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By Katherine Kersten, Star Tribune
Posted December 6, 2006
US Airways' treatment of the six imams on Flight 300 on Nov. 20 is being widely portrayed as a discriminatory act against pious men who were just practicing their religion. The imams' only mistake was "flying while Muslim," charges the Muslim American Society Freedom Foundation. "If up to now [Americans] don't know about prayers, this is a real problem," said Omar Shahin, one of the six and president of North American Imams Federation, whose conference the group had attended in Bloomington.
But the incident involved far more than prayers. A "suspicious" pattern of behavior unfolded that day, according to the airport police report, handwritten witness statements attached to that report and US Airways spokeswoman Andrea Rader.
Based on what they knew at the time, the crew and law enforcement officials made reasonable decisions to safeguard the passengers in their care.
The incident began with the imams praying very loudly, almost shouting, according to Rader and a witness statement attached to the police report. (The report does not name any witnesses.) One passenger on Flight 300 observed something else. The imams "seemed angry," and had a "heated discussion" by the ticket counter, he wrote in his statement. The men spoke about the U.S. and "killing Saddam," and two of the men then swore under their breath.
The imams' demeanor changed markedly when boarding was called, the passenger reported. "The men then chanted, 'Allah, Allah, Allah!'," he wrote in his witness statement. "They walked in line for the flight, composed and calm, very different than they had been behind the wall/screen of the desk."
A second passenger, who wrote in his statement that he often travels to the Middle East, also found the imams' conduct "atypical for my experience with Muslims, including ... the way in which they observed their prayers."
But while many passengers observed the imams at prayer, not one passenger refused to board the plane, or apparently even mentioned the matter to US Airways personnel at the time, according to Rader.
Once the imams were on the plane, the crew noticed some of them switching seats. Two sat in first class, though a gate agent had, according to a statement, earlier rejected Shahin's request for a second first class seat, since none were available. One imam "stood at row 4C and pretended to be blind" in an apparent effort to persuade another passenger to switch seats, an off-duty flight attendant wrote in a statement. (The imams claim that he is blind.)
The imams ended up spread out: two in the front of the aircraft, two in the middle, and two in the rear. The 9/11 hijackers used this configuration, which potentially allows control of the area around the cockpit door and all the exit rows, according to Rader. Shahin, the group's leader, sat in seat 1D, closest to the cockpit.
As time passed, several passengers, including an Arabic speaker seated near one of the imams, approached the crew to report suspicions.
Three imams requested seat belt extensions, which increased the crew's concern. "I did not see they actually needed them," one off-duty flight attendant said of two of them in a statement. "They were not overweight."
The extensions are used by people who can't make the regular belts fit. The three imams who requested extensions weighed in, according to the police report and Rader, at 6 feet 1 inch and 201 pounds, 5 feet nine and 170 pounds, and 6 feet and 230 pounds.
An extension is a belt with a heavy buckle that can be turned into a weapon by being wrapped around a fist or used as a noose to take a hostage, according to Rader. After the imams deplaned, crew members discovered extensions -- not affixed to the seatbelts, but rolled up and placed beneath the seats, Rader said.
One passenger, whom the police report describes as "clergy," purposely struck up a conversation with an imam seated next to him. "I travel to Turkey frequently and know many Muslims personally," he wrote in his statement. The imam "expressed views I consider to be extreme Muslim fundamentalist views." The man discussed the problems of countries that don't observe sharia (Islamic law). "He indicated that it was necessary to go to whatever measures necessary to obey all that's set out in the Qur'an," the passenger wrote.
Clearly, pilot John Howard Wood had to weigh many factors in deciding to ask the imams to get off the plane. He consulted with his flight crew, the US Airways ground security coordinator, and the airline's security office in Phoenix. All thought the imams' behavior was suspicious, according to Rader. The captain learned during these discussions that three imams apparently had only one-way tickets and only one had checked luggage -- suspicious factors after 9/11. The subsequent investigation suggests that they may have changed their reservations, which wouldn't have been apparent at the time, says Rader.
