Race Ethnicity & Religious Surveillance
Aff
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1ac Terrorism Adv
The most recent DOJ Guidance for Federal Law Enforcement Agencies still fuels
surveillance of racial, ethnic, and religious communities without any connection to
criminal activity
The Leadership Conference on Civil and Human Rights, 15 (2/24/15, The Leadership
Conference on Civil and Human Rights, “Re: Concerns with the U.S. Department of Justice Guidance for
Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion,
Sexual Orientation, or Gender Identity,” http://www.cair.com/images/pdf/2015-02-24TheLeadershipConferenceSign-OnLetterReDOJGuidanceRevisions.pdf, JZG + JMP)
Dear Mr. President,
On behalf of The Leadership Conference on Civil and Human Rights and the 81 undersigned organizations,
we are writing to share our serious concerns regarding the Guidance for Federal Law Enforcement Agencies
Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender
Identity (“the new Guidance”), issued in December of 2014 by the Department of Justice (“DOJ”). While the
new Guidance included much-needed improvements to the 2003 Guidance Regarding the Use of Race by
Federal Law Enforcement Agencies (“the 2003 Guidance”), many issues regarding the new Guidance remain.
In particular, the new Guidance preserves loopholes from the 2003 Guidance and fails to address critical
matters regarding its implementation, ultimately impeding Attorney General Eric Holder’s stated goal of
eliminating discriminatory policing and profiling “once and for all.” We urge you to make addressing these
concerns a priority so that your administration’s final policy and legacy truly upholds fair and equal treatment
for all.
Crafted under President George W. Bush and former Attorney General John Ashcroft, the 2003 Guidance
was an important step forward in clarifying the Department of Justice’s (“DOJ” or “the Department”)
position on racial profiling in law enforcement. Following the tragic events of September 11, 2001 and the
initiation of our military campaigns in Iraq and Afghanistan, President Bush and Attorney General Ashcroft
recognized that a federal directive was necessary in order to combat discriminatory law enforcement practices
at home. Unfortunately, the 2003 Guidance that resulted from their efforts failed to accomplish this goal
fully. Specifically, the Guidance failed to proscribe profiling on the basis of national origin or religion;
included loopholes allowing law enforcement to profile on national security and border integrity grounds; did
not expand the proscription on profiling to law enforcement surveillance activities; did not apply to
state and local law enforcement agencies that work with federal law enforcement or receive federal funding;
and failed to include enforcement mechanisms.
Considering the events of this past year, now, more than ever, it is vitally important for these shortcomings to
be addressed. The shooting deaths of Michael Brown in Ferguson, Missouri and Tamir Rice in Cleveland,
Ohio, and the death of Eric Garner in Staten Island, New York, all at the hands of local police officers, along
with the troubling pattern of unresolved cases of excessive use of force perpetuated by Customs and Border
Protection agents along the southern border, have spurred a national movement calling for an end to
discriminatory policing practices. The use of lethal force by police in Ferguson and New York City are
extreme examples of the type of racial profiling that has occurred in those cities during traffic and pedestrian
stops.1 Both you and Attorney General Holder have spoken candidly about your own personal experiences
with racial profiling. With the proliferation of new technologies and surveillance capabilities, state laws that
target specific communities, and federal programs that involve state and local law enforcement in civil
immigration enforcement, we are at a critical juncture in our nation’s history. We had hoped the new
Guidance would make clear once and for all that our government would not tolerate discriminatory policing
practices. But, unfortunately, there are still serious flaws with the new Guidance, as indicated below:
1. The new Guidance preserves the loopholes that allow for profiling at the airports and in vast border
regions by excluding Customs and Border Protection (“CBP”) and the Transportation Security
Administration (“TSA”) from its requirements. These loopholes allow federal agents to target and search
travelers solely because of their race, ethnicity, gender, national origin, religion, sexual orientation or gender
identity. The new Guidance also fails to prohibit the pervasive practice of singling out and stopping
individuals on suspected immigration violations for no reason other than baseless stereotypes.
2. The new Guidance effectively allows the Federal Bureau of Investigation (“FBI”) to continue its extensive
data-gathering and “mapping” of racial, ethnic, and religious communities, a technique FBI Director James
Comey recently admitted that the FBI uses.2 Racial and ethnic mapping involves collecting data on “racial
and ethnic oriented” neighborhoods, businesses, and places of worship to “map” and investigate those
communities. The FBI has conducted mapping programs in the Muslim, Latino, African-American, Russian,
and Chinese communities throughout the United States. This practice of gathering data on
communities based on race, ethnicity, religion, or any other protected category for law enforcement
and intelligence activities should be immediately discontinued. Justice also demands transparency for
affected communities, as well as further information about how the FBI’s racial and ethnic mapping
operation has been developed and deployed.3 We request that DOJ publicly disclose the maps that the FBI
produced, and explain how the FBI uses these maps in carrying out its law enforcement and intelligence
activities.
3. The new Guidance allows law enforcement to continue directing sources and informants to spy on
particular communities based solely upon their protected characteristics—e.g., race, ethnicity or
religion—regardless of any connection to criminal activity. This coercive practice allows for the
continued and discriminatory infiltration of First Amendment protected spaces such as mosques or other
houses of worship, and community organizations or events by FBI agents or informants so that they may
observe, take notes and collect information, all without evidence of criminal activity. Allowing these practices
to continue subjects entire racial, ethnic and religious communities to potential surveillance by law
enforcement, the chilling effect of which cannot be overstated. For example, because of the New York
Police Department’s (NYPD) Muslim spying program, many Muslims are afraid to attend mosques for fear of
being targeted by law enforcement informants and officers. DOJ should announce a policy clarifying that this
law enforcement practice violates the stated goals of the Guidance and end this discriminatory practice.
The FBI director even admitted the new guidelines will have no effect on agency
policies
Phelps, 14 (12/9/2014, Timothy M., “Comey says new profiling guidelines will have no effect on the FBI,”
http://www.latimes.com/nation/la-na-fbi-comey-profiling-20141209-story.html, JMP)
The new Justice Department guidelines governing profiling by federal law enforcement officers will have no
effect on FBI practices, its director, James B. Comey, said Tuesday.
On Monday, Comey’s boss, Atty. Gen. Eric H. Holder Jr., said the new guidelines were “a major and
important step forward to ensure effective policing by federal law enforcement officials.”
But at a press briefing Tuesday, Comey said that the FBI, the lead federal law enforcement agency, is already
in compliance with the new guidelines and strongly asserted that no changes were required.
The guidelines “don’t have any effect on the FBI,” he said
Asked whether the new guidance would change anything to FBI does now, Comey said, “No, nothing. It
doesn’t require any change to our policies or procedures.”
He said the FBI field manual for agents would not be changed because it was already in compliance with the
guidelines, which expand restrictions on racial and ethnic profiling to cover religion, national origin, sexual
orientation and gender identity.
He defended the FBI practice of “mapping” communities to identify neighborhoods by race,
religion or national origin. Civil rights leaders were critical Monday of the failure of the Justice Department
to curtail the practice.
“We need to be able to understand the communities we serve and protect,” Comey said. “When there is a
threat from outside the country, it makes sense to know who inside the country might be able to help law
enforcement.”
“It is about knowing the neighborhoods: what’s it like, where’s the industry, where are the businesses, are
there particular groups of folks who live in a particular area?”
The government is pressuring Muslim-Americans to become informants to conduct
surveillance to try and combat extremist recruiting
Glionna, 14 (11/3/2014, John M., “U.S. Muslim leaders say FBI pressuring people to become informants,”
http://www.latimes.com/nation/la-na-muslims-fbi-20141103-story.html, JMP)
Muslim leaders nationwide say the FBI is pressuring some Islamic community members and religious
leaders to spy on fellow Muslims as part of a government effort to combat extremist recruiting in the
U.S.
The campaign has intensified in recent weeks, with mosques in California, Texas, Minnesota, Ohio, Florida
and other states reporting unannounced visits by FBI agents, according to the Council on American-Islamic
Relations, or CAIR, the nation's largest Muslim civil rights and advocacy organization.
In a nationwide alert, the group urged mosque and community leaders to seek the advice of an attorney if
they are approached by the FBI for questioning. They worried that the civil rights of numerous imams were
being violated as the religious leaders were asked to meet with FBI agents, who then pressed them to inform
on members of their congregations.
“It’s happening all over the country," said Ibrahim Hooper, a Washington-based spokesman for CAIR.
“The agents are approaching these community leaders at mosques with basic questions that quickly turn into
something different: pressure to become informants.”
Leaders at several mosques in California and Minnesota contacted for comment said they were afraid to speak
out for fear of becoming a government target.
The FBI would not comment on the CAIR alert, but spokesman Paul Bresso said in an email that the agency
respected the rights of all citizens and “we value our partnerships with the Arab, Muslim and Sikh
communities as they are partners in our efforts to stem crime, violence and civil rights violations."
One agent said such visits were standard procedure. “It’s not unusual for us to go out and talk to, I don’t
want to call them at-risk folks, but people dealing with issues,” said the agent, who declined to give his name
because he was not authorized to talk about the matter.
Jennifer Wicks, an attorney who heads the civil rights department for CAIR, said she knew of no crimes
committed by FBI agents. “No one has been detained in any way or taken from one setting to another,” she
said.
She said the interrogation tactics depended on the agent and the situation.
“These visits aren’t based on people being suspected of doing anything wrong.
It’s because this is a Muslim community. That’s why people are being targeted,” Wicks said.
“However, the FBI's over-broad and coercive use of informants in mosques, reports of outreach meetings
being used for intelligence gathering and other acts of abuse demonstrate that community leaders should
engage legal professionals to ensure the protection of their rights and those of their congregations,” Wicks
said in a statement on the CAIR website.
Activists said the visits were tantamount to religious profiling.
“For us, the issue is one of civil rights,” Hooper said. “Too often these interactions are done in private and
people feel coerced. Because ISIS is a hot topic, they’re going to mosques. It’s all based on the round-up-theusual-suspects style of law enforcement.”
Federal officials are calling for new ways to fight what they see as the nation’s latest national security threat:
people indoctrinated by extremists returning to plan terrorist acts here. The Justice Department recently
unveiled a pilot program in Los Angeles, Boston and Minneapolis that enlists social and mental health
workers, religious leaders and police to thwart Islamist group recruiters.
Orlando, Fla., attorney Hassan Shibly said he had represented 33 clients this year who claimed they had been
pressured by the FBI to release information on their religious beliefs and practices. He said the number of
cases had risen dramatically in the last few weeks.
“In Orlando, they pressured one citizen who happened to be Muslim to spy on mosques, Islamic restaurants
and hookah lounges or they would throw him in jail,” he said. “In another case, they approached an imam
with pictures of a woman they claimed would testify of an affair unless he helped them. These are law-abiding
Muslims, not criminals.”
He has taken those and other cases to court, alleging the FBI was using illegal tactics to gain information.
Shibly said Muslims were targets because many didn't know their legal rights.
"The FBI thinks it can get away with bending the law," he said. "Many Muslims come from Third World
countries where such practices are common fare for the secret police. But in the U.S. you don’t expect such
blackmail, with threats of deportation or worse."
In several cases, Shibly said, imams were asked about their opinions on political affairs and other matters.
Agents return and tell the imams that informants have contradicted their previous statements. "They are
laying the groundwork for a charge of giving false information to a law enforcement officer. That’s the trick
to get them to cooperate,” he said.
This FBI surveillance without reasonable suspicion sends chills through Muslim
communities, deters cooperation with law enforcement and undermines anti-terror
efforts. This counter-terror strategy is being exported to other countries.
Shah, 14 --- legislative counsel at the ACLU’s Washington legislative office (7/21/2014, Naureen, “The
FBI’s counterterrorism sting operations are counterproductive; Feds sow mistrust and target the poor,
desperate and mentally ill,” http://america.aljazeera.com/opinions/2014/7/fbi-stingoperationscounterterrorismadeldaoud.html, JMP)
Adel Daoud is no Ferris Bueller.
A Chicago suburban teen, he couldn’t drive himself to the Jewel Osco grocery store down the street without
getting lost, let alone pull a Bueller and hoodwink his parents into letting him have the day off school. He is a
D student and forgetful in the extreme. “He’s not a person with a complete mind,” his mother told me.
Yet the FBI began targeting Daoud as a terrorist mastermind shortly after his 18th birthday. At the time the
FBI began its sting operation, Daoud wasn’t part of a terrorist cell, nor was any group recruiting him. He was,
though, on the Internet, looking for answers about Islam and jihad. At home and at his local mosque, the
Muslim teen was told that jihad was nonviolent: It meant supporting your family by being a good son. FBI
undercover employees, finding Daoud online, did not affirm that message. Instead, they worked with Daoud,
ultimately driving him to downtown Chicago to detonate a weapon of mass destruction outside a bar.
Chicago’s Muslim communities were stunned by the Daoud’s arrest in September 2012. For many, the first
question was why. Why target as a terrorist-in-waiting a teen who was plainly incapable of planning and
conducting a terrorist attack? The second question was one of fear: Will my child be the FBI’s next target?
As a report released today by Human Rights Watch and Columbia Law School’s Human Rights Institute
documents, the FBI’s tactics in some terrorism sting cases are not only abusive but counterproductive. They
instill fear of law enforcement instead of mutual trust. And they potentially divert FBI resources from actual
terrorism threats.
Sting operations are nothing new, but the FBI is using significantly more aggressive tactics in American
Muslim communities than it has in others. It is deploying informants and undercover FBI agents to mosques
and community centers around the country in what sometimes appear to be virtual fishing expeditions. In
some cases, the FBI has instructed informants to strike up conversations about jihad with anyone who will
listen.
These investigations appear to pick off the lowest-hanging fruit, including the mentally ill and the
poor, who are vulnerable to manipulation. In one case, the subject of “The Newburgh Sting,” an HBO
documentary premiering this week, an informant promised a 45-year-old African-American man $250,000 to
participate in a fake attack. After losing his job at Walmart, the man accepted the offer.
For every terrorism bust the FBI claims based on such tactics, there is a cost.
Deploying informants and conducting surveillance without reasonable
suspicion has sent chills through many American Muslim communities. Some
parents with whom we spoke feared the FBI might recruit their teenage kids to become informants on their
communities. Others said they feared that strangers in their mosques and community centers could be
undercover FBI agents or infiltrators, hunting for youth to entrap in fake terrorist plots.
This kind of fear — in any context and no matter its actual merit — is a recipe for bad policing, since
distrust of law enforcement can deter citizens from reporting a crime tip or fully cooperating in bona
fide crime investigations.
The government has racked up hundreds of convictions based on terrorism stings. Multiple studies have
found that nearly half of federal terrorism convictions since the 9/11 attacks resulted from informant-based
cases. Some may be lawful and justifiable, yet almost 30 percent of these convictions were sting operations in
which the informant played an active role in the underlying plot. In too many cases, the government, often
acting through informants, developed the fake terrorism plot, persuaded and sometimes pressured the
targeted individuals to participate and provided the resources to carry it out. The FBI’s wisdom in pursuing
these cases, rather than investigating threats and individuals who were actually operational, is questionable at
best.
Similarly questionable is the government’s expansive surveillance and collection of information about all
Americans, including American Muslims, which we continue to learn about through revelations from
National Security Agency whistleblower Edward Snowden. Rather than helping FBI analysts connect the
dots, the flood of data is impairing the FBI’s ability to properly assess and respond to threat
information it receives. While we can’t expect the FBI to prevent every terrorist attack, recent ones like the
Boston Marathon bombing show the need for a sober re-evaluation of the agency’s methods.
Unfortunately, the Justice Department and the FBI appear unwilling or unable to critically evaluate their track
record. Last week Attorney General Eric Holder urged U.S. allies to follow the FBI’s lead and adopt the
same counterterrorism sting tactics. Before the U.S. exports these terrorism tactics, it should reckon with
their costs.
Specifically, these concerns over surveillance are dissuading Muslim communities
from fully supporting Obama’s program to Counter Violent Extremism
Audi, 15 (4/20/2015, Tamara, “U.S. Muslim Community Divided Over White House Outreach Plan; Lawenforcement efforts to prevent radicalization provoke both support and suspicion,”
http://www.wsj.com/articles/u-s-muslim-community-divided-over-white-house-outreach-plan-1429555173,
JMP)
MISSION VIEJO, Calif.—On a recent Friday in a mosque on the edge of an office park here, congregants
filled rows of plastic chairs to hear community leaders discuss the role the White House hopes they will play
in a new government effort to fight terrorism.
Instead, what they got was a debate over the proposed law-enforcement outreach to Muslim groups through
community events, mentoring and youth programs, which are intended to prevent radicalization and identify
extremists. Some Muslim leaders argued the government’s plan unfairly casts suspicion on the entire Muslim
community, while others urged involvement as a way for Muslims to have a voice and safeguard their
communities.
“We’re being pushed into this law-enforcement framework that’s inappropriate,” said Todd Gallinger, a
representative of the Council on American Islamic Relations, or CAIR, in the mosque discussion. “This is
something we need to avoid.”
But Salam Al-Marayati, president of the Muslim Public Affairs Council, encouraged participation, saying,
“CVE is a tool.” He added that the community should think about how to “leverage CVE so that our
community is seen for what it is—that it is part of the solution and has nothing to do with the problem.”
The rift playing out in the Orange County mosque and elsewhere demonstrates the challenge the Obama
administration faces as it attempts to sell its plan, called Countering Violent Extremism, or CVE, to the
communities crucial to its success. The issue has gained potency with the rise of Islamic State, or ISIS, a
violent Islamist group aggressively recruiting young Westerners.
On Monday, the U.S. charged six Minnesota men in connection with attempts to join Islamic State, in a case
involving one of the largest groups of potential foreign fighters. Minneapolis, with the country’s largest
Somali immigrant population, is one of three pilot cities meant to test CVE programs before they are rolled
out on a larger scale. Federal officials said the test cities, which include Boston and Los Angeles, were chosen
because of strong existing relationships between the Muslim communities and law enforcement.
Government officials and supporters of the program say it isn’t a spy or intelligence-gathering mission.
They note it was developed with the input of Muslim leaders from across the country, with an emphasis on
mental health, social services and community-style policing, according to an administration official
The U.S. Council of Muslim Organizations, an umbrella group, said earlier this year that CVE singles out
Muslims for law-enforcement scrutiny, which it called “constitutionally questionable and morally
problematic.”
We have concerns about any program that might violate civil rights, and on the other side, we are very much
concerned about individuals falling into the trap of the wrong argument ISIS is putting out there to recruit
innocent young people,” said Oussama Jammal, secretary-general of the group. “We’re in a tough position.”
The CVE programs are tailored to specific community needs, administration officials say. For example, many
of the Somali immigrant Muslims in Minneapolis struggle with unemployment. Muslim communities in Los
Angeles are more economically and ethnically diverse, and new immigrants often have trouble finding social
and health services. In Boston, a college town that draws a diverse Muslim student population, the program
could include psychologists to work with young people.
Federal officials are meeting with Muslims groups across the country to discuss the program, the
administration official said.
Already, more than two dozen religious and civil-rights groups have publicly opposed or criticized CVE,
including the American Civil Liberties Union, CAIR, Muslim Advocates and New York University’s Brennan
Center for Justice, as well as some Muslim student associations and Muslim religious leaders. Some say they
fear that the plan may include surveillance of Muslims.
Despite the criticism, government officials say many Muslim communities have embraced the program, such
as in Denver and Detroit, especially in the wake of more high-profile prosecutions of young people from the
U.S. attempting to join Islamic State.
Hennepin County Sheriff Rich Stanek, whose county includes Minneapolis, spoke about his outreach efforts
at the White House summit on CVE earlier this year. He and others from his department attend Somali
community events several nights a week. His department also hired a Somali refugee to serve as ambassador
to the Somali community. Under CVE, Mr. Stanek said he hopes to expand that outreach with more
community liaisons to the Somali community.
“We’ve built trust and that’s paid off tremendously,” Mr. Stanek said, pointing to the arrests in Minnesota as
partly the result of information provided by community members. “This is what community outreach
progarms are about.”
“People are really worried about” ISIS recruitment, said an administration official. “So if Muslim-American
groups are concerned, that’s not the government singling them out. That’s the government responding to
their needs.”
Another administration official recalled that in meetings with Muslim leaders at the White House earlier this
year, President Barack Obama said that “there have been cases in the past that made the community more
mistrustful, and said that’s why it’s so important for the community to be more involved.”
“The core of this program is building healthy and resilient communities, promoting civic participation,” said
Joumana Silyan-Saba of the Los Angeles Human Relations Commission, who worked on L.A.’s CVE. Law
enforcement has a role, she said, but the program also calls for beefing up social services for immigrant
families.
That hasn’t been enough for some Muslims, who point to high-profile
instances of surveillance in the past decade, including a Federal Bureau of
Investigation informant in Orange County.
In the latter case, Craig Monteilh, a convicted check forger, said in court documents that the FBI hired him to
pose as a Muslim and spy on mosques in the area. The FBI said it used him as a “confidential human source,”
but didn’t detail his actions in court documents. An FBI spokeswoman said the FBI doesn’t target any
individual or group based on religion.
Metra Salem, a 36-year-old mother of three and the daughter of Afghan immigrants, said she supports the
Obama plan. “I want my kids to be part of this country. I’m tired of this victim-minority-group,
marginalization narrative,” she said.
Mohannad Malas, a member of the mosque’s board, said he hadn’t heard enough to come to conclusions.
His mosque regularly hosts visits from local law enforcement and city officials, he said, adding, “We have
nothing to hide.”
But Mr. Malas cited the visit years ago by an official from the FBI’s Los Angeles office. “He told us that he
thinks of our community as the solution, and after that visit, we felt part of the solution,” Mr. Malas said.
“Turns out, they were planting an informant [Mr. Monteilh].”
There is a direct relationship between the government’s coercive surveillance and the
willingness of Muslim Americans to cooperate with Homeland Security
Olson, 14 (11/14/2014, David, “Homeland Security chief touts cooperation with Muslims; But some
Muslim and civil-rights organizations say they still don’t trust the federal government and worry about
informants in mosques,” http://www.pe.com/articles/johnson-754183-meeting-muslims.html, JMP)
Some Southern California Muslim leaders Thursday left a meeting with U.S. Homeland Security Secretary Jeh
Johnson worried about what they view as continued government stigmatization of Muslims, while
others said they were optimistic about Johnson’s talk of cooperation and collaboration with their mosques
and communities in combating extremism.
The meeting at a Rowland Heights mosque was part of a three-day visit by Johnson to Southern California.
Today, he is scheduled to deliver congratulatory remarks during a ceremony at the Ontario Convention
Center in which about 1,000 immigrants will become citizens.
During a news conference Thursday outside the mosque, Johnson said the meeting with several dozen
Muslim leaders was “to build partnerships and build trust” and to “hear some of the issues and grievances
people in the Islamic community have” with, among other issues, passenger screening at airports.
Johnson called Islam a religion of peace and said he realized that only a tiny number of U.S. Muslims are
extremists. But he asked for Muslims’ help in detecting extremists who could be prone to violence, dissuading
them and, if necessary, contacting law enforcement.
“This is as much your homeland, your country, your public safety as anybody else’s,” Johnson said as he was
flanked by several participants in the meeting.
Corona’s Hussam Ayloush, executive director of the greater Los Angeles chapter of the Council on
American-Islamic Relations and one of the Muslim leaders with whom Johnson met, gave Johnson credit for
meeting with area Muslims.
But he said Johnson offered few details on DHS’ fledgling Countering Violent Extremism program and
worried that DHS would continue previous FBI practices of sending informants into mosques.
The FBI has repeatedly been accused of infiltrating mosques. One of the best-known alleged informants,
Craig Monteilh, said he was paid by the FBI to record conversations in Orange County mosques in 2006 and
2007. The FBI has said in the past that its investigations were based upon allegations of criminal activity,
while Ayloush and other civil-rights leaders said the infiltration of mosques were fishing expeditions that
sometimes involved trying to goad people into making extremist statements.
In September, an Ontario man and a Pomona man were convicted of conspiring to murder U.S. troops
overseas and other crimes after a paid FBI informant who was a convicted drug felon testified against them.
The men’s attorneys accused the informant of being a provocateur who entrapped their clients, and CAIR
expressed concern that the informant led the men into the alleged plot. Prosecutors said the men were
plotting an attack long before the informant started monitoring them.
Asked at the news conference whether DHS sends or would send informants into mosques without mosque
leaders’ knowledge, Johnson did not answer directly.
“There’s a distinction to be drawn between asking someone to be an informant and asking for public
participation ... to be on the lookout for potential acts of violence,” he said.
Ayloush said continuing distrust of the federal government among some Muslims makes it less likely
they will report suspicious activity.
“The more we marginalize a community and undermine the trust between a community and law
enforcement, the harder we make it to partner with law enforcement or report suspicious activities,” he said.
Failure to resolve the trust deficit caused by surveillance policy will undermine the
implementation of the CVE program --- it’s necessary to prevent U.S. youth from
joining ISIS and returning home to carry out terrorist attacks
Schmitt, 14 (10/5/2014, Eric, “U.S. Is Trying to Counter ISIS's Efforts to Lure Alienated Young
Muslims,” Lexis, JMP)
DUBLIN, Ohio -- In this central Ohio town, parents and community leaders are expressing growing fears
that their youths may succumb to the Islamic State's savvy social media appeal to join its fight on
battlefields in Iraq and Syria.
But when Homeland Security Secretary Jeh Johnson showed up recently at the Noor Islamic Cultural Center
here to offer a sympathetic ear and federal assistance, he faced a litany of grievances from a group of mostly
Muslim leaders and advocates.
They complained of humiliating border inspections by brusque federal agents, F.B.I. sting operations that
wrongly targeted Muslim citizens as terrorists and a foreign policy that leaves President Bashar al-Assad of
Syria in place as a magnet for extremists.
''Our relationship has to be built on trust, but the U.S. government hasn't given us very many
reasons to build up that trust,'' said Omar Saqr, 25, the cultural center's youth coordinator.
As the United States carries out yet another bombing campaign across two Islamic countries, the Obama
administration is redoubling its efforts to stanch the flow of radicalized young Muslim Americans traveling to
Syria to join the fight and potentially returning as well-trained militants to carry out attacks here.
American law enforcement and intelligence officials say more than 100 Americans have gone to Syria, or tried
to so far. That number of Americans seeking to join militants, while still small, was never seen during the two
major wars fought in Afghanistan and Iraq after the terror attacks of Sept. 11, 2001.
The threat of homegrown radicals like the Boston Marathon bombers has prompted the F.B.I., the
Department of Homeland Security and other federal agencies to try to forge ties with community leaders and
police departments as a front line in the war against a sophisticated online propaganda and recruiting effort
mounted by the Islamic State.
But as administration officials attempt to accelerate their own lobbying campaign, they have found that
security rules put in place to defend America from a terror attack have played a role in alienating
young Muslim men and women -- the exact group being courted by the Islamic State, also known as ISIS
or ISIL.
Still, community leaders are so fearful their youths may follow the Islamic State's propaganda that, during a
90-minute meeting with more than 60 local leaders, police officers and advocates, they pressed Mr. Johnson
to prove the government is sincere in its offers of help.
Lila Al Sibai, a 28-year-old mother of three young children and a member of the cultural center's board, asked
for a $4 million federal grant to build a new gym and classrooms for the facility. ''We need to have more
activities for our youth,'' she said after the meeting in this suburb of Columbus, which is the home of the
country's second-largest Somali-American community, behind only Minneapolis.
Mr. Saqr, the youth coordinator, suggested that Mr. Johnson's agency offer a prize to the best countermessage
to the Islamic State's propaganda.
''Our youth are being hoodwinked and hijacked by their rhetoric,'' he said. ''We cannot just say ISIS is bad.
That's not an option. We need an outlet.''
And Hossam Musa, 34, the imam of the cultural center, which draws 4,000 to 5,000 people for Friday Prayer
each week, proposed that the Department of Homeland Security hire authoritative Islamic scholars to help
combat the Islamic State's violent narrative.
''How do we beat ISIL? What's our response to a young man wowed by their message? You beat them at
their own game,'' he said.
Mr. Johnson, the nation's top homeland security official since December, was here as part of a community
outreach tour that so far this year has taken him to the Chicago area, and will land him in Los Angeles, New
York and other cities in the coming months.
His aim is to build partnerships between the federal government and the local law enforcement, educational
and community groups that are better positioned to detect potential militants in their midst and to derail
those young men and women from the path of radicalization before they turn violent.
These efforts have been underway since the Sept. 11 attacks, but have often failed to gain traction,
government officials acknowledge.
''We can't allow youth to fall prey to ISIL's ideology,'' Mr. Johnson said. ''We need to provide them an
alternative to rechannel their hopes and rechannel their passions.''
It is a clarion call also sounded by the F.B.I., the Justice Department and the National Counterterrorism
Center, which together with Mr. Johnson's agency recently started pilot programs in Boston, Los Angeles and
Minneapolis.
The goal is to reach out to schools, health care providers and community groups to get their help in
monitoring and deterring the radicalization of young people who may be susceptible to recruitment -- like the
two brothers who carried out the Boston Marathon bombings, which killed four people last year.
The White House is sponsoring a meeting later this fall with specialists from across the country.
But even former top counterterrorism officials say the administration faces an uphill battle.
American officials have been able to identify Americans fighting for the Islamic State or other Syrian rebel
groups based on intelligence gathered from travel records, family members, intercepted electronic
communications, social media postings and surveillance of Americans overseas who had expressed interest in
going to Syria, counterterrorism officials said.
But efforts at countering violent extremism, especially at home, ''have lagged badly behind other
counterterrorism pillars,'' said Michael Leiter, a former director of the National Counterterrorism Center. ''It
is heartening to see the administration attempt to invigorate those efforts, but it is unfortunate that it has,
despite the efforts of many, been so long in coming.''
Government supporters question whether funds will be available to sustain these programs. ''The
administration has the right framework for doing this, but long-term success will depend on sustainable
resourcing to help local government, communities and law enforcement build initiatives that can have
impact,'' said Quintan Wiktorowicz, a former senior White House aide who was one of the principal
architects of the current strategy.
That strategy here at home, called countering violent extremism, has proved much more difficult for
American officials to master than the ability of the Pentagon and spy agencies to identify, track, capture and,
if necessary, kill terrorists overseas.
Among its efforts, the Department of Homeland Security provides training to help state and local law
enforcement officials in identifying and countering the threat, including indicators of violent extremism and
''lone wolf'' attacks.
The department awarded the International Association of Chiefs of Police a $700,000 grant last year to
develop training on how to prevent, respond to and recover from acts of terrorism.
The department has also sponsored exercises in seven cities, including Houston, Seattle, and Durham, N.C.,
to improve communication between local law enforcement and communities and to share ideas on how best
to build community resilience against violent extremism. ''We're raising awareness,'' said David Gersten, who
was recently named the department's coordinator for the overall effort.
Carter M. Stewart, the United States attorney in the Columbus area, said he and his staff meet regularly with
Somali-American and other community leaders.
But Muslim advocates say there is deep suspicion that, despite all the meetings and the talk of outreach, the
government's main goal is to recruit informants to root out suspected terrorists.
''I don't know how we can have a partnership with the same government that spies on you,'' said
Linda Sarsour, advocacy director for the National Network for Arab American Communities.
Indeed, those who met with Mr. Johnson were conflicted, some saying they were pleasantly surprised he had
traveled here to put a face on the federal effort, but clearly embittered by their past experiences with the
government.
Now is critical --- a wave of attacks is possible and current surveillance policies will
fail. Only ensuring the implementation of the CVE strategy can prevent them.
Cohen & Farmer, 15 --- *former Acting Undersecretary for Intelligence and Analysis and CounterTerrorism coordinator at the U.S. Department of Homeland Security, AND **former senior counsel for the
9/11 Commission (6/19/2015, John & John --- both serve on the faculty of Rutgers University’s Faith-Based
Communities Security Program at the Institute for Emergency Preparedness and Homeland Security, “As
terrorist threat changes, so should ways we combat it,” http://thehill.com/blogs/congress-blog/homelandsecurity/245478-as-terrorist-threat-changes-so-should-ways-we-combat-it, JMP)
This week's calls by ISIS on social media for lone-wolf terrorist attacks outside of Syria and Iraq raises the
specter of a wave of attacks like those law enforcement has confronted in Paris, Copenhagen, Dallas, and
Boston. This threat coincides with elevated concern by the FBI and also raises the question of whether law
enforcement's tactics have evolved to meet the transformed threat posed by people who are inspired by
organizations like al Qaeda or ISIS but who act independently of them. Such threats are by nature more
difficult to detect or deter and are, increasingly, directed at law enforcement itself.
The threat to our nation by independent, violent extremists is the newest element to an always evolving and
ever-changing threat environment, and an element our traditional counter-terrorism capabilities may be
ill suited to address.
Fourteen years after September 11th, much has changed to keep our country safer. We now have a robust
counter-terrorism infrastructure weaving together our nation’s intelligence, military and law enforcement
capabilities. But it is a system designed to prevent attacks by individuals or groups acting under the control of
designated foreign terrorist groups. This threat has not gone away as groups like ISIS and al-Qaeda still pose a
significant risk to the US. But our infrastructure was not intended to detect and mitigate the threat
posed by individuals living in the U.S. who are inspired by extremist ideology but who do not have
an affiliation with foreign terrorist organizations. These individuals find resonance in the messages they
view online and via sophisticated social media campaigns employed by groups like ISIS, and become willing
to carry out attacks without ever interacting with other members of a terrorist group.
In August 2011, the Obama administration released the country’s first national strategy to prevent violent
extremism domestically. The countering violent extremism (CVE) strategy focused on the principles that
“(1) communities provide the solution to violent extremism; and (2) CVE efforts are best pursued at the local
level, tailored to local dynamics, where local officials continue to build relationships within their communities
through established community policing and community outreach mechanisms.”
Last summer, Rutgers University initiated a project examining mass casualty attacks in Europe and the U.S.
for the purposes of identifying effective prevention strategies. Through this effort we have worked closely
with law enforcement officials, faith leaders, mental health professionals and others. We have concluded that
while the language of the national strategy is sound, we believe that in practice, we have strayed from the
intended approach and it is time to re-focus the implementation of the president’s strategy.
CVE means more than outreach to the Arab-American and Muslim communities, which senior leaders at the
Department of Homeland Security and other agencies have been conducting. Roundtables do not solve
problems. If the discussions do not include concrete and tangible ways that authorities and community
members can work together to prevent violence in a given jurisdiction, then we cannot mitigate this threat.
Addressing this threat also means more than "countering the narrative." We need to better understand why
an increasing number of people from European nations, Canada and the U.S. are inspired by ISIS-like
narratives and are willing to join the ideological cause and carry out a violent attack in furtherance of this
ideology.
The federal government simply does not have the resources to conduct surveillance and investigate
the expanding number of individuals who derive inspiration from groups like ISIS. More then ever,
we must empower local efforts to strengthen critical partnerships between law enforcement, the communities
they serve and others such as mental health professionals, educators, and faith leaders. We must create a
holistic and collaborative way to detect, assess and intervene in situations where individuals may exhibit the
behaviors and indicators of violent extremism as to prevent a violent attack.
Aggressive law enforcement remains necessary to counter violent extremism, but it alone is no longer
sufficient. We must adopt an approach to CVE that recognizes the limitations of "detect and arrest" in the
new threat environment; traditional law enforcement tactics must be supplemented by approaches that
engage local communities and civil society to identify incipient at risk individuals and to develop other, earlier
forms of intervention.
The plan will rebuild relations with Muslim communities and alleviate the fear
surrounding terrorism investigations involving informants. The intel that is collected
from current surveillance strategies is useless --- the FBI uses this policy to
manufacture terror plots.
Stabile, 14 --- J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily,
California Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and
the S-6 Visa,” 102 Calif. L. Rev. 235, Lexis, JMP)
C. Terrorism Informants' Presence in Muslim and Middle Eastern Communities Damages Intelligence
Efforts
Many argue that tactics like recruiting informants through immigration law and surveilling mosques are
necessary to prevent terrorist attacks, and that national security must be the nation's top priority, whatever the
cost. These arguments fail to recognize that when informants lack a specific target and direction, the
gathered intelligence does not necessarily enhance the nation's security. Instead, the FBI - with little
concern for the actual gravity of the original threat posed by the suspect - creates an elaborate terrorism plot
for the surveillance targets to participate in. n100 After 9/11, many individuals who showed no signs of
violence or extremism prior to involvement with informants and government-created plots have been
prosecuted under terrorism charges. n101 Until the informants provided the means, these individuals did not
have the finances or the proper connections to conceive and carry out these terrorism plans. Although
orchestrating these plots makes the FBI's preventative stance appear successful in the public eye, it diverts law
enforcement resources from focusing on real targets.
Moreover, Professor David A. Harris claims that "the unregulated use of informants in mosques and other
religious and cultural settings can also do great damage because it poses the risk of cutting off our best
possible source of intelligence: the voluntary, cooperative relationships that have developed between
law enforcement and Muslim communities." n102 Having community members report suspicious
information to the FBI may be a more effective way of obtaining reliable terrorism intelligence from
these communities. n103 For example, in the few domestic terrorist prosecutions where a terrorist attack
plan actually existed prior to informant involvement, community members who had noticed something amiss
were the first to alert the FBI and identify the subjects. n104 In fact, since 9/11, community members have
assisted law enforcement in stopping potential terrorism plots in a number of cases. n105 A [*252] recent
example, the case of Umar Farouk Abdulmutallab, the "Underwear Bomber," shows that the attempted
bombing could have been prevented had law enforcement heeded the warnings that Abdulmutallab's father
gave the CIA at the U.S. embassy in Nigeria. n106 As the president of the San Francisco Board of
Supervisors and former criminal prosecutor, David Chiu testified regarding the Arab, Middle Eastern,
Muslim, and South Asian communities in San Francisco: "Without that level of cooperation, that level of
trust, everything falls apart ... . Surveillance only serves to continue to drive wedges when cooperation is
what is needed most." n10
Analogous to the way informants in mosques target vulnerable individuals despite these individuals' lack of
connection to terrorist organizations or predilection for extremism, a 2011 study by the Migration Policy
Institute demonstrates a similar phenomenon within other communities. n108 The 287(g) initiative, named
after the section of the Immigration and Nationality Act that authorized it, allows ICE to enter into
memorandums of agreement with state and local law enforcement agencies, empowering these agencies to
directly enforce immigration laws. n109 However, the study found that half of the jurisdictions using 287(g)
did not direct their enforcement efforts toward serious or violent offenders, n110 as the 287(g) initiative had
originally envisioned. n111 Instead, these jurisdictions sought to deport as many offenders as possible
regardless of the severity of the crime. n112
Study respondents "believe that 287(g) program activities affect the community in distinct and adverse ways,
including by causing declines in Latino immigrant populations, [creating] avoid[ance of] public places by these
populations, changing [] driving behavior, [creating] fear and mistrust of the police and other authorities, and
reducing crime reporting." n113 These behaviors were more acute in jurisdictions with nontargeted
enforcement, [*253] where any offense could constitute grounds for deportation. n114 Just as Latino
immigrant communities became distrustful of law enforcement and withdrew from crime reporting when
threatened with deportation, so did Muslim and Middle Eastern communities when threatened with FBI
surveillance of communal spaces. As the study notes, "these operations can generate widespread distrust of
police. Such distrust in turn prompts immigrants to change their behavior to avoid contact with police and
other authorities." n115
In order to procure accurate intelligence from any community, a relationship of trust and respect
between law enforcement and the community must exist. n116 However, from the mass arrest and
detention of Muslims shortly after 9/11 n117 to the ongoing allegations of ethnic and religious profiling
today, n118 the federal government has made serious errors in dealing with Muslim and Middle Eastern
communities since 9/11. While the government recognizes that community policing n119 is the best way to
obtain reliable intelligence, n120 the
FBI is caught between two contradictory strategies
and must choose between sending informants into mosques without
reasonable suspicion, and gaining the trust and cooperation of Muslim and
Middle Eastern communities. As one congregant in a surveilled mosque observed, "The FBI
wants to treat the Muslim community as a partner while investigating us behind our backs ... . They can't have
it both ways." n121 While it is unrealistic to think that the FBI will stop using informants in these
communities, a more restrained use of informants based on reasonable suspicion
of wrongdoing would mitigate perceived damages to community relations.
Requiring the FBI to have preexisting reasonable suspicion would add
credibility to the agency and alleviate some of the fear surrounding terrorism
investigations involving informants.
[*254] By virtue of their connections and daily interactions, those active in a particular community are in the
best position to notice when others in the community act strangely. Unlike informants who may be new to
the community and who other members may view with suspicion, well-established community members
may already know what is going on in their community and can more accurately spot genuine
threats.
Boston demonstrates that a strong community based strategy is essential for effective
counterterrorism --- we control the strongest internal link
Quinan, Lawyer and criminologist, AND Rameriz, 13 (6/24/2013, Tara Lai Quinlan and Deborah
Ramirez, “The Boston Tragedy Reveals the Need for Community-Based Counterterrorism Strategies,”
http://www.huffingtonpost.com/deborah-ramirez/counterterrorism-strategy-bostonbombing_b_3148235.html, JMP)
As part of the Boston community, we share the sadness of last week's Boston Marathon bombings. Thanks
to excellent police work and public cooperation, Tamerlan and Dzokhar Tsarnaev were identified as the
perpetrators and are reportedly unaffiliated with any larger terrorist network. But going forward, how can law
enforcement increase its ability to identify would-be terrorists operating below the radar?
Experts point out that many terrorist groups like al Qaeda are increasingly decentralized, making
them difficult to monitor and infiltrate. Experts also highlight the limited ability of the federal
counterterrorism infrastructure to identify independent terrorist cells and lone wolf terrorists; the difficulty of
identifying readers of extremist propaganda; and, most importantly, the challenges determining which
individuals will turn to violent action. In this case, the FBI questioned Tamerlan Tsarnaev in 2011, possibly
about his interest in extremist Internet propaganda or ties to Chechnya, but apparently lacked sufficient
information to detain him further. With this in mind, how can law enforcement gain the intelligence
necessarily to stop potential terrorists before they act?
Congressman Peter King, Chairman of the House Subcommittee on Counterterrorism and Intelligence, has
one proposal: he has renewed calls for increased surveillance of all Muslim communities. King asserts that
this is the same practice used against Irish and Italian gangsters involved in organized crime. But that is
simply not the case. Monitoring individuals suspected of involvement in organized crime is readily
distinguishable from surveilling millions of American Muslims absent any reasonable suspicion
criminal wrongdoing.
Moreover, there is now significant consensus among most intelligence experts that profiling based on
religious affiliation is ineffective because it is too widely shared a characteristic to be a shortcut for identifying
those who might engage in violence. Furthermore, as civil liberties experts have long argued, profiling based
on religion unnecessarily alienates communities that could potentially serve as important partners for law
enforcement in countering terrorism.
Rather than support Congressman King's approach, we believe the Boston tragedy offers lessons to improve
our national security infrastructure but remain more consistent with our democratic values of justice, fairness,
and human decency.
In this case, it is now emerging from friends and associates of the Tsarnaevs that, upon reflection, they sensed
something might have been amiss before the attacks. For example, Tamerlan Tsarnaev reportedly twice
disrupted services at a local mosque. And there may be an additional trail of unusual speech or behavior -refusing to see friends or family, posting violent messages on the Internet, contemplating death -- that would
have alerted family, friends or community members to something being out of place. But whom could they
have alerted to these concerns? Could they have confidence that information shared with law enforcement
would be discreetly and professionally handled? Could they be assured that police would not overreact, but
would instead rationally determine if there were genuine issues requiring further investigation? For law
enforcement to benefit from voluntary community intelligence they must
create trust relationships allowing community members to articulate concerns
that may or may not indicate an intention to engage in violence. This also means
incorporating collaborative, long-term community-police partnerships into the national counterterrorism
strategy.
But partnerships are not easy to build. Partnerships are not achieved through coercion, force, or infiltration.
They require voluntary engagement with communities through mutual trust and cooperation. This means
winning the hearts and minds of communities so they become real partners in counterterrorism
efforts and work collaboratively to address problems of common concern.
Partnerships have already been piloted in domestic counterterrorism efforts, and have been used for years in
cities like Dearborn, Los Angeles, and London. And beyond the counterterrorism context, partnerships have
achieved success in reducing gang violence in cities like Boston and Glasgow, and drugs sales in places like
High Point, North Carolina. It is by relying on common sense that the national security infrastructure can be
expanded to address some of its current limitations.
It is true that not all terrorist acts in the United States can be avoided, and unfortunately more will succeed.
But by incorporating voluntary, partnership-based community intelligence gathering practices into our
national security infrastructure, we can improve our chances of preventing some attacks.
Terrorist attacks will escalate and kills billions
Myhrvold 2014 (Nathan P [chief executive and founder of Intellectual Ventures and a former chief
technology officer at Microsoft]; Strategic Terrorism: A Call to Action;
cco.dodlive.mil/files/2014/04/Strategic_Terrorism_corrected_II.pdf; kdf)
Technology contains no inherent moral directive—it empowers people, whatever their intent, good or evil.
This has always been true: when bronze implements supplanted those made of stone, the ancient world got
scythes and awls, but also swords and battle-axes. The novelty of our present situation is that modern
technology can provide small groups of people with much greater lethality than ever before. We now have to
worry that private parties might gain access to weapons that are as destructive as—or possibly even more
destructive than— those held by any nation-state. A handful of people, perhaps even a single individual,
could have the ability to kill millions or even billions. Indeed, it is possible, from a technological
standpoint, to kill every man, woman, and child on earth. The gravity of the situation is so extreme that
getting the concept across without seeming silly or alarmist is challenging. Just thinking about the subject with
any degree of seriousness numbs the mind. The goal of this essay is to present the case for making the needed
changes before such a catastrophe occurs. The issues described here are too important to ignore. Failing
nation-states—like North Korea—which possess nuclear weapons potentially pose a nuclear threat. Each
new entrant to the nuclear club increases the possibility this will happen, but this problem is an old one, and
one that existing diplomatic and military structures aim to manage. The newer and less understood danger
arises from the increasing likelihood that stateless groups, bent on terrorism, will gain access to nuclear
weapons, most likely by theft from a nation-state. Should this happen, the danger we now perceive to be
coming from rogue states will pale in comparison. The ultimate response to a nuclear attack is a nuclear
counterattack. Nation states have an address, and they know that we will retaliate in kind. Stateless groups
are much more difficult to find which makes a nuclear counterattack virtually impossible. As a result, they can
strike without fear of overwhelming retaliation, and thus they wield much more effective destructive power.
Indeed, in many cases the fundamental equation of retaliation has become reversed. Terrorists often hope to
provoke reprisal attacks on their own people, swaying popular opinion in their favor. The aftermath of 9/11
is a case in point. While it seems likely that Osama bin Laden and his henchmen hoped for a massive
overreaction from the United States, it is unlikely his Taliban hosts anticipated the U.S. would go so far as to
invade Afghanistan. Yes, al-Qaeda lost its host state and some personnel. The damage slowed the
organization down but did not destroy it. Instead, the stateless al-Qaeda survived and adapted. The United
States can claim some success against al-Qaeda in the years since 9/11, but it has hardly delivered a
deathblow. Eventually, the world will recognize that stateless groups are more powerful than nation-states
because terrorists can wield weapons and mount assaults that no nationstate would dare to attempt. So far,
they have limited themselves to dramatic tactical terrorism: events such as 9/11, the butchering of Russian
schoolchildren, decapitations broadcast over the internet, and bombings in major cities. Strategic objectives
cannot be far behind.
1ac Plan + Solvency
Plan: The United States federal government should prohibit its domestic surveillance
based on race, religion, ethnicity, national origin, or First-Amendment-protected
activity in the absence of at least reasonable suspicion of criminal activity, except in
situations involving a serious risk of imminent violence, and require the least
restrictive means be employed when conducting criminal intelligence investigations.
The plan would eliminate virtually all past abuses and focus resources on meaningful
terror investigations
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
C. Weighing the Associational and Government Interests in Political Surveillance
When assessing whether political surveillance is warranted, the need for political surveillance should be
weighed against the associational harms likely to occur. The NAACP Court's requirement of preserving group
privacy when revelation of identity is likely to cause significant harm, in conjunction with the Dale Court's
deference to groups' own definitions of what would seriously harm their message, creates a strong
counterbalance to the government's need to ferret out terrorists, requiring restraints on investigations
lacking a reasonable basis.
1. Compelling State Interests and the Reasonable Suspicion Presumption
In the political surveillance context, the application of balancing should result in a threshold presumption: a
particular situation will be presumed not to involve a sufficiently compelling state interest if there is no
reasonable suspicion of criminal activity before a full investigation of First Amendment activity is
conducted. n221 Criminal activity should be defined to exclude minor offenses such [*662] as violations of
municipal ordinances, technical misdemeanors - such as minor traffic code offenses - or technical
immigration offenses. n222 If there is no indication of unlawful activity, full investigations are not permitted;
the presumption is irrebuttable, although I also propose an emergency exception.
This standard is an appropriate alternative to political or religious profiling, as it permits legitimate law
enforcement while disallowing investigations based purely on politics, which contravene the First
Amendment. Its deployment would eliminate virtually all of the abuses that have occurred in the past,
as detailed in Section I, supra. At the same time, terrorism investigations that focus on meaningful
evidence of terrorism can proceed unimpeded.
This presumption also represents a conclusion that political surveillance will, on balance, be harmful and
intrusive with an insignificant likelihood of gain in useful intelligence if the initial evidentiary standard is not
met. n223 Stated differently, the general compelling state interest in investigating terrorism does not exist
sufficiently in a particular case when evidence of criminality is lacking; mere suspicion or political profiling
cannot justify intrusions into a group's private affairs. Thus, the generalized compelling need to uncover
terrorist activities does not constitute a sufficient reason to surveil a particular mosque unless there
is a reasonable suspicion of criminality at that particular mosque, such as that the imam preaches
extremist doctrine and raises funds for what appears to be an affiliate of a terrorist organization. n224 It is
not acceptable to investigate and compile dossiers on all mosques holding radical views, even if the
surveillance is limited to mosques whose members come from countries that have produced terrorists, such
as Saudi Arabia. n225
The standard of reasonable suspicion for political surveillance is similar to, and borrowed from, the Fourth
Amendment standard employed in criminal [*663] procedure n226 to determine the constitutionality of a
stop-and-frisk situation. I adopt it here because it provides a suitable delineation point between political
surveillance and legitimate law enforcement. In order for a stop-and-frisk investigation to be lawful, a police
officer must "reasonably ... conclude in light of his experience that criminal activity may be afoot" n227 and
"point to specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant" a search. n228 Recognizing the public safety interest in thwarting crimes before they
occur, this standard is lower than the probable cause standard required for a police officer to actually make an
arrest. n229
What constitutes reasonable suspicion in a particular situation depends upon "whether a reasonably prudent
[person] in the circumstances would be warranted in the belief that his safety or that of others was in danger."
n230 While this is a somewhat nebulous determination, reasonable suspicion never exists
based on mere "hunches" or general suspicion. n231 Rather, police "must have a
particularized and objective basis for suspecting [that] the particular person" being investigated has
committed or plans to commit a crime. n232
In a First Amendment context, the standard should not be interpreted identically to the reasonable
suspicion standard employed in a pure Fourth Amendment situation where no expressive activity is
involved. Courts have developed a number of "special needs" exceptions to the pure Fourth Amendment
[*664] standard. n233 Those exceptions must be limited where First Amendment rights are implicated,
because most courts likely would consider prevention of terrorism a "special need" in situations not involving
First Amendment expression. In order to preserve fragile First Amendment rights, the scope of the
exceptions should be confined.
Further, even if the Fourth Amendment's special needs doctrine applies, the existence of a special need is not
always dispositive. In some respects, this situation is analogous to that in Ferguson v. City of Charleston,
n234 one of the Supreme Court's most recent pronouncements on the special needs exception. In that case,
the Court balanced the state interest in conducting drug testing on pregnant women to prevent fetal drug
abuse against the women's interest in avoiding dissemination of personal - and potentially incriminating information to law enforcement. Striking down the drug testing policy, the Court held it unconstitutional
because "the gravity of the threat alone cannot be dispositive of questions concerning what means law
enforcement officers may employ to pursue a [*665] given purpose." n235 A policy designed to obtain
information for criminal prosecution by means of nonconsensual drug-testing is draconian. Analogously, the
fundamental right to engage in First Amendment-based association should override the State's interest in
having free rein to monitor all group activity whenever any suspicion of terrorism arises. Given the risk of
misuse of religious and political information, as well as of disruption of organizational functioning,
the end does not justify the means. n236
There is ample precedent for adopting a reasonable suspicion of criminality standard for political surveillance.
This standard remains as a requirement for police departments accepting federal aid. n237 Its substantial
equivalent was successfully employed in the FBI's domestic surveillance guidelines for over twenty-five years.
n238 It was also incorporated into the Chicago Red Squad consent decree. n239 The Church Committee
endorsed the reasonable suspicion standard as a predicate for terrorism investigations in 1976. n240 Notably,
it was recently adopted in the Denver police spying consent decree. n241 And it was enacted in a Seattle
ordinance. n242 Other political surveillance litigation was not as [*666] successful. n243 However, the Dale
Court's affirmation of a robust right of association strengthens and reinforces those First Amendment
arguments previously available.
Additionally, reasonable suspicion is a relatively lenient evidentiary standard that allows legitimate law
enforcement activity. n244 Absent even this indicia of crime, it is difficult to imagine - outside of an
imminent threat of serious violence - how the government could present a state interest sufficiently
compelling to ever outweigh harm to First Amendment rights. A lower standard would unduly interfere with
the integrity of associations and contravene the Supreme Court's many pronouncements concerning the
centrality of associational rights to preservation of the First Amendment. n245 And the standard does not
apply at all to investigations not based on First Amendment conduct, such as investigation of an individual
because of his purchase of explosives.
Indeed, one could readily question whether the reasonable suspicion standard is sufficiently high to deter
excessive, unnecessary surveillance. But the need to investigate terrorism where evidence of crime exists
does not permit imposition of a higher standard, such as probable cause. n246 The purpose of the
investigation is to obtain probable cause. That standard is the result of an investigation, rather than its
predicate.
While the reasonable suspicion standard is a relatively low threshold, it is effective. The history of political
surveillance reveals that almost all of the abuses could have been avoided had a reasonable suspicion
threshold been observed. n247 Requiring reasonable, articulable evidence of crime prevents investigations
based [*667] on pure politics, mere whim, or baseless suspicion. n248 Its use should practically
eliminate political profiling.
In opposition to this standard, Attorney General Ashcroft argues that only an investigation can uncover
evidence, and that a standard requiring prior evidence therefore undermines law enforcement by prohibiting
the very process that compiles relevant evidence in the first place. n249 His logic is superficially appealing,
but ultimately unpersuasive; in reality, surveillance is only conducted when a reason or suspicion triggers it.
