The Magazine

The Flying Imams Win

And the rest of us lose.

Nov 9, 2009, Vol. 15, No. 08 • By SCOTT W. JOHNSON
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One of the striking elements of the facts in the case is the number of law enforcement officers who participated in the detention or questioning of the imams: Montgomery mentioned six MAC officers, one federal air marshal, three FBI special agents, at least one Secret Service officer, and four other law enforcement officers. At the time of the arrest, Montgomery observed, law enforcement officers outnumbered the imams fifteen to six.

So far as one can determine from the judge's opinion, not a single one of these officers questioned the legality of the imams' detention and interrogation. Given the variety of officers and agencies involved, one might almost posit the imams' detention as a case study in whether a reasonable law enforcement officer would think the conduct in question was legal. All of these apparently thought it was.

Montgomery was highly critical of the law enforcement officers' failure to ascertain facts that would have exonerated the imams when they were removed from the aircraft. She cited the fact that USAirways had assigned the seats taken by the imams and that they had not in fact purchased one-way tickets. She called the imams' reported cursing of the United States constitutionally protected speech. And regarding the requested seatbelt extensions (one of which, she notes, was requested by a blind imam), she said:

The MAC Defendants have produced no evidence of a documented instance in which seatbelt extensions were used as a weapon or that law enforcement ever expressed concern about their use as a weapon. It is difficult to understand what danger a seatbelt extension poses that is not also posed by a sturdy belt with a large buckle. Even assuming the extensions could be employed as a weapon, the MAC Defendants have failed to offer a reasoned explanation of how Saleddin, who is completely blind, could pose such a threat.

These observations are odd. Prior to 9/11, there was no documented instance of box cutters having been used by hijackers. Prior to Richard Reid's attempted bombing of American Airline Flight 63 in December 2001, there was no documented instance of shoes having been used as bombs. When taken together with other circumstances, the imams' request for unneeded (according to the flight attendant) seatbelt extensions certainly raised reasonable suspicion if not probable cause.

As for some of the other circumstances, Montgomery stated: "Praying in public, commenting on current events, and even criticizing government policy is protected speech under the First Amendment." This is true. She failed to note, however, that lawful speech such as cursing the United States might reasonably bear on the interpretation of other behavior brought to the attention of law enforcement.

Neither does the decision state what the interrogation of the imams turned up about their backgrounds. It wouldn't have taken much digging to discover that one of them, Omar Shahin, was a former representative of and fundraiser for the Muslim charity KindHearts, shuttered by the Treasury Department as a Hamas front in February 2006. (Shahin claims he "had no clue what they were doing.")

In the concluding paragraph of this key part of her decision, Montgomery stated:

Unquestionably the events of 9/11 changed the calculus in the balance American society chooses to make, especially in airport settings, between liberty and security. Ultimately, the proper balance will be achieved, in large part, because we have the most capable and diligent law enforcement and intelligence communities in the world. But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.

Reading the opinion elicits a question: Can we reasonably rely on law enforcement authorities to be so capable and diligent that they will arrive at appropriate determinations within a matter of a few minutes--when fifteen out of fifteen law enforcement professionals handled the case of the flying imams as they did?

The decision raises perhaps an even more basic question: What was law enforcement to do? Judge Montgomery believes the authorities were required to release the imams after a brief investigatory stop to go on their way and catch their flight or board another. The next time around, it will be the imams who fly and the other passengers who stay behind.

Scott W. Johnson is a Minneapolis attorney and contributor to the Power Line blog (