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The Saga of John Doe

July 25, 2007 - by Donny Shaw

It began on November 20, 2006, on US Airways Flight 300. While the plane was still docked, several passengers on the flight informed the crew that a group of six Muslim passengers were behaving suspiciously — they had dispersed throughout the plane “in a formation reminiscent of the 9/11 hijackers” and requested seatbelt extenders for no apparent reason — and the Muslims were removed from the plane, questioned by the police, and eventually released. On March 12, 2007, the Muslim passengers filed a federal civil rights lawsuit against US Airways and the unknown “John Doe” passengers who reported them, suing them for discrimination.

Representatives Peter King (R-NY) and Steve Pearce (R-NM) responded to the lawsuit by introducing a bill that would offer civil immunity to any citizen who, in good will, tips off the authorities to suspicious behavior. Here’s the text of the Protecting Americans Fighting Terrorism Act of 2007, a.k.a. the “Protect John Doe Act”:

>(a) In General- An individual shall not be liable for any injury or damages relating to such individual’s qualified disclosure of suspicious behavior. A civil action for damages related to such disclosure may not be brought in any State or Federal court.
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>(b) Qualified Disclosure of Suspicious Behavior- For purposes of this section, the term ‘qualified disclosure of suspicious behavior’ means any disclosure of the allegedly suspicious behavior of another individual or individuals to a Federal, State, or local law enforcement agency or other security personnel that is made in good faith and with the reasonable belief that such behavior is suspicious.

This bill has become a key priority for Republicans in the 110th Congress and they have used some hardball parliamentary tactics to get it passed. In March, they used their motion to recommit with instructions on the Rail and Public Transportation Security Act of 2007 to force the Democratic majority, by a vote 304-121, to bring the bill back to the Transportation and Infrastructure committee and add King and Pearce’s language to it. Recommiting bills has been Republicans’ saving grace in the 110th as they have used it successfully several times to kill bills they don’t like or, as in this case, to force Democrats to accept their amendments by leveraging them against the original Democrat-supported bill.

In the Senate, the John Doe provision was never approved, but it got considerable support when they voted on it. Susan Collins (R-ME) offered an amendment similar to King and Pearce’s bill to the College Cost Reduction Act of 2007. The vote was 57-39 — a solid majority in favor and just three votes short of the elusive 60-vote threshold required for passage.

Fast forward to today, and the John Doe amendment, which passed the House much to the chagrin of Democrats and failed to pass in the Senate, is being included in the final version of a bill to implement the unfulfilled recommendations of the 9/11 commission.

A convergence of coincidences have made this possible. First, House Democrats wanted their 9/11 bill combined with parts of the Rail and Public Transportation Security Act. This is the bill that was amended with the John Doe provisions and, even though Democrats didn’t want the John Doe provision, they brought it into play along with the rest of the bill. Second, Joe Lieberman (I-CT), as Chairman of the Homeland Security Committee, was appointed chair of the conference committee that hashed out the final 9/11 bill. Lieberman technically caucuses with the Democrats, but on military and security issues he consistently sides with Republicans. And third, House and Senate Democrats wanted the bill to require 100 percent of cargo coming into U.S. ports be screened for bombs, a provision opposed by Republicans. Since Democrats didn’t have a strong voice with Lieberman as their chairman, they had to make concessions to get the cargo screening provisions — enter John Doe.

But the John Doe provision included in the finalized 9/11 is much weaker than what King and Pearce had originally forced onto the Rail and Public Transportation Security Act in March. Their provision was initially cut from the bill by the conference committee before being brought back to life after a solid week of negotiating. But it came back in a new form, one actually based on a completely separate bill: H.R.2291. This bill is more narrowly focused than the original; it only applies to threats or acts of terrorism to a transportation system. The original could have been applied to just about any perceived crime (see the bill text above). Furthermore, H.R.2291 was itself somewhat altered by the conference committee. The final bill leaves the ultimate decision up to the jury decide if the informants claim was “objectively reasonable.” It reads:

>Any person who, in good faith and based on objectively reasonable suspicion, makes or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under federal, state and local law for such report.

It will, however, be retroactive from October 1, 2006, so when it is signed into law the John Does of Flight 300 who reported the suspicious behavior will get another chance in court, this time to decide whether or not their claims were objectively reasonable.

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