Posted on 11/21/2015 7:05:26 PM PST by Kaslin
A national-security investigation may "not [be] conducted solely upon the basis of activities protected by the first amendment to the Constitution." That clause, and others similar to it, are found throughout the Patriot Act and other provisions of federal law. They protect Americans from being subjected to surveillance based on nothing except their religious beliefs.
There's an obvious reason for that at least, I thought it was obvious until Donald Trump reportedly embraced the idea of forcing Muslims to register in a database. I say "reportedly" because it is not clear to me, after hearing a recording of Trump's hectic gaggle with reporters, that he intentionally articulated such a proposal. More likely, he thoughtlessly agreed that it should be considered upon being asked some loaded questions which is better, but not much.
The reason our law forbids investigations based on religion alone is also spelled out in the Patriot Act. As Section 102 explained: "The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups."
Guilt is personal and based on behavior. The idea of collective guilt based on religious affiliation violates our constitutional principles. It is offensive even to people like me, who believe Islam is better analyzed as a political ideology with some religious tenets than as, strictly speaking, a religion. After all, millions of Muslims believe in the religious tenets but do not want sharia imposed on civic life. For them, Islam is a religion, not a religious veneer on subversion.
Surveillance and other forms of investigation in our society have to be triggered by conduct, not religious, racial, or ethnic classifications. But from this correct premise, the commentariat goes wrong by contending that because these status classifications may not trigger investigation, they are irrelevant to investigations in all instances
To the contrary, they may be highly relevant. Most Muslims are not jihadists, but all jihadists are Muslims and draw motivation from a literalist construction of Islamic scripture. You can't defend against what our enemies might do without studying what they believe.
Let's take Islam out of the equation for a moment. A great deal of crime, especially conspiracy crime, has ethnic components. To be a member of the Mafia, a person has to be an Italian male. That does not mean all Italian men are organized-crime suspects; but it does mean that if a prosecutor accused a bunch of guys named McCarthy of being members of the Bonanno Family, the case would be laughed out of court.
When I was a prosecutor, moreover, it was a commonplace for the government to plead in search-warrant applications that suspected cocaine traffickers were Colombian nationals or had taken trips between Colombia and the United States. Such circumstances would not be sufficient in a vacuum; but placed in conjunction with suspicious conduct, courts would rely on the Colombian ties in granting the warrants and upholding them on appeal. Not every Colombian was a suspect, but neither did the law require that we blind ourselves to the fact that Colombia was Cocaine Central.
Here is the point: It is against our law for a person to be targeted for investigative attention solely because of the person's race, ethnicity, or religious affiliation. But if the person's conduct is suggestive of criminal activity, terrorism, or espionage, that is a valid basis for triggering an investigation. Once there is a valid basis for investigation, it is relevant it is common sense to account for religious affiliation to the extent it may shed light on the suspect's actions and state of mind.
A Muslim registry is constitutionally offensive because it would subject a person to investigative attention based on nothing other than religious affiliation. But let's put the law aside: The notion of a Muslim registry is also stupid.
A Muslim registry is constitutionally offensive because it would subject a person to investigative attention based on nothing other than religious affiliation.
When I used to prosecute terrorists, it was a source of sardonic amusement to me that all sensitive evidence and other discovery was disclosed to defendants with the admonition that they would be held in contempt of court if they transmitted the information to unauthorized persons. "Imagine that," I'd say to myself. "A guy has willingly risked death, capital punishment, and life imprisonment in order to commit mass murder, yet we think we can stop him from leaking by threatening a contempt citation?"
A Muslim registry would suffer from the same flaw. Few if any terrorists would sign up, assuming for argument's sake that it could be enforced and just imagine what would happen the first time the Justice Department indicted a Muslim for failing to register.
Newsflash: Jihadists lie whenever lying facilitates the execution of their missions. And they have no compunction about concealing their religion, ideology, or similar personal characteristics. Al-Qaeda, for example, has long sought American, Canadian, and European members because they can freely enter those places. These jihadists may have, say, American or British citizenship and passports, but they are not, in their own minds, Yanks or Brits. They are militant subjects of the ummah who are using a cover to infiltrate and terrorize. On this, the jihadists like to quote their prophet: "War is deceit."
Therefore, the only people who would end up registering would be law-abiding Muslims, who would be justifiably angry about being coerced in such a lawless and pointless manner.I opined that the only sensible strategy for preventing terrorist atrocities like the one last week in Paris (Thursday's Mali attack had not happened yet) was to emphasize (a) intelligence collection regarding radical mosques (which are not hard to distinguish from non-radical mosques) and (b) the cultivation of cooperation from the American Muslim community, including informants.
Steve and I noted that this was the very successful NYPD approach after 9/11, but it had recklessly been abandoned by Mayor de Blasio's administration. And, as I've previously explained, the Obama administration's "Countering Violent Extremism" strategy similarly rejects the prudent NYPD surveillance approach pioneered by former commissioner Ray Kelly. Obama prefers to have our law-enforcement officers retrained by the administration's "partners" in Islamic communities including Islamist organizations linked to the Muslim Brotherhood, which insist that Islamist terror has nothing to do with Islam.
