As the United States executive branch’s national security powers have expanded, there have been various proposals concerning how to effectively check this growth. One obvious and popular solution is to help the courts and Congress meaningfully restrain the presidency in ways they currently do not. Another less explored strategy focuses on the power of the people. By leveraging the rule of law and popular politics, like elections and civic organizing, the American people themselves can check the executive and ensure its compliance with law. In a piece for the Colorado Law Review, I explore whether and how this form of popular accountability can effectively restrain executive actions that hurt minority groups. In particular, I examine law’s role in achieving this accountability by looking at several national security programs that affect the interests of minorities either exclusively or alongside other groups. All of these programs comply with the rule of law. They’re also ideal candidates for political accountability since they bolster executive authority while undermining individual rights, no matter who is affected. But while some of these legalistic programs have led to curbs on executive power, others haven’t.
This article summarizes the accountability gaps law creates for minority groups and presents possible solutions to the problem, including abolishing discriminatory executive branch programs altogether. Drawing inspiration from advocacy and scholarship on abolition of U.S. policing and prison systems, it gives particular attention to this solution. With Congress and the courts either unwilling or unable to check the executive’s national security programs, and law often facilitating the presidency’s power and discriminatory actions, it is time to ask how an abolitionist approach can apply to the nexus of executive authority and discriminatory national security activities, as well as to the national security state more generally. This exercise, which is crucial to remediating the national security sector’s endemic problems, also has broader importance. Without considering the relationships between policing, the carceral state, and national security programs, as well as their interrelated roles in oppression and discrimination, the abolitionist project itself will remain incomplete.
How Does Law Impact Executive Accountability?
There are three basic, but important ways in which the rule of law impacts political accountability for national security programs negatively affecting minority rights. This influence depends not only on law’s impact on the material interests of the majority, as scholars such as Derrick Bell have suggested. It also depends on whether law reinforces or violates social norms or affects diverse but small groups, including multiple minority communities.
The first way the rule of law impacts political accountability is by aligning with prevailing and problematic social norms about a disfavored minority group, while not negatively affecting other communities. In the U.S. context, this is perhaps best demonstrated by various national security initiatives aimed at Muslim and Arab Americans, a small, politically marginalized group. These initiatives include the FBI’s post-9/11 domestic surveillance program, which has facilitated suspicion-less surveillance and raised significant Fourth Amendment concerns that have largely been dismissed by the courts. It also includes federal terrorism prosecutions under 18 U.S.C. § 2339A and 18 U.S.C. § 2339B, which allow the government to pursue individuals who provide “material support” to terrorist activities or designated terrorist groups. These statutes, which sweep in a vast swath of non-violent activities, threaten civil liberties, especially under the First Amendment, but have been upheld by the courts as constitutionally sound.
Initiatives like these promote widely-accepted, racist norms about Muslim and Arab people as predisposed to terrorist activity. They do so in a facially neutral way that, despite this apparent neutrality, has had a clearly disparate and sustained impact on Arab and Muslim communities for nearly twenty years. These programs have, however, received little to no political opposition, notwithstanding the broad powers they confer on the executive branch and threats they pose to civil liberties.
The second way law impacts political accountability for executive action is by facilitating explicit discrimination. Even where a disfavored minority is disproportionately affected, explicit discrimination is generally seen as socially unacceptable. Though this trend may be changing, since the Civil Rights Movement, explicit discrimination has typically generated solidarity between minorities and other members of society who are unaffected but offended by the government’s overtly discriminatory practices. Reactions to the Trump administration’s Muslim Ban are one example of this broad social rejection of explicit legal discrimination. Even though it disproportionately affected Arab and Muslim people, the travel ban generated substantial political backlash largely because of Trump’s many racist statements about Muslims made before and after the ban went into effect. Even though the Supreme Court upheld the measure, this backlash remains ongoing.
The third way law impacts political accountability for executive action is by negatively affecting either a large or small, but diverse group. The broad adverse consequences of these executive programs create a common interest in checking presidential power, even where minority interests are adversely affected. For example, the government’s secret foreign surveillance programs, which were revealed in 2013 by Edward Snowden, affected the privacy rights both of Arab and Muslim populations, as well as American society more broadly. Revelations about these programs led to checks on executive power, including congressional amendments to the Foreign Intelligence Surveillance Act. The Border Wall, which the Trump administration has been trying to build since 2017, has also led to efforts to check executive power. These efforts have arisen even though the wall’s construction most directly affects a small group of people, including Indigenous tribes and Latinx individuals who own or have interests in land needed for the project. These groups have joined together, alongside various social justice organizations, to resist executive attempts to seize and build on these lands.
