Posted by Eugene Volokh:
All or Nothing:
I much appreciated [1]Orin's post criticizing the [2]"Nearly Half in
U.S. Say Restrict Muslims" reporting of a recent survey. As Orin
pointed out, here's what the survey actually measured, quoting [3]this
report:
1) Muslim civic and volunteer organizations should be infiltrated
by undercover law enforcement agents to keep watch on their
activities and fundraising.
2) U.S. government agencies should profile citizens as potential
threats based on being Muslim or having Middle Eastern heritage.
3) Mosques should be closely monitored and surveilled by U.S. law
enforcement agencies.
4) All Muslim Americans should be required to register their
whereabouts with the federal government.
44% of respondents said yes to at least one of these questions.
To Orin's criticisms, let me add this one: Options 1 through 3 say
nothing about under what conditions these procedures are to happen.
People can have lots of views on them. Consider, for instance, option
1. Some people might say that all Muslim organizations should be
infiltrated. Others might say that most should be. Others might say
that the government should infiltrate those that it has some reason to
believe are being used as recruiting centers for jihadism (that's my
view). Still others might say that the government should never
infiltrate any religious groups.
But the question lets people choose either "yes" or "no." So the count
of those who would "restrict[] . . . civil liberties of Muslim
Americans" would include those who would infiltrate all Muslim
organizations, as well as those who would simply reject the extreme
opposite position that any religious or political organization must be
immune from surveillance. (Plus, of course, it's a judgment call
whether one's "civil liberties" include immunity from government
infiltration of groups to which one belongs -- there are arguments on
both sides, but the Supreme Court has generally held that such
infiltration doesn't violate either the First Amendment or the Fourth
Amendment.)
The hypothetical proposal in "All Muslim Americans should be required
to register their whereabouts with the federal government" would be
pretty clearly a restriction on civil liberties; I'd reject it myself,
and I share Orin's regret that it polled 29%. But it's also the only
option that specifies "all," and that would clearly be
unconstitutional.
References
1. http://volokh.com/archives/archive_2004_12_14.shtml#1103389852
2.
http://story.news.yahoo.com/news?tmpl=story2&u=/ap/20041218/ap_on_re_us/muslims_civil_liberties
3. http://www.comm.cornell.edu/msrg/report1a.pdf
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