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Ending the ‘National Security’ Excuse for Racial and Religious Profiling

9/11 sparked a wrongheaded wave of using race, religion, or political views as indicators for terrorism.

July 22, 2021
View the entire 9/11 at 20 series

This essay is part of the Bren­nan Center’s series explor­ing new approaches to national secur­ity 20 years after 9/11.

As we approach the 20th anniversary of the 9/11 attacks, it is past time to reckon with “war on terror” approaches that have cast too many Amer­ic­ans — from Muslims to racial justice protest­ers to Chinese scient­ists — as national secur­ity threats. Two decades of permissive rules for intel­li­gence collec­tion, coupled with weak protec­tions for speech and against discrim­in­a­tion, have subver­ted legit­im­ate coun­terter­ror­ism aims. We must revisit those rules to ban invi­di­ous profil­ing under the guise of national secur­ity.

Several changes in law and policy after 9/11 have facil­it­ated profil­ing on the basis of consti­tu­tion­ally protec­ted char­ac­ter­ist­ics. The attor­ney gener­al’s guidelines for FBI invest­ig­a­tions, for instance, were dramat­ic­ally loosened in 2002 and again in 2008. Previ­ously, the guidelines required agents to focus on suspi­cion of crim­inal activ­ity. Now, however, agents can launch non-predic­ated invest­ig­a­tions — i.e., absent any facts indic­at­ing wrong­do­ing on the part of the invest­ig­a­tion’s target — so long as the purpose is to protect against crim­inal or national secur­ity threats or to collect foreign intel­li­gence. Rather than build­ing guard­rails to mitig­ate the risks of this open-ended author­ity, the guidelines water down controls and author­ize a range of intrus­ive tech­niques, includ­ing using inform­ants, scour­ing the inter­net, and attend­ing reli­gious services and polit­ical gath­er­ings.

The rules imple­ment­ing the guidelines do nod to privacy and civil liber­ties concerns. They bar invest­ig­at­ive activ­it­ies “based solely on the exer­cise of First Amend­ment rights or on the race, ethni­city, national origin, or reli­gion,” but they impli­citly allow invest­ig­at­ive activ­ity based in part — or even primar­ily — on such factors. Even this half-hearted prohib­i­tion is under­mined by the instruc­tion that agents may rely on these char­ac­ter­ist­ics if they can be linked to terror­ist or crim­inal beha­vior. Under this approach, adher­ing to the Muslim faith can be a suffi­cient basis for suspi­cion because it is shared by groups like al-Qaeda and ISIS.

In 2003, the Justice Depart­ment issued guidelines prohib­it­ing racial and ethnic profil­ing in most law enforce­ment contexts. Accord­ing to the guidelines, profil­ing is inef­fect­ive because it is “premised on the erro­neous assump­tion that any partic­u­lar indi­vidual of one race or ethni­city is more likely to engage in miscon­duct.” Moreover, race-based assump­tions in law enforce­ment “perpetu­ate negat­ive racial stereo­types that are harm­ful to our rich and diverse demo­cracy, and mater­i­ally impair our efforts to main­tain a fair and just soci­ety.”

But the guidelines exemp­ted national secur­ity and border invest­ig­a­tions, in which the “erro­neous” and “harm­ful” assump­tions that under­lie profil­ing are expressly permit­ted. Even when the Obama admin­is­tra­tion in 2014 expan­ded the prohib­i­tion on profil­ing to cover reli­gious and national origin discrim­in­a­tion, it essen­tially recre­ated these exemp­tions.

Predict­ably, the increased author­ity handed to the FBI combined with weak constraints has led to persist­ent abuses, with criteria such as race, reli­gion, national origin, ethni­city, and polit­ical lean­ings prompt­ing invest­ig­a­tions, surveil­lance, and even prosec­u­tions.

Amer­ican Muslims have been treated as poten­tial terror­ists based on their faith alone. In the after­math of the 9/11 attacks, the bureau detained over a thou­sand Muslims in the United States, both citizens and noncit­izens, while the govern­ment figured out whether they had any connec­tion to the attacks. None did. Thou­sands more were roun­ded up for ques­tion­ing. In the years follow­ing 9/11, FBI agents and police officers would ques­tion diaspora communit­ies after terror­ist attacks, includ­ing those that occurred over­seas, on the theory that those who share a nation­al­ity or reli­gion with the attack­ers must know some­thing.