Solving Law’s Accountability Problem
Based on these insights, there are several possible solutions to the political accountability gaps law creates for minority groups. The first is to call for the abolition of executive programs, like FBI surveillance and material support prosecutions, that disproportionately impact minority communities. The second is to demand these programs’ civil liberties problems be addressed. The third is both to address their civil liberties shortcomings and call for these programs to be applied more broadly across American society.
As for the first solution, ending these programs may be the only way to effectively address their systemic discrimination and accountability issues. Without evidence of explicit discrimination, there is little chance the rule of law and politics will combine to limit these programs in any meaningful way. Even if evidence of purposeful discrimination existed, it is hard to know whether such reforms would even materialize. Of course, some might counter that these programs ought to be preserved based on the view that they further valid national security objectives, notwithstanding their many deep-seated problems. The material support statutes, for example, allow the government to intervene before an act of terrorism has occurred and prevent the flow of financing and materials, like weapons, that may be used in terrorist acts. While there are also significant downsides associated with a preventative counterterrorism strategy, including, but not limited to civil rights problems, the approach may not be a wholly unreasonable way of addressing terrorist violence, particularly if those costs can be adequately remedied.
As for the second solution – strengthening these programs’ civil liberties protections – this could be achieved by, for example, applying strict scrutiny to First Amendment protected activities covered by the material support statutes. Domestic intelligence gathering could also be subjected to the Fourth Amendment protections it currently lacks. Even if such changes could be achieved, however, the Executive might still disproportionately apply these programs in a discriminatory fashion. A similar phenomenon can be seen in domestic policing. While constitutional protections are comparatively more robust in policing than in national security, these protections have done little to prevent domestic policing practices from disproportionately impacting Black and Brown communities. More generally, where laws disproportionately impact minority communities, rights-based solutions may be insufficient to remedy broad-based oppression.
This brings us to the third and final possible solution – applying these programs broadly across U.S. society. While this solution ought to be combined with the second solution, it may still lead to troubling outcomes. For example, broad application of the material support statutes would mean targeting domestic groups and potentially expanding the definition of terrorism. Depending on how broad a definition is adopted, it could be twisted to cover the actions of protestors or activists. This would be particularly concerning given the harsh prison sentences that accompany federal terrorism convictions. It would also exacerbate the First Amendment concerns the material support statutes raise.
On the surveillance side, expanding the FBI’s practices would mean surveilling members of all sorts of religious, political, and social groups. Together, across the board application of the material support and surveillance programs would likely result in even more invasive surveilling and policing of communities of color. Indeed, evidence suggests the FBI surveillance program is increasingly being used to surveil minority communities beyond Muslim and Arab ones. On the flip side, part of the value of this approach is that broad application, even to other minority groups, could lead to greater political accountability. At the same time, even if political mobilization spurs reforms to these programs, it is entirely possible they will be limited fixes.
Time for Abolition
In considering which of these options is most likely to protect minority groups, activism and scholarship around U.S. prisons and policing presents useful lessons. As with the national security sector, there has been little in the way of accountability from either U.S. courts or legislatures for abusive police practices. Instead, as recent events show, it has been grassroots political mobilization that has done the most to demand accountability for police targeting of Black and Brown communities. Much of this politics has called for various forms of police and prison abolition instead of reform – a trend that is also increasingly embraced by scholars working on criminal justice issues. As these activists and scholars argue, because policing practices are so riven with racial and other forms of discrimination, reform is ineffective. Instead, abolition – which focuses directly on the role of police and the carceral state in sustaining racial and economic inequality within society – provides a more effective and hopeful horizon for ending police brutality and realizing justice for minority communities.
