Maybe, just maybe, the Justice Department could develop a series of specific behavioral factors that, taken in sufficient number and under tight supervision and control, could justify taking a closer look at someone.

But we doubt it. And so far, the G-men aren't even trying. [Link]

The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.

Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: root out terrorists before they strike.

Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.

Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious.

Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person's race or ethnicity.

More than a half-dozen senior FBI, Justice Department and other U.S. intelligence officials familiar with the new policy agreed to discuss it only on condition of anonymity, either because they were not allowed to speak publicly or because the change is not yet final.

The change, which is expected later this summer, is part of an update of Justice Department policies known as the attorney general guidelines. They are being overhauled amid the FBI's transition from a traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.

"We don't know what we don't know. And the object is to cut down on that," said one FBI official who defended the plans.

Another official, while also defending the proposed guidelines, raised concerns about criticism during the presidential election year over what he called "the P word" — profiling.

If adopted, the guidelines would be put in place in the final months of a presidential administration that has been dogged by criticism that its counterterror programs trample privacy rights and civil liberties.

Critics say the presumption of innocence is lost in the proposal. The FBI will be allowed to begin investigations simply "by assuming that everyone's a suspect, and then you weed out the innocent," said Caroline Fredrickson of the American Civil Liberties Union.

Attorney General Michael Mukasey acknowledged the overhaul was under way in early June, saying the guidelines sought to ensure regulations for FBI terror investigations don't conflict with ones governing criminal probes. He would not give any details.

"It's necessary to put in place regulations that will allow the FBI to transform itself ... into an intelligence gathering organization in addition to just a crime solving organization," Mukasey told reporters.

The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.

FBI agents would not be allowed to eavesdrop on phone calls or dig deeply into personal data — such as the content of phone or e-mail records or bank statements — until a full investigation was opened.

The guidelines focus on the FBI's domestic operations and run about 40 pages long, several officials said. They do not specifically spell out what traits the FBI should use in building profiles.

One senior Justice Department official said agents have been allowed since 2003 to build "threat assessments" of Americans based on public records and information from informants. Such assessments could be used to open a preliminary investigation, the official said.

However, another official said the 2003 authorities are limited, tightly monitored by FBI headquarters in Washington and, overall, confusing to agents about how or when they can be used.

Justice spokesman Brian Roehrkasse said the guidelines governing when to open a national security investigation are part of a "harmonizing" process that will not give the FBI any more authority than it already has. He declined further comment, but he and two other senior Justice officials, would not deny the changes as they were described to AP by others familiar with the guidelines.

"Any review and change to the guidelines will reflect our traditional concerns for civil liberties and First Amendment liberties and our traditional investigative emphasis on using the least intrusive means feasible," Roehrkasse said Wednesday.

Although the guidelines do not require congressional approval, House members recently sought to limit such profiling by rejecting an $11 million request for the FBI's security assessment center. Lawmakers wrote it that was unclear how the FBI could compile suspect profiles "in such a way as to avoid needless intrusions into the privacy of innocent citizens" and without wasting time and money chasing down false leads.

The denial of funding could limit the FBI's use of profiles, or "predictive models and patterns of behavior" as the government prefers to describe the data-mining results, but would not change the guidelines authorizing them. The guidelines would remain in effect until a new attorney general decided to change them.

Courts across the country have overturned criminal convictions when defendants showed they were targeted based on race. Racial profiling generally is considered a civil rights violation, and former Attorney General John Ashcroft condemned it in March 2001 as an "unconstitutional deprivation of equal protection under our Constitution."

President Bush also has condemned racial profiling as "wrong in America" and in a December 2001 interview had harsh words for an airline that refused to let one of his Secret Service agents board a commercial flight. The agent was Arab-American. "If he was treated that way because of his ethnicity, that will make me madder than heck," Bush said.

Immediately after 9/11, hundreds of Muslims and Arabs were detained, deported and monitored as the government urgently sought information that could prevent another attack. Despite efforts to repair and nurture relationships with those groups, Muslim- and Arab-Americans still complain of being singled out by federal security practices.

Martin Redish, a constitutional and civil rights scholar at Northwestern University School of Law, said courts are likely to give the FBI a lot of leeway in deciding how to open national security investigations.

"But it's a very fine line to be drawn when the basis of the investigation is dominated by the ethnic background of the subject," Redish said. "And when the investigation results in harassment, you have a serious constitutional concern."

Citing Unabomber Theodore Kaczynski and Oklahoma City bomber Timothy McVeigh — two white Americans — the ACLU's Fredrickson said: "Profiling has sent us in the wrong direction. ... I thought we learned our lesson in that regard." [Link]

British Prime Minister Gordon Brown on Wednesday narrowly won a vote for tougher terrorism laws, emerging with his grip on power shaky but intact after a tough political battle over balancing national security and civil liberties....