Trump came on right after I hung up, and Bannon proceeded almost as if it were a continuation of our conversation. He noted that I had made a case for reviving the NYPD approach and the surveillance of radical mosques. Trump agreed that the NYPD had it right, that the development of informants was key, and that intelligence-gathering at mosques had to be stepped up. In tossing out a barrage of ideas about aggressive surveillance, Trump never came close to suggesting a Muslim registry.
For what it's worth, I don't think Trump came up with the idea of a Muslims-only database. I do think, though, that when he was fed this noxious suggestion, he did not know enough to dismiss it out of hand. (See Byron York's report at the Washington Examiner.) And that is the yuuuge problem with a populist par excellence who knows how to give the people what they want to hear . . . with the details . . . um . . . maybe to follow, maybe not, and maybe at 7 p.m. they are different from the ones offered at 7 a.m. other than that it will be the best registry in the history of history.
Counterterrorism has been undermined by too much "outreach" to all the wrong Muslims. There is no effective counterterrorism, though, without buy-in from all the right Muslims that's how we infiltrate terror cells, gather critical intelligence, and stop attacks.
Donald Trump's blunderbuss tough-on-terror rants are understandably appealing to voters exasperated by a political class that seems more indulgent of Islamist charlatans than concerned about American security. But you can't actually be tough on terror without good intelligence. Alienating the people you need it from is not the way to get it.
This is the GOPe floundering desperately and hoping something will sink Trump. It would not surprise me if half the country did want a Muslim database. :-)
No longer?
Has he ever?
The Constitution isn’t a suicide pact.
I sometimes wonder how national review could go any lower, well it just did.
Excellent piece!
It's apparent that you did not read the entire piece, or you and so many others who knee-jerk posted to this thread, would agree with McCarthy.
No, he has a case of GOP-E piling on.
[Article] ... it is not clear to me, after hearing a recording of Trump's hectic gaggle with reporters, that he intentionally articulated such a proposal.
So the LeftScumMedia put together an ambush and tried to put words in Trump's mouth, which is hardly cricket, but that's good enough to let the GOP-E mouthpieces at NRO pick up the Left's ball and run with it.
Talk about doing the bad guys' dirty work, but hey, it's not like it's the first time. They've been pulling that stuff on Main Street Republicans since the 1880's.
You are being intellectually dishonest by selectively quoting in order to lie by omission.
I suggest to any who haven’t, do read the entire article and come to your own conclusions.
Agree with McCarthy on his payload sentence?
[Art.] I do think, though, that when he was fed this noxious suggestion, he did not know enough to dismiss it out of hand.
The article is still an attack on Trump as a know-nothing bloviator and demagogue.
I guess you mean that if we all "got it" we'd agree with McCarthy and dump Trump, whom you don't like because he beat your guy.
Who, by the way, was every bit as much an E-GOP tool as Marco Rubio or Yeb.
The Uniparty is on a mission, destroy Trump.
1. No, I am not being "intellectually dishonest".
2. I never quote wholesale and indiscriminately. So sue me.
3. "Lie"? Go stuff yourself.
Congress needs to find that Islam is not a "religion" within the meaning of the First Amendment.
He never said it. He was talking about a wall, and a reporter asked if he would implement that. He said yes.
Previously, prior to when Trump was addressing the wall, the reporter asked about registering Muslims. That’s when Trump spoke up about the wall.
So, when he obviously was referring to the wall, the media goes back an entire explanation, picks up a previous question, and states that Trump said that yes, he would register Muslims. When his answer to the Muslim question was the statement about the wall, thereby clearly indicating he was speaking of controlling access to this country.
Because if the government had set out to establish it ten years ago it would be billions of dollars later and they still wouldn't have it working right.
reminds me of a gun argument we use but they don't care about.
Consider the source. National Review has been on an antiTrump mission from day one. They and the wsj are the journals of record for the gop faction of the uniparty.
Trump would keep Gitmo open, maybe expand it a little.
“A national-security investigation may “not [be] conducted solely upon the basis of activities protected by the first amendment to the Constitution.” That clause, and others similar to it, are found throughout the Patriot Act and other provisions of federal law. They protect Americans from being subjected to surveillance based on nothing except their religious beliefs.”
Well, well! Ain’t that something! The liberals go “hog wild” in throwing the First Amendment in our faces while trashing the Second Amendment and the rights granted thereof.
In total violation of the Second Amendment they have the names, addresses and inventory of all registered gun owners in America...and gleefully do so. However, we can’t have a list of extremely dangerous enemies of our culture and country.
Does this “smell right?”
Remember: The 2nd Amendment is our only protection for the 1st Amendment...and that has already been violated.
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