Surveillance powers

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 US 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.

Excerpted: ‘Broader US government surveillance powers won’t make us safer’

Aljazeera.com