By Edward Ahmed Mitchell, Esq.
The Patriot Act. NSEERs. National security letters. The watchlist. The no-fly list. Bulk data collection. CVE. Anti-Sharia laws. The Muslim Ban.
In the twenty years since September 11, 2001, our government has established dozens of laws, policies and programs ostensibly designed to prevent additional attacks on our nation.
Some of those post-9/11 measures—such as increasing airport security and improving communication between federal agencies regarding potential threats—were reasonable, legal and successful in making us safer. But many other measures were as ineffective as they were unconstitutional. They undermined civil liberties, violated civil rights and harmed countless people—particularly Muslims in America—in the name of national security.
Today, some of those programs have ended. Some of them persist. Here’s a list of ten measures that undermined the Constitution and singled out the Muslim American community after 9/11, as well as a rundown of where those policies stand now.
1. The Patriot Act:
When Congress quickly passed the Patriot Act in 2001, lawmakers gave the federal government wide and sweeping federal surveillance authorities. That included authorizing FISA courts to issue either rubber stamped warrants or permit the warrantless searches of private records, property, and communications. The severity of these unconstitutional abuses would only later be revealed by whistleblowers like Edward Snowden and reporters like Glenn Greenwald. The Patriot Act is still the law of the land.
2. The Watchlist(s):
The watchlist system is a set of interconnected national security programs throughout the federal government that essentially acts as a “stop-and-frisk” program that often targets Muslims for enhanced screening and interrogations.
Created by President George W. Bush in 2003 through executive order, the Terrorism Screening Database (TSDB) — colloquially known as the “watchlist” – currently includes more than one million names. Countless American Muslims are on the No Fly and Selectee List, including children.
The watchlist system has been used as a tool to target innocent Muslims secretly and systematically without due process or accountability. A federal lawsuit recently revealed that the federal government has distributed one of its watchlists to local governments and private entities, including employers and banking institution. This has impacted Muslims looking for jobs, buying a car, traveling across, borders, using bank accounts, wiring money to family overseas, and even during traffic stops.
The Council on American-Islamic Relations (CAIR) and a number of other civil rights groups are engaged in multiple federal lawsuits challenging the constitutionality of various aspects of the watchlisting system.
Established by the Bush Administration, the National Security Entry-Exit Registration System (NSEERS) program required nonimmigrant men and boys from predominantly Muslim countries to report to an immigration office to be photographed, fingerprinted and interviewed.
Those targeted by the NSEERS program were also required to leave the United States through specified ports. Anyone who failed to comply with the program faced arrest and deportation. The program was effectively dropped by DHS in 2011 and viewed by many as being an ineffective and burdensome program that was a massive profiling campaign targeting individuals based on their Muslim religion and ethnicity. The program was later officially disbanded by the Obama administration.
It is also important to note that in the days and weeks following September 11, the federal government rounded up and detained nearly 800 Muslim citizens and immigrants, holding them for days or weeks without being charged, as they were interrogated under the false pretense of being a threat. Under this DOJ and FBI led program, many Muslim immigrants were deported without reason or charge.
4. Deploying Informants:
The FBI has built a network of at least 15,000 registered informants, some of whom are paid to infiltrate American Muslim communities. CAIR estimates that nearly half of all federal terrorism prosecutions during this period involved the use of an informant and about a third of sting operations were driven by an informant who led the plot. A number of those cases involved financially motivated informants going to great lengths over long periods of time to radicalize and enable unlikely and at times mentally ill individuals to commit acts of scripted terrorism.
5. Mass Surveillance:
Under Section 215 of the Patriot Act, Congress enabled the NSA and FBI to collect the phone, e-mail, and online records of millions of law-abiding Americans in the name of national security for more than a decade. In 2015, Congress attempted to limit Section 215 to only collection on “specific selection terms,” but that could still permit courts to order private businesses to turn over large quantities of phone records from certain area codes, ZIP codes, and regions of the U.S. It could also be interpreted to permit collection from certain electronic devices, email hosts or other internet records that contain “specific” search “terms.” NSA meta-data programs have been used to spy and collect the communications of Arab and Muslim Americans.
6. New York City Spying on Muslims:
From 2001 to 2014, the New York Police Department carried out an illegal and unconstitutional human mapping program that spied on and infiltrated Islamic institutions, including houses of worship, student groups and businesses that cater to the Muslim community. According to the AP, NYPD officers –- in cooperation with the CIA –- conducted "surveillance of entire Muslim neighborhoods, chronicling every aspect of daily life, including where people eat, pray and get their hair cut."
