By Jonathan Stempel
(Reuters) - Federal agents who detained a college student after an airport screener found him carrying Arabic-English flashcards with such words as "bomb" and "terrorist" cannot be sued for their actions, a U.S. appeals court said Tuesday.
Reversing a lower court ruling, the 3rd U.S. Circuit Court of Appeals in Philadelphia said three Transportation Security Administration agents and two FBI agents were entitled to qualified immunity over Nicholas George's five-hour detention at Philadelphia International Airport on August 29, 2009.
The decision does not affect George's related cases against the federal government and Philadelphia police officers, including one who handcuffed him early in the detention.
George, then 21, said he had been flying to California to begin his senior year at Pomona College, where he was a double major in physics and Middle Eastern studies.
He said agents detained him after finding the flashcards, which he said were meant to help him understand what was being discussed in Middle Eastern media, and a book critical of U.S. foreign policy. George said he was asked if he knew "who did 9/11" and what language Osama bin Laden spoke.
Without ruling on the merits, a lower court judge in October 2011 said George could pursue his claims that the federal agents violated his 1st and 4th Amendment rights.
But Chief Judge Theodore McKee, writing for a three-judge 3rd Circuit panel, said that "in a world where air passenger safety must contend with such nuanced threats as attempts to convert underwear into bombs and shoes into incendiary devices," the decision to detain George was reasonable.
McKee, an appointee of President Bill Clinton, agreed that it was "beyond dispute" that the 1st Amendment entitled George to possess the flashcards.
But he said TSA agents could consider that while some flashcards contained words such as fat, thin, really, nice and friendly, others had words such as bomb, terrorist, explosion and attack.
"It is simply not reasonable to require TSA officials to turn a blind eye to someone trying to board an airplane carrying Arabic-English flashcards with words such as 'bomb,' 'to kill,' etc," he said. "Basic common sense would allow those officials to take reasonable and minimally intrusive steps to inquire into the potential passenger's motivations."
Ben Wizner, an American Civil Liberties Union lawyer who represents George, said in a phone interview that his client may appeal and will pursue his case against the other defendants.
"It is hard to determine, from reading this opinion, what materials might subject travelers to detention against their will," Wizner said. "The court does not explain how possession of Arabic-English flashcards by a college student gives rise to any suspicion, much less reasonable suspicion."
The case is George v. Rehiel et al, 3rd U.S. Circuit Court of Appeals, No. 11-4292.
(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler)