Arsalan Iftikhar - Islamica Magazine

The Dutchman and The Quran

2008-04-29T03:56:00Z

ONCE UPON A TIME in a happy place called The Netherlands, there was a little Dutch cherry-picker named Geert Wilders. After growing up in the land of Rembrandt and tulips, Geert one day decided that he wanted to become a politician and help the people of Holland by becoming one of their elected leaders.

While his friends became doctors and lawyers, our cherry-picker Geert one day found himself a member of the Dutch parliament. Instead of representing the multicultural and diverse Dutch population, he decided one fine day that he wanted to be the political leader of the most right-wing, anti-immigrant nationalistic party that has ever graced the halls of The Hague, which is also, fittingly, the judicial seat of the International Criminal Court (also known as the ICC or War Crimes Tribunal).

Alas, it seems that our cherry-picker has never been fond of dark-skinned Muslims who have made their homes in the cities of Holland over the years.

According to Statistics Netherlands, an autonomous Dutch agency that provides statistics to the government, Muslims living in the Netherlands totaled almost 920,000 in 2003, with almost 6 percent of the total Dutch population.

In the greater Amsterdam metropolitan area, Muslims now represent over 12 percent of the city’s total population.

Aghast that those who were not blond (like himself) were going to somehow erode Dutch culture and tradition, our cherry-picker Geert decided that he was going to produce a movie about the Quran — the holy book for over 1.3 billion Muslims worldwide.

His movie, Fitna (Arabic for “division” or “strife”), is a 15-minute Internet movie dedicated to defaming Islam by juxtaposing cherry-picked Quranic verses over incendiary sound-bites and graphic images of terrorist acts and their aftermath.

The cherry-picker’s movie begins with the ominous “ticking clock” sounds and the cartoon image of the Prophet Muhammad with a “bomb turban,” which sparked the Danish cartoon controversy in 2005.

As the movie clock ticks down, you can see the fuse on the “bomb turban” lit as the rest of the movie focuses on “quoting” chapter and verse from Islam’s holy book to show the true “violent” nature of Islam.

Dutch Prime Minister Jan Peter Balkenende rejected the film, saying, “The film equates Islam with violence. We reject this interpretation. The vast majority of Muslims reject extremism and violence. In fact, the victims are often also Muslims.”

Our Dutch cherry-picker should be afforded the full protection of the law to express his beliefs without any fear of violence. As for his silly film, it should be held to the standard set by Dutch law, which has certain restrictions on speech that is defamatory, libelous or insults a group of people on the basis of their race or religion. Prime Minister Balkenende has also publicly stated that if the film is judged to have violated Dutch law, then his government has the duty to enforce its legislation.

Anyone who knows anything about our cherry-picker Geert and his geopolitics (like the Danish cartoon controversy) knows that this film is a direct attempt to incite violence by Muslims and help fan the flames of Islamophobia. Any reasonable person can see that this movie was meant to rabidly spit in the face of Muslims and blatantly insult Islam.

Nonetheless, the main difference between this and the Danish cartoon controversy is that history has taught us that cooler heads should prevail this time. For many people, the global community learned a stark lesson from the Danish cartoon fiasco.

Both Muslims and non-Muslims alike know that this silly exercise by our right-wing cherry-picker should be used to springboard the next generation of interfaith and global human dialogue and not fall prey to his xenophobic and sophomoric movie bait.

Going back to our Dutch fairy tale story, our cherry-picker Geert found it very difficult to find an audience for his bait-filled ignorant movie because the Dutch government understood that Geert had perhaps picked one too many cherries this time. A testament to public diplomacy and interfaith dialogue; this storyteller’s sympathies go out to the Dutch people.

The majority of them, both Muslim and non-Muslim alike, are good, hard-working people who get along with their neighbors and just want to go about their lives in peace. These people are caught between the extremists on both sides who are out to stir up angst and mistrust to springboard their own silly political agendas.

