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Analysis

The Costs of 9/11’s Suspicionless Surveillance: Suppressing Communities of Color and Political Dissent

The domestic intelligence system has grown dramatically since 9/11, often targeting Muslims, people of color, and political movements. It’s time to rethink the system.

September 8, 2021

This piece origin­ally appeared in Just Secur­ity

Domestic intel­li­gence programs have grown inex­or­ably since 9/11, born out of fear of terror­ism and sustained by laws and policies that allow govern­ment agen­cies to amass more data about more Amer­ic­ans in an effort to ferret out the few who might do harm. Often these programs target Muslim communit­ies in the United States, treat­ing them as inher­ently suspect because of their faith. The same domestic intel­li­gence programs and author­it­ies have provided ready tools for suppress­ing polit­ical dissent and racial justice move­ments, which are viewed as threat­en­ing the exist­ing soci­opol­it­ical order.

As we mark two decades since these changes became part of the legal land­scape, it is time to rethink whether the nation is well served by a domestic intel­li­gence system that can so easily be diver­ted from legit­im­ate purposes. While the current struc­ture may seem firmly entrenched after 20 years, it is not immune to reform. In fact, the exist­ing system is itself a depar­ture from the frame­work created in the 1970s to correct seri­ous abuses. It can and must be reformed.

Amer­ica’s Dark Domestic Surveil­lance History

The evol­u­tion of two federal agen­cies – the Federal Bureau of Invest­ig­a­tion (FBI) and the National Secur­ity Agency (NSA) – shows how expans­ive domestic surveil­lance has become the norm. In the 1970s, the Church Commit­tee’s invest­ig­a­tion docu­mented how these agen­cies (and others) had abused the trust of the Amer­ican people to spy on ordin­ary Amer­ic­ans, such as those protest­ing against the Viet­nam War and the lead­ers of the civil rights move­ment.

These find­ings reshaped the work of the FBI. While the commit­tee’s recom­mend­a­tion to estab­lish a stat­utory frame­work for the Bureau was pree­mp­ted by the issu­ance of internal guidelines by then-Attor­ney General Edward Levi, the rules he issued incor­por­ated many of the Church Commit­tee’s recom­mend­a­tions. Most import­antly, they required that “domestic secur­ity invest­ig­a­tions be tied closely with the detec­tion of crime” and incor­por­ated “safe­guards against invest­ig­a­tions of activ­it­ies that are merely trouble­some or unpop­u­lar.”

As for the NSA, in response to the Church Commit­tee’s invest­ig­a­tion, Congress subjec­ted the NSA’s domestic surveil­lance programs to case-by-case judi­cial review by creat­ing the Foreign Intel­li­gence Surveil­lance Court (FISC). For the govern­ment to conduct surveil­lance on Amer­ic­ans, it had to convince the FISC that its primary purpose was to collect foreign intel­li­gence and that it had prob­able cause to believe that the target of surveil­lance was an agent of a foreign power and had some link to crim­inal activ­ity.

While by no means without flaws and blind spots, these reforms recog­nized the risks of domestic spying, placing firm constraints based on crim­inal suspi­cion which served to protect Amer­ic­ans’ abil­ity to speak and organ­ize freely.

The Post-9/11 Domestic Surveil­lance System

Since 9/11, however, these stric­tures and the prac­tices they gener­ated have been rolled back and the abuses they were meant to prevent prolif­er­ated, teach­ing us once again why we need stricter limits on domestic intel­li­gence.