Resource limitations prevent either random or total surveillance; thus, investigations are begun for a reason.
Historically, illegitimate reasons such as dissident political views have frequently triggered investigations. n250
By contrast, this standard requires that the inevitable triggering reason must reasonably relate to criminal
behavior.
[*668] Finally, in certain circumstances where the need is exceptionally compelling, brief preliminary
inquiries using a lower threshold may be conducted. True terrorist emergencies may occasionally necessitate
immediate investigation of First Amendment conduct with less than an individualized reasonable suspicion of
crime. n251 I propose the standard recommended by the Church Committee: "The FBI should be permitted
to conduct a preliminary preventive intelligence investigation ... where it has a specific allegation or specific or
substantiated information that the [subject(s)] will soon engage in terrorist activity." n252 Where the First
Amendment is implicated, exceptions to the reasonable suspicion threshold should be limited to
situations involving a serious risk of imminent violence, to avoid swallowing the reasonable suspicion
threshold with an exception invoked any time an officer suspects terrorism. n253 The need to protect First
Amendment activity requires the qualification, as well as durational limits and approval by high-ranking
personnel. n254
[*669] Advocacy of specific terrorist violence in the U.S. could meet the terrorist emergency definition in
some situations and lead to a preliminary inquiry, but only to determine if the advocacy constitutes a real
threat. To hold otherwise would disable law enforcement from dealing with the likely prospect of severe and
imminent danger solely because First Amendment activity is involved. It is important, however, that this
exception be limited by additional restrictions to ensure that the emergency authority is not misused. For
instance, use of infiltrators or electronic surveillance could be prohibited. n255 The underlying principle is
that the intrusiveness of the inquiry must be proportional to the threat presented.
Attorney General Ashcroft's objection to a reasonable suspicion predicate arises against the backdrop of the
larger shift in the FBI's mission from investigation of crime to prevention of terrorism. n256 Writ large, the
claim can be restated as an objection to transferring a standard born of a policing model that focuses on
gathering evidence of a completed - or ongoing - crime to a context that requires preventive investigation
before a terrorist act occurs. n257 Is a standard adopted in a street-crime context really suitable for the new
era of global terrorism? Might not an intelligence-gathering model be more appropriate?
This objection is not warranted, however, because the reasonable suspicion standard can be incorporated into
a policing model that focuses on collecting intelligence to prevent ongoing or future crimes. Although it arose
in a stop-and-frisk case, its application is not limited to that context, as the Church Committee recognized in
1976. n258 Terrorist organizations are criminal enterprises. [*670] The purpose of their existence is to
commit politically motivated crimes; thus, their criminal conduct is ongoing. And even if a suspected terrorist
cell is involved solely in planning or supporting a future crime - such as an act of domestic terrorism - the
reasonable suspicion standard allows investigation of conspiracies in the planning stage. n259 For instance, a
reasonable suspicion of conspiracy to commit terrorist acts would exist when the suspects are affiliated with a
group that espouses jihad against anti-Muslim aggressors and one of them purchases materials that could be
used to make bombs. n260 Thus, the reasonable suspicion requirement permits the
government to investigate members of a terrorist organization early enough to
prevent terrorist attacks. n261 What it does not allow is investigations based on political or religious
beliefs rather than apparently unlawful behavior.
We should not abandon a proven standard that protects the constitutional rights of U.S. persons in domestic
surveillance contexts because intelligence-gathering may also be involved. The reasonable suspicion standard
merely mandates a link between the investigation and crime, including ongoing or imminent crimes. Because
the scope of criminal statutes addressing terrorism is broad, it is likely that evidence of crime will exist when it
is prudent to conduct surveillance of potential criminal activity. n262 For example, a reasonable suspicion
[*671] of crime exists to investigate a suspect when he claims the September 11 attacks were justified and
holds a commercial drivers license for hazardous materials.
The reasonable suspicion standard does not, however, give carte blanche to investigators to conduct
surveillance of the suspect's associates or groups to which he or she belongs. In order to avoid overly broad
investigations, the subject's associates cannot be fully and independently investigated without a reasonable
suspicion that they are also involved in crime. Because groups themselves have a right to associational
privacy, n263 an investigation of an individual group member cannot expand (beyond a brief initial inquiry if
the situation qualifies as an emergency) to cover the entire group unless the individual is in a sufficiently high
leadership position to act as the association's alter ego, or unless an initial inquiry reveals evidence of the
group's involvement in crime. n264 Having an institutionalized procedure for approving surveillance
under the reasonable suspicion standard also helps ensure that officers do not make erroneous ad
hoc decisions. n265
The standard also does not permit political profiling, since a person or group's political beliefs - other than
specific advocacy of crime - do not in themselves create a reasonable suspicion. For instance, a general
endorsement of violent jihad in defense of Muslim lands is abstract advocacy and unrelated to a U.S. crime.
On the other hand, the threshold could be crossed by a combination of abstract political beliefs and other
evidence, even if the evidence consisted only of First Amendment conduct. n266 For instance, belonging to a
political or religious [*672] group that espouses violent revolution generally and personally endorsing
violence against a particular local target could create a reasonable suspicion. (Indeed, in certain circumstances
it could create probable cause.) Although one may not be prosecuted for expressions that involve advocacy of
violence unless there is incitement to immediate violence and likelihood of its occurrence, n267 criminal
investigations may be initiated on a lesser standard. In this example, solely First Amendment activity is
involved, but the individual, targeted endorsement could lead a reasonable person to conclude that a violent
crime could occur absent intervention. n268 Only an investigation could establish whether that was the case.
2. Associational Interests and the Least Restrictive Means of Investigation
Even when a reasonable suspicion exists, associational interests must be further taken into account before the
constitutionality of surveillance can be determined. The reasonable suspicion presumption will not always be
dispositive, such as where overly intrusive investigative methods are used. n269 The least restrictive means
required to conduct the investigation effectively must be [*673] employed. Otherwise, unnecessary harm
that is not justified by a compelling state interest accrues to the organization. n270
In the case of surveillance against mosques and other Islamic organizations, many methods of surveillance
can seriously hinder Islamic practice and expression. Investigations involving intrusive methods, such as
infiltrators who influence organizational practices and issue detailed reports containing First Amendment
information, ordinarily will hinder religious practices. n271 In some cases, however, less intrusive means, such
as voluntary interviews, could be effective. To the extent possible, interviews should be conducted without
probing political or religious beliefs. Potential interviewees may agree to be interviewed or not; therefore,
privacy is not invaded if the interviews are truly voluntary. n272 By contrast, the clandestine nature of most
surveillance precludes consent.
If an intrusive investigative method does not serve the needs of the investigation, it is not the least restrictive
alternative. For example, while government may have a reasonable suspicion regarding a suspected member
of a terrorist organization, the government's interest is not served by disrupting his mosque's operations or
harassing other members. Nor is it served by investigating an entire Islamic center's activities because an
associate of a suspected terrorist has [*674] prayed there. To avoid unnecessary harm to associational rights,
investigative methods should be narrowly tailored to fit the need. n273
On the other hand, surveillance would be justified if the least restrictive means were employed, and it was
initiated based upon the reasonable suspicion standard. By contrast, using infiltrators who attend and
influence private meetings should not be permitted except where other investigative means are ineffective to
address a serious potential crime.
Conclusion
Recently, some commentators have queried whether September 11 was a constitutional moment - a term
coined by Bruce Ackerman to refer to decisive historical events that usher in a new paradigm of
constitutional interpretation. n274 Instead, I would suggest that September 11 was a crisis that requires
renewed fidelity to the enduring core values of American constitutionalism, including scrupulous
protections of First Amendment freedoms. n275 Rather than lift all restraints on law enforcement, it is
critical in the current period that we retain reasonable restrictions that simultaneously allow legitimate
investigation into terrorist activity and protect the constitutional rights of those wrongly
targeted for political surveillance.
Undoubtedly, the September 11 attack demonstrated that the threat of terrorism in the U.S. is greater than
many believed. But the pressing need to investigate suspects to prevent future terrorist attacks can coexist
with protection of basic civil liberties. It serves neither the interests of protecting constitutional rights nor
those of devising effective law enforcement tactics to profile, monitor, and investigate U.S. persons based on
general political or religious belief. Throughout American history, threats to national security have resulted in
violations of civil liberties that did nothing actually to increase our security.
[*675] The Constitution requires that political surveillance only be initiated based upon an
individualized reasonable suspicion of involvement in crime, with exceptions only for true emergencies.
In the absence of this predicate, we will only diminish our democratic freedoms and look back at the current
era with the dismay that hindsight will bring. n276
The plan would provide the best safeguard against government abuses and resolve
the problem of informants
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
Substantive Recommendations
Regardless of what additional procedural protections are implemented, some elements of the FBI’s
existing powers simply permit too much government intrusion into the lives of innocent Americans
and therefore should be curtailed in the following ways:
1. Prohibit the FBI from using highly intrusive investigative techniques unless there is some basis in fact to
suspect wrongdoing.290
• This would prohibit tailing someone, posing as other people in order to mine information from
neighbors and acquaintances, and recruiting informants to glean more information in the absence of
some factual basis for suspicion.
• This prohibition, summarily overturned by the 2008 Guidelines, was enshrined in all previous iterations of
the Guidelines for decades. It is the single most important safeguard against profiling and other forms
of abuse, and the government has offered no persuasive justification for its sudden disappearance.
2. Require agents to use the least intrusive investigative technique that is likely to prove effective.
• The “least intrusive method” requirement has been part of the Guidelines since their inception. The current,
equivocal language on this requirement in the Guidelines and the DIOG should be amended to stress its
importance, even in terrorism investigations.
3. Prohibit improper consideration of race, religion, ethnicity, national origin, or First-Amendment-protected
activity in investigative decisions.
• Addressing this issue is most urgent in the context of rules regarding use of informants to collect
information about First-Amendment-protected activity, such as infiltration of a place of worship or
political gathering. Such activities should require higher levels of predication and more aggressive oversight
of investigative decisions than activities that do not implicate Americans’ constitutional rights.
• Even outside the First Amendment context, however, reform is necessary. One standard to consider was
recently implemented by the Office of the Director of National Intelligence (DNI). The standard for use in
the DNI’s Information Sharing Environment (ISE)-Suspicious Activity Reporting (SAR) system adopts a
“behavior-focused approach to identifying suspicious activity” based on the standard announced in Terry v.
Ohio,291 392 U.S. 1 (1968). It requires that “race, ethnicity, national origin, or religious affiliation should not
be considered as factors that create suspicion (except if used as part of a specific suspect description).”292
This type of limitation on the use of these factors to justify law enforcement activity is crucial.
Conclusion
The time to act is now—before the Guidelines result in widespread and unwarranted intrusions into
Americans’ privacy, harmful religious and ethnic profiling, and the divergence of scarce resources to
ineffective and indiscriminate collection of information.
The changes recommended above will go a long way to reduce the risk of excesses that the current
Guidelines permit. They would reinvigorate the substantive standards on which investigative activity should
be predicated and would ensure that intrusive investigative methods are used only when necessary. And they
would impose internal and external checks to guarantee the lawful, effective use of the powers
conferred on federal agents. In short, they would safeguard Americans’ rights of privacy, free expression,
association, and religion as well as help to focus investigative activity where there are indications of threats.
The result will be a safer, more just America.
The plan is necessary to set firm limits on criminal intelligence investigations --chance of circumvention is a reason to support tougher restrictions
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
Another proffered justification for the Mukasey Guidelines is that a consolidation of multiple sets of
Guidelines and a harmonization of their rules was necessary to resolve inconsistencies and to reduce
confusion among agents.260 According to this argument, an investigation is an investigation, and the rules
should not differ depending on whether the investigation is conducted in order to solve a crime or to gather
intelligence.
But the Guidelines were developed to require different standards in different contexts for a reason. The
purpose for which an investigation is initiated, the amount of evidence that the feared harm is imminent, the
possible harm involved—all are arguably relevant to what sort of action the FBI should be permitted to take.
In short, context matters. And a one-size-fits-all investigative approach, while appealing for its administrative
simplicity, is not the way to pursue all of the FBI’s many goals—solving crimes, preventing crimes, protecting
civil liberties, collecting valuable foreign intelligence—most effectively.
Take, for example, the difference between investigations of general crimes and criminal-intelligence
investigations. Investigations of general crimes tend to end with a decision to prosecute or not to prosecute.
As the Guidelines historically have acknowledged, they are consequently more circumscribed in scope and
tend to be shorter in duration than intelligence investigations.261 In intelligence investigations of criminal
organizations, by contrast,
the organization provides a life and continuity of operation that are not normally found in a regular criminal
activity. As a consequence, these investigations may continue for several years. Furthermore, the focus of
such investigations ‘may be less precise than that directed against more conventional types of crime. . . . For
this reason the investigation is broader and less discriminate than usual.’”262
Accordingly, durational limits on general crimes investigations have been shorter than those for intelligence
investigations.
Similarly, earlier iterations of the Guidelines precluded the use of preliminary inquiries in the criminal
intelligence context, requiring evidence to reach the level of a “reasonable indication” of relevant
activity before permitting the FBI to initiate investigative activity. This distinction is sensible when
viewed in context. General crimes investigations have a close nexus to the commission of a particular crime.
Intelligence investigations, on the other hand, are more undefined; there is no specific crime “to provide a
framework for the investigation,”263 which increases the risk that they will be undertaken without sufficient
basis or will include information about law-abiding citizens.
Moreover, general crimes investigations are conducted with relative transparency, whereas intelligence
investigations are, as a rule, conducted in secret. Exposing the ways in which a power is exercised provides a
natural check on its abuse. This natural check exists in the criminal context in ways that it does not for
intelligence investigations. Introducing evidence secured through a wiretap or a “sneak and peek” search in a
criminal trial provides an opportunity for the validity of that wiretap and that search to be challenged by a
criminal defendant. The target of a wiretap or a search in an intelligence investigation, on the other hand, may
never even know about the investigation, much less have a chance to challenge its legitimacy.
Consider the 2004 incident in which an FBI Joint Terrorism Task Force requested grand jury subpoenas to be
issued to Drake University and several anti-war protesters seeking records regarding the purpose of and
attendance at an anti-war gathering that had taken place on the Drake campus.264 When news of the
subpoena became public, the ensuing outrage prompted the subpoenas to be withdrawn.265 By contrast,
when the government requests information as part of an intelligence investigation, through NSLs or so-called
“business records” requests, “[n]o person shall disclose to any other person” the fact that the request was
made.265 Only the recipient of such requests can challenge their legitimacy. Publicity can provide no check
on misuse of the power. Notably, in each instance in which an NSL has been challenged, it has been
withdrawn.267
Under the circumstances of intelligence investigations, keeping the FBI on a tighter rein, avoiding a freeranging investigation before there is a reasonable indication of criminal activity, represents a logical
precaution and reduces the risk that law-abiding Americans will be subject to undue intrusions into
their privacy. As one intelligence expert put it, “[b]ecause the safeguards against overreaching or abuse are
weaker in intelligence operations than they are in criminal investigations, powers granted for intelligence
investigations should be no broader or more inclusive than is absolutely necessary” and they “should be
accompanied by rigorous oversight by Congress, and where appropriate, by the courts.”268 The fact that a
particular activity under a particular level of supervision is permitted in the criminal context is thus
not necessarily justification for employing that same tactic in the intelligence-collection context.
Of course, some investigations might appropriately be labeled as falling under more than one investigative
category. Investigations into an international terrorist organization’s U.S. activities, for example, would qualify
as a foreign intelligence, criminal intelligence, and general crimes investigation all at once. In such
circumstances, the FBI should have the discretion and flexibility to employ the framework that most makes
sense given the facts of the case. But the simple fact that some investigations might transcend an easy
label is no reason to jettison merely for convenience’s sake the rules that developed—for good
reasons—to apply different standards in different contexts.
The alleged differences among various sets of guidelines have also been described as “problematic from a
compliance standpoint.”269 In other words, rather than teach agents to operate in compliance with existing
guidelines, the guidelines should be changed to make compliance easier.
It is certainly true that the FBI has a history of spotty compliance with the rules to which it is subjected. From
the use of confidential informants to National Security Letters and beyond, the FBI has shown time and again
that it struggles to comply with restrictions imposed upon it. A 2005 report by the Justice Department’s
Inspector General, for example, revealed that agents failed to secure the proper authorization for the use of
confidential informants270 and the initiation or extension of investigations,271 and failed to maintain the
required documentation regarding agents’ visits to public gatherings and events. 272 A 2007 internal review of
the FBI’s use of National Security Letters (NSLs) unearthed a host of problems, including erroneous reports
to Congress regarding the use of NSLs,273 the fact that 22 of 77 files examined contained violations of the
rules governing NSLs,274 and the fact that the FBI circumvented requirements of NSL authorities or issued
NSLs in violation of FBI policy and the Attorney General’s guidelines for FBI National Security
Investigations.275 More recently, the Inspector General issued a scathing report documenting the FBI’s
systemic use of unlawful means of acquiring thousands of telephone records over the course of several years,
as well as its “ineffective” post hoc efforts to justify this breach of law and policy.276 And a September 2010
report from the Inspector General, prompted by media reports suggesting that the FBI had targeted
organizations for investigation on the basis of First-Amendment-protected activity found “troubling” results.
While not motivated by groups’ expressive activities, across a range of investigations, agents improperly
collected and retained information; initiated investigations with insufficient justification; and labeled as
“terrorism investigations”—thereby making available additional powers—matters having nothing to do with
what most Americans would consider terrorism.277 On several occasions they also permitted investigations
to continue far beyond the point at which they should have been closed, improperly keeping the targets of
these investigations on watch lists, allowing the government to track their travel and investigate their
associates, for years.278 And most recently, the Inspector General reported the agents cheated on the exam
designed to test their knowledge of the rules by which they must comply.279
The solution to compliance problems, however, is not to eliminate the rules that
are being broken. It is true that guidelines imposing minimal constraints are more likely to produce
stellar compliance levels. But recall that in the pre-Guidelines era an unfettered, unconstrained FBI embarked
on surveillance, intelligence, and investigative activities so objectionable that Congress nearly enacted
statutory limits. It was these types of abuses that the Guidelines were imposed to prevent, and it is the risk of
these types of abuses that continues to demand meaningful Guidelines. Indeed, if the FBI can be
expected to continue its tendency to operate beyond the scope of its authorities
from time to time, all the more reason to tailor those authorities as narrowly as
possible. The FBI’s history of overreaching in the course of well-intentioned efforts to fight crime and
protect national security argues for more robust constraints, not fewer. As one member of Congress put it
when assured by FBI Director Mueller that the FBI would not abuse the authorities extended to it, “We
understand your assurances. We’ve heard them before. And that is why we are skeptical.”280
With regard to the specific complaint that different standards for different types of investigations causes
confusion among agents, the response is simple: law enforcement officials operate under different standards
depending on the investigative context in all manner of ways. They may make a felony arrest in a public place
with no warrant, but they must secure a warrant to make an arrest inside a home.281 When arresting the
driver of a car, they may search the car’s interior, but they may not search the trunk unless they have probable
cause to do so.282 Officers may enter a private home with no warrant when exigent circumstances require it,
but not under normal circumstances.283 All of these rules—and many, many more imposed on the
activities of law enforcement officers by statute or by the Constitution—obligate officers to learn the
rules and apply them to different factual situations. If agents feel they need legal advice to execute this
obligation, they should be encouraged or required to work in tandem with the appropriate U.S. Attorney’s
office, as they often do in run-of-the-mill criminal investigations. The existence of circumstance-based
distinctions in the Guidelines for the FBI’s investigative activity should not pose an insurmountable practical
obstacle to effective law enforcement.
One reason offered by the former Attorney General for the changes in Guidelines is, however, spot-on.
“These new guidelines,” said Michael Mukasey, will “reflect that the FBI is an intelligence agency.”284 In
short, the FBI wants the authority—the freedom—to collect, at will, all available information, using an
arsenal of highly intrusive investigative tools. In that regard, it seeks to eliminate any “distinction in the
Bureau between law enforcement and intelligence.”285 This authority may be sought for the most noble of
purposes, to protect our Nation from threats to its security. But in granting this power without sufficient
constraints on its use, we forget the lessons of history and expose ourselves to equally ominous threats:
threats to our freedom, to our privacy, and to the values that make the Nation worth defending. This was the
conclusion of the Church Committee faced with the Cold War’s threat of nuclear holocaust in 1976. Our
conclusion today, faced with the threat of extremist violence, should be no different.
Case
SQ => No Reasonable Suspicion
FBI maintains a policy of total surveillance of Muslims --- whole populations are
treated as suspects without any reasonable suspicion and it doesn’t prevent
terrorism.
Gosztola, 15 (3/25/2015, Kevin, “9/11 Review Commission Suggests FBI Expand Spying on Entire
Racial or Ethnic Communities,” http://firedoglake.com/2015/03/25/911-review-commission-suggests-fbiexpand-spying-on-entire-racial-or-ethnic-communities/, JMP)
A 9/11 Review Commission report on the Federal Bureau of Investigation’s efforts to implement
recommendations the commission issued in the aftermath of the September 11th attacks was released. One of
the report’s key aspects is how it suggests the agency should expand its domestic spying operations on
entire racial or ethnic communities in the United States in order to fight terrorism
The report [PDF] was put together by commissioners Bruce Hoffman, former adviser on counterinsurgency
for the Multi-National Forces in Baghdad, Edwin Meese III, former attorney general under President Ronald
Reagan implicated in the Iran-Contra and arms-for-hostages scandals, and Timothy J. Roemer, former
Democratic congressman. They do not describe the FBI’s conduct as domestic spying, but, if one
understands the jargon the FBI employs for its operations, it is clear what the commission advocates.
“Domain awareness” is the analyzing of racial, ethnic or religious groups. FBI analysts are looking for
individuals, who are likely to radicalize and commit terrorism. It involves treating whole populations, like
Muslims, in parts of cities as potential suspects even when there is no reasonable suspicion to
believe they will plot attacks
More concisely
The report describes how critical this “cornerstone” or “centerpiece” has been to the “transformation” of the
FBI into a national security agency
Documents the American Civil Liberties Union have been able to obtain show [PDF] that “FBI analysts
make judgments based on crude stereotypes about the types of crimes different racial and ethnic groups
commit, which they then use to justify collecting demographic data to map where people with that racial or
ethnic makeup live.” The FBI uses “domain analysis” to target American Muslims and Islamic
institutions. [*A federal judge recently ordered the release of more documents.]
As the ACLU argued in its 2013 report on the “FBI’s unchecked abuse of authority”:
…[A] Detroit FBI field office memorandum entitled “Detroit Domain Management” asserts that
“[b]ecause Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted
radicalization and recruitment” by State Department-designated terrorist groups that originate in the Middle
East and Southeast Asia. 92 Based on this unsubstantiated assertion of a potential threat of recruitment by
terrorist groups on the other side of the world, the Detroit FBI opened a “domain assessment” to collect and
map information on all Muslims and people of Middle-Eastern descent in Michigan, treating all of them as
suspect based on nothing more than their race, religion, and national origin. Collecting information about the
entire Middle-Eastern and Muslim communities in Michigan is unjust, a violation of civil rights and an
affront to religious freedom and American values. It’s also a surprisingly ignorant approach for an
intelligence agency, because it ignores the fact that many Michigan Muslims are not Middle Eastern or South
Asian…
This type of FBI activity is apparently the “cornerstone” or “centerpiece” of the agency in the post-9/11 era.
The totalitarian nature of the FBI’s expansion and reliance on this type of domestic spying on communities is
fully communicated in this Orwellian paragraph, where the homeland is mentioned twice (with a capital “H”):
One might recall, in 2014, Attorney General Eric Holder announced “new rules” intended to prevent FBI
agents from using racial profiling in “national security cases.” Race and ethnicity would supposedly no longer
be allowed to be considered when opening a case. But none of those rules affected the widespread
practice of “domain awareness” or total surveillance of entire communities.
9/11 Review Commission Acknowledges Spying on Entire Communities Didn’t Stop a Terrorist
What makes the advocacy for expansion of domestic spying operations (or the FBI’s euphemism, “domain
awareness activities”) even more incredible is the section of the report on five cases the commission
examined. Commissioners looked at how the FBI handled Najibullah Zazi, David Headley, Nidal Hasan,
Faisal Shahzad, and Tamerlan and Dzhokhar Tsarnaev. [See below for the Commission’s own brief
description of each of the cases.]
[Image omitted]
Another euphemism for spying that the FBI employs, “community outreach” or just “outreach” appears
here. What this refers to is FBI infiltration of the very communities, which are the subject of “domain
awareness.” Informants or “confidential human sources” are deployed as part of HUMINT or human
intelligence gathering. (It’s domestic spying.)
No FBI office was ever aware that Zazi and his associates were planning to travel to New York to launch an
attack after they traveled to Pakistan and trained with al Qaeda. It took tip from outside the FBI to trigger an
investigation. “Moreover, the FBI’s outreach into the Afghan and Pakistani communities in Denver and New
York did not result in a community member providing information or intelligence on Zazi or his associates,”
the commission notes.
In other words, the FBI had agents who infiltrated and were spying on Afghans and Pakistanis in Denver and
New York and none of those operations helped the FBI stop a terrorist plot. But, still, the 9/11 Review
Commission seems to favor expanding the surveillance of entire communities.
“Broader domain awareness,” commissioners contend, “might have detected [Tehrik-e-Taliban Pakistan]
plots in the United States and perhaps Faisal Shahzad would have been identified before his attempted plot to
detonate a bomb.”
Considering the agency’s stunning failure to stop Hasan, the commission calls for “accelerating the further
development and refinement of an agile strategic intelligence program incorporating both HUMINT and
domain awareness to identify individuals susceptible to being radicalized like Hasan, while preserving
protections for First Amendment activities.”
The commission laments the fact that information about Tamerlan Tsarnaev having outbursts during
sermons at the Islamic Society of Boston Cultural Center in Cambridge in November 2012 and January 2013
was not reported to the FBI:
The commission is essentially is saying if Boston had a larger network of informants in Islamic institutions it
would have been able to know that Tamerlan was engaged in behavior the agency now sees as evidence of
radicalization and a sign he might commit an attack. Commissioners casually acknowledge that having a
network of informants in mosques or cultural centers is problematic but shrug it off. Yet, plenty of people
could get angry during sermons and never do what Tamerlan did. This just calls attention to the flawed
understanding driven by stereotypes, which the government endorses when proposing policies like this to
address radicalization
“None of the five cases benefited from intelligence acquired through FBI recruited sources,” the commission
found. Such a conclusion suggests the FBI’s efforts at total information awareness are hampering the ability
to detect and thwart the very few individuals, who decide to plot actual terrorism in the United States.
Celebrating FBI’s Authority to Target People Who Will Likely Never Be Suspects of Criminal Investigations
Furthermore, the commissioners celebrate the revision of Attorney General guidelines for domestic FBI
operations on October 1, 2008. The revisions by Attorney General Michael Mukasey were in response to FBI
concerns that “certain restrictions” were “actively interfering” with the agency’s ability to “become an
intelligence-driven agency capable of anticipating and preventing terrorist and other criminal acts as well as
investigating them after they are committed.”
Here’s what the 9/11 Review Commission likes about these guidelines:
[Image omitted]
The commission claims that the guidelines “carried over substantial privacy and civil liberties protections
from earlier investigative guidelines,” but the ACLU’s report from 2013 shows these guidelines gave the FBI
a new power to conduct something called an “assessment,” which the commission mentions in the above
paragraph. During assessments, FBI agents can “establish any factual predicate before initiating
investigations so long as they claim their purpose is to prevent crime or terrorism or protect national
security.”
FBI agents are able to engage in “physical surveillance,” retrieve data from “commercial databases,” deploy
informants, engage in “pretext” interviews where FBI misrepresent their identities and “use grand jury
subpoenas to collect subscriber information from telecommunications companies.”
These “assessments,” according to the ACLU, may be done to determine if a person may make a good FBI
informant. (Note: Multiple American Muslims have sued heads of the FBI because they claim agents
threatened to put them on the “No Fly List” if they refused to become informants. So, this part of the
“assessment” may possibly be coercive and threatening.)
Agents also can collect identifying information, telephone numbers, email addresses, current and previous
addresses, current employers and job titles, travel history, whether the person has “special licenses or
permits” or “specialized training” and whether the person has purchased a weapon. All of this personal
information can be shared among agencies, whether that person is innocent and not the subject of an
investigation.
In August 2011, the New York Times reported the FBI had opened 82,325 assessments on individuals or
groups between March 2009 and March 2011. Only 3,315 of them led to preliminary or full investigations.
And, for a stage that the commission contends is so invaluable to the FBI, it sure leads to a small percentage
of actual investigations.
However, with all these widespread domestic spying operations in racial or ethnic communities of the United
States, it is not difficult to see how nearly 95% of terrorism-related cases from 2001-2010 contained elements
of preemptive prosecution. The FBI or local law enforcement targeted and prosecuted individuals or
organizations because their beliefs, ideology or religious affiliation raised “security concerns” in 376 instances.
Preemptive prosecutions include the FBI giving mentally ill Muslims the means, opportunity and the desire to
commit plots because the agency decides if it does not orchestrate its own terrorism plot with this person
then al Qaeda or some other group might connect with that person to launch an attack. The agency
manufactures its own terrorists by taking advantage of their economically desperate situations and using paid
informants to manipulate them into planning terrorism activity.
None of this conduct, which the FBI has a long history of carrying out in Muslim communities, is troubling
to the 9/11 Review Commission. The disruptive nature of sting operations, which seem to revive
COINTELPRO practices from the days of J. Edgar Hoover, do not bother the commissioners.
FBI conducts “assessments” without any suspicion of criminality --- includes use of
informants
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
The 2008 Mukasey Guidelines also expanded the Bureau's collection powers to further its preventive mission-both with respect to what information it is permitted to collect and what tactics it may employ in that
collection. The most significant of these expansions is the authorization of "assessments"--a new investigative
stage. Assessments, which are inquiries designed to determine whether further investigation is warranted,
require only an "authorized purpose," meaning that the FBI must merely determine that it is acting to protect
against criminal or national-security threats, or to collect foreign intelligence. n50 There is no need for any
concrete facts, evidence, or reason to believe that the subject of an assessment is involved in criminal or
threatening [*19] activity. n51 In other words, assessments may be undertaken in the absence of any "factual
predicat[e]." n52 Until 2008, some form of factual predication was required to initiate any level of
investigation. n53 The introduction of nonpredicated investigations is thus a significant expansion of the
FBI's power.
Despite the absence of the need to establish a factual basis for an assessment, agents conducting assessments
under the new Guidelines have available to them a wide array of highly intrusive investigative tools. During
an assessment, the FBI may: (1) recruit and task informants to attend surreptitiously First Amendmentprotected gatherings--such as religious services or political demonstrations--to collect information about what
takes place there and who attends; n54 (2) engage people in conversation while misrepresenting the agent's
status as a federal official (so-called "pretext interviews")--such as posing as an investigative target's new
neighbor or business associate in order to gather information about her from friends, neighbors, and
colleagues; n55 (3) station agents outside a target's home or office--or even have [*20] them followed--so
that their movements are tracked day and night; n56 and (4) search commercial online services and resources,
records maintained by "other federal, state, local, or tribal, or foreign governmental entities or agencies," n57
and all FBI and Justice Department records. n58 This includes the FBI's National Security Branch's data set
"[c]omposed of government information, commercial databases and records acquired in criminal and
terrorism probes" n59 that includes international travel records of citizens and aliens; financial forms; hotel
and rental car records; and credit card transaction records. n60 The government can not only search these
databases for particular information, but also use them to perform analysis based on a "pattern of behavior
and search for that pattern in data sets." n61 Ever-more sophisticated data-mining tools render a detailed
dossier on any American--even one entirely above suspicion--just one mouse click away. Thus, the Guidelines
now permit, with no factual predicate, tactics that before 9/11 had been reserved for investigative stages
whose initiation required at least some relevant evidence. n62
[*21] Even investigative tactics statutorily limited to instances in which there is a factual basis for suspicion
may be permitted based on very tenuous links to suspected wrongdoing. Agents can issue National Security
Letters (NSLs)--a form of administrative subpoena--to access without a court order certain information about
individuals that is "relevant" to a terrorism investigation. n63 The relevance standard means that the
individual about whom the FBI seeks information--internet or telephone subscriber information (possibly
including cell-phone-generated location data providing a minute-by-minute account of an individual's
movements n64), internet search records, financial records--need not herself be a target of an investigation.
And after acquiring a court order under § 215 of the PATRIOT Act n65, the FBI may demand an even
broader swath of information--"any tangible thing" that is "relevant to" "a full investigation," n66 a definition
the government has interpreted to include the authority to collect all noncontent data regarding phone calls
into, out of, and within the United States. n67
SQ => Mapping / Surveillance of Muslims
Exemptions in new guidelines allow racial profiling and mapping of Muslim
communities to continue --- swallows any benefits
DDF, 14 (12/16/2014, news release from the Defending Dissent Foundation, US Official News,
“Washington: Feds Limit Racial Profiling—With Big Loopholes,” Lexis, JMP)
Defending Dissent Foundation has issued the following news release:
The Justice Department issued new profiling guidelines Dec. 8 that extend limitations on it to include
national origin, religion, and sexual orientation—but still allow racial and ethnic profiling at border crossings,
immigration checkpoints, and in some other circumstances.
The guidelines are the result of more than five years of review, Attorney General Eric Holder said in a
statement, adding that “racial profiling by law enforcement is not only wrong, it is misguided and ineffective.”
Though the guidelines apply only to federal law enforcement and not to state and local police, he also alluded
to “recent incidents we’ve seen at the local level” and said they raise “concerns about trust in the criminal
justice process.”
In theory, the policy is intended to limit law enforcement’s use of racial characteristics to those specifically
related to a crime, and that are timely and geographically relevant. “Law enforcement officers may never rely
on generalized stereotypes, but may rely only on specific characteristic-based information,” the guidelines
state. “Even if there were overall statistical evidence of differential rates of commission of certain offenses
among individuals possessing particular characteristics, the affirmative use of such generalized notions by law
enforcement officers in routine, spontaneous law enforcement activities is tantamount to stereotyping.”
The basic principle is that, for example, police hearing a report that a grocery store in the Brownsville section
of Brooklyn was robbed by a black man in his early twenties wearing a baseball cap and a hoodie would be
allowed to stop and question men in the vicinity who fit that description. They would not be allowed to stop
all young black men wearing baseball caps or hoodies in the neighborhood at any time, on the general
grounds that the predominantly black neighborhood is a high-crime area.
The devil, however, is in the loopholes and where the line is drawn. A footnote states that “this Guidance
does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening
activities.” Federal agents, who have authority to enforce immigration laws within 100 miles of the border or
coastline, routinely stop people at checkpoints on roads in South Texas, on buses approaching New Orleans,
and on Amtrak trains in upstate New York—and obviously, looking Mexican or Muslim is going to raise
suspicion.
“It’s so loosely drafted that its exceptions risk swallowing any rule and permit some of the worst law
enforcement policies and practices that have victimized and alienated American Muslim and other
minority communities,” Laura Murphy, director of the ACLU’s Washington Legislative Office, said in a
statement. “This guidance is not an adequate response to the crisis of racial profiling in America.”
The Council on American-Islamic Relations also expressed concerns, particularly about the exemptions for
border crossings and those allowing the FBI “to ‘map’ minority communities to place informants.” The
guidelines specify that FBI field offices may research “population demographics, including concentrations of
ethnic groups” in order to “gain a better understanding of potential liaison contacts and outreach
opportunities” as long as it “is undertaken pursuant to an authorized intelligence or investigative purpose.”
“Under these guidelines the DOJ will still authorize the FBI’s racial mapping program to continue registering
minority neighborhoods from across the nation for possible surveillance and insertion of informants –
spanning African-Americans in Atlanta, Ga., to Asian-Americans in the San Francisco Bay area, to Arab and
Muslim Americans in Dearborn, Mich.,” the Muslim civil-rights group said in a statement issued Dec. 8.
“These guidelines will do nothing to stem the complainants CAIR receives from American Muslims that CBP
profiles them based on their religion at the northern border and when returning home from travel abroad by
asking about First Amendment protected activities. Questions have included: What religion do you belong to?
How religious are you? Why do you wear a beard? How many times a day do you pray? What do you pray
for? Which mosque do you go to? Do you pray the Morning Prayer in the mosque? Who else prays in your
mosque? Who is your religious leader?”
FBI maps communities to acquire data to recruit informants and start investigations
Apuzzo, 14 (4/9/2014, Matt, “Profiling Rules Said to Give F.B.I. Tactical Leeway,”
http://www.nytimes.com/2014/04/10/us/profiling-rules-said-to-give-fbi-tactical-leeway.html?_r=0, JMP)
WASHINGTON — Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice
Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics
opposed by civil rights groups, such as mapping ethnic populations and using that data
to recruit informants and open investigations.
The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race,
but religion, national origin, gender and sexual orientation. And they increase the standards that agents must
meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map
neighborhoods, recruit informants, or look for foreign spies, according to several current and former United
States officials either involved in the policy revisions or briefed on them.
While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security
exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil
rights a central issue of his five years in office, the draft rules represent a compromise between his desire to
protect the rights of minorities and the concern of career national security officials that they would be
hindered in their efforts to combat terrorism.
The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it
will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims,
in particular, say federal agents have unfairly singled them out for investigation. The officials who described
the draft rules did so on the condition of anonymity because they were not authorized to discuss them.
Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of
racial profiling on Wednesday before the National Action Network, the civil rights group founded by the
Rev. Al Sharpton.
“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a
young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was
unwarranted,” he said.
Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a
reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s approach
to national security.
The Bush administration banned racial profiling in 2003, but that did not apply to national security
investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or
religion and nationality the “sole factor” for its investigative decisions.
Civil rights groups see that as a loophole that allows the government to collect information about
Muslims without evidence of wrongdoing.
Intelligence officials see it as an essential tool. They say, for example, that an F.B.I. agent investigating the
Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if
so, where it is.
As written, the new rules are unlikely to satisfy civil rights groups and some of the administration’s liberal
allies in Congress. Senator Richard J. Durbin, Democrat of Illinois, has said the existing rules “are a license to
profile.”
The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of
Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security
investigations.
Farhana Khera, the president of Muslim Advocates, said expanding the rules to cover nationality and religion
would be a significant step forward. But she opposed any rule that allowed the F.B.I. to continue what it calls
“domain mapping” — using census data, public records and law enforcement data to build maps of ethnic
communities. Agents use this data to help assess threats and locate informants.
“It would certainly mean we have work to do,” said Ms. Khera, who was one of several rights advocates who
met with Mr. Holder about the profiling rules last week. “We want an effective ban on all forms of profiling.”
Before federal agents could consider religion or other factors in their investigations under the new rules, they
would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be
averted,” according to an official who has seen the draft.
That would not prevent agents from considering religion or nationality, but officials said the goal was to
establish clear rules that made doing so rare.
Department officials were prepared to announce the new rules soon and had told Congress to expect them
imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of
racial profiling that includes the Department of Homeland Security, officials said.
That is significant because the Bush-era racial profiling rules also contained an exception for border
investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that
caveat as Muslims are to the exception for national security investigations.
Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes
border agents can conduct their investigations without profiling and by following the same rules as the Justice
Department, one law enforcement official said.
It is not clear how long this broader review will take, but for now it has delayed release of the Justice
Department rules.
Relations between the F.B.I. and Muslims have at times been strained since the weeks after 9/11, when
agents arrested dozens of Muslim men who had no ties to terrorism.
Since then, the F.B.I. has adopted new policies and invested heavily to explain them to Muslim populations.
Senior agents speak at mosques and meet regularly with imams and leaders of Muslim nonprofit groups, but
suspicions remain.
Internal F.B.I. documents revealed that agents used their relationship-building visits at mosques as a way to
gather intelligence. Leaked training materials, which the F.B.I. quickly disavowed, described the Prophet
Muhammad as a cult leader and warned that mainstream Muslims shared the same “strategic themes” as
terrorists.
The draft rules would establish a program to track profiling complaints. The current process is less organized,
making it difficult to track patterns in complaints or how they are resolved.
The guidelines didn’t go nearly far enough to rebuild relations with minority and
religious communities
Oleaga, 14 (12/9/2014, Michael, “DOJ Racial Profiling Guidance 2014 Update: Revised Guidelines Have
Immigrant, Minority, Religious Groups 'Dismayed' With Profiling Exemptions,”
http://www.latinpost.com/articles/27397/20141209/doj-racial-profiling-guidance-2014-update-revisedguidelines-immigrant-minority.htm, JMP)
The U.S. Department of Justice released new guidelines on profiling individuals, but immigrant, minority and
religious rights groups remained concerned about exemptions for certain federal agencies.
Attorney General Eric Holder announced the revised "Guidance For Federal Law Enforcement Agencies
Regarding The Use Of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, Or Gender
Identity" aimed for law enforcement, national security and intelligence activities to adhere.
Holder's new guidelines prohibit law enforcement from conducting "routine or spontaneous" decisions based
on ethnicity, gender, gender identity, national origin, race, religion or sexual orientation "to any degree" unless
the "listed characteristics apply to a suspect description."
Civil rights groups have commended on the DOJ's new policies, but noted concerns regarding exemptions
for individuals screened at the border and airports. Holder's memorandum stated, "This Guidance does not
apply to Federal non-law enforcement personnel, including U.S. military, intelligence, or diplomatic
personnel, and their activities. In addition, this Guidance does not apply to interdiction activities in the
vicinity of the border, or to protective, inspection, or screening activities."
Specifically, the U.S. Customs and Border Protection (CBP) and Transportation Security Administration
(TSA) could continue to profile individuals based on ethnicity, gender, gender identity, national origin, race,
religion or sexual orientation.
"The release of this new and more expansive guidance is welcome and comes at an important time for our
nation. But unfortunately, it still falls short," National Immigration Forum Director Ali Noorani said. "We are
very disappointed that this new guidance fails to prohibit CBP from racially profiling at ports of entry and
immigration checkpoints, and during stops. Racial profiling makes us less secure because it perpetuates the
already fractured relationship CBP has with millions of border residents."
According to Noorani, the Department of Homeland Security (DHS) and CBP's efforts
toward
transparency and accountability encountered a setback with the exemptions
for border patrol enforcement.
"In cities like El Paso, whose population is 85 percent Hispanic, allowing Border Patrol agents to take into
account race and ethnicity amounts to a license to operate with impunity," Noorani said
The Council on American-Islamic Relations (CAIR) also expressed concern about the new DOJ guidelines,
stating, "CAIR is dismayed that at a time when our nation is struggling to come to terms with a series of highprofile police killings of unarmed African-Americans, the DOJ would release revised profiling guidelines
that include loopholes for targeting U.S. Muslims and Hispanics.
"Under these guidelines, the DOJ will still authorize the FBI's racial mapping program to continue registering
minority neighborhoods from across the nation for possible surveillance and insertion of informants -spanning African-Americans in Atlanta, Ga., to Asian-Americans in the San Francisco Bay area, to Arab and
Muslim Americans in Dearborn, Mich."
CAIR commended the "sign of progress" with the Justice Department to include categories such as national
origin and religion as characteristics for law enforcement to avoid specific profiling. CAIR, however,
expected more progress from the department and White House as individuals are still subjected to
profiling at the airport, border, communities and houses of worship.
The South Asian Americans Leading Together (SAALT) was "deeply dismayed" with the DOJ's new
guidance.
"Justice and civil rights protections cannot be dispensed on a sliding scale.
Immigrants and communities of color risk continuing to be treated as secondclass citizens by the very law enforcement officials tasked to protect them,"
SAALT Executive Director Suman Raghunathan said, adding that Monday's announcement attempts to ease
law enforcements' profiling but the result is "deeply disappointing" for many communities nationwide.
"The Department of Justice is sending a clear and disturbing message that
profiling continues to be acceptable by some law enforcement agents and against many
communities. The collective impact of this guidance on immigrants, border communities and other
communities of color makes us all less safe and does little to respond to the implications of discriminatory
profiling, which has been proven time and again to be ineffective, inefficient, and unjust," Raghunathan said.
Latin Post contacted the CBP for a statement, but they did not respond.
The exemptions mean 197 million people are subject to continued surveillance
Saab, 14 --- Senior Government Relations Analyst at Deloitte (12/8/2014, Maria, “One Step Forward, Two
Steps Back: DOJ Profiling Guidance Revisions Fail to Ban Profiling,”
http://www.aaiusa.org/blog/entry/one-step-forward-two-steps-back-doj-profiling-guideline-revisions-fail-toa/, JMP)
Today, Attorney General Eric Holder and the White House unveiled much anticipated revisions to 2003
Department of Justice Guidance on the Use of Race by Federal Law Enforcement Agencies (“Guidance”).
The DOJ has finally expanded the definition of profiling to prohibit to the use of gender, national origin,
sexual orientation and gender identity in addition to race and ethnicity. While this is a small sign of progress,
the Guidance fails to address homeland security and border integrity loopholes as well FBI mapping
practices that have created space for routine and egregious constitutional and civil liberties
violations.
Holder’s new guidelines arrive during a time where law enforcement activities are under intense scrutiny.
Conversations regarding immigration reform, border security, and recent events in Ferguson, MO., New
York City, and Cleveland not only emphasize the need to address such activities, but also highlight how little
these new guidelines will address the real issues at stake. For one thing, the changes will only apply to federal
law enforcement agencies, and will not extend to local and state law enforcement officers, which have been
the source of a number of related controversies. The Obama Administration hopes that the new guidelines
will serve as a possible roadmap for local police to reform their own practices regarding profiling, but this
does not ultimately guarantee change on behalf of local police forces that work closely with particularly
vulnerable communities.
The new guidance will limit instances in which law enforcement agencies may profile for the sake of national
security and goes as far as eliminating a 2003 exemption that permitted officers to use race when seeking out
individuals in such cases.
But profiling will by and large continue to be permitted in cases where national security and border protection
are concerned. For example, federal agents are not obligated to abide by the Guidance’s prohibitions within
100-miles of national borders, which includes nearly one-third of the country and places 197.4 million
people under potentially arbitrary investigation. TSA officers will also be allowed to stop passengers at
airports based on prohibited qualities. The national security exception will also allow for the FBI to continue
“mapping” specific communities on the basis of race, religion, and ethnicity, which has been of particular
concern to Arab American and American Muslim communities nationwide. Because the guidance is confined
to federal law enforcement practices, this does nothing to address the types of discriminatory targeting and
surveillance programs that local agencies, such as the New York Police Department, conduct in
contravention to numerous constitutionally protected freedoms.
For nearly five years, Arab American Institute (AAI) has worked with a broad coalition of organizations to
call on the DOJ to address these loopholes that directly impact our community and other minorities,
including Latinos and African Americans. In late May, this coalition briefed Congressional staff on revising
DOJ guidance to eliminate the deplorable violations of various civil liberties caused by the national security
and border integrity loopholes. This included limiting discretion for profiling by border protection and TSA
officers and local law enforcement agencies conducting surveillance programs on the basis of race, religion, or
national origin within the parameters of the old DOJ guidance.
In a phone call with various civil rights groups and organizations Monday afternoon, the Attorney General
stated that while the new guidance is by no means comprehensive, it is a strong first step in improving law
enforcement practices that have negatively impacted millions of Americans. The expansion on prohibited
criteria for profiling is in fact strong progress in the right direction, but it’s simply not enough. As Laura
Murphy of ACLU’s Washington Office stated, “this is not an adequate response to the crisis of racial
profiling in America.” The exemptions, in her view, “are so loosely drafted that its exceptions risk
swallowing any rule and permit some of the worst law enforcement policies
and practices that have victimized and alienated American Muslim and other
minority communities.”
The new DOJ guidance is an effort to build strong policies against arbitrary and illegitimate racial profiling.
Upon closer examination, however, the new expanded criteria and limitations do little to address critical areas
where most of these profiling incidents are occurring—at the local levels and at the border. Without holding
several federal agencies accountable to the new criteria and applying the same to state and local law
enforcement, the practical impact of this guidance does much less than we need it to.
New DOJ guidelines still allows the FBI to map Muslim communities and surveil
mosques without reasonable suspicion
Phelps, 14 (12/9/2014, Timothy M., Los Angeles Times, “The new face of profiling; Justice Department
tightens rules, though some say not enough,” Lexis, JMP)
The new guidance specifically allows the FBI and other federal law enforcement to continue to "map"
communities, focusing their investigations on neighborhoods or communities based, for example, on religion
or national origin. Also, some critics of the new rules are concerned that Holder was noncommittal Monday
when asked whether the FBI field manual would be updated to reflect the new guidance, raising questions
about whether federal agents will change their behavior.
Can an undercover FBI agent enter a Brooklyn, N.Y., mosque and conduct surveillance without any probable
cause to believe a crime is being committed or that terrorists are operating within the mosque.
Yes, according to civil rights groups.
"The Justice Department says the guidelines eliminate the national security loophole," said Farhana Khera,
president of Muslim Advocates, one of the civil rights groups most involved in advocating for the changes.
"While it eliminates it in name, our concern is that not much changes in practice."
Recent guidelines still permits federal agents to target Muslim communities
Flatow & Lee, 14 --- *J.D. from the University of Virginia School of Law and Senior Editor for
ThinkProgress, AND **Immigration Reporter for ThinkProgress (12/8/2014, Nicole Flatow & Esther YuHsi Lee, “New Racial Profiling Guidance Retains Broad Exemptions For Immigration, National Security,”
http://thinkprogress.org/justice/2014/12/08/3600618/dept-justice-racial-profiling-guidelines-exemptborder-agents/, JMP)
Facing a national conversation on police brutality, the Department of Justice released long-awaited revised
guidelines on racial profiling Monday. While recent debate has focused on police treatment of African
Americans, the expanded DOJ guidelines primarily add several new categories to a racial profiling policy that
previous banned profiling only based on race and ethnicity. The new categories include gender, national
origin, religion, sexual orientation, and gender identity.
Monday’s guidelines also narrow an expansive exception for “national security” activities. But some civil
rights organizations are critical that the guidelines would still permit a broad swath of law enforcement
activity aimed particularly at Muslims, as well as exempt some Department of Homeland Security agencies,
such as the Transportation Security Administration and the Customs and Border Protection from continuing
to stop people at the airport and at the southwest border.
Issued by outgoing Attorney General Eric Holder, the guidelines replacing existing DOJ rules from 2003, and
prohibit federal law enforcement officers (or state officials working in tandem with federal officials) from
using such characteristics to make “routine or spontaneous” law enforcement decisions, such as traffic stops.
“Profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective, because it wastes
precious resources and undermines the public trust,” Holder said in a statement. “Particularly in light of
certain recent incidents we’ve seen at the local level — and the widespread concerns about trust in the
criminal justice process which so many have raised throughout the nation — it’s imperative that we take every
possible action to institute strong and sound policing practices.”
But in an extended footnote, the memo notes that “this Guidance does not apply to interdiction activities in
the vicinity of the border, or to protective, inspection, or screening activities.” The memo also makes clear
that the guidelines apply in the national security context, but with a broad exception for “trustworthy
information” related to national security, immigration, or intelligence. Among the sorts of activities that are
provided of examples of still-valid activities is the mapping of ethnic groups if “undertaken pursuant to an
authorized intelligence or investigative purpose.” In New York, the NYPD “demographics unit” (which
would not be covered by this guidance unless working with federal officials) came under fire for mapping out
the city’s Muslims, and the unit was later disbanded after the FBI said it sowed distrust among Muslims.
For some civil rights organizations that have been at this since President Obama’s 2008 election, the revisions
seem shortsighted and modest. ACLU Washington Legislative Office Director Laura W. Murphy said in a
press statement, “It’s baffling that even as the government recognizes that bias-based policing is patently
unacceptable, it gives a green light for the FBI, TSA, and CBP to profile racial, religious and other minorities
at or in the vicinity of the border and in certain national security contexts, and does not apply the Guidance
to most state and local law enforcement.”
USA Today reported that profiling “will still be permitted during screening of commercial airline passengers,
border inspections and during protective functions initiated by the U.S. Secret Service, all overseen by the
Department of Homeland Security.” The new rules would otherwise affect “all Immigration and Customs
Enforcement civil immigration enforcement, U.S. Coast Guard law enforcement activities, Border Patrol
activities not near the border, DHS officers protecting government buildings and federal air marshals,” the
Washington Post reported. It would also exempt officials from screening airline passengers and those
guarding the country’s southwestern border. As Vox explained, “Under the old profiling policy, ‘the border’
was defined as anywhere within 100 miles of a land or sea border — but it’s not clear whether the ‘vicinity of
the border’ applies to that whole area, or to a more limited part of it.”
Border agents have come under intense scrutiny for testing the limits of its use of force tactics, including
using the border search exemption of the Fourth Amendment to justify searches that have nothing to do with
the border. A 2008 guidance document has allowed agents to search individuals at the border who carry in
electronic devices such as laptops and cell phones without “reasonable suspicion of a crime or without getting
a judge’s approval.” On more than one occasion, federal investigators used their border search authority as a
means to investigate U.S. citizens to get around violating the Fourth Amendment.
The guidelines would likely have little effect in Arizona, where the anti-immigration state law colloquially
known as the “show me your papers” law is still enforced. Immigration advocates have long charged that
Arizona police officers disproportionately and indiscriminately pull over members of the Latino community.
In October, a cop threatened to “kill” or “shoot” a Latino man pulled over for a traffic violation.
FBI uses “community mapping” to identify and ethnic communities
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Investigative activity based in part on racial or ethnic characteristics is not limited to scrutiny of individuals.
FBI policy also embraces "community mapping"--the practice of collecting and storing information about
particular ethnic communities. n78 [*25] The rules "permit the FBI to identify locations of concentrated
ethnic communities" as well as to collect "the locations of ethnic-oriented businesses and other facilities"
(including religious facilities such as mosques) because "members of certain terrorist organizations live and
operate primarily within a certain concentrated community of the same ethnicity." n79 The DIOG justifies
such activity by asserting that concentrations of certain ethnic communities provide an opportunity for
"identified terrorist subjects from certain countries [to] relocate to blend in and avoid detection." n80 Under
these authorities, the FBI has collected information about religious, ethnic, and national-origin characteristics
of American communities, identifying "Arab-American and Muslim communities in Michigan as a potential
terrorist recruitment ground" as well as noting "an increase in the African-American population of Georgia
when analyzing [*26] 'Black Separatist' groups," pointing to Chinese and Russian communities in San
Francisco "as a place to look for organized crime syndicates," and "highlighted Latino communities as
potentially harboring the Central American gang MS-13." n81
Surveillance Undermines Anti-Terror Measures
Prioritizing intelligence gathering trades-off with crime solving, invites more racial
profiling, and undermines anti-terror cooperation
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
American law enforcement agencies have three primary roles: 1) solving crimes committed in the past, 2)
preventing crimes that are imminent, and 3) collecting intelligence to stop future crimes. The further law
enforcement moves toward the intelligence-collection end of the spectrum, the more expansive, and the less
dependent on concrete indicia of crime or threat the investigation is likely to be. Overreach on the part of law
enforcement is therefore of particular concern when it involves intelligence-gathering.
