Power Line's Scott Johnson has an overview of the 'Flying Imams' case in today's Weekly Standard, or what some have described as 'flying while Muslim'.
The case was settled out of court (the Imams got their money) but the judge's written opinion last year was the topic of Johnson's essay. His summation was that "we lose". I'd like to add a few thoughts.
Under normal circumstances the judge's opinion was absolutely correct--these Imams were unfairly targeted simply for exercising their constitutionally protected freedom of religion and speech in an airport. There's no question. To get a sense of this, reverse the roles: how many on the right would appreciate being yanked off an airplane and taken to the security center in handcuffs for bad-mouthing Obama or Pelosi in the boarding area then reciting the Lord's Prayer? The judge was trying to protect liberties.
But in that she was assuming a perfect world.
Here in the real world there is no such thing as liberty at the airport, and there hasn't been for a long time. All passengers are presumed to be terrorists upon arrival--our names are run through watch-lists; we are scanned on surveillance cameras; before boarding we are forced to empty our pockets, briefcases, and remove shoes; and any suspicious mannerisms are noted. These things happen to the most lily-white amongst us regardless of age, gender or religious persuasion. Terrorism produced those assaults on liberty, much of it coming from those hailing Allah before the explosions. Did enough Imams speak out on that as it was occurring?
It's certainly conceivable these Imams, coming off a national conference, could have been engaged in a sort of non-violent jihad designed to further confuse, test and tie up the process of air travel, which is still a prime target for violent jihad. No doubt they knew going in that speculation without evidence is meaningless in a rule of law system and the judge confirmed that notion, which exposed a weakness.
Even if these Imams were only bravely defending their constitutional rights there is little doubt the case's relative success will encourage further similar filings, some perhaps designed to chill the ability of law enforcement and the general public to weed out those bent on destroying innocent life and corrupting western commerce, which in the past has largely come from a profile quite similar to the Flying Imams. We need to protect individual liberties as much as possible in balance with the threats we face, but not to the point of our own demise. In that sense, and in light of the restrictions on liberty already present in the aviation system, judges cannot afford to forget 9/11 in rendering decisions in this arena.