Airport police and a federal air marshal were dispatched to the gate. Officer Brad Wingate wrote in his report: "[T]he request for seatbelt extensions, the prior praying and utterances about Allah and the U.S. in the gate area and the seating configuration chosen among the traveling group was suspicious." The FBI instructed airport police to detain the imams for questioning, according to Wingate's report, and the Secret Service participated.
The imams deny engaging in suspicious behavior. But "we are absolutely backing this crew," says Rader.
The airline's pilots' union agrees. "The crew's actions were strictly in compliance with procedures and demonstrated overall good judgment in the care and concern for their passengers, fellow crew members, and the company," said Captain Barry Kendrick, chairman of the pilots' Air Carrier Security Committee.
Thousands of Muslims pray and fly in America every day. The incident on Flight 300 wasn't about prayer.
By Katherine Kersten, Star Tribune
Posted December 11, 2006
The grounded imams incident at the Minneapolis-St. Paul International Airport has been a public relations coup for the imams, their supporters and their claims that the group's only suspicious activity was saying evening prayers.
US Airways continues to defend its crew's decision to pull the imams off a plane last month, saying they took the seating configuration used by 9/11 hijackers, requested seat-belt extensions that could be used as weapons and otherwise raised concerns.
Who are the parties involved here, who seem so interested in linking airport security with racial bigotry?
The Council on American-Islamic Relations, the imams' legal representative, is an organization that "we know has ties to terrorism," Sen. Charles Schumer, D-N.Y., said in 2003. And the Muslim American Society, which is also supporting the imams? It's the American arm of the Muslim Brotherhood, according to the Chicago Tribune, which called it "the world's most influential Islamic fundamentalist group."
How about Omar Shahin, the imams' spokesman and also president of the North American Imams Federation? He is a native of Jordan, who says he became a U.S. citizen in 2003. From 2000 to 2003, Shahin served as president of Islamic Center of Tucson (ICT), that city's largest mosque.
The ICT is well known. The mosque has "an extensive history of terror links," according to terrorism expert Steven Emerson, who testified about terrorist financing before the Senate Banking Committee in July 2005.
The Washington Post described these links in a 2002 article. "Tucson was one of the first points of contact in the United States for the jihadist group that evolved into al Qaeda," the Post reported. And the ICT? It held "basically the first cell of al Qaeda in the United States; that is where it all started," said Rita Katz, a terrorism expert quoted by the Post.
ICT members have included high-profile terrorists. Wael Hamza Jelaidan, the mosque's leader in the mid-1980s, was identified by the U.S. government as a " 'co-founder' of al Qaeda and its logistics chief," the Post reported.
Another former member, Wadi Hage, served as Osama bin Laden's personal secretary after leaving Arizona, the Post said, attributing it to government sources. Hage established a bin Laden support network in Arizona and "this network is still in place," Emerson wrote in his book "Jihad Incorporated: A Guide to Militant Islam in the U.S.," citing a 2002 Senate Intelligence Committee Report. In 2001, Hage was convicted of plotting the 1998 bombings of the U.S. embassies in Kenya and Tanzania.
The best-known terrorist with apparent (according to the Post and Emerson) connections to the ICT is Hani Hanjour, who piloted the plane that flew into the Pentagon on 9/11. Hanjour took aviation lessons in Tucson in the late 1990s.
Shahin has downplayed the ICT's connections to terrorism. The mosque should not be held accountable for former members who may have engaged in terrorism after they left Arizona, he told the Post in 2002. Al-Qaida nests in America? "All of these, they make it up," he told the Arizona Republic shortly after 9/11.
But dubious activity continued when Shahin became ICT president. For example, the mosque raised thousands of dollars for an Islamic charity called the Holy Land Foundation in 2001, and Shahin served as the charity's Arizona coordinator, according to the Associated Press. Holy Land "collects funds for widows and orphans and needy people," he told the AP.
In December 2001, the Treasury Department froze Holy Land's assets, citing its funding of the terrorist organization Hamas' efforts to recruit suicide bombers.
Shahin also told the Arizona Daily Star in 2001 that he would permit the Global Relief Foundation to raise funds at the ITC. In 2002, the U.S. government froze that organization's assets because of its support of bin Laden, Al-Qaida and other terrorist groups.
