Editor’s Note: This article is part of our Ending Perpetual War Symposium. The article derives from a chapter in Brianna Rosen, ed., Perpetual War and International Law: Legacies of the War on Terror (Oxford University Press, forthcoming 2024).
As violence escalates in the Middle East, ordinary Muslim Americans watch in fear. The sprawling post-9/11 surveillance and counterterrorism architecture is ramping up again in response to the Israel-Hamas War, protests in the United States, and fears of an increased terrorist attacks. Persistent failures to reform overly broad U.S. counterterrorism laws and policies suggest that safeguards against rights abuses may well prove inadequate. And once again, it is Muslim American communities who will suffer.
Testifying before Congress earlier this month, both the director of the Federal Bureau of Investigations (FBI) and the secretary of the Department of Homeland Security (DHS) expressed concern that the conflict in Israel and Gaza increased the risk of a terrorist attack in the United States. FBI Director Christopher Wray told the Senate Homeland Security and Governmental Affairs Committee that the violence in the region had raised the potential for an attack in the United States to “a whole other level,” comparing it to the ISIS-inspired attacks of the previous decade. DHS Secretary Alejandro Mayorkas similarly raised the alarm about foreign terrorist groups, including al-Qaeda and Iranian-backed Lebanese Hezbollah, executing attacks on U.S. soil.
These types of “high threat” environments make it all too likely that security agencies will overreach as they have in the past. After 9/11, the FBI sent agents into Muslim American communities and mosques across the country—not because it suspected criminal activity but in order to learn about their political and religious opinions. It created “maps” of minority communities, including Muslims, across the United States. In its efforts to recruit informants among the mostly immigrant Muslim American diaspora, the FBI has threatened to block immigration benefits and dangled promises to ease immigration problems or forgive crimes.
These tactics were enabled by the rules governing FBI investigations, called the attorney general guidelines, which have been progressively loosened after 9/11 to allow agents to open investigations and deploy informants so long as they had an “authorized purpose.” The purpose can be as broad as preventing crime or terrorism, hardly serving as a check on the abuse of power. Since then, the FBI’s reliance on informants has grown by leaps and bounds. Between 2012 and 2018, the Bureau paid just under $300 million to informants, and 50-60 percent of terrorism prosecutions during the Bush and Obama administrations involved informants.
Protections against targeting Muslim Americans and other minority communities are still exceptionally weak. Earlier this year, the Justice Department updated its guidelines for law enforcement agencies’ use of characteristics such as race, religion, ethnicity and national origin. Although the new rules include some improvements (e.g., explicitly covering intelligence and other activities supporting law enforcement), they continue to allow targeting based on group characteristics rather than indications of individual wrongdoing—the very essence of the invidious profiling the rules claim to ban. One example in the guidance, which I discussed previously in these pages, is particularly illustrative.
According to the DOJ, if a terrorist group located in southeast Asia mainly made up of a particular ethnic group releases poison gas overseas in an area which many American tourists visit, the FBI can permissibly focus on members of that ethnic group in developing sources to provide intelligence about potential threats to the United States. The relevant and trustworthy requirement of the guidance applies to information tying the group to the overseas activity and its ethnic make-up. But there is no similar requirement of relevant and trustworthy information linking the particular individuals targeted in the United States and any criminal activity or security threats. As the guidance itself states, their shared ethnicity with the foreign group, along with other information that hardly bears on threat and is instead common among the relevant diaspora community (e.g., travel to southeast Asia), would be sufficient.
These new rules—like those issued by the Obama administration in 2014—validate the FBI’s practice of visiting Muslim diaspora communities and asking ordinary Americans questions about events across the globe in a vain effort to ferret out terrorist sympathizers. These ventures have sowed fear and confusion among Muslim American communities, and unfortunately, the FBI may be following the same playbook again. In just the last few weeks, the American-Arab Anti-Discrimination Committee reports that it has received several reports of individuals and mosques being visited by the FBI.
FBI agents’ ability to conduct fishing expeditions coupled with weak rules preventing profiling has enabled sting operations that ensnare defendants who may well be culpable of some wrongdoing, but hardly seem to present a real terrorist threat. The story of James Cromitie and the Newburgh Four perhaps best exemplifies the overreach of such operations. In that case, an FBI informant befriended Cromitie, a petty drug dealer, urging him to attack a synagogue and to recruit three other impoverished Muslim American men, promising lavish gifts and $250,000. The men were hardly blameless, but the plot was driven by the government’s informant, who instigated, planned, and drove its execution. A federal judge recently granted early release for three of the men, denouncing the entire operation as “an FBI orchestrated conspiracy” that constructed terrorists out of “hapless, easily manipulated and penurious petty criminals.” The real lead conspirator, the judge said, was the United States.
Expansive counterterrorism authorities have also been used to target and suppress political activism. When racial justice protests broke out across the country in the wake of the police killing of George Floyd, the Trump administration repeatedly tried to brand protests as the work of “Antifa” domestic terrorists. Attorney General William Barr even activated the FBI’s 56 Joint Terrorism Task Forces to “identify criminal organizers and instigators” among the protestors.
As documented by Congress and both its general counsel and inspector general, DHS has also used its broad counterterrorism authorities to target the same protestors. Intelligence officers were deployed to Portland, Oregon, a center of protest activity, to collect information on dissidents that was recorded in dossiers, enabling Border Patrol special forces to whisk demonstrators away in unmarked vehicles. Like the FBI, the DHS intelligence office has broad authorities and weak safeguards, as the Brennan Center has detailed in this report.
As the Israel-Gaza War continues, protests have gripped the United States especially on university campuses. Some have suggested that the law banning material support for terrorism—a much-abused cornerstone of the post-9/11 security architecture—should be deployed against protestors. Former President Trump is calling for replicating the Muslim travel ban, this time targeted at those of Palestinian descent, and members of Congress have introduced legislation to this effect.
With the post 9/11 domestic counterterrorism infrastructure mostly intact and fears of conflict escalating in the Middle East, Muslim Americans are bracing for what comes next. The cost of allowing expansive surveillance and counterterrorism laws and programs to remain without reform is borne by too many Americans who live in fear of when and how these tools will be deployed against them.