Though far less explored, abolition may also be the most promising option for dealing with discriminatory national security laws and policies. Without understanding the historical, material, and ideological roots of these practices, it is impossible to effectively deal with their discriminatory outcomes. More generally, an abolitionist framing draws attention to how the U.S. approach to national security is rooted less in the public’s welfare and more in the demonization of racial and other out-groups, support for U.S. imperialism, and sustenance of what Aslı Bâli refers to as the “military-industrial-policing complex.” It suggests the need to think differently about national security and to dismantle the American national security state as we know it. Indeed, the broader abolitionist project cannot be fully realized without these efforts.
First and foremost, an abolitionist framework takes seriously the deep relationship between discriminatory national security programs and racial and religious prejudices. More generally, it underscores how the entire American security apparatus, from local police to federal law enforcement, is grounded in racism and disproportionately targets racial minorities, as well as the poor and working class. In the national security sector, this includes the racist and xenophobic origins of the U.S. Border Patrol as well as the FBI’s long track-record of targeting and pursuing labor movements and persecuting minority communities. Reform alone cannot hope to address these longstanding, deeply entrenched discriminatory legacies.
An abolitionist lens also sheds light on the ways in which the government’s discriminatory national security programs as well as the security state more generally are part and parcel of U.S. imperialism. For decades, U.S. foreign policy in the Muslim world has propped up authoritarian governments, promoted instability and war, and filled the coffers of local elites, all while ensuring the poor and middle class have few economic and political opportunities. Indeed, many of the groups targeted by the U.S. government’s War on Terror, both abroad and domestically, are a byproduct of those circumstances. While post-9/11 jingoism has long prevented these facts from entering mainstream discourse, they are critical to any effort to “fix” the national security sector.
Importantly, an abolitionist lens emphasizes the role of the military-industrial-policing complex in sustaining the American national security state. In a world of deep budget cuts to welfare programs and other social services, the national security sector remains funded to the gills. While the precise figure is unavailable, a recent report found that, between 2002 and 2020, Congress appropriated over $6 trillion dollars for post-9/11 war and counterterrorism efforts. Private contractors have profited handsomely from this arrangement. In 2019 alone, the Pentagon spent $370 billion on defense contractors, a 164 percent increase from 2001. This corporate investment in sustaining and expanding the national security state raises serious questions about who benefits from the United States’ sprawling and expensive national security regime.
Finally, thinking about national security from an abolitionist perspective is essential to the abolitionist project itself. Most obviously, national security has increasingly become an important component of policing and vice versa. Since 9/11, collaboration on counterterrorism between local and federal law enforcement has substantially increased through the proliferation of “Fusion Centers” and the creation of Joint Terrorism Task Forces. Extending this counterterrorism work, local police have independently engaged in their own highly-problematic national security initiatives, including the NYPD’s suspicion-less surveillance of Arab and Muslim communities. As the protests that followed the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery underscored, the national security apparatus, including the National Guard and Homeland Security agents, is also now participating in domestic law enforcement.
On top of all this, modern American policing has become deeply militarized. Counter-insurgency practices deployed during the Philippine and Vietnam wars and further perfected during the War on Terror have been regularly deployed domestically. These practices treat American cities “as ‘the post-modern equivalent of jungles and mountains – citadels of the dispossessed and irreconcilable.’” Unsurprisingly, this mindset has been accompanied by the increased use of military-grade weapons and gear by local police, especially since 9/11. This equipment is regularly used against protesters and other unarmed civilians who are increasingly portrayed, especially by the Trump administration, as threats to the state. One may be able to dismantle these relationships and demilitarize the police while leaving the national security state intact. But, given the intimate relationship between these two spheres, it is hard to see how that’s possible.
As in the policing context, bringing abolition to national security will likely be dismissed or seen as too radical, naïve, or utopian. But, to paraphrase Monica Bell, it is far more unrealistic to believe individual programs, and indeed the entire national security state, which are so deeply entangled in the systematic discrimination and persecution of vulnerable minority groups, the pursuit of imperialism, and corporate imperatives, can be meaningfully reformed. It’s time to consider other options. Abolition ought to be one of them.
Image: A protester watches federal officers through the gate in front of the Immigration and Customs Enforcement (ICE) detention facility early in the morning on August 21, 2020 in Portland, Oregon. For the second night in a row federal police clashed with crowds in South Waterfront after being absent from Portlands nightly protest for weeks. (Photo by Nathan Howard/Getty Images)