Creeping Civil Liberties

A few short minutes into the first ever Senate hearing on protecting the civil rights of Muslim Americans, Sen. Jon Kyl of Arizona sounded like he'd rather be in a different hearing.

"I'm a bit perplexed about the motives for today's hearing," Kyl said. "The only way to stop terrorists is to recognize where they're coming from."

Kyl was implicitly rebuking Illinois Democrat Dick Durbin, who had called the committee together in response to Homeland Security Rep. Peter King's hearings on the "extent of radicalization in the Muslim community." King, for his part, blasted Durbin for "trying to create the illusion that there's a violation of civil rights of Muslims in this country."

That American Muslims face a hostile political climate is hardly an illusion. Republican presidential hopefuls Newt Gingrich and Herman Cain have spent the last few weeks warning of the menace of Sharia law, while last week, former Gov. Tim Pawlenty tried to reassure supporters that a state program created to increase Muslim homeownership by offering Sharia-compliant mortgages only secured three loans. A March Pew survey found that 40 percent of Americans believe Islam is more likely to encourage violence than other religions, a number that climbs close to 70 percent if you ask Republicans and Tea Partiers. Muslims now make up 25 percent of Equal Opportunity Employment Commission complaints despite being less than 1 percent of the American population, an increase of 150 percent since 9/11. Following the uproar over the so-called Ground Zero mosque, attempts to prevent Muslim religious buildings from being constructed have skyrocketed. Of the 24 possible violations of the Religious Land Use and Institutionalized Persons Act -- which bans the use of local zoning laws to prevent the construction of religious buildings -- nearly two-thirds of complaints involving Muslims have been opened in the last 10 months.

Durbin's hearings, despite being the first ever on Muslim civil rights, failed to draw the same kind of media circus that surrounded King's frivolous inquiry suggesting widespread radicalization among American Muslims. People get more excited about grabbing their pitchforks than poring over dry data. Nevertheless, the two Republicans on the committee, Kyl and South Carolina Sen. Lindsey Graham, seemed to spend much of it wondering whether Muslims had too many rights.

While Graham expressed pride in American pluralism and gratitude for Muslim service members, he seemed preoccupied by other matters. "I wish the Obama administration would be more forceful in their approach to fighting homegrown terrorists," Graham told Thomas Perez, the perplexed head of the Justice Department's Civil Rights Division. "Reading a terror suspect their Miranda rights when they've just been caught trying to blow up a van in Times Square is not productive; it is not helpful." Maybe Graham doesn't read The New York Times or the Wall Street Journal, both of which reported last week on a recently released 2010 Justice Department memo allowing FBI agents to delay Miranda readings in cases where they suspected an ongoing terrorist threat.

Graham interrupted his soliloquy to ask Perez a question. "Is radicalization of American Muslims on the rise?"

"Sir, I'm a civil-rights attorney," Perez pleaded.

Graham moved on, eager to question the department's decision to file a civil-rights suit on behalf of a Muslim teacher in Chicago who wasn't permitted to take three weeks' vacation to go on a pilgrimage to Mecca. Perez pointed out that the Equal Opportunity Employment Commission under Bush had filed a similar suit in 2007. Graham insisted that the suit was a bad idea.

"I don't think there's anything in my faith that says I get three weeks off to celebrate Easter every year," Graham said. Graham, like every other sitting senator, will in fact receive a two-week recess between April 17 and May 1, in time to celebrate Easter. "I will stand with you as you try to push back against legitimate cases of discrimination," Graham told Perez. I guess he just couldn't think of any right then.

Unexpectedly, though, it was Durbin's hearings, not King's, that produced the most McCarthyesque moment so far in the 112th Congress. Addressing Farhana Khera, a former aide to deposed Wisconsin Sen. Russ Feingold and now director of Muslim Advocates, a Muslim civil-rights organization, Sen. Kyl asked whether Khera had personally "made any public pronouncement or statement condemning those religious leaders who employed violent or hateful rhetoric or promoted hateful views of other religious groups."

Khera, who seemed confused at the notion that she should have to answer for violent extremists just because she also happened to be Muslim, responded, "Those who threaten to kill somebody because of their political views, religious views, that's inappropriate."

Nevertheless, Kyl wanted to know why Muslim Advocates encouraged Muslims not to talk to authorities without their attorneys present, advice Kyl framed as resistance to cooperating with law enforcement. "Especially given the participation of Muslims in all of the attempted attacks that I mentioned, I would think that Muslim Americans would feel a special obligation to help intelligence agencies root this out."

Republicans had attacked Khera prior to the hearings for advising Muslims of their Sixth Amendment right to counsel, as if having a lawyer present when you talk to authorities isn't the same kind of "controversial" advice given by the American Bar Association.

It turns out that Muslims don't even need to invoke the dreaded menace of Sharia law to frighten conservatives. The Constitution of the United States is scary enough.

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