Despite being filled with hurtful and demeaning messages to his own fellow citizens that he sadly represents in parliament, it’s truly a testament to the strength of a democracy when people can freely share their opinions in the public arena. Unfortunately, our Dutch cherry-picker had his fingers crossed for a negative response by purposely disrespecting others simply because of their religion. By doing so, our dear cherry-picker is ignoring the core democratic values of freedom and justice dear to all of us; Muslims and non-Muslims alike.

After the dreadful response by some Muslims over the Danish cartoon controversy, it has become abundantly clear where the cherry-picker’s movie should be placed within our global priorities.

With an infinite abyss of death in Iraq, the dreadful human suffering of Darfur and other human-rights atrocities occurring around the world, the global Muslim community knows that right-wing knuckleheads like our little Dutch cherry-picker should not even be given the time of day.

For only when our global community denounces every form of racism and intolerance in existence today can we make extremist dinosaurs like Osama bin Laden or right-wing cherry-picker extremists like Dutch MP Geert Wilders, completely and utterly obsolete.

And on that glorious and fine day, we will finally be able to live happily ever after.

Arsalan Iftikhar is an international human-rights lawyer and contributing editor for Islamica magazine, in Washington, D.C.

Reverends, Republicans and Islam

2008-03-19T20:52:00Z

Currently, much ado is being made about the long-standing relationship between Democratic presidential frontrunner Senator Barack Obama (D-IL) and Reverend Jeremiah Wright, Barack’s long-time pastor at Trinity United Church of Christ located in our collective hometown of Chicago. Based on fiery rhetoric from the archives of Reverend Wright’s decades-long pastoral tenure, the proverbial race card has quickly shuffled itself back into our presidential political deck of playing cards.

But is this political deck stacked against the African-American civil rights lawyer from Chicago?

Acknowledging and denouncing the Farrakhan-esque pulpit style of Reverend Wright, an equally important question to ask is that if an African-American Democratic senator has to rightfully politically distance himself from the brimstone rhetoric of a spiritual advisor; as Americans, we should also have the moral clarity to ask white Republican political leaders to denounce and condemn the equally hateful and apocalyptic rhetoric coming from their own spiritual advisors.

Reverend Franklin Graham, son of the respected televangelist Billy Graham, was once the spiritual advisor of our current president, George W. Bush. The esteemed Reverend Graham once also told NBC Nightly News in November 2001 that “The God of Islam is not the Same God… I believe it is a very wicked and evil religion…”

When asked by both NBC Nightly News and his hometown Charlotte Observer whether he would apologize, he defiantly stood by his comments and refused an apology. Even less of a collective peep was heard from the incredibly shrinking tent of the Republican Party.

According to news reports, none of the other white Republican Christian leaders contacted by NBC News, including the late Reverend Jerry Falwell, who made scathing anti-Islamic remarks in an interview earlier that year, and Reverend Pat Robertson of The 700 Club, would comment on Graham's attacks.

"Obviously, Mr. Graham is tone deaf in this respect," said Newsweek religion editor Ken Woodward of the incident. "He's certainly not his father's son in terms of discretion."

Incidentally, it is also hard to remember whether President Bush was cornered by political pundits into denouncing Reverned Graham on national television night like Senator Obama. Furthermore, nobody saw President Bush’s chief speechwriters sharpening their collective pencils to give a major address on race in America (a la Obama) in the political aftermath of Franklin Graham’s NBC Nightly News fiasco.

Either way, let us fast forward to today.

Our current Republican presidential candidate, Senator John McCain (R-AZ), recently hailed as a “spiritual guide” an Ohio megachurch pastor who has called upon Christians to wage a "war" against the "false religion" of Islam with the aim of destroying it.

According to David Corn, Washington editor of The Nation, in February 2008, McCain appeared at a campaign rally in Cincinnati with the Reverend Rod Parsley of the World Harvest Church of Columbus, a supersize Pentecostal institution that features his own television studio.

