By Seth Richardson
There’s a very common misunderstanding about the Fourth Amendment, particularly on the part of Catherine Roper, a Pennsylvania ACLU attorney, who really ought to know better. Roper complains in an Associated Press story about the NYPD’s intelligence-gathering practices on college campuses in the Northeast concerning Muslims student groups, that the NYPD “should be spending their time looking at the more specific behaviors that ought to draw their attention and make them investigate a person or a group” rather than gathering intelligence on and infiltrating Muslim college student groups simply because they are Muslims.
Here’s the problem with Ms. Roper’s argument; the police cannot distinguish those groups that are harmlessly exercising their civil rights from those groups that are engaging in unlawful acts or are planning terrorism without spending some time monitoring and getting to know all the groups and their members.
The Fourth Amendment explicitly prohibits “unreasonable” searches, not all searches, and not all law-enforcement intelligence gathering efforts. The Supreme Court says that an “unreasonable search” takes place when police physically invade private property or violate a person’s “reasonable expectation of privacy” without a warrant.
But while the police have a duty not to violate a reasonable expectation of privacy, they also have a duty to serve and protect the public by investigating and keeping tabs on potential threats to public safety.
Quite simply, there is no reasonable expectation of privacy in the actions of any campus political, religious or social club when a police agent is a member of that group.
The parameters of police surveillance of potentially seditious terrorist groups and other criminals were set back in the 1920s, when federal agents infiltrated criminal gangs during Prohibition clear through the 1960s when police undercover agents infiltrated groups like the Students for a Democratic Society (SDS) and other revolutionary student groups who were advocating violent overthrow of the government and were bombing, killing and maiming people nationwide. A notable example of such domestic terrorism where more infiltration and surveillance was needed is the case of SDS founder William Ayers, a friend of Barack Obama, who admitted to blowing up police stations and other terrorist acts in the 60s. He’s an unrepentant terrorist who should still be the subject of FBI surveillance.
The hoary old canard tossed out by Ms. Roper that it’s improper “religious profiling” for the NYPD to scrutinize Muslim student groups ignores the obvious and well-established fact that Muslim student groups are some of the primary places where Islamic radicalism, recruiting and terrorist plotting takes place. Is this true of all Muslim student groups? Of course not. But it is nonetheless true of some such groups, and the NYPD has every right, and indeed a duty to winnow the wheat from the chaff by infiltrating and gathering intelligence on such groups, within the strict boundaries of the Fourth Amendment, in order to determine which is which so they can focus on the real threats.
The adage in gold mining is “gold is where you find it.” The corollary is that you won’t find gold unless you go looking for it, and in the process you’re going to look at a lot of rocks that aren’t gold before you find a nugget. The same thing applies to police intelligence investigations of potential terrorist or criminal groups. They have to look at a large number of groups to determine which ones are harmless and which ones are threats, and then focus their efforts on the threats.
This obviously means that “innocent” individuals will be the subject of police interest and scrutiny, but the fact of the matter is that there is no constitutional right to be free of police interest and scrutiny, there is only a right to be free from unreasonable search and seizure by the police. Those groups and individuals who are innocent of any wrongdoing or potential threat will be of interest only peripherally to the police, and once the police are satisfied they are not a threat, the surveillance will cease and be focused on the actual threat groups.
Is it “religious profiling” for the NYPD to focus its attention and efforts on (in this case) Islamic groups? Yes, it most certainly is, but then again there’s nothing inherently wrong with or illegal about religious, political, ethnic or racial profiling if the religious beliefs, political activities, ethnic practices or race of an individual are primary aspects of suspect identification. If the witness description of a suspect in an armed robbery is that of a Caucasian male, it’s not racial or sexual profiling for the police to be looking more closely at white males than black females. The same is true of any other suspect descriptor, and unfortunately for peaceable Muslims, the violent radical terrorists within their ranks have certain traits and behaviors in common with innocent Muslims. That’s not a reason to ignore the fact that radical Muslims intent on terrorism, or recruiting others into terrorism, are highly likely to be found associating with other Muslims.
As a side note, I don’t hear Ms. Roper complaining about the FBI’s infiltration and surveillance of right-wing radical groups like the Freemen or various other “militia” groups, which smacks of rank hypocrisy to me.
In the case of Muslims, the vast majority are peaceful people, but there is a small, extremely radical and violent sub-set of Muslims who comprise a clear and present danger to national security, and the primary characteristic that binds all of these dangerous radicals together happens to be the religion of Islam. Just as the justification for infiltrating the SDS with undercover police agents was the primary characteristic that bound together murderous radicals of the 1960s, radical Marxism, the justification for gathering intelligence on Muslims is that one of the primary characteristics of violent Islamic extremists is Islam.
It’s therefore far from “unreasonable” for the police to show interest in Islamic groups on college campuses and for them to lawfully infiltrate and gather intelligence on their activities in order to separate the sheep from the goats, provided that the police do so within the well-established rules for such activities, which have been honed and refined in the four decades since the SDS was routinely infiltrated by police agents on college campuses nationwide.
The activities of any group that unknowingly invites a police undercover agent into the group are Fourth Amendment fair game for intelligence gathering. The police are not required to identify themselves as police officers in such situations, any more than an undercover officer infiltrating a drug cartel or organized crime network is required to do so. The invitation negates any reasonable expectation of privacy.
And if the activities of the group turn out to be harmless and lawful, then the police intelligence gathering will actually benefit the group by freeing them from continuing surveillance, no one’s privacy will have been unlawfully invaded, and the police will be able to better do their duty to ferret out and destroy actual Islamic terrorist cells on university campuses.
And there is little question that such Islamic terrorist cells exist on our university campuses. That much we do know.
© 2012 Altnews