The start of winter break was an exciting moment for Hassan Shibly, and not just because he didn't have to go to classes. Finally, a federal judge would soon be ruling on his group's case against the United States that he and five other Muslim-Americans had their civil rights violated at the U.S. border.
Now back at school, Shibly can say that what started as a promising vacation ended in disappointment. District Judge William M. Skretny ruled on Dec. 22 that UB's Shibly and his group did not have their constitutional rights violated in 2004 when they were detained and searched upon returning from a Islamic conference in Toronto.
Shibly said he and the other plaintiffs would be appealing the decision.
The group, which includes two UB students and an instructor, teamed up with the New York City Civil Liberties Union and in April 2005 filed suit against the U.S. government for an allegedly illegal five-hour detention and racial profiling at the U.S.-Canada border.
Shibly, Kerema Atassi and Sawsan Tabbaa alleged they were wrongfully and illegally detained at the border when returning from the conference in December 2004. The plaintiffs, all of whom are U.S. citizens and had passports or New York State driver's licenses with them at the time, were detained for about five hours at the Lewiston-Queenston Bridge on Dec. 26 and 27.
Judge Skretny, however, refused to tell U.S. Homeland Security officials they cannot conduct the same kind of inspections of people returning from this year's conference, according to The Buffalo News. He also granted summary judgment in favor of Homeland Security, dismissing the lawsuit.
Shibly, a sophomore who is the chair of the Student Association Assembly, said he was upset by the ruling and its implications.
"It's very dangerous because the judge said it's constitutional to do that," he said. "Right now, we're concerned for future groups. This time it happened to us, and the government essentially threw the First and Fourth Amendments out the window."
That future concern, Shibly said, is why he and the other plaintiffs plan to appeal the decision.
"It won't be us next time, but who knows who else will be targeted in the future," Shibly said. "This isn't even about Muslim civil rights anymore, but it's about American civil rights in general. This is a very dangerous ruling and something that every American should be worried about. This judge is basically saying that Homeland Security can stop groups based on their political or religious affiliations, and that's not right.
That's why people came to the United States, Shibly said, because they were guaranteed no harassment based on those qualities.
In a 33-page ruling, Skretny said last year's border incident was "unfortunate." But he said border agents did not violate the constitutional rights of those who were detained, questioned, photographed and fingerprinted. The judge noted that Homeland Security officials decided to detain and question the Muslim-Americans after receiving information that someone linked to terrorist activities might have attended the conference.
Skretny wrote that especially since the attacks of Sept. 11, 2001, the government has a duty to protect the borders and investigate all possible terrorist threats. He said a lack of manpower at the bridge and "burdensome" fingerprinting procedures caused some of the Muslim-Americans to be detained for a long time.
"As unfortunate as the incident may have been, I find that it was not unconstitutional," Skretny wrote. "It is well settled that the government's interest in securing the nation against the entry of unwanted persons and things reaches its pinnacle at the border. It is for this reason that the government's authority to conduct routine searches and seizures at international crossings has long been recognized."
U.S. Justice Department officials in Buffalo declined to comment on the ruling. A Washington spokesman, Charles S. Miller, said the government is pleased with the ruling, but would not comment further.
The NYCLU plans to spearhead an appeal of the courts decision, according to Udi Ofer, an attorney with the New York Civil Liberties Union who is representing the plaintiffs.
"We believe that the government violated the First and Fourth amendments when it detained, interrogated, fingerprinted and photographed U.S. citizens based on the fact that they attended a religious conference, and we think that the second circuit, which is the court of appeals, will agree with us," said Ofer.
Whether the plaintiffs' constitutional rights were violated is the main point of contention.
"The judge's decision is a horrible precedent for the First Amendment. It basically implies that this doesn't apply at the border," Ofer said. "We believe that U.S. citizens have a right to engage in religious freedom and in free speech whether they're in Toronto or in Buffalo and that the U.S. government cannot punish American citizens for engaging in religious behavior or free speech, whether they're in this country or another. And that's exactly what Hassan Shibly and others did when they attended the 'Reviving the Islamic Spirit' conference."
Ofer said discriminating against this group of people based on their faith leaves the door open to discriminate against any other groups of people.
"One of the things that has come out from the work we've already done on the case is that it's no longer in dispute that the government detained, interrogated fingerprinted and photographed U.S. citizens based solely on the fact they attended a religious conference in Toronto. For me, (there is) no other way to describe that than punishment," he said.
Ofer said at the conference people engaged in communal religious prayer and learned more about the religion while meeting other Muslims.
"In the same way we wouldn't want the government punishing people for attending Catholic Mass, we don't want them punishing people who attend a conference on Islam," he said.
Despite Skretny's ruling, Shibly said some good has come out of the case.
"With all the attention the case has gotten, we didn't have to go through the same humiliating treatment going through the border when we returned from this year's conference," Shibly said. "That was part of the case, the fact that this is an annual religious conference. What makes America awesome is the freedom to go to things like that without fear of intimidation or harassment. Because of the attention the case has gotten, the government was very careful to stick to constitutional rules and not put us through that again."
Ofer emphasized that it all comes back to the First and Fourth Amendments' stances on detention for superficial reasons.
"You're not allowed to do that," Ofer said. "Judge Skretny in Buffalo said the government should be allowed to do whatever they want at the border, including punishing citizens for engaging in free speech and religious freedom. But we disagree, and that's what it's come down to."
Photo: Meredith Forrest Kulwicki