To exemplify the point, Mr. Corn then cites a chapter from Reverend Parsley’s 2005 book in which Reverend Parsley writes:

“The fact is that America was founded, in part, with the intention of seeing this false religion [Islam] destroyed…”

Nonetheless, Senator McCain, with Reverend Parsley by his side at the February 2008 Cincinnati rally, called the evangelical minister a "spiritual guide."

As a nation, why do we ask the black Democratic Senator to apologize for his pastor’s controversial remarks when we are collectively silent in asking for that same righteous condemnation from the Republican camp of intolerant agents serving as loyal right-wing evangelical surrogates for Senator John McCain.

If race is truly not an issue in this presidential campaign, then along with every other American of color, I will be waiting for Senator McCain’s apology for his evangelical firebrands and look forward to his next major national address on the status of race in America.

But as the Republican Party continues to prove, we should not be holding our collective breath.

Arsalan Iftikhar is Contributing Editor for Islamica magazine in Washington D.C.

Hillary's 'Macaca' Strategy

2008-02-29T04:59:00Z

In yet another page taken directly from the Ann Coulter political playbook, the presidential campaign of Senator Hillary Clinton has taken another fear-mongering and xenophobic potshot at the presumptive Democratic presidential frontrunner, Senator Barack Obama. From conspiracy theories about Obama being a ‘secret Muslim’ to the consistent (if not deliberate) Obama/Osama name-game, the current bizarre demagoguery by the Clinton camp shows that her campaign and its surrogates are continuing to make use of popular prejudices and xenophobic innuendo to pander to voters’ ethnic biases in order to continue to score cheap political points.

The most recent Hillary ‘Macaca’ moment revolved around a picture released by the Clinton camp of Senator Obama dressed in the same white garb as some Somali Muslim tribal elders on a 2006 visit to Wajir, a rural area in northeastern Kenya. Instead of releasing a picture of Barack in an African dashiki or other colorful tribal garb, Hillary’s gatekeepers sought it wise to leak the picture which has Senator Obama conveniently donning the same white Islamic garb that Osama bin Laden infamously pimps on our evening news broadcasts almost every night.

“On the very day that Senator Clinton is giving a speech about restoring respect for America in the world, her campaign has engaged in the most shameful, offensive fear-mongering we’ve seen from either party in this election. This is part of a disturbing pattern that led her county chairs to resign in Iowa, her campaign chairman to resign in New Hampshire, and it’s exactly the kind of divisive politics that turns away Americans of all parties and diminishes respect for America in the world," said Obama campaign manager David Plouffe responding to the Hillary photograph leak.

Normally, we would usually chalk this news story up to being a knuckleheaded political ploy from the Iron Lady’s presidential camp. Unfortunately, this is not the only time that the Muslim Macaca has reared its ugly head in the Hillary Clinton presidential campaign.

In December 2007, former Democratic Senator Bob Kerrey, a Clinton surrogate from Nebraska and president of the New School in New York commented that, “It’s probably not something that appeals to him, but I like the fact that his name is Barack Hussein Obama, and that his father was a Muslim and that his paternal grandmother is a Muslim. There’s a billion people on the planet that are Muslims, and I think that experience is a big deal.”

According to the Chicago Tribune, Obama staffers and volunteers say they periodically encounter voters who say they cannot support Obama because they've heard he is secretly a Muslim, a frivolous claim that has been making its way through Internet sites and blogs since he announced his candidacy for president.

Shame on you, Hillary.

As people of all colors continue to scratch their heads in disbelief over our own Democratic party stooping to Macaca-esque racist political tactics in the presidential primary campaign, it is becoming apparent to many Americans that Hillary is doing all the right-wing political dirty work for the infamous likes of Ann Coulter et al.