Historically, the FBI has vacillated between a crime-solving and intelligence-gathering focus. Originally
created to investigate specific federal crimes, the Bureau expanded into the notorious Hoover-era domestic
intelligence agency, famous for excess and overreach. Revelations of Hoover-era abuses prompted the Bureau
to refocus for a time on crime-solving, and a season of robust oversight and operational limitations on
intelligence gathering followed. These limits were set forth in an internal set of rules, known since their
creation, as the “Attorney General’s Guidelines.”
The first set of Guidelines, issued in 1976, was designed to authorize FBI domestic intelligence investigations
and also to answer concerns about excessive intrusiveness on the part of the agency and its agents. The
Guidelines sought to tether the FBI’s intelligence-gathering activities to crime detection and prevention. They
demanded a higher level of evidence of possible criminal activity (past or future) in order to justify the use of
more intrusive investigative techniques. Initially, the Guidelines cabined the FBI’s activities successfully. But
the restrictions began to erode over time, and the agency again expanded its intelligence-collection activities.
The expansion was slow for many years but accelerated rapidly in the wake of the 9/11 attacks. And the
Guidelines that Attorney General Ashcroft issued in 2002 dramatically loosened previous restrictions.
After the Ashcroft revisions went into effect, several independent and congressional commissions concluded
that insufficient coordination between foreign intelligence-collection efforts and domestic law-enforcement
efforts contributed to the government’s failure to detect—and prevent—the 9/11 plot. Attorney General
Michael Mukasey responded by issuing further-revised Guidelines in December 2008. Like the changes
implemented by Attorney General Ashcroft in the wake of 9/11, the Mukasey Guidelines stress the FBI’s
mission of preventing terrorist attacks. At the same time, they further liberalize the limits and oversight
regime designed to check abuses of investigative power by extending time limits and eliminating supervisory
approval requirements.
The current Guidelines’ focus on terror prevention—rather than terror response—is commendable.
Investigating imminent criminal activity or threats to the homeland is of obvious value. However, intelligence
investigations pose unique risks. History teaches that as the government’s discretionary intelligence-collection
powers grow, so, too, do instances of profiling based on race, religion, national origin, or unpopular
viewpoint.
These risks are perhaps more salient today than ever before. Gone are the file cabinets J. Edgar Hoover
stuffed with information on political enemies. They have been replaced by massive (and growing) electronic
databases of information about Americans who may pose no security threat. It is therefore critical that the
FBI implements its domestic investigative activities in ways that avoid unnecessarily compromising the civil
liberties of law-abiding Americans or the effectiveness of the FBI’s terrorism prevention efforts. The current
Guidelines fail to prescribe rules designed to prevent the excesses—and their consequences—that can flow
from the expansive authority they confer. The predictable result will be to chill the free exercise of religion,
association, and expression of the population as a whole and to alienate the very communities whose
cooperation is most vital to successful national security efforts.19
Political and religious based surveillance that is not tied to criminality fails --doesn’t yield useful intel and trades off with other counter-terror efforts
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
B. The Need for and Benefits of Political Surveillance
While the costs of unjustified surveillance can be severe, in other instances surveillance is necessary to avert
violence and apprehend terrorists. Although some commentators claim that proper analysis of existing
intelligence data could have prevented the September 11 attacks, n208 others believe that the intelligence
agencies' failure to obtain detailed information on the operation of [*658] domestic terrorist cells was a
major cause. n209 In any event, good intelligence data is undeniably necessary to prevent future attacks.
As a society, we remain haunted by the specter of September 11, and policymakers are understandably
reluctant to forgo any possibility of gaining useful intelligence. Since Al Qaeda, like other criminal
organizations, operates clandestinely, counterterrorism agencies are themselves required to gather intelligence
secretly using informers and infiltrators. Those investigations, however, need to focus on areas and
subjects most likely to yield information about terrorists. n210 Because resources are limited, and
investigators cannot follow up on all leads, only the most likely targets should be subjected to surveillance and
infiltration. That a group is engaged in religious and political activity does not immunize it from law
enforcement scrutiny, but its involvement in out-of-the-mainstream First Amendment activity also
does not make it likely to be involved in crime. Expression of unpopular - and sometimes even repugnant
- views is distinct from evidence of crime. n211
An easy-to-identify proxy or profile for terrorism would be immensely useful if a sufficiently accurate one
could be found. But general expression of political or religious beliefs has not proved to be a
meaningful indicator in individual cases. Internationally, and in the U.S., radical Islamists have committed
numerous crimes of violence, but the assumption that abstract advocacy of religious or political violence by
Muslims in the U.S. in itself indicates an intent to engage in domestic terrorism is erroneous. n212 For
example, proclaiming that citizens of countries that occupy Muslim lands all deserve to die does not
demonstrate criminal intent. It stands to reason that such mutable characteristics, [*659] which can be
changed at will, would generally be poor indicators of terrorism, which relies on deception. In fact, the
available evidence indicates that terrorists tend to avoid expressing political beliefs publicly, in an effort not to
attract attention. n213
Nonetheless, certain terrorists may express beliefs endorsing violence, at least privately. Even so, abstract
political or religious advocacy of violence - which is not a crime - cannot in itself justify an investigation.
More evidence is needed, such as advocacy of violence against a specific target or advocating imminent
violence. n214 Any other standard would facilitate investigations that could only rarely, at best, be
useful, at the price of seriously compromising the right of association. And
requiring evidence of
concrete endorsement of violence will not inhibit investigations unduly.
Nor does it appear that religion or ethnicity can accurately serve as a proxy for involvement in terrorism.
n215 One need only cite the detention of over 700 Muslim men in New York and New Jersey - virtually all
unconnected to terrorism - after September 11. n216 Other interrogations and arrests of Muslims across the
country corroborate the point. n217 Because profiling based on these characteristics causes great harm and
has not been demonstrated to provide effective indicators of criminality, another standard must be employed,
as set forth in the next Section.
[*660] Nonetheless, some contend that any correlation, even the slightest one, between the profiled
characteristic and crime can justify use of a profiling practice when the potential danger is severe. Terrorism
certainly would fall within that category. Might not the extreme danger posed by terrorism, combined with
the possibility that Muslims with radical beliefs are more likely to be terrorists than the remainder of the
population, justify political profiling in certain circumstances? My response, is that this justification for
surveillance is generally insufficient, though a terrorist emergency involving a serious threat of imminent
violence could justify a preliminary inquiry on less than an individualized reasonable suspicion of crime. n218
The threat presented by international terrorism is not more dangerous than other threats faced by the U. S. in
the twentieth century. On the contrary, it is substantially less dangerous than the Cold War's nuclear standoff,
which threatened the immediate destruction of not only the United States but also the entire world. It is not
sufficiently qualitatively distinct from past threats to justify abrogation of basic civil liberties. Past civil
liberties violations such as the Palmer Raids, the excesses of the McCarthy era, the injustice of the internment
of Japanese-Americans during World War II, or the abuses of surveillance in the 1960's did little to increase
national security
The nature of the current domestic threat does not justify complete deference to the executive branch with
respect to the associational rights of those within the U.S. Although courts often defer to the political
branches in cases where national security is at stake, that deference is not absolute and is "subject to
important constitutional limits." n219 In particular, courts hesitate to defer where constitutional rights are
heavily implicated, n220 as they undeniably are in the case of [*661] political or religious surveillance.
Although courts lack expertise in adjudicating questions concerning the national defense, reasonable
restrictions on domestic political surveillance will not hamper the necessary
defense of our national security.
Political surveillance diverts law enforcement and undermines cooperation necessary
for good intel gathering --- focus on criminality solves
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
The political profiling I discuss here is in some respects analogous to racial and ethnic profiling: both are
based on a surrogate characteristic that is thought to correlate with criminality. n181 A primary justification,
then, is the focusing of scarce law enforcement resources where they can be more efficiently deployed. n182
The model breaks down, though, insofar as the profiled trait does not correlate cleanly or well with
criminality. With political profiling, as indicated supra, the correlation between general expression of radical
political beliefs, that is, abstract advocacy, and criminal actions is insufficient. n183 With respect to racial
profiling, empirical studies have indicated, for instance, no correlation between [*652] African-American
drivers and disproportionate involvement in either drug crime or traffic offenses as compared to other
drivers. n184 In the absence of validation, keeping in mind the history of race discrimination, and the
significant harms of profiling, the practice is not justified. n185
In addition, there are inefficiencies in the sweeping, overbroad types of political surveillance typically
conducted. Resources are diverted from legitimate law enforcement when investigations focus on politics,
rather than criminality. Political or religious investigations are not sufficiently focused to produce good
intelligence information - only a focus on criminality can target likely suspects. n186 Monitoring and
surveillance also create resentment that impedes the cooperation necessary for good intelligence-gathering
and criminal investigation. n187 Law enforcement and intelligence agencies need the cooperation of Muslim
communities to develop the intelligence that can help discover real terrorists, who are unlikely to tip off
authorities by making rash political statements. n188
Surveillance Undermines Trust in Law Enforcement
Recent events have undermined trust in law enforcement --- closing loopholes is
necessary to send a positive signal
Perez, 15 --- CNN Justice Reporter (2/2/2015, Evan, “Expanded federal ban on profiling doesn't apply at
borders, airport screening,” http://www.cnn.com/2014/12/08/us/new-profiling-laws/, JMP)
(CNN)New federal law enforcement guidelines set to be issued Monday will expand protection from
profiling, but won't apply to screenings at borders and airports, or in intelligence operations.
The new guidelines replace ones in place since 2003, which prohibit profiling based on race and ethnicity, but
also include broad exemptions for national security investigations.
The Justice Department will issue the new guidelines that will prohibit profiling based on religion, national
origin, gender, sexual orientation and gender identity, a Justice official said.
The expanded ban on profiling comes amid widespread street protests around the nation in the wake of
controversial killings of black men by white police officers. The shooting of 18-year-old Michael Brown by a
white officer in Ferguson, Missouri, set off wider discussions about police tactics and complaints by black
men that they bear the brunt of suspicion and profiling by police.
Attorney General Eric Holder in 2009 ordered a review of the profiling ban and pushed for an expansion. He
ran into opposition along the way, including from the FBI, whose agents feared it would make their work
more difficult, and more recently from the Homeland Security Department, which sought more flexibility for
its agencies before agreeing to join the new policy.
The new profiling guidelines apply to state and local law enforcement agencies when they are part of federal
law enforcement operations.
Holder plans to brief state and local law enforcement officials on a conference call Monday and plans to urge
them to adopt the federal policy in a speech in Memphis on Tuesday, according to a Justice official.
"Profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective -- because it
wastes precious resources and undermines the public trust. Particularly in light of certain recent incidents
we've seen at the local level -- and the widespread concerns about trust in the criminal justice process which
so many have raised throughout the nation -- it's imperative that we take every possible action to institute
strong and sound policing practices.," Holder said in a statement provided by the Justice Department in
anticipation of Monday's announcement.
DHS agencies, including federal air marshals, Homeland Security investigations, and the Coast Guard will be
covered by the new policy. But screenings at ports of entry, including airports, are exempted from the
profiling policy. The same applies to intelligence operations, which include federal agents' work to recruit
informants.
Despite the new broader ban on profiling, some critics aren't satisfied that it goes far enough.
Rajdeep Singh, director of law and policy at the Sikh Coalition, said in a statement that "the message this
continues to send is that certain communities are still suspect, and we worry this will lead to more hate
crime and discrimination."
Laura W. Murphy, legislative office director for the ACLU in Washington, said in a statement that the new
guidance is "not an adequate response to the crisis of racial profiling in America," arguing that the new
guidelines are "so loosely drafted" and contain flexibility that can affect American Muslims.
The group Muslim Advocates also argued the new rules don't go far enough in protecting American
Muslims from profiling by the FBI, Customs and Border Protection, and other law enforcement
agencies.
"We urge the administration to finish the job by addressing these outstanding, gaping problems
with the Guidance," the group said in a statement.
The FBI’s community mapping serves as a pretext for heightened law enforcement
in targeted communities that undermines vital trust building
Human Rights Watch, 14 (12/8/2014, “US: Updated Racial Profiling Rules Fall Short; Congress
Should Ban Use of Tactic for Communities, at Border,” http://www.hrw.org/news/2014/12/08/usupdated-racial-profiling-rules-fall-short, JMP)
(Washington, DC) – The US Department of Justice long-awaited reforms to its rules on racial profiling still
permit discriminatory practices against minority groups and migrants, Human Rights Watch said
today.
The revisions to the Justice Department’s 2003 Guidance Regarding the Use of Race by Federal Law
Enforcement Agencies (the “Guidance”), released on December 8, 2014, include modest improvements, such
as adding religion as a prohibited basis for profiling. However, the Guidance allows community profiling and
profiling in US border areas. The Guidance only applies to federal agencies, not state law enforcement
officers unless they are collaborating in an investigation.
“Attorney General Eric Holder is trying to have it both ways, criticizing profiling while embracing it at the
same time,” said Antonio Ginatta, US advocacy director at Human Rights Watch. “Bottom line: there’s no
right way to profile.”
The 2003 Guidance prohibited the use of race or ethnicity during traditional law enforcement activities by
federal agencies, but allowed for profiling under several exemptions and omissions. Those included profiling
to protect national security and maintain border integrity. The Guidance also did not specifically prohibit
profiling on the basis of religion.
The announced reforms explicitly prohibit profiling on the basis of religion during traditional law
enforcement, as well as on national origin, gender, sexual orientation, and gender identity. The updated
Guidance eliminates a national security exemption, but still allows community profiling programs. And
the 2014 Guidance specifically does not apply to “interdiction activities in the vicinity of the border, or to
protective, inspection, or screening activities” at the border.
Human Rights Watch has been monitoring reports of alleged profiling at US borders – which under a 1950s
regulatory interpretation means anywhere within a 100 air miles of the actual border. A recent Human Rights
Watch letter to Holder documented the case of a US citizen of Mexican origin living 22 miles from the US
border with Canada who was interrogated by US Border Patrol agents while serving as a translator for a
Mexican woman at the request of local police. A number of lawsuits have alleged that Customs and Border
Protection agents have been racially profiling residents of border regions.
Though the Guidance purports to eliminate the national security exemption, it effectively creates a new
one by allowing the Federal Bureau of Investigation (FBI) to continue community mapping programs,
through which the FBI collects information on where ethnic and religious communities are located. The
danger of community mapping is that it serves as a pretext for heightened law enforcement in those
communities, causing mistrust of law enforcement in precisely the communities where law enforcement
officials need to build trust, Human Rights Watch said in a separate letter to Holder.
The Justice Department first began reviewing the Guidance in 2009. Holder announced his resignation as
attorney general in September but agreed to stay on until his successor is confirmed.
“Half-hearted reforms are a sorry legacy,” Ginatta said. “Congress should step in and put an end to profiling
once and for all.”
Federal surveillance guidelines greenlight the discriminatory targeting of Arabs and
Muslims --- undermines faith between law enforcement and minority communities
Rhodan, 14 (12/8/2014, Maya, “New Federal Racial Profiling Guidelines Worry Civil Rights Groups,”
http://time.com/3623851/justice-department-racial-profiling-muslims-sikhs-aclu/, JMP)
Civil liberties organizations say some groups would still be subject to profiling
While the Department of Justice is set to unveil some major changes to federal racial profiling guidelines on
Monday, some civil rights groups worry they don’t go far enough.
The Justice Department is expanding on guidelines released in 2003 that prohibited profiling based on race
and ethnicity. Now, anti-profiling protections in federal law enforcement operations include national origin,
religion, sexual orientation, gender and gender identity. The guidelines also apply to both federal law
enforcement agents and state and local agents on federal task forces.
But some carve-outs—such as screenings and inspections by the Transportation Security Administration and
U.S. Customs and Border Protection—have raised eyebrows among groups including the American Civil
Liberties Union, Muslim Advocates and the Sikh Coalition.
“It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it
gives a green light for the FBI, TSA, and CBP to profile racial, religious and other minorities at or in
the vicinity of the border and in certain national security contexts, and does not apply the Guidance to most
state and local law enforcement,” said Laura Murphy, the director of ACLU’s Washington legislative office.
Muslim Advocates, a faith-based legal and educational advocacy organization, echoed those sentiments.
“While these changes are welcome,” a statement reads, “it is difficult to see how the guidance will improve
the lives of law-abiding American Muslims who are singled out and targeted based on their faith, not
evidence of wrongdoing, by the FBI, Customs and Border Protection, and other law enforcement
agencies.”
The Department of Justice guidelines do not apply to activities conducted by military, intelligence or
diplomatic personnel. Border screening activities are also not covered, which has been of particular concern
to civil rights groups.
After 9/11, sweeping counterterrorism efforts were imposed that led Arab and Muslim Americans—and
some perceived to be Muslim or Arabic such as South Asians and Sikhs—to feel singled out and profiled by
the federal government. A 2009 ACLU and Rights Working Group report found that Arabs, Muslims and
South Asians “have been disproportionately victimized through various government initiatives”
including FBI surveillance, questioning, airline profiling and no-fly lists.
But the fact that the Department of Homeland Security isn’t covered by the Department of Justice’s
guidelines doesn’t mean the agency has free rein to profile.
“It’s important to remember that DOJ is one agency and DHS is another,” says Margo Schlanger, a
University of Michigan law professor and former DHS officer for civil rights and civil liberties.
In fact, the Department of Homeland Security issued its own guidelines on profiling in 2013. Under that
policy, DHS personnel are only permitted to use race or ethnicity as a factor “when a compelling
governmental interest is present, and only in a way narrowly tailored to meet that compelling interest.” Still,
the DOJ’s new anti-profiling requirements apply to some DHS activities including civil immigration
enforcement, Coast Guard, air marshal, and border patrol activities away from the border.
Border and transportation security screenings and inspections, however, remain among the few activities that
are excluded. The Department says they will be reviewing the activities not covered by the guidance “to
ensure we are including every appropriate safe guard and civil rights protection in the execution of those
important security activities,” according to a fact sheet.
“The DHS policy is a little different, but it’s not unregulated,” Schlanger says. “The challenge for both DHS
and DOJ going forward is going to be implementation.”
Implementation will be key, too, for both agencies in the ongoing effort to restore faith between law
enforcement and minority communities. The nation is at a critical moment in terms of race relations,
particularly as it relates to interactions with law enforcement. As protests to grand jury decisions not to indict
two white police officers involved in the deaths of unarmed black men in New York and Ferguson, Mo.,
continue, the Obama Administration has made a point to draw attention to the issue of community policing.
Attorney General Holder, who hopes the new guidelines represent one of his signature accomplishments.
“Our police officers cannot be seen as an occupying force disconnected from the communities they serve.
Bonds that have been broken must be restored. Bonds that never existed must now be created,” Holder said
during a recent trip to Atlanta.
FBI counterterror strategies are sparking outrage in Muslim communities
Ackerman, American national security reporter and blogger, national security editor for the Guardian,
and Yuhas, 15 (3/25/2015, Spencer & Alan, The Guardian, “FBI told its cyber surveillance programs
have actually not gone far enough; In-house 9/11 Review Commission calls for further expansion of
informant and cyber surveillance networks but largely ignores domestic intelligence gathering,” Lexis, JMP)
Bulk searches and 'mainstream' Muslims: what's not in the report
The commission, composed of establishment figures like Reagan attorney general Ed Meese and former
Indiana centrist Democratic representative Tim Roemer, had significantly less to say about the major policy
controversies emerging from the FBI's domestic intelligence expansion.
Last year, the federal government's civil liberties watchdog confirmed that FBI agents can search international
communications from Americans collected in bulk from the National Security Agency without even a log of
their access. Numerous studies, including a 2010 Justice Department report, have confirmed that the FBI
abused its powers to issue nonjudicial subpoenas known as "exigent letters" or "national security letters" to
improperly access Americans' phone data.
Perhaps most controversially, the FBI stands accused of tracking American Muslims' constitutionally
protected activities and using them as leverage to create informants, which has led to the cultivation of
terrorist plots smacking of entrapment. Bureau counterterrorism agents, as late as 2011, were instructed that
Islam itself and "mainstream" Muslims, rather than specific terrorist plots, were appropriate bureau targets.
Tactics like those have sparked overwhelming anger in US Muslim communities that the FBI insists
it treats as a partner.
Muslim Cooperation Checks Extremism
Only cooperation with moderate Muslims can check Islamic extremism --government surveillance can’t keep pace
Morici, 15 --- economist, a professor of international business at the University of Maryland (2/22/2015,
Peter, “Obama and moderate Muslims both fail to fight Islamic extremism,”
http://www.washingtontimes.com/news/2015/feb/22/peter-morici-obama-and-moderate-muslims-bothfail-/?page=all, JMP)
Fighting racism, prejudice and the violence those can beget is everyone’s job. Muslims would do well to
respond to President Obama’s invitation to combat extremist ideas in their communities, but too often
Washington’s broader policies toward minorities encourage just the opposite
Ideologies of love and hate have a lot in common. Those appeal to youth seeking meaning and the
marginalized in simple terms and easily metastasize to uncontrollable dimensions.
The message Saint Peter and other apostles spread through the Roman Empire was easily reduced to a
narrative no longer than this column. Once they visited a community, new evangelists emerged to preach in
other places. Roman soldiers could ferret out the believers in one town, only to have dozens crop up in
others.
Medieval fables about the deeds of Jews, enjoying even greater brevity but equal poignancy, spread quickly
and remain dangerous today.
Islamic extremists benefit from similar simplicity by proselytizing that modern life conflicts with Islamic
teaching, the West and colonialism are responsible for the despair afflicting so many Muslim communities,
and violence is necessary to defend the faith and redress injustices.
That message is easily carried from one neighborhood to another, propagated over the internet, and benefits
from considerable financial support from ISIS.
In the United States and Europe, top-down government education programs and surveillance will
never be any more adequate than the Roman legions.
Without the specific participation and vocal support of moderate Muslim leaders, extremism can
infect entire communities. For example, in Vilvoorde Belgium, a town of only 4200, 28 young people have
left for Syria and Iraq and another 40 may leave
Parents, teachers and religious leaders are best able to first spot the beginnings of hateful influences among
young people and engage them. They can do what Christian leaders have been doing for years—explain to
young people that hateful ideas about others are ill-founded and can do as much harm to them as to their
targets.
Cooperation of Muslims helps alert U.S. that American-Muslims are joining radical
forces
Simon & Hooper, 9 --- *host of NPR, AND **communications director for The Council on AmericanIslamic Relations (12/12/2009, “FBI-Muslim Cooperation Resulted In Arrests,”
http://www.npr.org/templates/story/story.php?storyId=121374117, JMP)
The arrests in Pakistan this week of five young American Muslim men suspected of trying to join radical
forces may not have been possible without the cooperation of Muslims in the United States. The Council on
American-Islamic Relations contacted the FBI after relatives of the suspects sought the council's help when
the men disappeared. Host Scott Simon talks to Ibrahim Hooper, communications director for the Council,
about the group's cooperation with law enforcement.
SCOTT SIMON, host:
The Council on American-Islamic Relations, or CAIR, was the group that tipped off the FBI that the five
young men from Northern Virginia had left the country. It's important to note that there's been a contentious
relationship between CAIR and the FBI in recent years.
Plan => Rebuilds Relations with Muslim Communities
The plan rebuilds relations with Muslim communities which is necessary to prevent
homegrown al Qaeda-inspired terrorism
Schanzer, 12 --- Associate Professor of the Practice, Sanford School of Public Policy at Duke University
and Director of the Triangle Center on Terrorism and Homeland Security (3/20/2012, David, “Time to
Reset Police-Muslim Relations,” http://www.huffingtonpost.com/david-schanzer/fbi-muslimtreatment_b_1368273.html, JMP)
The cornerstone of the Obama administration's strategy for addressing homegrown terrorism is the
development of trusted relationships between law enforcement and communities targeted by al Qaeda and
other radical groups. Since the policy was rolled out last summer, a series of episodes has undercut this effort.
Media reports uncovered FBI training materials identifying Islam as an inherently violent religion, New York
Police Department commissioner Ray Kelly appeared in an inflammatory film decried by Muslim leaders and
allegations have arisen that a NYPD counterterrorism unit has been spying and keeping files on individual
Muslims without any evidence of criminal wrongdoing. We need to hit the reset button quickly
and establish a partnership between law enforcement and Muslim Americans
that can provide a foundation for an effective national counterterrorism policy.
There are three key sources of tension that all need to be addressed: government-funded training that casts
Islam as encouraging violence, surveillance of individuals and communities without a criminal predicate and
the use of informants to goad individuals into criminal activities.
The FBI has acted aggressively to deal with the training controversy by setting up a task force to review
150,000 pages of training materials and remove inaccurate, offensive content. Similar action needs to be
undertaken by other counterterrorism agencies. State and local authorities that receive federal funds should
also be required to use only the screened, approved training materials.
While these actions are warranted, any effort to strip counterterrorism training of any reference to Islam
would be misguided and counterproductive. Anyone involved in counterterrorism needs to understand the
powerful ideology motivating violent extremism and how it draws on Islamic sources to attract (mostly)
young Muslim men to its cause. Good training can and should explain the distinction between radicalism and
Islam.
On the question of surveillance, police will collect far more useful information if they apply community
policing tactics to counterterrorism instead of secretly snooping around mosques and halal
restaurants. Community policing has resulted in dramatic reductions in crime over the past 20 years by
getting police into the communities and interacting with shopkeepers, community leaders, religious
authorities, teachers and children. Building trust with the community will eventually lead to a channel for the
exchange of helpful information. Communities that believe they are under the constant threat of
surveillance, however, will simply shut down to outsiders.
Surveillance of open source materials on the internet is a thornier problem. Police surveillance of a group's
online activities, based exclusively on an ethnic or religious affiliation, is wrong and will damage the trust we
need to successfully prevent homegrown violent extremism. However, if we want to preempt acts of
terrorism before they occur, we cannot unduly tie the hands of our counterterrorism officials. Indeed, most
would be outraged if a successful terrorist attack occurred and it were later revealed that the bomber had
revealed his violent ideology in an internet chat room, but the police were barred from monitoring such sites.
I suggest that law enforcement be permitted to conduct surveillance of open source communications
if officials can articulate a reasonable suspicion that members of the group have or may be planning
to engage in criminal activity. This is the same standard that applies when a police officer stops a person
on the street for questioning and a pat down. Such a standard must apply to open source surveillance of all
groups -- not just Muslim Americans.
Give and take on both sides is required to relieve tension over the use of confidential informants in many
recent terrorism cases. It is unfortunate that following the arrests of many terrorism suspects, the initial
response of some Muslims has been to question the use of informants rather than criticize the conduct of the
perpetrators. For example, after a suspect was arrested for plotting to detonate a suicide bomb inside the U.S.
Capitol, a lawyer commented that: "It's controlled from the beginning to the end by the FBI... Had the FBI
not been involved, through their manipulation or informants, would the same thing have happened?" Instead
of challenging the use of informants, Muslim American critics of law enforcement might instead ask
themselves what the impact would have been on the Muslim American community if this individual had not
been investigated by the FBI and went on to commit the first suicide bombing inside the United States.
Defusing tensions over this issue will require the FBI to provide Muslim American leaders insight into their
investigative policies and procedures and assurances that these tactics are being used appropriately and on a
non-discriminatory basis. Trust can be established in the other direction if community leaders refrained from
reflexively denouncing terrorism arrests based on the activities of confidential informants before the totality
of the evidence surrounding a case has been presented and the full context of the perpetrator's actions can be
understood.
Homegrown, al Qaeda-inspired terrorism is not widespread, but it is still a serious threat. The best way to
combat it is to build trust between law enforcement and Muslim Americans. To do this, we have to
confront the tensions in this relationship head on.
AT: CVE Strategy Fails
The plan resolves the factors preventing an effective CVE program
Afeef, 15 --- attorney specializing in criminal justice policy, a former executive director of the Council of
Islamic Organizations of Greater Chicago, and a Truman National Security Project Political Partner
(3/12/2015, Junaid, “Why Independent Investigations Promote Trust Between Communities and Law
Enforcement,” http://www.patheos.com/blogs/altmuslim/2015/03/why-independent-investigationspromote-trust-between-communities-and-law-enforcement/, JMP)
The national “Countering Violent Extremism” program is predicated on a collaboration between law
enforcement and the community. Until those cases of questionable conduct by the FBI with regard to its use
of confidential informants and unlawful surveillance are properly addressed, the community will remain
hesitant, and the CVE effort will falter. And as mentioned above, the British government needs to conduct an
independent investigation into MI5’s conduct with the British Muslim community.
Plan solves important shortcomings of CVE --- including low Muslim trust and overt
focus on surveillance
ACLU, 15 (2/6/2015, US Official News, “Washington: The Lone-Wolf Terror Trap: Why the Cure Will Be
Worse Than the Disease,” Lexis, JMP)
Counterproductive Responses
At the moment, the response to the lone-wolf hullabaloo, like so much else in recent years, is inching us
further down the path toward an American police state. One government response, now being reemphasized, comes (of course!) with its own acronym: countering violent extremism, or CVE.
The program, announced in 2011, aims to partner with communities – almost exclusively Muslim ones in
practice -– in the name of terrorism prevention. One of the ways communities are to do this is by creating
safe spaces where individuals can discuss politics and religion without fear of lurking government agents. Yet
members of these same communities will then be encouraged to report back to authorities about what was
said and by whom in an effort to identify those at-risk of becoming violent extremists, whether alone or in
concert with others. American Muslim communities have already experienced government stings and
infiltration by informants, and tasking community members to report back to authorities doesn't seem much
different than directly putting agents in their midst.
If CVE's goal is to build the capacity within communities to prevent violence and terrorism, lone or
otherwise, then agencies like Health and Human Services and the Department of Education should be leading
the way. They could provide social and mental health services and educational resources – to all communities
instead of singling particular ones out based on religion, race, or ethnicity. Instead, not surprisingly, the White
House has put the Department of Homeland Security, the Department of Justice, and the FBI in charge of
executing its CVE programs, while emphasizing the coordinating role of local U.S. Attorneys' Offices.
American Muslim communities are rightly leery of this arrangement,
particularly in light of the way these outfits have recently focused on religious
beliefs as a basis for suspicion and, at least in the FBI's case, have manufactured terror plots by
preying on the sick and the vulnerable.
Other proposed solutions to the "lone-wolf" problem are even more indiscriminate.
In a recent book, former RAND Corporation analyst Jeffrey Simon offers an inventory of possible
technological strategies for identifying the wolf in sheep's clothing before he attacks. These are typical of our
moment and include the widespread use of Internet-enabled smart surveillance cameras, as well as the active,
suspicionless monitoring of Internet and social media usage. Another increasingly popular approach he
suggests is the expansion of biometric collection, meaning the government would assemble biological traits
unique to each individual, such as facial dimensions and DNA, without any evidence of wrongdoing.
It should be noted that such an approach – and it's typical of the direction the national security state and law
enforcement have taken in these years – would represent a fundamental assault on a free society. Such
"countermeasures" should send a shiver down your spine. Simon seems to recognize this, writing, "Privacy
issues will have to be addressed, including the willingness of the public to have their facial expressions, eye
movements, heart rates, breathing patterns, and other characteristics captured by sophisticated sensors
wherever they go in order for a decision to be made by others concerning what they might be intending to
do."
The dangers to Americans in allowing government agencies to collect such intimate information in order to
discover whether any of them are possible lone wolves should be obvious in terms of the destruction of
privacy, among other things. The result would be both an Orwellian world and a hopeless one in safety terms.
It's already clear that none of these expensive and advanced technological "solutions" will work. Totally
innocent conduct ("false positives") will overwhelm the truly menacing. Some of these approaches, like
surveillance cameras, may help finger a perpetrator after the crime, while others, such as trying to identify
who will engage in terrorism by his body language, will only further contribute to the security theater the
government has staged since 9/11.
Nevertheless, the ineffectiveness of an intrusive security state won't stop its adherents from pushing for more
power and methods of control that are ever more intrusive. "We have to put... aside... all the bleeding-heart,
politically correct people who say we can't be emphasizing one community over the other," VICE quoted
Congressman Peter King as saying in a radio appearance. The threat, he added, is "coming from the Muslim
community and it shows that the [New York Police Department] and [former police commissioner] Ray Kelly
were right for so many years when they were really saturating areas where they thought the threat was coming
from."
The once-secret NYPD suspicionless surveillance program King is referring to – it stretched from
Connecticut to Pennsylvania – never produced a single terrorism lead, much less a conviction. It was
"successful" at only one thing: making American Muslim communities in the
greater metropolitan area feel as if they were under siege and destroying
trusting relations between them and the police.
As King demonstrates, the people who pledge to protect our lives and our liberties are often the same ones
who cry wolf. With shepherds like these guarding the flock, wolves may be beside the point.
AT: No Domestic Terrorism / American-Muslim Coop Now ***
***note when prepping file --- this evidence could be moved to the 1ac to replace the
specific CVE ev or preempt negative uniqueness evidence.
Domestic terrorism is low now because of cooperation from Muslim-Americans, but
aggressive law enforcement will sour it
Risen, 14 --- technology and business reporter for U.S. News & World Report (7/9/2014, Tom, “Racial
Profiling Reported in NSA, FBI Surveillance; Prominent Muslim-Americans were targeted by government
surveillance, reports say,” http://www.usnews.com/news/articles/2014/07/09/racial-profiling-reported-innsa-fbi-surveillance, JMP)
The National Security Agency and the FBI have reportedly been overzealous trying to prevent terrorist
attacks to the point that anti-Islamic racism in those agencies led to the surveillance of prominent
Muslim-Americans, revealing a culture of racial profiling and broad latitude for spying on U.S. citizens.
An NSA document leaked by former agency contractor Edward Snowden to reporter Glenn Greenwald
shows 202 Americans targeted among the approximately 7,485 email addresses monitored between 2002 and
2008, Greenwald’s news service The Intercept reports.
To monitor Americans, government agencies must first make the case to the Foreign Intelligence Surveillance
Court that there is probable cause that the targets are terrorist agents, foreign spies or “are or may be”
abetting sabotage, espionage or terrorism. Despite this filter The Intercept identified five Muslim-Americans
with high public profile including civil rights leaders, academics, lawyers and a political candidate.
Racial profiling of Muslims by security officers has been a controversy since the terrorist attacks of 2001
spiked fears about al-Qaida trainees preparing more attacks. The New York Police Department has disbanded
its unit that mapped New York’s Muslim communities that designated surveillance of mosques as “terrorism
enterprise investigations” after pressure from the Justice Department about aggressive monitoring by police.
A 2005 FBI memo about surveillance procedures featured in The Intercept story uses a fake name
“Mohammed Raghead” for the agency staff exercise. This latest report about email surveillance of successful
Muslim-Americans is akin to “McCarthyism” that fed paranoia about communist spies during the Cold War,
says Reza Aslan, a professor at the University of California, Riverside.
“The notion that these five upstanding American citizens, all of them prominent public individuals, represent
a threat to the U.S. for no other reason than their religion is an embarrassment to the FBI and an affront to
the constitution,” Aslan says.
There is a risk of radicalization among citizens Americans, evidenced by some who have gone to fight jihads
in Syria and Somalia, but mass shootings carried out by U.S. citizens of various racial backgrounds occurs
much more often, says Vanda Felbab-Brown, a senior fellow on foreign policy at the Brookings Institution.
Since 1982, there have been at least 70 mass shootings across the U.S.
“We have seen very little domestic terrorism in the U.S.,” Felbab-Brown says.
This lack of terrorism is due in part to the willingness of the Islamic community to cooperate with
law enforcement to identify possible radical threats, out of gratitude that the U.S. is a stable, secure
country compared with the Middle East, she says.
“That could go sour if law enforcement becomes too aggressive, too extreme,” she says.
The FBI’s ability to spy on U.S. citizens – even government employees and those without criminal records –
will expand this summer when its new facial recognition database becomes fully operational. The new
database called Next Generation Identification system, or NGI, will include photos of anybody who sends
images as part of an application for a job that requires fingerprinting or a background check.
The Muslim-Americans monitored by the government included Nihad Awad, the executive director and
founder of the Council on American-Islamic Relations, a Muslim advocacy and civil rights organizations. The
group has been represented by the Electronic Frontier Foundation represents the CAIR Foundation in a case
challenging the NSA’s mass collection of Americans’ call records.
“These disclosures yet again demonstrate the need for ongoing public attention to the government’s activities
to ensure that its surveillance stays within the bounds of law and the Constitution,” said a blog post from
EFF Staff Attorney Mark Rumold. “And they once again demonstrate the need for immediate and
comprehensive surveillance law reform."
AT: Muslim-Americans Cooperating Now
SQ levels of cooperation aren’t enough --- building cooperation is key to access more
vital intelligence
Crowley, 15 (2/18/2015, Michael, “Barack Obama’s 'extremism' language irks both sides; His carefully
selected words on ISIL have frustrated both the left and the right,”
http://www.politico.com/story/2015/02/barack-obamas-extremism-language-irks-both-sides-115304.html,
JMP) ***Note --- Hina Shamsi is director of the American Civil Liberties Union’s national security
project
Critics of community outreach programs say little data exists to demonstrate their effectiveness in spotting
terrorists. One academic guest at Wednesday’s summit admitted as much, Shamsi said.
Nor, they argue, is there reason to believe Muslim-American communities are shy about reporting would-be
radicals: A 2011 study by a University of North Carolina at Chapel Hill sociologist found that “the largest
single source of initial information [about terror plots] … involved tips from the Muslim-American
community.”
That’s not enough, White House homeland security advisor Lisa Monaco recently argued. In a speech on
the anniversary of the 2013 Boston Marathon bombing last April, Monaco said that in more than 80
percent of cases involving homegrown terrorists, community members “had observed warning signs a
person was becoming radicalized to violence.”
“But more than half of those community members downplayed or dismissed their observations without
intervening,” Monaco added. “So it’s not that the clues weren’t there. It’s that they weren’t understood well
enough to be seen as the indicators of a serious problem.”
In his remarks on Wednesday, Obama called Muslim Americans “the people who are most targeted and
potentially the most affected” by terrorist recruiters and stressed the need for “more dialogue and more
trust and more cooperation.”
But he also said it would be a mistake to “securitize” the government’s relationship with Muslim Americans,
“dealing with them solely through the prism of law enforcement.”
“Because when we do,” Obama added, “that only reinforces suspicions, makes it harder for us to build the
trust that we need to work together.”
AT: USA Freedom Act Solves
USA Freedom Act leaves most surveillance powers untouched
Press TV, 15 (6/5/2015, “USA Freedom Act will continue warrantless wiretapping by NSA: Journalist,”
Lexis, JMP)
US President Barack Obama signed the USA Freedom Act into law on Tuesday, hours after the Senate gave
its final approval for the legislation. The bill passed the US House of Representatives on May 13, 2015.
The new law will replace the Patriot Act, the sweeping surveillance legislation passed in the days immediately
after the attacks of Sept. 11, 2001.
The law eliminates the NSA's bulk phone-records collection program and replaces it with a program that
keeps the records with phone companies but allows the government to search them with a court warrant.
The legislation will phase out the once secret NSA phone spying program over a six months period. The
program was made public two years ago by former agency contractor Edward Snowden.
However, the legislation would continue other post-9/11 surveillance provisions, including the FBI's
authority to gather business records in terrorism and espionage investigations and to more easily eavesdrop
on suspects who regularly discard mobile phones to avoid surveillance.
The American Civil Liberties Union and other privacy advocates have warned that the bill does little to
ensure privacy.
"No one should mistake this bill for comprehensive reform. The bill leaves many of the government's
most intrusive and overbroad surveillance powers untouched, and it makes only very modest
adjustments to disclosure and transparency requirements," said Jameel Jaffer, the ACLU's deputy legal
director.
USA Freedom Act still permits a majority of surveillance
Ackerman, 15 --- American national security reporter and blogger, national security editor for the
Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform;
Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to
circumvent congressional authority,” Lexis, JMP)
The USA Freedom Act, a compromise bill, would not have an impact on the vast majority of NSA
surveillance. It would not stop any overseas-focused surveillance program, no matter how broad in scope, nor
would it end the NSA's dragnets of Americans' international communications authorized by a different law.
Other bulk domestic surveillance programs, like the one the Drug Enforcement Agency operated, would not
be impacted.
The rise of what activists have come to call "bulky" surveillance, like the "large collections" of Americans'
electronic communications records the FBI gets to collect under the Patriot Act, continue unabated - or, at
least, will, once the USA Freedom Act passes and restores the Patriot Act powers that lapsed at midnight on
Sunday.
USA Freedom Act won’t constrain the NSA
Press TV, 15 (6/5/2015, “USA Freedom Act will continue warrantless wiretapping by NSA: Journalist,”
Lexis, JMP)
A new US law passed by Congress on Tuesday to reform widespread spying programs by the National
Security Agency (NSA) will do very little to change the overall surveillance situation in the United States, an
American investigative journalist says.
"The USA Freedom Act will continue this policy of warrantless wiretapping by the NSA," said Wayne
Madsen, who is also an author specializing in international affairs.
"The people who say that the USA Freedom Act will constrain the NSA within legal bounds… they're living
in a dream world, they know that they want to maintain NSA surveillance authorities," Madsen said during a
phone interview with Press TV on Friday.
"The only way to deal with NSA is not to mend it, is to end it, get rid of it, get rid of the NSA and get rid of
the CIA; we have too many intelligence agencies that tear up the US Constitution on a daily basis," he added.
AT: Second Circuit Court Solves Bulk Data Collection
Second circuit ruling doesn’t establish a prohibitive precedent against bulk data
collection
Ackerman, 15 --- American national security reporter and blogger, national security editor for the
Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform;
Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to
circumvent congressional authority,” Lexis, JMP)
Julian Sanchez, a surveillance expert at the Cato Institute, was more cautious.
"The second circuit ruling establishes that a 'relevance' standard is not completely unlimited - it doesn't cover
getting hundreds of millions of people's records, without any concrete connection to a specific inquiry - but
doesn't provide much guidance beyond that as to where the line is," Sanchez said
"I wouldn't be surprised if the government argued, in secret, that nearly anything short of that scale is still
allowed, nor if the same Fisa court that authorized the bulk telephone program, in defiance of any common
sense reading of the statutory language, went along with it."
AT: FBI / Guidelines Prevents Religious / Racial Surveillance
Guidelines only prevent surveillance based solely on race or religion --- doesn’t stop
FBI from still considering it
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
The Guidelines are not blind to the concerns these tactics raise. In fact, they bar the FBI from initiating
investigations into U.S. persons "solely for the purpose of monitoring activities protected by the First
Amendment." n82 Nor may the Bureau "predicat[e] an investigation simply based on somebody's race." n83
But the Guidelines as well as the DIOG prevent such activity only when it is motivated solely by the
desire to monitor First Amendment-protected activities, or by race, religion, or national origin. n84
Investigative activity prompted in part by these factors is not barred. n85 Individuals thus can be singled
out for scrutiny due, at least in part, to their political or religious expressions, [*27] activities, or
associations. This profiling on the basis of "national origin plus" could expose a large population of
innocent persons to FBI scrutiny. Indeed, as law enforcement officials told the Associated Press, "[a]mong
the factors that could make someone the subject of an investigation is travel to regions of the world known
for terrorist activity . . . along with the person's race or ethnicity." n86 Thus, every individual of Pakistani
origin who travels to Pakistan to visit family is conceivably at risk of being subjected to FBI investigation
merely on that basis.
FBI explicitly encourages its agents to override civil liberties to achieve security
priorities
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
3. Intelligence Collection and Structural Constraints
The governance concerns posed by the FBI's intelligence-focused mission and the lack of traditional
oversight are compounded by the FBI's tendency to emphasize that mission over other concerns. The
Attorney General and the FBI are responsible for incorporating two sometimes conflicting responsibilities
into intelligence-collection policies--terrorism prevention and civil liberties protection. n139 Given the
incentives to err on the side of security, the Guidelines risk short-changing civil liberties concerns when the
two missions conflict. The FBI declares on its website that "[a]s an intelligence-driven and a threat-focused
national security organization with both intelligence and law enforcement responsibilities," its mission is to
"to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and
enforce the criminal laws of the United States, and to provide leadership and criminal justice services to
federal, state, municipal, and international agencies and partners." n140 Similarly, the Bureau identifies as its
top priority protecting the United States from terrorist attack, followed by combatting foreign intelligence
operations, cyberattacks, high-technology crimes, and public corruption. n141
[*39] In other words, despite its location in the Department of Justice and its law-enforcement
responsibilities, the FBI is now primarily a national security and intelligence-focused agency. n142 In all of the
FBI's statements listing its goals and priorities, protecting civil liberties falls far below protecting against
terrorist attacks and other security threats. n143 Like the FBI's other statements of its priorities, the post9/11 Guidelines themselves present "[p]rotection of the United States and Its people" as the goal that the
FBI's investigative authorities are designed to further. n144 And while the Guidelines have always explicitly
required investigators to use the least intrusive method possible to achieve their investigative goals, n145 as of
2002 the Guidelines include a caveat: agents should not "hesitate to use any lawful techniques
consistent with these Guidelines, even if intrusive," n146 where the degree of intrusiveness is warranted
in light of the seriousness of a threat, or in light of the importance of foreign intelligence sought in the United
States' interests. n147 This [*40] point is to be observed in particular, agents are instructed, in investigations
relating to terrorism. n148
The DIOG presents even larger concerns on this front. Those rules are devised and implemented within the
FBI itself. n149 Thus, any nonsecurity perspective that Justice Department officials may bring is absent from
the DIOG. And because the terms of the Guidelines are relatively skeletal, the FBI is left to fill in most of the
details itself. The DIOG does include hortatory language regarding the need to be solicitous of civil liberties;
to refrain from infringing on First Amendment rights and from profiling on the basis of race, religion,
ethnicity, or national origin; and to limit appropriately the scope and intrusiveness of FBI activity. n150 It also
instructs that "when First Amendment rights are at stake, the choice and use of investigative methods should
be focused in a manner that minimizes potential infringement of those rights." n151 But after warning agents
to take privacy, equal protection, and First Amendment rights into account, the DIOG concludes by
reiterating that "FBI employees may use any lawful method allowed, even if intrusive, where the
intrusiveness is warranted by the threat to the national security or to potential victims of crime." n152
AT: DOIG Limits Abuses
***note when prepping file --- consider breaking the ev into smaller parts based on
particular needs of the 3 separate args
Current guidelines don’t guarantee least intrusive methods or prevent investigations
based on race or religion and they maintain racist community mapping policies
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
2. The Domestic Investigative Operational Guidelines
The Attorney General’s Guidelines are implemented by the “Domestic Investigative Operational Guidelines”
(DIOG), promulgated by the FBI. After official requests by at least two organizations pursuant to the
Freedom of Information Act,130 the Justice Department publicly released—with significant redactions—the
current DIOG. The DIOG purports to impose additional rules on FBI agents in their exercise of some of the
authorities criticized above. To be sure, the Guidelines themselves do occasionally reference FBI policy as an
additional limitation on FBI investigative authority,131 and the DIOG includes laudable hortatory language
regarding the need to be solicitous of civil liberties; to refrain from infringing on First Amendment rights and
from profiling on the basis of race, religion, ethnicity, or national origin; and to limit appropriately the scope
and intrusiveness of FBI activity.132
But the DIOG’s efforts to achieve these goals fall short in at least four respects. First, the DIOG makes only
a half-hearted commitment to the requirement that agents use the least intrusive method that is likely to
procure the needed information when conducting investigations.133 Upon close inspection, the admonition
to use the least intrusive method is less forceful than it appears.134 When advising agents on how to
determine which method is the “least intrusive method,” the DIOG institutes a balancing test. After
determining the least intrusive method for a given situation, “reviewing and approving authorities should
balance the level of intrusion against investigative requirements” to determine which technique actually to
employ.135
In other words, the least intrusive method should be employed unless the agent decides—despite having
determined that a less intrusive method is likely to procure the needed information—that a more intrusive
method should be used because of the seriousness of the crime or threat, the significance of the information
to be gained, or other such factors. This balancing test renders the term “least intrusive method” a misnomer.
Moreover, the final word on the FBI’s “least intrusive method” policy echoes the words of the Guidelines
themselves: agents should use “any lawful method allowed, even if intrusive” when the agent determines such
methods are warranted. This caveat sends an important message—minimal intrusiveness may be preferable,
but is not actually required. Ultimately, as the Guidelines state and the DIOG echoes, “the choice of methods
… is a matter of judgment.”136 Establishing such a loose and discretionary standard—and then presenting it
as a “least intrusive method” requirement—provides an illusion of civil liberties protections with little
substance behind it.
Second, the DIOG bars investigative activities “based solely on the exercise of First Amendment rights or on
the race, ethnicity, national origin, or religion” of their subject.137 The DIOG does not, however, preclude
investigative activity based in part—or even primarily—on such factors. Notably, the Justice
Department’s policy regarding the use of race by law enforcement officials prohibits employing “race or
ethnicity to any degree” in making routine law enforcement decisions.138 The DIOG thus appears to be in
tension with existing DOJ policy on this point. Moreover, even the prohibition against basing investigations
solely on protected characteristics is undermined by the DIOG’s instruction that such characteristics may
permissibly be linked to terrorist or criminal behavior. For example,
if investigative experience and reliable intelligence reveal that members of a terrorist or criminal organization
are known to commonly possess or exhibit a combination of religion-based characteristics or practices (e.g.,
group leaders state that acts of terrorism are based in religious doctrine), it is rational and lawful to consider
such a combination in gathering intelligence about the group.139
Similarly, the DIOG permits the collection of information regarding ethnic and racial behaviors “reasonably
believed to be associated with a particular criminal or terrorist element of an ethnic community.”140 The
DIOG thus embraces the logical fallacy that if all members of a particular terrorist group share a certain
characteristic (such as the Muslim faith), then anyone who shares that characteristic is a fair target of
suspicion. On its face, this could mean collection of information on Muslim men who grow their beards or
observe their religion in a particular fashion. No generic admonition to respect privacy and civil liberties can
combat these permissive standards.
Also troubling is the DIOG’s embrace of community mapping—which involves collecting and storing
information about particular communities. They “permit the FBI to identify locations of concentrated ethnic
communities” as well as to collect “the locations of ethnic-oriented businesses and other facilities” (likely
including religious facilities such as mosques) because “members of certain terrorist organizations live and
operate primarily within a certain concentrated community of the same ethnicity.”141 This very same
principle was proposed by local law enforcement authorities in Los Angeles but was ultimately scrapped when
widespread and vocal protests from the Muslim and civil liberties communities equated the plan with racial
profiling and noted that it was likely to alienate Muslim residents.142
The DIOG seems to place great faith in the ability of the “authorized purpose” requirement143 to keep
investigative activities from wandering too far afield. But when the authorized purposes are as broad as they
are—investigating violations of law or threats to national security, investigating the role of groups in
violations of law or threats to national security, identifying potential targets of criminal activities or threats to
national security, etc. —and when so much investigative activity may take place in the absence of any factual
predicate, that requirement seems largely toothless.
Third, while the DIOG contains detailed rules regarding when, how, and under what circumstances the FBI
may use each particular investigative method available to it,145 the fact that these rules are set forth in the
DIOG, rather than in the Attorney General’s Guidelines themselves, is problematic. The DIOG does usefully
resurrect many of the procedural protections that had been stripped out of the Guidelines themselves. For
example, they add supervisory approval requirements, both for particular investigative techniques and for
certain types of investigations.146 They place time limits on each investigative stage (except for full
investigations). They require periodic file reviews for all assessments and investigations.147 And they increase
oversight for investigations into targets that raise “sensitive investigative matters,” which include
investigations of politicians, political or religious organizations, or members of the news media.148
Each of these provisions is a step in the right direction. But rather than forming part of the higher-profile,
infrequently modified, and fully disclosed Guidelines themselves, they have been “downgraded” to the easierto-change, less politically salient, and more secretive DIOG. If the DIOG reinstates so many of the
procedural requirements that had been stripped out of the Guidelines, it begs the question why the location
of these rules was moved. Moreover, while the DIOG seems to call for greater internal oversight than the
Guidelines themselves require, neither set of rules provides for the external oversight—from Congress and
from the public—necessary to ensure both that Americans’ civil liberties are safeguarded and that the
Guidelines are effective.
Perhaps most troublingly, the rules regarding the most intrusive investigative techniques permitted in the
absence of factual predicates for investigation—pretext interviews and undisclosed participation in religious
and political gatherings—are redacted entirely (despite being labeled unclassified) from the publicly available
DIOG. So whether the DIOG aims to mitigate any of the troubling aspects of these techniques is impossible
to say. And if they do impose additional restrictions, the fact that they do so secretly limits their effectiveness
as a constraint—if no one outside the Justice Department knows the rules to which agents are expected to
adhere, enforcement of those rules becomes a matter of FBI grace.149
DIOG rules eliminated important oversight found in previous guidelines
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
A final notable modification to the Guidelines implemented in 2008 was the elimination of the vast majority
of oversight provisions contained in prior iterations of the Guidelines--time limits on investigations, the need
to obtain supervisory approval, requirements to report regularly to FBI Headquarters or the Justice
Department. n87 Instead, these restrictions have been relegated to the DIOG, thereby empowering the FBI
to determine the scope of its own power in this regard. n88 Indeed, the DIOG may be changed whenever the
FBI--not the Attorney General--determines that it should be (as it was in 2011 n89), and FBI [*28]
leadership can authorize departures from the DIOG's requirements. n90
There may have been good reason for some of these changes. Indeed, some of them were the result of
recommendations made by the 9/11 Commission to improve America's counterterrorism capacity. n91 There
have, after all, been significant changes since 1976--in the threats that we face, in the need for intelligence
gathering, in Americans' expectations of what their government should do to protect them and their interests.
The limits on FBI intelligence activities imposed in the 1970s, however, reflected concerns expressed by the
legislature and the public. n92 The current Guidelines, by contrast, have fundamentally transformed the role
of America's primary domestic federal law enforcement agency with almost no public debate and with no
legislative action. n93 Thus, regardless of what one thinks about the propriety of the changes themselves, we
might question the adequacy of the process leading to such a transformation.
