It is with much regret and sorrow to my fellow brothers and sisters serving in Muslim Students Associations (MSAs) around the nation that I must declare: The gig is up. We must come clean. Therefore on behalf of myself and my fellow accomplices and co-conspirators, the following heartfelt apology extends to the noble members of the FBI, NSA, Nashville Police Department and any other law enforcement body I may be missing.
"No state... shall deny to any person within its jurisdiction the equal protection of the laws."
In 2012, the AP discovered that the NYPD had been conducting a long-standing and broad surveillance program on a wide variety of Muslim communities and institutions, with a particular focus on college-based Muslim Students Associations (MSAs). A coalition of Muslim American citizens, including Iraq war veteran Syed Hassan, mounted a legal challenge to the program. While not challenging the constitutionality of the program, the plaintiffs cited diminished religious expression, employment prospects, property values and revenue following the Associated Press's expose of the program.
In February, a federal judge in New York granted the City of New York's motion for summary judgment to dismiss the challenge by declaring that the plaintiffs lacked judicial standing. In addition to declaring that the plaintiffs lacked the injury of fact and causation prongs of the standing requirement, the court concluded:
While this surveillance program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.
If the case was allowed to go forward, would the NYPD's actions be considered constitutional -- particularly with regards to the equal protection or free exercise of religion clause?
When analyzing issues of constitutionality, especially with regards to equal protection and due process issues, courts generally apply a balancing-test analysis between the government's legitimate interest versus whether the measures they have adopted are sufficiently related to furthering and purpose as well as whether they are sufficiently narrowly tailored and minimally burdensome.
The government clearly has an utmost legitimate interest in protecting us, and terrorism is no abstract concept for me. My mother actually lost a cousin in the World Trade Center attacks, and I almost lost my aunt who was working in the Pentagon on the day it was attacked. This summer, I will be working with the U.S. Coast Guard's Office of Maritime and International Law to help provide the requisite legal support to the men and women who risk their lives to serve as our nation's first line of defense against piracy, terrorism and narco-trafficking.
Yet given this very legitimate interest, how can the actions the NYPD have chosen to undertake be even remotely considered as narrowly tailored and minimally burdensome measures? Indeed even if the state narrowly defines its purpose as preventing "Islamic terrorism" and somehow these patently discriminatory policies based on religious identity do not trigger heightened scrutiny, this program should not pass muster even under rational basis review.
Our constitution robustly protects the general right of citizens to be protected from laws, practices and policies operating under discriminatory animus based on race, religion or nationality. Absent extraordinary circumstances in which animus is the sole basis for conducting a given state action, the demonstration of a disparate impact on a select group is generally not sufficient. Yet when the government targets individuals based on characteristics such as race, religion or nationality, the Equal Protection Clause and Free Exercise Clause may both be offended. Indeed, even if the state action is not technically invalid, such policies deeply offend long-established and protected equality norms.
One of the most sensational revelations has been the sheer scope of the NYPD's program, which has targeted Muslim communities and institutions not just in New York, but throughout the entire Northeast -- and with a special focus on college-based Muslim Students Associations.
"The New York Police Department monitored Muslim college students far more broadly than previously known, at schools far beyond the city limits, including the Ivy League colleges of Yale and the University of Pennsylvania..."
The NYPD has seemingly been given such extraordinary powers without the presence of an imminent emergency -- or indeed without presenting any evidence of actual wrongdoing by members of the targeted Muslim communities and institutions. No state agency or actor -- not the NYPD and certainly not Representative Peter King (R-NY) -- has been able to present a shred of credible evidence to justify such whole-scale violations of privacy.
As a 2L law student, I am certainly no Con Law expert, but I simply do not see how allowing such a staggeringly broad program for a state law enforcement agency -- absent the presence of an imminent threat or the presentation of clear evidence of wrongdoing -- can be considered to be a sufficiently tailored measure in relation to the state's stated purpose of preventing terrorism.
Yet even if the NYPD surveillance program is constitutional, is such a program targeting established pillars and mainstream institutions of American Muslim life effective at preventing terrorism -- even just "Islamic terrorism?"