It seems that Hillary’s fear-mongering is paying political dividends. Ann Coulter recently told Sean Hannity on FOX News Channel that if John McCain is the Republican presidential nominee, “…she’s gonna be our girl, Sean…She’s more conservative than he is…”

When pressed on whether she would vote for Hillary over McCain, she responded with an enthusiastic, “…Yes, I will campaign for her if it’s McCain…”

As the timeless cliché goes: With friends like these, who needs enemies?

Arsalan Iftikhar is Contributing Editor for Islamica magazine in Washington D.C.

American Muslim Athlete Disqualified Over Uniform

2008-01-29T04:59:00Z

According to The Associated Press, a Washington D.C. high school track star was recently disqualified from a meet because officials said the custom-made outfit she wears to conform to her Muslim faith "violated competition rules".

In addition, Juashaunna Kelly, a senior at the District of Columbia's Theodore Roosevelt High School, has the fastest mile and 2-mile times of any girl runner in the city this winter. She was disqualified from the Montgomery Invitational indoor track meet in January.

The AP reported that: "Ms. Kelly was wearing the same uniform she has worn for three seasons while running for Theodore Roosevelt's cross-country and track teams. The custom-made, one-piece blue and orange unitard covers her head, arms, torso and legs. Over the unitard, she wears the same orange and blue T-shirt and shorts as her teammates."

"It's not special," Kelly told the Associated Press. "It doesn't make me perform better."

The Maryland chapter of the American Civil Liberties Union says meet officials should not have disqualified Kelly.

"The attire wasn't providing a competitive advantage to the girl," Debbie Joen of ACLU-Maryland said. "There really doesn't seem to be a legitimate interest that the state has that would override the student's right to religious freedom."

Constitutional legalities aside, I think it is pretty cool that a girl who is wearing two or three more layers of clothing and adhering to her faith is still the fastest girl on the track.

Go Juashaunna...

Romney's 'Macaca' Moment

2008-01-16T00:48:00Z

The presidential candidacy of Mitt Romney has been wrought with ridiculous commentary as to whether a Mormon is fit to become president of the United States. Indeed, Mormons in America have long endured discrimination, ridicule and hostility in our country.

So it is beyond absurdity that Romney, who is a target of religious bigots himself, has now channeled that same religious bigotry by making American Muslims collectively feel like the GEICO cavemen.

According to a piece in the Christian Science Monitor, an American Muslim financier asked the former Republican Massachusetts governor about putting a Muslim in a Romney presidential Cabinet. Romney’s brilliantly enlightened response was that he “cannot see that a Cabinet position would be justified,” based on the percentage of Muslims in the United States.

Contextualizing his religious quota statement, he did graciously add: “But of course, I would imagine that Muslims could serve at lower levels of my administration. . . .” He has got to be kidding.

For sheer giggles, let us assume that we were in Romney’s “Quota America.” Since African-Americans make up more than 12 percent of the population, we should have about 12 African-American senators. How many do we have? One. Barack Obama of Illinois.

Furthermore, since women make up 51 percent of the American public, we should then logically have 51 female senators serving in the hallowed halls of Congress. As of Nov. 1, 2006, there were 16 women senators serving in the 100- person body. Although an all-time high, historical context shows that there have been 35 women in the U.S. Senate since the establishment of that body in 1789. This means that out of the approximately 1,895 Americans who have served in the Senate since that time, only 1.85 percent of all senators have been female.

On Romney’s brilliant idea to have elected positions based on religious quotas, USA Today reported that, “. . . the 15 Mormons in Congress is a slightly greater representation than the religious group’s percentage of the general population. A religious minority, Mormons represent less than 2 percent of the American population. . . .”

And lest we forget America’s favorite bout of religious hysteria: Even though Catholics represent more than 26 percent of the American population, we had to put our sole Catholic president, John F. Kennedy, through the religious wringer in a paranoid fear that his puppet strings were going to be pulled at the sinister behest of the Vatican.