Solvency
External Checks Solvency ***
External controls on FBI prevents political and religious profiling while maintaining
important law enforcement functions
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
Introduction
Since September 11, Americans have accepted new restrictions on their freedom in return for the promise of
increased security in their daily lives. Most people have reconciled themselves to increased governmental
surveillance and some limitations on their daily activities, such as security screenings and enhanced video
surveillance, with the belief that these measures will reduce the likelihood of terrorist attacks. While people
are rightly concerned that the United States (U.S.) might be subject to another attack by Al Qaeda, n2 there is
a risk that increased security measures and surveillance will unduly focus on individuals and groups unlikely to
be involved in terrorism. n3 Those likely to be targeted by law enforcement, such as Muslims attending
mosques or political dissidents protesting war in Iraq, can face repercussions considerably more serious than
waiting in line to pass through a metal detector. n4
The history of the FBI and other law enforcement surveillance gives scant comfort to those engaged in lawful
political and religious activities who are [*623] concerned about becoming targets of surveillance. n5 From
its inception until restrictions on its activities were imposed in the mid-1970s - and even sometimes thereafter
- the FBI regularly conducted politically motivated surveillance, choosing targets based on their political or
religious beliefs. As part of its investigations, it compiled and widely disseminated political dossiers, engaged
in warrantless searches, and disrupted the lawful First Amendment activities of a wide array of groups
opposed to government policy. n6 Local police "Red Squads" did the same. n7 During the war in Vietnam,
the CIA, despite restriction of its mission to foreign intelligence, also conducted domestic surveillance
operations. n8 Religious groups engaged in political activity were among the targets of intelligence agency
investigations. n9
The most notorious example of FBI overreaching was its five-year campaign to discredit Martin Luther King,
Jr. and to "neutralize" him as an effective civil rights leader. n10 These efforts included sending Dr. King's
wife a tape recording obtained from microphone surveillance, accompanied by a note that many have
interpreted as an attempt to induce him to commit suicide. n11
Muslims who frequent mosques and Islamic centers - particularly those that express religious or political
views considered "extreme" - are now concerned about being subjected to abusive and unjustified law
enforcement behaviors similar to those documented by the Senate Committee to Study Governmental
Operations with respect to Intelligence Activities (hereinafter Church Committee Report) in 1976. n12
Without external constraints, law enforcement almost inevitably investigates
dissidents based on their political or religious expression. Moreover, legal controls on
surveillance have recently been lifted or modified, potentially facilitating renewed political surveillance. n13
[*624] Politically motivated surveillance such as that previously engaged in by the FBI raises serious First
Amendment concerns, including potential violations of associational rights. When investigations focus not on
legitimate law enforcement purposes but rather on subjects' First Amendment conduct, n14 fundamental yet
fragile constitutional rights are abridged. n15 One could accurately dub this [*625] phenomenon "political
profiling." n16 This form of profiling relies on guilt by association and is simply not an effective law
enforcement technique. n17
Targets of political surveillance typically report being chilled in the exercise of their rights to engage in free
speech and the free exercise of religion. And, suffering actual or potential damage to their reputations, they
change their behavior accordingly. n18 Many citizens and lawful residents are reluctant to engage in
First Amendment conduct if that activity will result in an FBI file branding them as extremists or
terrorists. And in the most extreme cases, information gathered can be used to destroy
organizations and lives. n19
The FBI recently has admitted surveilling mosques in nine U.S. cities, and to keeping certain Muslims in the
U.S. under intensive surveillance. n20 Agents have [*626] insisted that certain mosques provide them with
lists of worshippers. n21 In February of 2004, the Justice Department subpoenaed university records
concerning peaceful on-campus meetings of local antiwar activists. n22 In 2003, the New York City Police
Department questioned arrestees at antiwar demonstrations about their political affiliations and entered the
information into a database. n23 Months later, the media reported that the FBI was collecting extensive
information on the antiwar movement, in a search for "extremists." n24 Moreover, the FBI has continued to
question political demonstrators across the country, while the Justice Department has approved an FBI tactic
of encouraging local police to report suspicious behavior at political and antiwar demonstrations to
counterterrorism units. n25
In 2002, Chicago Police infiltrated five protest groups, including the American Friends Service Committee.
n26 Although information concerning the full extent and nature of current surveillance is not available,
history demonstrates that, absent meaningful restrictions, politically motivated
surveillance will increase, as the Church Committee concluded. n27
The Supreme Court's expansive construction of the First Amendment-based right of association, as originally
defined in NAACP v. Alabama, n28 and delineated most recently in Boy Scouts v. Dale, n29 can protect
groups engaged in First Amendment conduct from unjustified political or religious surveillance that causes
them cognizable harm. Because privacy in association is fundamental to the First Amendment, because
political surveillance causes significant harm to expressive association, and because a group's conception of
the conduct that would interfere with its expression must be taken into account, the right of association
may outweigh the State's interest in appropriate instances.
[*627] While limitations on surveillance cannot unduly restrict the Government's ability to conduct
necessary intelligence-gathering, requiring a reasonable suspicion of criminal activity
before investigating First Amendment activity can help achieve a suitable
balance between national security interests and associational rights. n30 This
evidence of criminal activity supplies the compelling state interest that justifies narrowly tailored
investigations. Thus, protection of national security can coexist with civil liberties, and political
profiling can be eliminated when investigations are premised upon a
legitimate law enforcement purpose, rather than on protected beliefs.
In fact, the thesis of this Article is that the Constitution should prohibit domestic surveillance of U.S. persons'
First Amendment activity n31 in the absence of a reasonable suspicion of criminal activity. n32 Politically
motivated investigations are not permissible, since the mission of law enforcement is to enforce the
criminal laws, not to monitor political or religious expression. The history and purposes of the
constitutional right of association corroborate this conclusion. n33
A consent decree that essentially adopts the approach I endorse was recently entered in a political surveillance
lawsuit against the Denver Police Department. n34 In addition, the reasonable suspicion standard should be
adopted - or retained - in legislation, regulations, and guidelines that apply to the FBI and other law
enforcement agencies. This standard remains for police departments accepting federal aid. n35 The FBI's
guidelines on domestic terrorism investigations employed the standard, or its substantial equivalent, for
twenty-six years, before severely curtailing its use. n36 The Church Committee Report recommended [*628]
employing the standard in terrorism investigations as early as 1976. n37 In light of the Supreme Court's
current conception of the constitutional right of association, the legal arguments favoring restraints on
political surveillance are stronger than ever. Those legal restraints should now be strengthened,
rather than removed.
Section I of this Article gives a historical overview of past surveillance practices, including a description of the
various techniques employed. Section II elaborates on the overlapping doctrines of associational privacy and
expressive association, along with the underlying policies embedded in them. Section III analyzes the
relationship between expressive association and political or religious surveillance. It identifies both the costs
and benefits of political surveillance. It also argues - from a First Amendment perspective - that politically
motivated and targeted surveillance unconstitutionally violates the right of association unless a reasonable
suspicion of criminal activity exists. Moreover, even if a reasonable suspicion exists, the least restrictive
method of investigation must be employed. The Article then concludes by urging restraint and recollection of
past abuses of civil liberties in times of national trauma. n38
External checks are necessary to curtail FBI surveillance and ensure guidelines are
perceived as properly designed and implemented.
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
Executive Summary
Successful domestic counterterrorism policy is vital to keep the homeland safe. In this effort, policymakers
must resist the oft-exhibited tendency to overreact to the threats we face. This overreaction, time and again,1
takes a similar form: In the face of a perceived existential threat, we expand the scope of the government’s
powers while simultaneously diminishing oversight of and accountability for the use of those powers. We fail
to ensure that these powers will be employed in a manner consistent with our fundamental values. Civil
liberties—such as privacy and freedom of expression, association, and religion—are often curtailed. In the
wake of 9/11, government action exhibited this tendency across a wide range of counterterrorism policies.
To his credit, President Obama acknowledged this overreaction in several areas, implementing much-needed
modifications to inherited policies, which improved procedural protections, guarded against civil liberties
violations, and increased transparency. But in many respects, the Obama Administration’s counterterror
efforts resemble those of the Bush Administration’s second term. This is especially true in the context of
countering domestic terrorism threats.
One key example: The Obama Administration’s choice to rely upon rules drafted by its predecessor to
increase the FBI’s authority for domestic investigations, including probes into terrorist threats. We believe
these rules, known as the Attorney General’s Guidelines for Domestic FBI Operations (“Attorney General’s
Guidelines” or “Guidelines”), tip the scales too far in favor of relatively unchecked government power,
allowing the FBI to sweep too much information about too many innocent people into the government’s
view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very
counterterrorism efforts they are meant to further.
And while some may doubt the severity of these threats, nobody can argue that such broad powers in the
hands of government officials should not be monitored regularly to ensure that they are not being abused.
The Guidelines, implemented by Attorney General Michael Mukasey in December 2008, are considerably
more permissive than earlier versions implemented by previous Attorneys General. This permissiveness raises
two concerns. First, the Guidelines expand the FBI’s discretion to investigate individuals and groups while
simultaneously limiting oversight requirements and thereby risk opening the door to invasions of privacy and
the use of profiling on the basis of race, ethnicity, religion, national origin, or political ideology. In so doing
they also risk chilling constitutionally protected activities. Second, the Guidelines could render the FBI’s
counterterrorism efforts less effective. Some perceive investigations under these Guidelines to impact
disproportionately the freedom of expression and association of law-abiding members of certain groups.
This perception risks undermining any otherwise beneficial aspects of the Guidelines by alienating
the very communities whose cooperation is most essential. Moreover, the sheer volume of information
collected raises the concern that it will elude meaningful analysis.
The Mukasey Guidelines significantly loosen the restrictions on the FBI’s investigative powers that had been
in place for decades—restrictions that remained even in the Guidelines implemented by Attorney General
John Ashcroft in the wake of 9/11—in the following ways:
1. They authorize “non-predicated” investigations—substantive investigative activity in circumstances in
which there is no “information or . . . allegation indicating” wrongdoing or a threat to national security.2
2. They permit intrusive investigative techniques—such as using informants, conducting interviews under
false pretenses, and engaging in unlimited physical surveillance—during non-predicated investigations.
3. They encourage the government to collect, retain, and disseminate vast amounts of information about lawabiding individuals.
4. They weaken procedural safeguards—eliminating or reducing many of the requirements for supervisory
approval of particular investigative techniques and temporal limits on investigative activity—that have been
integral to the Guidelines’ regime since it was first implemented in 1976.
These changes are not merely cosmetic. They grant the FBI license to employ intrusive techniques to
investigate Americans when there is no indication that any wrongdoing has taken place. This means that FBI
agents can collect and retain vast amounts of information, much of it about the innocent activities of lawabiding Americans. And it can then retain that information indefinitely and share it with other government
agencies. It is thus crucial to ensure that sufficient limits, as well as meaningful internal and external
checks, are imposed on this power.
We cannot know how much of this information-collection occurs, or how frequently it leads to the
identification and neutralization of threats. But what we do know is that the Guidelines grant government
officials significant discretion in making investigative decisions. In the absence of meaningful limitations
on the FBI’s authority, agents or informants may attend religious services or political gatherings to ascertain
what is being preached and who is attending. They may focus their attention on particular religious or ethnic
communities. They may gather and store in their databases information about where individuals pray, what
they read, and who they associate with. All with no reason to suspect criminal activity or a threat to national
security. And then they may keep that information in their databases, regardless of whether it indicated any
wrongdoing.
We also know that without sufficient limits and oversight, well-meaning efforts to keep the homeland
safe—efforts which rely heavily on the collection and analysis of significant amounts of information about
Americans—can adversely impact civil liberties. Indeed, history teaches that insufficiently checked
domestic investigative powers frequently have been abused and that the burdens of this abuse most
often fall upon disfavored communities and those with unpopular political views. Investigations triggered by
race, ethnicity, religious belief, or political ideology may seem calibrated to address the threat we face, but
instead they routinely target innocent people and groups. Beyond the harm done to individuals, such
investigations invade privacy, chill religious belief, radicalize communities and, ultimately, build
resistance to cooperation with law enforcement.
Given the risks posed by placing such power in officials’ hands, it is particularly important to ensure that the
FBI’s domestic authorities are designed and implemented in ways to ensure both that they minimize
these adverse effects and that the cost of any drawbacks that do persist is outweighed by what is gained. In
other words, unless the Guidelines effectively enable law enforcement to counter the terrorist threat, the risks
they pose to civil liberties are too high. It is therefore also critical to know how the Guidelines are being
administered and whether they are effective.
In designing Guidelines that allow the FBI to combat the threat of terrorism while protecting our values, it is
important to note one additional fact: the United States is not at war with Islam. Indeed, to the contrary.
Presidents Obama and George W. Bush both took great pains to disavow any implication that the U.S.
struggle was against Islam as such.3 Policymakers past and present,4 scholars,5 national security experts,6 and
terrorists7 themselves all recognize that any appearance that the U.S. views Islam as the enemy actually
provides Al Qaeda and its allies propaganda that aids recruitment and creates additional risk for our armed
forces.8 While a tiny minority of Muslims adopt a perverse version of their faith that encourages violence, the
vast majority of American Muslims are law-abiding, patriotic, productive members of society. Any
investigative scheme that singles out groups or individuals for government scrutiny based on the assumption
that all Muslims in the U.S. are potential terrorists fosters an environment of suspicion and distrust and is
likely counterproductive as well.
Again, we do not know exactly how these powers are being used or whether they are being abused. Nor do
we know what measures, if any, the Justice Department has taken to protect against such abuse. What we do
know is this: the Guidelines, on their face, raise new and troubling concerns about possible violations of civil
liberties on a wide scale. Ensuring that such abuses do not, in fact, take place requires two types of remedies.
First, some of the powers extended to the FBI should be curtailed. In addition to any substantive
changes, however, we must ensure that there are meaningful checks on the FBI’s remaining powers—
internal checks, such as supervisory approval requirements and regular reviews, as well as external checks,
from both Congress and the public.
The current Guidelines can be modified relatively easily. A few changes will limit agents’ discretion and
increase oversight and accountability mechanisms. This report recommends two types of changes to the
existing guidelines. First, procedural mechanisms should be put in place to ensure sufficient oversight of how
the Guidelines are used, and whether they are effective. Such mechanisms must exist both within the Justice
Department and outside it. For example, Congress should undertake regular reviews of the Guidelines, the
ways in which they are being implemented, and their level of effectiveness. Second, some of the most
dramatic expansions of FBI power should be scaled back, both to ensure that intrusive investigative
methods are used only when there are facts indicating a need for further investigation and to guard against
improper consideration of race, religion, ethnicity, national origin, or political ideology in
investigative decisions.
Reasonable Suspicion Solvency
The plan applies stricter First Amendment standards to protect the constitutional
right to association
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
III. Expressive Association and Political/Religious Surveillance
This Section examines the governmental and associational interests implicated in surveillance of First
Amendment activity, employing the Supreme Court's decisions on associational rights beginning with
NAACP and culminating with Dale. Although surveillance issues are generally analyzed solely under the
Fourth Amendment, political surveillance should be analyzed primarily under the stricter standards of
the First Amendment because it is directed at political and religious speech. At the point of
convergence of the First and Fourth Amendments, the reasonableness restrictions of the latter inform
analysis, but the compelling state interest standard of the First Amendment should govern; otherwise, [*644]
expressive activity is not adequately and consistently protected. n152 To be consistent, First Amendment
standards should govern across the board, regardless of whether a search or seizure might occur.
Moreover, the Fourth Amendment does not cover much of the investigative activity involved in political
surveillance, either because no potential search or seizure is involved, or because individuals in a group setting
do not have the requisite "reasonable expectation of privacy." n153 Even so, the First Amendment protects
these individuals and groups from unjustified investigations that intrude upon their lawful expressive activity.
n154
[*645] Political surveillance is defined as an array of techniques employed by government agents to
investigate and record the political and religious beliefs and activities of those engaged in First Amendment
expression, ranging from infiltrating and disrupting organizational leadership to observing and recording
public events. n155 Note that the definition does not include terrorism investigations that are not based on
First Amendment expression.
In addition, I do not focus on investigations that are based on non-First Amendment conduct, but that
incidentally include First Amendment expression. These situations would include, for instance, an
investigation of certain members of a mosque because a known terrorist had held a meeting there. The
investigation could incidentally encompass First Amendment activity. Videotaping of demonstrators who
have announced a plan to engage in civil disobedience by blocking traffic could also fall into this category.
n156 Cases such as this would be analyzed under the more lenient test of United States v. O'Brien, n157
which rejected a First Amendment challenge to a federal statute prohibiting the destruction of draft cards.
The statute punished conduct that was not inherently expressive, and served an important state interest. n158
O'Brien's prosecution after symbolically burning his draft card was constitutional because the expressive
component of his action was ancillary to, though intertwined with, the conduct itself. n159 By contrast, the
investigations I discuss in this Article are initiated because of First Amendment expression. Targets are
chosen - or profiled - on the basis of lawful political or religious expression, not because of conduct.
First Amendments standards are more strict to curtail political surveillance
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP) ***footnote #30
n30. See infra text accompanying notes 221-68. Note that although this standard has been borrowed from
Fourth Amendment doctrine, political surveillance should be analyzed under the stricter standards of the
First Amendment, since political and religious speech - forms given the highest degree of protection - are
implicated.
AT: Circumvention
***note when prepping file --- many of the solvency cards, especially Berman 11,
make claims that are very useful to answer circumvention style arguments.
Circumvention won’t happen if surveillance is prohibited
Ackerman, 15 --- American national security reporter and blogger, national security editor for the
Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform;
Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to
circumvent congressional authority,” Lexis, JMP)
Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that NSA lawyers will
undermine surveillance reform. Robert Litt, the senior lawyer for director of national intelligence, James
Clapper, said during a public appearance last month that creating a banned bulk surveillance program was "
not going to happen ".
"The whole notion that NSA is just evilly determined to read the law in a fashion contrary to its intent is
bullshit, of the sort that the Guardian and the left - but I repeat myself - have fallen in love with. The
interpretation of 215 that supported the bulk collection program was creative but not beyond reason, and it
was upheld by many judges," said the former NSA general counsel Stewart Baker, referring to Section 215 of
the Patriot Act.
This is the section that permits US law enforcement and surveillance agencies to collect business records and
expired at midnight, almost two years after the whistleblower Edward Snowden revealed to the Guardian that
the Patriot Act was secretly being used to justify the collection of phone records from millions of Americans.
With one exception, the judges that upheld the interpretation sat on the non-adversarial Fisa court, a body
that approves nearly all government surveillance requests and modifies about a quarter of them substantially.
The exception was reversed by the second circuit court of appeals.
Baker, speaking before the Senate voted, predicted: "I don't think anyone at NSA is going to invest in looking
for ways to defy congressional intent if USA Freedom is adopted."
Congress can exercise oversight authority to ensure FBI compliance
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
4. Congressional Review.
• Congress also should exercise vigorously its oversight authority to police the FBI’s use of ts authorities.
Congress has multiple tools at its disposal to do so. It can hold oversight hearings—in fact, congressional
committees regularly hold hearings related to oversight of the FBI. The use and effectiveness of the
Guidelines should figure more prominently in those hearings, or separate hearings should be scheduled.
Congress also could choose to task the General Accounting Office (GAO) with responsibility for conducting
audits of the FBI’s use of the Guidelines. While the GAO has statutory authority to access data, documents,
and personnel, the FBI is not always entirely cooperative.289 FBI officials must insist that employees
cooperate fully with any congressional or GAO reviews.
AT: Harm of Surveillance is Subjective
Chilling from surveillance makes the harms objective
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
2. Objective Harm?
A threshold question in this inquiry is whether and under what circumstances the harms of surveillance
outlined supra are sufficiently objective and serious to outweigh the Government's assertion of a compelling
need for domestic security purposes. A related, and narrower, formulation of this issue is whether, despite an
assertion of harm that is supported by some evidence, a group subjected to surveillance has suffered objective
harm sufficient to render the claim justiciable. I explore the issues of harm and standing here because they
illuminate the types of harms courts have considered both direct and serious.
In 1972, the Supreme Court held in Laird v. Tatum n192 that plaintiff antiwar activists, complaining that an
Army intelligence surveillance program chilled their First Amendment expression, had no standing under
Article III because the harm they alleged was subjective. According to the five-to-four majority opinion,
plaintiffs alleged only that the existence of the program chilled their expression, not that they themselves were
targeted for surveillance that caused them direct harm. n193 These allegations were considered too indirect
and tenuous to render the claims justiciable. n194
[*654] The Court distinguished a number of previous cases in which it had allowed standing based upon
alleged chilling effects. n195 According to the majority, the governmental action challenged in those cases, to
which the plaintiffs were subject, was "regulatory, proscriptive, or compulsory." n196 Therefore, those
plaintiffs faced an objective harm - the government likely would act directly against them in a foreseeable way
if they did not conform their conduct to the challenged standard. n197 The opinion thus left open the
possibility of justiciability in cases where plaintiffs were directly targeted or otherwise affected by surveillance
that caused them specific, foreseeable harm. n198
[*655] Indeed, in Meese v. Keene, the Court subsequently held that a state senator who wished to show
Canadian films on acid rain presented a justiciable claim that the Justice Department's labeling of these films
as "political propaganda" would cause him objective harm. n199 Although the designation did not prohibit
showing the films, the senator claimed he was deterred from doing so because his reputation would suffer,
adversely influencing his career. n200 An opinion poll buttressed his claim. n201 The likely reputational harm
constituted an injury sufficiently objective to confer standing. n202
Since Laird, numerous lower courts have held political surveillance claims justiciable where the surveillance
targeted a particular group or individual. n203 However, courts have not agreed on the particular type of
harm that must result from the surveillance to make a claim justiciable. Some have required merely that the
surveillance have "chilled" a plaintiff's freedom of association or expression, n204 while others have required
specific, noticeable harm such as the loss [*656] of a job opportunity. n205 In addition, several courts have
required a showing of bad intent, which can be circumstantial and inferred from outrageous police conduct.
n206 [*657] Other courts have applied Laird straightforwardly and held surveillance claims nonjusticiable.
n207 But, at the very least, the line between subjective and objective harm is appropriately crossed
when an individual is able to assert that she was chilled from exercising her rights to expressive
association because she was a target of surveillance and that she was harmed in specific ways, such as loss of
reputation, or that the defendants' intent was illegal. This sort of harm is objective.
AT: Don’t Solve State / Local Surveillance
Continued federal surveillance in these particular contexts sends a dangerous signal
that discourages state and local agencies from adopting stronger federal standards
SF Chronicle, 14 (12/23/2014, Chronicle Staff Report, “Obama administration’s new racial profiling
guidelines don’t go far enough,” http://www.sfgate.com/opinion/editorials/article/Obama-administration-snew-racial-profiling-5951702.php, JMP)
The Obama administration’s new guidelines about racial profiling were released last week, replacing the Bush
administration’s 2003 guidance. The administration didn’t release them in response to national protests over
several recent cases of white police officers killing unarmed black men, but the timing is interesting. The new
guidelines point out the limitations of the federal response to such cases — and also show how difficult it is
to change practices of racial profiling.
The new rules prohibit federal officers, such as the FBI and the Secret Service, from profiling based on race,
ethnicity, national origin, gender, religion or sexual orientation. Federal agents can only take these factors into
consideration if they are looking for a specific subject who fits that category. They can’t simply sweep up
certain groups in a search for criminal behavior.
Attorney General Eric Holder ordered the review in 2009. At the time he noted that racial profiling destroys
community trust in law enforcement and the justice system, and that, much of the time, it doesn’t even work.
So why is the federal government still allowing racial profiling at airports and border checkpoints?
The new federal guidelines are simple and humane, and they will cover many federal officers. But it’s
disappointing that the administration chose to exempt not only border and airport security screening, but also
crucial federal personnel like military officers.
The new guidelines won’t do much for local communities struggling with racial bias in their police
departments either: The guidelines are not binding on local and state police agencies. Only local law
enforcement officers who are participating in federal task forces will need to abide by the new policy.
The administration has said that it hopes local police will eventually adopt the federal standards. But
by making the policy optional, it’s undercut its own argument. And the decision to exempt many
of the most sensitive federal agencies sends the message that local law
enforcement need not take this seriously.
We’re glad to see these guidelines, and we’re certain that federal officers will be pleased with the results they
get from employing them. But the administration needs to go further. Racial profiling isn’t acceptable for
anyone.
We solve state and locals too --- they often utilize federal funds and collaborate with
federal agents
The Leadership Conference on Civil and Human Rights, 15 (2/24/15, The Leadership
Conference on Civil and Human Rights, “Re: Concerns with the U.S. Department of Justice Guidance for
Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion,
Sexual Orientation, or Gender Identity,” http://www.cair.com/images/pdf/2015-02-24TheLeadershipConferenceSign-OnLetterReDOJGuidanceRevisions.pdf, JMP)
4. Finally, the new Guidance does not take any steps to prohibit profiling by state and local law enforcement
agencies, except while such agencies are participating in a “federal law enforcement task force.” Yet, as
described above, state and local law enforcement agencies like the NYPD, the Ferguson Police Department,
and the Cleveland Police Department have encounters with community members every day that raise serious
concerns about discriminatory policing.4 State and local law enforcement intelligence fusion centers also
collect substantial amounts of personal data about individuals with little oversight, though they often utilize
federal funds and involve collaboration with federal agents and analysts. The new Guidance does not
mandate that fusion centers take steps to eliminate policing practices that target people based on race,
ethnicity, national origin, religion, or other protected categories. DOJ should announce a policy of greater
accountability for police agencies that receive federal funds:
a. DOJ should condition federal funds to state and local law enforcement agencies on whether the agency has
adopted a policy prohibiting the use of race, color, religion, national origin, sex, sexual orientation, and gender
identity as a factor in its law enforcement activities, absent suspect-specific information that includes a racial,
ethnic, religious or other protected category identifier. DOJ has authority to impose these requirements under
Title VI of the Civil Rights Act of 1964, the Omnibus Crime Control and Safe Streets Act of 1968 ("the Safe
Streets Act"), and the Violence Against Women Act of 1994 ("VAWA") as amended. Independent of these
statutes, DOJ has additional authority under the authorizing statutes for DOJ-funded programs to adopt
reasonable conditions to ensure federal funds are used in a manner that is not arbitrary and is consistent
with statutory program goals. DOJ should use this authority to codify protection from discrimination
based on sex, sexual orientation, and gender identity in program regulations where not already covered by
applicable statute. If the agency fails to adopt such a policy, and disparities based on race, religion, national
origin, sex, sexual orientation, or gender identity are found within their policing policies and practices, then
DOJ should use its existing authority under Title VI of the Civil Rights Act of 1964, the Safe Streets Act of
1968, VAWA, and the DOJ program authorities to demand compliance or initiate termination proceedings.
b. DOJ should engage in compliance reviews of select state and local law enforcement agencies and expand
these reviews to all local law enforcement agencies that receive funding, either directly or indirectly from
DOJ, to determine whether they are complying with the above requirements in all of their law enforcement
activities.
c. DOJ should announce that going forward, in order for a state/local agency to be able to “attest” to its Title
VI, Safe Streets Act, and VAWA compliance, and compliance with any additional program nondiscrimination
regulations, the agency must have a policy prohibiting profiling based on the above factors, publicize the
policy, and provide training to their officers on how to comply with the policy.
d. DOJ should enhance its training programs for law enforcement agencies on how to comply with all
applicable nondiscrimination laws and regulations. The Office of Justice Programs and the Civil Rights
Division are doing some of this now, but not in a very systematic way.
e. As part of this new policy, DOJ should commit to providing materials in furtherance of the above
requirements to all police agencies that receive federal funds, including model policies, model training
materials, etc. f. DOJ should require all state and local law enforcement agencies that receive federal funds to
collect data on the use of race, ethnicity, gender, national origin, or religion in their law enforcement activities.
AT: Don’t Solve All Surveillance
FBI surveillance outweighs alternative causalities --- it plays the central role in
domestic surveillance
Harris, 14 --- senior staff writer at Foreign Policy, covering intelligence and cyber security (7/9/2014,
Shane, “The FBI’s Dirty Little Secret; The NSA wasn't the only one snooping on ordinary Americans,”
http://foreignpolicy.com/2014/07/09/the-fbis-dirty-little-secret/, JMP)
Believe it or not, some officials at the National Security Agency are breathing a sigh of relief over Glenn
Greenwald’s new exposé on the government’s secret surveillance of U.S. citizens. That’s because it’s the FBI
that finds itself in the cross-hairs now, in a story that identifies by name five men, including prominent
Muslim American civil rights activists and lawyers, whose emails were monitored by the FBI using a law
meant to target suspected terrorists and spies. The targets of the spying allege that they were singled out
because of their race, religion, and political views — accusations that, if true, would amount to the
biggest domestic intelligence scandal in a generation and eclipse any of the prior year’s revelations
from documents provided by leaker Edward Snowden.
After a year in which the digital spies at the NSA have taken unrelenting heat on Capitol Hill and in the
media, it’s rare for the FBI to come under scrutiny — and that’s surprising, given the central role that
the bureau plays in conducting surveillance operations, including all secret
intelligence-gathering aimed at Americans inside the United States. "It’s an
important point of distinction that it was the FBI directing this, not the NSA," said a former senior
intelligence official, welcoming the shift in focus away from the beleaguered spy agency to its oftenoverlooked partner.
Ever since the 9/11 attacks, the FBI has been frequently cast as the judicious and measured army of the war
on terror, the home to interrogation experts who know how to coax secrets out of detained terrorists without
resorting to the "enhanced techniques" of the CIA. But now, the FBI, and with it the Justice Department,
finds itself exposed for spying on Americans who were never accused of any crime, and in the position of
having to defend and explain its reasoning for taking that intrusive step.
Greenwald’s story is based on a spreadsheet purportedly compiled by the NSA showing individual
surveillance targets, identified by their email addresses. (The government has neither confirmed nor denied
the document’s authenticity.) NSA technology and personnel were undoubtedly used to monitor the targets’
email accounts, but the spreadsheet calls the FBI the "responsible agency" for surveilling the five men
named in the story — as it would be for any targets located inside the United States.
All five, including an Iranian-American professor at Rutgers University and a prominent Muslim civil liberties
leader, told the Intercept that they deny any involvement with terrorists or spies. None has been accused of
terrorism, espionage, or any other crime. One, Faisal Gill, even held a senior position at the Department of
Homeland Security in George W. Bush’s administration and was granted a government security clearance.
What they do have in common is their Muslim heritage and Middle Eastern or South Asian extraction. And
some of the men say that’s precisely why they were targeted.
"[T]he FBI has been mapping a broad spectrum of communities, including
American Muslim communities, the African American community and Latino
American communities, without any basis for individualized suspicion," the
Council on American-Islamic Relations, whose executive director, Nihad Awad, was among the five men
reportedly spied on by the FBI, wrote in a letter, co-signed by numerous civil rights groups, to President
Barack Obama on Wednesday, July 9.
"What we’ve seen is mounting evidence of abuse," said former FBI agent Mike German, pointing to the
latest revelations as well as a recent report in the Washington Post that examined the NSA’s so-called
incidental collection of the communications of Americans swept up while the agency spied on foreigners.
"There needs to be a much more thorough investigation and much more transparency to ensure Americans
that these programs are being operated in the way they’re being told and in the way that Congress and the
courts are being told," said German, now a fellow at the Brennan Center for Justice’s Liberty and National
Security Program in New York.
Offcase Answers
AT: DA Terrorism --- Secrecy Link Answers
Plan won’t tip off anyone --- making constraints public triggers effective enforcement
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP) ***note --- DOIG = Domestic
Investigative Operational Guidelines which implement the Attorney General’s Guidelines
Perhaps most troublingly, the rules regarding the most intrusive investigative techniques permitted in the
absence of factual predicates for investigation—pretext interviews and undisclosed participation in religious
and political gatherings—are redacted entirely (despite being labeled unclassified) from the publicly available
DIOG. So whether the DIOG aims to mitigate any of the troubling aspects of these techniques is impossible
to say. And if they do impose additional restrictions, the fact that they do so secretly limits their
effectiveness as a constraint—if no one outside the Justice Department knows the rules to which agents
are expected to adhere, enforcement of those rules becomes a matter of FBI grace.149
***footnote #149
149 The FBI likely would argue that shielding its investigative techniques from public scrutiny is necessary to
prevent from evading detection the potential criminals and terrorists that investigations are meant to thwart.
And in the context of particular investigations, this concern is a significant one. With respect to cloaking
entire policies in secrecy, however, this justification rings hollow. Simply publishing the conditions under
which an FBI agent is permitted to attend religious gatherings and what sort of information she is permitted
to collect there will not tip off anyone that an agent plans to visit a certain place of worship at a certain
time in order to discover whether anyone is advocating use of violence there. Just as the rules regarding
the permis-sible use of electronic surveillance are published in the U.S. Code, the rules regarding other
investigative techniques should be subject to public scrutiny.
AT: DA Terrorism --- Info Overload & FBI Overstretch Turn
Surveillance doesn’t increase security and only undermines terror prevention by
alienating key communities, causing info overload and overstretching FBI resources
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
II. The New Changes Should Be Reconsidered
The expansion of FBI powers contained in the 2008 Guidelines will have predictable consequences. Lessons
of the FBI’s history teach us that, in the absence of sufficient oversight and limitations on intelligencecollection activities, civil liberties will be trenched on in our pursuit for security. This could happen in several
areas. First, the ability to conduct “assessments” without any factual predicates is almost certain to lead to
undue intrusions into the privacy of law-abiding Americans. Second, anecdotal evidence suggests that the
Guidelines already have chilled First-Amendment-protected activity, and likely will continue to do so. Third,
the burden of these civil liberties concerns likely will fall disproportionately on Muslims and persons
of Arab or South Asian descent, as agents whose investigative decisions are unconstrained by objective
factual criteria will be more likely to fall back on conscious or subconscious biases. This, in turn, will make
the FBI less effective in countering the terrorist threat as targeted communities are alienated and
rendered less willing to cooperate with law enforcement. Moreover, studies show that profiling is not an
effective tool.
Finally, we cannot be sure that the FBI’s newfound collection authority does, in fact, lead to increased
security. As the Washington Post’s recent series of reports on “Top Secret America” makes plain, the scope
of America’s surveillance-industrial complex is so massive, with so many agencies engaging in overlapping
and redundant activities, it is impossible to determine the efficacy—from a security standpoint—of the
billions of dollars we spend and the volumes of information the government collects.150 Some even
argue that this increased scope of collection will make us less safe, because the collection of vast amounts of
information unrelated to factual indications of wrongdoing or threat could overwhelm the Bureau’s ability
to analyze effectively and employ the information it has collected.
In the face of these adverse effects, the executive branch has yet to articulate persuasively any countervailing
operational considerations that would justify retaining the most recent changes to the Guidelines. Thus the
powers they confer should be curtailed. In any event, the implementation of all investigative powers should
be monitored closely and subjected to strict oversight for both compliance and effectiveness.
A. The Guidelines’ Adverse Effects on Civil Liberties and Law Enforcement Effectiveness
On their face, and in light of the history of intelligence-collection in this country, the Mukasey Guidelines
raise concerns that they might lead to significant imposition on Americans’ civil liberties. In examining the
varied ways in which this result might come to pass, the Guidelines’ overbreadth becomes clear. Moreover,
the need for vigilant, regular review of the FBI’s authorities, as well as internal and external oversight
mechanisms becomes all the more evident.
1. Threat of Privacy Invasions
The new Guidelines may pose significant threats to Americans’ privacy. They permit the collection of vast
amounts of information without any factual predicate and with no supervisory approval. Add to this
expansive authority the Guidelines’ encouragement to agents to “take the initiative” and be proactive,151 and
it seems likely that the FBI will be amassing substantial amounts of information on many Americans who
have never been suspected of wrongdoing. The more the FBI sees itself as an intelligence-collection agency,
the more robust these collection-without-suspicion activities are likely to be.
Such collection seems to be at the heart of the government’s counterterrorism efforts, both inside and outside
the FBI. It is important to note that the FBI Guidelines are just one small part of a broader surveillance
scheme.152 Each element of this scheme is engaged in aggressive information-collection and analysis. An
illustration comes from the National Security Agency (NSA), the agency primarily responsible for the
collection and analysis of various forms of communication. The NSA is building vast new facilities to increase
its information-storage capacities.153 One facility, in Utah, measures one million square feet; another, in San
Antonio, is roughly the size of the Alamodome.154 The amount of data expected to reside in these facilities
has been estimated in the Yottabytes (as an indication of the size of a Yottabyte, numbers beyond Yottabytes
have not yet been named).155
The fact that the FBI will likely be gathering information on law-abiding Americans is particularly troubling in
light of the methods it is now authorized to use. Going to political meetings or religious services to collect
information about what takes place there and who attends; pretending to be an investigative target’s new
neighbor or business associate, or stationing agents outside the target’s home or office—even having them
followed—so that their movements are tracked day and night; accessing without a court order telephone and
e-mail subscriber information. These are highly intrusive and invasive techniques, and Americans have a right
to expect that they will not be subject to such government intrusion unless the government has some
objective reason to suspect illegal activity or wrongdoing.
The collection and analysis of information from existing sources—another technique that FBI agents can
employ in the absence of a factual predicate—seems less troublesome at first blush. After all, why shouldn’t
the FBI be permitted to access information already in the government’s possession, or information available
on the internet? In fact, however, the sophisticated collection and analysis of such information by FBI is
significantly more revealing than a simple Google search that a private individual might conduct. Through
public, commercial, and government databases, the FBI can readily collect vast amounts of employment
information, residential information, financial information, information about shopping habits, and the like.
This information can then be subjected to algorithmic data-mining, stored, or disseminated to other
government databases and agencies.
The threat here is far from theoretical. Like the NSA, the FBI’s National Security Branch has amassed vast
amounts of information in its Analysis Center (NSAC), which houses multiple databases “[c]omposed of
government information, commercial databases and records acquired in criminal and terrorism probes.”156
The stored information includes international travel records of citizens and aliens, financial forms, hotel and
rental car records, a log of all calls made by federal prison inmates, and a reverse White Pages with 696
million names and addresses tied to U.S. phone numbers.157 The FBI plans to expand the data set to include
yet more travel records, as well as tax records from non-profit organizations and multiple databases whose
descriptions are redacted in a now-available (though formerly classified) document.158 Most Americans
would agree that the FBI should not be permitted to compile a dossier on every American. But the
accumulation of these databases into one facility means that such a dossier is just one mouse-click away.
Accordingly, all collection and use of information—even publicly available information—must be effectively
policed.
The prospect of expansive collection of information leads to another concern. Even if information the FBI
collects at the assessment stage provides no basis for further investigation—indeed, even if it wholly
exonerates a group or individual from suspicion—that information will remain in government databases
indefinitely for analysis and dissemination to other agencies. According to the Guidelines, since investigative
“activities also provide critical information needed for broader analytic and intelligence purposes to facilitate
the solution and prevention of crime, protect the national security, and further foreign intelligence
objectives,” all information collected “at all stages of investigative activity is … to be retained and
disseminated for these purposes … regardless of whether it furthers investigative objectives in a narrower or
more immediate sense.”159 To this end, the Guidelines include broad information-sharing provisions.160
While it is indisputable that the FBI should be permitted to share appropriate information with other
government agencies as well as local law enforcement for legitimate law enforcement purposes, the prospect
of keeping and sharing large amounts of information about Americans under no suspicion of wrongdoing
raises serious privacy concerns.
These possible invasions of privacy raise concerns not only because of their infringement on Americans’
fundamental rights. They also breed cynicism, resentment, and distrust towards law enforcement and
government officials. Revelations of unwarranted invasions of privacy raise the specter of historic, Hooverera FBI excesses. To be sure, today’s FBI bears little resemblance to that unregulated agency shrouded in
secrecy. But federal law enforcement agencies posses the authority and the technology to engage in invasions
of privacy far beyond those that took place in the Hoover era. And even if such excesses are the
exception rather than the rule today, concern over systemic abuse arises with each isolated
instance of overreaching.
2. Chill to First-Amendment-Protected Activity
The FBI’s broad authorities also risk causing significant chill of First-Amendment-protected religious and
political activity. As First Amendment expert Floyd Abrams noted with respect to the pre-Guidelines FBI’s
impact on free speech, “[t]he ‘chill’ on speech was real; Hoover intended just that and achieved just that.”161
Under the Guidelines, agents are permitted to attend all gatherings, events, political rallies, and religious
services open to the public. How will they decide which ones to attend? If history provides any lessons, such
decisions will often be based on some form of religious or political profiling. Certainly the Hoover-era
operations were targeted at minorities and political dissidents, aiming to harass and disrupt their
operations.162 But even in the post-Guidelines era, innocent political and religious groups have been targeted
and investigated. Recall the 1980s investigation into CISPES, the activist organization opposed to Reagan-era
El Salvador policy. The investigation, and others like it from that same era, gathered a wealth of information
on activist groups, with investigations of particular groups sometimes triggered solely on ideological similarity
or association with other groups already under investigation.163 Investigators monitored meetings, rallies,
demonstrations, religious services, and other protected activity.164 But the CISPES investigation produced
“no reliable information of planned violence or other illegal activity.”165 Another example is the Cold-Warera Library Awareness Program, which consisted of regular FBI visits to public and university libraries to seek
information about the readers of unclassified scientific and technical journals, sometimes asking “librarians to
be wary of ‘foreigners’ or persons with ‘East European or Russian-sounding names.’”166
In the post-9/11 context, one study catalogs the experiences of dozens of law-abiding members of the
Muslim, Arab, and South Asian (MASA) communities upon returning to the United States from abroad. They
have been subjected to intrusive questioning by customs agents about their religious practices, political views,
and charitable giving, as well as searches of their laptops, cell phones, and digital cameras, pursuant to a policy
that permits such questioning and searches absent any individualized suspicion of wrongdoing.167 And FBI
Director Robert Mueller ordered all FBI branch offices to count the number of mosques within their
jurisdiction as a starting point for proactive investigation of potential terrorists.168
Imagine an FBI agent attending a religious service in which the priest, reverend, rabbi, or imam engaged in
stark anti-government rhetoric, criticizing American foreign policy in the Middle East and sympathizing with
the desire of residents of Middle Eastern countries to expel nonviolently U.S. military forces. Such expression
is at the very core of First Amendment protections—political speech neither intended nor likely to incite
actual violence, yet adamantly critical of U.S. actions. Americans are entitled to voice these sorts of opinions,
and they should not necessarily trigger FBI intelligence-gathering activities that ultimately are likely to chill
such expression. Yet such rhetoric, if observed in a mosque, likely would draw additional government
attention.
In fact, there are a range of First-Amendment-protected activities that agents can take into account during the
assessment stage to build a profile of traits that, taken together, are deemed suspicious. According to the FBI
itself, potential indicators of terrorist activity include taking notes, drawing diagrams, espousing unpopular
views,169 or taking photographs,170 and other law enforcement organizations have expressed the view that
increased religiosity is suspicious as well.171
The FBI’s aggressive investigation and infiltration of mosques has already had a profound chilling effect on
the exercise of fundamental rights, particularly religious freedoms. According to the New York Times, some
Muslims have “canceled trips abroad to avoid arousing suspicion. People are wary of whom they speak to.
Community groups say it is harder to find volunteers. Many Muslim charities are hobbled.”172 In the
Southern California Muslim community, reports the Los Angeles Times, “some people are avoiding mosques,
preferring to pray at home. Others are reducing donations to avoid attracting government attention… . And
some mosques have asked speakers to refrain from political messages in their sermons.”173 And while
empirical evidence of such claims is hard to come by, “Muslim leaders report a reduction in attendance at
mosques, a change in the language used at worship services, a decrease in contributions to Muslim charities,
and an erosion of the trust and good will that are essential to the vitality of a religious community.”174
When the FBI sends investigators to question people about their political activities, when it sends agents to
attend religious gatherings, when it monitors the calling records of members of the media, it can create a
profoundly chilling effect on First Amendment activities. The FBI can hardly pretend ignorance of this
effect, given that the agency has, at various points in its history, infiltrated political or religious groups with
the express purpose of creating a chilling effect on unpopular or anti-government expression.175 To engage
in activities likely to have such an effect, the Bureau should have to show that such an infringement is
justified by a particular level of suspicion.
Even the power to gather extensive information from public sources can contribute to the threat of First
Amendment chill. The FBI can compile publicly available information on religious or political figures,
government critics, or members of the media. If it does so based on a distrust of groups or individuals that
represent dissenting perspectives, that is just as problematic from a privacy and constitutional standpoint as if
those same motivations led to information gathering from non-public sources. Collection and use of
information on people’s First-Amendment-protected activities, even where those activities are carried out in
the public eye, is simply not appropriate absent a legitimate law enforcement justification. The Guidelines
need to exhibit sufficient solicitude for constitutionally protected activity.
3. Dangers of Profiling
Permitting investigations without factual predicate and with limited supervisory involvement is
overwhelmingly likely to lead to profiling176 on the basis of race, religion, ethnicity, national origin, or
political belief. In the absence of constraints imposed by a standard such as reasonable suspicion or
probable cause, FBI agents are now free, in many situations, to rely on their own discretion. As we
have seen time and again, individuals permitted such discretion in making law enforcement decisions are
influenced by their conscious or subconscious biases.177 And this reliance on bias can lead to profiling.
Historically, when law enforcement officials have been able to collect intelligence on groups and individuals
suspected—without any objective basis—of harboring ill will toward the U.S., the burden of that investigative
activity has fallen on groups that espouse disfavored ideologies, minorities, or others who are perceived as
threatening.178
Justice Department officials have assured both Congress and the public that “department rules . . . forbid
predicating an investigation simply based on somebody’s race”179 or “solely for the purpose of monitoring
activities protected by the First Amendment.”180 The question is not, however, whether investigative activity
will be motivated by race, religion, national origin, or political belief alone. Problematic profiling consists not
only of relying entirely on characteristics like race or religion, but of taking them into account, in the absence
of any particularized suspicion indicating that such characteristics are relevant, and making law
enforcement decisions based even in part on such factors. Reliance on that criteria—that an officer has
engaged in racial profiling only when the single factor, i.e., race, religion, ethnicity, etc., is used to make a law
enforcement decision—comes close to defining the problem of out existence. It would not prohibit many
inappropriate uses of these characteristics. For instance, it would not prohibit an officer from making
decisions based on two factors, such as ethnicity and gender, like investigating males of Arab descent because
they are males of Arab descent. Nor would it bar decisions based on the use of race and place, such as pulling
over black drivers in white neighborhoods because they are blacks in white neighborhoods.
Any meaningful restriction on the use of race, religion, national origin, or political belief would allow such
characteristics to be taken into account only when there is some indication that they are relevant to a
particular description of someone or some group engaged in particular criminal activities.
Moreover, while Justice Department rules place some limits on the use of race only in traditional law
enforcement activities, and they include an explicit exception for “law enforcement activities and other efforts
to defend and safeguard against threats to national security.”181 Thus the new Guidelines do nothing to
prevent allowing race to be considered as a factor in intelligence-collection activities, or in, for example,
developing terrorist profiles.182
Because the new Guidelines do not preclude the use of race or religion as a factor, profiling on the basis of
“race plus” or “religion plus” the activities listed above can expose a large population of innocent people
to the invasion of privacy that comes with being subjected to an FBI preliminary investigation.
Indeed, as law enforcement officials told The Associated Press, “[a]mong the factors that could make
someone the subject of an investigation is travel to regions of the world known for terrorist activity … along
with the person’s race or ethnicity.”183 Thus, for example, every individual of Pakistani origin who travels to
Pakistan to visit family members is at risk of being subjected to an FBI investigation merely on that basis. So
is every South Asian man who takes a photograph of the Brooklyn Bridge.
Indeed, the DIOG explicitly envisions community mapping based on ethnicity. Such activity is justified
by the possibility that concentrations of certain ethnic communities provide an opportunity for “identified
terrorist subjects from certain countries [to] relocate to blend in and avoid detection.”184 In other words,
ethnic profiling is already an express part of agency policy.
The profiling risk that the Guidelines pose is not limited to the factors of race, religion, ethnicity, or national
origin. They also threaten expressive activity. Admittedly, the Guidelines preclude investigations solely for the
purpose of monitoring activities protected by the First Amendment, and when investigations implicate First
Amendment rights, there are heightened notice and approval requirements.185 But these minimal precautions
are insufficient to negate the Guidelines’ threat to expressive activity. After all, it is much easier to identify
those who share the political beliefs or the religion of a particular group of terrorists than to identify and
locate those actually plotting harm. It was thus the groups seen to espouse unpopular ideology who were the
targets of FBI harassment and disruption during the Cold War. And, more recently, law enforcement officials
have inappropriately surveilled, infiltrated, or collected information on anti-war protesters, anti-death penalty
groups, and other political dissenters.186
Despite the government’s disavowal of Islam as the enemy, many of our post-9/11 counterterrorism efforts
have focused on communities of people who happen to be Muslim, Arab, or South Asian. Many will argue
that, because the terrorist threats with which we are most concerned emanate from those espousing an
extremist misinterpretation of the Muslim faith, and because many of those hail from majority Arab or South
Asian nations, counterterrorism efforts should focus on those groups or on those who come from countries
with majority Muslim, Arab, or South Asian populations. But this means of “focusing” investigations is
misplaced. To be sure, the threat posed by this sort of violent extremism is real, but in combating this threat
we cannot indict the millions of law-abiding people who happen to be part of the communities from which
the threat may emanate. In the past, law enforcement organizations have successfully policed groups engaged
in organized violence—like the mafia or the KKK—without trenching on the civil liberties of the entire
Italian-American or Southern Christian communities. They have also been able to focus on anti-abortion
groups that sometimes resort to violence without infiltrating all Catholic and evangelical Christian churches,
despite knowing that violent anti-abortion activists are often ideologically motivated. Of course the vast
majority of Muslims are not terrorists. Consequently, any counterterrorism policy aimed at collecting
information from within those communities, in the absence of a factual predicate indicating that criminal or
espionage-related activity is ongoing, will be sweeping in massive amounts of information about law-abiding
citizens.
There is general consensus that profiling is ineffective; nonetheless, law enforcement has engaged in several
tactics targeted predominantly at the Muslim community as a whole, and with unfortunate effects. Indeed
these many domestic anti-terror policies do not seem to have made us safer—in fact, the opposite
might be true. In some cases, data collected under these programs remains unanalyzed, wasting
countless man hours. In other cases, the policies have simply undermined the relationship between the
Muslim community and law enforcement, alienating the very people whose cooperation is
most essential to effective counterterror efforts.
Consider, for example, the many post-9/11 measures—some implemented by the FBI, others implemented
by other government agencies—that were targeted directly at the whole Muslim community. In the days and
months after the attack, thousands of individuals were subjected to interviews with the FBI.187 While the
interviews were labeled as “voluntary,” they took place at the same time as widespread roundups and
detentions of Muslim Middle Easterners. Interviewees therefore were likely to fear what might happen should
they refuse to talk to government officials. Moreover, while the interviews did not directly concern
immigration issues, an interviewee’s immigration status also could render an invitation to participate in a
voluntary interview much more coercive than the label “voluntary” might indicate.188 All of these individuals
were men hailing from countries with predominantly Muslim populations, even though they had no ties to
terrorism and there was no basis to suspect such ties.189
The government also established a mandatory registration program, the National Security Entry-Exit
Registration System (NSEERS), which required men over the age of 16 from about 25 countries—countries
that have predominantly Muslim populations or are located in the Middle East190—to register with the
federal government, be photographed and fingerprinted, and periodically re-register. And in 2004, Operation
Front Line, an effort to disrupt potential plots surrounding the presidential election, saw immigration officials
target more than 2,500 immigrants, 79% of whom were from Muslim-majority countries. These individuals
were asked what they thought of America, whether violence was preached at their mosques, and whether they
had access to biological or chemical weapons.191
And the Muslim Advocates’ study of the border-crossing experiences of members of the MASA community
revealed what seems to be a pattern of intrusive questioning by customs agents regarding individuals’ religious
practices, political views, and charitable giving, as well as searches of their electronic devices.192
The Mukasey Guidelines and the accompanying DIOG both extend to the FBI even more investigative
discretion than it enjoyed in the aftermath of 9/11 and seem to embrace certain forms of religion- or
ethnicity-based decisionmaking. The likelihood of investigative activity focused disproportionately on
discrete racial, ethnic, religious, or political groups—such as MASA communities or political dissenters—is
significant.
The likelihood of a return on the investment of resources such a policy represents is low. At the same
time, the costs it imposes are quite high.
Again the post-9/11 programs are illustrative. Two years after the FBI conducted its “voluntary” interview
program, neither DOJ nor FBI had bothered to analyze the data collected in the interviews and had no
plans to do so.193 According to agents, the interviews were a waste of time and “produced exactly no
useful information.”194 In the two years after 9/11, the NSEERS program registered over 83,000
individuals, sought out 8,000 men of Arab and Muslim descent for FBI interviews, and placed more than
5,000 foreign nationals in preventive detention. Of those thousands of individuals, not one was convicted of
a terrorist crime; the government discontinued the mandatory periodic re-registration element due to its
inefficiency.198 And the 2004 Operation Front Line effort to disrupt potential plots surrounding the
presidential election failed to yield actionable information. None of those interrogated were charged with
national security offenses; the offenses that were charged were largely immigration violations.199 Together,
these initiatives represented a massive investment of law enforcement resources in unpredicated investigative
activities that yielded negligible security gain.
These failures should come as no surprise. Instrumental
objections to racial profiling as a
law enforcement strategy are legion and well-documented.200 And the Justice
Department itself has acknowledged that racial profiling does not work.201 There are, of course, extreme
examples of failed efforts to use profiling as a law enforcement tool. For example, “the FBI sifted through
customer data collected by San Francisco-area grocery stores in 2005 and 2006, hoping that sales records of
Middle Eastern food would lead to Iranian terrorists.”202 But there is general consensus among experts that
even less extreme versions of racial, ethnic, or religious profiling are also ill-advised.
In fact, in the wake of 9/11, a group of senior U.S. intelligence specialists warned against using such profiling
as a means of combating terrorism.203 One of them noted that “fundamentally, believing that you can
achieve safety by looking at characteristics instead of behaviors is silly.”204
Even assuming that an accurate racial, ethnic, religious, or political profile could be generated for some
crimes—a dubious proposition—aspiring criminals could simply adapt to the profile, exploiting it to
evade detection. In the context of terrorism, would-be perpetrators anticipate and work around profiling
practices, choosing “front men” who do not fit the profile. For example, the perpetrators of terrorist plots
against Israeli air passengers have included, among others, a heavily pregnant Irishwoman (herself an
unwitting courier), Japanese men, and a Nicaraguan.205 Similarly, suicide bomb plotters in Israel have
adjusted to profiling by selecting women and children as bombers and by disguising bombers in secular or
even Orthodox Jewish clothing.206 And FBI Director Mueller has recognized that “the threat from
radicalization has evolved ….A number of [recent] disruptions occurred involving extremists from a diverse
set of backgrounds, geographic locations, life experiences, and motivating factors.”207 In other words, there
is no such thing as a terrorist “profile.”
The ineffectiveness of profiling as a law enforcement tactic (not to mention the constitutional problems it
raises208) led the Justice Department to ban the use of race as a factor in determining whether and whom to
investigate in the general criminal context. The Department’s prohibition, however, does not extend to other
aspects of minority status, such as religion or political ideology; nor does it apply to “law enforcement
activities and other efforts to defend and safeguard against threats to national security or the integrity of the
Nation’s borders.”209 The national security exemption, in particular, is a puzzling one. While one might
argue about whether national security justifies the individual indignities imposed by profiling, the Justice
Department has never explained why national security justifies using a technique that the agency itself
describes as ineffective. In any event, the new Guidelines, which cover criminal investigations as well as
national security and domestic intelligence collection, leave the door to profiling wide open.
