So the culture of legal impunity won another victory when the the Supreme Court handed down its decision in the case of Ashcroft v. Iqbal today, essentially OK-ing racial profling of "Arab Muslims" as suspected terrorists. According to this decision, FBI Director Robert Mueller and former Attorney General John Ashcroft cannot be sued by a former Sept. 11 detainees who claimed they were abused because of their religion and ethnicity, thus making it harder to sue government officials for civil rights abuses.
In effect, the court's reasoning invoked the concept of guilt-by-perceived-ethnic-association :
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members ingood standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us toinfer, discrimination is not a plausible conclusion.
So imagine you're waiting in line at the airport to board your plane, and you specifically are pulled out of line, harrassed, questioned, searched and generally insulted. If you complain that you are being discriminated against, the official can now simply shrug his shoulders and say "Al-Qaeda members were Moslem Arabs, you appear to be Moslem Arab, so I can single you out based on your ethnicity, and yet your ethnicity was merely incidental to my decision to search you and it so was not discriminatory".
Eh? Run that by me again?
There's too much irony here to address. For one thing, it seems that the court is making two different and contradictory justifications for the policy: First, that it would be OK to arrest Muslim Arabs since the hijakers were Muslims Arabs. Second, that the petitioners weren't arrested because they're Muslim Arabs so the action wasn't discriminatory (but then why does the court take such pains to explain that Al-Qaeda consisted of Muslim Arabs?)
Secondly, even assuming that "Muslim Arabs" are legitimate targets, the petitioner Iqbal was not "Arab". He was Pakistani. In fact many of the people who were arrested for no reason weren't Arab and therefore did not share that characteristic with Al-Qaeda. But racist rarely take such nuances in mind when playing guilt-by-ethnic-association.
And I'm not even sure that Iqbal was a "Muslim." What if he was actually an athiest? or agnostic? or recently converted to Buddhism? Like a lot of ignorant Americans the Court is using the term "Muslim" here in an ethnic identifier, but it is a false one. You cannot be "ethnically" Muslim any more than you can be ethnically Christian. The world's 2 billion muslims do not consititute a single ethnicity but instead constitute a wide variety of peoples. To suggest that Al-Qaeda or "Arabs" somehow exclusively represent "Muslims" and to conflate the two together is the height of ignorance and a hallmark of intolerance. But I guess such nuances are lost when talking about the rights of brown-skinned people who are all grouped together as a uniform, homogenous "Them". To acknowledge that "they" are as different and varied as "Us" would be too humanizing, I suppose.
And the court's claim that the people arrested just coincidentally happened to be Arab Muslims -- their perceived ethnicity was "incidental" to legitimate law enforcement, according to the court, and not part of a policy of specifically arresting Arab Muslims -- is simply ridiculous. But to make things clearer, lets play a "what if" game. What if after the Japanese attack on Pearl Harbor, a bunch of innocent people were rounded up and thrown into prisons -- and these people all happened to be of Japanese ancestry. Would a claim that their Japanese-ness was merely "incidental" to their treatment, be taken seriously by anyone? Of course not. In such a case, discrimination would not only be plausible, it would be probable.
Or, what if after a bombing of an abortion clinic by blonde, blue-eyed Christian terrorists, the FBI went and gathered up all Christian blondes. Would that also be really just "incidental"? I think not!
But when it comes to "Arab Muslims", the Court plays dumb.
Through this language, the Supreme Court has just given its imprimatur on the old hatemongering Far Right claim that all Moslems/Arabs/Brown people should be considered to be suspects since members of Al-Qaeda happened to be Moslem (supposedly) Arab or brown-skinned.
And I suppose the same court wouldnt find anything discriminatory about how the FBI felons as informers on Mosque attendants either.
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