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.