Reliance on racial, ethnic, religious, or political profiling is not only ineffective; it is also affirmatively
counterproductive in several respects. First, profiling can waste resources210 by allocating money and
manpower inefficiently.211 Relatedly, when law enforcement officials focus on traits like race or
religion, they are more likely to overlook signs that actually do indicate heightened likelihood of
criminal intent.212 The shortcut that profiling may seem to provide is simply no substitute for the
investigation of substantive leads indicating possible criminal or terrorist activity.
Profiling on the basis of race, religion, or ethnicity also harms counter-terrorism efforts by alienating
MASA communities in the U.S. In discussing racial profiling of African Americans, the Justice Department
has warned of “a strong connection between perceptions of race-based stops by police and animosity toward
local and state law enforcement.” Such animosity, in turn, makes individuals less inclined to report crimes and
suspicious activity; to answer police inquiries and testify as witnesses; to affirmatively come forward with
evidence; and to serve as impartial, open-minded jurors.
The need for healthy police-community relations is especially strong in counterterrorism work. To
foil potential attacks, law enforcement needs accurate tips. Such tips are most likely to come from
“people who live in the communities where sleeper cells reside and can tell authorities who’s new in a
neighborhood and who seems to have income without holding a job.”214 A recent example comes from the
case of five Washington, D.C.-area Muslim men arrested in Pakistan on suspicion of traveling there to join al
Qaeda. It was the men’s families who alerted authorities when they became suspicious of their sons’
activities.215 And the prosecutions of the so-called “Lackawanna Six” came only after “Lackawanna’s
Yemeni community itself brought the men to the FBI’s attention.”216 Successful counterterrorism policy
thus requires forging a cooperative relationship with communities likely to learn of impending terrorist
plots.217 Such a cooperative relationship can exist only if there is confidence on the part of the
relevant communities that the means of investigating, disrupting, and prosecuting terrorist activity
are legitimate, without bias, and consistent with due process of law.218
By broadly targeting the very people most likely to be able to help, however, the FBI destroys this confidence,
sowing the seeds of distrust and contentiousness rather than cooperation and partnership.219 Profiling thus
interferes with law enforcement agents’ essential task of developing relationships with the communities they
police.
FBI Director Mueller denies that the new Guidelines have this effect, but there is significant evidence to the
contrary. Distrust of law enforcement, along with the government’s practice of using preliminary interviews
as a basis for later pressure to act as an informant or even as the basis for criminal charges, has led many
community groups to “strongly urge individuals not to speak with law enforcement officials without the
presence or advice of an attorney.”220 And the infiltration of mosques has caused increased tension
nationwide between Muslim communities and law enforcement, leading several Muslim groups to threaten to
suspend most contacts with the FBI over the issue.221 Several recent investigations where informers have
infiltrated mosques and promoted terror plots “have sown a corrosive fear” among many Muslims “that
F.B.I. informers are everywhere, listening.”222 And the use of informants in mosques in Southern California
has “frayed relations between the FBI and Muslims” to the point that one Muslim community leader
observed that “people cannot be suspects and partners at the same time.”223 An empirical study of
the Muslim-American community in New York indicates that the tendency to withdraw cooperation with law
enforcement based on perceptions of profiling is not merely anecdotal but represents a community-wide
trend.224 Perhaps it is no coincidence that the families who reported their suspicions regarding their missing
sons hail from the jurisdiction of the FBI’s Washington field office, which has engaged in productive
outreach to the local Muslim and Arab communities, meeting with leaders, fielding questions, and
participating in community activities.225
So in the absence of sufficient oversight and accountability mechanisms in place to curtail inappropriate use
of factors such as race, religion, national origin, or political opinion, investigators’ efforts to detect terrorist
plots could be less effective under the new Guidelines. Conversely, requiring more tailored collection of
information based on factual predicates could increase the likelihood that the government will
identify and obtain information that is actually effective in preventing terrorist activity.
Profiling has other negative effects as well. Religious or ethnic profiling imposes significant social burdens on
the profiled community. It causes humiliation, feeds “social opprobrium that leads to hate crimes”226 and
discrimination, and perpetuates racial inequality. It sends the message to minorities that they are viewed at all
times as potential criminals; that they are not valued members of society; and that they cannot rely on the
police for protection.227 This message risks breeding anger, cynicism, and lack of respect for government
more generally.228 As one report put it, “[o]ver the long term, [racial profiling] leaves persons of color with a
sense of powerlessness, hostility, and anger.”229 Moreover, profiling that targets minorities exaggerates any
differences that do exist between that community and the population at large. Significantly higher rates of
minority interaction with law enforcement perpetuate and exacerbate inequality, negative stereotypes about
minorities, and discrimination and violence based on these stereotypes.230 No community should be singled
out and burdened with the consequences that flow from being treated as if its members are more likely to
engage in criminal or terrorist activity.
4. Risks of Excessive Collection
Effective crime and terrorism prevention is not necessarily aided by the collection of more information; it is
aided by the collection of more of the right information, and the tools to analyze that information
effectively. If increased investigative discretion and the expansion of unfocused investigative activities results
in crowding government databases with irrelevant information, it could render investigative efforts less
effective.
Take the Guidelines’ permissiveness regarding the collection of information at the assessment stage. Allowing
the FBI to target for investigation people for whom there is no factual predicate of criminal activity or
threatening behavior increases the amount of information, already vast, that the Bureau will collect. This, in
turn, increases the raw material that analysts and agents must examine and analyze. According to FBI
Director Mueller, “the FBI receives well over 100 different feeds of criminal and terrorist data from a variety
of sources.”231 Consequently, “[i]t is a great challenge to ensure that intelligence analysts are able to
efficiently understand and analyze the enormous volume of information they receive.”232 Yet a recent
Inspector General report noted that the Bureau had failed to review “significant amounts” of wiretapped
phone calls and intercepted emails, in part due to a lack of qualified translators.233 Even useful information
can only further our security interests if we devote the time and resources to effective analysis—a task that
increases in difficulty as the volume of information rises. Resources might be better allocated to more
analysis capacity, rather than more (over)collection.
Note that high profile “intelligence failures” have, as a rule, resulted not from the lack of information, but
from the inability to effectively process that information. Consider the recent Christmas Day bombing
attempt aboard flight 253 from Amsterdam to Detroit. Government agencies were in possession of all of the
pieces of information necessary to have detected and prevented the bombing plot.234 But intelligence
agencies were unsuccessful in “connecting the dots” or in moving aggressively to identify the threat posed to
the U.S. homeland by Al Qaeda in the Arabian Peninsula.235 Similarly, while some have cited the 9/11
attacks as a justification for expanding the executive’s information-gathering authorities, the failure of U.S.
intelligence and law enforcement agencies to detect and prevent the 9/11 plot also resulted, in part, from
their failure to examine or follow up on information that they had already collected. 236
Another stark example of this phenomenon comes from across the Atlantic. A government report about the
investigation into the British subway bombings of July 7, 2005, revealed that two of the attack’s perpetrators
had been on law enforcement’s radar prior to the bombings.237 In fact, the mastermind of the plot,
Mohammed Sidique Khan, had crossed paths with British law enforcement on multiple occasions dating back
to 1993.238 Khan and a co-plotter, Shehzad Tanweer, had been identified as “desirable” targets of further
investigation and had surfaced four times during an investigation into a plot to detonate fertilizer bombs in
the U.K.239 But due to a lack of resources, the U.K. police never followed up on the men. In fact, “resources
were so stretched agents could not even assess whether ‘desireable’ targets should be examined in more
detail.”240 The lesson is clear: if limited investigative resources are diverted into massive, untargeted
surveillance efforts—as appears to have been the case in Great Britain241—fewer man hours are available to
pursue leads turned up during other investigations or to analyze information already in the government’s
possession.242
These examples illustrate that the FBI’s investment of time, energy, and resources might be more fruitfully
spent on efforts to remedy the problems identified by the White House review of the Christmas Day
incident—better coordination among elements of the intelligence community; improving information
technology capabilities; and ensuring a comprehensive, functioning process for tracking terrorist threat
reporting.243
Suspicionless surveillance backfires --- leads to excess useless info and undermines
critical community trust
German, 12 --- Senior Policy Counsel, ACLU Washington Legislative Office (3/9/2012, Michael, “FBI
Official Agrees with ACLU: Suspicionless Surveillance is Ineffective and Counterproductive,”
https://www.aclu.org/blog/fbi-official-agrees-aclu-suspicionless-surveillance-ineffective-andcounterproductive, JMP)
This week a high-level FBI official made some welcome comments on the NYPD's spying on New York
City's Muslim communities and organizations that mirror the ACLU's own position on the suspicionless
surveillance.
As you know, we at the ACLU we have long raised concerns about increasing levels of suspicionless
surveillance by law enforcement and intelligence agencies, whether enabled though legislation, like the Patriot
Act, Foreign Intelligence Surveillance Amendments Act, or proposed cybersecurity bills; or though policy and
programs, like the amendments to Attorney General Guidelines (AGG) governing the FBI, state and local
intelligence fusion centers, and "suspicious activity reporting" programs, to name but a few.
The ACLU's argument is suspicionless surveillance inappropriately invades the privacy of innocent persons
and failing to require a factual basis creating reasonable suspicion and probable cause before initiating
surveillance opens the door to biased policing, leading to unconstitutional racial and religious profiling and
spying on political activists in violation of their First Amendment rights.
Based on my experience in law enforcement, I have also argued that suspicionless surveillance is
ineffective and counterproductive as a security measure because it fills intelligence databases with
useless information and undermines community support for legitimate law enforcement and
intelligence activities directed at real threats.
Now, we are heartened to hear that the FBI agrees with us (or at least one high-level FBI official does).
Newark, N.J., FBI Special Agent in Charge (SAC) Michael Ward has spoken out in opposition to the NYPD
spying program:
"But (the NYPD) coming out and just basically mapping out houses of worship and minority-owned
businesses, there's no correlation between the location of houses of worship and minority-owned businesses
and counterterrorism" work, he continued. Ward also said there should be "an articulable factual basis" for
domestic intelligence collection, such as a 'specific reason why we're looking at this location, this person'."
He went on to describe the negative impact these types of operations have on the FBI's relationship with the
Muslim community. We couldn't agree more and are pleased to have an FBI official of Ward's stature and
experience making such a clear denunciation of suspicionless surveillance.
Unfortunately, the view that both Ward and the ACLU share isn't reflected in the FBI's policies, or its
practices. To the contrary, FBI policies permit the kind of surveillance Ward rightly criticizes. The FBI's
guidelines were changed in 2008 to remove the requirement of any factual predicate before the FBI initiates
intrusive investigations, and the FBI has a "racial and ethnic mapping" program targeting racial, ethnic and
religious groups all across the country. In Newark, the FBI used census data to identify and map Latino
communities throughout New Jersey in an attempt to assess the threat from MS-13. (We're suing in N.J.
because the Newark FBI refused to release other documents in response to our Freedom of Information Act
request for racial mapping data).
In fact, the FBI's modified guidelines allow the same type of abusive surveillance the NYPD engaged in,
without any factual predicate, and our nationwide FOIA has revealed FBI agents targeting Muslim
communities in Detroit, the Chinese and Russian-American communities in San Francisco, and tracking the
growth of the Black population in Georgia. The FBI also used community outreach programs as a guise to
collect information about the First Amendment activities of peaceful Muslim groups in Northern California
for intelligence and investigative purposes.
Also heartening this week were Attorney General Eric Holder comments before the Senate Appropriations
Committee characterized the NYPD's behavior as "disturbing" this week while testifying before Congress.
We've asked Holder to rein in these abusive racial and ethnic mapping programs and to revise the AGG to
require reasonable suspicion before the FBI starts investigations. We've also called on Mayor Bloomberg to
investigate the NYPD and for a federal investigation into the use of White House funding in the NYPD's
surveillance program. We agree with SAC Michael Ward that suspicionless surveillance is abusive, ineffective
and counterproductive, and we appreciate his outspokenness. It's time to put an end to racial, ethnic and
religious mapping in all forms, and by all agencies.
Managing and analyzing data we have is more important than gathering new data
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
The FBI also argues that the Mukasey Guidelines are necessary to remedy the flaws in the FBI’s procedures
that contributed to the failure to discover the 9/11 plot. In making this argument at a congressional hearing,
FBI Director Mueller cited the now-well-known Phoenix Memo, a memo drafted by an FBI agent in
Phoenix, Arizona, warning of risks posed by Middle Eastern men enrolling in flight training school.258 The
memo, however, hardly illustrates a lack of information-gathering capacity by the FBI. The memo was
unsuccessful in preventing 9/11 not because it contained insufficient information, but because managers at
FBI headquarters, the Osama Bin Ladin unit, and the New York field office failed to review or act on it prior
to 9/11. Even if the memo had received more attention, there is of course no guarantee that the 9/11 plot
would have been derailed. But the very existence of the memo shows that the FBI was entirely capable, even
under the Reno-era Guidelines, of collecting the information necessary to safeguard against at least some
terrorist attacks.
While multiple investigations into the causes of the 9/11 attacks identified flaws in the FBI’s use and handling
of intelligence leading up to 9/11,59 none of those flaws was the result of overly restrictive FBI investigative
Guidelines. The problem was not an inability to collect necessary information; it was a failure to
effectively and efficiently manage, share, or analyze the information already collected. This problem
might justify consolidating responsibilities for crime-prevention and intelligence-collection within the FBI, or
encouraging increased coordination between the FBI and other government agencies. But it does not justify
the expansion of investigative authority contained in the Mukasey Guidelines.
AT: DA Terrorism --- Al Qaeda Recruitment Turn
Discriminatory targeting policies boosts Al Qaeda recruiting
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
In designing Guidelines that allow the FBI to combat the threat of terrorism while protecting our values, it is
important to note one additional fact: the United States is not at war with Islam. Indeed, to the contrary.
Presidents Obama and George W. Bush both took great pains to disavow any implication that the U.S.
struggle was against Islam as such.3 Policymakers past and present,4 scholars,5 national security experts,6
and terrorists7 themselves all recognize that any appearance that the U.S. views Islam as
the enemy actually provides Al Qaeda and its allies propaganda that aids
recruitment and creates additional risk for our armed forces.8 While a tiny minority of
Muslims adopt a perverse version of their faith that encourages violence, the vast majority of American
Muslims are law-abiding, patriotic, productive members of society. Any investigative scheme that singles
out groups or individuals for government scrutiny based on the assumption that all Muslims in the
U.S. are potential terrorists fosters an environment of suspicion and distrust and is likely
counterproductive as well.
Again, we do not know exactly how these powers are being used or whether they are being abused. Nor do
we know what measures, if any, the Justice Department has taken to protect against such abuse. What we do
know is this: the Guidelines, on their face, raise new and troubling concerns about possible violations of civil
liberties on a wide scale. Ensuring that such abuses do not, in fact, take place requires two types of remedies.
First, some of the powers extended to the FBI should be curtailed. In addition to any substantive
changes, however, we must ensure that there are meaningful checks on the FBI’s remaining powers—internal
checks, such as supervisory approval requirements and regular reviews, as well as external checks, from both
Congress and the public.
The current Guidelines can be modified relatively easily. A few changes will limit agents’ discretion and
increase oversight and accountability mechanisms. This report recommends two types of changes to the
existing guidelines. First, procedural mechanisms should be put in place to ensure sufficient oversight of how
the Guidelines are used, and whether they are effective. Such mechanisms must exist both within the Justice
Department and outside it. For example, Congress should undertake regular reviews of the Guidelines, the
ways in which they are being implemented, and their level of effectiveness. Second, some of the most
dramatic expansions of FBI power should be scaled back, both to ensure that intrusive investigative
methods are used only when there are facts indicating a need for further investigation and to guard against
improper consideration of race, religion, ethnicity, national origin, or political ideology in investigative
decisions.
AT: DA Terrorism --- Lone Wolf Answers
Lone wolf threat exaggerated --- being used to justify more counterproductive
surveillance
ACLU, 15 (2/6/2015, US Official News, “Washington: The Lone-Wolf Terror Trap: Why the Cure Will Be
Worse Than the Disease,” Lexis, JMP)
American Civil Liberties Union has issued the following news release:
The shadow of a new threat seems to be darkening the national security landscape: the lone-wolf terrorist.
"The lone wolf is the new nightmare," wrote Washington Post columnist Charles Krauthammer recently, and
the conservative pundit wasn't alone in thinking so. "I really see [lone wolves] as being a bigger threat than alQaeda, or the Islamic State, or the al-Qaeda franchises," Scott Stewart, vice president of tactical analysis at the
global intelligence and advisory firm Stratfor, told VICE News. Similarly, in the aftermath of the Paris
terrorist attacks, appearing on "Meet the Press," Attorney General Eric Holder said, "The thing that I think
keeps me up most at night [is] this concern about the lone wolf who goes undetected."
You could multiply such statements many times over. There's only one problem with the rising crescendo of
alarm about lone wolves: most of it simply isn't true. There's nothing new about the "threat" and the concept
is notoriously unreliable, as well as selectively used. (These days, "lone wolf" has largely become a stand-in for
"Islamic terrorist," though the category itself is not bound to any specific ideological type.) Worst of all, its
recent highlighting paves the way for the heightening of abusive and counterproductive police and national
security practices, including the infiltration of minority and activist communities and elaborate sting
operations that ensnare the vulnerable. In addition, the categorization of such solitary individuals as terrorists
supposedly driven by ideology – left or right, secular or religious -– often obscures multiple other factors that
may actually cause them to engage in violence.
Like all violent crime, individual terrorism represents a genuine risk, just an exceedingly rare and minimal
one. It's not the sort of thing that the government should be able to build whole new, intrusive surveillance
programs on or use as an excuse for sending in agents to infiltrate communities. National programs now
being set up to combat lone-wolf terrorism have a way of wildly exaggerating its prevalence and dangers
– and in the end are only likely to exacerbate the problem. For Americans to concede more of their civil
liberties in return for "security" against lone wolves wouldn't be a trade; it would be fraud.
Surveillance won’t solve lone-wolf terrorists --- building community trust of law
makers is key
ACLU, 15 (2/6/2015, US Official News, “Washington: The Lone-Wolf Terror Trap: Why the Cure Will Be
Worse Than the Disease,” Lexis, JMP)
Anatomy of the Wolf
The "literature" on both terrorism and the lone wolf should be approached with a healthy degree of
skepticism. To this day, there is little consensus on what exactly terrorism is; the same is true of the lone-wolf
variety.
In the media and in recent academic studies, what separates the lone-wolf terrorist from the phenomenon in
general is the perpetrator. Lone wolves are, by definition, solitary individuals, almost always men, often with
mental health problems, who lash out violently against civilian targets. At least in some fashion, they are
spurred on by belief. Researcher Michael Becker defines it this way: "Ideologically driven violence, or
attempted violence, perpetrated by an individual who plans and executes an attack in the absence of
collaboration with other individuals or groups." Although you wouldn't know it at the moment in America,
the motivation for such attacks can run the gamut from religiously inspired anti-abortion beliefs to white
supremacism, from animal rights to an al-Qaeda-inspired worldview.
According to the literature, lone wolves are unique in the annals of terrorism because of the solitariness with
which they plan and carry out their acts. They lack peer or group pressure and their crimes are conceived and
executed without assistance. In this way, they bear a strong resemblance to the individual school shooters and
rampage killers that Americans are already so used to.
One practical reason many such individuals act alone, according to researchers, is fear of detection. In "Laws
for the Lone Wolf," white supremacist Tom Metzger wrote: "The less any outsider knows, the safer and more
successful you will be. Keep your mouth shut and your ears open. Never truly admit to anything." (Before
9/11, lone-wolf terrorism in America was overwhelmingly a right-wing affair.)
This isn't to say that individuals who commit political violence don't talk to anyone before they attack. Recent
research into 119 lone-actor terrorists in the United States and Europe, who were either convicted of such a
crime or died during it, finds that they often expressed their extremist beliefs, grievances, and sometimes their
violent intentions to others -- mostly friends and family or online communities. The good news should be
that family, friends, and colleagues might be able to help prevent those close to them from engaging in
political violence if, as a society, we were to adopt strategies that built trust of law enforcement in the
public, particularly affected communities, rather than fear and suspicion. (But given the record these last
years, don't hold your breath.)
On the other hand, the methods that the police and national security state seem to be exploring to deal with
the issue – like trying to determine what kinds of individuals will join terrorist groups or profiling lone wolves
– won't work. The reasons individuals join terrorist groups are notoriously complex, and the same holds true
for politically violent people who act alone. After reviewing those 119 lone-wolf cases, for example, the
researchers concluded, "There was no uniform profile of lone-actor terrorists." Even if a "profile" were to
emerge, they added, it would be essentially worthless: "[T]he use of such a profile would be unwarranted
because many more people who do not engage in lone-actor terrorism would share these characteristics, while
others might not but would still engage in lone-actor terrorism."
--- XT: No Impact to Lone Wolf Terrorists
There is no impact --- 4 times more likely to die from a lightning strike
ACLU, 15 (2/6/2015, US Official News, “Washington: The Lone-Wolf Terror Trap: Why the Cure Will Be
Worse Than the Disease,” Lexis, JMP)
Fact vs. Fiction
Fortunately, what makes lone wolves so difficult to detect beforehand renders them more impotent when
they strike.
Because such individuals don't have a larger network of financing and training, and may be disturbed as well,
they are likely to have a far less sophisticated skill set when it comes to arming themselves or
planning attacks. Terrorism researcher Ramon Spaaij of Australia's Victoria University created a database of
88 identified lone wolves who perpetrated attacks between 1968 and 2010 in 15 countries. What he found
should dispel some of the fear now being associated with lone-wolf terrorism and so the increasingly
elaborate and overzealous government planning around it.
Spaaij identified 198 total attacks by those 88 solo actors – just 1.8 percent of the 11,235 recorded terrorist
incidents worldwide. Since lone wolves generally don't have the know-how to construct bombs (as the
Unabomber did), they usually rely on firearms and attack soft, populated targets, which law enforcement
responds to quickly. Therefore, Spaaij found that the average lethality rate was .062 deaths per attack while
group-based terrorists averaged 1.6 people per attack
Inside the United States, 136 people died due to individual terrorist attacks between 1940 and 2012 – each
death undoubtedly a tragedy, but still a microscopic total compared to the 14,000 murders the FBI has
reported in each of the last five years. In other words, you shouldn't be losing sleep over lone-wolf
attacks. As an American, the chance that you'll die in any kind of terrorist violence is infinitesimal to begin
with. In fact, you're four more times likely to die from being struck by lightning. If anything, the
present elevation of the lone-wolf terrorist to existential threat status in Washington creates the kind of fear
and government overreach that the perpetrators of such attacks want to provoke.
If individual terrorists are the "new nightmare," it's only because we allow them to be.
--- XT: Link Turn
Many cases of lone wolf terrorism result from law enforcement instigated plots and
aren’t linked to Muslim identity
ACLU, 15 (2/6/2015, US Official News, “Washington: The Lone-Wolf Terror Trap: Why the Cure Will Be
Worse Than the Disease,” Lexis, JMP)
Lone Wolf ≠ Muslim
During the December hostage crisis at a café in Sydney, Australia, orchestrated by Man Haron Monis, an
Iranian immigrant, former CIA Deputy Director Michael Morell had this dire prediction: "[W]e're going to
see this kind of attack here," he told "CBS This Morning." "It shouldn't surprise people when this happens
here sometime over the next year or so, guaranteed."
This was typical of the recent rhetorical escalation by officials and former officials in the national security
state when it comes to this kind of terror. But Morell's prediction was no prediction at all. Such attacks do
occur here. One had, for instance, been solved a little more than a month earlier. Eric Matthew Frein was
apprehended the day before Halloween through an intensive search in the Pocono mountains of Pennsylvania
after shooting two state troopers outside a police barracks with a sniper rifle in September. Officer Corporal
Bryon K. Dickson II died, while Trooper Alex T. Douglass was wounded. Frein, whom authorities initially
called an "anti-government survivalist," was eventually charged with two terrorism counts after he told police
that the shootings were a way to "wake people up." They also found a letter he had written to his parents
stating that he wanted to "ignite a fire" because only "another revolution can get us back the liberties we once
had."
Individual violence like this, whether labeled as terrorism or not, is nothing new. It's been dealt with for
decades without the kind of panic, fear-mongering, and measures being instituted today. After all, according
to Spaaij, between 1968 and 2010, 45 percent of all individual terrorist attacks recorded in 15 countries
occurred in the United States.
However, as Spaaij and his research partner Mark Hamm discovered, these figures are distinctly bloated. The
reason is simple: included in them are numerous examples of "individual" terrorist acts inspired by al-Qaedastyle ideology that actually resulted from law enforcement-instigated or -aided plots.
Spaaij and Hamm found that at least 15 of these had occurred between 2001 and 2013. In them, a
"lone"
perpetrator would actually be involved with, and often directed or encouraged
by, a government informant or undercover agent. This adds up to about 25 percent of
post-9/11 cases of lone wolfism in the U.S., though the label is hardly accurate under the circumstances.
These are essentially government stings, which not only inflate the number of individual terrorism incidents
in the U.S., but disproportionately focus law enforcement attention on American Muslim communities.
An egregious example was the case of Rezwan Ferdaus, a 26-year-old Massachusetts man and American
Muslim. The FBI busted him in 2011 for conspiring with undercover agents to build crude explosive-laden
drones out of remote-controlled planes to fly into the Pentagon and the Capitol Building. In reality, this was a
government-concocted plot, and Ferdaus was no lone wolf. (He was incapable of thinking this up or carrying
it off on his own.) The FBI ignored clear signs that their target wasn't a terrorist, but a mentally ill man,
deteriorating rapidly. Nevertheless, he was repeatedly termed a lone wolf by law enforcement and the media.
Charged with providing material support to terrorists, in 2012, he was sentenced to 17 years in prison.
By contrast, when the apparent lone wolf isn't a Muslim or other minority, he rarely finds the fear-inducing
terrorist label pinned on him by the government, the media, or security experts. Take James von Brunn, a
white supremacist who murdered a security guard at the United States Holocaust Memorial Museum.
According to the Department of Homeland Security, the act had no connection to terrorism, although it was
ideologically motivated, as one FBI official acknowledged.
Or Francis Grady, who tried to burn down a Planned Parenthood clinic in Grand Chute, Wisconsin, in 2012,
because, as he told a U.S. district court judge, "They're killing babies there." Grady was not charged with a
terrorism offence either. When asked why, Assistant United States Attorney William Roach said that Grady
had tried to burn down an unoccupied room in an empty building.
Compare those reactions to the case of Zale Thompson, a disturbed African-American man who attacked
four New York City police officers in October with a hatchet. Only a day after the attack, Police
Commissioner Bill Bratton said, "I'm very comfortable this was a terrorist attack, certainly." The apparent
evidence: Thompson was a recent convert to Islam who had visited websites affiliated with terrorist groups
like al-Qaeda and ISIS.
As Glenn Greenwald has pointed out, "Terrorism is simultaneously the single most meaningless and
manipulated word in the American political lexicon." The same can be said of its lone-wolf version. Not
surprisingly, it has by now become essentially synonymous with being Muslim and little else, which
stigmatizes American Muslims and makes their communities targets for abusive law enforcement techniques,
including FBI-style sting operations and massive, intrusive surveillance. Typically, one terrorism researcher
defined lone wolves as "individuals pursuing Islamist terrorist goals alone." In reality, Muslims have no
more of a monopoly on lone-wolf terrorism than they do on terrorism more generally.
AT: DA Terrorism --- Impact Doesn’t Outweigh
***note when prepping file --- this ev is contained at the bottom of a longer Fisher, 4
card in the “XT: Terrorism Internal Link” block
Risk of terrorism doesn’t outweigh or justify abrogation of rights form surveillance
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
[*660] Nonetheless, some contend that any correlation, even the slightest one, between the profiled
characteristic and crime can justify use of a profiling practice when the potential danger is severe. Terrorism
certainly would fall within that category. Might not the extreme danger posed by terrorism, combined with
the possibility that Muslims with radical beliefs are more likely to be terrorists than the remainder of the
population, justify political profiling in certain circumstances? My response, is that this justification for
surveillance is generally insufficient, though a terrorist emergency involving a serious threat of imminent
violence could justify a preliminary inquiry on less than an individualized reasonable suspicion of crime. n218
The threat presented by international terrorism is not more dangerous than other threats faced by the U. S. in
the twentieth century. On the contrary, it is substantially less dangerous than the Cold War's nuclear
standoff, which threatened the immediate destruction of not only the United States but also the entire world.
It is not sufficiently qualitatively distinct from past threats to justify abrogation of basic civil liberties. Past
civil liberties violations such as the Palmer Raids, the excesses of the McCarthy era, the injustice of the
internment of Japanese-Americans during World War II, or the abuses of surveillance in the 1960's did little
to increase national security
The nature of the current domestic threat does not justify complete deference to the executive branch with
respect to the associational rights of those within the U.S. Although courts often defer to the political
branches in cases where national security is at stake, that deference is not absolute and is "subject to
important constitutional limits." n219 In particular, courts hesitate to defer where constitutional rights are
heavily implicated, n220 as they undeniably are in the case of [*661] political or religious surveillance.
Although courts lack expertise in adjudicating questions concerning the national defense, reasonable
restrictions on domestic political surveillance will not hamper the necessary
defense of our national security.
AT: Politics DA
Congressional opposition growing to suspicionless surveillance
Chaffee, 12 --- Legislative Policy Counsel, ACLU Washington Legislative Office (6/7/2012, Devon,
“Members of Congress Urge Investigation of FBI Muslim Surveillance,”
https://www.aclu.org/blog/members-congress-urge-investigation-fbi-muslim-surveillance, JMP)
Yesterday 22 Members of Congress sent a letter to the Inspector General of the Department of Justice urging
him to launch an investigation into the Federal Bureau of Investigation's improper recording and
dissemination of information about the First Amendment-protected activities of American Muslims. Several
of the members who joined the letter-including Representatives Pete Stark (D-CA-13), Anna Eshoo (D-CA14), Sam Farr (D- CA-17), Mike Honda (D- CA-15), Zoe Lofgren (D-CA-16), and Barbara Lee (D-CA-09) represent districts in Northern California in which FBI memoranda document the use of community
outreach for intelligence purposes.
The joint letter rightly highlights the negative impacts of the FBI’s misuse of community and mosque
outreach to gather intelligence about Americans. The letter states:
Any FBI practice of taking information collected during community outreach efforts for the purpose of
utilizing it as intelligence threatens to erode crucial trust between federal law enforcement and American
communities. It is also contrary to basic constitutional principles of free speech and freedom of religion.
In April, the ACLU sent its own letter to the Inspector General following the release of FBI documents
obtained through FOIA litigation, which demonstrate that from at least 2004 through 2010, the San
Francisco and Sacramento FBI field offices documented and disseminated records on American Muslims'
exercise of their First Amendment rights. Recorded activities include: the content of a religious sermon; the
content of identified speakers' speeches at community events; and individuals' religious affiliations and
associations. The FBI's retention of such information in its intelligence files-almost all of the documents were
classified as secret or marked as positive intelligence, and were labeled for distribution outside of the FBIviolates federal Privacy Act prohibitions against the maintenance of records about individuals' First
Amendment-protected activity.
Bipartisan opposition to overbroad surveillance
Sulmasy, 13 --- Professor of Law and Governmental Affairs Officer at Coast Guard Academy (6/10/2013,
Glenn, “Why we need government surveillance,” http://www.cnn.com/2013/06/10/opinion/sulmasy-nsasnowden/, JMP)
The uproar over the recent revelations about government surveillance programs has raised eyebrows and
concerns across the political spectrum. Many on the left have been surprised that most of the same
policies (now even the surveillance of U.S. citizens and phone companies) that President George W. Bush
initiated, are being used, and expanded upon, by the Obama administration.
Many on the right say it is government overreach and that Congress should have been briefed on the broad
programs. Although the cause for alarm in political or policy circles might have merit, the exercise of these
authorities by the executive branch does, in fact, appear to be legal. Once again, the war on al Qaeda is pitting
national security against America's longstanding commitment to the promotion of civil liberties and human
rights.
Plan doesn’t require congressional legislation
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Congress Reclaims Authority. One option, of course, is for Congress simply to relieve an agency of
responsibility for one of [*68] the competing goals, reclaiming that decision-making authority for itself. n259
Following revelations of civil liberties violations in the 1970s, Congress reclaimed some decision-making
authority regarding the executive's surveillance powers by enacting the Foreign Intelligence Surveillance Act
(FISA). n260 Or Congress could generate more piecemeal limitations, barring particular techniques that pose
threats to civil liberties, or defining the circumstances under which such techniques could be used. Congress
could, for example, statutorily reinstate the rule regarding the use of undercover agents to investigate First
Amendment protected activities as it existed in the Guidelines in 2001, which required that the FBI have
probable cause or a reason to believe a crime had been committed before sending an agent into the meetings
of a religious or political group. n261
Congress need not legislate to bring such changes about. If Congress wanted to alter particular
investigative tactics, or even to pressure the Justice Department to adopt of its own volition the type of
procedural framework suggested in this Article, it has an array of tools at its disposal to press for its desired
policy change. Just the threat of legislation, so long as it is credible, can spur executive action. Recall
that the original Attorney General's Guidelines were implemented to sap the momentum from Congress's
efforts to enact a legislative charter for the FBI. n262 So long as the option of enacting an FBI charter
remains a viable means for Congress to limit the Attorney General's discretion when it comes to FBI
investigations, the threat of such legislation can be used to press for Congress's desired policy outcomes.
Congress possesses carrots as well as sticks--its control over the FBI and Justice Department's budget also
can impose a great [*69] deal of pressure for policy change. Given the political economy of this policy area,
n263 however, reliance on Congress to reconcile the tension between the FBI's security mission and civil
liberties is not the most promising route.
AT: CP Administrative Law --- External Checks Necessary
***note when prepping file --- the evidence in “External Checks Solvency” are also
useful to answer this counterplan
Only clearly enforced limits on the FBI solve --- flexibility is just a cover for abuses
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
Each of the following examples of law enforcement investigative activity shares two characteristics. First,
each provides an example of problems posed when law enforcement agents conduct their operations in the
absence of clear—sufficiently regulated and enforced—limits on investigative activity. Second, none
yielded any evidence of terrorist activity or threats to America’s security. Consider the following:
• From 2003 to 2007, in violation of law and FBI policy, the FBI misused so-called “exigent letters”—
informal requests for information that may be used in lieu of formal subpoenas in limited, emergency
situations—and other forms of informal information requests to obtain thousands of phone records that
were not connected with terrorism emergencies.9 According to the Justice Department’s Inspector General,
the unlawful practices, which included the acquisition of the phone records of reporters,10 were widespread,
systemic, and the result of significant management failures.11 The result was what the Inspector General
called an “egregious breakdown” of the FBI’s responsibility to comply with privacy laws and internal
policies.12
• In 2009, the North Central Texas Fusion System,13 a joint enterprise by FBI and local law enforcement,
made public a “Prevention Awareness Bulletin.” The Bulletin informed recipients that it was “imperative for
law enforcement offices to report” the activities of lobbying groups, Muslim civil rights organizations, and
anti-war groups in their areas.14
• In 2007, in Orange County, California, the Council on American-Islamic Relations reported a suspected
terrorist to the FBI. The “suspect” had been barred from a mosque for promoting terrorist plots and
attempting to recruit others. It later emerged that the agitator was an FBI informant paid to infiltrate area
mosques—despite the fact that the FBI had assured Muslim community leaders that it was not monitoring
their places of worship.15
• Documents disclosed through Freedom of Information Act (FOIA) requests and confirmed by an
Inspector General report indicate that the members and activities of several religious and political
organizations—including Greenpeace, the Global Network Against Weapons and Nuclear Power in Space,
and the Catholic Workers’ Union—have been subjects of FBI surveillance.16 These same documents show
that the FBI has collected information regarding the Thomas Merton Center, an organization committed to
“nonviolent struggle to bring about a more peaceful world,” and its anti-war protests.17
• From 2001 to 2006, in the course of investigations into anti-war groups, environmental activists, and
animal-rights activists, the FBI conducted investigations with insufficient factual predicate, failed to document
properly the basis for investigations, improperly extended the duration of investigations, and considered as
“domestic terrorism cases” investigations into potential crimes—such as trespassing and vandalism—that are
not commonly considered terrorism, raising “questions about whether the FBI has expanded the definition of
domestic terrorism to people who engage in mainstream political activity, including nonviolent protest and
civil disobedience.”18
The concerns raised by these examples—risk of government overreaching to acquire information that may or
may not be useful—are always present, but they are particularly stark when investigations lack concrete
focus. When government officials operate with increased discretion, individual liberties, particularly privacy
rights and First Amendment rights to speak and to gather, often suffer. At the same time, the risk increases
that law enforcement agents will rely on inappropriate criteria—race, religion, national origin, ethnicity or
political leanings—as the basis for investigation. In short, the greater the official discretion, the greater
the potential for abuse.
FBI internal action buys off statutory action and is easily susceptible to back sliding
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
3. The Erosion of the Guidelines’ Protections: 1980-2008
Since their inception, the Guidelines have functioned as the primary constraint on the FBI’s operations, and
they remain a justification for the lack of a statutory charter governing the FBI’s activities.69 Initially
implemented in response to the perceived abuses by the FBI in the context of domestic intelligence
collection, they represented an effort to reject the pre-guidelines practice of broad intelligence-collection
activities unrelated to crimes or threats and instead to treat domestic threats as a facet of criminal law
enforcement.70 The purpose of the original Guidelines was thus to constrain the FBI’s intelligence-collection
role within acceptable bounds, to prevent it from interfering unduly in the lives of law-abiding groups or
individuals, and to tether the FBI’s activities to the detection and prevention of crime.
Attorney General Civiletti in 1980 issued new Guidelines, which incorporated the 1976 Levi Guidelines and
added to them rules for investigating general crimes and racketeering enterprises.71
In 1983, Attorney General William French Smith again altered the structure of the Guidelines,72 expanding
the concept of domestic security investigations—labeling them “criminal intelligence investigations”—to
include both terrorism investigations and racketeering enterprise investigations.73
The 1983 Smith Guidelines thus governed on the one hand “general crimes investigations” and on the other
“criminal intelligence investigations,” which included both racketeering and domestic security/terrorism. And
the FCI Guidelines, known by this time as the Foreign Intelligence Collection and Foreign
Counterintelligence Investigation (FI/FCI) Guidelines, governed the FBI’s collection of foreign intelligence
and counterintelligence operations. So the full spectrum of the FBI’s domestic activities was subject to the
limits of various guidelines.74
These limits on FBI authority did not preclude all possibility of misplaced domestic intelligence efforts. For
example, a 1980s investigation into the Committee in Solidarity with the People of El Salvador (CISPES), an
activist organization that opposed Reagan-era policies toward El Salvador, became an exercise in mapping the
activities of a community engaged in lawful dissent.75 The result was a broad investigation into the activity
and membership of groups opposed to U.S. policy in El Salvador that produced “no reliable information of
planned violence or other illegal activity.”76 And the Cold-War-era Library Awareness Program included
regular FBI visits to public libraries seeking information regarding individuals who read scientific and
technical journals, sometimes asking “librarians to be wary of ‘foreigners’ or persons with ‘East European or
Russian-sounding names.’”77 These examples illustrate that even under a guidelines regime, meaningful
limits, procedural safeguards, and effective oversight remain necessary to keep investigations from
wandering too far afield and interfering with the activities of law-abiding individuals and groups.
But over time, and especially in the wake of perceived domestic intelligence and crime prevention failures, the
lessons of history seem to have faded. Successive sets of guidelines, while expanding the breadth of
their coverage, have loosened restrictions on FBI operations. The commendable desire to prevent
domestic threats, rather than merely to respond to them, has led to the expansion of the FBI’s domesticintelligence-collection and analysis role—a development that calls for increased vigilance against abuse, not
the opposite. At the same time, the standard that must be met before the FBI can engage in investigative
activity has become less and less stringent; both obligatory and discretionary limits on the
intrusiveness of investigative techniques have been rolled back; and oversight and approval
requirements have been relaxed.
Clearly defined limits on FBI criminal intelligence investigations key to prevent
abuses
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
The most familiar type of FBI investigation is one aimed at traditional law enforcement, known today as a
“general crimes investigation.” These usually begin after and in response to the commission of a particular
criminal act. They are meant to determine “who committed that act and…secur[e] evidence to establish the
elements of the particular offense.”20 The object of the investigation is clearly defined. Its scope is limited.
Its focus extends only to evidence relevant to elements of the particular crime. And the investigation ends
when the crime is solved.
A second type of investigation is one that collects intelligence in order to deter the commission of future
criminal acts. Intelligence investigations may consist of domestic investigations into criminal enterprises, such
as organized crime syndicates or terrorist organizations, known as “criminal intelligence investigations.” Or
they may aim to collect foreign intelligence, which is defined as “information relating to the capabilities,
intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons,
or international terrorists.”21 Criminal intelligence investigations are open-ended by nature and last longer
than general crimes investigations. “[T]here may be no completed offense to provide a framework for the
investigation. …[T]he investigation is broader and less discriminate,”22 collecting information on the “size
and composition of the group involved, its geographic dimensions, its past acts and intended criminal goals,
and its capacity for harm.”23 Foreign intelligence investigations share many of these characteristics as well.
As the Justice Department recognizes, the open-ended nature of intelligence investigations coupled with their
attenuated connection to specific crimes poses particular risks. In the absence of clearly defined limits on
an investigation and its scope, purpose, or duration, it is likely that agents will collect much information
about law-abiding Americans. And an investigation of organizational activity “may present special problems
particularly where it deals with politically motivated acts. … [S]pecial care must be exercised in sorting out
protected activities from those which may lead to violence or serious disruption of society.”24 Thus, while
the FBI has conducted investigations for both law enforcement and intelligence purposes throughout its
history, it is the intelligence-collection activities that occasion the most frequent calls for reform.
Debate over the proper role of the FBI—whether it is primarily a crime-solving entity, a domestic-intelligence
agency, or some mixture of the two—has not yet yielded a definitive answer. Indeed, the FBI’s statutory
mandate remains remarkably vague. There is no legislative charter defining the FBI’s purpose or setting
out the scope of its authority.25 Congress’s hands-off approach to the Bureau’s role leaves the Department of
Justice (“DOJ”), the Attorney General, the Director of National Intelligence, and the FBI Director with
enormous discretion to determine the Bureau’s goals and how it will pursue them.
Some of the methods the FBI employs, such as seizing items from inside a suspect’s home and monitoring
electronic communications, are subject to constitutional and statutory constraints.26 But the FBI has a host
of investigative tools at its disposal that are effectively unregulated. At times the FBI has exploited this
regulatory void, going so far as to attack anonymously the political beliefs of targets to induce their employers
to fire them; to mail letters anonymously to spouses of intelligence targets in order to destroy their marriages;
or to disseminate misinformation in order to disrupt demonstrations and encourage violence.27
As discussed below, the use of many of these tactics led to the promulgation of the first set of Attorney
General’s Guidelines in 1976. Though some of the most troubling tactics are impermissible under the current
Guidelines, many tactics authorized by the current Guidelines involve significant intrusion into the private
lives of Americans. These include permitting FBI agents (or informants acting under FBI instructions) to spy
on worship services or political gatherings; to question family, friends, neighbors, and coworkers of an
investigative target without revealing that they are FBI agents; to engage in 24-hour physical surveillance of
targets; and to monitor the addresses to which targets send letters and the phone numbers that they call.
Given the significant intrusion these and other permissible techniques allow, it is vital to have rules in place
to ensure that the uses to which these techniques are put are appropriate.
AT: PICs
Maintaining even limited federal surveillance condones discrimination --- it is a
simple “yes / no” question
Horwitz, 14 --- covers the Justice Department and criminal justice issues nationwide for The Washington
Post (12/8/2014, Sari, “Justice Dept. announces new rules to curb racial profiling by federal law
enforcement,” http://www.washingtonpost.com/world/national-security/justice-dept-to-announce-newrules-to-curb-racial-profiling-by-federal-law-enforcement/2014/12/07/e00eca18-7e79-11e4-9f3895a187e4c1f7_story.html, JMP)
The Obama administration on Monday formally announced long-awaited curbs on racial profiling by federal
law enforcement, but the new rules will not cover local police departments, which have come under criticism
in recent months over allegations that their officers profile suspects.
Attorney General Eric H. Holder Jr. expanded Justice Department rules for racial profiling to prevent FBI
agents from considering gender, national origin, religion, sexual orientation and gender identity, in addition to
race and ethnicity, when opening cases. The department also is banning racial profiling from national security
cases for the first time.
Holder’s revised policy covers state and local law enforcement officers while they participate in federal law
enforcement task forces. But it is considered only guidance for police officers in state and local departments.
The profiling rules come at a time of racial tension around the country after the recent deaths of three
African Americans at the hands of police in Ferguson, Mo., New York and Cleveland, and the absence of
criminal charges against the white police officers who were involved.
“As attorney general, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is
profoundly misguided and ineffective,” Holder said. “Particularly in light of certain recent incidents we’ve
seen at the local level, and the widespread concerns about trust in the criminal justice process, it’s
imperative that we take every possible action to institute strong and sound policing practices.”
A Justice Department official said the goal is for federal law enforcement agencies to “model” these
policies, proving to state and local authorities that successful policing does not require profiling.
Holder held a conference call Monday with local law enforcement leaders to brief them on the policy and
encourage them to adopt it.
“At this historic moment in our nation’s race relations, the release of this revised guidance is an important
signal of progress, but it does not completely address the need for reform of policing tactics at the state and
local level,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative
office.
The rules also apply for the first time to many activities at the Department of Homeland Security, including
all Immigration and Customs Enforcement civil immigration enforcement, U.S. Coast Guard law
enforcement activities, Border Patrol activities not near the border, DHS officers protecting government
buildings and federal air marshals.
But DHS officials will not be covered by the new racial profiling ban when they screen airline passengers and
guard the country’s Southwestern border.
Customs and Border Protection, for example, still will be allowed to use profiling when conducting
screenings and inspections at the country’s ports of entry and interdictions of travelers at the border,
government officials said. Secret Service protective activities also will not be covered by the rules.
“Having a particular skin color, religious belief or last name is not a crime,” said Rajdeep Singh, director of
law and policy at the Sikh Coalition, the largest Sikh American civil liberties organization. “This is not a
50-50 issue. The Obama administration can either ban profiling or allow it. It sounds
like they’re committed to allowing it.”
A fact sheet on the policy said that some DHS activity is not covered by the policy because of the “unique
nature of DHS’s mission.”
“This does not mean that officers and agents are free to profile,” according to the DHS fact sheet. “To the
contrary, DHS’s existing policies make it categorically clear that profiling is prohibited, while articulating
limited circumstances where it is permissible to rely in part on these characteristics, because of the unique
nature of border and transportation security as compared to traditional law enforcement.”
President George W. Bush banned racial profiling in 2003, but the prohibition did not apply to national
security investigations and covered only race — not religion, national origin, gender or sexual orientation and
gender identity.
Civil rights groups and Democratic lawmakers have pushed for expanded anti-profiling protections since
President Obama was elected in 2008. Holder began the process to revamp the rules in 2009 and considers
the new policy one of the signature accomplishments of his tenure.
About six months ago, the Justice Department delivered the rules to the White House. But they applied only
to the department, and White House officials wanted the polices to cover additional agencies.
The rules have been delayed in part because DHS officials pushed the White House and the Justice
Department to allow major exclusions for agencies such as the Transportation Security Administration,
Immigration and Customs Enforcement, and Customs and Border Protection.
In several high-level meetings, DHS Secretary Jeh Johnson argued that immigration and customs agents and
airport screeners needed to consider a variety of factors to keep the nation safe, according to officials familiar
with his personal efforts. TSA officials argued that the rules should not apply to them because the TSA is not
a law enforcement agency.
In its fact sheet, DHS officials said that they will review activities not directly covered by the guidance to
ensure that “we are including every appropriate safeguard and civil rights protection in the execution of those
important security activities, and to enhance our policies where necessary.”
But that was not enough assurance for civil liberties advocates.
“It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it
gives a green light for the FBI, TSA and CBP to profile racial, religious and other minorities,” the
ACLU’s Murphy said. “This guidance is not an adequate response to the crisis of racial profiling in America.”
Explicit carve-outs that green light surveillance by federal agencies based on race,
religion and ethnicity don’t solve the case
ACLU, 14 (12/8/2014, “ACLU Response to Revised DOJ Guidance on the Use of Race by Federal Law
Enforcement Agencies,” https://www.aclu.org/news/aclu-response-revised-doj-guidance-use-race-federallaw-enforcement-agencies?redirect=criminal-law-reform-racial-justice/aclu-response-revised-doj-guidanceuse-race-federal-law-enforceme, JMP)
WASHINGTON— The U.S. Department of Justice released a revised version of its Guidance Regarding the
Use of Race by Federal Law Enforcement Agencies, today.
The initial Justice Department guidance was issued in 2003 by Attorney General John Ashcroft. The Ashcroft
Guidance banned racial profiling, but contained gaping loopholes that gave federal law enforcement express
permission to discriminate.
According to the White House and Justice Department, the revised Guidance will eliminate some of the
existing carve-outs for law enforcement activities related to "protecting national security or the integrity of the
borders." It will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender
identity, in addition to race and ethnicity. It also will apply to state and local law enforcement agencies
participating in federal law enforcement task forces.
The Guidance does not eliminate carve-outs permitting discrimination at the border by Transportation
Security Administration (TSA) and both at and in the "vicinity" of the border by U.S. Customs and Border
Protection (CBP), nor does it fully bar biased profiling in the national security context.
The following response to the official revised Guidance can be attributed to ACLU Washington Legislative
Office Director Laura W. Murphy:
At this historic moment in our nation's race relations, the release of this revised Guidance is an important
signal of progress, but it does not completely address the need for reform of policing tactics at the state and
local level.
The inclusion of new categories such as national origin, religion, sexual orientation and gender identity;
establishment of much-needed data collection and training, and coverage of some state and local law
enforcement activities are elements of the Guidance we should celebrate.
However, several components of the Guidance do little to nothing to protect some minority populations
that have to endure unfair targeting by law enforcement every day. Using race, the color of someone's
skin, religion, or ethnicity as any basis for suspicion or investigation is demoralizing,
unconstitutional, and a practice that should be left in the history books, where it belongs.
It's baffling that even as the government recognizes that bias-based policing is patently unacceptable, it
gives a green light for the FBI, TSA, and CBP to profile racial, religious and
other minorities at or in the vicinity of the border and in certain national security contexts, and does
not apply the Guidance to most state and local law enforcement.
While the Guidance purports to close the national security loophole, it's so loosely drafted that its
exceptions risk swallowing any rule and permit some of the worst law enforcement policies and
practices that have victimized and alienated American Muslim and other minority communities.
This Guidance is not an adequate response to the crisis of racial profiling in America. The President should
compel all his federal police, as well as state and local agencies to adhere to the law and stop engaging in
biased profiling now.
AT: Kritiks --- Surveillance Undermines Social Movements
Government surveillance undermines the transformative potential of social
movements necessary for a full-functioning democracy
Burkhart, et. al, 7 (2007, Laurie Burkhart, Michael Haubert, and Damon Thorley, “The Efect of
Government Surveillance on Social Progress,” in Confronting Information Ethics in the New Millennium,
http://www.ethicapublishing.com/5CH1.htm, JMP)
“Once a government is committed to the principle of silencing the voice of opposition, it has only one way
to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all
its citizens and creates a country where everyone lives in fear. ” -- Harry Truman1
Introduction
Intensive surveillance by government agencies can effectively stop (or hinder) the chance of social and
political change. The status quo has been set and history has shown near-perfect success of infiltration
and destruction of political and social movements by a number of surveillance tactics and programs.
United States history demonstrates the positive social effects that certain radical political groups have caused
despite government intrusion. With increasing technology and access to information, the government has and
continues to more effectively monitor radical political and social groups while discouraging and halting free
political participation of its citizens as a result of the “chilling effect”. Without free political participation
social change becomes impossible. In order for a democracy to move forward it needs free ideology and
radical movements to challenge the system and force social change.
Not only does extensive government surveillance discourage political participation through the “chilling
effect” – it also presents ethical violations. Under the ethical frameworks of duty-based, utilitarian, and rightsbased theories, the conduct of government surveillance of the past and present is unethical. From duty
and rights-based theories government surveillance practices violate legal and social regulations of American
society. Under utilitarian theory, government surveillance takes away the ability to change and progress what
the citizens believe to be the greatest good for society.
Surveillance creates a chilling effect that dissuades people from meaningfully
participating in social and political movements --- the plan is a good idea in all
ethical frameworks
Burkhart, et. al, 7 (2007, Laurie Burkhart, Michael Haubert, and Damon Thorley, “The Efect of
Government Surveillance on Social Progress,” in Confronting Information Ethics in the New Millennium,
http://www.ethicapublishing.com/5CH1.htm, JMP)
The Chilling Effect
In United States law, the “chilling effect” refers to the stifling effect that vague or overbroad laws may have
on legitimate speech and activity typically protected by the First Amendment.1 Theoretically, the “chilling
effect” has a dramatic repercussion on citizens’ willingness to freely express their beliefs and
opinions. In past U.S. history the “chilling effect” has been used in court cases as evidence against certain
government surveillance tactics. In the Supreme Court case Socialist Workers Party v. Attorney General of
U.S., the “chilling effect” was used as a basis for getting a preliminary injunction brought against the FBI.
“The applicants argue that a stay is necessary to protect the First Amendment speech and association rights
of those planning to attend the YSA convention.
Surveillance and other forms of monitoring, they claim, will chill free participation and debate, and may even
discourage some from attending the convention altogether. Beyond this, the applicants allege that the FBI has
admitted that its agents or informants intend to participate in the convention debate posing as bona fide YSA
members.2 This 'double agent' activity, the applicants claim, will result in the “corruption of the democratic
process” and consequent irreparable harm to the applicants and others who would participate in the
convention.¹”
Although the effect of FBI surveillance and participation in Communist party activities was apparent, the
Supreme Court ruled in favor of the FBI. “In weighing the nature of the planned investigative activity, the
justification for that activity, and the claimed First Amendment infringement in this case, the Court of
Appeals determined that the balance of the equities tipped in favor of the Government and that a preliminary
injunction was therefore improper.3” This case demonstrates an example of the “chilling effect” as a result of
FBI surveillance, while also showing these tactics and related effects on free speech being condoned by the
U.S. government.