Another incident of interest occurred during Shahin's tenure at ITC. On June 13, 2003, the FBI arrested Muhammad Al-Qudhai'een, who was active at the mosque, and transported him to Virginia to testify as a material witness before a federal grand jury investigating 9/11.
Earlier, the FBI had investigated Al-Qudhai'een's involvement in a 1999 incident. According to the 9/11 Commission Report, Al-Qudhai'een and Hamdan al Shalawi, a fellow Saudi, were removed from an America West flight after engaging in what the flight crew considered suspicious activity. The crew asserted that Al-Qudhai'een had twice attempted to open the plane's cockpit door. After 9/11, FBI agents in Phoenix considered whether the incident had been a "dry run" for the attacks. The 9/11 Commission noted that Al Shalawi had reportedly trained in Afghan terrorist camps in November 2000, learning how to conduct "Khobar Towers"-type bombing attacks.
The America West incident attracted national attention in 1999. In 2000, the two Saudis filed a lawsuit alleging racial discrimination by the airline. "What happened to us was based on racial and religious discrimination," al Shalawi told the Arizona Republic. CAIR hired the Saudis' attorney for them, and urged a boycott of the airline. America West won the lawsuit. Al-Qudhai'een was later deported to Saudi Arabia.
Shahin left ICT in June 2003. Subsequently, he became a fundraiser for KindHearts, another Islamic charity. But the Treasury Department froze KindHearts' assets on Feb. 19, 2006. "KindHearts is the progeny of Holy Land Foundation and Global Relief Foundation, which attempted to mask their support for terrorism behind the facade of charitable giving," according to the Treasury Department.
Shahin has evidently helped raise money for all three of these organizations.
Ten days ago, Shahin expressed ignorance of KindHeart's terrorist connections. "When they shut down, I had no clue what they were doing," he told the Washington Times.
So was the Flying Imams incident an instance of bigotry? Or was it part of a larger script? If so, whose script is it, and what's the final act?
I'll consider those questions in Thursday's column.
By Katherine Kersten, Star Tribune
Posted: December 14, 2006
On Dec. 1, a curious report on the grounded-imams incident at the Minneapolis-St. Paul International Airport appeared on the website of the Iranian Quran News Agency. The report quoted extensively from Madhi Bray, executive director of the Muslim American Society Freedom Foundation. The foundation is the American arm of the Muslim Brotherhood, "the world's most influential Islamic fundamentalist group," according to the Chicago Tribune.
Bray's initial statement about the incident had an all-American, see-you-in-court ring. He demanded "large financial compensation for the imams," adding, "We want US Airways and any other airline displaying this type of behavior against Muslims to be hit where it hurts, the pocketbook."
The report echoed statements made by the imams themselves. Omar Shahin, their spokesman, has portrayed the incident in a way that's consistent with a lawsuit and a public relations offensive. He's called for a Jesse Jackson-style boycott of US Airways, and applied classic civil-rights rhetoric to the incident: "This is prejudice; this is obvious discrimination," the Star Tribune quoted him as saying. "I cannot change the color of my skin," he told Newsweek.
But the report on the Iranian website, which has appeared on a variety of Muslim websites worldwide, had a larger primary focus. After the imams incident, it quoted Bray as saying Muslims want "new, broad-sweeping legislation that will extract even larger financial and civil penalties for any airline that participates in racial and religious profiling."
The report is optimistic that Rep. Keith Ellison, the first Muslim elected to Congress, will lend his support to new legislation. Ellison, it says, has expressed his opposition to "such racial and religious profiling." Ellison, through a spokesman, declined to comment.
One piece of legislation in the works is the End Racial Profiling Act. It is an important priority of Rep. John Conyers of Michigan, whose district includes one of the largest Muslim populations in the country. Conyers introduced the bill in 2004 and 2005, but it went nowhere. Now the alignment of forces may be changing. Conyers will probably be chairman of the House Judiciary Committee when the new Democratic-controlled Congress convenes next month.
Nancy Pelosi, who called herself a "proud" cosponsor of the Profiling Act in 2004, is the incoming House speaker. And in January, Ellison, who represents the district where the imams incident occurred, will take his seat in Congress.
