On Tuesday a judge ruled that a discrimination case against the leaders of the FBI, Customs and Border Patrol, and Department of Homeland Security would continue. The suit alleges that the practice of disproportionately questioning Muslims at the border violates the implied equal-protection guarantee of the due process rights in the Fifth Amendment. The plaintiffs, four Muslim Americans, say they were detained and questioned each time they crossed the U.S.-Canada border because of their religion. The outcome of this suit could decide if and when the border patrol can interrogate visitors, and even returning Americans, based on their religious beliefs and practices.
“In short,” the court order reads, “the question before the court is whether the government has unfettered discretion to question at the border a specific class of individuals about their religious practices and beliefs after being profiled and detained solely because of those religious practices and beliefs.” The plaintiffs allege that they were asked intrusive questions such as which mosque they go to, how often and where they pray, who their religious leader is, and so on.
FBI Director Robert Mueller III, former acting Customs and Border Patrol Commissioner David Aguilar, and Homeland Security Secretary Janet Napolitano, along with individual agents, submitted a motion to dismiss the case, which the judge rejected. Judge Avern Cohn ruled that although the plaintiff's First Amendment claim – that their freedom of religion was infringed upon by the questioning – was unfounded, their Fifth Amendment complaint should go to court. Cohn explained that the only thing that was restricted was their ability to freely cross the border, not practice of any of their religious beliefs.
"We are pleased that this important case will move forward,” said Gadeir Abbas, co-counsel for the plaintiffs. “Those who faced unlawful government questioning about their religious beliefs will continue to have their day in court.” The plaintiffs are looking for the judge to order the agencies to end any policy of questioning Muslims about their religious beliefs, and will also be requesting attorney’s fees and costs.
In a similar case in 2005, Tabbaa v. Chertoff, five Muslim Americans sued DHS Secretary Michael Chertoff for singling out people returning to the U.S. from a Toronto Islamic conference, subjecting them to interrogations, fingerprinting, and photographing. The plaintiffs alleged that the DHS violated their rights under the First and Fourth Amendments to the U.S. Constitution and under the Religious Freedom Restoration Act. The district court dismissed the case, explaining that the DHS was within their rights because of a government concern that terrorists might attend the conference.