I am at a loss to explain why the Senate Democrats (including our own Senators Kohl and Feingold) thought it necessary to kill the "John Doe amendment" granting limited immunity to persons reporting a suspicious activity.
It would be one thing if it granted absolute immunity for such reports or even if it granted such immunity to anyone who, for whatever reason, believes that he or she has seen something untoward, however foolish that belief might be, i.e., to those with pure hearts but empty heads.
But it doesn't do that. In the pertinent text, immunity is granted to:
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. (Emphasis supplied)
Covered activity is defined as "any suspicious [activity,] indicating that an individual may be engaging, or preparing to engage, in" certain criminal acts.
In other words, you don't get immunity unless you both believe that the person you report may be engaging in covered activity and that belief is reasonable. A pure heart is not enough. Do the Senate Democrats really want people to be held liable for reporting their reasonable suspicions of terrorist activity?
If the concern is racial profiling, the amendment would require that a person claiming immunity articulate an objectively reasonable basis for his or her report. I can't imagine that too many courts are going to think that "flying while muslim" cuts it. (If you are worried that juries will excuse racial profiling, then no such lawsuits are going to be successful anyway.)
I have looked in vein for some reasoned critique of the amendment so I've got to imagine what the Dems might say. One argument might be that it is not necessary because most existing theories of liability that might be asserted against people reporting suspicious activity would require some demonstration of negligence or malicious intent.
The problem is that it would be wrong. One of the theories advanced in the flying imams lawsuit is defamation. Common law defamation (and, to throw out another example, common law invasion of privacy) have no such requirements. While I think it is highly unlikely to ever succeed, I can also imagine a claim for conspiracy to violate Title VI (the law that prohibits discrimination in public accommodations) that might not require intent or negligence. (In fairness, I haven't fully thought through the latter.)
The point is that it is far from clear that immunity is unnecessary.
Another objection might be federalism. Why should federal law preempt state lawsuits? Apart from the fact that I am almost certain that this is not why the Dems oppose the law, it does not seem preposterous to think that there is a national security or interstate commerce hook here that is broad enough to support congressional action.
So what's going on here? No, I don't think that Democrats are courting the jihadist vote, but this does seem like a sop to some constituency.