The act, although it doesn't as yet impose large penalties, would bar any federal, state or local law enforcement agency from "relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individuals to subject to routine or spontaneous investigatory activities." That would include questioning, searches and seizures.
One of the act's central features is its definition of illegal profiling. Under it, if airport security personnel question passengers who are disproportionately Muslim or of Middle Eastern descent, this alone would constitute a presumptive violation of the law. Law enforcement agencies would bear the burden of proving that discrimination was not the cause.
What would the effect of such a law be?
"A law that would compel security professionals to focus on keeping their statistics within certain norms rather than on their mission keeping airline travel safe would have a devastating effect on our ability to ensure airline safety," said Daniel Horan of the Los Angeles Police Department in an interview. He worked at the Los Angeles airport on profiling-related issues for 6 years.
In the past few weeks the public relations campaign for the Profiling Act has moved into high gear. On Tuesday, the Council on American-Islamic Relations advised American Muslims to beware of the dangers of "flying while Muslim." In light of recent allegations of "airport profiling," it said, the council has set up a toll-free hotline for pilgrims traveling to Mecca for the hajj, or annual pilgrimage, who believe that their rights have been violated.
The End of Racial Profiling Act has languished until now. What did it need to reinvigorate it? New congressional leadership, and that's coming in January. But it needed something else in this media age: a high-profile incident to jump-start it.
What better than the media circus at the Minneapolis-St. Paul International Airport on Nov. 20?
By Katherine Kersten, Star Tribune
Posted: March 14, 2006
The "flying imams' " federal lawsuit, filed this week in Minneapolis, has made headlines around the country. The imams are demanding unspecified damages from US Airways and the Metropolitan Airports Commission, both with deep pockets. But their suit includes other defendants, as yet unnamed. These people, unaffiliated with the airline industry or government, are among the imams' most vulnerable targets.
Recall the November 2006 incident that gave rise to the suit. The imams engaged in a variety of suspicious behaviors while boarding a US Airways flight, according to the airport police report. Some prayed loudly in the gate area, spoke angrily about the United States and Saddam, switched seats and sat in the 9/11 hijackers' configuration, and unnecessarily requested seatbelt extenders that could be used as weapons, according to witness reports and US Airways spokeswoman Andrea Rader.
After extensive consultations, the pilot asked authorities to remove the imams for questioning, which they did, releasing them later that day.
"The pilot did what he had to do," passenger Rita Snelson of Maplewood told the Star Tribune. "I told the airline afterward, 'Thank you for watching over us.' "
The imams' lawsuit, however, asserts that US Airways and the MAC acted solely out of religious and ethnic discrimination. It includes 17 separate counts.
It also rehearses a catalogue of harms allegedly suffered by the imams, including fear, depression, mental pain and financial injury. They have not only endured exhaustion, humiliation and ridicule, but also have lost sleep and developed anxiety about flying.
Their lawsuit appears to be the latest component in a national campaign to intimidate airlines and government agencies from acting prudently to ensure passenger safety. The Council on American-Islamic Relations, which is advising the imams, is also calling for congressional hearings and promoting federal legislation to "end racial profiling" in air travel. If the legislation passes, airport personnel who disproportionately question passengers who are Muslim or of Middle Eastern origin could be subject to sanctions.
But the most alarming aspect of the imams' suit is buried in paragraph 21 of their complaint. It describes "John Doe" defendants whose identity the imams' attorneys are still investigating. It reads: "Defendants 'John Does' were passengers ... who contacted U.S. Airways to report the alleged 'suspicious' behavior of Plaintiffs' performing their prayer at the airport terminal."
Paragraph 22 adds: "Plaintiffs will seek leave to amend this Complaint to allege true names, capacities, and circumstances supporting [these defendants'] liability ... at such time as Plaintiffs ascertain the same."
In plain English, the imams plan to sue the "John Does," too.
Who are these unnamed culprits? The complaint describes them as "an older couple who was sitting [near the imams] and purposely turn[ed] around to watch" as they prayed. "The gentleman ('John Doe') in the couple ... picked up his cellular phone and made a phone call while watching the Plaintiffs pray," then "moved to a corner" and "kept talking into his cellular phone."