After all, everybody knows the first thing al Qaeda sleeper cell terrorists typically do is join their local Muslim Student Association and/or community Muslim youth group. They are also meticulous in always wearing Sikh turbans (the classic Sikh-Muslim switch-a-roo!) and to keep a low profile, naturally become nationally acclaimed religious leaders who openly pray in congregation before catching their flights.
I do not pretend to be a counter-terrorism expert, but by definition those who would resort to terrorism are outliers, and thus have behaviors which are atypical to other members of their community -- such as laying low close to home rather than participating in public religious and cultural life. For instance, this often translates into radicals forming their own underground social and religious networks rather than joining (much less, becoming leaders of) mainstream mosques, youth groups, MSAs and other established sociocultural and religious institutions of Muslim communities. Would not a smarter more effective use of our law enforcement resources be to work with Muslim communities and organizations to help identify these outliers rather than treating "existing while openly Muslim" as a crime? Categorically bugging all mosques and "infiltrating" MSAs might be the quick and easy option for our government to show us that it is "doing something" to combat terror, but is it really the most optimal method for serious law enforcement?
Keeping Us Safe
No doubt terrorism committed in the name of Islam represents a serious threat; yet if our government is serious about protecting its citizens from terrorism, we cannot just focus on its most exotic brand. After all, scholarship has shown that terrorist acts committed by those professing Islam are relatively minuscule compared with all other forms of domestic terrorism.
Statistically speaking, even terrorism in all of its forms pales in comparison to our chances of being harmed by random acts of mass violence. The real danger comes when we as a society begin normalizing this tragic reality-and when those we trust to protect us begin to do the same.
Consider this: Aurora mass murderer James Eagan Holmes purchased a Remington 870 Express Tactical shotgun, a Smith and Wesson M&P15 semi-automatic rifle, and two Glock 22 pistols in-person. He also purchased 3000 rounds of ammunition for the pistols, 3000 rounds for the M&P15, and 350 shells for the shotgun, along with a military-grade Blackhawk Urban Assault Vest, two magazine holders and a combat knife online. All of those purchases were completely legal, and did not seem to raise any red flags for law enforcement prior to his unspeakably evil actions.
I honestly do not think I would be able to buy 3000 paintball rounds without getting a knock on my door.
But hey, unlike me, James Eagan Holmes was never a MSA member.
My Apologies, America
Which finally brings me to my confession of the wrongdoings for which I must now seek forgiveness. Am I apologizing for a crime already committed, in progress, or to be committed in the future? No -- unless the unintentional infliction of severe and chronic boredom to an officer of the law is a punishable crime.
I confess: I was President of my high school Muslim Students Association and then went on to join the Vanderbilt MSA throughout my entire undergraduate career while serving on its executive board for two of those years. As Vanderbilt continues to embrace diversity among its faculty and student communities, our MSA has long been one of the largest and most diverse student organizations on campus with hundreds of members. Malaysians, Saudis, Emiratis, Lebanese, Egyptians, Moroccans, Tunisians, plus Black Americans, Middle Eastern-Americans, and South Asian-Americans... We even had many non-Muslim members. You name it; we had them in our ranks. I would bet a semester's worth of tuition that such an organization must have proved an irresistible target for surveillance for those seeking to protect our nation from the ubiquitous, nefarious, nebulous threat of terrorism.
Yet if our activities were monitored at any point during my service with the MSA, then I can only imagine the endless hours of boredom we must have inflicted on the poor souls who were stuck with that thankless task. Take our board meetings for instance; I can just imagine the men responsible for keeping our nation safe, anxiously expecting us to hatch Homeland-esque plots... only to hear us discussing Ramadan iftar and Friday prayer arrangements, planning social outings, discussing which classes and professors to take, and despairing about how none of us would ever be able to pursue a respectable profession or enter graduate school due to our abysmal engineering/pre-med/aborted-pre-med GPAs (Miracle alert: All of us did!... somehow).
In fact, probably the most spirited discussion we had during my entire time on the board was the one time we considered approving the Middle Eastern Student Association's request to feature belly dancing during our Eid al-Adha Celebration (The answer? Absolutely Not. Guys, I don't know if you got the memo, but it's an EID celebration aka an event commemorating one of our two religious holidays -- open to not only all students and faculty, but also aunties and uncles from the community including our parents. Hey ,we're all for being open-minded, but that's pushing the awkward turtle-o-meter just a bit too much. Proposal denied, gents). Truly sinister stuff.
