In the aftermath of the renewal of a major U.S. surveillance law last month, anyone concerned about civil rights should be taking stock of both the government’s extensive surveillance powers and an ugly and disturbing tactic surveillance hawks used in achieving their victory.
Congress reauthorized the law, Section 702 of the Foreign Intelligence Surveillance Act (FISA), for six years in mid-January. The provision remains the basis for at least two enormous warrantless surveillance programs: PRISM and “upstream” scanning. To maintain support for these massive snooping activities, the intelligence agencies and their allies have long avoided disclosing how many people in the United States are caught up in this monitoring—while repeatedly exploiting fears of Muslim men.
The strategy of describing a threat posed by Muslim men, including when the relevance of those cases to Section 702 is questionable at best, has been deployed for years. Most recently, during the re-authorization debate this January, Sen. Chuck Grassley, the Republican chair of the Senate Judiciary Committee, defended Section 702 by highlighting the shooting at Orlando’s Pulse Nightclub by a U.S.-citizen Muslim man and a truck attack in New York City by a green-card-holding Muslim man from Uzbekistan—without clarifying whether Section 702 data had in fact been used to investigate those episodes. (Clearly, the government’s much-touted programs didn’t prevent these attacks.) His colleague Sen. Tom Cotton (R-Ark.)—while briefly suggesting that Section 702 had been used to detect Russian interference in the 2016 U.S. election—also alluded to multiple alleged plots by U.S. Muslim men despite an absence of any known use of Section 702 data in those investigations.
Likewise, in 2015 a group of representatives had written a letter in support of Section 702 alluding to the Boston Marathon bombing carried out by the Muslim Tsarnaev brothers and a shooting by a Muslim man in Garland, Texas. The letter pointed to these men as illustrating the “possibility” of “homegrown terrorism”—without establishing that Section 702 had any relevance to the investigations in their cases.
Promoting political and legislative goals by relying on prejudice is nothing new in the U.S. During the 1988 presidential race, the campaign of George H.W. Bush ran a televised attack ad featuring an image of Willie Horton, an inmate who had committed new offenses after failing to return from a weekend release program that Bush’s opponent, Michael Dukakis, had supported. Today, the ad is widely condemned for its appeal to racist fears of African-American men.
By consistently pointing to acts of violence committed or planned by Muslim men—even if those events had no demonstrated relevance to the surveillance law in question—the agencies and their backers have engaged in a similar strategy. At the same time, they have declined to provide even estimates of the total number of U.S. (or other) communications swept up under Section 702 or explain the nature of this surveillance’s 100,000-plus targets. They have also failed to answer questions about the full range of purposes for which the government uses this warrantless monitoring.
The tactic extends to both sides of the aisle. In 2012, during a floor speech supporting Section 702, Sen. Dianne Feinstein (D-Calif.) praised FISA monitoring for what she described as its role in the investigations of disrupted terrorism conspiracies. All nine of the cases she cited involved defendants who identified as Muslim or came from Muslim-majority countries. Yet, an aide later claimed the speech was not necessarily intended to indicate that Section 702 data had actually been used in those cases, and several of the defendants never received any notice that it had.
And while Feinstein described Section 702 spying as “a program to conduct surveillance on non-U.S. persons,” meaning “individuals who are not U.S. citizens” or green-card holders, the cases she listed included several US-citizen defendants. Although it is technically true that this spying must officially “target” foreigners overseas, Section 702 supporters seem to count on a prejudiced misperception that American Muslims are somehow not really U.S. citizens.
The agencies, too, have depicted a threat of violence by Muslim males in a way that risks exploiting prejudice. Last year, the Office of the Director of National Intelligence published materials about the use of Section 702’s dragnet programs that—when citing examples involving identifiable individuals—pointed only to investigations of Muslim men.
The same strategy has appeared in other U.S. surveillance contexts. In 2013, after Edward Snowden revealed the government’s bulk collection of all U.S. phone records from Verizon under Section 215 of the USA Patriot Act, officials and representatives initially suggested that this program was responsible for halting 54 threats of violence. However, they ultimately chose to name only one person whose criminal act they said had been caught this way: a Muslim man from a Somali-American community who had sent $8,500 to an insurgent group in Somalia.
Surveillance hawks promoted renewed Section 702 spying by pointing at Muslim men—including citizens or permanent residents, and including those with no established Section 702 connection—even as scores of other acts of public violence in the U.S. were committed by a wide range of people. Examples include Stephen Paddock, whose shooting spree in Las Vegas killed 58 people; Devin Kelley, who killed 26 people at a church in Sutherland Springs, Texas; James Alex Fields, Jr., who allegedly drove a vehicle into a crowd of counter-protesters during a far-right gathering in Charlottesville, Virginia; and James T. Hodgkinson, who shot at Republican representatives and aides as they practiced baseball.
If the government and its allies wanted to cite cases of no demonstrated relevance to U.S. intelligence surveillance simply to indicate that people sometimes commit violence in public places or on a grand scale, including in the U.S., they had other options: they didn’t need to point to Muslim men. And if the implicit argument is simply that Muslim men are dangerous “others” in a way that justifies vast and intrusive surveillance programs, while shooters and other perpetrators of deadly violence who identify in other ways are not, then that view has serious logical shortcomings that are long overdue for unpacking. Indeed, it is the definition of prejudice.
The agencies and the members of Congress who tried to build support for these surveillance programs by perpetuating these Islamophobic narratives should be embarrassed. And in the long term, they should expect to lose their fight against reforms to bring surveillance back into line with rights. The racist strategy underlying the Willie Horton ad is now commonly seen for what it was. The day will come when the people of the U.S. see through these tactics being used in the surveillance context and demand an end to monitoring that does not respect fundamental freedoms.