Terror and the MBTA: You don’t look harmless

 Freedom watch
By HARVEY SILVERGLATE  |  December 29, 2010


Racial profiling meets war on terror: The highest federal court in New England has said it’s okay for government officials single out dark-skinned people for searches,  as long as they can concoct some cover rationale, ginned up with vague allusions to terrorism.

Leaping through one legal hoop after another, the First Circuit Court of Appeals found that an MBTA security officer had “probable cause” to search, and eventually arrest, occupants of a van parked near the Sullivan Square MBTA Station back in 2004. Officer Patricia Pitts was fresh from a one-day MBTA training seminar on “identifying potential terrorist threats,” according to the court’s decision, and her suspicion was piqued by the fact that the van’s drivers and passengers “looked Middle Eastern.”

Pitts, who is black, explained to the court: “Like myself, they [were] darker in the skin. Their skin was darker.”

She called MBTA cops, who opened the van’s doors, ordered the occupants out, and subsequently arrested them. But they were not Middle Eastern terrorists, or Middle Eastern anything. The driver was of Mexican descent, and the van was full of illegal Brazilian immigrants.

Federal courts have long held that racial and ethnic “profiling” are not adequate grounds, in and of themselves, on which to conduct a search. You can’t blithely order someone out of a car just for looking Middle Eastern. But the First Circuit, while conceding racial profiling to be constitutionally “impermissible,” ripped the heart out of that protection.

“This is not a case in which the only basis for suspicion was . . . appearance,” the court wrote. Yet the list of rather ordinary things the court views as “corroborating grounds” for suspicion is so absurd as to add up to intellectual dishonesty:

• The van was large enough to “hold a significant amount of explosives.”
• The van had “tinted rear and rear side windows” and a “temporary paper [license] plate.”
• The van “was parked in the farthest corner of the parking lot.”
• Occupants had “remained in the van for at least twenty minutes.”
• One passenger got out and took notes, which signaled to the MBTA officer that he “could be planning where to plant explosives.”

The collection of these details, said the three-judge panel in an opinion authored by the court’s chief judge, Sandra Lynch, made the search reasonable. But this list of “suspicious” activity appears to describe quite normal occurrences that have been amplified to the level of probable cause, at least to the First Circuit’s satisfaction.

In other words, race and ethnicity need not be just one factor among several in assessing reasonable suspicion, but it may be the sole factor if padded with quite ordinary activities.

The court also took pains to note the context of the incident: only a few months after the train bombings in Madrid. That recent attack, the court wrote, “meant it was material for the officers to consider, among other facts . . . that the persons they were investigating had a Middle Eastern appearance.”

Through this tortured logic, racial profiling is essentially okay in the war against terrorism — even if the suspect is not doing anything a reasonable person would deem suspicious.

In the never-ending “war on terror,” our government — taking a page from its ceaseless “war on drugs” and “war on organized crime” — is stripping privacy and dignity in the name of illusory safety. We’d do well to pay attention.

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  Topics: News Features , Terrorism, MBTA, Madrid,  More more >
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