In retribution for this action, the unnamed couple probably will be dragged into court soon and face the prospect of hiring a lawyer, enduring hostile questioning and paying huge legal bills. The same fate could await other as-yet-unnamed passengers on the US Airways flight who came forward as witnesses.
The imams' attempt to bully ordinary passengers marks an alarming new front in the war on airline security. Average folks, "John Does" like you and me, initially observed and reported the imams' suspicious behavior on Nov. 20. Such people are our "first responders" against terrorism. But the imams' suit may frighten such individuals into silence, as they seek to avoid the nightmare of being labeled bigots and named as defendants.
Ironically, on the day the imams filed their suit, a troubling internal memo came to light at the Minneapolis-St. Paul International Airport. The memo revealed that our airport is at particular risk of terrorist attack because of its proximity to the Mall of America, its employment of relatively few security officers and other factors. The memo advised heightened vigilance to counter "this very real and deliberate threat."
The imams may not be the only ones losing sleep and growing more afraid of flying.
By Katherine Kersten, Star Tribune
Posted: March 25, 2007
I wrote last week about the "flying imams"' federal lawsuit, which sets a new low in efforts to intimidate passengers concerned about air travel safety. Buried in Paragraph 21 of the imams' complaint is a legal landmine: The imams plan to sue "John Does" -- innocent bystanders -- who alerted the authorities about their security concerns.
Since then, volunteer defenders of the John Does have stepped forward, locally and around the country.
Dr. Zudhi Jasser, an Arizona physician who heads the American Islamic Forum for Democracy, offered to raise money to pay the defendants' legal costs. The Becket Fund for Religious Liberty in Washington, D.C. -- whose clients have included Christians, Jews, Muslims and Hindus -- offered to represent the John Does without charge. Eleven members of Congress, including Minnesota's John Kline, are co-sponsoring legislation that would bar suits against individuals who report "suspicious behavior" to security personnel in good faith.
But the real bull in the imams' china shop is right here in Minnesota. Like some legal equivalent of Hulk Hogan, Gerry Nolting of Minneapolis law firm Faegre & Benson, came storming out of his corner last week.
He wants to take on the imams' lawsuit against the John Does. And he's offering his services free of charge.
Nolting is a trial lawyer extraordinaire. In the Exxon Valdez oil spill case, the mother of all environmental claims, he was part of a team that won $5 billion in punitive damages against Exxon, the largest such judgment ever at the time. When he's not chasing oil companies, Nolting is trying Superfund hazardous waste clean-up cases, or wading through complex anti-trust and trade secret litigation.
A decade ago, he was named Trial Lawyer of the Year by Trial Lawyers for Public Justice.
Are you listening, imams?
Why would someone who has spent his life doing complex litigation volunteer to champion Mom and Pop John Does?
Nolting has followed the "flying imams" case since the imams were detained at the Minneapolis-St. Paul International airport in November 2006. "I was appalled when I saw the John Doe defendants named in the complaint," he says. "It seemed to me a calculated act, meant to intimidate passengers from reporting suspicious behavior. The judicial system should not be used to 'chill' people from performing their civic duty."
Is the case about racial profiling?
"This has nothing to do with race or color," retorts Nolting. "It has nothing to do with freedom to pray. The FAA [Federal Aviation Administration] instructs people to report suspicious activity. It doesn't say suspicious activity by a particular racial or religious group."
Getting pulled into litigation is like stepping into quicksand. The experience can include thousands of dollars in legal bills and costs, stressful depositions under oath, and demands on your time that approximate a full-time job.
Nolting, of course, knows all about this. "To be named as a defendant in a law suit is a traumatic and emotionally draining proposition," he says. "And it can be financially ruinous, even in a frivolous suit."
Passengers are unlikely to report what they see if they know it might lead to such an ordeal, Nolting says, compromising airline security.
If you're been to the Minneapolis-St. Paul Airport since 9/11, you see Nolting's point. Before you arrive at the terminal, you see that big sign on the highway, reminding you that you're not in Albert Lea anymore. "Suspicious activity?" it blares. "Call 911." Leaving the parking ramp for the terminal, you see signs announcing the airport "threat level." It's usually orange, signalling a heightened security alert.
