Muslim Flight Denials Suggest Return to Legal Terrorist Profiling
Many Recent Bans Add to Concern Over Use of Religion as One Factor

The very carefully worded denial regarding why a Muslim family bound for Disneyland was barred from boarding a plane to the U.S., plus many similar recent instances where Muslims were likewise denied boarding, suggest that the government has returned to its earlier practice of surreptitious terrorist profiling based upon religion, says public interest law professor John Banzhaf, adding that, for two different reasons, the practice is not unconstitutional.

In seeking to assure the public regarding the Disneyland-bound family, a U.S. Customs and Border Protection spokesperson said that “religion, faith or spiritual beliefs of an international traveler are not determining factors” when deciding if a person can travel to the U.S.  But the careful inclusion of the word “determining” suggests that while one’s religion by itself does not determine if visas will be denied or revoked, it may be one factor – perhaps an important but still not a determining factor – in making this important decision.

If so, it’s not unconstitutional for two different reasons, and simply represents another form of the terrorist profiling our government has used in the past, says Banzhaf.

Even with regard to U.S. citizens, both the U.S. Supreme Court and the U.S. Department of Justice has determined that using characteristics like race, religion, national origin, etc. to make decisions is not unconstitutional if it serves an important public interest, and is only one of several factors which are considered.

That’s why, for example, colleges can use race as one of several factors in selecting students, since such use allegedly serves the compelling governmental interest of helping to insure diversity.  But everyone would agree that preventing deaths and injuries in terrorist attacks is a governmental interest which is at least as important as diversity in college classes, says Banzhaf, so the use of religion as one factor in screening for terrorists is not unconstitutional.

So the government might well give much closer scrutiny to Muslims seeking entry into the U.S. than to other groups, and revoke a visa based upon suspicions which might not warrant a similar decision regarding non-Muslims.

Muslim Flight Denials Suggest Return to Legal Terrorist Profiling

Terrorist profiling – DHS

For example, a DHS source reportedly said that one of the Disneyland-bound brothers was refused entry into Israel two years ago, and his teenage son’s Facebook account has links to terrorist websites.  Indeed, a Facebook profile linked to the family’s address reportedly included “joke” references to Al-Qaeda and the Taliban – a teenage “joke” which might have been overlooked if the family was Christian or Jewish, but which might be more suspicious because the family is Muslim, and young Muslim men have been implicated in a terrorist activities.

As a completely separate reasons, using religion as a factor in screening persons permitted to enter the U.S. is also constitutional, at least according to current Supreme Court precedents, under a doctrine known as plenary power doctrine.  As law professor Eric Posner recently explained:

“The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.”

Although it has been reluctant to admit that it uses religion in making travel decisions, and has not used it very efficiently, the government apparently has used religion as a screening tool in the past.  For example, a TSA manual posted on line in 2010 showed that the agency selected candidates for secondary screening based upon religion, although it does so both indirectly and very ineffectively.

The manual instructed TSA officers to automatically select, for secondary screening, all citizens of 12 named countries.  Aside from 2 Communist nations, all of the others have large Muslim populations. This hardly seems to be just a coincidence, suggests Banzhaf.

The Telegraph, in an article headlined “Revealed: 20 British Muslim Families ‘Stopped’ from Entering US amid Fears ‘Trump Ban Is Already in Place’,” reports that scrutiny of Muslims has intensified recently, with some 20 examples being cited.

All of this, plus the government’s carefully worded statement that religion was not the “determining” factor in barring a Muslim family from visiting Disneyland, strongly suggests that religion is again being considered as a factor in using terrorist profiling in helping to decide who may travel.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ [email protected]law.gwu.edu  @profbanzhaf