Rules Are for Schmucks: Religious Immunity from Surveillance

Last week I wrote about “America’s Newest Religion,” an outfit calling itself the “Creativity Movement” that advocates white supremacy in the crudest terms. A federal court in Colorado has blessed this as being a “religion,” eligible for all the benefits that go with that status.

Reverend Matt Hale, the winning plaintiff in that case, is currently serving a forty-year prison term for conspiring with other white supremacists to murder a federal judge. That’s the sort of criminal activity that some, but not all, white supremacists engage in. They also have to live in the knowledge that the FBI and others are monitoring them closely, precisely because of their history of criminality.

All that may change now, thanks to a serendipitous (for them) development. Just two weeks after the ruling granting “Creativity” status as a religion, another federal court ruled that the government generally may not maintain special surveillance over a “religion,” on both equal protection and “free exercise of religion” grounds.

Here’s the background. The smoke hadn’t yet cleared from the September 11, 2001, attacks before opinion leaders all along the political spectrum began demanding that we have better intelligence to warn about potential future attacks—not just electronic eavesdropping, but “human intelligence” as well. The police department of New York City, where the worst attacks occurred, quickly realized that it didn’t know how to begin to do this. They knew that small elements within the Muslim communities of the New York area were bent on violence— the 1993 attack on the World Trade Center had come from locally-based Muslims—but they had little clue how to find them. So they launched a study of the New York-area Muslim community, including its mosques and Muslim student associations. As the opinion describes, the point was to “help the NYPD figure out where to look—and where not to look—in the event it received information that an Islamist radicalized to violence may be secreting himself.”

Word leaked out, and New Jersey Muslims brought a lawsuit. They didn’t claim they were being punished, threatened, or harassed, just that they were being surveilled.

White supremacists probably don’t like being surveilled, either. And now the ones who had the wisdom to declare themselves a church may have an excellent way to evade it, because the court ruled that mere surveillance of a religion, and nothing more, can violate the Constitutional rule against “prohibiting the free exercise” of religion.

The case is still at a preliminary stage. The court has not concluded that the NYPD did anything wrong. NYPD may be able, at trial, to vindicate its investigation. But the message this preliminary ruling sends to white supremacists, sex abusers, terrorists, embezzlers, drug dealers, and other untoward actors is clear: if you hide your wrongdoing behind the doors of a church, law enforcement will have to bend over backwards before it can even investigate what you’re doing. Organize yourselves as a corporation or just a loose group, and you’re fair game; organize yourselves as a church, as the Creativity folks have done, and law enforcement will be terrified of the lawsuit you can bring for violating your constitutional rights. Not for doing anything to you, but just for looking at you.

It is certainly within the realm of possibility for government to mistreat a group simply by singling it out for investigation. The classic example is racial profiling, sometimes called the offense of “driving while black.” If a law enforcement agency decided to focus its investigative efforts primarily on black (or white, or Asian) people, that would be bad—even if the only people ultimately arrested were, in fact, guilty of crimes. So what’s the difference between racial profiling and the NYPD’s mosque surveillance program?

The difference is that mere blackness provides no rational reason for police to single someone out, and that we have a long, sordid history of mindless government discrimination against black people. By contrast, there are excellent rational reasons for law enforcement to want to keep an eye on a white supremacist church, or a church whose stated purpose is the use of illegal drugs, or a church with an extensive history of child sex abuse. As for Islam, it’s no secret that there have been numerous arrests and convictions of Muslims in recent years for terrorist activities they’ve carried out or attempted precisely because they say it’s part of their religion. When you examine Muslim scriptures, the teachings of Muslim God experts over the centuries, current worldwide opinion surveys of Muslims, and the recent actions of Muslim leaders from Nigeria to Tunisia to Syria to Pakistan to Indonesia, the conclusion is inescapable that these terrorist acts are in accord with a significant minority school of Muslim religious thought.

That’s the difference. There is nothing inherently criminal about blackness. But there is something inherently criminal about some varieties of Islam.

The overwhelming majority of American Muslims are good, law-abiding people. Nothing remotely bad should happen to them just because they are Muslim, and they should have exactly the same rights to build churches, hold jobs, etc., that members of every other religious (or nonreligious) group has. But there are, unquestionably, a small number who want to delight their deity by wreaking havoc. How are you going to find these people? Well, step number one would be to look for them in the most logical places we can find. In fact, the NYPD surveillance program did identify at least one planned terrorist bombing, resulting in two arrests last spring. This is exactly what the court is now saying law enforcement can no longer do, without enormous risk of violating the Constitution.

I’ve been surveilled. I was involved in antiwar groups back in the 1970s, and we knew we were being watched. We had a pretty good idea who the informer was—he didn’t look or act much like the rest of us. Frankly, we’d have felt left out if we hadn’t been monitored—why aren’t they more worried about us? We also knew there were a few antiwar radicals around the country doing some brutal, unconscionable things, and so long as we kept our protests raucous but nonviolent we weren’t concerned about the surveillance. The 99-plus percent of Muslims who are law-abiding have no more legitimate concern about the NYPD surveillance program than we had.

The court closes its opinion with an absurd analogy comparing the NYPD surveillance of mosques to the internment of Japanese-Americans during World War II. If NYPD were rounding up all Muslims and imprisoning them in concentration camps, I agree that would be a problem. But they’re not. Instead, the court seems to be saying that it should have been virtually impossible during World War II for the government even to conduct surveillance of groups like the German-American Bund, if they were operating under the color of religion. Or for the government to surveil “Creativity,” now that it’s a recognized church. I do hope no one reading this ever becomes a victim of a crime that could have been prevented had this court not knuckled under to the God industry.