The Uncivil Servant: Follow-Up: My Son, the Homeland Security Threat

by Mitchell Abidor A follow-up to his article, “My Son, the Homeland Security Threat”, in our Spring 2012 issue. One can only assume that when U.S. District Court Judge Edward R. Korman issued his decision in the case of Abidor v. Napolitano on the morning of New Year’s Eve, having heard the case two and a half years earlier, he did so because he knew that his decision would, in the current climate of distrust of government snooping, give rise to much opprobrium. He thought he’d sneak it in under the radar — and it did, in fact, create less of a splash than it would have if issued at another time. Still, as the father of the plaintiff in the case — and as an American citizen — it’s been comforting for me to know that Judge Korman’s decision has been treated not only with distaste but with derision, as it revealed his complete lack of touch with reality in 20^th-, much less 21^st-century America. Briefly, the facts of the case are that in May 2010 my son Pascal was returning to Brooklyn from Montreal, where he is a doctoral student in Islamic Studies at McGill, specializing in Lebanese Shi’ism. When the train reached the U.S. border, agents from Customs and Border Protection (CBP) asked him why he was in Canada. When he explained about his studies, they asked him why he was studying that particular topic. They then asked him to log on to his computer, and he did. When they saw photos he’d taken in his travels in the Middle East, he was handcuffed, taken from the train, put in a cell, and questioned for four hours. When he was finally released (and left at the border and told to find his own way home), they returned his cellphone (which they’d tampered with) but kept his laptop. Repeated calls to find out when he’d get it back failed, and Pascal contacted the American Civil Liberties Union (ACLU), which immediately got the computer returned and then filed a lawsuit attempting to put an end to the practice of suspicionless searches of laptops by CBP. More than a year after these events, a hearing was held in which the government claimed that Pascal had no standing for a lawsuit, since CBP is entitled to carry out searches of this kind. The ACLU countered that CBP policy violates Fourth Amendment guarantees against illegal search and seizure. The hearing was farcical, however, and a foretaste of the decision: The ACLU was prepared to defend peoples’ rights not to have their laptops inspected (in Pascal’s case, we later learned, his data had been copied by the government), but Judge Korman spent much of the hearing questioning people’s need for a laptop. (He, after all, didn’t use one.) Korman’s decision — written, no doubt, in quill — focused much on this issue. Traveling with a laptop, which is hardly a rarity, is asking for trouble, he said: “While it is true that laptops may make overseas work more convenient, the precautions plaintiffs may choose to take to ‘mitigate’ the alleged harm associated with the remote possibility of a border search are simply among the many inconveniences associated with international travel.” Korman’s decision also attempted to exculpate the government by saying that government searches aren’t the only risk, since many people lose their laptops — as if there were some equivalence between the two. Using a laptop is a foolhardy endeavor in any case, he wrote: “It would be foolish, if not irresponsible, for plaintiffs to store truly private or confidential information on electronic devices that are carried and used overseas.” The judge exists in a world where people don’t bank online, don’t keep their documents on their computers — and clerks with eye-shades scriven away at their upright desks. All of this would be laughable, if its ramifications weren’t so great. Korman has given CBP license to expand its searches as much as it likes. In these days of Wikileaks and NSA spying, he has maintained naiveté about the government security apparatus: “A careful reading of CBP and ICE [Immigration and Customs Enforcement] directives indicates that these agencies are sensitive to the privacy and confidentiality issues posed by border searches of electronic devices.” After all, if you can’t trust a security agency’s directive to tell you how upright and honest it is, then what can you trust? Indeed, Korman simply cited CBP directives as justification for their acts, as if the question wasn’t the validity of these directives. If a directive existed saying that every hundredth baby crossing the border was to be kidnapped, and then every hundredth baby was, would the directive still be legal? For Korman, the answer is clearly yes. Other parts of his decision are equally frightening. Because searches like those Pascal was subject to are relatively rare — only (!!) 3,000 US citizens in a two- year span — Korman had the temerity to say that there is “less than a five in a million chance that their computer will be searched.” Leaving aside the shaky nature of CBP statistics, his novel interpretation of the Constitution, which is that some undefined number of people have to have their rights violated for an issue to be considered a violation of the Constitution, again allows the government free rein in walking roughshod over our rights. His justifications for Pascal being a legitimate suspect are simply atrocious, and ultimately pointless. Pascal had photos of Hamas and Hezbollah rallies on his laptop. Korman accepted that Hezbollah was a legitimate subject for Pascal’s research, since they’re Shi’ite, but Korman found Hamas cause for alarm. The notion that the people working for CBP at Champlain, New York know the difference between a Shi’ite and a Sunni group is laughable. Korman has again left them free to do whatever they please. Korman also found the CBP agents were justified in viewing Pascal as a legitimate suspect because his visas for travel to the Middle East were all in his French passport (he’s a dual citizen), and not his American one. “Although Abidor told officers he was living in Canada, he possessed both a U.S. and French passport, a circumstance which, while perhaps innocent in itself, in combination with other factors may have increased the level of suspicion, especially as the passport containing the visas from Lebanon and Jordan was not produced initially.” In fact, Pascal’s visas were in his French passport because he had worked in Jordan and traveled in the region while employed by the prestigious and far-from-suspect British Council for Research in the Levant, a position he could only hold as an EU citizen. But further, If Korman or the CBP agents had the common sense granted a rock, they’d have figured out that if you’re traveling in the Middle East and have the opportunity not to be identified as an American in the event of trouble, it’s not an unwise thing to do. This was all explained by Pascal when he was questioned. In any event, whatever initial suspicions there were that led to Pascal’s detention, they aren’t relevant, since the ACLU didn’t challenge that part of the events at all. Once Pascal been held for four hours, explained his background and travels, and answered all their questions, that should have been the end of it. That a half-Jewish doctoral student who speaks Arabic was still considered such a threat that his laptop had to be confiscated after it had been gone through in his presence is further sign of the arbitrary and uncontrolled nature of CBP power. (This power has been brilliantly and shockingly documented by the NPR show On the Media.) There’s a flip and snide remark in the decision that truly renders Korman’s writ a stench in the nostrils of humanity, and which says all we need know about the American security state: “Surely, Pascal Abidor cannot be so naïve to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah.” So now America, which has taken such pride in its freedoms, is to be excused because it’s really doing no worse than Assad and Hezbollah might do. It’s been said that we end up resembling our enemies. Judge Korman, in proving this, not only further eviscerates our freedom, but debases the country he serves. Mitchell Abidor, a contributing writer to Jewish Currents, is the translator and editor of the forthcoming anthology of writings by Victor Serge, Anarchists Never Surrender, as well as the first English translation of Jean Jaurès’ Socialist History of the French Revolution, which will be published by Pluto Press in 2015.