The NYPD also recruited informants it referred to as “mosque crawlers” to monitor religious sermons without any suspicion of wrongdoing. Police officials acknowledge that the program generated zero criminal leads.
In 2014, the NYPD disbanded its special unit that conducted widespread warrantless surveillance of law-abiding Muslims and settled one – of several lawsuits – in 2018, agreeing not to conduct surveillance based on religion or ethnicity, paying $75,000 in damages and $1 million dollars in legal fees.
7. National Security Letters:
The use of “national security letters” was not new, but with new authorities provided by the Patriot Act, the FBI no longer had to have specific facts linking the subject to a foreign power to justify each letter. Now, to issue a national security letter, the FBI merely has to certify that the information is “relevant” to a national security investigation, leading to the private information of thousands of Americans being unconstitutionally divulged without a warrant. Between 2003 and 2005, the FBI issued an excess of 143,000 National Security Letters with the DOJ Inspector General’s office finding the letters were routinely issued without proper authorization and outside statutory and regulatory requirements. The federal government also went on to pursue deeply flawed terrorism prosecutions against numerous Muslims.
8. Countering Violent Extremism (CVE):
From its inception, the underlying goal of CVE has been to gain access to, surveil and collect information on the American Muslim community. Established by the Obama Administration, the program was first piloted in three cities with large Muslim populations: Boston, Los Angeles, and Minnesota. CVE goals include (purportedly) intervening in an individual’s path toward violent extremism, interdicting in criminal activity and reintegrating those convicted of criminal activity into society.
The true motive of singularly targeting the Muslim community was exposed by the Trump administration’s withdrawal of CVE funds from projects that did not focus on Muslims and did not involve law enforcement. While the Biden administration is attempting to establish a new CVE-like program that would address broader forms of extremism, civil rights organizations remain extremely wary of such programs—to say the least.
9. Anti-Sharia Bills:
Since 2010, anti-Muslim politicians goaded by hate groups have introduced at least 221 anti-Muslim "anti-Sharia" and "anti-foreign law" bills in 44 state legislatures and even Congress.
In 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a lower court’s decision to block implementation of an Oklahoma state constitutional amendment that would have prohibited courts from applying or considering “Sharia law” in a federal court challenge brought by CAIR-Oklahoma. The following year, Oklahoma legislators hid the anti-Sharia bill’s bias behind a broader, facially neutral “foreign law” ban and passed that anti-Muslim law, HB 1060.
As of 2021, 15 similar bills are law in 13 states, covering nearly a quarter of the nation, but no states have activated those laws.
10. Muslim Ban:
The Trump Administration’s discriminatory Muslim and African Bans represented the culmination of 15 years of anti-Muslim politicians, media and hate groups fear-mongering about Muslims.
First authorized on January 27, 2017, the Ban was amended several times as a result of successful court challenges. At various times, the Ban imposed differing levels of discriminatory travel restrictions on half a dozen Muslim-majority countries, such as Libya, Iran, Sudan, Syria, and Yemen, among other nations.
Because of the ban, which the Supreme Court eventually upheld, thousands of Muslim families have been ripped apart, students have been deprived of educational opportunities, the sick have been blocked from receiving treatment, talented workers have lost out on jobs, and refugees have been trapped in dangerous conditions.
The Muslim Ban was repealed on the first day of the Biden administration. However, the damage it caused continues to persist, and Congress has yet to pass legislation that would prevent the Muslim Ban from being imposed in the future.
To be clear, these are just some of the many misguided measures our nation pursued in the years after September 11th, undermining civil rights and civil liberties along the way. It’s important to also note that reviewing the mistakes our government made around the world over the past 20 years—rendition, torture, Guantanamo Bay, drone strikes, the invasions of Iraq and Afghanistan—would require a list of its own.
For now, as we mark the 20th anniversary of September 11th, let us remember those our nation lost on that day—and let us also reflect upon what our Constitution has lost as a result of that day.
Edward Ahmed Mitchell is a civil rights attorney who serves as the National Deputy Director of the Council on American-Islamic Relations (CAIR). He is also the current vice president of the National Association of Muslim Lawyers (NAML).
Any opinions expressed in articles published by The Muslim Legal Journal represent only the views of each writer. Such opinions are not meant to represent the views of the writer's employer or the National Association of Muslim Lawyers (NAML).