Broad-gauge surveil­lance of Amer­ican Muslims has become the norm for federal law enforce­ment agen­cies and many police depart­ments. The New York City Police Depart­ment, for example, sent plain­clothes detect­ives to identify Muslim neigh­bor­hoods around the city and built dossiers on where people ate, prayed, and shopped. Both the FBI and the NYPD have deployed inform­ants to infilt­rate mosques, Muslim student groups, and community organ­iz­a­tions, often seek­ing to trig­ger, rather than to discover, crim­inal activ­ity. Young Muslims who spoke loudly about want­ing to harm the United States, but who were rarely in a posi­tion to do so without the govern­ment’s prod­ding and assist­ance, have been prosec­uted. As a federal judge presid­ing over one of these cases said, the govern­ment “created acts of terror­ism out of . . .  fantas­ies of bravado and bigotry.” These sting oper­a­tions were commonly portrayed as seri­ous terror­ism threats — on par with an oper­a­tion organ­ized by a group like al-Qaeda or ISIS — thereby feed­ing into the percep­tion that Muslims are danger­ous.

Find­ing poten­tial terror­ists was also the goal of the Obama admin­is­tra­tion’s coun­ter­ing viol­ent extrem­ism (CVE) initi­at­ive. Despite its studi­ously neut­ral language, CVE focused almost exclus­ively on Amer­ican Muslims. The govern­ment acknow­ledged that there is no reli­able way to predict who will become a terror­ist, but nonethe­less funded programs to train people and insti­tu­tions likely to come into contact with young Muslims — includ­ing schools and mosques — to spot poten­tial terror­ists in their midst. The spuri­ous warn­ing signs used in these programs ranged from First Amend­ment-protec­ted beliefs (for instance, the idea that the West is at war with Islam) to ubiquit­ous condi­tions (for instance, the exper­i­ence of discrim­in­a­tion). These programs have never iden­ti­fied a terror­ist in the making, but they continue to this day with new brand­ing.

Muslims aren’t the only targets of permissive national secur­ity rules. 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. Two years later, the FBI simply stopped track­ing white suprem­acist viol­ence and instead star­ted track­ing “racially motiv­ated viol­ent extrem­ism.” By this sleight of hand, it conflated the seri­ous threat of white suprem­acist viol­ence with the imagin­ary threat of “Black Iden­tity Extrem­ism,” effect­ively hiding the activ­it­ies it is under­tak­ing on both fronts.

In 2020, during wide­spread protests against police brutal­ity and racism triggered by the killing of George Floyd, the Trump admin­is­tra­tion again used the national secur­ity appar­atus to target groups exer­cising their First Amend­ment rights. Trump tweeted that people asso­ci­ated with Antifa were terror­ists, and Attor­ney General William Barr declared that “viol­ence instig­ated and carried out by Antifa and other similar groups in connec­tion with the riot­ing is domestic terror­ism and will be treated accord­ingly.” He activ­ated FBI-led Joint Terror­ism Task Forces to “identify crim­inal organ­izers and instig­at­ors.” Attach­ing the terror­ism label signaled to law enforce­ment agen­cies the need to seek out Antifa agit­at­ors, and police across the coun­try tried to find them. They came up empty.

Chinese Amer­ic­ans work­ing in science and tech­no­logy also are being unfairly targeted. In 2018, the Justice Depart­ment launched the China Initi­at­ive to counter the threat of economic espi­on­age. But in execut­ing this mission, the depart­ment has focused on people having a “nexus to China,” which often is merely ances­tral, lead­ing to multiple prosec­u­tions of Chinese Amer­ic­ans for admin­is­trat­ive errors or minor offenses such as fail­ing to fully disclose conflict-of-interest inform­a­tion to their univer­sit­ies or research insti­tu­tions. The over­broad target­ing has damaged this community, whose members are viewed by suspi­cion not just by law enforce­ment, but also by academic and research insti­tu­tions who have been told by the FBI to watch them care­fully.

In short, the last two decades have laid bare how easily expans­ive national secur­ity author­it­ies can be turned against racial, ethnic, and reli­gious minor­it­ies and protest move­ments. As the nation belatedly faces up to the threat of white suprem­acist viol­ence that cannot be laid at the feet of these groups, we have an oppor­tun­ity to reori­ent national secur­ity away from preju­dice.

The Biden admin­is­tra­tion can start by over­haul­ing the FBI’s invest­ig­at­ive guidelines to constrain non-predic­ated invest­ig­a­tions and to prohibit invest­ig­a­tions in which the exer­cise of First Amend­ment rights or race, ethni­city, national origin, or reli­gion is a substan­tial or motiv­at­ing factor. The Justice Depart­ment should revise its racial profil­ing guid­ance to elim­in­ate the national secur­ity, border, and intel­li­gence excep­tions. Even better, Congress should pass the End Racial and Reli­gious Profil­ing Act, most recently intro­duced as part of the George Floyd Justice in Poli­cing Act, which would prohibit profil­ing for both invest­ig­a­tions and enforce­ment. These meas­ures would help cement our nation’s commit­ment to protect­ing national secur­ity based on facts rather than on bias.