Unfortunately, Romney’s religious roundabout is a one-way street and he should be pandering his politics of religious hysteria to the “perfected” Ann Coulter voters out there who base their vote solely on religious affiliation.

But then again, they wouldn’t vote for him because of his religion.

Arsalan Iftikhar is contributing editor for Islamica magazine in Washington, D.C.

The Constitutional Madness of King Musharraf

2007-11-29T05:01:00Z

Translated, the word Pakistan literally means 'Land of the Pure'. Sadly, nothing has been more impure than the recent declaration of martial law by General Pervez Musharraf; the most recent tin-pot dictator that Pakistan has seen in its young sixty-year history. Although Pakistan has seen five military rulers in less than a century of existence, the most recent political and social turmoil jeopardizes an already shaky political equilibrium and will have global repercussions for decades to come.

'King' Musharraf, in a televised address to over 160 million Pakistani people, cited the danger to the country posed by 'extremists' and said that only emergency rule ( a.k.a. martial law) could solve this problem. He then proceeded to summarily suspend the Constitution, sack the entire Supreme Court, close transmission of privately-owned television news channels and curb the broadcasts of international broadcasters. Parliamentary elections scheduled for next January were delayed for up to a year, officials told The New York Times.

Both the Chief Justice of the Pakistani Supreme Court and Asma Jehangir, the most prominent female human rights activist in Pakistan , have been placed under house arrest. Police officers armed with tear gas and clubs attacked thousands of protesting lawyers and rounded up academics, lawyers and professors in other cities. Our American 'ally' in our ongoing 'war on terror' has shown his true colors as a ruthless, power-hungry and dictatorial knucklehead.

Even though pressured by both U.S. Secretary of State Condoleezza Rice and British Prime Minister Gordon Brown not to impose 'emergency rule', King Musharraf defiantly decided that declaring martial law would be the only way to maintain his political power in an era where nearly two hundred million citizens of Pakistan yearn and mobilize for democratic rule.

Nothing shows Musharraf's duplicity more than his recent unholy alliance with former Prime Minister Benazir Bhutto. Rightfully called 'a kleptocrat in an Hermes scarf', she was ordered into exile by the Supreme Court for regarding the national treasury as her own personal piggy bank. The anti-Musharraf sentiment came to tragic fruition during the horrific double suicide bombings during a Bhutto rally, which killed over 130 innocent people. Musharraf's declaration of martial law while Bhutto was visiting her family in Dubai shows what happens when two political crooks do business together.

The only silver lining in the chaotic shambles of Pakistan comes from the lawyers, human rights activists and intelligentsia of the nation. Thousands of the most educated elites are taking to the streets in their Armani suits defiantly challenging their most recent tin-pot dictator. Many times, these rallies result in military police clubbing peaceful protestors to bloody pulps. Although bloodied, hundreds of millions of Pakistanis yearning for democratic rule continue to raise their voice to Musharraf and his military tyranny.

Wearing both a military uniform and a dictator's robe, General Pervez Musharraf has sunk to a disgusting new political low. Therefore, it is the role of democratic vanguards worldwide to send a resounding message to his palace in Islamabad that if he tries to wear both of these silly outfits and continues his madness; ultimately, the emperor will be standing naked with no clothes at all.

Arsalan Iftikhar is Contributing Editor for Islamica magazine in Washington D.C.

Genarlow's Overdue Justice...

2007-10-29T12:11:00Z

According to CNN, Genarlow Wilson, was released from prison late last week, after spending more than 2 years behind bars for a (consensual) teen sex 'conviction' in Atlanta, Georgia.

The Georgia Supreme Court earlier Friday ordered that he be released, ruling 4-3 that his sentence was 'cruel and unusual punishment'.

Wilson, 21, was convicted in 2005 of having oral sex with a consenting 15-year-old girl when he was 17 years old. At the time of Wilson's conviction, Georgia law made the crime punishable by 10 years in prison. The 10-year sentence was mandatory under the law. Gotta love mandatory minimums...