In recent years the “chilling effect” has taken on a much larger role in American society, not only through
increased government surveillance deterring political participation, but through a broad range of social
functions as well. Simple examples will show that social internet networks such as MySpace.com and The
Facebook are having detrimental effects to people’s willingness to present information about themselves or
their views. Some users of these networks have lost jobs or have been forced to censor what they publish in
fear of what ramifications it may have on their job status or future wellbeing. In January, an undisclosed
number of student-athletes were dismissed from the University of Colorado track team after posting indecent
pictures of themselves on Facebook.4 The enormous amount of voluntary and involuntary personal
information that can be tracked and monitored in today’s information age is causing people to give into the
“chilling effect” in both political and social arenas. In all aspects of life, citizens of the U.S. are trying to fit
the surveillance system rather than try to change or influence it. Once the people give into the system
and refuse to participate or rebel out of fear of self incrimination then all hope of social progress is lost.
Current Climate in the U.S.
The government has the ultimate responsibility of procuring the safety of its citizens and upholding the
values this country was founded upon. The argument we intend to layout is that while the government is
concerned with the cease of any social and political change in opposition to its current agenda, this also
inhibits the chance of further positive social and political climate change. Through certain tactics and
surveillance, our government has the power to halt any social change while it is still in the ideological phase.
The following points are composed of recent and post-9/1 1 incidents and programs the Bush administration
has partaken in:
Recently, the FBI admitted to surveilling mosques in nine cities nationwide, along with acknowledgement
of keeping certain individuals of Muslim-descent (in the U.S.) under extreme surveillance. Agents have
defended the programs, claiming certain mosques have provided them with lists of members5;
The government is currently seeking to revamp its entire surveillance initiative, revising the process of
getting warrants from the secretive Foreign National Surveillance Act (FISA) court to investigate suspected
terrorists, spies, and other national security threats. The administration also wants new provisions in place to
ease surveillance of people suspected of spreading weapons of mass destruction internationally. Among other
tools available now: the government can break into homes, hotel rooms and cars to install hidden cameras
and devices, as well as search drawers, luggage, or computer hard drives6;
It has been revealed that the FBI used ‘national-security letters’ to scrutinize the financial and travel data, as
well as telephone logs of thousands of U.S. citizens and residents. In March, a U.S. Justice Department report
detailed the “widespread and serious misuse” of these letters since the inception of the Patriot Act. Between
2003 and 2005, the FBI issued more than 140,000 national-security letters, many of which involved people
with no obvious ties to terrorism7;
In 2006, it was revealed that President Bush signed a secret order in 2002 which authorized the National
Security Agency (NSA) to eavesdrop on U.S. citizens and foreign nationals within the United States – despite
past legal prohibitions against similar domestic spying. The NSA has monitored the e-mail, phones, and other
communications of thousands of individuals without warrants8;
In 2004, the Justice Department subpoenaed records from colleges and universities around the country
relating to peaceful on-campus meetings between local anti-war activists and scholars5;
In 2004, a University of Arizona sophomore was forbidden to attend a Social Security forum with
President Bush due to a t-shirt that read, “Don’t be a smart [image of a donkey, the Democratic Party
symbol]. UA Democrats.” The young man returned to the event with a different shirt yet was still refused
entry as he had been placed on a list of people banned from the event and labeled as a “potential risk9”;
In 2003, the New York City Police Department questioned multiple arrestees who had been detained at
anti-war demonstrations. Various types of information were stored in a government database;
Also in 2003, media reports surfaced accusing the FBI of collecting extensive information on the anti-war
movement in search of “extremists”;
Chicago Police infiltrated five protest groups in early 2002. Information pertaining to the case has been
limited, along with that regarding the known surveillance tactics which were used5.
Hunting down and weeding out individuals who disagree with the current administrative policy has become
familiar practice. In an issue closer to home, Colorado GOP staffers ejected three people from a taxpayerfunded town hall meeting in 2005 that George W. Bush was attending in Denver, under the belief that they
may be protesting. The three individuals were thrown out for behaving suspiciously while at their vehicle,
which had a bumper sticker stating, “No More Blood For Oil.” The White House has refused to comment on
the situation due to pending investigations. Two of the individuals who were thrown out, Leslie Weise and
Alex Young, have filed a federal lawsuit against the GOP committee because they claim they were told to
leave “because of their political views and that the White House had a policy of ejecting dissenters from the
president’s appearance10.” It was later revealed that the men who approached these three individuals were
wearing an earpieces and wires, navy blue suits and lapels similar to that or Secret Service agents. The Secret
Service denied that their agents were involved in the ejection – they claimed the Republican host committee
forced them out9.
Whether these individuals were targeted by government agents or local GOP members is irrelevant. These
citizens did not interrupt the event and certainly did no break any rules or laws by having an anti-war bumper
sticker on their vehicle. This incident, among the many others presented, represent the strong hand our
government yields in mandating its current agenda and status quo. To comprehend such acts of the present
day, one must understand the history and ethical implications that are deeply rooted behind government-run
surveillance. In the following pages, we will discuss the many events, programs, and key figures that have built
and led government infiltration to where it stands today.
“Those who sacrifice freedom for liberty deserve neither” -- Benjamin Franklin11
The J. Edgar Hoover Era
John Edgar Hoover (born: January 1, 1895; deceased: May 2, 1972) was the director and founder of the U.S.
Federal Bureau of Investigation (FBI). He remained director for nearly five decades and until his death at the
age of 77. During his tenure, Hoover was highly regarded by the U.S. public as a prominent figure in
American democracy. Only in the years since his death, many allegations have surfaced and tarnished his
image. His career endured eight different presidential administrations, including the Great Depression, World
War II, the Korean War, the Cold War, and Vietnam. It is because of Hoover's long and controversial reign
that FBI directors are now limited to ten-year terms. Hoover has frequently been charged with exceeding and
abusing his position of authority. He was known to have investigated groups and certain individuals due to
their political beliefs rather than suspected criminal activity. The FBI first conducted extralegal activities such
as burglaries and illegal wiretaps under his command.
In 1956, Hoover was becoming increasingly frustrated by Supreme Court decisions that limited the Justice
Department's ability to prosecute Communists. At this time he formalized a covert "dirty tricks" program
under the name COINTELPRO, or Counter Intelligence Program. COINTELPRO was a program operated
by the U.S. Federal Bureau of Investigation with the intent to investigate and destroy organizations that were
considered to have politically radical elements. While covert operations were incorporated throughout the
FBI history, COINTELPRO is known to have been most active from 1956-1971, targeting non-violent civil
rights groups such as Martin Luther King and the Southern Christian Leadership Conference (SCLC). Other
leftist political movements that were infiltrated include, most notably, the Black Panther Party (BPP) and the
American Indian Movement (AIM), among others12.
The main goal of COINTELPRO was to “expose, disrupt, misdirect, discredit, or otherwise neutralize” the
activities of these groups and their leaders. Some of the main components of COINTELPRO included
infiltration, psychological warfare from the outside, harassment through the legal system, along with extralegal
force and violence. The FBI also incorporated “black bag jobs” into the program, which were warrant-less
entries targeted against certain groups, most notably the BPP. The program remained top secret until a
burglary by a group of left-wing radicals in 1971. The Citizens’ Commission to Investigate the FBI uncovered
and removed several thousand files and passed them on to news agencies with the intentions to have them
published. Many refused to publish the information and within months, Director Hoover declared that
COINTELPRO was over and that future operations would be handled on a case-by-case and need-to-know
basis13.
In 1976, a major investigation into COINTELPRO was undertaken by the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities of the U.S. Senate, which was commonly
referred to as the “Church Committee” due to its chairman, Senator Frank Church of Idaho. This Committee
documented the entire history of the FBI being used for the purpose of political repression – dating as far
back as World War I, when they were accountable for gathering ‘anarchists and revolutionaries’ for
deportation – and building from the mid 1930s up until 1976. In a Final Report to the Select Committee,
COINTELPRO was reprimanded with no uncertain charges:
"Many of the techniques used would be intolerable in a democratic society even if all of the targets had been
involved in violent activity, but COINTELPRO went far beyond that.. .the Bureau conducted a sophisticated
vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and
association, on the theory that preventing the growth of dangerous groups and the propagation of dangerous
ideas would protect the national security and deter violence13.” To this day, millions of documents remain
unreleased and many of the released documents are entirely censored by the government.
A Further Look into COINTELPRO
After COINTELPRO was implemented to monitor the Communist Party in the U.S., Hoover decided to use
these operations to investigate his concern that the Communist Party had infiltrated Black political
organizations. This began an investigation on Black civil rights leader Dr. Martin Luther King, Jr. FBI
surveillance of King began in 1957 and became more involved as his civil rights activities expanded and
gained supporters, including an increasing number of agents assigned to monitor and disrupt the movement.
By the end of 1963 COINTELPRO had expanded to cover Black activities and was known as the Black Hate
COINTELPRO. During this time the FBI was monitoring not just King, but the Congress of Racial Equality,
the Student Non-violent Coordinating Committee, the NAACP, and a number of other groups14.
However, King was targeted as a main threat and was the focus of much investigation. In January 1963
Hoover wrote several memos which stated that King was associating with communists, and by the following
spring was officially listed as a communist in the FBI Reserve Index. In October 1963, Attorney General
Robert F. Kennedy approved the use of wiretaps against King, in addition to the hidden microphone
surveillance that was also being used without Kennedy’s approval. These tactics were used for almost two
years and were expanded to monitor King even more intensely. Stating that it was a “matter of national
security” the FBI was allowed to place taps in the King home, the headquarters of the Southern Christian
Leadership Conference in Atlanta and New York, as well as motel rooms in L.A., Atlantic City, Washington,
D.C., Milwaukee, Honolulu, Detroit, Sacramento, and Savannah14. In a document written by FBI
counterintelligence specialist Charles D. Brennan in September 1963, the reason for the measures of
surveillance taken was that the amount of support the civil rights movement had gained over the past five
years made it a clear threat to “the established order” of the U.S15.
The surveillance was sanctioned for the sole purpose of determining how King had connections with the
Communist Party USA; however, the information that was attained was used by the FBI to try to discredit
him through a series of defamation attacks. The FBI monitored roughly five thousand of King’s phone calls
over the years, but the surveillance revealed nothing about national security or communist infiltration. In
1964 the FBI made a composite tape of recordings from different hotel rooms that allegedly contained
information about King’s sexual affairs. The tape was sanitized so as not to be traced back to the FBI, and
was sent to King’s wife along with a note stating that the tape would not be made public if King committed
suicide14.
Around the same time period, other political groups were being investigated by the FBI in ongoing counterintelligence efforts. The Bureau began surveillance on the Nation of Islam and their leader, Elijah
Muhammad. This surveillance was warranted because the FBI said that Nation of Islam members “disavow
allegiance to the United States” and “are taught not to obey the laws of the United States.” Wiretap
surveillance on Muhammad’s home in Chicago began in 1957, and when he purchased a home in Arizona in
1961, multiple wiretaps and microphones were installed there14.
Malcolm X was one of the principle lieutenants of the Nation of Islam, but broke away in March of 1964 to
establish a separate church called the Muslim Mosque, Inc., as well as a political Black organization called the
Organization of Afro-American Unity. When this occurred the FBI became concerned about alliances
between these groups and other influential groups. They undertook COINTELPRO actions to try to block
alliances with white radical groups such as the Socialist Workers Party. At least 2,300 pages of material had
been collected on him at the time of his assassination in February 1965. His assassination was stated to have
been committed by former colleagues as a result of his splitting from the Nation of Islam. However in a
memo written in 1969 the Chicago SAC stated that this factionalism had “been developed” by the FBI in
hopes of squashing the movement. Four days after the assassination of Malcolm X, the FBI removed him
from their security index. No one has ever been held legally responsible for the assassination, but one FBI
agent wrote that he considered the murder to be a model for successful counterintelligence operations15.
Ethical Frameworks
Under utilitarian, duty-based, and rights-based ethical theories the act of heavy government surveillance
policy is an ethical violation. From a utilitarian perspective, one must look at the consequences of an action,
and determine which consequence would be the most desirable for the greatest number of people involved.
In this case, the government is not acting in line with what is the greatest good for the greatest number. The
greatest good is allowing a society to have the ability to freely participate and change the system in order to
adhere to what is best for the people. By limiting radical political groups the government can effectively take
away this ability. In taking the ability to change and progress away from the people in a democratic system the
government violates the greatest good for the greatest number. The use of government surveillance to hinder
radical movements is causing a “chilling effect” on political participation and results in an obstruction of
social progress. The consequences of these government actions are undesirable, the actions are considered to
be unethical under utilitarian or consequence-based theory.
The duty-based and rights-based theories also show extreme surveillance to be an ethical violation. From a
duty-based, or deontological perspective, heavy government surveillance is an ethical violation because it does
not treat people in a universal or impartial way. Immanuel Kant, one of the most famous and influential
deontological theorists, claimed that actions are unethical if they conflict with the idea that all people are free
and rational beings. He stated that everyone has a duty to stop such unethical acts and promote freedom and
rationality. Furthermore he stated that rules should only be applied if they are universal and impartial. Acts of
government surveillance are often carried out with heavy biases against certain types of groups and ideologies,
such as the civil rights or communist groups. In addition, using surveillance tactics against certain
groups and individuals goes against the idea that people are free and capable of making their own
decisions, and implies that people need to be monitored and controlled. Certain types of monitoring
and controlling are necessary in any society, but in a democratic society when the control tactics goes as far to
limit the effect the people can have on their own society then the system is not only undemocratic ,but
unethical as well.
The surveillance bias towards particular groups also violates several rules and regulations stated in our
countries legal doctrines. Rights-based theory states that an action is unethical if it goes against rights that
have been given through contract or law. Surveillance practices of the FBI and other government groups
have shown to violate several laws and the rights that have been given to citizens by the government, such as
freedom of speech, freedom of assembly, protection against illegal searches, and many more. In order to be
ethical under a rights-based theory a democratic government must follow the laws and regulations set forth
by the people’s elected government agents. Past and present government surveillance tactics violate these
principles and are therefore unethical.
“One does not establish a dictatorship in order to safeguard a revolution; one makes a revolution in order to
establish a dictatorship.”
-- George Orwell16
AT: Kritiks --- Terror Talk / Islamophobia
No Link --- our argument was never that Muslims and Middle Easterners were the
source of all terrorism. Our aff criticizes and curtails government policies that are
based on this stereotype.
Stabile, 14 --- J.D., University of California, Berkeley, School of Law, 2013 (February 2014, Emily,
California Law Review, “Recruiting Terrorism Informants: The Problems with Immigration Incentives and
the S-6 Visa,” 102 Calif. L. Rev. 235, Lexis, JMP)
Notably, the argument that Muslims and Middle Easterners are in the best position to provide accurate
intelligence on terrorist activities within their respective communities risks fueling the government's
conflation of those communities with terrorism. n122 However, in analyzing how best to procure
counterterrorism intelligence, it would be amiss not to recognize the FBI's and other law enforcement
agencies' heavy focus on Muslim and Middle Eastern communities. This is largely due to most
recognized foreign terrorist organizations being based out of the Middle East or having Islamic ties. n123
Law enforcement efforts, immigration law, surveillance policies, and pre-9/11 incidents like the 1993 attack
on the World Trade Center have categorized the typical terrorist as male, Middle Eastern, and devoutly
Muslim. n124 The reality is that even though recently immigrated Muslims and Middle Easterners have
become synonymous with terrorism, terrorists come from various ethnicities, religions, and communities.
n125
While acknowledging and attempting not to replicate that stereotype, this Comment seeks to
recommend ways to improve the relationship between law enforcement and potential terrorism informants
who typically belong to the same religion or ethnicity as those they surveil. The government's focus on
Muslim and Middle Eastern communities as potential breeding grounds for terrorist groups also directs the
focus of this Comment. However, this Comment resists the broad characterization of these
communities as prone to extremism and violence. In fact, a recent statistical analysis of terrorism activity
after 9/11 discredits the stereotype that Muslims and Middle Easterners account for most of the terrorism
within the United States. n126 In total, the report found that U.S.-originated non-Muslims accounted for 107
post-9/11 plots while U.S.-originated Muslims accounted for 49. n127 Conversely, the report found that
cooperation with Muslim communities helped prevent 40 percent of all Al-Qaeda plots after 9/11. n128 As
the report notes, "[a] singular focus on Muslim terrorists is both bad for national security and civil society ... .
Numerous studies and experts have stated that there is no reliable [*255] "terrorist profile.'" n129 When
compared to the actual threat posed by members of Muslim and Middle Eastern communities, then, the FBI's
explicit target of Muslim and Middle Eastern communities is excessive.
AT: T Surveillance
The plan ends “mapping” of Muslims and deployment of informants that are part of
suscipionless surveillance
Shahabuddin, 15 --- JD, Chapman University, May 2015 (Spring 2015, Madiha, Chapman Law Review,
“"The More Muslim You Are, the More Trouble You Can Be": n1 How Government Surveillance of Muslim
Americans n2 Violates First Amendment Rights,” 18 Chap. L. Rev. 577, JMP+AMP)
Introduction
When Imam Hamid Hassan Raza, leader of Brooklyn's Masjid Al-Ansar, meets newcomers at his mosque, he
treads carefully. n3 After learning of the New York Police Department (NYPD)'s targeted surveillance of
Muslim "hotspots" n4 such as [*578] Muslim businesses and mosques for counterterror intelligence
gathering, he "is hesitant to approach newcomers until they are better known in the Masjid Al-Ansar
community." n5 Due to multiple "chance" encounters with plainclothes police officers, n6 threats of his
sermons being taken out of context and used against him, n7 and his fears of what being targeted by the
NYPD would mean for his wife and child, n8 Raza has "considered leaving the pulpit." n9
Ironically, Masjid Al-Ansar is named after the Arabic word ansar, which means "the helpers" and in the
Islamic tradition refers to the support and sense of community fostered during the time when the Prophet
Muhammad and his followers had newly arrived to the city of Madina. n10 After the Associated Press broke
the news about the NYPD's "Muslim Surveillance Program" in August 2011, n11 mosque congregants grew
even more suspicious of newcomers [for fear they were informants], and a constant sense of suspicion now
exists among the mosque's congregants. There [was] ... a steep decline in mosque attendance, as the number
of worshippers attending afternoon prayers on weekdays ... declined from approximately twenty people to
just two or three people. n12
A once "vibrant and lively mosque community" dwindled into a fearful group of isolated individuals
apprehensive about the consequences of their mosque attendance and regular interaction with others in their
community, disallowing the opportunity for Masjid Al-Ansar to live up to its name. n13 Raza in particular
found that his wariness of new mosque attendees prevented him from [*579] "effectively [fulfilling] his role
as a religious and spiritual counselor and teacher." n14
On June 18, 2013, the American Civil Liberties Union (ACLU), Creating Law Enforcement Accountability
and Responsibility (CLEAR) Project, and New York Civil Liberties Union (NYCLU) filed a lawsuit on behalf
of Raza (the named plaintiff) and other Muslim individuals who were targeted by NYPD surveillance,
alleging that they suffered injuries caused by such conduct. n15 The lawsuit was filed against the City of New
York, Mayor Bloomberg, Police Commissioner Raymond W. Kelly, and other city officials. The complaint
alleged "suspicionless surveillance" of "mapped" Muslim individuals and organizations and the
deployment of informants "without any suspicion of wrongdoing." n16 Raza v. City of New York
represents one of the more recent and publicized legal challenges to the government's surveillance of
Muslim Americans without any other indication of suspicion or wrongdoing except being Muslim,
or perhaps, as this Comment will discuss, being "too Muslim." n17
On April 15, 2014, after months of public outcry - and undoubtedly bad press n18 - the NYPD announced it
would disband the controversial and constitutionally suspect "Zone Assessment [*580] Unit" (formerly
called "Demographics Unit") within their department used to map Muslim communities in the region. n19
This action by the NYPD could be heralded as the right step towards ending the stigmatization of religious
expression by Muslim Americans and tells us that it is possible to refrain from alienating and burdening an
entire religious community in the name of counterterrorism. Despite this move, however, some question
whether it will mean any real difference. n20
This Comment will argue that the government's targeted, suspicionless surveillance of Muslim
Americans in the name of counterterror efforts has effectively restricted the Muslim community's First
Amendment freedoms of association, religion, and speech. Part I will discuss a brief background of
surveillance, leading up to a report on the current effects of surveillance programs on Muslim Americans
today. The discussion in Part II will turn to the case law and legal standards for First Amendment claims in
the context of Muslim surveillance, advocating for and applying the strict scrutiny test to establish that the
government's conduct has in fact infringed on Muslim Americans' rights to free association, religion, and
speech. Part III will then conclude by offering solutions to counterterror efforts which do not criminalize
mere adherence to a particular faith, including a cease of widespread government surveillance (i.e., not
treating Muslims as a suspect class) and offering gang intervention models as a possible alternative to the
current practice of government counterterrorism programs.
Plan restricts political surveillance
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
[*645] Political surveillance is defined as an array of techniques employed by government agents to
investigate and record the political and religious beliefs and activities of those engaged in First Amendment
expression, ranging from infiltrating and disrupting organizational leadership to observing and recording
public events. n155 Note that the definition does not include terrorism investigations that are not based on
First Amendment expression.
Islamophobia Aff
1ac Islamophobia Affirmative
The government’s discriminatory surveillance policy constructs Muslim Americans
as criminals --- this spills over to violate the rights of others
Kundnani & Kumar, 14 (7/14/2014, Arun Kundnani is the author of "The Muslims Are Coming:
Islamophobia, Extremism, and the Domestic War on Terror", Deepa Kumar is the author of "Islamophobia
and the Politics of Empire", “Stop spying on Muslim-Americans,”
http://www.timesunion.com/opinion/article/Stop-spying-on-Muslim-Americans-5620920.php, JMP)
The U.S. government has been snooping on prominent members of the Muslim-American community,
according to documents released by National Security Agency whistle-blower Edward Snowden and
publicized in a story by Glenn Greenwald and Murtaza Hussain of the online publication Intercept.
That story reveals that the NSA and FBI covertly monitored the emails of five Muslim-Americans who have
"all led highly public, outwardly exemplary lives," the article said.
Among the five is Faisal Gill, who served in President George W. Bush's Department of Homeland Security
and is a longtime Republican Party activist.
"I've done everything in my life to be patriotic," Gill told Intercept. "I served in the Navy, served in the
government, was active in my community. I've done everything that a good citizen, in my opinion, should
do."
Another victim of this snooping is Nihad Awad, who heads up the Council on American-Islamic Relations,
the largest Muslim civil rights organization in the United States.
The three others are Asim Ghafoor, whom the article identifies as "a prominent attorney who has
represented clients in terrorism-related cases;" Hooshang Amirahmadi, "an Iranian-American professor of
international relations at Rutgers University;" and Agha Saeed, "a former political science professor at
California State University, who champions Muslim civil liberties and Palestinian rights."
It appears that the government spied on these five not on the basis of reasonable suspicion of involvement in
criminal or terrorist activity but simply because of the expression of legitimate religious or political opinions
that the government considers unacceptable.
The Intercept article revealed what it called "blatant prejudice against Muslim-Americans." And it
showed good proof: One NSA document instructed staff on how to draw up a target list for surveillance. In
place of the target's real name, the memo used the following fake name: "Mohammed Raghead."
These documents suggest that the government is viewing all Muslims — be they Arab, Asian or
African-American — as suspect because of their membership in a religious community. And when
their Islamic belief is combined with political opinions critical of U.S. foreign policy, they become even more
suspicious — to the point of being treated as possible terrorists.
This violates the First Amendment of the Constitution, which prevents discrimination on the basis of one's
religious or political opinions.
It is also a violation of the Fourth Amendment, which protects us from unlawful searches.
The spying on Muslim-Americans is all too reminiscent of the FBI's COINTELPRO and the NSA's Project
Minaret decades ago, which spied on people like Joan Baez, Jane Fonda and the Rev. Martin Luther King Jr.
We have to strongly reject the surveillance of Muslim-Americans and recognize
that an attack on the rights of one group of people inevitably fans out to others.
As the U.S. labor movement once put it — an injury to one is an injury to all.
These constructions create a broader state of violence against bodies of color --- this
manifests in xenophobic profiling
Wing 3, Bessie Dutton Murray Distinguished Professor of Law
[Spring 2003, Adrien Katherine Wing is a Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa College of Law. A.B.
Princeton, 1978; M.A. UCLA, 1979; J.D. Stanford, 1982. This paper was presented at the Civil Rights symposium of the Louisiana State“Civil Rights in
the Post 911 World: Critical Race Praxis, Coalition Building, and the War on Terrorism”,
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5987&context=lalrev&seiredir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fq%3Dguantanamo%2B%2522critical%2Brace%2Btheory%2522%26btnG%3
D%26hl%3Den%26as_sdt%3D0%252C5%26as_vis%3D1#search=%22guantanamo%20critical%20race%20theory%22, 63 La. L. Rev. (2003)]
To illustrate how race can be socially constructed, I will use myself as an example. In the United States, I
am considered African American
or Black American, with the defacto second class status that designation still implies. My parents and grandparents were all considered Black,
even though some of them had very light skin. The most recent white person whom we can determine is an ancestor is my great-great grandfather,
Confederate General Pierre Gustave Toutant Beauregard.35 We even have members of the African American group who look white, yet are still
considered part of the Black group. In South Africa, where I have taught many times, I was considered part of the historically mixed race group known
as Coloured, due to my light skin, wavy hair and other characteristics. 7 During the apartheid era, this group had a buffer status between the de jure
most privileged whites and the least privileged black Africans.3 " In Brazil, I learned that my same features would classify me as White, with all the
defacto privileges that the designation still brings in that society.39 The
pan-ethnicity term "Arab" and the religious signifier
"Muslim" have been socially constructed as a synonymous "race" in the United States.4° While there are over
1.2 billion Muslims worldwide, only 15% are Arab.41 In the U.S., it is unclear, but there maybe between 4-8
million Muslims, of whom 22.4% are U.S. born and 23.8% are African American.42 There may be 3 million Arabs in the
U.S., originating from 22 countries,43 and the Arab American Institute has revealed the little known fact that nearly three quarters of Arab
Americans are Christians." In an important case, St. Francis College v. Al-Khazraji, the Supreme Court acknowledged that Arabs can be
discriminated against on account of their race. Interestingly, those who merely look like Arabs or Muslims may be racially
profiled on that basis as well. The double group can thus be considered larger than the number of actual
members. According to one commentator, there may be, in this country, 7 million Arabs, 8 million Muslims, and 1.6
million South Asians, Latinos, and African Americans who could look "Arab," probably at least 10 million
people,46 which I think even that is a vast underestimate of the numbers of the Blacks and Latinos in America who could pass as Arab. One African
American radio personality stated that French citizen Zacharias Moussaoui, native of Morocco, who may have been the twentieth September 11
hijacker, looks like "a brother from around the way.' When my sons and I travel abroad, we are often mistaken for Arabs or Muslims.
My partner James, who is a dark brown skinned Christian African American, often wears a kufi or skull cap to express his cultural affinity for Africa.
He is always taken for a Muslim, although not an Arab. Sadly, I
have told my NYU student son, who can phenotypically pass
for Arab, that he has to be careful when flying so that he will not be mistaken for an Arab. Dressing in the
popular ghetto styled baggy pants coupled with corn rowing his hair, and the use of an Ebonics dialect,48
helps ensure that he is not racially profiled as an Arab. Of course, when he lands in New York, his failure to be able to hail a cab
indicates he is clearly seen as a Black - too risky to pick up.49 These two overlapping and socially constructed-as-synonymous
groups, Arabs and Muslims, have come to be regarded in some of the negative ways that have
historically characterized African Americans. While Arabs and Muslims are often stereotyped as
dangerous, evil, sneaky, primitive, and untrustworthy, much as Blacks are, the criminality has a twist-they
are considered potential or actual terrorists." They are forever "foreign, disloyal and imminently
threatening,"'" whether they are citizens or not. Arabs and Muslims were racially profiled, victimized, and
demonized as terrorists well before September 11 2 These activities have included: physical attacks by individuals and pro-Israel
groups such as the Jewish Defense League; political attacks by pro-Israel lobby AIPAC and the Anti-Defamation League ofB'nai Birth, as well as
many other Democratic and Republican Party affiliated entities; blacklisting of prominent Arab American intellectuals such as
Columbia professor Edward Said and Harvard professor Walid Khalidi; as well as vicious stereotypes in films and television that
would not be tolerated if used to characterize other groups.53 For example, Jack Shaheen
surveyed a number of movies and found
the following characterizations of Arabs and Muslims: "assholes," "bastards," "camel-dicks," "pigs,"
"devil-worshipers," "jackels," "rats," "rag-heads," "towel-heads," "scum-buckets," "sons-ofdogs," "buzzards of the jungle," "sons-of-whores," "sons-of-unnamed goats," and "sons-of-shecamels." 4 It is difficult to imagine the movie industry applying those sorts of labels to Blacks or Jews today.
Arab American campaign contributions have been returned as if Arab citizens have no right to participate
in American politics 5 3 Anti-Arab and anti-Muslim activities have intensified during periods of high tensions in the Middle East, such as the
1980 Iran Hostage situation, 1980-88 Iran-Iraq war, 1986 war against Libya, and the 1991 Gulf war.56 "The Supreme Court has upheld
immigration laws discriminating against noncitizens on the basis of race, national origin and political
affiliation that would patently violate the constitution if the rights of citizens were at stake."57 The cases include Harisiades v.
Shaughnessy," Nguyen v. US.,59 Reno v American-Arab AntiDiscrimination Committee,6 ' Sale v. Haitian Centers Council, Incorporated,6 ' and The
Chinese Exclusion cases.62 The plenary power doctrine has historically provided immunity from judicial scrutiny of immigration judgments, whether
by Congress or the Executive branch. Many Americans assumed the Oklahoma City bombing of the Murrah federal building had to be done by Arabs
or Muslims, rather than by white Christian militia member Timothy McVeigh.' After that incident, even though Arabs and Muslims were not involved,
draconian immigration laws were passed in 1996 which singled out those groups. 65 Unfortunately, what happened to Arabs and Muslims under these
1996 laws was not unique. According to Kevin Johnson, these laws are part of a history of attempts to stiffle dissent that includes the Alien and
Sedition Acts of the 1790s and the Palmer Raids after World War 1.66 In that period after the war, the U.S. imprisoned people for years for speaking
out against the war effort.67 During the cold war Red Scare, many people lost jobs and were subject to investigation, or were even imprisoned,
because of rumored association with the Communist party.6 According
to Jerry Kang, "wartime coupled with racism and
intolerance creates particular types of mistakes. Specifically we overestimate the threat posed by racial 'others,'
in WWlI, Japanese Americans; today, Arab Americans, Muslims Middle Easterners, immigrants and anyone who looks
like 'them . ,9, ? The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)70 made it a crime to contribute to foreign groups deemed as terrorist, and
created special deportation procedures, including the formation of special courts to evaluate secret evidence. 7 ' The Illegal Immigration and Immigrant Responsibility Act
of 1996 (IIRIRA)72 supplemented AEDPA. That act prevents federal courts from reviewing a variety of immigration cases, with very limited exceptions. 3 These two laws
"either explicitly-or according to INS interpretation, impliedly-authorize the use of classified evidence to exclude an 'alien terrorist' under special removal proceedings,74 to
summarily remove an alien who is a 'national security' risk,7 and to deny bond to aliens in removal proceedings."76 Pursuant to these statutes, the
Immigration and Naturalization Service (INS) deported or attempted to deport more than two dozen people on the basis of secret evidence-almost all
were Muslim, mainly Arabs. 77 Ironically, in 2000, Republican Presidential candidate George W. Bush accused the Clinton administration of racial
profiling when it used secret evidence.78 After
September 11 the situation affecting Arabs and Muslims dramatically
worsened,79 and there have been profound effects on their civil rights.8 " Before that fateful date, 80% of Americans
considered racial profiling wrong.8 After September 11, the polls reversed and 60% said profiling was fine, especially if
directed against Arabs and Muslims. 82 U.S. Congressman John Cooksey of Louisiana likely expressed the sentiments of
many when he stated on the radio, "If I see someone come in and he's got a diaper on his head and a fan belt
around that diaper on his head, that guy needs to be pulled over and checked." 3 A survey done soon after
September 11 said that nearly half would be in favor of having Arabs, including citizens, carry a special
identification card.8 There were early reports that some Blacks and Latinos welcomed the law enforcement
targeting of Arabs and Muslims.85 When I heard that comment, it reminded me that I preferred that my sons not be mistaken for
Arabs when flying. On the other hand, I also realized that increased racial profiling of Arabs and Muslims has not meant that the long term racial
profiling of African Americans has stopped. It merely means that my sons may be doubly profiled depending on the context. At the airport, they may
be regarded as Arab terrorists, while at the taxi stand or ATM machine, they may be regarded as Black criminals.8 6 After September 11, Muslims and
Arabs and people who look like them have been under siege." Over
1000 incidents of hate crimes were reported by February 2002.8
Even President Bush's Arab secret service agent was removed from an American Airlines plane. 9 Of five
people who were killed, including a Sikh Indian, a Pakistani Muslim, an Egyptian Coptic Christian, and an
Indian Hindu,9 none of them was a Muslim Arab, but all were socially constructed as such. The U.S. Justice
Department opened up more than 380 investigations into violence or threats, which have taken the form of "telephone, internet, mail and face-to-face
threats; minor assaults, assaults with dangerous weapons, and assaults resulting in serious injury or death; and vandalism, shootings, and bombings
directed at homes, businesses, and places of worship."9 ' About 70 state and local criminal prosecutions were instigated against 80 defendants. 92
According to Bill Hing, Arabs
and Muslims, whether citizens or not, are literally and figuratively being deAmericanized, which is "a twisted brand of xenophobia that is not simply hatred of foreigners, but also
hatred of those who may not be foreigners but whom the vigilantes would prefer being removed from the
country anyway."93 A member of the U.S. Civil Rights Commission has even said that in the event of another terrorist attack,
the American government might consider interning Arab Americans,"4 reminiscent of the treatment of
120,000 Japanese and Japanese Americans in World War II.9
Maintaining even limited federal surveillance condones discrimination --- it is a “yesno” question, not one of degree
Horwitz, 14 --- covers the Justice Department and criminal justice issues nationwide for The Washington
Post (12/8/2014, Sari, “Justice Dept. announces new rules to curb racial profiling by federal law
enforcement,” http://www.washingtonpost.com/world/national-security/justice-dept-to-announce-newrules-to-curb-racial-profiling-by-federal-law-enforcement/2014/12/07/e00eca18-7e79-11e4-9f3895a187e4c1f7_story.html, JMP)
The Obama administration on Monday formally announced long-awaited curbs on racial profiling by federal
law enforcement, but the new rules will not cover local police departments, which have come under criticism
in recent months over allegations that their officers profile suspects.
Attorney General Eric H. Holder Jr. expanded Justice Department rules for racial profiling to prevent FBI
agents from considering gender, national origin, religion, sexual orientation and gender identity, in addition to
race and ethnicity, when opening cases. The department also is banning racial profiling from national security
cases for the first time.
Holder’s revised policy covers state and local law enforcement officers while they participate in federal law
enforcement task forces. But it is considered only guidance for police officers in state and local departments.
The profiling rules come at a time of racial tension around the country after the recent deaths of three
African Americans at the hands of police in Ferguson, Mo., New York and Cleveland, and the absence of
criminal charges against the white police officers who were involved.
“As attorney general, I have repeatedly made clear that profiling by law enforcement is not only wrong, it is
profoundly misguided and ineffective,” Holder said. “Particularly in light of certain recent incidents we’ve
seen at the local level, and the widespread concerns about trust in the criminal justice process, it’s
imperative that we take every possible action to institute strong and sound policing practices.”
A Justice Department official said the goal is for federal law enforcement agencies to “model” these
policies, proving to state and local authorities that successful policing does not require profiling.
Holder held a conference call Monday with local law enforcement leaders to brief them on the policy and
encourage them to adopt it.
“At this historic moment in our nation’s race relations, the release of this revised guidance is an important
signal of progress, but it does not completely address the need for reform of policing tactics at the state and
local level,” said Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative
office.
The rules also apply for the first time to many activities at the Department of Homeland Security, including
all Immigration and Customs Enforcement civil immigration enforcement, U.S. Coast Guard law
enforcement activities, Border Patrol activities not near the border, DHS officers protecting government
buildings and federal air marshals.
But DHS officials will not be covered by the new racial profiling ban when they screen airline passengers and
guard the country’s Southwestern border.
Customs and Border Protection, for example, still will be allowed to use profiling when conducting
screenings and inspections at the country’s ports of entry and interdictions of travelers at the border,
government officials said. Secret Service protective activities also will not be covered by the rules.
“Having a particular skin color, religious belief or last name is not a crime,” said Rajdeep Singh, director of
law and policy at the Sikh Coalition, the largest Sikh American civil liberties organization. “This is not a
50-50 issue. The Obama administration can either ban profiling or allow it. It sounds
like they’re committed to allowing it.”
A fact sheet on the policy said that some DHS activity is not covered by the policy because of the “unique
nature of DHS’s mission.”
“This does not mean that officers and agents are free to profile,” according to the DHS fact sheet. “To the
contrary, DHS’s existing policies make it categorically clear that profiling is prohibited, while articulating
limited circumstances where it is permissible to rely in part on these characteristics, because of the unique
nature of border and transportation security as compared to traditional law enforcement.”
President George W. Bush banned racial profiling in 2003, but the prohibition did not apply to national
security investigations and covered only race — not religion, national origin, gender or sexual orientation and
gender identity.
Civil rights groups and Democratic lawmakers have pushed for expanded anti-profiling protections since
President Obama was elected in 2008. Holder began the process to revamp the rules in 2009 and considers
the new policy one of the signature accomplishments of his tenure.
About six months ago, the Justice Department delivered the rules to the White House. But they applied only
to the department, and White House officials wanted the polices to cover additional agencies.
The rules have been delayed in part because DHS officials pushed the White House and the Justice
Department to allow major exclusions for agencies such as the Transportation Security Administration,
Immigration and Customs Enforcement, and Customs and Border Protection.
In several high-level meetings, DHS Secretary Jeh Johnson argued that immigration and customs agents and
airport screeners needed to consider a variety of factors to keep the nation safe, according to officials familiar
with his personal efforts. TSA officials argued that the rules should not apply to them because the TSA is not
a law enforcement agency.
In its fact sheet, DHS officials said that they will review activities not directly covered by the guidance to
ensure that “we are including every appropriate safeguard and civil rights protection in the execution of those
important security activities, and to enhance our policies where necessary.”
But that was not enough assurance for civil liberties advocates.
“It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it
gives a green light for the FBI, TSA and CBP to profile racial, religious and other minorities,” the
ACLU’s Murphy said. “This guidance is not an adequate response to the crisis of racial profiling in America.”
The federal government even uses it surveillance policies to manufacture terror plots
--- this allows the FBI to continue destroying communities of color and maintain a
climate of fear
Cabral & Sutcliffe, 15 --- *photojournalist, filmmaker and cinematographer documenting stories seldom
seen in mainstream media, AND **documentary filmmaker whose work explores issues of national security
post-9/11 (1/26/2015, Lyric R. Cabral and David Felix Sutcliffe, “The FBI Isn’t Catching Terrorists — It’s
Creating Them” http://creativetimereports.org/2015/01/26/fbi-counterterrorism-lyric-cabral-david-felixsutcliffe-sundance/, JMP)
People think that catching terrorists is just a matter of finding them—but, just as often, terrorists are
created by the people doing the chase.
While making our film (T)ERROR, which tracks a single counterterrorism sting operation over seven
months, we realized that most people have serious misconceptions about FBI counterterrorism efforts. They
assume that informants infiltrate terrorist networks and then provide the FBI with information about those
networks in order to stop terrorist plots from being carried out. That’s not true in the vast majority of
domestic terrorism cases.
Since 9/11, as Human Rights Watch and others have documented, the FBI has routinely used paid
informants not to capture existing terrorists, but to cultivate them. Through elaborate sting operations,
informants are directed to spend months—sometimes years—building relationships with targets, stoking
their anger and offering ideas and incentives that encourage them to engage in terrorist activity. And
the moment a target takes a decisive step forward, crossing the line from aspirational to operational, the FBI
swoops in to arrest him.
The targets of FBI stings are almost exclusively Muslim men between the ages of 15 and 35. They also tend
to be angry, isolated and impoverished—in other words, eager for companionship and easy to manipulate.
Many of the informants are well-remunerated con men with criminal histories, whom the FBI cannot
guarantee won’t coerce targets into plots in order to secure their own paychecks. The stakes are high:
informants stand to make as much as $100,000 over the course of a single investigation, not to mention
considerable bonuses in the case of successful convictions.
A recent example: on January 14, the FBI announced that it had interrupted an ISIS-inspired terrorist plot in
the United States. Christopher Lee Cornell, a 20-year-old recent Muslim convert from Cincinnati, was
allegedly plotting to attack the US Capitol with pipe bombs and gun down government officials. Cornell was
arrested after purchasing two semiautomatic weapons from an Ohio gun store because the man that Cornell
thought was his partner was actually an FBI informant. His plot was foiled by the FBI, after they ensured the
cooperation of the store owner.
We see the same story repeated over and over: of the domestic terrorism plots interrupted by law
enforcement over the past decade, all but four were initiated by an informant-provocateur acting under FBI
supervision. Conveniently for the FBI, network news anchors choose to parrot FBI press releases and herald
suspects’ alleged associations with radical Islam, and the steady stream of “interrupted plots” provides
the government with ample evidence that the terrorist threat is ever-present and that expanded
surveillance is essential to national security.
Less than a day after Cornell’s arrest, House Speaker John Boehner praised NSA spying for uncovering the
plot—even though the FBI asserts that it learned of Cornell’s alleged activities through the informant. When
pressed for details, Boehner refused to elaborate, saying only, “We’ll let the whole story roll out.” He added
that lawmakers need to consider this particular plot when discussing amendments to the Foreign Intelligence
Surveillance Act.
Although then-Attorney General Alberto Gonzales released guidelines governing the FBI’s use of
confidential informants in 2006, there is no congressional oversight of these activities. Even though Attorney
General Eric Holder recently revised federal law-enforcement guidelines to limit racial profiling, and despite
evidence that the FBI engages in profiling when identifying persons of investigative interest, the FBI will be
exempt from these revised guidelines in the interests of national security.
As recently as 2011, FBI counterterrorism training materials explicitly stated that most moderate Muslim
Americans support terrorism and erroneously identified Islamic dress, prayer and even speaking Arabic as
indicators of potential radicalization. The FBI is also no bastion of employee diversity: of the 13,766 special
agents it employs, only 17 percent are “minorities,” reducing the opportunities for shifts in the bureau’s
thinking on Muslims and other minorities.
The cumulative effects of FBI surveillance and entrapment in communities of
color have been devastating. Mosques have reported declines in membership as individuals choose
to worship at home rather than risk monitoring. Imams have expressed reluctance to discuss the complexities
of jihad, a frequently misunderstood tenet of the Islamic faith, for fear that their words may be misconstrued.
Many Muslims are wary of donating to Islamic charities, both domestic and foreign, for fear of raising
government suspicions. And on campuses across the country, Muslim student associations have banned
discussions of politics, terrorism and the “war on terror.” It is unthinkable that a diverse and vibrant
American community inundated with agents provocateurs should be prevented from engaging in
vigorous and open dialogue. It is also unconscionable that $1.2 billion of our tax dollars are being funneled
every year into these misguided tactics.
After a recent screening of our film at a New York City mosque, a young African-American convert to Islam,
sporting a brown full-body covering with matching hijab, confessed to us that she feels uncomfortable
discussing aspects of her identity. She does not speak about her religious conversion in public, for fear of
attracting or encouraging informants.
The stated purpose of the FBI’s counterterrorism mission is to enable Americans to go about their daily lives
without fear. But in addition to imprisoning hundreds of Muslim men caught up in the FBI’s informant-led
traps, the agency has actively created and encouraged a pervasive climate of fear and suspicion
among Americans exercising their constitutional right to freedom of religion. In fact, the FBI’s tactics
have profoundly impacted law enforcement’s ability to maintain a relationship of trust with Muslim American
communities, much to the detriment to our collective national security. Authorities must rein in the
informant program, and institute immediate congressional oversight, if they sincerely aim to defend the
liberty and security of all Americans, regardless of race or religion.
The result is a vicious cycle --- the government’s identification of Muslim Americans
as terrorists just serves to reinforce its racist surveillance policies. Recognizing
current discriminatory policies and attitudes as a continuation of decades of
exclusion and tolerating real dissent can break the stronghold of Islamophobia that
controls the public sphere.
Curtis, 12 --- Millennium Chair of the Liberal Arts at Indiana University-Purdue University Indianapolis
(7/5/2012, Edward E. Curtis IV, “For American Muslims, Everything Did Not Change After 9/11,”
http://religionandpolitics.org/2012/07/05/for-american-muslims-everything-did-not-change-after-911/,
JMP)
“Everything changed after 9/11.” This political mantra has become part of our national life. It is invoked to
explain war-making in foreign lands, the creation of government departments such as Homeland Security,
and the expansion of federal surveillance powers, both at home and abroad. In the past decade, it has also
drawn special attention to the presence of Muslims in the United States. Scholars, analysts, and policy-makers
have emphasized the unique nature of the threat posed either by or to Muslim Americans in the post-9/11
era. On the one hand, the administrations of both George W. Bush and Barack Obama have identified the
radicalization of Muslim Americans as one of the greatest security problems faced by the United States today.
On the other hand, civil libertarians, immigration activists, and progressives have decried the violations of
Muslims’ civil rights in the course of prosecuting the war on terrorism. Both of these rhetorical strategies
mean to call attention to the post-9/11 Muslim American. And yet, both rhetorics are also a form of
forgetting, a severing of Muslim Americans from their deep roots in U.S. history.
A key theme resounds in Muslim American history: the belief that Muslim American dissent is a threat to
national security. Dissent does not equal terrorism (more about that shortly), but the fear that Muslim
American dissent begets violence was a concern long before 9/11. There are important similarities
between pre-9/11 and post-9/11 state surveillance of Muslim Americans. For much of the twentieth century,
it was not Muslim immigrants, but rather indigenous African American Muslims who were, from the point of
view of federal authorities, the public and potentially dangerous face of American Islam. The parallels
between earlier and later periods of state surveillance are striking. We seem to be living in a new age of
consensus in which, like the late 1940s and 1950s, a vital center has identified Islamic radicalism, and by
extension Muslim American dissent, as an existential problem, a dangerous expression of extremism.
It hasn’t always been this way. One common mistake is to assume that prejudice toward Muslims is
unchanging and static. To be sure, fears of Muslim aggressors in North America are as old as the Puritans and
other Europeans who brought such phobias with them from the Occident. And certain common features of
Islamophobia—ideas about Islam and Muslims as violent, misogynistic, and backward—have remained
potent throughout U.S. history. But our national discourse on Islam in the past two centuries has been far
more dynamic and rich than this. In the pre-Civil War period, for example, the administration of President
John Quincy Adams identified enslaved Muslim Americans as foreigners who were friendly to American
interests. His secretary of state, Henry Clay, mistook these West Africans for Moors, or North Africans, and
argued that by freeing and repatriating them, the young nation might be able to improve relations with the
Barbary states against whom the United States fought its first foreign war. With Clay’s approval, Abdul
Rahman Ibrahima, an enslaved Muslim, was feted up and down the East Coast by some of the United States’
most important citizens, including David Walker, the Tappan brothers, Francis Scott Key, and Edward
Everett.
The Origins of American Islamophobia
So what happened? How did domestic Muslims go from being rather friendly—if not misunderstood—
foreigners to dangerous dissenters? At what point did domestic Muslims become a major threat to the
American nation-state? The origins of government-supported Islamophobia emerged explicitly in the postWorld War I period. The U.S. acted on its fears of physical and ideological pollution through immigration
laws, like the 1924 National Origins Act, as well as through the suppression of organizations like Marcus
Garvey’s Universal Negro Improvement Association. Fueling national suspicion of African American
Muslims was the fear that immigrants of color were bringing political diseases like Bolshevism and anticolonialism with them, and that such disease would spread among black people. There was much at stake,
since enormous federal, state, and local resources were maintaining Jim Crow segregation. Terrifying
predictions of America’s people of color uniting with colonized people abroad ensued, and the federal
government put Islam among black Americans at the front of its surveillance agenda.
Nonetheless, the formation of American Islam as a simultaneously religious and political response to
colonialism and racism only accelerated in the 1930s. In 1930, W. D. Fard, a person of color whose
background remains contested, founded the Nation of Islam (NOI). Other black-led Sunni organizations
followed suit, founding groups in Cleveland, Brooklyn, and along the East Coast; many of them eventually
convened in Philadelphia in 1943 to form the United Islamic Society of America. The FBI viewed the
transnational ties and diasporic consciousness of these black Muslim Americans as truly dangerous. This
perception only worsened when thousands of African Americans, Muslim or not, put their hopes in the
messianic prophecy that the Empire of Japan would liberate them from the cage of American racism through
a military invasion. During the late 1930s and early 1940s, black Muslims, black Jews, advocates of black
emigration to Africa, and black advocates for pan-Asian solidarity declared their public support for Japan, a
fellow “colored” nation. A Japanese national, Major Satokata Takahashi, formed a “Development of Our
Own” group to galvanize such feelings in Detroit, Chicago, and St. Louis. Several African American leaders
appropriated Takahashi’s ideas. As the fear of a Japanese invasion spread in the early 1940s, the U.S.
government arrested African American leaders suspected of stoking such feelings. Among the twenty-five
leaders charged with sedition was Elijah Muhammad, leader of the Nation of Islam. Muhammad was
acquitted of the sedition charge but was jailed for refusing to register for the military draft.
Radicals and Counter-Intelligence
After World War II, federal agencies experimented with different approaches to neutralizing the political
power of African American Islam, culminating in extensive counter-intelligence operations against the
Nation of Islam and other Muslim groups. One strategy was the denial of First Amendment protections
to Muslim prisoners. The Justice Department argued that since the NOI was not an authentic religious
movement—but rather a “cult” that operated as political organization—its followers in prison did not have
the right to meet or conduct religious services.By redefining Islam as a “cult” the government could avoid the
messiness of legal protections for religious expression. As was often the case, the word “cult” was used to
label a religion that lots of people disliked or feared.
Making out the Nation of Islam to be a cult was an easy argument to make, if not in federal court then at least
in the media. The FBI’s campaign against the NOI also included commissioning and releasing to the public
sociological scholarship that depicted black Muslims as false ethnics. In the early 1960s the Bureau
commissioned a full-length monograph on the NOI; it argued that the African American identification with
Islam represented a psychologically dysfunctional association of black Americans with a foreign culture.
Mainstream media echoed these claims, covering black Muslims as deluded fakes.
Despite such disinformation, the Nation of Islam achieved success as perhaps the most prominent black
nationalist organization in the late 1950s and early 1960s. NOI also emerged, at least for a period, as the
preeminent challenge to the liberal promise of the civil rights movement. This is why Martin Luther King, Jr.,
singled out the NOI for special attention in his Letter from the Birmingham Jail in 1963. The NOI and
African American Islam more generally also became a symbol of black American resistance to U.S. foreign
policy in the developing world, especially in Vietnam. NOI created what Penny Von Eschen called “a
space—for the most part unthinkable in the Cold War era—for an anti-American critique of the Cold
War.”Elijah Muhammad and Malcolm X lauded the rise of independent Muslim-majority nations, and sought
to become allies of third-world Muslim leaders. After Malcolm X separated from the Nation, he became even
more politically radical.But there was no more effective symbol of both domestic and international political
resistance to U.S. power than Muhammad Ali. Ali, a hero to many people of color and leftists around the
world, was seen as a fifth column—the enemy inside the walls—by the U.S. government, which sought to
blunt his rising popularity by convicting him in 1967 of draft evasion. It was by then a familiar way of dealing
with troublesome black Muslims.
In the second half of the 1960s, at the height of U.S. troop commitment in Vietnam and with the rise of
Black Power groups like the Panthers, the federal government adopted even more aggressive techniques to
either destroy or at least transform the Nation of Islam. Its weapon of choice was the Counter-Intelligence
Program, better known as COINTELPRO. Though the FBI had long run surveillance on the Nation,
COINTELPRO represented an escalation of government interference, a high water mark of pre-9/11 fears
about the Muslim threat to the United States. Counter-intelligence operations included the placement of
agents inside an organization, often within the leadership structure; the spreading of dissension; and the
planting of false information. Cutting its teeth on the New Left, white hate groups, and the Communist Party
in the early 1960s, COINTELPRO expanded its operations in 1967 to include “Black Nationalist-Hate
Groups.” This category of COINTELPRO included 360 separate operations, becoming the second largest
area of all domestic counter-intelligence operations. The NOI was perhaps the most popular target of all the
Black Nationalist groups. In 1968, the FBI’s field office may have begun a campaign to install W. D.
Mohammed as Elijah Muhammad’s successor, writing in one declassified memorandum that Wallace was “the
only son of Elijah Muhammad who would have the necessary qualities to guide the NOI in such a manner as
would eliminate racist teachings.” Whether the FBI’s paper support for W. D. Mohammed translated into
operational support inside the NOI is not yet known. But we do know that under his leadership, the NOI
became a downright patriotic organization with flags waving in the mosques.
Parallels with the Post 9/11 Era
The public face of Muslim America has changed since the 1960s. It is no longer represented by bow-tied
black men hawking copies of Muhammad Speaks or the beautiful, semi-naked body of Muhammad Ali.
Despite the fact that the largest single ethnic-racial group of Muslims in the United States is still people of
African descent, the stereotypical Muslim is now brown rather than black.
What changed? What explains the shift? It wasn’t the Nation of Islam. While the original Nation became a
Sunni organization under the leadership of Imam W.D. Mohammed and changed its name several times,
Minister Louis Farrakhan recreated a version of the Nation of Islam in 1978 that followed Elijah
Muhammad’s teachings. He was able to attract thousands of followers. A million men showed up in 1995* at
a march he led in Washington, D.C., proving that the Nation of Islam still had great appeal. It wasn’t the
Nation that changed. It was the government: the FBI no longer saw the NOI as a major threat.
Today, the transnational Muslim American terrorist has become the primary focus of domestic counterintelligence. This was largely a result of 9/11, though the FBI and other agencies were already at work trying
to blunt the threat of Islamic terrorism before then. Their concern grew amidst the larger phenomenon of
Islamism, or political Islam, which flowered in the 1970s as a religious and political response to repressive
governments in Asia and Africa and to U.S. foreign policy. In the aftermath of the Iranian revolution in 1979,
foreign policy analysts, think tanks, and politicians interpreted Ayatollah Khomeini’s consolidation of power
to be a new trend: the emergence of Muslim militant groups and governments bent on opposing the United
States and its allies for religious reasons.
