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Even if President Trump’s January 27 executive order barring or delaying immigration from seven Muslim-majority countries is deemed unconstitutional, the administration will continue implementing its plan to target Muslims. Trump has promised to ramp up the “respectful” surveillance of mosques and, if history serves as a guide, we should not expect popular, political, and judicial resistance to such measures to match recent furor. Since September 11, 2001, Muslim life in the United States has entailed burdens that the majority of U.S. citizens simply ignore because they do not affect us and, unlike the recent executive order, we are not privy to seeing them in action. Moreover, a high percentage of Americans are indifferent to or even supportive of Muslim citizens being watched closely by the government in the name of national security—despite the fact that at least some of the surveillance is legally indefensible and there is no evidence that it significantly improves national security.
Long before Trump, a Democrat-controlled Congress, including Obama, voted overwhelmingly in favor of surveillance.
Long before the Trump presidency, government surveillance targeted U.S. Muslims at their colleges, mosques, charities, and community centers. These shadowy practices are carried out under the umbrella of national security and exist largely beyond the reach of legal accountability. In late 2005 the New York Times disclosed the existence of a secret surveillance program against U.S. Muslims, put in place by the Bush administration in 2001. This led to public anger and accusations that the program undermined the constitutional rights of Muslims. However, rather than backing down, the Bush administration lobbied Congress to grant the legal authority to continue the program, and Congress obliged by voting overwhelmingly to enact the Foreign Intelligence Surveillance Act Amendments Act of 2008. The act retroactively authorized broad surveillance and immunized telecommunications companies and the government from lawsuits or future government investigations. Lest we forget, both chambers were controlled by Democrats, and then–Senator Obama voted for the bill.
Since then, Muslims’ phone calls and Internet communications have been scooped up by the government and scoured for possible terrorism connections based on little or no suspicion, and are sometimes considered part of a “targeted” search because they contain certain words related to Islam, or because the target has a “Muslim” name. Muslims are followed and profiled when they go about their lives in public. There remains a broad bipartisan expectation that they should serve as the “eyes and ears” of the intelligence community—in other words, as spies in their own communities.
These demands have inverted the expectations of citizenship in a liberal democracy: that people’s lives are private, even from the government, unless a compelling case can be made that the individual poses a threat to community safety or lawfulness. If we believe in the Constitution, we must agree that Muslims deserve the same constitutional protections as everyone else: a presumption of innocence, a right to a private life, and a right not to be conscripted by the government into spying on other members of their religion.
Unfortunately the courts have largely sidestepped their responsibility to rein in political forces. On top of this, President Trump is now trying to preemptively delegitimize the courts’ ability to question executive power exercised in the name of national security by encouraging people to blame the judiciary should a terrorist attack occur. His tactic may work. Courts do not want to be wrong, either. Thus rulings to halt Trump’s new immigration and refugee policy likely do not foreshadow future court actions that would protect the privacy of Muslims from surveillance.
• • •
In 2006 the Al-Haramain Islamic Foundation, a charity based in Saudi Arabia and operating worldwide filed suit against the U.S. government for being subject to allegedly unconstitutional, warrantless wiretapping of its telephone conversations. Al-Haramain was in the unique position of being able to offer documented proof that it was subject to NSA wiretapping, since the government had accidentally turned over transcripts and records of its wiretapping to an Al-Haramain lawyer.
There is a bipartisan consensus about the government's powers in matters of national security. And Trump is counting on it.
The government moved to dismiss Al-Haramain’s case, arguing, in part, that even though the government had accidentally turned over documents to the plaintiffs, the documents contained state secrets that could not be used in court. The lawsuit bounced around the courts for years, with both the Bush and Obama administrations robustly defending the government’s position; they eventually succeeded in having the case dismissed in 2012. This gave bipartisan imprimatur to the idea that, when it comes to matters of national security, the executive branch should remain largely unfettered. This is precisely the view that Trump is relying upon when he claims that, with regard to all matters of “national security,” the courts should back off.
Public opinion runs in the opposite direction, however, when surveillance is directed at a broader sampling of Americans. Consider the public and political outrage that occurred after Edward Snowden’s 2013 disclosure about the government’s broad, secret domestic surveillance and data collection? Public support for vast, loosely checked surveillance declined dramatically when it became clear that these programs impact everyone. Public fury and formal inquiries by the Obama administration, as well as congressional hearings, led to admissions by the judges of the secretive Foreign Intelligence Surveillance Court that more oversight and transparency were necessary, while federal court ruled that the surveillance was illegal and unconstitutional. Congress passed the USA Freedom Act in 2015 to place additional limits on domestic surveillance.