As you wait in the security line, sealing your 3-ounce toothpaste in a plastic bag, you hear an ominous voice on the public address system: "In the interest of aviation security ..." It reminds you once again to stay alert.
Are we going to shirk that duty to watch out for one another out of fear of being sued?
Not if Gerry Nolting has anything to say about it.
By Katherine Kersten, Star Tribune
Posted: March 28, 2007
Dr. Zuhdi Jasser of Phoenix was deeply troubled after 9-11. A Muslim, he saw his faith threatened by extremists seeking to hijack it for political ends. "Islam is a spiritual path," he says. "The mixture of politics and religion is toxic to our faith."
In 2003, Jasser founded the American Islamic Forum for Democracy with several like-minded Arizona Muslims. "We are pro-Islam and anti-Islamist," he says. In Jasser's view, Islamists believe that governments should incorporate Islamic law, and that spiritual leaders should also be political leaders.
Though he is well-known in Arizona, he has not been visible outside the state. But that changed a few weeks ago, when he publicly challenged the six imams who filed suit after being detained at Minneapolis-St. Paul International Airport. Five of them are from Arizona, and Jasser knows several of them, he says. He has volunteered to raise money to help any passengers they sue for reporting their behavior, as they have threatened to do.
Suddenly Jasser is a sought-after radio and TV commentator. His new role is taking lots of time, a scarce commodity for Jasser, who practices internal medicine and is president of the Arizona Medical Association.
But he believes that a Muslim voice is critical in response to the imams' charges, which include one that they were discriminated against for praying in the airport gate area. "Americans are so worried about offending religious sensibilities," he says. "We as Muslims must step forward and say, 'This is not about prayer, it's about airline security.' "
The context in which faith is displayed is important, according to Jasser. "I pray five times a day; for example, I pray publicly in the park with my family when we are on a picnic," he says. "But the issue is one of prudence. After 9/11, the airport gate is the most anxiety-laden area for Americans. It is supreme naivete for these individuals to feel the way to exercise their religious freedom is embodied by their ability to pray as a group at an airport gate."
The imams could have prayed quietly in their seats on the plane or after they arrived home, says Jasser, as several of them did. This is what "less rigid but equally devout Muslims" would have done, he adds. "Prayer is not about demonstrating your piety to the world. It's about a personal appointment with God."
Unfortunately, the imams' prayers at the gate only created resentment, not the understanding and acceptance of Islam they claim to seek from others, says Jasser. "Muslims' freedoms and rights are guaranteed in the Constitution," he explains. "But even more important to our freedom is the tenor of our relationship with the majority of Americans."
At home in the Phoenix area, the imams often mix prayer with politics, according to Jasser. He cites the Tempe Islamic Community Center, where Ahmed Shqeirat, one of the detained men, is imam, and where Jasser often used to attend prayers. Shortly after the Iraq war began, Jasser says, Shqeirat displayed during Friday services an inflammatory picture of an American soldier making sport of an Iraqi child. When Jassser objected, saying that he had come for spiritual nourishment, not politics, Shqeirat accused him of being "secular" and causing division, he says.
In response, Shqueirat says that he displayed the picture only to demonstrate that American soldiers need more multicultural education. Jasser's views on separation of religion and state are extreme, Shqueirat adds.
Jasser also cites the imams' refusal to participate in a rally called "Standing with Muslims against Terrorism," which he organized in Phoenix in April 2004. The Arizona Republic newspaper in Phoenix endorsed the rally, and praised Jasser as "one of the most vigorous and articulate spokesmen in America denouncing indiscriminate violence in the name of Islam."
But Jasser says the imams backed out after they learned that the rally would focus only on Islam's prohibitions against the targeting of innocents, and not on potential justifications for terrorism such as American foreign policy and Israel.
Shqeirat responds that they did not attend because Jasser insisted on approving their speeches and signs in advance. Jasser, he says, is seeking attention because he aspires to political office (a claim Jasser denies), and is not authorized to speak for any Muslim community.
"I believe I represent the views of the large majority of Muslims in this country," says Jasser. "They are repulsed by political sermons, by apologetics for terrorism. The vast majority do want to separate their spiritual identity from their political identity."