In one sense, these analysts were right to fear an increasing threat to U.S. power emanating from groups that
based their political platform on Islamic ideas and symbols. In this era of global religious revival, many
Muslim political parties and activist groups organized around Islamic themes and institutions, often because
they lived in politically repressive countries where the government did not allow for freedom of assembly,
association, or speech in other venues. Religious organizations and religious sites were among the last places
where people could congregate and by default provided a space for political protest.
The administrations of both Jimmy Carter and Ronald Reagan saw opportunities to advance U.S. interests by
allying with some of these Muslim resistance groups and their Muslim American supporters. In 1979,
President Carter met with twelve leaders of various Muslim American groups met to discuss how they might
bring about a peaceful resolution to the Iranian hostage crisis. President Reagan and the U.S. Congress, as is
well known, hailed the Islamist resistance to the Soviet Union, providing support via the CIA, Saudi Arabia,
and Pakistan. What is less known is that the Reagan administration also allowed interested Muslim
Americans to contribute to the efforts of the Afghan mujahidin via what was called the Jihad Fund of the
Muslim Students Association.
These alliances were alarming developments for those who saw Islam as in and of itself a form of terrorism.
According to the 1980s bestseller, Terrorism: How the West Can Win, edited by Israeli Prime Minister
Benjamin Netanyahu, the “world of Islam” invented terrorism in the middle ages, and even in the modern
world, remained “medieval” in its outlook. In addition, the book claimed, Islam was, at its very heart, antidemocratic and intolerant of diversity.After the Berlin Wall fell in 1989 and the Soviet Union formally came
to an end in 1991, stereotypes of “the Muslim as enemy” became even more prominent among U.S. foreign
policy makers. Throughout the 1990s, Harvard professor and former National Security Council official
Samuel P. Huntington popularized his “clash of civilizations” thesis, which argued that Islamic and other
non-Western civilizations were fundamentally irreconcilable with Western civilization, and that conflict in the
post-Cold War era would occur along religious and cultural lines. He claimed “the fundamental problem for
the West is not Islamic fundamentalism. It is Islam, a different civilization whose people are convinced of the
superiority of their culture and are obsessed with the inferiority of their power.”
U.S. Presidents in the twenty-first century could not afford to be this simplistic and openly biased. The
governments of both George W. Bush and Barack Obama adopted a different rhetoric toward Islam than
that of Huntington. They attempted to incorporate and co-opt Islam in the name of U.S. interests. “Islam is
peace,” declared George W. Bush on September 17, 2001. “Muslims make an incredibly valuable contribution
to our country,” he said.Similarly, Barack Obama proclaimed in his 2009 address in Cairo that “Islam has
always been a part of America’s story.” Rather than reject Islam outright, both presidents attempted to
legitimize forms of Islam that were either apolitical or seemingly pro-American.
At the same time, both
Bush and Obama used classic COINTELPRO techniques
from the 1960s to discipline Muslim American political activity. The Bush
administration determined internally that it could wiretap its own citizens without judicial or legislative
oversight. It detained material witnesses who were not granted the right of habeus corpus and rounded up
1,200 people in the frightening days after 9/11. Muslim American charities that provided non-military aid to
organizations designated as terrorist groups, such as the Palestinian party Hamas, were raided and shut down.
The U.S. also barred foreign Muslim scholars, such as Tariq Ramadan, from attending professional meetings
or speaking on American soil.
President Obama’s administration has largely continued the Bush era policies. Guantanamo Bay has remained
open; the American mosque has remained a primary target of domestic counter-intelligence; and deportation
of foreign nationals has actually increased. Obama personally ordered the assassination of Anwar al-Awlaki
and Samir Khan, two U.S. citizens who produced speeches and web materials in support of al-Qaeda. Many
civil libertarians saw their targeted killings as violations of constitutional guarantees of due process and trial
by jury. More recently, the White House gave its support to the National Defense Authorization Act, which
allows the executive branch to detain foreigners, and perhaps Americans, accused of “substantially
supporting” terrorism indefinitely without trial. Domestically, the Obama administration has outlined its
“Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in United
States.” One of the primary sites for implementation is the American public school, where teachers and
students are to be trained to identity potential terrorists—people who, according to National Security Council
official Quintan Wiktorowicz, use the word “infidel,” defend Osama bin Laden, or watch extremist videos.
But rather than debating whether or not this or any other technique is particularly effective in combatting
terrorism, my final question is this: is there a way in the midst of the war on terrorism to carve out more
public space for Muslim American dissent? The government’s new consensus on terrorism has helped to
convey the message that if you support controversial Muslim political parties or groups in Palestine,
Chechnya, Afghanistan, Somalia, Yemen, Iran, etc., you should expect that you will be put under surveillance.
If you say that you support al-Qaeda, you should expect the government will find a way to silence you—by
whatever means practical. For many Americans, that may be an acceptable and even laudable restriction on
free speech. But where does it end?
There must be a distinction made between political dissent and terrorism.
Dissent of various kinds can too easily be mistaken as the threat of violence or as violence itself. It’s
happened before, when the government kept African American Islam under close surveillance. Today, if we
open our national dialogue to include a greater variety of Muslim American and other dissenting
views, I would predict that once again, many Americans would be offended by what they hear from
their fellow citizens. Perhaps some Muslim missionaries will dream, as they did in the 1980s and 1990s, of
converting all Americans to Islam. Perhaps others will defend Iran’s nuclear program. But you can also be
sure that the first people to challenge these views will be other Muslim Americans.
That kind of openness is exactly what we need. Defining dissent as
unacceptable speech constrains Muslim American civic engagement and limits
the political imagination of Muslims and non-Muslims alike. Instead, we
should bring this and other forms of religious and political dissent into the
public square. Such discussions must address the subject of Islam and
Muslims in U.S. politics. Tens of millions of Americans, perhaps more than a hundred million
Americans, hold strong opinions about Shariah, the Quran, and the Prophet Muhammad, worrying that
Islamic religion fuels terrorism. Millions of other Americans, both Muslim and non-Muslim, explain Muslim
terrorism not as the inevitable outcome of Islamic religion but instead as an understandable, if destructive,
reaction to U.S. foreign policy. One of my admittedly modest ideas for furthering this discussion is to
ask academics, policymakers, and community members to look again at the American past.
Framing post-9/11 Muslim American life as an incomparable moment
impoverishes our national conversations by depriving us the benefit of
historical narrative, one that will allow us to seek new ways of thinking about
our present.
Muslims are not foreigners in U.S. history. Revisiting
our colonial ancestors and fellow
Americans from the nineteenth and twentieth centuries onward provides a
space in which Muslim American dissent and contemporary fears about Islam
might be safely explored, more deeply understood, and radically reimagined,
even if we come to little agreement. As the past informs us, for Muslim Americans, everything
did not change after 9/11. What did change deserves our scrutiny, and ultimately, our participation to
insure dissenters—Muslim and non-Muslim alike—are welcome in American
life.
Islamophobia shapes US foreign policy—notions of western superiority are a critical
tool to drum up support for militaristic and elitist interventions
Kumar 13, Associate Professor of Media Studies and Middle Eastern Studies at
Rutgers
[09/11/13, Deepa Kumar is an Associate Professor of Media Studies and Middle Eastern Studies at the Rutgers University. She is the author of
Islamophobia and the Politics of Empire and Outside the Box: Corporate Media, Globalization, and the UPS Strike being interviewed by Jessica
Desvarieux, The Real News Network, “Twelve Years Post 9/11, Islamophobia Still Runs High”, http://truth-out.org/video/item/18759-twelve-yearspost-9-11-islamophobia-still-runs-high]
KUMAR: Absolutely not. I think it is true that larger numbers of conservative voters are racist. They are racist not just in terms
of their attitude towards Arabs and South Asians, but also to a whole host of other groups. So it's true that this idea sort of concentrated within those
ranks. But in fact Islamophobia
is far more systemic than that. That is to say, the idea of a Muslim enemy, the idea
of a terrorist enemy is one that actually goes back a couple of decades but was brought to light after 9/11 by
the political elite, by our political leaders. So in fact it is built into the system of U.S. foreign policy in this country.
And to simply look at the far right and to ignore the fact that it has larger implications in terms of justifying
U.S. foreign policy would be really to have only an incomplete picture of what is at work in this form of
racism. DESVARIEUX: Okay. Let's talk about the mass media and how they depict Islam since 9/11. Can you describe for us how the mass media
has depicted Islam? KUMAR: Well, basically, the trauma of 9/11, the fact that, you know, 3,000 Americans died meant that it enabled the
U.S. media to actually draw on stereotypes that have been, you know, propped up by Hollywood, by the news
media, and so on for a few decades before that. And that was the idea that these are crazy, irrational people. They
are all apparently driven by Islam to violence. And so we should lock them up, we should be suspicious of
them, we should detain them at airports, and so on and so forth. And so that's what you saw in the immediate aftermath of
9/11. And this show called 24, which your viewers may know, is--it's about a lot of things [incompr.] that it's about justifying the
building of a national security state and justifying practices like torture and so on and so forth.
DESVARIEUX: Okay. And also the story of the day, of course, is Syria, and everyone's attention is drawn to Syria. Can you describe for us just how
does Islamophobia play a role in any of the arguments for intervention in Syria, really? KUMAR: Okay. It doesn't play a direct role in that. It is--the
idea of humanitarianism has a long history in the United States. The idea that there are victims all over the
world, that the U.S. government has then got to make war in order to, you know, somehow defend them, this goes
back all the way to the Spanish-American war of 1898, which was supposed to be about rescuing Cubans. And similarly, you see
these sorts of justifications given. You know, Vietnamese need to be defended. In Iraq, it was babies, apparently, who were
being bayoneted in Kuwait, and therefore the U.S. needed to intervene and defeat Iraq in 1991. So this idea of
humanitarianism has a long history within the foreign policy establishment. But what makes it particularly potent in this case is that
after 9/11 what you see is the Bush administration projecting this idea of clash of civilizations, which is
basically the notion that we in the West are democratic, we are rational, we are civilized, we are, you know, all
things wonderful, and they in the East are barbaric, they're misogynistic, and so on and so forth, and therefore
we have an obligation, what used to be called the white man's burden, to go off and rescue them. And so you see
some of that language, which is the idea that Arabs cannot bring democracy by themselves, they cannot make change, and so we need to intervene. So
it's a combination both of the victim narrative, which has a long history, combined with this
language of clash of civilizations. DESVARIEUX: Okay. And how does this fit into domestic policy? How do they work
Islamophobia into domestic policy? KUMAR: Right. I mean, the comparison I make in the book and that I'm actually working on in the next book is
that the
U.S. government, and U.S. imperialism in particular, always needs an enemy. That is, when there is no
humanitarian cause, an enemy is an extremely useful way to justify wars abroad, as well as the policing of
dissent at home. So, for instance, during the Cold War we had been menacing enemy of the Soviet Union, against whom both a hot and a Cold
War had to be waged. And, of course, this justified, then, McCarthyism, because there's always a reflection of the external enemy inside, and these
people have to be rounded up, blacklisted, and so on and so forth. So that's the logic back then, and, of course, it was entirely about a politics of fear.
Today we
have the same sort of thing. After 9/11, the war on terror comes into being precisely about
fighting endless wars. Remember, back in 9/11 the Bush administration was going to start with Afghanistan,
go to Iraq, and then Iran, Syria, and so on and so forth. It didn't work out that way. But the idea was to drum up
this fear of this menacing terrorist enemy, which justified wars all over the world in order to gain the
U.S.'s interest in [incompr.] particularly in the oil-rich region in the Middle East. You asked me about domestic politics.
Always there was a reflection of the domestic in terms of the international threat. And so what you've seen is innocent Muslims--and often actually not
even Muslims, people from the Middle East, North Africa and South Asia, some of them Sikhs, some some of them Hindus, some of them Christians,
and so on, being racially profiled because that is the logic that comes out of this. I have a whole chapter in the book about how the legal system has
been reworked so as to justify things like indefinite detention, things like torture, things like deportation. And, frankly, the infiltration of agents into
our schools, into my school, into colleges, and so forth. So, you know, it's
truly horrific the extent to which Muslim
Americans and people who look Muslim have been demonized since 9/11.
This dehumanization of foreign populations establishes continuous cycles of
violence --- the way we discuss this issue matters
John Collins 2, Ass. Prof. of Global Studies at St. Lawrence, and Ross Glover, Visiting Professor of
Sociology at St. Lawrence University, 2002, Collateral Language, p. 6-7, The Real Effects of Language)
As any university student knows, theories about the “social construction” and social effects of language have become a common feature of academic
scholarship. Conservative
critics often argue that those who use these theories of language (e.g., deconstruction) are
“just” talking about language, as opposed to talking about the “real world.” The essays in this book, by contrast, begin from the
premise that language matters in the most concrete, immediate way possible: its use, by political and military
leaders, leads directly to violence in the form of war, mass murder (including genocide), the physical
destruction of human communities, and the devastation of the natural environment. Indeed, if the world ever
witnesses a nuclear holocaust, it will probably be because leaders in more than one country have succeeded in
convincing their people, through the use of political language, that the use of nuclear weapons and, if
necessary, the destruction of the earth itself, is justifiable. From our perspective, then, every act of political violence—
from the horrors perpetrated against Native Americans to the murder of political dissidents in the Soviet Union to the destruction of the World Trade
Center, and now the bombing of Afghanistan—is
intimately linked with the use of language. Partly what we are talking about
of “manufacturing consent” and shaping people’s perception of the world around
them; people are more likely to support acts of violence committed in their name if the recipients of
the violence have been defined as “terrorists,” or if the violence is presented as a defense of
“freedom.” Media analysts such as Noam Chomsky have written eloquently about the corrosive effects that this kind of process has on the
here, of course, are the processes
political culture of supposedly democratic societies. At the risk of stating the obvious, however, the most fundamental effects of violence are those that
are visited upon the objects of violence; the
language that shapes public opinion is the same language that burns villages,
besieges entire populations, kills and maims human bodies, and leaves the ground scarred with bomb craters
and littered with land mines. As George Orwell so famously illustrated in his work, acts of violence can easily be made more
palatable through the use of euphemisms such as “pacification” or, to use an example discussed in this book, “targets.” It is
important to point out, however, that the need for such language derives from the simple fact that the violence itself is
abhorrent. Were it not for the abstract language of “vital interests” and “surgical strikes” and the flattering language of
“civilization” and ‘just” wars, we would be less likely to avert our mental gaze from the physical effects of violence.
Thus:
The United States federal government should prohibit domestic surveillance based
on race, religion, ethnicity, national origin, or First-Amendment-protected activity in
the absence of at least reasonable suspicion of criminal activity and require the least
restrictive means be employed when conducting criminal intelligence investigations.
The plan provides the best safeguard against profiling and resolves the problem of
informants
Berman, 11 --- Counsel in the Liberty and National Security Project at the Brennan Center for Justice
(Emily, “DOMESTIC INTELLIGENCE: NEW POWERS, NEW RISKS,”
http://brennan.3cdn.net/b80aa0bab0b425857d_jdm6b8776.pdf, JMP)
Substantive Recommendations
Regardless of what additional procedural protections are implemented, some elements of the FBI’s existing
powers simply permit too much government intrusion into the lives of innocent Americans and therefore
should be curtailed in the following ways:
1. Prohibit the FBI from using highly intrusive investigative techniques unless there is some basis in fact to
suspect wrongdoing.290
• This would prohibit tailing someone, posing as other people in order to mine information from neighbors
and acquaintances, and recruiting informants to glean more information in the absence of some factual basis
for suspicion.
• This prohibition, summarily overturned by the 2008 Guidelines, was enshrined in all previous iterations of
the Guidelines for decades. It is the single most important safeguard against profiling and other forms
of abuse, and the government has offered no persuasive justification for its sudden disappearance.
2. Require agents to use the least intrusive investigative technique that is likely to prove effective.
• The “least intrusive method” requirement has been part of the Guidelines since their inception. The current,
equivocal language on this requirement in the Guidelines and the DIOG should be amended to stress its
importance, even in terrorism investigations.
3. Prohibit improper consideration of race, religion, ethnicity, national origin, or First-Amendment-protected
activity in investigative decisions.
• Addressing this issue is most urgent in the context of rules regarding use of informants to collect
information about First-Amendment-protected activity, such as infiltration of a place of worship or political
gathering. Such activities should require higher levels of predication and more aggressive oversight of
investigative decisions than activities that do not implicate Americans’ constitutional rights.
• Even outside the First Amendment context, however, reform is necessary. One standard to consider was
recently implemented by the Office of the Director of National Intelligence (DNI). The standard for use in
the DNI’s Information Sharing Environment (ISE)-Suspicious Activity Reporting (SAR) system adopts a
“behavior-focused approach to identifying suspicious activity” based on the standard announced in Terry v.
Ohio,291 392 U.S. 1 (1968). It requires that “race, ethnicity, national origin, or religious affiliation should not
be considered as factors that create suspicion (except if used as part of a specific suspect description).”292
This type of limitation on the use of these factors to justify law enforcement activity is crucial.
Conclusion
The time to act is now—before the Guidelines result in widespread and unwarranted intrusions into
Americans’ privacy, harmful religious and ethnic profiling, and the divergence of scarce resources to
ineffective and indiscriminate collection of information.
The changes recommended above will go a long way to reduce the risk of excesses that the current
Guidelines permit. They would reinvigorate the substantive standards on which investigative activity should
be predicated and would ensure that intrusive investigative methods are used only when necessary. And they
would impose internal and external checks to guarantee the lawful, effective use of the powers
conferred on federal agents. In short, they would safeguard Americans’ rights of privacy, free expression,
association, and religion as well as help to focus investigative activity where there are indications of threats.
The result will be a safer, more just America.
Voting affirmative recognizes the important role of government policies and rhetoric
in promoting the racist environment
Representative Ellison, 14 (12/11/2014, Rep. Keith Ellison (D-MN), US Official News, “Rep. Ellison
Testifies in Senate Hearing on Civil and Human Rights,” Lexis, JMP)
Office of the House of Representative Keith Ellison, U.S Government has issued the following news release:
Rep. Keith Ellison (D-MN) testified in front of Senate Judiciary Committee on the Constitution, Civil Rights,
and Human rights today during a hearing entitled “The State of Civil and Human Rights in the United
States.” The hearing was chaired by Senator Dick Durbin (D-IL) and Rep. Ellison was joined by his
colleagues Senator Cory Booker (D-NJ) and Rep. Luis Gutierrez (D-IL).
Rep. Ellison’s written testimony submitted for the record to the committee is below.
Last week 15 year old Abdisamad Sheikh-Hussein was run over by a man in an SUV that had a bumper
sticker that said "Islam Is Worse Than Ebola" on it. Discrimination and hate exist everywhere and we
should shine a light on them. Today I’d like to focus on state-sponsored violations of our civil rights and
liberties and the context in which these violations occur.
Why? Because the government’s job is to promote the general welfare. Because we entrust our government
with the right to protect and serve our communities, we expect more of them. Most of the time our public
servants diligently uphold this social contract; but when the state fails it is all the more devastating and
deserves our attention.
President Obama and Attorney General Holder have demonstrated leadership that has brought important
reforms like the Hate Crimes Prevention Act, the repeal of Don’t Ask Don’t Tell, and the Fair Sentencing
Act. We still have a long way to go.
Our system of justice works for some, not all. This injustice takes place in a social and economic context.
When Officer Wilson confronted Michael Brown on Canfield Drive in Ferguson, the interaction didn’t take
place in a vacuum. Like many of our communities, Ferguson suffers from economic abandonment.
Ferguson Missouri’s unemployment is 13%, over double the national average. The number of low-income
people in Ferguson doubled over the last 10 years. In 2012, almost all of Ferguson’s neighborhoods had a
poverty rate of over 20%, the threshold at which the negative effects of poverty emerge.
Do we respond to this with policies that create jobs, improve infrastructure, and promote education? No. We
build more prisons and give our police weapons designed for a war zone. Our low income and minority
communities are over-policed and under-protected.
We cannot continue to try to address our economic problems with criminal justice solutions. It isn’t fair to
our communities. It isn’t fair to law enforcement. And it solves neither the criminal justice nor the economic
justice problems.
If we only buy body cameras and don’t address structural and economic inequality, we will find ourselves here
again, year after year.
We know we have an inequality problem when the CEO of Wal-mart makes over $12,000 per hour and the
average Wal-mart employee makes $8.48, or when the CEO of McDonalds makes $9,200 an hour and the
cashier makes $8.25.
I’d also like to talk about another form of state sponsored discrimination – one that I have experienced
myself.
It isn’t a secret that I have experience with the divisive rhetoric and fear-mongering that some public officials
use to gain power. Many will recall the House Committee on Homeland Security hearings to discuss the
threat posed by Muslims in America. My request to broaden the hearing to include all forms of violent
extremism was rejected.
Now, years later, public officials around the country continue to use divisive rhetoric. A county commissioner
in Coffee County, TN posted on his public Facebook page an image of a man holding a shotgun with the
caption “How to Wink at a Muslim.” A state senator in Oklahoma said that American Muslims are a "cancer
in our nation that needs cutting out." And in my own state of Minnesota, a GOP County chairman called
Muslims parasites that should be fragged. To frag someone means to violently kill them.
These are not rare occurrences. These examples demonstrate that these toxic views have spread.
This type of bigotry is contrary to what we stand for as Americans, and when our public officials engage in it,
it gives the American public a signal that it is ok to do the same. Public officials have an increased
responsibility and when they begin to treat a particular group differently because of their faith, they
should be called out and held accountable.
Our words matter.
Beyond changing the rhetoric, we have to change our policies.
Shortly after he took office President Bush said that racial profiling is “wrong, and we will end it in America.”
Over a decade later we still have bad policies on the books.
In New York and many other US cities, Muslim communities are mapped, infiltrated, and surveilled simply
because they are Muslim. The Departments of Homeland Security and Justice conduct extensive operations
in Arab, Middle Eastern, Muslim, and South Asian communities under the guise of countering violent
extremism.
Study after study has shown that acts of violent extremism in the United States are motivated by a variety of
ideologies and that only a small percentage are committed by American Muslims. According to the FBI, only
6% of acts of terrorism on American soil between 1980 and 2005 were committed by those Muslims. Yet,
nearly all programming targeted towards countering violent extremism is geared towards Muslim
communities.
I am not against surveillance. I am against surveillance without reasonable suspicion. We should not be
singling out communities and harassing and spying on them without cause. Intelligence gathering should
never be based on religion or race.
If you think this is just a “Muslim problem” – you’re wrong. Local law enforcement, encouraged by the
federal government, raid Latino communities and workplaces. There is FBI surveillance, without
suspicion, of Chinese and Russian communities in the US.
And as we know, there is the routine practice of profiling African American young men. A young black man
is 21 times more likely to be shot and killed by a police officer than his white counterpart.
As the co-chair of the Progressive Caucus I have joined the chairs of the Congressional Black Caucus, The
Congressional Hispanic Caucus, and The Asian Pacific Caucus to urge the Department of Justice to issue
revised profiling guidance that will help stop law enforcement from discriminating against our citizens based
on their religion, national, origin, ethnicity, and sexuality. Yesterday the Department of Justice issued the
revised guidance that expands protections for some, but allows the FBI, TSA, and Border Patrol to continue
mapping, monitoring, and targeting Americans based on their religion or what they look like.
We should not continue to violate the civil liberties of our citizens in the name of national security.
Discriminatory profiling is wrong. It doesn’t help prevent crime. It creates a culture of fear and resentment
within our communities. It is contrary to our core constitutional principles when federal dollars are spent
perpetuating law-breaking activity like entrapment.
Effective mobilization will fail without the plan --- we must challenge the
Islamophobic base of anti-terror legislation to stand in solidarity with all Muslims
Diana Ralph 6, PhD in Psychology and a Master of Social Work. She is an Associate Professor of Social
Work at Carleton University, "ISLAMOPHOBIA AND THE ‘‘WAR ON TERROR’’: THE
CONTINUING PRETEXT FOR U.S. IMPERIAL CONQUEST", The Hidden History of 9-11-2001
(Research in Political Economy, Volume 23), Emerald Group Publishing Limited, pp.261-298,
911blogger.com/node/16381
4. Standing
with Muslims against the “War on Terror”¶ In this chapter, I have demonstrated that:¶ The overriding motive
for Bush’s ‘‘war on terror’’ is to secure control over the Middle East and Central Asia for U.S. oil, military, and
corporate interests.¶ Bush’s handlers have been planning imperial conquest of the world since the Soviet Union collapsed in 1989. ¶ From the evidence here and
elsewhere, it is difficult to draw another conclusion than that Bush’s associates organized the 9-11 attacks to kick start
popular support for this war. They have continued to justify the ‘‘war on terror’’ by claiming that Muslim
terrorists pose an immanent danger to Americans.¶ In fact, however, terrorism actually poses minimal risk to
Americans.¶ The ‘‘war on terror’’ is a concept modeled on Israel’s assaults on Palestinians to provide a cover for campaigns of territorial conquest.¶ Far from being
‘‘under attack,’’ America has pre-emptively attacked and conquered two sovereign states, and is threatening military domination of the entire world. ¶ In other words, Bush’s
‘‘war on terror’’ is a massive con job, perpetrated by a few oil and military elites, at the expense of Muslims
particularly, but threatening the security and well-being of virtually everyone on the planet.¶ An immensely
wealthy and powerful republic has been hijacked by a small cabal of individuals... The American people have...been deliberately lied to, their interests
cynically misrepresented and misreported, the real aims and intentons of this private war of Bush the son and his junta concealed with complete arrogance." (Said, 2003) ¶
Thomas Donnelly, author of the RAD blueprint for Bush’s ‘‘war on terror,’’ recently reaffirmed the neo-conservative commitment, not to protect Americans from
‘‘terrorism,’’ but to conquer the world.¶ This war, properly understood, is a struggle to build a [new] ... order throughout the ‘‘greater Middle East,’’ that giant swath of the
planet that extends from West Africa to Southeast Asia. ...Operation Iraqi Freedom represented the first step in a generational commitment to Iraq, but also the
commitment of many generations to transforming the greater Middle East....The vision of the Bush Doctrine is hugely ambitious; in embracing this great vision, the United
States must obligate the resources and create the institutions necessary to realize it." (Donnelly, 2004, pp. ix, 111) ¶ 4.1. ‘‘Either you are with us, or you are with the
Terrorists’’¶ Fear
and hatred of a scapegoated ‘‘enemy’’ are powerful tools by which despots confuse people into
believing that their oppressors are their salvation. Just as anti-Semitism served to divide and silence
progressive German movements in the early Nazi era, Islamophobia is dividing and silencing us now. No one
wants to associate with “terrorists”, much less be labelled and persecuted as one. Many progressive Western people fear
and despise “fundmentalist” Muslims, and thereby fall into the trap of allying themselves with, or at least not opposing,
Islamophobic laws and practices in the name of opposing “terrorism”. They thereby collude in undercutting
the fabric of rights, due process, and equality on which they too depend.¶ The Bush Doctrine rhetoric has
succeeded in convincing most white Americans that “terrorists” pose a serious threat to their personal safety,
and that the “war on terror” is necessary to protect them. Islamophobic language and values have seeped into
the fiber of our daily lives. Bookstores now have “terrorism” sections, displaying some of the 5,036 mostly new books on the topic.15 Several U.S. colleges
and universities now offer degrees in “homeland security.” Media images of “Arab extremists” have become routine. ¶ Most Americans now believe that “terrorism” is such
a big problem, that they should pay with their taxes, their freedoms, their decimated public services, and their children’s lives. In the summer of 2005, polls found that 79
percent of Americans believed that “the threat of terrorism against the U.S.” has increased or stayed about the same (Polling Report.com, 2005). Seventy-six percent thought
“Osama bin Laden himself is currently planning a significant terrorist attack against the United States,” and 64 percent supported the Patriot Act. Sixty-four percent would
be “willing to give up some of [their] personal freedom in order to reduce the threat of terrorism” (PollingReport.com, 2005). Almost half of all Americans “believe the U.S.
government should restrict the civil liberties of Muslim-Americans” (Dean, 2005). In the wake of Hurricane Katrina and shocking revelations of torture at Abu Ghraib
prison, however, popular support for the “war on terror” plummetted. In November, 2005, 55 percent of Americans disapproved of the way Bush is “dealing with the war
on terrorism” (PollingReport.com, 2005).¶ 4.2. Which Side are you on?¶ Before 9-11, the anti-globalization movement had been rapidly gaining influence and
unity worldwide. Opposition to U.S.-dominated institutions like the World Bank, the International Monetary Fund, the G-8, NATO and APEC, had succeeded in disrupting
and exposing several of their gatherings. And in their place, the World Social Forum and other progressive people’s movements were demonstrating that indeed there are
excellent alternatives to globalization and corporate rule.¶ The 9-11 “attacks” and the
“war on terror” derailed these hopeful movements and
imposed crippling constraints on dissent, democracy, and national sovereignty. Under cover of
Islamophobic targeting of Muslims, the U.S. is waging war on all movements for social justice both
domestically and internationally, using its new post 9-11 legislative powers and bloated military and policing budgets. Domestically,
the Bush administration is attacking democracy, abortion rights, the judiciary, environmental protections, social security, public education, women’s rights, union rights, and
civil rights (Dorhrn, 2003). Internationally, it pressures other nations to enact similar “anti-terror” laws and policies, as well as demanding that they open their economies to
full U.S. corporate rule.¶ As Bernadette Dorhn points out: “The
result is a chilling effect. That is to say, people around the targets
back away, get silent, don’t stand up when they see the cost of simply expressing your opinion or even making a joke,
let alone publicly objecting to what’s going on” (2003).¶ Many progressive groups oppose Islamophobia and support
Muslim victims of U.S. and Israeli assaults. These include civil liberties associations, Amnesty International, Human Rights Watch, anti-Zionist Jewish and Christian groups,
unions, peace groups, and student organizations like the Canadian Federation of Students. Secular, Jewish, and Christian groups have formed alliances with Palestinians and
Iraqis in oppostion to the Israeli occupation of the West Bank. In the U.S. the Center for Constitutional Rights works to end arbitrary detention of Muslim detainees in
Guantanamo Bay and elsewhere. In Canada, the Campaign to Stop Secret Trials in Canada has mobilized broad support for Muslim detainees and their rights.¶
However, even these groups have not dared to challenge the Islamophobic base of the “anti-terror”
legislation, for fear of being called pro-terrorist. They are thereby left arguing that the particular individuals
for whom they advocate aren’t terrorists, while implicitly condoning the myth that “real” terrorists are lurking
in the shadows. But under the Bush Doctrine, all Muslims are presumed to be either current or potential terrorists, and their civil liberties have been sacrificed in the name
of “national security”.¶ To
defeat the Bush plot for world control, we will need to challenge Islamophobic fear of
“terrorists”, to assert clearly that there is little substantive terrorist threat. What terrorism there is could better be addressed
through criminal justice systems and international law. More importantly we need to insist that the U.S. desist from both overt preemptive wars and covert state-financed
terrorism. The
actual security of both Americans and all other people will be best served by ending the
occupations of the West Bank, Iraq, and Afghanistan, and recognizing the right of all nations to self-determination (including oil
policies). We need to stand in solidarity with all Muslims, regardless of their religious beliefs. At this juncture, Islamophobia is
the key barrier to effective mobilization against the Bush regime.
The chilling effect from surveillance dissuades people from meaningfully
participating in social and political movements that are essential for progressive
political change --- any change short the plan will spillover and stifle ALL radical
resistance and eviscerate freedom of speech forever
Burkhart, et. al, 7 (2007, Laurie Burkhart, Michael Haubert, and Damon Thorley, “The Efect of
Government Surveillance on Social Progress,” in Confronting Information Ethics in the New Millennium,
http://www.ethicapublishing.com/5CH1.htm, JMP)
The Chilling Effect
In United States law, the “chilling effect” refers to the stifling effect that vague or overbroad laws may have
on legitimate speech and activity typically protected by the First Amendment.1 Theoretically, the “chilling
effect” has a dramatic repercussion on citizens’ willingness to freely express their beliefs and
opinions. In past U.S. history the “chilling effect” has been used in court cases as evidence against certain
government surveillance tactics. In the Supreme Court case Socialist Workers Party v. Attorney General of
U.S., the “chilling effect” was used as a basis for getting a preliminary injunction brought against the FBI.
“The applicants argue that a stay is necessary to protect the First Amendment speech and association rights
of those planning to attend the YSA convention.
Surveillance and other forms of monitoring, they claim, will chill free participation and debate, and may even
discourage some from attending the convention altogether. Beyond this, the applicants allege that the FBI has
admitted that its agents or informants intend to participate in the convention debate posing as bona fide YSA
members.2 This 'double agent' activity, the applicants claim, will result in the “corruption of the democratic
process” and consequent irreparable harm to the applicants and others who would participate in the
convention.¹”
Although the effect of FBI surveillance and participation in Communist party activities was apparent, the
Supreme Court ruled in favor of the FBI. “In weighing the nature of the planned investigative activity, the
justification for that activity, and the claimed First Amendment infringement in this case, the Court of
Appeals determined that the balance of the equities tipped in favor of the Government and that a preliminary
injunction was therefore improper.3” This case demonstrates an example of the “chilling effect” as a result of
FBI surveillance, while also showing these tactics and related effects on free speech being condoned by the
U.S. government.
In recent years the “chilling effect” has taken on a much larger role in American society, not only through
increased government surveillance deterring political participation, but through a broad range of social
functions as well. Simple examples will show that social internet networks such as MySpace.com and The
Facebook are having detrimental effects to people’s willingness to present information about themselves or
their views. Some users of these networks have lost jobs or have been forced to censor what they publish in
fear of what ramifications it may have on their job status or future wellbeing. In January, an undisclosed
number of student-athletes were dismissed from the University of Colorado track team after posting indecent
pictures of themselves on Facebook.4 The enormous amount of voluntary and involuntary personal
information that can be tracked and monitored in today’s information age is causing people to give into the
“chilling effect” in both political and social arenas. In all aspects of life, citizens of the U.S. are trying to fit
the surveillance system rather than try to change or influence it. Once the people give into the system
and refuse to participate or rebel out of fear of self incrimination then all hope of social progress is lost.
Current Climate in the U.S.
The government has the ultimate responsibility of procuring the safety of its citizens and upholding the
values this country was founded upon. The argument we intend to layout is that while the government is
concerned with the cease of any social and political change in opposition to its current agenda, this also
inhibits the chance of further positive social and political climate change. Through certain tactics and
surveillance, our government has the power to halt any social change while it is still in the ideological phase.
The following points are composed of recent and post-9/1 1 incidents and programs the Bush administration
has partaken in:
Recently, the FBI admitted to surveilling mosques in nine cities nationwide, along with acknowledgement
of keeping certain individuals of Muslim-descent (in the U.S.) under extreme surveillance. Agents have
defended the programs, claiming certain mosques have provided them with lists of members5;
The government is currently seeking to revamp its entire surveillance initiative, revising the process of
getting warrants from the secretive Foreign National Surveillance Act (FISA) court to investigate suspected
terrorists, spies, and other national security threats. The administration also wants new provisions in place to
ease surveillance of people suspected of spreading weapons of mass destruction internationally. Among other
tools available now: the government can break into homes, hotel rooms and cars to install hidden cameras
and devices, as well as search drawers, luggage, or computer hard drives6;
It has been revealed that the FBI used ‘national-security letters’ to scrutinize the financial and travel data, as
well as telephone logs of thousands of U.S. citizens and residents. In March, a U.S. Justice Department report
detailed the “widespread and serious misuse” of these letters since the inception of the Patriot Act. Between
2003 and 2005, the FBI issued more than 140,000 national-security letters, many of which involved people
with no obvious ties to terrorism7;
In 2006, it was revealed that President Bush signed a secret order in 2002 which authorized the National
Security Agency (NSA) to eavesdrop on U.S. citizens and foreign nationals within the United States – despite
past legal prohibitions against similar domestic spying. The NSA has monitored the e-mail, phones, and other
communications of thousands of individuals without warrants8;
In 2004, the Justice Department subpoenaed records from colleges and universities around the country
relating to peaceful on-campus meetings between local anti-war activists and scholars5;
In 2004, a University of Arizona sophomore was forbidden to attend a Social Security forum with
President Bush due to a t-shirt that read, “Don’t be a smart [image of a donkey, the Democratic Party
symbol]. UA Democrats.” The young man returned to the event with a different shirt yet was still refused
entry as he had been placed on a list of people banned from the event and labeled as a “potential risk9”;
In 2003, the New York City Police Department questioned multiple arrestees who had been detained at
anti-war demonstrations. Various types of information were stored in a government database;
Also in 2003, media reports surfaced accusing the FBI of collecting extensive information on the anti-war
movement in search of “extremists”;
Chicago Police infiltrated five protest groups in early 2002. Information pertaining to the case has been
limited, along with that regarding the known surveillance tactics which were used5.
Hunting down and weeding out individuals who disagree with the current administrative policy has become
familiar practice. In an issue closer to home, Colorado GOP staffers ejected three people from a taxpayerfunded town hall meeting in 2005 that George W. Bush was attending in Denver, under the belief that they
may be protesting. The three individuals were thrown out for behaving suspiciously while at their vehicle,
which had a bumper sticker stating, “No More Blood For Oil.” The White House has refused to comment on
the situation due to pending investigations. Two of the individuals who were thrown out, Leslie Weise and
Alex Young, have filed a federal lawsuit against the GOP committee because they claim they were told to
leave “because of their political views and that the White House had a policy of ejecting dissenters from the
president’s appearance10.” It was later revealed that the men who approached these three individuals were
wearing an earpieces and wires, navy blue suits and lapels similar to that or Secret Service agents. The Secret
Service denied that their agents were involved in the ejection – they claimed the Republican host committee
forced them out9.
Whether these individuals were targeted by government agents or local GOP members is irrelevant. These
citizens did not interrupt the event and certainly did no break any rules or laws by having an anti-war bumper
sticker on their vehicle. This incident, among the many others presented, represent the strong hand our
government yields in mandating its current agenda and status quo. To comprehend such acts of the present
day, one must understand the history and ethical implications that are deeply rooted behind government-run
surveillance. In the following pages, we will discuss the many events, programs, and key figures that have built
and led government infiltration to where it stands today.
“Those who sacrifice freedom for liberty deserve neither” -- Benjamin Franklin11
The J. Edgar Hoover Era
John Edgar Hoover (born: January 1, 1895; deceased: May 2, 1972) was the director and founder of the U.S.
Federal Bureau of Investigation (FBI). He remained director for nearly five decades and until his death at the
age of 77. During his tenure, Hoover was highly regarded by the U.S. public as a prominent figure in
American democracy. Only in the years since his death, many allegations have surfaced and tarnished his
image. His career endured eight different presidential administrations, including the Great Depression, World
War II, the Korean War, the Cold War, and Vietnam. It is because of Hoover's long and controversial reign
that FBI directors are now limited to ten-year terms. Hoover has frequently been charged with exceeding and
abusing his position of authority. He was known to have investigated groups and certain individuals due to
their political beliefs rather than suspected criminal activity. The FBI first conducted extralegal activities such
as burglaries and illegal wiretaps under his command.
In 1956, Hoover was becoming increasingly frustrated by Supreme Court decisions that limited the Justice
Department's ability to prosecute Communists. At this time he formalized a covert "dirty tricks" program
under the name COINTELPRO, or Counter Intelligence Program. COINTELPRO was a program operated
by the U.S. Federal Bureau of Investigation with the intent to investigate and destroy organizations that were
considered to have politically radical elements. While covert operations were incorporated throughout the
FBI history, COINTELPRO is known to have been most active from 1956-1971, targeting non-violent civil
rights groups such as Martin Luther King and the Southern Christian Leadership Conference (SCLC). Other
leftist political movements that were infiltrated include, most notably, the Black Panther Party (BPP) and the
American Indian Movement (AIM), among others12.
The main goal of COINTELPRO was to “expose, disrupt, misdirect, discredit, or otherwise neutralize” the
activities of these groups and their leaders. Some of the main components of COINTELPRO included
infiltration, psychological warfare from the outside, harassment through the legal system, along with extralegal
force and violence. The FBI also incorporated “black bag jobs” into the program, which were warrant-less
entries targeted against certain groups, most notably the BPP. The program remained top secret until a
burglary by a group of left-wing radicals in 1971. The Citizens’ Commission to Investigate the FBI uncovered
and removed several thousand files and passed them on to news agencies with the intentions to have them
published. Many refused to publish the information and within months, Director Hoover declared that
COINTELPRO was over and that future operations would be handled on a case-by-case and need-to-know
basis13.
In 1976, a major investigation into COINTELPRO was undertaken by the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities of the U.S. Senate, which was commonly
referred to as the “Church Committee” due to its chairman, Senator Frank Church of Idaho. This Committee
documented the entire history of the FBI being used for the purpose of political repression – dating as far
back as World War I, when they were accountable for gathering ‘anarchists and revolutionaries’ for
deportation – and building from the mid 1930s up until 1976. In a Final Report to the Select Committee,
COINTELPRO was reprimanded with no uncertain charges:
"Many of the techniques used would be intolerable in a democratic society even if all of the targets had been
involved in violent activity, but COINTELPRO went far beyond that.. .the Bureau conducted a sophisticated
vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and
association, on the theory that preventing the growth of dangerous groups and the propagation of dangerous
ideas would protect the national security and deter violence13.” To this day, millions of documents remain
unreleased and many of the released documents are entirely censored by the government.
A Further Look into COINTELPRO
After COINTELPRO was implemented to monitor the Communist Party in the U.S., Hoover decided to use
these operations to investigate his concern that the Communist Party had infiltrated Black political
organizations. This began an investigation on Black civil rights leader Dr. Martin Luther King, Jr. FBI
surveillance of King began in 1957 and became more involved as his civil rights activities expanded and
gained supporters, including an increasing number of agents assigned to monitor and disrupt the movement.
By the end of 1963 COINTELPRO had expanded to cover Black activities and was known as the Black Hate
COINTELPRO. During this time the FBI was monitoring not just King, but the Congress of Racial Equality,
the Student Non-violent Coordinating Committee, the NAACP, and a number of other groups14.
However, King was targeted as a main threat and was the focus of much investigation. In January 1963
Hoover wrote several memos which stated that King was associating with communists, and by the following
spring was officially listed as a communist in the FBI Reserve Index. In October 1963, Attorney General
Robert F. Kennedy approved the use of wiretaps against King, in addition to the hidden microphone
surveillance that was also being used without Kennedy’s approval. These tactics were used for almost two
years and were expanded to monitor King even more intensely. Stating that it was a “matter of national
security” the FBI was allowed to place taps in the King home, the headquarters of the Southern Christian
Leadership Conference in Atlanta and New York, as well as motel rooms in L.A., Atlantic City, Washington,
D.C., Milwaukee, Honolulu, Detroit, Sacramento, and Savannah14. In a document written by FBI
counterintelligence specialist Charles D. Brennan in September 1963, the reason for the measures of
surveillance taken was that the amount of support the civil rights movement had gained over the past five
years made it a clear threat to “the established order” of the U.S15.
The surveillance was sanctioned for the sole purpose of determining how King had connections with the
Communist Party USA; however, the information that was attained was used by the FBI to try to discredit
him through a series of defamation attacks. The FBI monitored roughly five thousand of King’s phone calls
over the years, but the surveillance revealed nothing about national security or communist infiltration. In
1964 the FBI made a composite tape of recordings from different hotel rooms that allegedly contained
information about King’s sexual affairs. The tape was sanitized so as not to be traced back to the FBI, and
was sent to King’s wife along with a note stating that the tape would not be made public if King committed
suicide14.
Around the same time period, other political groups were being investigated by the FBI in ongoing counterintelligence efforts. The Bureau began surveillance on the Nation of Islam and their leader, Elijah
Muhammad. This surveillance was warranted because the FBI said that Nation of Islam members “disavow
allegiance to the United States” and “are taught not to obey the laws of the United States.” Wiretap
surveillance on Muhammad’s home in Chicago began in 1957, and when he purchased a home in Arizona in
1961, multiple wiretaps and microphones were installed there14.
Malcolm X was one of the principle lieutenants of the Nation of Islam, but broke away in March of 1964 to
establish a separate church called the Muslim Mosque, Inc., as well as a political Black organization called the
Organization of Afro-American Unity. When this occurred the FBI became concerned about alliances
between these groups and other influential groups. They undertook COINTELPRO actions to try to block
alliances with white radical groups such as the Socialist Workers Party. At least 2,300 pages of material had
been collected on him at the time of his assassination in February 1965. His assassination was stated to have
been committed by former colleagues as a result of his splitting from the Nation of Islam. However in a
memo written in 1969 the Chicago SAC stated that this factionalism had “been developed” by the FBI in
hopes of squashing the movement. Four days after the assassination of Malcolm X, the FBI removed him
from their security index. No one has ever been held legally responsible for the assassination, but one FBI
agent wrote that he considered the murder to be a model for successful counterintelligence operations15.
Ethical Frameworks
Under utilitarian, duty-based, and rights-based ethical theories the act of heavy government surveillance
policy is an ethical violation. From a utilitarian perspective, one must look at the consequences of an action,
and determine which consequence would be the most desirable for the greatest number of people involved.
In this case, the government is not acting in line with what is the greatest good for the greatest number. The
greatest good is allowing a society to have the ability to freely participate and change the system in order to
adhere to what is best for the people. By limiting radical political groups the government can effectively take
away this ability. In taking the ability to change and progress away from the people in a democratic system the
government violates the greatest good for the greatest number. The use of government surveillance to hinder
radical movements is causing a “chilling effect” on political participation and results in an obstruction of
social progress. The consequences of these government actions are undesirable, the actions are considered to
be unethical under utilitarian or consequence-based theory.
The duty-based and rights-based theories also show extreme surveillance to be an ethical violation. From a
duty-based, or deontological perspective, heavy government surveillance is an ethical violation because it does
not treat people in a universal or impartial way. Immanuel Kant, one of the most famous and influential
deontological theorists, claimed that actions are unethical if they conflict with the idea that all people are free
and rational beings. He stated that everyone has a duty to stop such unethical acts and promote freedom and
rationality. Furthermore he stated that rules should only be applied if they are universal and impartial. Acts of
government surveillance are often carried out with heavy biases against certain types of groups and ideologies,
such as the civil rights or communist groups. In addition, using surveillance tactics against certain
groups and individuals goes against the idea that people are free and capable of making their own
decisions, and implies that people need to be monitored and controlled. Certain types of monitoring
and controlling are necessary in any society, but in a democratic society when the control tactics goes as far to
limit the effect the people can have on their own society then the system is not only undemocratic ,but
unethical as well.
The surveillance bias towards particular groups also violates several rules and regulations stated in our
countries legal doctrines. Rights-based theory states that an action is unethical if it goes against rights that
have been given through contract or law. Surveillance practices of the FBI and other government groups
have shown to violate several laws and the rights that have been given to citizens by the government, such as
freedom of speech, freedom of assembly, protection against illegal searches, and many more. In order to be
ethical under a rights-based theory a democratic government must follow the laws and regulations set forth
by the people’s elected government agents. Past and present government surveillance tactics violate these
principles and are therefore unethical.
“One does not establish a dictatorship in order to safeguard a revolution; one makes a revolution in order to
establish a dictatorship.”
-- George Orwell16
Legal Implications
Our democratic system is built on the people’s participation in politics. This participation is most commonly
practiced by voting in government elections and identifying with a major political party. Although these types
of political participation are the most practiced and socially accepted they are not the only form of
participation the system is built on. As outlined in Amendment I of the U.S. Constitution Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances17. Based on these laws the people of our country can speak out,
challenge, and criticize the government as they see fit without fear of persecution. The theory behind this
system is to allow for free and unaltered participation in the government by the people so that the laws and
discourse of the country reflect that of the people’s beliefs. For this legal system to function properly the free
participation of the people must be protected. Although our society generally chooses to believe this to be
true, U.S. historical evidence shows the contrary. Each radical social movement in the U.S. has posed a
general threat to the government administration of that time. From a present day perspective some of these
movements brought about positive social change. Aside from the moral value of each radical movement, the
government agencies of their times determine what to be in the best interest of the country and exude
enormous surveillance and propaganda tactics for or against them.
At the time of the civil rights movements the FBI classified pro-black groups as threats to national
security. Despite these past classifications, these groups made a large positive impact on our
countries values and laws. As a result of these “threats to national security” citizens of our country can
now expect to be treated equally under the law and not endure unjust policies based on race. At the basis of
all social change there is an opposition to the norm or majority. In the case of the civil rights movement
the norm was a predominately racist society with national laws and regulations to perpetuate the racist system.
Despite the efforts of government agencies to curb the radical groups and halt the social progress being made
the people were able to assemble and cause radical reformations to take place in legal and social aspects of the
country.
It can be said that although the FBI and government tried to curb the Civil Rights movement the social
change did occur and the theory of free political participation was upheld. Although it is true that the
government ultimately failed in stopping the movement and societal change, they did not have the same
technology that is available today. During the civil rights movement the FBI used basic surveillance
technology including wire taps, bugged rooms, stake outs and propaganda. Today technology is advancing at
a quicker rate than we can make use of it. The government now has technology and the access to information
far greater than that of the 1960’s and can use it however they see fit. If not kept in check the government
surveillance can lead to a system in which social change brought about by the people becomes
impossible.
Conclusion
Demonstrated by the history in our country each government administration has used every resource they
have in order to pursue the values and goals of their administration. As technology increases, so does the
power of the government to monitor citizens, infiltrate groups, control information, and further push their
view of what is best for the society. In an age of data mining, satellite surveillance, RFID chips, vast social
networks, and an overall state of heightened security there is almost no limit to the capabilities of the
government and its surveillance. We can assume based on historical facts that the government is currently
monitoring to the best of their ability all radical groups in the country as well as the world. With current
technology it’s also safe to assume that this surveillance and group monitoring is much more effective than in
the past and could possibly end radical political influence before it starts. Coupled with increased
technology there has been a decrease of freedom in our legal system with wartime laws such as the Patriot
Act limiting fundamental rights and legal discourse outlined in the U.S. constitution. The system is moving
away from free political participation and towards an information influenced police state.
The U.S. legal system is based on change and adaptability. A historical example of this is the change in role
the U.S. legal system took on in the nineteenth century. “An instrumental perspective of law did not simply
emerge as a response to new economic forces in the nineteenth century. Rather, judges began to use law in
order to encourage social change even in areas where they had previously refrained from doing so. It was not
until the nineteenth century that the common law took on its innovating and transforming role in American
society18.” Examples such as this show that the legal system has always played its part in influencing societal
change since the early days of this country, but conversely the U.S. society members have also influenced
changes to the legal system. The changes and innovation of U.S. law have consistently been influenced by
social movements. The labor movements, civil rights movements, and feminist movements have all
challenged the government of their time and as a result moved the U.S. towards a more equal and just society.
As the power and technology of the government increases today so do the chances of any kind of societal
change being halted. “Social movements are not distinct and self-contained; rather, they grow from and give
birth to other movements, work in coalition with other movements, and influence each other indirectly
through their effects on the larger cultural and political environment19.” If the government can
monitor and stop one major movement they can influence and deter the
masses from further radical ideology. In this lies the ethical violation.
Under utilitarian, duty-based, and rights-based ethical theories the act of heavy government surveillance
policy is an ethical violation. From a utilitarian perspective the government is not acting in line with what is
the greatest good for the greatest number. The greatest good is allowing a society to have the ability to freely
participate and change the system in order to adhere to what is best for the people. By limiting radical
political groups the government can effectively take away this ability. In taking the ability to change and
progress away from the people the government violates the greatest good for the greatest number.
The duty-based and rights-based theories also show extreme surveillance to be an ethical violation. These
theories examine how government surveillance is carried out and the ethical and legal violations that are
inherent in the practices. From a duty-based perspective, heavy government surveillance is an ethical violation
because it does not treat people in a universal or impartial way. It is often carried out with heavy biases
against certain types of groups and ideologies. Not only is the surveillance bias towards particular groups but
it also violates several rules and regulations stated in our countries legal doctrines. Surveillance practices of the
FBI and other government groups have shown to violate several laws and the rights of the group participants.
This type of surveillance discourse causes it to be an ethical violation.
The democratic system needs free political participation and radical movements in order to progress. History
has shown the positive effects radical groups have played in the progression of American society through out
U.S. history. If the unethical practices of government surveillance are not kept in
check into the future, the ideologies of freedom of speech and the power of the
people will be lost forever.
Case Extensions
Educational Setting Key to Challenge Islamophobia
Our advocacy is important in this space---interrogating Islamophobia in educational
settings establishes a critical consciousness that enables larger political projects
Housee 12, Senior Lecturer in Sociology
[Jan. 04 2012, Shirin Housee works at the School of Humanities, Languages and Social Sciences, University of Wolverhampton, UK “What’s the
point? Anti-racism and students’ voices against Islamophobia”, Volume 15, Issue 1]
Having reflected on the two seminar sessions on Islamophobia and the student comments, I am convinced that the work
of anti-racism in university classrooms is fundamentally important. As one student said racism is real. Through
racism people suffer physically, psychologically, socially, educationally and politically. Our work in university
classrooms is just the beginning of this challenge against racisms and other oppressions. Classroom
discussions and general teaching form a very important contribution to this work of anti racism in
education. There are no short cuts or painless cuts; the work of anti-racism is a difficult one. As educators we should make
use of classroom exchanges; students’ engaged learning could be the key to promoting anti-racism in our class. My
goal is to teach in a way that engages students and leads them to reflect on the socio-economic political/religions issues that surrounds theirs (our)
lives. This article argues for making anti-racist thinking possible in class. The
student voice, that critiques mainstream
thinking as found in the media and elsewhere, is a starting point for this political work. I argue that teaching and
learning in our classroom should encourage the critical consciousness necessary for pursuing social
justice. Whilst I acknowledge the limits of doing anti-racist campaign in university spaces, I argue that this
is a good starting point. And who knows, these educational exchanges may become (as with my own story) the
awakening for bigger political projects against injustices in our society. In conclusion I endorse social
justice advocates, such as Cunningham (cited in Johnson-Bailey 2002, 43) who suggest that educators re-direct classroom
practices and the curriculum, because: ‘if we are not working for equity in our teaching and learning
environments, then…educators are inadvertently maintaining the status quo.’ In conclusion I argue that a
classroom where critical race exchanges and dialogues take place is a classroom where students and teachers
can be transformed. Transformative social justice education calls on people to develop social, political and
personal awareness of the damages of racism and other oppressions. I end by suggesting that in the current times
of Islamophobic racism, when racist attacks are a daily occurrence, in August and September 2010 alone, nearly
30 people have been racially abused and physically attacked (Institute of Race Relations 2010). The point of
studying racism, therefore, is to rise to the anti-racist challenge, and for me, a place to start this campaign is
within Higher Education Institutions, optimistic as it might sound, I believe, as asserted by Sheridan (cited in Van Driel 2004) that:
‘Education can enlighten students and promote positive attitudes…. Education settings can be the first
arena in which battles can be fought against Islamophobia. It is to education that our attention
should be directed.’ (162)
Interrogating Islamophobia => Transformative Pedagogy
Deconstructing and interrogating flawed assumptions behind Islamophobia creates
a transformative and liberatory pedagogy that enables us as agents to challenge
racist dynamics
Zine 4, Professor of Sociology and Equity Studies
[2004, Jasmin Zine is a researcher studying Muslims in the Canadian diaspora. She teaches graduate courses in the Department of Sociology and Equity
Studies in Education at the Ontario Institute for Studies in Education of the University of Toronto in the areas of race and ethnicity, anti-racism
education and critical ethnography., “Anti-Islamophobia Education as Transformative Pedadogy: Reflections from the Educational Front Lines”,
American Journal of Islamic Social Sciences 21:3]
As an anti-racism scholar and educator, fellow colleagues and I realized from as early as September 12 that there was an
urgency to frame a critical pedagogical response to address and challenge the rampant
Islamophobia affecting the realities of Muslims from all walks of life and social conditions. Among the most
vulnerable were children and youth, who received little support from schools in dealing with the backlash that many were experiencing on
a routine basis. Most schools were reluctant to engage in any response beyond the politically neutral arena of “crisis management.” Among the school
districts that I was in contact with, there
was a clear resistance to addressing or even naming issues of racism and
Islamophobia. In fact, the discursive language to name and define the experiences that Muslims were
encountering on a day-to-day basis did not even exist within the educational discourse. While schools were reluctant to name
specific incidents as racism – part of an all-too-common denial – the notion of “Islamophobia” did not have any currency
at all. In fact, it was not a part of the language or conceptual constructs commonly used by educators, even by
those committed to multicultural and antiracist pedagogy. I realized the urgency to map a new
epistemological and pedagogical terrain by creating an educational framework for addressing
Islamophobia. Within the existing equity-based educational frameworks, one could find the conceptual and
pedagogical tools to address issues of racism, classism, sexism, homophobia, ableism, and anti-Semitism.
