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National Guard troops eat pizza while patrolling a street on January 19, 2021 in Washington, DC. Tens of thousands of National Guard troops were deployed to DC following the January 6 insurrection at the Capitol. (Photo: Nathan Howard/Getty Images)

National Guard troops eat pizza while patrolling a street on January 19, 2021 in Washington, DC. Tens of thousands of National Guard troops were deployed to DC following the January 6 insurrection at the Capitol. (Photo: Nathan Howard/Getty Images)

More Domestic Spying Power Is Not the Answer

We are told by some opponents of the far-right that supporters of equality and civil liberties should not be worried about expansions of U.S. surveillance and counterterrorism capabilities.  They are wrong.

Since Donald Trump’s presidency ended with a violent insurrection at the US Capitol that left five people dead, the country and its leadership have focused on how to address the “new” threat of “terrorism.” Bipartisan efforts backed by President Joe Biden seek to further escalate an already out-of-control US Intelligence apparatus.

Supporters of civil liberties and defenders of Black, immigrant, and Muslim communities have urged caution against such measures. Nonetheless, we are told by some opponents of the far-right that supporters of equality and civil liberties should not be worried about expansions of US surveillance and counterterrorism capabilities.

They are wrong. A new report published by Project South, a movement-building organisation rooted in the Black radical tradition, describes the lengthy history, practices, and law behind the US surveillance state and its systematic targeting of Black, immigrant, and/or Muslim communities, with a particular focus on the US South. Spying on the Margins: The History, Law, and Practice of U.S. Surveillance Against Muslim, Black, and Immigrant Communities and Contemporary Strategies of Resistance is intended as a useful guide and tool for community organisers, lawyers, activists, and all those concerned about the practical effects of the massive growth of the US surveillance state.

Many associate systematic state surveillance practices against Muslims in the US with the 9/11 attacks and the “war on terror” that followed. But the reality is that Black and immigrant Muslim communities were subjected to discriminatory and abusive surveillance practices long before that.

After the first world war, an increasingly nativist US government subjected diverse Muslim communities to surveillance and deportation when they began to engage in political organising. For example, as the US government passed overtly xenophobic laws such as the National Origins Act of 1924, restricting non-white and non-Christian immigration, the FBI began to aim its surveillance at pan-Islamic and Islamic-influenced Black and pan-African movements that opposed white supremacy. During the second world war, the US government spied on Black Muslim organisations, alleging without basis that they might be allied with the Japanese government. And following the war, Black, Indigenous, and immigrant movement leaders, Black Muslims and Arab leftists were among many activists and civil rights groups targeted by the FBI’s infamous domestic political spying programme, COINTELPRO.

A Senate Select Committee that investigated COINTELPRO in the 1970s, known as the Church Committee, found that a combination of factors led “law enforcers to become lawbreakers”. The Church Committee’s exposure of the COINTELPRO abuses led to a series of reforms, including laws designed to regulate government surveillance and internal guidelines that limited the FBI’s investigative authority and spelled out the rules that govern law enforcement operations.

These nominal reforms, however, did not stop the expansion of the US surveillance state for too long. In the aftermath of the 1993 World Trade Center bombing and the climate of fear prompted by the Oklahoma City bombing, the federal government aggressively rolled back existing limits on the government’s ability to surveil and deport people, often from Muslim majority countries. In 1996, the Antiterrorism Effective Death Penalty Act (AEDPA) was signed into law, which substantially limited prisoners’ ability to challenge unlawful convictions.

The surveillance state was further strengthened following the 9/11 attacks and the consequent “war on terror.” The exposure of the state’s myriad rights abuses under the guise of combatting “terror”, from mass surveillance and profiling of Muslims to torture of people detained at  Guantanamo and CIA black sites, resulted in a series of cosmetic reforms. Nevertheless, most of the statutory authorities invoked to surveil, criminalise, and brutalise Muslims and others in the aftermath of 9/11 remains on the books to this day.

Acts of charity and kindness towards Muslim-majority communities, such as Palestinians living under Israeli occupation, have been reduced to material support for “terrorism”. The political views of Muslim youth are invoked in court to suggest they are predisposed to committing acts of “terrorism”. Hundreds of Black and/or immigrant Muslims, many with personal vulnerabilities that were exploited by informants, have been ensnared into FBI sting operations that rival Hollywood thrillers in their absurdity.

And the expansion of surveillance authorities under the Foreign Intelligence Surveillance Act (FISA) continues to allow federal agents to circumvent the rules of criminal procedure when targeting people suspected of “terrorism”.

Since the aftermath of the COINTELPRO scandal, courts, Congress, and the executive branch have always maintained some limited authority to carry out surveillance beyond the traditional limits of the Fourth Amendment where the surveillance was “primarily” for gathering foreign intelligence rather than for the purpose of criminal prosecution. Under the Foreign Intelligence Surveillance Act, the government had to prove to a federal judge that the target of surveillance was an agent of a foreign power where it was aimed at a US citizen or resident or took place on US soil. This authority had always been subject to some abuse but was still generally limited.

But after 9/11, all branches of the US government radically reinterpreted and eventually changed FISA to enable mass surveillance. The law was changed to permit “foreign intelligence gathering” even if it was not the primary purpose of the surveillance. Congress passed Section 215 of the USA PATRIOT Act, which enabled the mass gathering of telephone calling data and the gathering of other previously confidential business and financial records. And after revelations of mass data-gathering involving US communications providers by the executive branch, Congress reacted not by restricting the President but by passing the FISA Amendments Act of 2007. This change permitted the executive branch to obtain FISA court approval for mass surveillance throughout the world, including the collection of intimate photos, text messages, emails, and even email/password combinations to be stored by the NSA.

In the haze of secrecy created by FISA, secret court rulings permitted multiple mass surveillance programmes that logged the phone metadata and email communications of millions of Americans and others – alongside spying programmes that captured private communications of civilians and officials alike in other countries. Multiple state and federal initiatives log and store collections of data that have no apparent connection to criminal activity.

Throughout the US South, Black and/or Muslim communities have faced significant consequences as a result of this expansive surveillance state. In Florida, Black Muslims associated with the Moorish Science Temple were ensnared into fake “terrorist” plots, including one to blow up the Sears Tower in Chicago, whose absurdity was mocked even by their sentencing judge, while a Palestinian American professor was tried for “terrorism” offences – with the jury eventually acquitting him or deadlocking on every charge – almost entirely on the basis of his political speech. In Georgia, Muslim teenagers were subjected to relentless prosecution, eventual conviction for terrorism, and incarceration based on their online political speech and travel to their ancestral homelands. In North Carolina, Muslim youth who expressed their strong political opposition to the US and Israel ended up serving decades-long sentences for terrorism-related convictions in which the prosecution was able to use FISA surveillance for reasons that have never been disclosed. And states throughout the South, like much of the country, have set up large data-mining enterprises designed to share surveillance information with federal agencies alongside creating legal loopholes that permit discriminatory surveillance practices.

These predatory surveillance practices continued well beyond the Bush presidency into both the Obama and Trump administrations. Among other outrages, the Trump administration explicitly sought to use the FBI’s counterterrorism authorities to target Black protesters during the George Floyd demonstrations. One would expect most of these practices to be unlawful in a democracy. But, as the Project South report shows, the law of the US surveillance state targets Black, immigrant, and Muslim communities, precisely because federal intelligence agencies already have broad, sweeping discretion.

From the Supreme Court’s ruling in Laird vs Tatum (1972) holding that surveillance of public activities, in and of itself, is not a violation of the First Amendment, to loopholes like the so-called Third Party Doctrine, permitting surveillance of information disclosed to third parties – including telecommunications companies – to the expansive interpretation of FISA, the government has managed to use the law to ensure both widespread surveillance and to avoid facing meaningful consequences even when the law is violated.

Just as the existing surveillance authorities have been used to target those who are directly impacted by state repression, measures touted by the Democratic Party to target the Trump insurrectionists will inevitably worsen the problem.

But in spite of the fealty of the Democratic Party to the intelligence apparatus, Black, Muslim, and/or immigrant communities throughout the country have put forward strategies to resist.

In Los Angeles, community organisers shut down in 2018 efforts by the city council to fund one of several “Countering Violent Extremism” (CVE) programmes – these are nominally designed to deter violence but practically designed to surveil and criminalise teenagers from mostly Muslim backgrounds. In the San Francisco Bay Area, community groups were able to force local police departments to cut ties with the FBI’s “Joint Terrorism Task Force” in 2017. In Georgia, a coalition of immigrants’ rights organisers shut down a state measure that would have facilitated the sharing of student data with state and federal intelligence agencies in 2019. And in some places, Muslims were able to send a blow to the FBI’s intelligence-gathering efforts simply by refusing to participate in them.

The Democratic Party establishment should bow to the lead of these grassroots organisers. But even if they do not, community groups throughout the country should be prepared to address further threats from the surveillance state.

© 2021 Al-Jazeera English
Azadeh Shahshahani

Azadeh Shahshahani

Azadeh Shahshahani is Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild.

Amith Gupta

Amith Gupta is an Atlanta-based civil rights attorney, National Lawyers Guild member, and former Legal Fellow with Project South.

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