The United States government asserts the authority to interrogate, shackle, and imprison travelers who possess Arabic flash cards in the Philadelphia International Airport. If sanctioned, this claimed power will have far-reaching consequences for our First and Fourth Amendment rights.
In the summer of 2009, Pomona College senior Nicholas George looked forward to starting his final year in college. He was scheduled to return to California on Southwest Airlines. At the Philadelphia International Airport, however, he was interrogated, handcuffed and confined in a jail cell because he passed through airport screening with Arabic-English flash cards (i.e., study aids) and a book critical of American foreign policy. The flash cards included, among dozens of words, the Arabic translations of “bomb” and “explosives” – facts emphasized by the U.S. government in its failed attempt to dismiss Nick’s lawsuit.
Two TSA officers detained the college student and a third TSA agent posed him a series of abusive questions, including, “how do you feel about 9/11,” do you know “who did 9/11,” do you know “what language [bin Laden] spoke” and “do you see why these cards are suspicious?”
At TSA’s behest, a Philadelphia police officer cuffed Nick, took him to the airport police station, and locked him in a jail cell. Hours later, Joint Terrorism Task Force agents questioned Nick about his personal and religious beliefs, educational background (including why he was studying Physics at a liberal arts college), and associations (including whether he was a member of “pro-Islamic” or “communist” groups on campus). The JTTF officers then told Nick he was not a “real threat” and indicated he was free to leave.
TSA has the authority, under the Fourth Amendment, to search a traveler’s belongings for weapons and explosives; but those searches cannot last longer than reasonably necessary to achieve that end. TSA’s search of Nick’s person and luggage – which was quite thorough – revealed no evidence that Nick carried any weapons or explosives. Once the search turned up nothing that would endanger airline safety, TSA’s authority was exhausted. TSA agents, however, continued to detain Nick without reasonable suspicion of criminality, the standard required under the Fourth Amendment to justify an investigative detention. Compounding this injustice, TSA directed Philadelphia law enforcement to restrain and imprison Nick – without probable cause to believe he had committed or was committing a crime, the existence of which is essential to justify the constitutionality of an individual’s arrest and imprisonment.
TSA also retaliated against Nick for possessing First Amendment protected materials. Airport officials are not free to burden a traveler’s right to study certain books, or to summon police officers to arrest a traveler who carries an Arabic language news article, or, perhaps, the New York Times, which reports on a daily basis about explosives detonated around the world. What is more, TSA’s actions, if authorized, would chill students from studying Arabic, whose fluency is a prerequisite for many fields of employment, including high-level national security positions.
The ACLU-PA and co-counsel initiated a lawsuit in U.S. federal district court against the U.S. government, Philadelphia police officers, and individual TSA employees for violating Nick’s clearly established Fourth and First Amendment rights. All the federal defendants moved to dismiss the lawsuit; the court recently denied the motions in full, and the case is now proceeding to discovery.
Our Nation’s founders understood the human instinct to sacrifice freedom in times of national crisis. That is why they enshrined our essential freedoms in the Bill of Rights. At the ACLU-PA, we aim to safeguard these fundamental liberties. It is only with your help that we can continue to do so. We thank you deeply for your support.
Seema Saifee, Legal Fellow, Philadelphia