By Katherine Kersten, Star Tribune
Posted: July 25, 2007
Last week, "John Doe" appeared to be down for the count. But the congressional initiative to grant lawsuit protection to people who report suspicious behavior has a new lease on life. Minnesota's two senators played no small part in its last-minute resuscitation.
John Doe, you recall, was the term that the "flying imams" used in their federal suit to designate unnamed passengers who had alerted authorities to the imams' "suspicious" behavior on a US Airways aircraft. The imams were removed from the plane in the Twin Cities in November, questioned and released.
The imams' suit -- which targeted the John Doe citizens as well as the airline and the airport -- prompted widespread concern and inspired U.S. Rep. Peter King, R-N.Y., to introduce legislation to give immunity to such whistleblowers.
Last week, the John Doe provision became mired in technicalities as Democratic leaders tried to kill it in a conference committee on a homeland security bill. A Senate attempt to keep it alive as an amendment to another bill fell three votes short of passage.
But Tuesday night, King announced that the John Doe provision would be part of the security bill after all. The House is expected to vote on the bill this week, and the Senate next week.
I had a hunch that John Doe's resurrection might be just around the corner when I talked to Sen. Amy Klobuchar on Monday.
Klobuchar's vote was one of the three that seemed to sink John Doe. But on Monday, she told me that she had decided to support the measure. "It came up in the middle of the night, attached to an unrelated bill," she said. "I was thinking about a case I had in Bloomington as [Hennepin] county attorney. A security guard reported a series of fires set by a 'Middle Eastern man,' but police discovered he had set the fires himself. I wanted to make sure that the [immunity provision] had exceptions that would preserve the right to sue under such circumstances."
After the late-night vote, Klobuchar talked to Sen. Joe Lieberman, I-Conn., a cochairman of the committee and a supporter of the John Doe provision. He alleviated her concerns, she said.
Sen. Norm Coleman backed John Doe's resuscitation. He served on the conference committee that hammered out the language, and brought his perspective as former chairman of the subcommittee on investigations of the Senate's Homeland Security committee. He supported the measure's inclusion in the bill throughout negotiations.
In an interview on Tuesday night, King said that when the Democrats took control of Congress in January, they promised voters to pass the ultimate homeland security bill. "But how can you have that if you don't give protection to people who report potential terrorist activity?" he asked. After the John Doe amendment failed in the Senate, Democrats were "too embarrassed" to continue opposing immunity for people who report suspicious activity, he said.
Still, King added, Democratic conferees' support was lukewarm. "They wanted to water it down, take all the teeth out of it," he said. For example, they opposed making the provision retroactive to Nov. 20, in order to shield the passengers who reported the imams' "suspicious" behavior. And they favored giving immunity only to individuals who report potential terrorist activity, not ordinary crimes.
"But how can the average person tell if he sees someone illegally buying machine guns whether it's for Al-Qaida or a bank robbery?" he asked.
In its final form, the John Doe provision gives lawsuit immunity to individuals who make good faith reports of suspicious activities, and entitles them to attorneys fees and costs if they are sued, according to a spokesman for Coleman. It is retroactive to Oct. 1, 2006.
If the homeland security bill passes, it will be harder to discredit tipsters as engaging in racial profiling. Protection for John Does can come none too soon. Already, people are hesitating to report their suspicions for fear of being tarred as racial profilers. For example, the video store clerk who foiled a terrorist plan to attack Fort Dix, N.J., thought twice before he contacted authorities after seeing a video that showed the alleged plotters shooting guns at a target range and shouting "God is great!" . "Should I call someone or is that being racist?" he told the New York Post he had asked a co-worker.
"Radical Islamic groups are using lawsuits as weapons to intimidate and silence their opponents," says Steven Emerson, a terrorism expert who has testified before Congress and was himself the target of a lawsuit. "Suing passengers is an extension of their effort to intimidate and stifle people who simply report suspicious activity."
Every day, we read of the urgent need for John Doe immunity. This week, the Transportation Security Administration acknowledged that terrorists may be making dry runs for attacks at U.S. airports. In recent months, security personnel have discovered items that mimic bombs and improvised explosive devices in checked and carry-on luggage. According to a TSA bulletin, these could be "pre-attack security probes," or repeat operations to desensitize security officials.