Blair's ex-chief legal adviser Lord Goldsmith and Britain's current chief prosecutor Ken Macdonald are among key officials who insist new police powers are unnecessary.

Goldsmith said the proposals could strain relations with Britain's Muslim communities and choke off a vital flow of intelligence to police.

Some critics see the issue as part of an ongoing fight to balance civil liberties and national security , following skirmishes on the use of police profiling, DNA and plans to introduce identity cards to the U.K. for the first time since World War II. [Link]

Recently, the U.S. Court of Appeals for the First Circuit issued a series of decisions mimicking an odd dance. The end result? The first jury verdict in favor of the plaintiff in a post-9/11 airline racial profiling case against a company that was overturned. The outcome is devastating to all people who suffer discrimination and seek a remedy in court. However, the process by which this decision was reached may be even more disturbing than the outcome.

In a decision issued on January 10, 2008, the three-judge panel that heard the appeal stated: "Race or ethnic origin of a passenger may, depending on context, be relevant information in the total mix of information raising concerns that transport of a passenger ‘might be' inimical to safety." This statement indicates that these three judges find it acceptable to consider a passenger's race in determining if he or she may travel on an airplane. This is a frightening legal ruling with enormous implications.

Claims of racial discrimination are notoriously tough cases to win. Whether in a workplace, restaurant, or jury selection, a person in power who discriminates based on race can usually concoct a non-race-based reason to justify an otherwise racially discriminatory action. As Justice Thurgood Marshall wrote in a concurring opinion to the Supreme Court's most important decision concerning racial discrimination in jury selection: "Any prosecutor can easily assert facially [race] neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons."

Plaintiffs bringing discrimination cases therefore face an uphill battle to convince a jury to look deep into the mind of the decision-maker and determine that the true reason, the motivating factor for the decision—be it firing, exclusion from a public place, or dismissing a juror—was race.

After 9/11, public frenzy, fueled by media and the government, gave rise to widespread suspicions of people of Arab descent. As early as one week after the attacks, a New York Times commentator wrote that prior to 9/11, the idea that racial profiling was wrong was "so universally accepted that it had become the received wisdom." In the aftermath, the question became whether it was acceptable to "stereotype." The answer appeared to be yes, at least from reported experiences. Since then, "flying while Muslim" has become one description for post- 9/11 racial profiling on airlines, a play on the "driving while Black" description of police targeting African Americans for traffic stops.

In this context post-9/11 racial discrimination claims, especially those pertaining to airlines, have seemed so daunting that few plaintiffs and plaintiffs' attorneys have chosen to litigate these cases. Because of the high security risk associated with airlines, instances of racial profiling—even when blatant—have seemed sure losers and were, indeed, frequently lost even before trial.

Finally, lawyers at Public Citizen Litigation Group brought the case of Cerqueira v. American Airlines. The plaintiff, a man of Portuguese descent, suffered serious financial and emotional injury when, mistaken for "Middle Eastern," he was removed by the pilot from an American Airlines flight. An American Airlines administrator subsequently refused to rebook Cerqueira on a later flight. After a Boston jury awarded Cer- queira a six-figure verdict, civil liberties lawyers and racial profiling activists were given hope that anti-discrimination laws still had teeth to rectify the injustices perpetrated in the name of national security.

Sadly, the victory did not last. In an appeal to the First Circuit, American Airlines attacked all aspects of the trial, including the jury's decision. The airline must have understood that it had far more at stake than this one verdict against it as reports of similar incidents had emerged all over the country and any indication that profiled individuals could successfully sue might subject American and others to extensive liability for violating their passengers' rights.

American Airline's efforts were rewarded. As noted above, the First Circuit panel not only overturned the jury verdict, but took the unusual step of entering a final judgment in favor of American Airlines, rather than sending the case back for a new trial. It ruled that not only did the trial judge give an erroneous jury instruction that rendered the verdict invalid, but also that under the correct standard, no reasonable jury could find that either the pilot who kicked Cerqueira off the plane or the agent who denied him rebooking was motivated by race.

This decision was, in part, rooted in the court's surprising conclusion that the customary test for determining if discrimination caused a plaintiff's injury—known as the McDon- nell Douglas burden-shifting analysis —doesn't apply in the airline context. Rather, a higher, even tougher standard for the plaintiff is at play, essentially requiring that plaintiffs present direct evidence of discriminatory animus; inferences and circumstantial evidence no longer have value. It is a rare case where direct evidence can be found.

As if that was not bad enough, the three-judge panel went on to suggest that even if race had been a factor in the pilot's decision to remove Cerqueira, it could have been permissible. It was a gratuitous comment, unnecessary to support their decision. Indeed, Public Citizen, barred from retrying the case by the First Circuit's decision, filed a petition for rehearing by the entire court. "The panel's conclusion that racial profiling is a legitimate security measure is unprecedented," Public Citizen argued in its petition. On February 29, the full court denied the petition to rehear the case.