CNN reported that Friday's decision came after "a protracted legal battle that has galvanized international attention and drawn the involvement of civil rights leaders." Partly as a result of Wilson's conviction, state legislators changed the law to make such consensual conduct between minors a misdemeanor, rather than a felony.

"The release of Genarlow Wilson by the Georgia Supreme Court is a significant victory in redressing the reckless and biased behavior of the criminal justice system that now operates in many states across the union," said Reverend Al Sharpton.

"The bad news is that his young life was so unfairly interrupted with time that no state court can recover for him," Sharpton added. "This is why the Justice Department and federal government must review state courts that willfully and almost without pause violate the civil rights of people, particularly young black men around this country."

Genarlow was a high school honor student, a football star and his high school's homecoming king before being convicted of his crime.

Changes in the law made such conduct "punishable by no more than a year in prison and no sex offender registration," the Georgia high court noted.

The high court upheld the decision of a Monroe County judge. In a 48-page opinion, the court said the "severe" punishment Wilson received and his mandated sex offender registration make "no measurable contribution to acceptable goals of punishment."

In the decision, Chief Justice Leah Ward Sears wrote that changes in the law "represent a seismic shift in the legislature's view of the gravity of oral sex between two willing teenage participants."

"Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children," the court's majority found.

"For the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime," concluded Chief Justice Sears' majority opinion.

According to reports, Wilson's plight drew pleas for his release, including from former President Carter, himself an ex-Georgia governor, and even some jurors who convicted him.

CNN also reported that Genarlow Wilson said he was looking forward to spending time with his family and plans to enroll in college.

Let's hope he goes to law school...

Why the 'Jena 6' are Important...

2007-09-29T04:01:00Z

As a civil rights lawyer, I have been closely following the case of the six African-American teenagers in predominantly white Jena, Louisiana (population: 3,000 [where only 15% of the population is African-American]).

All racial punditry aside, the one question everyone should ask themselves is: If the Jena 6 were 6 white teenagers, would they have faced attempted murder charges for the schoolyard beating of one of their classmates?

As CNN.com commentator Roland Martin so aptly summarized:

-If you heard that six teens had beaten up another teen leaving him unconscious, would you think that those accused deserved to be tried as adults and face upwards of 80 years in jail?

-If a group of teens hung a noose on a tree, and the principal recommended to expel them, and then the school board overruled them, what would you say about that?

-Prior to Justin Barker (the white student) being beaten, another teen (who was black) was beaten, and no charges were filed against the (white) students in that case, would you question the district attorney's action in Barker's case?

Yes, an innocent boy was beaten and the punishment should fit the crime. But how is attempted murder charges warranted when the hospital released the victim the same day and the teenager attended a party that same night.

Remember, that had national media attention not been cast on the Jena 6, there would be six black teenagers who would still be facing attempted murder charges today. Ask yourself again that would 6 white teenagers be charged with attempted murder for the beating of a black student?

The reason that Jena 6 is most relevant to our society today is because it sends a resounding message to small towns across America.

It sends a message that if school boards, district attorneys and high school principals that if your local community is so racially biased in terms of legal justice, you better get your act together; lest you see the CNN camera crews, famous radio hosts and civil rights leaders start to set up camp in your small town.

Michael Vick v. Mary Winkler

2007-08-29T18:28:00Z

For as big of a knucklehead criminal move as it was, it is beyond comprehension that we want to throw the proverbial book at Michael Vick of the Atlanta Falcons, while infamous housewife murderer Mary Winkler has been released from prison after only 67 days; after she willfully admitted to having stood over her sleeping pastor husband's bed and blowing his brains out with a shotgun.

But the commentators have been having a field day talking about how Michael Vick should never see the light of day again whilst the husband butcher will be chilling at home after only 67 days in jail. There is just something patently wrong with this scenario.