The public anger over the Snowden disclosures and the government’s responses boiled down to the core belief that the entire population of the United States should not be treated as presumptively suspicious. One might take some comfort in believing that accountability, limited government, and the rule of law have been upheld. Perhaps the USA Freedom Act is evidence that privacy rights still have meaning in a time when technology enables the government to scoop up troves of data about us and hold onto it indefinitely. However, the widespread public indignation that accompanied the Snowden disclosures simply has not existed when that same baseless presumption of guilt is applied only to Muslims. This should not be surprising: the majority’s anger over a civil rights issue frequently only extends as far as it affects them.
• • •
Is there some hope that courts will resist the blanket surveillance of Muslims? Certain exceptional cases suggest that there is. In 2011 the Associated Press reported that the New York Police Department had, with judicial blessing in the aftermath of the September 11 attacks, set aside decades of civil liberties protections against intrusive surveillance to create a system to monitor Muslims in and around New York City. A stack of evidence compiled by the press, nonprofit organizations, and government watchdogs revealed the outrageous extent of NYPD surveillance in mosques, restaurants, college student associations, and community organizations. These disclosures engendered public outcry, multiple lawsuits, the disbanding of the NYPD’s Demographics Unit that focused on surveilling Muslims, and the promise by then-newly elected mayor, Bill de Blasio, that this kind of blanket surveillance was no longer happening.
Yet in a sign of how pernicious and stubborn surveillance practices can be, in 2015 Gothamist reported that at least parts of the NYPD’s systematic surveillance of Muslims had not been dismantled at all: an undercover NYPD officer had been posing since 2011 as a member of Brooklyn College’s Muslim community to conduct long-term surveillance of students who seemed politically active or religiously devout—perhaps the type of “respectful surveillance” that Trump is planning for the near future? In October 2016 a federal court in New York was asked to approve a settlement agreement based on lawsuits stemming from the 2011 disclosures. The same judge who authorized the creation of this post-9/11 system demanded a more rigorous settlement that the city guarantee greater protections against the surveillance system being constructed again, and increase oversight and transparency mechanisms such that future abuses can be uncovered and challenged. The case is a rare instance of civil rights being vindicated in the face of the frightened and frightening narrative that security justifies all manner of surveillance, whether abusive and unconstitutional or not. The difficulty of rooting out institutional, suspicionless surveillance in New York has been staggering, and serves as an example of the challenge that will face civil liberties advocates when surveillance under the Trump administration is ramped up.
'This case implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.'
The surveillance to which Muslims are subjected should be viewed as part of a larger problem of the U.S. government presuming that people of color need to be watched, searched, and controlled, and then the courts willingly defer. For example, in 2016 the Supreme Court decided the case of Utah v. Strieff, in which it held that even when a police officer stops and searches a person on an unconstitutional basis, such as race or ethnicity, if the police find out later that the person had an outstanding warrant, even for something as minor as a traffic violation, the existence of that warrant will cure the constitutional defect of the original stop.
In her blistering dissenting opinion, Justice Sonia Sotomayor wrote that this is an example of how courts have, over many years and decades, given law enforcement too much latitude in stopping and searching people of color for no reason, and the Supreme Court has acted as though any problems with this system are simply isolated incidents of abuse. She asserted that “this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”
Justice Sotomayor was writing about seen, known, and systemic abuses of constitutional rights that undermine democratic values and create the ongoing specter of imprisonment. Yet the Supreme Court ruled in favor of this, claiming that abuses are a rare aberration that may be justified in the name of safety and security. For fifteen years, the surveillance system for Muslims has been even more pernicious in the sense that it sees so much and yet remains largely unseen and unchallenged.
• • •
What will society do about the baseless surveillance of Muslims now that it is a key component of Trump’s national security platform? It seems unlikely that Congress will act to curtail it, particularly with both chambers in control of Republicans. If and when the details of such surveillance are leaked to the public, will the public muster the same fury that erupted after Trump’s immigration order, or Snowden’s disclosures regarding mass data collection? Will courts follow Justice Sotomayor’s lead in Strieff and gather the courage to serve as a bulwark against unconstitutional encroachment on civil rights?
This would require a judicial acknowledgement that even when faced with the specter of national security, religious freedom and the right to a private life mean the same thing for everybody in the United States. In the last month, we have seen the willingness of some judges to acknowledge that facially neutral government action may not be neutral at all, and may not be justified simply by claiming that any decision by the executive branch related to national security must be constitutionally sound and is beyond the reach of the courts. Will that willingness to ask hard questions and demand legal accountability extend to the context of surveillance? For Muslims, the answer will reveal whether their constitutional rights, and their humanity, mean anything close to what they do for the rest of us.
Sudha Setty is a professor and associate dean for faculty development at Western New England University School of Law. She specializes in comparative national security and the rule of law, and is the author of the forthcoming book from Cambridge University Press: National Security Secrecy: Comparative Effects on Democracy and the Rule of Law.
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