Tuesday, October 27, 2009

Civil liberties 1, Katie 0, part two

flying imams In a comment to Spot’s earlier post on the subject of the settlement of the flying imams’ lawsuit against the MAC and Katherine Kersten’s bilious reaction to it, MNO wrote about the procedural posture of the case at the time of the settlement. The “procedural posture” of a case sounds arcane and boring, but as MNO points out, it is critical in understanding what a judge’s ruling means: its context.

The ruling that Katie is so exercised about was a ruling on the defendants’ motion for a summary judgment, arguing, in effect, that the flying imams didn’t have a case worthy of taking to trial. You can read Judge Montgomery’s 47 page “arrogance,” to use Katie’s term, at the link. Here’s Eric Black’s description of the import of the judge’s ruling, a description that Spot cannot improve upon, so he will just quote:

The big break that led to the settlement was probably the opinion, written by federal Judge Ann Montgomery of Minneapolis in July, rejecting the MAC's motion for summary judgment. Summary judgment (which is a way of getting a lawsuit dismissed) is often rejected. Turning down a summary judgment motion only means that the case can proceed toward trial. So losing a summary judgment motion didn't mean that the Imams were going to win their case.

But the strength and clarity of Montgomery's opinion surely alerted the defendants that they were in a world of trouble if the case reached trial. So I'm basing my analysis of the case heavily on the Montgomery ruling, which has the advantage of being based on actual sworn depositions of witnesses, and filtering a lot of things that turned out not to be true. [italics are Spot’s]

It really is a shame that the judge made her decision based on that voluminous record that Katie refers to, instead of wild accusations and rumors propagated by people like, well, Katie. Katie refers specifically to the judges “47 page opinion” in her column Sunday, so we can presume that it was available to her to read. You are encouraged to read the opinion, boys and girls, but let’s look at the claims made by Katie on Sunday and Eric Black’s discussion of them (although he was not writing in at least direct rebuttal to Katie):

“unnecessarily requesting seat-belt extenders that could be used as weapons”

But Montgomery found -- based on undisputed testimony -- that only two of the imams had requested the extenders, and both of them were large men for whom the request should not have seemed particularly strange.

“changing seats into a so-called 9/11 pattern”

Once they boarded, the imams mostly did not sit together. One of the imams was blind, and one of the others asked a passenger to trade seats so he could accompany the blind man. The rest of them were seated all around the plane, one in first class, the rest in coach.

In the early news reports, this seating pattern was listed as another ground for suspicion. I recall reading that the imams were occupying the exit rows (which, I recall, was another moment when I wondered whether there was something suspicious going on).

But the evidence showed that only one of the six men was seated in an exit row, which had been assigned to him by the airline. Except for the one who had traded to sit with his blind colleague, all of them were sitting in the seats they had been assigned by the airline. The one in first class was up there because of his frequent flier status. The airline, of course, had all this information. Again, the "suspicious" seating pattern kind of goes away once you know these facts.

“chanting "Allah, Allah" when boarding was called”

In keeping with the religious requirements of devout Muslims, three of the imams prayed in the airport, in the empty gate next to the departure gate. They knelt, prostrated themselves and chanted. It was mentioned by those who reported the imams to the flight crew that they prayed "loudly" and were heard to chant "Allah, Allah."

This clearly was a key point at which some of the non-Muslim passengers began to notice the men and to get nervous. But ask yourself whether Muslims praying to Allah, loudly or softly, could be taken as evidence that they were planning to commit a crime. Wrote Montgomery:

Plaintiffs’ Middle Eastern descent does not change the analysis. Similar behavior by Russian Orthodox priests or Franciscan monks would likely not have elicited this response."

“cursing the United States and its conflict with Saddam Hussein”

The last basis for the suspicions was the claim of one passenger that "the men talked about Saddam Hussein, U.S. involvement in Iraq, and cursed about the United States." The imams have denied that they made any such remarks. [italics are Spot’s] So that's the only key evidentiary point in dispute. Under the rules for a summary judgment motion, Montgomery had to assume the truth of the facts most favorable to the non-moving party -- that is, to the imams (since this was a motion for summary judgment brought by the defendants in the case. But she found that it really made little difference whether the imams had made the remarks or not. In her ruling, Montgomery wrote:

Commenting on current events, and even criticizing governmental policy is protected speech under the First Amendment. It cannot be taken as a crime and should not be used as probable cause for an arrest.

There was no evidence at all in the record for three of the four allegations that Katie made. None. There was disputed evidence for the fourth, not that it really matters.

Remember, Katie wrote her poison last week; the judge’s decision has been available for at least a few months. You may be absolutely sure, boys and girls, that if there was any evidence supporting the claims that Katie makes, it would have been in the record. The defendants beat the bushes for a couple of years trying to come up with evidence to justify their conduct.

Katherine Kersten’s column last Sunday stands as monumental irresponsibility for a columnist, a journalist, or a former member of the bar.

Update: Almost forgot; a thump of the tail to Mark Gislason at Norwegianity for the Eric Black link.

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