Sawsaan Tabaa misunderstood.  He thought that being an American meant that you could travel to Toronto and then return without being treated like a criminal.  Well, that was in the old days, according to the Second Circuit in Tabaa v. Chertoff.  By the way, you remember Michael Chertoff, don’t you?  He was the second best choice for Homeland Security Tzar, right after Bernie Kerik.  Now there’s high praise.

Tabaa went to a conference in Toronto with 4 other United States citizens who, as it happened, were Muslim.  Customs and Border Protection (now known by the really cool acronym “ICE” to make bad guys shiver, but they gave them really goofy looking badges that look like they came from Badges-r-Us) had “information” that people who knew someone who’s cousin had a mailman who once carried a letter from a potential terrorist would be at the conference.  That, of course, meant that they were all potential terrorists.

And so American citizen Tabaa became potential bad guy Tabaa.  And was treated to the way our Customs and Border guys deal with potential bad guys.  They were detained for hours, interrogated, frisked, fingerprinted and photographed.  This was the procedure set up for suspected terrorists, except there was no mention of waterboarding.

So Mr. Tabaa did what any red-blooded American would do under the circumstances.  He sued.  He sued for violations of the Administrative Procedure Act, First and Fourth Amendments and the Religious Freedom Restoration Act.  He operated under the theory that if you don’t do anything wrong, you basically have a right to go about your life without being subjected to federal detention as a suspected terrorist.  Even Muslims.  How silly is that?

And the Circuit opinion, by Judge Straub, excoriates the government for its shocking and baseless abuse of United States citizens by protecting their fundamental right to be left alone when there is no basis whatsoever to suspect that they are engaged in any wrongdoing whatsoever . . . not.  This is where all those great lines about our vaunted freedoms that lawyers and judges love to spout saddens me deeply.  Platitudes are wonderful, but only if they actually mean something and aren’t used to fill in the empty spaces between rulings that violate the very precepts they are supposed to protect.

The real Second Circuit opinion demonstrates how our judiciary is there to protect us from the red terrorist threat.  Tabaa loses because the actions undertaken were “narrowly tailored to achieve the compelling governmental interest in preventing terrorists from entering the United States.” 

Bear in mind that this isn’t a complaint about your typical border search, where you need to prove your identity and the government gets to check your bags to make sure you aren’t sneaking an extra bottle of Chivas across the border.  The acknowledged basis was Tabaa’s attendance of the “Reviving the Islamic Spirit Conference.”  No more, no less.  Thus, the message is clear:  Attend a religious conference and, if it happens to be about Islam and you happen to be an American citizen of the Muslim faith, the government has a compelling governmental interest that trumps every right you thought the Constitution and laws gave you.

My favorite line in the opinion is found in footnote 1, where the Court states that “in an abundance of caution,” it reviewed ex parte and in camera the classified information so that an independent determination could be made that he agents “uncontradicted” allegations were sufficient.  So how exactly does one contradict statements based upon “classified information” that is only known through an ex parte and in camera examination?  Well, that’s justice for you.  It may not be perfect, but it’s the best system there is.  Right?  Not if you’re Muslim.