"See Something, Say Something" And Impunity for Profiling

The "See Something, Say Something Act" seeks to amend the Homeland Security Act so that any person who files a report in "good faith" will be immune from civil suit. We should be skeptical of any act extending immunity from the law.
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An earlier version of this post appeared at AslanMedia.com.

Imagine that you are traveling in Washington, DC or New York. You take a few photos of the sights, perhaps even a few minutes of video. You make a couple of calls or jot off a few text messages. Observing all of this, the kind of "alert citizen" who sees jihadists under his bed at night gets suspicious, and naturally alerts every branch of law enforcement in existence. You are investigated and, after great personal and professional cost, cleared of all wrongdoing. Once cleared, you wouldn't mind recovering some of those costs from the suspicious soul who wrongly accused you of terrorist activity, but you cannot: the person who reported you is immune from civil suit.

That immunity would be granted by the "See Something, Say Something Act of 2011," currently working its way through Congress in several forms: S505, sponsored by Susan Collins (R-ME); HR 495, sponsored by my habibi Pete King (R-NY); and HR963, sponsored by Lamar Smith (R-TX). The bill seeks to amend the Homeland Security Act of 2002 so that any person who files a report in "good faith" and "based on an objectively reasonable suspicion" of a potentially terroristic "transaction, activity, or occurrence" will be "immune from civil liability under federal, state, and local law." In the same stroke, any government official acting on this report will have the same immunity.

We should be immediately skeptical of any act extending immunity from the law, criminal or civil. And the language here used does little to assuage that skepticism. What is an "objectively reasonable suspicion"? The "reasonable suspicion" test has already proven to be a slippery justification for police to stop vehicles, where it has seemed to be racial profiling by another name. As a test in "See Something, Say Something" it is even more troubling in that it does not require any material evidence before conferring immunity on an individual who is not a law enforcement professional, and thus has no training or experience in determining what might truly qualify as suspicious behavior. There is a certain, and seemingly common, kind of untrained eye that sees an al Qaeda operative lurking under every prayer cap.

Recent revisions of the federal Whistleblower Protection Act (WPA) provide an example of more specific language. Responding to the concern that the courts had placed too rigid a test on whistleblowers -- a key precedent demands that an employee have access to "irrefragable proof" before being eligible for protection -- the 111th Congress revised the act so that the test is "whether a disinterested observer with knowledge of the essential facts" could conclude with the whistleblower that the alleged violations were made. The difference is significant: rather than the test of justifiable suspicion in "See Something, Say Something," the revised WPA demands that one is able to furnish compelling evidence to be eligible for protection. And even after this more stringent test, the protection it offers is against workplace reprisal. It does not protect whistleblowers from civil litigation at all levels of the judiciary.

Despite its obvious dangers, "See Something, Say Something" has received some enthusiastic support. In a hearing held on June 24, it was endorsed by Lawrence Haas, a Senior Fellow at the American Foreign Policy Council, and Zuhdi Jasser, President of the American Islamic Forum for Democracy and professional lapdog of Islamophobes. Haas pointed out citizen reporting of suspicious behavior is an important tool in the fight against terrorism, citing, among other examples, Faisal Shahzad's attempt to bomb Times Square, which was disrupted by an alert t-shirt vendor who alerted police to a smoking vehicle. Both Haas and Jasser pointed to the Forth Hood shooting as a case where concerned voices were not heard: though several Army doctors reported that Nidal Malik Hasan had taken to espousing jihadist views in e-mails, blog posts, and lectures, no action was taken against him.

These examples do not hold water as justification of the act in question. The Times Square example shows that the existing rules work: at a crucial moment, a citizen did not hesitate to report a suspicious vehicle, and did not wring his hands at all about his immunity from civil action. The Fort Hood example also shows that under current legislation individuals do not shy away from reporting their concerns. The problem was not any sort chilling effect on reporting caused by the potentiality of a civil suit; it was the more pedestrian bureaucratic SNAFU of not taking action on significant information. There is no example available of a witness providing legitimate evidence of terrorist activity and later being successfully sued for doing so. As such, "See Something, Say Something" creates a legal immunity without evidence of its necessity.

What's more, empirical evidence suggests that Muslim-Americans themselves are hostile to radicalism and actively report suspicious activity under current law -- such are the findings of a study by the RAND Corporation and the recent work of David H. Schazner and Ebrahim Moosa. The only member of law enforcement testifying at the hearing of June 24, Chris Burbank, Salt Lake City's Chief of Police, suggested that the proposed legislation might breach a fragile trust. He raised the analogy of fighting gang violence, which has depended upon cooperation between police and members of the public. Greater incidence of citizens reporting their fears would produce a greater number of police responses -- and responses of a forceful kind, given that police must assume that reported gang members are violent and well armed. "If the suspicions of the caller are incorrect, the perceptions of the community are [that] the police are being heavy handed and targeting minority youth." He concluded that "law enforcement as a profession will suffer" if new forms of immunity ignore "legal standards of probable cause and probable suspicion." Existing cooperation with law enforcement can be easily derailed if a community perceives itself to be under attack by the law and its officials.

If passed, this bill will be yet another of the powers of Star Chamber accrued by the US Government in the name of homeland security: issuing search warrants through secret courts, accumulating personal records without warrant (in a provision of the PATRIOT Act renewed by President Obama), and now protecting witnesses from legal recourse when they level dubiously factual charges. It is a central principle of the modern legal tradition that there must be a balance of power between accuser and accused. "See Something, Say Something" upsets that balance by limiting the right to seek redress for false accusations.

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