Now, let’s imagine Mr. Vick and Mrs. Winkler switching roles for a moment.

Let’s say hypothetically that Mr. Vick, an African-American male, had admitted to shooting his sleeping wife in cold blood and then claimed post-traumatic stress disorder (PTSD) and claimed that his wife’s verbal abuse were mitigating factors in the case.

Let’s then say that Mr. Vick was released after serving a measly 67-day sentence and let’s say that our attention turned to a housewife ‘queenpin’ of a large dog-fighting scheme which violated federal law.

Let’s say that Mrs. Winkler, a Caucasian woman, was found to have violated several federal laws in her exquisite dog-fighting federation. She made tons of money, executed the losing puppies after a lackluster match and just for kicks, even juiced up some of her prize canines with steroids and other weird stuff. Notwithstanding the criminality (and lack of humanity) in the aforementioned scenario, let’s say that people talked about putting her away in jail for the next 6 to 10 years.

Are we really a society that puts people away for a decade for mistreating animals but are sufficiently convinced that a person has paid their dues to society with a nauseating 67-day sentence for killing their spouse in cold blood as they slept in their wedding bed.

Would Michael Vick have gotten released after 67 days if he were the spouse killer? Is American justice the same for an African-American male as it is for a church-going Caucasian woman?

Would people be talking about throwing the federal sentencing book at Mary Winkler if it were her dog-fighting scheme? Unlike Mr. Vick, were she not on the cover of video games and the bottom of Nike shoes, would anyone give a hoot about what this woman did to those poor animals?

Granted, these are all hypothetical situations, but I hope to live in an America where all the Michael Vicks and Mary Winklers of the world are treated equally under the law, regardless of their skin color or what number jersey they wear on any given Sunday.

6th Circuit Gets It Wrong on NSA Wiretapping

2007-07-27T15:25:00Z

In early July 2007, in a 2-1 decision, the Sixth Circuit Court of Appeals dismissed one of the main legal challenges to the Bush administration’s warrantless surveillance program. The challenge was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients.

Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance; the 6^th Circuit decided to dismiss the case because plaintiffs could not ‘state with certainty’ that they had been wiretapped by the National Security Agency.

The question then becomes: how can you prove legal standing in a secret classified NSA domestic spying program?

In response to the 6^th Circuit ruling, ACLU Legal Director Steven R. Shapiro said, “We are deeply disappointed by today’s decision that insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today’s decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.”

In deciding the merits at the district court level, Judge Anna Diggs Taylor construed the Fourth Amendment as an absolute rule that “requires prior warrants for any reasonable search,” ACLU v. NSA, 438 F. Supp. 2d at 775, and announced that “searches conducted without prior approval by a judge or magistrate were per se unreasonable,” id. at 771. Having found that the NSA was operating without warrants, the district court concluded without further explanation that President Bush had “undisputedly violated the Fourth [Amendment] . . . and accordingly ha[d] violated the First Amendment Rights of these Plaintiffs as well.” Id. at 776. Proceeding from this conclusion, the court deemed the TSP unconstitutional and issued an order enjoining its further operation entirely.

Judge Taylor got it right. The 6^th Circuit got it wrong.

The plaintiffs in this action include journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a “well founded belief” that their communications are being tapped. According to the plaintiffs, the NSA’s operation of the TSP — and the possibility of warrantless surveillance — subjects them to conditions that constitute an irreparable harm.

According to the majority opinion in the 6^th Circuit, Judge Alice Batchelder wrote on the standing issue: “By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm.”

For those of us who were represented by this lawsuit, the fact is not that we ‘refrained’ from communications and thus, had no legal standing. It was that our government had already been monitoring the communications of hundreds of thousands of Americans without any judicial oversight or congressional approval.

That’s why our forefathers created our system of checks and balances. The 6^th Circuit simply got it wrong.