I have previ­ously writ­ten about how after 9/11, the Justice Depart­ment progress­ively loosened the FBI’s guidelines for invest­ig­a­tions to allow agents to open invest­ig­a­tions absent suspi­cion of crim­inal activ­ity and with minimal super­vis­ory controls. This allowed for racial, ethnic, and reli­gious profil­ing, includ­ing of Muslims, Chinese Amer­ic­ans, and racial justice protest­ers. To this day, the FBI contin­ues to treat Muslims as suspi­cious and warrant­ing surveil­lance even where there is no indic­a­tion of crim­inal or terror­ist activ­ity – a trend span­ning both Repub­lican and Demo­cratic admin­is­tra­tions. It has tried to “map” Muslim communit­ies and keep tabs on Muslims’ lawful speech and reli­gious observ­ance by infilt­rat­ing mosques. The threat of immig­ra­tion consequences is dangled to recruit Muslims to spy on their friends and neigh­bors. Amer­ican Muslims trav­el­ing home from over­seas trips are subjec­ted to intrus­ive ques­tion­ing about their faith, the mosques they attend, and even their views on partic­u­lar reli­gious schol­ars. These prac­tices are not an aber­ra­tion. While the Justice Depart­ment has issued guidelines that purport to ban profil­ing on the basis of race, reli­gion and ethni­city, it still allows for consid­er­a­tion of those char­ac­ter­ist­ics in certain national secur­ity and border invest­ig­a­tions.

In the after­math of 9/11, the NSA has followed a simil­arly prob­lem­atic path. It has spied on Amer­ic­ans without actual suspi­cion. Using an extraordin­ar­ily broad inter­pret­a­tion of Section 215 of the Patriot Act blessed by the FISC, the agency accu­mu­lated the phone records of millions of Amer­ic­ans. Once the extent of the program became public know­ledge, Congress acted to limit its reach in 2015. But Congress has contin­ued to allow the NSA to main­tain Pres­id­ent George W. Bush’s warrant­less wiretap­ping program. Section 702 of the FISA Amend­ments Act, which passed in 2008, allows the NSA to collect hundreds of millions of elec­tronic commu­nic­a­tions each year. While the surveil­lance must be targeted at foreign­ers over­seas, massive amounts of Amer­ic­ans’ emails, phone calls, and text messages are scooped up in the process. The FISC has no role in review­ing whether this collec­tion is justi­fied; it is releg­ated to review­ing the NSA’s rules for the program. Indeed, collect­ing foreign intel­li­gence does­n’t even need to be the “primary” purpose of collec­tion; the govern­ment only needs to certify that acquis­i­tion of foreign intel­li­gence is a signi­fic­ant purpose of the over­all program. Despite the broad leeway afforded by the law, the govern­ment has consist­ently failed to follow rules meant to minim­ize its collec­tion of purely domestic commu­nic­a­tions and remedy Fourth Amend­ment viol­a­tions as direc­ted by the FISC.

Inform­a­tion about Amer­ic­ans warrant­lessly collec­ted by the NSA under Section 702 can be accessed by the FBI for use in purely domestic crim­inal invest­ig­a­tions. After years of advocacy by civil soci­ety, Congress imposed some modest require­ments on these back­door searches. The Bureau must follow “query­ing proced­ures” approved by the FISC; obtain an indi­vidu­al­ized order from the FISC for review­ing commu­nic­a­tions in cases that don’t relate to national secur­ity; and keep track of each U.S. person query it conducts. The FBI, however, has not complied with even these minimal require­ments, prefer­ring to freely avail itself of the fruits of warrant­less surveil­lance.

While little is publicly known about who is targeted by these programs, the NSA too has often trained its sights on Muslims. Docu­ments revealed by NSA whis­tleblower Edward Snowden show that the FISC author­ized surveil­lance of five Muslim men all of whom had led highly public, outwardly exem­plary lives. They included Faisal Gill, a milit­ary lawyer who served as a high-level offi­cial in the White House and the Depart­ment of Home­land Secur­ity under Pres­id­ent Bush; Asim Ghaf­foor, another attor­ney and former Congres­sional staffer who repres­en­ted Muslim clients; Agha Saeed, a Muslim activ­ist and organ­izer; Nihad Awad, the co-founder and leader of the Coun­cil of Amer­ican Islamic Rela­tions, the coun­try’s largest Muslim civil rights organ­iz­a­tion; and Hooshang Amirah­madi, a professor who advoc­ated against sanc­tions on Iran. While it is possible that the govern­ment happened to have inform­a­tion suggest­ing these men were involved in crim­inal activ­it­ies, a more likely explan­a­tion is the over­all suspi­cion of Muslims that is the hall­mark of the post-9/11 era.

