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Proposals to keep refugees out of the U.S. based on religion are unconstitutional but unsurprising, a prominent constitutional lawyer said.
“Every time we have any kind of threat, the first thing we do is try to compromise our constitutional rights,” Alan Dershowitz told John Catsimatidis on “The Cats Roundtable” on New York’s AM-970 in an interview airing Sunday.
“It started right after the American Revolution, when we passed the Alien and Sedition Act because we were afraid of France.”
Dershowitz argued that politicians on the right need to find a better balance between securing the country and not closing its doors.
Still, he said, a “pause” on admitting refugees might be appropriate if the only goal is to make sure the vetting system is working.
On last week’s “Cats Roundtable,” former Department of Homeland Security head Tom Ridge called for a pause, saying the screenings may not be effective. Dershowitz said Ridge “really has America’s security interests at heart.”
“If we’re talking about weeks in order to make sure we get our computers in order, make sure we have ways of checking, I don’t think anybody can complain about that,” Dershowitz said.
“But if what starts as temporary becomes long-term and it turns into a policy of excluding people based on religion, I think creates a problem.”
He said he doubted the Supreme Court would uphold a religious exclusion for refugees.
“The Constitution is pretty firm about no religious tests and about freedom of speech,” he said. “Of course it also gives great latitude of who we let into the country. So it’s not easy to predicted how the Supreme Court will definitely come out, but I think if it were a blatant prohibition of all Muslims for a long period of time, I think the Supreme Court would strike that down as unconstitutional.”
In terms of surveilling Muslims, Dershowitz said the FBI should only have access to what’s already public, such as a public religious event or a public Facebook post.
“If you have a mosque that’s open to everybody, a synagogue that’s open to everybody, a church that’s open to everybody, I have not problem with the FBI sitting in the back an listening to what you’re saying to everybody,” he said.
“The same thing is true with Facebook posting or social media postings,” he added. “If you’re opening them up to everybody, the FBI ought to be looking at those things.
“On the other hand, if you’re sending an email to a close friend or a lover or spouse, plainly the FBI shouldn’t be able to look at that.”
The interview also touched on college campuses, where Dershowitz said “political correctness” has run amok.
“It’s just crazy what some of these students are demanding,” he said. “They want a safe space for their ideas. Well fine, then don’t go to college.”
Dershowitz also talked about Republican presidential front-runner Donald Trump, saying he’s liked when they’ve spoken in person, but that he doesn’t like what Trump has said on the campaign trail.
The billionaire businessman recently criticized he what he sees as criminals being given more rights than law-abiding citizen. Dershowitz credited Trump as being correct about criminals’ constitutional rights, but said it’s not something to criticize.
“Criminals should have more rights than law-abiding citizens,” Dershowitz said. “It’s criminals who need rights. Nobody likes criminals. Legislatures never pass laws favorable to criminals, so they need constitutional rights, just like people who need First Amendment rights are the most obnoxious people with the worst views.”