MSA: So Hardcore
Likewise, I pity any hypothetical aspiring hotshot tasked with "infiltrating" our organization and "monitoring" our activities who thought they would surely be a real-life Carrie Mathison or Jack Bauer. Instead, one of the first observations they would have me is that unlike some of our more storied peers of the Greek persuasion, we have no exotic or violent rituals and are happy to get as many members as we can. Once joining our organization for free -- as a religious organization we cannot even charge dues -- the only activities they would be "monitoring" would be our Friday sermons and prayer services, for which our sermon-givers openly sign-up and often even make their sermons available online. They would have witnessed our wide variety of interfaith initiatives, our weekly tutoring sessions for immigrant children, and our annual
Fast-a-Thon Charity Drive which raises thousands of dollars for local and international humanitarian causes.
Indeed, the only remotely political event we ever hosted during my four years in MSA was in the midst of Israel's massive 2009 campaign against Gaza when passions and emotions were running sky-high throughout both the campus and greater Nashville community. We responded by holding... a Candlelight Peace Vigil for Gaza and Israel. We reached out to our good friends in Vanderbilt Hillel -- with whom we have always had excellent relations -- as well as other religious and cultural organizations on campus and throughout Nashville to coordinate an interfaith vigil in Benton Chapel. Smoking gun, indeed.
This is what an MSA actually is, and who we are as Muslims, students, citizens and human beings. This is not just a portrait of our MSA at Vanderbilt, but reflects the rich tapestry of MSA life in every college and high school in the nation. No terrorism, treason, or "creeping shariah." Yet if our MSA activities were indeed monitored at any point and the unintentional affliction of boredom to an officer of the law is an actionable offense, then I and the rest of my fellow MSA board members are guilty as charged.
A Personal Pledge
In my two semesters of Arabic, one of the first things I realized is that militant and terrorist outfits around the globe have a unique knack for branding by turning the innocuous into the infamous. For instance, Taliban is plural for "students" in Arabic. And Somalia's murderous al-Shabab? It literally means "the youth", but more colloquially is used as a casual way of saying "hey guys/dudes" and is actually the namesake of sports clubs throughout the Arab world. So when too many of my fellow Americans hear the words "Muslim Students Association," they likely view us as some treacherous homegrown branch of the Muslim Brotherhood. Otherwise, such broad surveillance programs targeting entire communities and institutions on the sole basis of religious affiliation simply would not be allowed to be conceptualized, continued and expanded.
The underlying sources of such misunderstandings based on deeply-rooted schemas are complex and multifaceted. The primary blame surely lies with the numerically tiny, but extremely dangerous cadre of nihilistic terrorists who do not hesitate to blow up entire schools and mosques full of worshippers -- or Muslim-Americans such as my aunt -- to further their vile agendas. Yet other guilty parties also include the architects and advocates of both the military-industrial complex and the modern extra-judicial American surveillance state --as well as the fear-mongering and headlines-craving media who have enabled and benefited from both phenomena.
Yet perhaps part of the blame can go to young Muslim Americans such as myself. The tragedy of September 11 has transformed virtually all of us as de-facto ambassadors of our faiths to our fellow Americans. I was in seventh grade when I suddenly found myself thrust into that role. While I have since tried to shoulder this responsibility to the best of my ability, I have always been so caught up with my student and personal life that I may not have always been the best at proactively reaching out to my community. So here's my personal pledge: If you have any questions about any aspects of my faith or heritage, please feel free to approach me. I don't bite (not even while fasting during Ramadan!), and while I am no expert on Islam, I promise I will do my best to answer any questions you have from the perspective of what my faith means to me as it applies to my daily life. Let's have a conversation -- a dialogue and mutual meeting of the minds. And let's do it over endless cups of Arabic coffee, because that ish is delish.
Help promote civil liberties while making our nation safer. Please take a moment to sign the following Whitehouse.gov petition to reform surveillance programs.
A huge thanks to my Constitutional Law Professor Timothy Zick for reviewing my constitutionality analysis, as well as my good friends and fellow Vandy MSA board members Mohamed al-Hendy and Sami Safiullah for all of their help and support.
Dedicated to my MSA brothers and sisters in colleges and high schools across our country. Keep being awesome.