JURIST Guest Columnist Ali Khan of Washburn University School of Law discusses the recent executive order banning individuals from seven Muslim-majority countries, and the effects of US Customs and Border Protection officials’ perpetuation of harassment at US airports…

Ever since President Trump signed an executive order banning individuals from seven Muslim-majority countries, reports of harassment at US entry points, including airports and road crossings, have inundated newspapers, news websites, and social media. Tourists, legal immigrants, even US naturalized and US born citizens have reported degrading treatment, humiliation, and intimidation by US Customs and Border Protection (CBP) officials. In addition to travelers with Muslim names from all over the world including European Muslims, non-Muslim visitors have also been detained and subjected to pointless questioning.

For example, French Holocaust scholar Henry Rousso was detained for more than 10 hours at the Houston airport. Mem Fox, an eminent Australian writer of children’s books, was detained at the Los Angeles airport. “I have never in my life been spoken to with such insolence, treated with such disdain, with so many insults and with so much gratuitous impoliteness,” Fox said. Of course, the degradation of Muslims arriving at US airports has been widespread. The son of legendary boxer Muhammad Ali was detained for hours at Fort Lauderdale airport after he was returning from speaking at a Black History Month event in Jamaica. He, a US-born citizen, was asked whether he was a Muslim.

Harassment

Harassment is a well-known legal concept in the US. Harassment is both criminal and civil. As a general concept, criminal harassment means a course of conduct, including words and gestures, knowingly directed at an individual to alarm, annoy, torment, or terrorize the targeted person. Civil harassment is a form of discrimination, practiced in employment and housing, based on race, religion, sexual preference, national origin, or gender. Federal laws prohibit civil harassment where state laws prohibit both civil and criminal harassment.
There is no federal law specifically prohibiting CBP officials from “harassment” of travelers arriving at the US points of entry. In fact, the CBP officials at points of entry have more powers than police officers on the streets. Unlike police officers, the CBP officials need not have a probable cause to ask intruding questions to incoming travelers, nor a reasonable suspicion to search their luggage. They may do so at will for their primary responsibility is to prevent the entry of persons and goods that pose threat to national security or violate the US immigration, agricultural, monetary, or other laws.

The reported cases of harassment by the CBP officials are inconsistent with the “national goal” that in 2015 the Departments of Homeland Security and Commerce proposed to President Obama: “The United States will provide a best-in-class arrival experience, as compared to our global competitors, to an ever-increasing number of international visitors while maintaining the highest standards of national security.”

There could be several reasons why the CBP is engaging in a course of conduct incompatible with providing a best-in-class arrival experience as promised in the 2015 proposal:

1. President Trump or Secretary John Kelly of Homeland Security may have abandoned the 2015 goal (even though the goal is still displayed at the CBP website), now focusing more on national security and less on the commercial benefits that flow from international visitors. The stories of CBP harassment might reduce the already dwindling number of international travelers to the US.

2. The reported stories of intense questioning by the CBP officials is getting more than usual press coverage because of the illegal executive order banning refugees and other travelers.

3. The CBP officials conducting secondary inspections (detention, detailed questioning, and luggage searches) are not well-trained in effective but dignified questioning of international visitors including US legal immigrants and citizens coming back home.

Consequences

Whatever is causing the perceived and actual harassment at the US points of entry, concrete consequences flow from negative perception among the peoples of the world that the US has turned into a land of disrespect, discrimination, and deportations.

First, fewer visitors from Muslim and non-Muslim countries will undertake expensive trips to the US. They are unlikely to spend money to be degraded at US airports. Visitors wish to have good time without being abused and harassed in the host country. Once a country loses goodwill, most international travelers think twice before visiting there.

Second, fewer new students will opt to study in US colleges and universities. Already, China is attracting hundreds of thousands of foreign students. Likewise, specialty occupations might also fail to recruit skilled professionals. As the 2015 report rightfully points out there are global competitors who wish to divert traffic from the US to their own countries.

The Department of Homeland Security and CBP need to understand that they are doing a disfavor to the economy and reputation of the US by their over-zealous detention and questioning of international visitors. They should presume, unless there are apparent contra-indications, that international travelers with valid visas obtained from US consulates and embassies located in foreign countries are innocent travelers and not potential security threat. This presumption applies even more strongly to legal immigrants and US born and naturalized citizens returning home after vacation or business travel.

The President’s new executive order on Monday morning, though it excludes Iraq from its coverage, is still focused on Muslim countries. Like the previous executive order, It too is likely to make Muslims traveling to the US more vulnerable to CBP vetting procedures. The harassment stories at US points of entry will multiply again.

Ali Khan is a professor of law at Washburn University in Topeka, Kansas and Founder of Legal Scholar Academy, which provides expert analysis of international affairs involving Muslim nations and communities.

Suggested citation: Ali Khan, Harassment at US Airports, JURIST – Academic Commentary, March 6, 2017, http://jurist.org/forum/2017/03/ali-khan-harassment-airports.php.