The expans­ive post-9/11 notion of “home­land secur­ity” – mani­fes­ted most concretely in the creation of the Depart­ment of Home­land Secur­ity (DHS) – under­pins suspi­cion­less surveil­lance. DHS itself, “as part of its regu­lar oper­a­tions, conducts invas­ive phys­ical searches of millions of Amer­ic­ans and their belong­ings each week without any predic­ate.” These programs, accord­ing to the former general coun­sel of the agency, raise such seri­ous privacy and due process concerns that those raised by home­land secur­ity inform­a­tion collec­tion by the NSA “pale by compar­ison.”

The fusion center network suppor­ted by DHS is yet another fount of domestic intel­li­gence. Police depart­ments’ reports of supposedly “suspi­cious activ­ity” are shared with a range of federal, state, local, and tribal law enforce­ment offi­cials through these centers. Accord­ing to a two-year-long, bipar­tisan Senate invest­ig­a­tion published in 2012, fusion centers have yiel­ded few coun­terter­ror­ism bene­fits, instead produ­cing shoddy reports consist­ing of “predom­in­antly useless inform­a­tion.” Often, the reports singled out Muslims engaged in normal activ­it­ies for suspi­cion: a DHS officer flagged as suspi­cious a seminar on marriage held at a mosque, while a north Texas fusion center advised keep­ing an eye out for Muslim civil liber­ties groups and sympath­etic indi­vidu­als and organ­iz­a­tions.

Polit­ical move­ments, too, espe­cially those powered by people of color, are often viewed as threats, and the domestic intel­li­gence infra­struc­ture created in the last decades has been turned against them. The FBI, DHS, and local police have spied on the Black Lives Matter move­ment, immig­ra­tion activ­ists, and envir­on­mental campaign­ers. As I have previ­ously explained:

In a move remin­is­cent of the J. Edgar Hoover era, the Bureau has racial justice protest­ers in its crosshairs. As early as 2015, the Depart­ment of Home­land Secur­ity monitored the social media posts of Black Lives Matter activ­ists. Just nine days before the deadly 2017 white suprem­acist rally in Char­lottes­ville, the FBI issued a report conjur­ing up a “Black Iden­tity Extrem­ist move­ment” out of a hand­ful of unre­lated acts of viol­ence and warned law enforce­ment agen­cies across the coun­try of the threat posed by Black activ­ists protest­ing police viol­ence.

As for immig­ra­tion activ­ists, DHS officers in New York kept track of protests against then-Pres­id­ent Donald Trump’s anti-immig­rant agenda through Face­book. They worked with other federal agen­cies and the Mexican govern­ment to create a surveil­lance target list of activ­ists and lawyers suspec­ted of support­ing a migrant cara­van head­ing north from Cent­ral Amer­ica. A private secur­ity company provided local and federal law enforce­ment agen­cies with “daily intel­li­gence updates” on the Stand­ing Rock Sioux’s protests against the Dakota Access Pipeline. And most recently, last year, Trump and then-Attor­ney General Barr repeatedly tried to brand the coun­try­wide racial justice protests triggered by the killing of George Floyd at the hands of Minneapolis police as the handi­work of “Antifa” domestic terror­ists.

Anniversar­ies provide a time to reflect and reset. The rules were changed after 9/11. In light of the record of the last decades, we can no longer hide from how turn­ing to a domestic intel­li­gence collec­tion system untethered from crim­inal suspi­cion has facil­it­ated the target­ing of communit­ies of color and polit­ical dissent. The system must change again to curb the domestic surveil­lance infra­struc­ture.