The unusual nature of the case was exacerbated by two additional maneuvers. First, two of the five active judges on the court dissented from the decision to deny rehearing—a relatively rare occurrence. The dissenters were critical of the court's failure to review the three-judge panel's decision and of some particular aspects of the decision itself, but did not touch the single most objectionable comment—that using race as a factor to deny airline service to a passenger is permissible.

Second, and most likely related, the original panel issued an "errata" to its opinion. Rather than correct a simple typographical or citation error, the court's "errata" eliminated the entire paragraph in which the panel included its offensive legalization of racial profiling. Though we can only speculate about the court's reason for issuing the errata—for instance, would there have been one more vote for rehearing had the paragraph stayed in the opinion?—we do know that this stealth move has two practical consequences.

First, it puts this egregious throwback to legalized racism out of reach of legal challenges. Second, it effectively denies that the three-judge panel ever legalized racial profiling so explicitly. Because the change was issued in the form of an errata and not an amendment to the decision, no researcher looking for the case in its official published report will ever know that it was so altered.

Though the court's errata was rescinded after for six weeks when it legalized racial profiling, the extremity of the three-judge panel's original statement cannot be ignored. The panel's remarks regarding the per- missibility of considering race as a factor in the airlines' safety calculus is reminiscent of the Supreme Court's statements upholding the constitutionality of Japanese internment during World War II. In the infamous 1944 decision, Korematsu v. United States, the Supreme Court explained that, "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."

Though Korematsu has long been condemned by legal scholars and courts alike, it has never actually been overruled. Thus, even today, the Supreme Court's decision to uphold the exclusion order that drove Korematsu from his home and to an "assembly center" remains the law, ruling that, "When under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger."

In their original decision last month, three judges of the First Circuit managed to align themselves, if only temporarily, with one of the most shameful moments in U.S. legal history. They made a bold and unnecessary statement ostensibly permitting race to be considered when determining if a passenger is "inimical" to airline safety. Although that statement was ultimately struck, there can be no doubt that it was not made accidentally. We can only conclude, therefore, that we find ourselves in a dangerous judicial climate, where such a ruling is only a vote or two away from becoming law.

And yet, the First Circuit comforts us with its assurance that "[t]his case does not involve any claim of constitutional right on the part of the plaintiff...[r]ather, the case involves only the intersection of various statutes, which articulate competing policy concerns."

Apparently, as it is merely the issue of interpreting two statutes, we should not concern ourselves that we are losing legal protection against institutionalized racism. [Link]

A NATIONAL CIVIL rights organization named the Sikh Coalition has a big problem with security screeners at San Francisco International Airport. The group recently released a report that says SFO is a "worst-case scenario" for turbaned Sikh travelers, claiming this group of passengers is subjected unfairly to second screening as an act of profiling that has little to do with preventing terrorism.

It would be easy to dismiss this as a one-sided view of how federal security screeners — and not airport employees — are conducting themselves. But there are some disturbing facts emerging that lead us to believe there is something amiss here.

The coalition says that it found 80 of 113 airport screening complaints involved additional searches, and 28 of those 80 took place at SFO.

The Transportation Security Administration altered its approach toward travelers wearing turbans. There was a time when Sikh passengers were forced to remove their turbans; the headgear is an article of faith only to be removed in the home and in private. To Sikhs, that's similar to strip searching.

The TSA backed off and travelers wearing turbans were searched only if they failed to clear metal detectors or other preliminary checks.

Since October, the TSA gave screeners discretion on when to further search travelers wearing bulky headgear, taking into consideration things such as action suspicious and travel itinerary. The coalition claims SFO security staff viewed the new guidelines as a mandate, meaning anyone with a turban that looks funny is subject to more screening.

TSA spokesman Nico Melendez claims the high number of complaints at SFO reflect the fact more passengers arrive from India to SFO than any other domestic airport. But later he claims that metal detectors and wands cannot filter out all weapons, such as plastic explosives. He said it's critical to "keep a step ahead" of terrorists.

This kind of mentality is disturbing. With that approach, why don't we second-screen everyone if metal detectors aren't picking up everything?

There's a good chance that once again civil rights are being threatened by paranoid airport security screeners who see a terrorist under every turban.

The truth is that it is impossible, given current technology, to filter out everyone. If there is probable cause for additional searching, that's one thing, but to arbitrarily pull people over for what they wear or what they look like is unacceptable.

We suggest the TSA and Federal Aviation Administration investigate how SFO screeners are conducting themselves, perhaps even an independent probe, and if there's unnecessary screening, it must be eliminated.

Look at other major airports and how they screen without complaints, perhaps there are some good models across the country that SFO can pattern itself after.

We understand this is one coalition's complaint, but it appears to have merit. We hear enough alarms to know an investigation is warranted and a change of policy is needed. [Link]