However, the discursive foundations for dealing with Islamophobia and the accompanying educational
resources simply did not exist. Developing a new framework to fill this gap involved coining a new term: “Anti-Islamophobia
Education.” Being able to name and define the experience of Muslims as the result of Islamophobia was critical
to shaping the kind of interventions that would take place from a critical educational standpoint. Before
outlining a methodology for conducting anti-Islamophobia education, it was necessary to develop some
discursive foundations, arrive at a definition of Islamophobia, and create an understanding of what it was that we
sought to challenge and resist. From a socio-psychological standpoint, the notion of Islamophobia is often loosely translated as an
“attitude of fear, mistrust, or hatred of Islam and its adherents.” However, this definition presents a narrow conceptual framework and does not take
into account the social, structural, and ideological dimensions through which forms of oppression are operationalized and enacted. Applying a more
holistic analysis, far from being based on mere “ignorance,” Islamophobic
attitudes are, in fact, part of a rational system of
power and domination that manifests as individual, ideological, and systemic forms of discrimination and
oppression. The idea that discrimination, be it based on race, class, gender, sexuality, ability, or religion, simply stems from
“ignorance” allows those engaged in oppressive acts and policies to claim a space of innocence. By labeling
Islamophobia as an essentially “irrational” fear, this conception denies the logic and rationality of social dominance and oppression, which operates on
multiple social, ideological, and systemic levels. Therefore, to
capture the complex dimensions through which Islamophobia
operates, it is necessary to extend the definition from its limited conception as a “fear and hatred of Islam and Muslims” and
acknowledge that these attitudes are intrinsically linked to individual, ideological, and systemic forms of
oppression that support the logic and rationale of specific power relations. For example, individual acts of oppression
include such practices as name-calling or personal assault, while systemic forms of oppression refer to the structural conditions of inequality regulated
through such institutional practices as racial profiling or denying jobs or housing opportunities. These exclusionary
practices are shored
up by specific ideological underpinnings, among them the purveyed notions designed to pathologize Muslims
as “terrorists” and impending threats to public safety. Understanding the dimensions of how systems of
oppression such as Islamophobia operate socially, ideologically, and systemically became a key component
of developing educational tools that would help build the critical skills needed to analyze and
challenge these dynamics. From a discursive standpoint, I locate anti-Islamophobia education within a integrative anti-racism framework5
that views systems of oppression based on race, class, gender, sexuality, ability, and religion as part of a multiple and interlocking nexus that reinforce
and sustain one another. Based on this understanding, I have mapped some key epistemological foundations for anti-Islamophobia education.6 This
includes the need to “reclaim the stage” through which Islam is represented from the specter of terrorists and suicide bombers to a platform of peace
and social justice. “Reclaiming
the stage” requires adopting a pedagogical approach that shifts the popular media
discourse away from the negative, essentialized referents and tropes of abject “Otherness” ascribed to
Muslims. This move involves presenting a critical counter-narrative in order to reframe the Manichean
worldview and “clash of civilizations” narratives typically being purveyed in order to present a more nuanced,
reasoned, and critical perspective of the global sociopolitical realities that Muslim individuals and societies are
confronting, engaging, and challenging. Another foundational aspect of anti-Islamophobia education involves
interrogating the systemic mechanisms through which Islamophobia is reinforced, by analytically
unraveling the dynamics of power in society that sustain social inequality. Racial profiling, which targets groups on the
basis of their race, ethnicity, faith, or other aspects of social difference, and similar issues are major systemic barriers that
criminalize and pathologize entire communities. In schools, the practice of “color-coded streaming,” whereby a disproportionate
number of racially and ethnically marginalized youth are channeled into lower non-academic level streams, is another example of institutionalized
racism. Negative
perceptions held by teachers and guidance counselors toward racialized students have often
led to assumptions of failure or limited chances for success, based on such false stereotypes as the notion that “Islam doesn’t
value education for girls” or “Black students won’t succeed.” These negative attitudes are relayed to students through the
“hidden curriculum” of schooling and lead to lower expectations being placed upon youth from specific
communities.7 Developing critical pedagogical tools to analyze and develop challenges to these systems of
domination is part of building a transformative and liberatory pedagogy, one geared toward achieving
greater social justice in both schools and society. Another key goal of anti-Islamophobia education involves
the need to demystify stereotypes. Since 9/11, renewed Orientalist constructions of difference have permeated the representation of
Muslims in media and popular culture. Images of fanatical terrorists and burqa-clad women are seen as the primary markers of the Muslim world.
Deconstructing and demystifying these stereotypes is vital to helping students develop a critical literacy
of the politics of media and image-making. Critically examining the destructive impact of how these
images create the social and ideological divide between “us” and “them” is important to exposing how
power operates through the politics of representation.
Negative
Solvency
Note for Glennon / Circumvention Ev
FYI --- “Trumanites” in the Glennon, 14 ev refers to:
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
President Harry S. Truman, more than any other President, is responsible for creating the nation’s “efficient”
national security apparatus.99 Under him, Congress enacted the National Security Act of 1947, which unified
the military under a new Secretary of Defense, set up the CIA, created the modern Joint Chiefs of Staff, and
established the National Security Council (“NSC”).100 Truman also set up the National Security Agency,
which was intended at the time to monitor communications abroad.101 Friends as well as detractors viewed
Truman’s role as decisive.102 Honoring Truman’s founding role, this Article will substitute “Trumanite” for
“efficient,” referring to the network of several hundred high-level military, intelligence, diplomatic, and law
enforcement officials within the Executive Branch who are responsible for national security policymaking.
1nc Circumvention
A network of national security officials actually determines policy --- enacting
external checks just legitimates them without providing any constraint
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
VI. Conclusion
U.S. national security policy has scarcely changed from the Bush to the Obama Administration. The
theory of Walter Bagehot explains why. Bagehot described the emergence in 19th-century Britain of a
“disguised republic” consisting of officials who actually exercised governmental power but remained
unnoticed by the public, which continued to believe that visible, formal institutions exercised legal
authority.601 Dual institutions of governance, one public and the other concealed, were referred to by
Bagehot as “double government.”602 A similar process of bifurcated institutional evolution has occurred in
the United States, but in reverse: a network has emerged within the federal government that exercises
predominant power with respect to national security matters. It has evolved in response to structural
incentives rather than invidious intent, and it consists of the several hundred executive officials who manage
the military, intelligence, diplomatic, and law enforcement agencies responsible for protecting the nation’s
security. These officials are as little disposed to stake out new policies as they are to abandon old ones. They
define security more in military and intelligence terms rather than in political or diplomatic ones.
Enough examples exist to persuade the public that the network is subject to judicial, legislative, and executive
constraints. This appearance is important to its operation, for the network derives legitimacy from the
ostensible authority of the public, constitutional branches of the government. The appearance of
accountability is, however, largely an illusion fostered by those institutions’ pedigree, ritual, intelligibility,
mystery, and superficial harmony with the network’s ambitions. The courts, Congress, and even the
presidency in reality impose little constraint. Judicial review is negligible; congressional oversight
dysfunctional; and presidential control nominal. Past efforts to revive these institutions have thus fallen
flat. Future reform efforts are no more likely to succeed, relying as they must upon those same
institutions to restore power to themselves by exercising the very power that they lack. External constraints—
public opinion and the press—are insufficient to check it. Both are manipulable, and their vitality depends
heavily upon the vigor of constitutionally established institutions, which would not have withered had those
external constraints had real force. Nor is it likely that any such constraints can be restored through
governmental efforts to inculcate greater civic virtue, which would ultimately concentrate power even further.
Institutional restoration can come only from an energized body politic. The prevailing incentive structure,
however, encourages the public to become less, not more, informed and engaged.
Executive will just ignore Congress and FISA typically defers to it
Bendix & Quirk, 15 --- *assistant professor of political science at Keene State College, AND **Phil Lind
Chair in U.S. Politics and Representation at the University of British Columbia (March 2015, William Bendix
and Paul J. Quirk, “Secrecy and negligence: How Congress lost control of domestic surveillance,”
http://www.brookings.edu/~/media/research/files/papers/2015/03/02-secrecy-negligence-congressurveillance-bendix-quirk/ctibendixquirksecrecyv3.pdf, JMP)
Even if Congress at some point enacted new restrictions on surveillance, the executive might ignore the
law and continue to make policy unilaterally. The job of reviewing executive conduct would again fall to
the FISA Court.56 In view of this court’s history of broad deference to the executive, Congress would
have a challenge to ensure that legislative policies were faithfully implemented.
Executive lawyers provides the means to circumvent the plan
Shane, 12 --- Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz School
of Law (Peter M., Journal of National Security Law & Policy, “Executive Branch Self-Policing in Times of
Crisis: The Challenges for Conscientious Legal Analysis,” 5 J. Nat'l Security L. & Pol'y 507))
II. The Breakdown of Government Lawyering
The military and foreign policy disasters generated by presidential unilateralism demonstrate the practical
importance of maintaining a pluralist view of checks and balances. Political officials are not simply rational
actors who respond with dispassionate calculation to evidence and circumstance. Facts and options are always
filtered through ideological prisms. Presidentialism narrows the prism. Pluralism works to offset that filtering.
Pluralism guards against too much distortion by seeking to maximize the number of meaningful institutional
voices in the policy making process.
Equally troubling is the risk of presidentialism to the rule of law. Even in normal times, a heavy burden falls
on government attorneys in virtually every agency. Government lawyering frequently represents the exclusive
avenue through which the law is actually brought to bear on decisionmaking. This professional review within
the executive branch is crucial. Most government decisions are simply too low in visibility, or too diffuse in
impact, to elicit judicial review or congressional oversight as ways of monitoring legal compliance. Yet, the
ideological prism of presidentialism can bend the light of the law so that nothing is seen other than
the claimed prerogatives of the sitting chief executive. Champions of executive power - even skilled
lawyers who should know better - wind up asserting that, to an extraordinary extent, the President as a matter
of constitutional entitlement is simply not subject to legal regulation by either of the other two branches
of government.
[*511] Government attorneys must understand their unique roles as both advisers and advocates. In
adversarial proceedings before courts of law, it may be fine for each of two contesting sides, including the
government, to have a zealous, and not wholly impartial, presentation, with the judge acting as a neutral
decisionmaker. But in their advisory function, government lawyers must play a more objective, even quasiadjudicative, role. They must give the law their most conscientious interpretation. If they fail in that task,
frequently there will be no one else effectively situated to do the job of assuring diligence in legal compliance.
Government lawyers imbued with the ideology of presidentialism too easily abandon their professional
obligations as advisers and too readily become ethically blinkered advocates for unchecked executive power.
Jack Goldsmith headed the Office of Legal Counsel (OLC) for a little less than ten months in 2003-2004. Of
the work done by some government attorneys and top officials after 9/11, he said they dealt with FISA
limitations on warrantless surveillance by the National Security Agency (NSA) "the way they dealt with other
laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded
closely so no one could question the legal basis for the operations." n7 He describes a 2003 meeting with
David Addington, who was Counsel and later Chief of Staff to Vice President Dick Cheney, in which
Addington denied the NSA Inspector General's request to see a copy of OLC's legal analysis in support of
the NSA surveillance program. Before Goldsmith arrived at OLC, "not even NSA lawyers were allowed to
see the Justice Department's legal analysis of what NSA was doing." n8
OLC's analysis of the legality of NSA surveillance, issued on January 19, 2006, justified the program on two
grounds: the President's inherent war powers and the Authorization for Use of Military Force (AUMF).
However, the AUMF did not say anything about electronic surveillance. In 1978, Congress expressly stated
that no statute other than the Foreign Intelligence Surveillance Act (FISA) or Title III - the law that applies to
ordinary federal criminal prosecution - provides authority for electronic surveillance by the federal
government. The AUMF could supersede FISA by repealing it, but only by making the repeal explicit. An
argument that the AUMF implicitly repealed FISA necessarily falls short. OLC also argued that the President
had an inherent constitutional power to conduct the NSA program no matter what FISA said. According to
OLC, if FISA of 1978, as amended, were read to preclude the NSA program, the statute would be
unconstitutional. n9
[*512] What prompted the Justice Department to argue in this fashion? One answer might be that Justice
Department lawyers are institutionally expected to advocate for the President's powers and simply adopt the
most ambitious arguments consistent with appropriate standards of professional competence in legal research
and analysis. However, it is not the responsibility of Justice Department lawyers to advocate for every
contemplated assertion of presidential authority, no matter how far-fetched. Even in my brief period at
Justice, I witnessed multiple and significant examples of Department lawyers refusing to provide analytic
support for legally ill-conceived proposals for executive action. Moreover, it is difficult to make a case for the
professional competence of the FISA memorandum. Although the Justice Department manages to elaborate
its views in over forty pages of single-spaced and highly technical verbiage, its memorandum never confronts
the enormity of the initiative it is endorsing or the power of alternative arguments. Instead, it proffers
distinctions from contrary precedents that are often, in a word, silly. Even if the authors felt institutionally
constrained to reach a particular bottom line, the failure to assert any principle limiting the claims being made
and the too-frequent lack of rhetorical judgment in structuring their argument suggest something other than
diligent lawyering was at play.
What accounted for the bad arguments was political and professional pressure. When I worked at Justice, the
refusal to take positions that could not be defended by respectable standards did not harm the lawyer. As
anyone who has ever worked in an organization knows, however, informal pressure can be an extraordinarily
effective method of stifling disagreement and guiding decisions in the way top management desires. We know
that supervision of the process of executive branch lawyering on the NSA memorandum was significantly
usurped by the Office of the Vice President. David Addington, the Vice President's Counsel, and John Yoo,
then a deputy in OLC, worked together to craft a series of arguments for unprecedented claims of executive
power to pursue the campaign against terrorism. n10 Jack Goldsmith reports that Addington blackballed
from future advancement in the executive branch any lawyer who dared cross swords with him. n11
The deficiencies of legal analysis of NSA surveillance were replicated in other initiatives after 9/11, including
the treatment of persons captured and suspected of aiding and abetting terrorism. The Justice Department,
through OLC, produced legal opinions stating, in effect, that anyone [*513] captured in the Afghanistan
campaign had few, if any, rights under U.S. or international law and certainly no rights susceptible to
vindication in U.S. courts. n12 The function of these legal opinions - indeed, their obvious purpose - was to
ratify a scheme of maximum license to do with the detainees whatever the military, the CIA, or any other U.S.
authority might choose to do with them. The Administration's lawyering process cleared the path to horrors
at the Abu Ghraib prison and Guantanamo - crimes whose stain upon our national honor is likely to remain,
for decades at least, firmly embedded in the world's collective memory, deeply undermining our image and
influence abroad.
It is understandable that the Administration would want some flexibility in dealing with a threat it rightly
regarded as in some ways unprecedented and of very grave magnitude. And yet, to move the detainees so
completely beyond the realm of normal legal process was itself a plainly risky strategy in terms of
compromising international support, exposing U.S. military personnel to mistreatment, risking the honor of
U.S. military culture, and weakening the fabric of international law generally in its protection of both
combatants and civilians during wartime. The desire for flexibility was understandable, but not at the cost of
all other values.
On a number of the most important points discussed in the OLC lawyers' memoranda, the courts
subsequently held them to be wrong. Contrary to OLC, the Supreme Court held that foreign detainees at
Guantanamo who challenged their classification as enemy combatants were entitled to judicial review of the
legality of their detention. n13 Contrary to OLC, the Court held that the Geneva Conventions protected the
detainees, whether or not they strictly qualified as prisoners of war. n14 Contrary to OLC and Justice
Department briefs, the Court held that the military commissions as originally constituted were not sufficiently
protective of the detainees' rights to permit their use for war crimes trials. n15
On all of these questions, whether of morality, policy, or law, there were at least serious arguments to be
entertained by both sides. The fact that the Administration reached incorrect conclusions is, in itself, only a
limited indictment of its lawyering. Even good lawyers make mistakes, and the fact that executive branch
lawyers would consistently make mistakes erring on the side of executive authority is not in itself damning.
What is damning, however, is that on critical questions - questions going to the core of national honor and
identity - executive branch lawyering was not just [*514] wrong, misguided, or ethically insensitive. It was
incompetent. It was so sloppy, so one-sided, and at times so laughably unpersuasive that it cannot be
defended as ethical lawyering in any context. Tax advice this bad would be malpractice. Government
lawyering this bad should be grounds for discharge.
--- 2nc Circumvention
The plan can’t solve --- creates illusion of control that allows national security
bureaucracy to flourish
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
V. Is Reform Possible? Checks, Smoke, and Mirrors
Madison, as noted at the outset,543 believed that a constitution must not only set up a government that can
control and protect the people, but, equally importantly, must protect the people from the government.544
Madison thus anticipated the enduring tradeoff: the lesser the threat from government, the lesser its capacity
to protect against threats; the greater the government’s capacity to protect against threats, the greater the
threat from the government.
Recognition of the dystopic implications of double government focuses the mind, naturally, on possible
legalist cures to the threats that double government presents. Potential remedies fall generally into two
categories. First, strengthen systemic checks, either by reviving Madisonian institutions—by tweaking them
about the edges to enhance their vitality— or by establishing restraints directly within the Trumanite network.
Second, cultivate civic virtue within the electorate.
A. Strengthening Systemic Checks
The first set of potential remedies aspires to tone up Madisonian muscles one by one with ad hoc legislative
and judicial reforms, by, say, narrowing the scope of the state secrets privilege; permitting the recipients of
national security letters at least to make their receipt public; broadening standing requirements; improving
congressional oversight of covert operations, including drone killings and cyber operations; or strengthening
statutory constraints like FISA545 and the War Powers Resolution.546 Law reviews brim with such
proposals. But their stopgap approach has been tried repeatedly since the Trumanite network’s emergence.
Its futility is now glaring. Why such efforts would be any more fruitful in the future is hard to understand.
The Trumanites are committed to the rule of law and their sincerity is not in doubt, but the rule of law to
which they are committed is largely devoid of meaningful constraints.547 Continued focus on legalist
band-aids merely buttresses the illusion that the Madisonian institutions are alive and well—and with
that illusion, an entire narrative premised on the assumption that it is merely a matter of identifying a solution
and looking to the Madisonian institutions to effect it. That frame deflects attention from the underlying
malady. What is needed, if Bagehot’s theory is correct, is a fundamental change in the very discourse within
which U.S. national security policy is made. For the question is no longer: What should the government
do? The questions now are: What should be done about the government? What can be done about the
government? What are the responsibilities not of the government but of the people?
--- 2nc Turns the Case
Reform attempts just provide a veneer of legitimacy for national security officials to
continue making decisions to perpetuate their existence
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Nonetheless, in the United States today, as in Bagehot’s Britain, “[m]ost do indeed vaguely know that there
are some other institutions”239 involved in governance besides those established by the Constitution. But the
popular conception of an “invisible government,” “state within,” or “national security state” is off the mark.
The existence of the Trumanite network is no secret. The network’s emergence has not been the result of an
enormous, nefarious conspiracy conceived to displace constitutional government. The emergence of the
Trumanite network has not been purposeful. America’s dual national security framework has evolved
gradually in response to incentives woven into the system’s structure as that structure has reacted to
society’s felt needs. Yet, as a whole, Americans still do not recognize the extent to which Madisonian
institutions have come to formulate national security policy in form more than in substance.
One reason that they do not is that the double government system has exceptions. For the dual institutional
structure to work, it is crucial, Bagehot believed, to “hide where the one begins and where the other
ends.”240 Overlap is required. Enough counterexamples must exist to persuade an optimistic public that the
reason for policy continuity is human, not systemic. Thus, the counterexamples must be sufficient for the
public to believe that if they elect different people then policy will change, giving credence to the idea that
the real institutions have not lost all power in making national security policy. Similarly, the
Trumanites often include some quasi-Madisonian officers, such as the Secretaries of State and Defense, who
themselves generate deference through the same theatrical show common to the Madisonian institutions.
Congress, the President, and the courts do sometimes say no to the Trumanites. But they do not do so often
enough to endanger double government. The Trumanite network makes American national security policy; it
is occasional exceptions to that policy that are made by the Madisonian institutions.
It is a unique turn --- Madisonians’ role is decreasing now which risks exposing the
illusion of double government
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
E. Implications for the Future
The aim of this Article thus far has been to explain the continuity in U.S. national security policy. An all-tooplausible answer, this Article has suggested, lies in Bagehot’s concept of double government. Bagehot
believed that double government could survive only so long as the general public remains sufficiently
credulous to accept the superficial appearance of accountability, and only so long as the concealed and
public elements of the government are able to mask their duality and thereby sustain public deference.501
As evidence of duality becomes plainer and public skepticism grows, however, Bagehot believed that the cone
of governance will be “balanced on its point.”502 If “you push it ever so little, it will depart farther and
farther from its position and fall to earth.”503
If Bagehot’s theory is correct, the United States now confronts a precarious situation. Maintaining the
appearance that Madisonian institutions control the course of national security policy requires that those
institutions play a large enough role in the decision-making process to maintain the illusion. But the
Madisonians’ role is too visibly shrinking, and the Trumanites’ too visibly expanding, to maintain the plausible
impression of Madisonian governance.504 For this reason and others, public confidence in the Madisonians
has sunk to new lows.505 The Trumanites have resisted transparency far more successfully than have the
Madisonians, with unsurprising results. The success of the whole dual institutional model depends upon the
maintenance of public enchantment with the dignified/ Madisonian institutions. This requires allowing no
daylight to spoil their magic,506 as Bagehot put it. An element of mystery must be preserved to excite public
imagination. But transparency—driven hugely by modern internet technology, multiple informational sources,
and social media— leaves little to the imagination. “The cure for admiring the House of Lords,” Bagehot
observed, “was to go and look at it.”507 The public has gone and looked at Congress, the Supreme Court,
and the President, and their standing in public opinion surveys is the result. Justices, senators, and presidents
are not masters of the universe after all, the public has discovered. They are just like us. Enquiring minds may
not have read enough of Foreign Affairs508 to assess the Trumanites’ national security polices, but they have
read enough of People Magazine509 to know that the Madisonians are not who they pretend to be. While the
public’s unfamiliarity with national security matters has no doubt hastened the Trumanites’ rise, too many
people will soon be too savvy to be misled by the Madisonian veneer,510 and those people often are opinion
leaders whose influence on public opinion is disproportionate to their numbers. There is no point in telling
ghost stories, Holmes said, if people do not believe in ghosts.511
--- XT: National Security Officials = Circumvention
No solvency --- executive officials control national security policy and will
circumvent
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Abstract
National security policy in the United States has remained largely constant from the Bush Administration to
the Obama Administration. This continuity can be explained by the “double government” theory of 19thcentury scholar of the English Constitution Walter Bagehot. As applied to the United States, Bagehot’s theory
suggests that U.S. national security policy is defined by the network of executive officials who manage the
departments and agencies responsible for protecting U.S. national security and who, responding to structural
incentives embedded in the U.S. political system, operate largely removed from public view and from
constitutional constraints. The public believes that the constitutionally-established institutions control
national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is
dysfunctional; and presidential control is nominal. Absent a more informed and engaged electorate, little
possibility exists for restoring accountability in the formulation and execution of national security policy.
Entrenched national security officials ensure circumvention
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Introduction
Few who follow world events can doubt that the Obama Administration’s approach to multiple national
security issues has been essentially the same as that of the Bush Administration.2 The Obama Administration,
like its predecessor, has sent terrorism suspects overseas for detention and interrogation;3 claimed the power
to hold, without trial, American citizens who are accused of terrorism in military confinement;4 insisted that it
is for the President to decide whether an accused terrorist will be tried by a civilian court or a military
tribunal;5 kept the military prison at Guantánamo Bay open,6 argued that detainees cannot challenge the
conditions of their confinement,7 and restricted detainees’ access to legal counsel;8 resisted efforts to extend
the right of habeas corpus to other offshore prisons;9 argued that detainees cannot invoke the Geneva
Conventions in habeas proceedings;10 denied detainees access to the International Committee of the Red
Cross for weeks at a time;11 engaged the United States in a military attack against Libya without
congressional approval, in the face of no actual or imminent threat to the nation;12 and continued, and in
some respects expanded, the Bush Administration’s ballistic missile defense program.13
The Obama Administration, beyond ending torture, has changed “virtually none” of the Bush
Administration’s Central Intelligence Agency (“CIA”) programs and operations,14 except that in continuing
targeted killings, the Obama Administration has increased the number of covert drone strikes in Pakistan to
six times the number launched during the Bush Administration.15 The Obama Administration has declined
to prosecute those who committed torture (after the President himself concluded that waterboarding is
torture);16 approved the targeted killing of American citizens (Anwar al-Awlaqi and a compatriot17) without
judicial warrant;18 rejected efforts by the press and Congress to release legal opinions justifying those killings
or describing the breadth of the claimed power;19 and opposed legislative proposals to expand intelligence
oversight notification requirements.20 His administration has increased the role of covert special
operations,21 continuing each of the covert action programs that President Bush handed down.22 The
Obama Administration has continued the Bush Administration’s cyberwar against Iran (code-named
“Olympic Games”)23 and sought to block lawsuits challenging the legality of other national security
measures,24 often claiming the state secrets privilege.25
The Obama Administration has also continued, and in some ways expanded, Bush-era surveillance policies.
For example, the Obama Administration continued to intercept the communications of foreign leaders; 26
further insisted that GPS devices may be used to keep track of certain citizens without probable cause or
judicial review27 (until the Supreme Court disapproved28); continued to investigate individuals and groups
under Justice Department guidelines re-written in 2008 to permit “assessments” that require no “factual
basis” for FBI agents to conduct secret interviews, plant informants, and search government and commercial
databases;29 stepped up the prosecution of government whistleblowers who uncovered illegal actions,30
using the 1917 Espionage Act eight times during his first administration to prosecute leakers (it had been so
used only three times in the previous ninety-two years);31 demanded that businesses turn over personal
information about customers in response to “national security letters” that require no probable cause and
cannot legally be disclosed;32 continued broad National Security Agency (“NSA”) homeland surveillance;33
seized two months of phone records of reporters and editors of the Associated Press for more than twenty
telephone lines of its offices and journalists, including their home phones and cellphones, without notice;34
through the NSA, collected the telephone records of millions of Verizon customers, within the United States
and between the United States and other countries, on an “ongoing, daily basis” under an order that
prohibited Verizon from revealing the operation;35 and tapped into the central servers of nine leading U.S.
internet companies, extracting audio and video chats, photographs, emails, documents, and connection logs
that enable analysts to track foreign targets and U.S. citizens.36 At least one significant NSA surveillance
program, involving the collection of data on the social connections of U.S. citizens and others located within
the United States, was initiated after the Bush Administration left office.37
These and related policies were formulated and carried out by numerous high- and mid-level national security
officials who served in the Bush Administration and continued to serve in the Obama Administration.38
Given Senator Obama’s powerful criticism of such policies before he took office as President, the
question,39 then, is this: Why does national security policy remain constant even when one President is
replaced by another who as a candidate repeatedly, forcefully, and eloquently promised fundamental changes
in that policy?
The affirmative focuses on the wrong area of government --- U.S. national security
decisions are made by executive officials, separate from even the President.
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
As it did in the early days of Britain’s monarchy, power in the United States lay initially in one set of
institutions—the President, Congress, and the courts. These are America’s “dignified” institutions. Later,
however, a second institution emerged to safeguard the nation’s security. This, America’s “efficient”
institution (actually, as will be seen, more a network than an institution) consists of the several hundred
executive officials who sit atop the military, intelligence, diplomatic, and law enforcement departments and
agencies that have as their mission the protection of America’s international and internal security. Large
segments of the public continue to believe that America’s constitutionally established, dignified institutions
are the locus of governmental power; by promoting that impression, both sets of institutions maintain
public support. But when it comes to defining and protecting national security, the public’s impression is
mistaken. America’s efficient institution makes most of the key decisions concerning national security,
removed from public view and from the constitutional restrictions that check America’s dignified institutions.
The United States has, in short, moved beyond a mere imperial presidency to a bifurcated system—a
structure of double government—in which even the President now exercises little substantive control
over the overall direction of U.S. national security policy. Whereas Britain’s dual institutions evolved
towards a concealed republic, America’s have evolved in the opposite direction, toward greater centralization,
less accountability, and emergent autocracy.
--- XT: FBI Circumvents
FBI surveillance continues even after restrictions on its activities
Fisher, 4 --- Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School
(Winter 2004, Linda E., Arizona Law Review, “Guilt by Expressive Association: Political Profiling,
Surveillance and the Privacy of Groups,” 46 Ariz. L. Rev. 621, Lexis, JMP)
The history of the FBI and other law enforcement surveillance gives scant comfort to those engaged in lawful
political and religious activities who are [*623] concerned about becoming targets of surveillance. n5 From
its inception until restrictions on its activities were imposed in the mid-1970s - and even sometimes
thereafter - the FBI regularly conducted politically motivated surveillance, choosing targets based on their
political or religious beliefs. As part of its investigations, it compiled and widely disseminated political
dossiers, engaged in warrantless searches, and disrupted the lawful First Amendment activities of a wide array
of groups opposed to government policy. n6 Local police "Red Squads" did the same. n7 During the war in
Vietnam, the CIA, despite restriction of its mission to foreign intelligence, also conducted domestic
surveillance operations. n8 Religious groups engaged in political activity were among the targets of
intelligence agency investigations. n9
--- XT: NSA Circumvents
Yes circumvention --- recent NSA action proves
Ackerman, 15 --- American national security reporter and blogger, national security editor for the
Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform;
Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to
circumvent congressional authority,” Lexis, JMP)
Privacy advocates fear the National Security Agency will attempt to weaken new restrictions on the bulk
collection of Americans' phone and email records with a barrage of creative legal wrangles, as the first
major reform of US surveillance powers in a generation looked likely to be a foregone conclusion on
Monday.
Related: Bush-era surveillance powers expire as US prepares to roll back NSA power
The USA Freedom Act, a bill banning the NSA from collecting US phone data in bulk and compelling
disclosure of any novel legal arguments for widespread surveillance before a secret court, has already been
passed by the House of Representatives and on Sunday night the Senate voted 77 to 17 to proceed to debate
on it. Between that bill and a landmark recent ruling from a federal appeals court that rejected a longstanding
government justification for bulk surveillance, civil libertarians think they stand a chance at stopping attempts
by intelligence lawyers to undermine reform in secret.
Attorneys for the intelligence agencies react scornfully to the suggestion that they will stretch their
authorities to the breaking point. Yet reformers remember that such legal tactics during the George W
Bush administration allowed the NSA to shoehorn bulk phone records collection into the Patriot Act.
Rand Paul, the Kentucky senator and Republican presidential candidate who was key to allowing sweeping
US surveillance powers to lapse on Sunday night, warned that NSA lawyers would now make mincemeat
of the USA Freedom Act's prohibitions on bulk phone records collection by taking an expansive view of
the bill's definitions, thanks to a pliant, secret surveillance court.
"My fear, though, is that the people who interpret this work at a place known as the rubber stamp factory, the
Fisa [court]," Paul said on the Senate floor on Sunday.
Paul's Democratic ally, Senator Ron Wyden, warned the intelligence agencies and the Obama administration
against attempting to unravel NSA reform.
"My time on the intelligence committee has taught me to always be vigilant for secret interpretations of the
law and new surveillance techniques that Congress doesn't know about," Wyden, a member of the intelligence
committee, told the Guardian.
"Americans were rightly outraged when they learned that US intelligence agencies relied on secret law to
monitor millions of law-abiding US citizens. The American people are now on high alert for new secret
interpretations of the law, and intelligence agencies and the Justice Department would do well to keep that
lesson in mind."
The USA Freedom Act is supposed to prevent what Wyden calls " secret law ". It contains a provision
requiring congressional notification in the event of a novel legal interpretation presented to the secret Fisa
court overseeing surveillance.
Yet in recent memory, the US government permitted the NSA to circumvent the Fisa court entirely. Not a
single Fisa court judge was aware of Stellar Wind, the NSA's post-9/11 constellation of bulk surveillance
programs, from 2001 to 2004.
Energetic legal tactics followed to fit the programs under existing legal authorities after internal
controversy or outright exposure. When the continuation of a bulk domestic internet metadata collection
program risked the mass resignation of Justice Department officials in 2004, an internal NSA draft history
records that attorneys found a different legal rationale that " essentially gave NSA the same authority to
collect bulk internet metadata that it had ".
After a New York Times story in 2005 revealed the existence of the bulk domestic phone records program,
attorneys for the US Justice Department and NSA argued, with the blessing of the Fisa court, that Section
215 of the Patriot Act authorized it all along - precisely the contention that the second circuit court of appeals
rejected in May.
--- XT: CIA Circumvents
CIA controls policy --- it empirically lies and gets what it wants
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Justice Douglas, a family friend of the Kennedys, saw the Trumanites’ influence first-hand: “In reflecting on
Jack’s relation to the generals, I slowly realized that the military were so strong in our society that probably no
President could stand against them.”375 As the roles of the generals and CIA have converged, the CIA’s
influence has expanded—aided in part by a willingness to shade the facts, even with sympathetic
Madisonian sponsors. A classified, 6,000-word report by the Senate Intelligence Committee reportedly
concluded that the CIA was “so intent on justifying extreme interrogation techniques that it blatantly misled
President George W. Bush, the White House, the Justice Department and the Congressional intelligence
committees about the efficacy of its methods.”376 “The CIA gets what it wants,” President Obama told
his advisers when the CIA asked for authority to expand its drone program and launch new paramilitary
operations.377
CIA fights any restraints --- comes after legislators that try and reign it in
Friedersdorf, 14 (Conor, 3/20/2014, “Nancy Pelosi: When Legislators Take on the CIA, 'They Come
After You'; A powerful legislator on the costs of properly overseeing the intelligence community,”
http://www.theatlantic.com/politics/archive/2014/03/nancy-pelosi-when-legislators-take-on-the-cia-theycome-after-you/284524/, JMP)
House Minority Leader Nancy Pelosi's remarks in support of fellow legislator Dianne Feinstein, who is
embroiled in a dispute with the CIA, ought to be the sort of thing that alarms everyone. After all, another
powerful member of Congress claims that the spy agency she is charged with overseeing illegitimately resists
checks on its autonomy.
Here's how she put it:
"I salute Senator Feinstein. I tell you, you take on the intelligence community, you're a person of courage.
And she does not do that lightly. Not without evidence."
"Wherever the decision is, whether it's from the administration, as was the case in the Bush
Administration, to withhold information from Congress, I fought that. But you don't fight it without a price,
because they come after you, and they don't always tell the truth about it. Now, where that's motivated from,
I don't know."
"This is a matter of great seriousness, the attitude that the CIA had, to the rights of Congress in all of this.
It's pretty appalling, what is being alleged or charged."
"The administration is the custodian of intelligence information. It is not the owner."
If Feinstein were taking on ATF or the Food and Drug Administration, no one would think to describe her
as being a "person of courage." Congressional Republicans have been brutally attacking the IRS. None of
them has suggested that, as a result, IRS officials or appointed leadership are bound to come after them.
In other words, the CIA is out of control in a way that these other agencies aren't. And the reason this isn't
considered scandalous? We've grown to expect it. There are many patriots who serve their country in the
intelligence community, Pelosi said. And presidential administrations are partly to blame here. She is
absolutely right—none of which changes the urgent need to rein in the CIA.
--- XT: Agency Fill In
Other agencies empirically fill in to continue surveillance
Ackerman, 15 --- American national security reporter and blogger, national security editor for the
Guardian (6/1/2015, Spencer, The Guardian, “Fears NSA will seek to undermine surveillance reform;
Privacy advocates are wary of covert legal acrobatics from the NSA similar to those deployed post-9/11 to
circumvent congressional authority,” Lexis, JMP)
The rise of what activists have come to call "bulky" surveillance, like the "large collections" of Americans'
electronic communications records the FBI gets to collect under the Patriot Act, continue unabated - or, at
least, will, once the USA Freedom Act passes and restores the Patriot Act powers that lapsed at midnight on
Sunday.
Related: FBI used Patriot Act to obtain 'large collections' of Americans' data, DoJ finds
That collection, recently confirmed by a largely overlooked Justice Department inspector general's report,
points to a slipperiness in shuttering surveillance programs - one that creates opportunities for clever lawyers.
The Guardian revealed in 2013 that Barack Obama had permitted the NSA to collect domestic internet
metadata in bulk until 2011. Yet even as Obama closed down that NSA program, the Justice Department
inspector general confirms that by 2009, the FBI was already collecting the same "electronic
communications" metadata under a different authority.
It is unclear as yet how the FBI transformed that authority, passed by Congress for the collection of "business
records", into large-scale collection of Americans' email, text, instant message, internet-protocol and other
records. And a similar power to for the FBI gather domestic internet metadata, obtained through non-judicial
subpoenas called "National Security Letters", also exists in a different, non-expiring part of the Patriot Act.
--- AT: President Will Comply
The President doesn’t matter --- Glennon says a double government exists and a
network of officials exists within government that exercises predominant power on
national security.
The President can’t ensure compliance --- the national security bureaucracy firmly
controls the process
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Put differently, the question whether the President could institute a complete about-face supposes a topdown policy-making model. The illusion that presidents issue orders and that subordinates simply carry them
out is nurtured in the public imagination by media reports of “Obama’s” policies or decisions or initiatives, by
the President’s own frequent references to “my” directives or personnel, and by the Trumanites own reports
that the President himself has “ordered” them to do something. But true top-down decisions that order
fundamental policy shifts are rare.369 The reality is that when the President issues an “order” to the
Trumanites, the Trumanites themselves normally formulate the order.370 The Trumanites “cannot be
thought of as men who are merely doing their duty. They are the ones who determine their duty, as well as
the duties of those beneath them. They are not merely following orders: they give the orders.”371 They do
that by “entangling”372 the President. This dynamic is an aspect of what one scholar has called the “deep
structure” of the presidency.373 As Theodore Sorensen put it, “Presidents rarely, if ever, make decisions—
particularly in foreign affairs—in the sense of writing their conclusions on a clean slate . . . . [T]he basic
decisions, which confine their choices, have all too often been previously made.”374
National security bureaucracy acts independent of the President
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Sometimes, however, the Trumanites proceed without presidential approval. In 1975, a White House aide
testified that the White House “didn’t know half the things” intelligence agencies did that might be legally
questionable.378 “If you have got a program going and you are perfectly happy with its results, why take the
risk that it might be turned off if the president of the United States decides he does not want to do it,” he
asked.379 Other occasions arise when Trumanites in the CIA and elsewhere originate presidential
“directives”—directed to themselves.380 Presidents then ratify such Trumanite policy initiatives after the
fact.381 To avoid looking like a bystander or mere commentator, the President embraces these Trumanite
policies, as does Congress, with the pretense that they are their own.382 To maintain legitimacy, the
President must appear to be in charge. In a narrow sense, of course, Trumanite policies are the President’s
own; after all, he did formally approve them.383 But the policies ordinarily are formulated by Trumanites—
who prudently, in Bagehot’s words, prevent “the party in power” from going “all the lengths their orators
propose[].”384 The place for presidential oratory, to the Trumanites, is in the heat of a campaign, not in the
councils of government where cooler heads prevail.385
Military frames decision-making to force President to accept the policy it wants
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Presidential choice is further circumscribed by the Trumanites’ ability to frame the set of options from which
the President may choose— even when the President is personally involved in the decisionmaking process to
an unusual degree, as occurred when President Obama determined the number of troops to be deployed to
Afghanistan.414 Richard Holbrooke, the President’s Special Representative for Afghanistan and Pakistan,
predicted that the military would offer the usual three options— the option they wanted, bracketed by two
unreasonable alternatives that could garner no support.415 “And that is exactly what happened,”416 Nasr
recalled. It was, as Secretary Gates said, “the classic Henry Kissinger model . . . . You have three options, two
of which are ridiculous, so you accept the one in the middle.”417 The military later expanded the options—
but still provided no choice. “You guys just presented me [with] four options, two of which are not realistic.”
The other two were practically indistinguishable. “So what’s my option?” President Obama asked. “You have
essentially given me one option.”418 The military was “really cooking the thing in the direction that
they wanted,” he complained. “They are not going to give me a choice.”419
Presidential control is very limited
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
This is, again, hardly to suggest that the President is without power. Exceptions to the rule occur with enough
regularity to create the impression of overall presidential control. “As long as we keep up a double set of
institutions—one dignified and intended to impress the many, the other efficient and intended to govern the
many—we should take care that the two match nicely,” Bagehot wrote.420 He noted that “[t]his is in part
effected by conceding some subordinate power to the august part of our polity . . . .”421 Leadership does
matter, or at least it can matter. President Obama’s decision to approve the operation against Osama bin
Laden against the advice of his top military advisers is a prominent example.422 Presidents are sometimes
involved in the decisional loops, as Bagehot’s theory would predict. Overlap between Madisonians and
Trumanites preserves the necessary atmospherics. Sometimes even members of Congress are brought into
the loop.423 But seldom do presidents participate personally and directly, let alone the Madisonian
institutions in toto. The range of presidential choice is tightly hemmed in.424 As Sorensen wrote in 1981,
“[e]ven within the executive branch, the president’s word is no longer final . . . .”425 When the red lights flash
and the sirens wail, it is the Trumanites’ secure phones that ring.
--- AT: Other Branches Check
Checks by federal branches fail --- national security bureaucracy is only concerned
with increasing its own power to address threats
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
A third internal “check,” the Foreign Intelligence Surveillance Court, subsists formally outside the executive
branch but for all practical purposes might as well be within it; as noted earlier, it approved 99.9% of all
warrant requests between 1979 and 2011.561 In 2013, it approved the NSA collection of the telephone
records of tens of millions of Americans, none of whom had been accused of any crime.562 An authentic
check is one thing; smoke and mirrors are something else.
The first difficulty with such proposed checks on the Trumanite network is circularity; all rely upon
Madisonian institutions to restore power to Madisonian institutions by exercising the very power that
Madisonian institutions lack. All assume that the Madisonian institutions, in which all reform proposals must
necessarily originate, can somehow magically impose those reforms upon the Trumanite network or that the
network will somehow merrily acquiesce. All suppose that the forces that gave rise to the Trumanite network
can simply be ignored. All assume, at bottom, that Madison’s scheme can be made to work—that an
equilibrium of power can be achieved—without regard to the electorate’s fitness.
Yet Madison’s theory, again,563 presupposed the existence of a body politic possessed of civic virtue. It is the
personal ambition only of officeholders who are chosen by a virtuous electorate that can be expected to
translate into institutional ambition. It is legislators so chosen, Madison believed, who could be counted upon
to resist encroachments on, say, Congress’s power to approve war or treaties because a diminution of
Congress’s power implied a diminution of their own individual power. Absent a virtuous electorate, personal
ambition and institutional ambition no longer are coextensive. Members’ principal ambition564 then becomes
political survival, which means accepting, not resisting, Trumanite encroachments on congressional power.
The Trumanites’ principal ambition, meanwhile, remains the same: to broaden their ever-insufficient
“flexibility” to deal with unforeseen threats—that is, to enhance their own power. The net effect is imbalance,
not balance.
This imbalance has suffused the development of U.S. counterterrorism policy. Trumanites express concerns
about convergence, about potentially dangerous link-ups among narco-terrorists, cyber-criminals, human
traffickers, weapons traders, and hostile governments.565 Yet their concerns focus largely, if not entirely, on
only one side of Madison’s ledger —the government’s need to protect the people from threats—and little, if
at all, on the other side: the need to protect the people from the government. As a result, the discourse,
dominated as it is by the Trumanites, emphasizes potential threats and deemphasizes tradeoffs that must be
accepted to meet those threats. The Madisonians themselves are not troubled about new linkages forged
among the newly-created components of military, intelligence, homeland security, and law enforcement
agencies—linkages that together threaten civil liberties and personal freedom in ways never before seen in the
United States. The earlier “stovepiping” of those agencies was seen as contributing to the unpreparedness
that led to the September 11 attacks,566 and after the wearying creation of the Department of Homeland
Security and related reorganizations, the Madisonians have little stomach for re-drawing box charts yet again.
And so the cogs of the national security apparatus continue to tighten while the scaffolding of the Madisonian
institutions continues to erode.
Lack of civic virtue prevents effective constraints by 3 branches
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
There is a third, more fundamental, more worrisome reason why the Madisonian institutions have been
eclipsed, as noted earlier in this Article.575 It is the same reason that repairs of the sort enumerated above
likely will not endure. And it is not a reason that can be entirely laid at the feet of the Trumanites. It is a
reason that goes to the heartbeat of democratic institutions. The reason is that Madisonian institutions rest
upon a foundation that has proven unreliable: a general public possessed of civic virtue.
Civic virtue, in Madison’s view, required acting for the public interest rather than one’s private interest.576
Madison, realist that he was, recognized that deal-making and self-interest would permeate government; this
could be kept in check in part by clever institutional design, with “ambition . . . to counteract ambition”577
among governmental actors to maintain a power equilibrium. But no such institutional backup is available if
the general public itself lacks civic virtue—meaning the capacity to participate intelligently in self-government
and to elect officials who are themselves virtuous.578 Indeed, civic virtue is thus even more important,579
Madison believed, for the public at large than for public officials; institutional checks are necessary but not
sufficient. Ultimately, the most important check on public officials is, as Madison put it, “virtue and
intelligence in the community . . . .”580 Institutional constraints are necessary but not sufficient for the
survival of liberty, Madison believed; they cannot be relied upon absent a body politic possessed of civic
virtue.581
The negative feedback loop ensures that 3 branches will continue to atrophy and be
unable to check national security bureaucracy
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
This is the nub of the negative feedback loop in which the United States is now locked. Resuscitating the
Madisonian institutions requires an informed, engaged electorate, but voters have little reason to be informed
or engaged if their efforts are for naught—and as they become more uninformed and unengaged, they have
all the more reason to continue on that path. The Madisonian institutions thus continue to atrophy, the
power of the Trumanite network continues to grow, and the public continues to disengage.
3 branches can’t check national security bureaucracy --- they have an incentive to fall
in line
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
The second difficulty with legal and public-opinion based checks on the Trumanite network is the
assumption in Madison’s theory that the three competing branches act independently. “[I]t is evident that
each department should have a will of its own,” says The Federalist.570 This is achieved by ensuring that
each is “so constituted that the members of each should have as little agency as possible in the appointment
of the members of the others.”571 Different policy preferences will obtain because the three Madisonian
branches will act upon different motives. But when it counts, the branches do not. Each branch has the same
ultimate incentive: to bring its public posture into sync with the private posture of the Trumanites.572 The
net effect is “balance,” after a fashion, in the sense that the end result is outward harmony of a sort easily
mistaken for Madisonian-induced equipoise. But the balance is not an equilibrium that results from
competition for power among three branches struggling “for the privilege of conducting American foreign
policy,” as Edward S. Corwin memorably put it.573 The “system” that produces this ersatz consensus is a
symbiotic tripartite co-dependence in which the three Madisonian branches fall over themselves to keep
up with the Trumanites. The ostensible balance is artificial; it reflects a juridical legerdemain created and
nurtured by the Trumanite network, which shares, defends, and begins with the same static assumptions.
Bagehot relates the confidential advice of Lord Melbourne to the English Cabinet: “It is not much matter
which we say, but mind, we must all say the same.”574 The Madisonian institutions and the Trumanite
network honor the same counsel.
Congress and courts can’t constrain the national security establishment
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
IV. The Reality of Madisonian Weakness
Although the Madisonian institutions seem to be in charge and, indeed, to be possessed of power broad
enough to remedy their own deficiencies, a close look at each branch of government reveals why they are not.
A more accurate description would be that those institutions are in a state of entropy and have become, in
Bagehot’s words, “a disguise”—“the fountain of honour” but not the “spring of business.”241 The
Presidency, Congress, and the courts appear to set national security policy, but in reality their role is
minimal. They exercise decisional authority more in form than in substance. This is the principal
reason that the system has not, as advertised, self-corrected.242
--- AT: Congress Checks
Congress can’t ensure implementation and enforcement --- it is a tool of the national
security bureaucracy
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
B. The Congress
Like the courts, Congress’s apparent power also vastly outstrips its real power over national security. Similar
to the Trumanites, its members face a blistering work load. Unlike the Trumanites, their work is not
concentrated on the one subject of national security. On the tips of members’ tongues must be a ready and
reasonably informed answer not only to whether the United States should arm Syrian rebels, but also whether
the medical device tax should be repealed, whether and how global warming should be addressed, and myriad
other issues. The pressure on legislators to be generalists creates a need to defer to national security
experts. To a degree congressional staff fulfill this need. But few can match the Trumanites’
informational base, drawing as they do on intelligence and even legal analysis that agencies often withhold
from Congress. As David Gergen put it, “[p]eople . . . simply do not trust the Congress with sensitive and
covert programs.”344
The Trumanites’ threat assessments,345 as well as the steps they take to meet those threats, are therefore
seen as presumptively correct whether the issue is the threat posed by the targets of drone strikes, by
weapons of mass destruction in Iraq, or by torpedo attacks on U.S. destroyers in the Gulf of Tonkin.
Looming in the backs of members’ minds is the perpetual fear of casting a career-endangering vote. No vote
would be more fatal than one that might be tied causally to a cataclysmic national security breakdown. While
the public may not care strongly or even know about many of the Bush policies that Obama has continued,
the public could and would likely know all about any policy change—and who voted for and against it—in
the event Congress bungled the protection of the nation. No member wishes to confront the “if only”
argument: the argument that a devastating attack would not have occurred if only a national security letter had
been sent, if only the state secrets privilege had been invoked, if only that detainee had not been released.
Better safe than sorry, from the congressional perspective. Safe means strong. Strong means supporting the
Trumanites.
Because members of Congress are chosen by an electorate that is disengaged and uninformed, Madison’s
grand scheme of an equilibrating separation of powers has failed, and a different dynamic has
arisen.346 His design, as noted earlier,347 anticipated that ambition counteracting ambition would lead to an
equilibrium of power and that an ongoing power struggle would result among the three branches that would
leave room for no perilous concentration of power.348 The government’s “several constituent parts” would
be “the means of keeping each other in their proper places.”349 But the overriding ambition of legislators
chosen by a disengaged and uninformed electorate is not to accumulate power by prescribing policy for the
Trumanites, as Madison’s model would otherwise have predicted. Their overriding ambition is to win
reelection, an ambition often inconsistent with the need to resist encroachments on congressional power. All
members of Congress know that they cannot vote to prescribe—or proscribe—any policy for anyone if they
lose reelection. It is not that Madison was wrong; it is that the predicate needed for the Madisonian system to
function as intended—civic virtue—is missing.
As a result, Trumanite influence permeates the legislative process, often eclipsing even professional
committee staff. Trumanites draft national security bills that members introduce. They endorse or oppose
measures at hearings and mark-ups. They lobby members, collectively and one-on-one. Their positions
appear on the comparative prints that guide members through key conference committee deliberations.
Sometimes Trumanites draft the actual language of conference reports. They wait outside the chambers of the
House and Senate during floor debates, ready on-the-spot to provide members with instant arguments and
data to back them up. Opponents frequently are blind-sided. Much of this activity is removed from the
public eye, leading to the impression that the civics-book lesson is correct; Congress makes the laws. But
the reality is that virtually everything important on which national security legislation is based
originates with or is shaped by the Trumanite network.
Conversely, congressional influence in the Trumanites’ decisionmaking processes is all but nil. The courts
have, indeed, told Congress to keep out. In 1983, the Supreme Court invalidated a procedure, called the
“legislative veto,” which empowered Congress to disapprove of Trumanite arms sales to foreign nations,
military initiatives, and other national security projects.350 The problem with the concept, the Court said, was
that it permitted Congress to disapprove of executive action without the possibility of a presidential veto.351
A legislative proposal thereafter to give the Senate Intelligence Committee the power to approve or
disapprove covert actions was rejected, on the grounds that the Court had ruled out such legislative
controls.352
Restrictions will fail --- executive will circumvent
Pierce, 14 (Charles P., 2/17/2014, “The Imperial Masquerade of Barack Obama,”
http://www.esquire.com/blogs/politics/Imperial_Masquerade)
As much as we probably would like it not to happen, the Lawless President narrative seems to have reached
that stage in our national dialogue in which enough of "some people" are "saying" things about it that the
courtier press feels obligated to "cover the controversy," which is how we're all going to have to spend
months listening to our radio Tom Paines -- on whom the actual Tom Paine would not have deigned to spit - tell us that Liberty (!) is indeed threatened by what the president is about these days.
Look, if I thought our current political class capable of engaging the public in a serious debate over the wildassed expansion of executive power over the last 50 years, and if I thought it had the courage to do
something about it, I'd be at the front of the line. But, come on, can you see the Congress making a serious
attempt to re-establish the constitutional war powers that it has deeded away piecemeal to the Executive over
the past 70 years? (In the long view of history, it was plain that the War Powers Act essentially was dead from
birth.) Can you see the establishment of legitimate congressional oversight of, say, the intelligence
community, and the use to which every president puts it? Can you imagine a serious congressional prohibition
of drone warfare that the Executive would not feel free to violate with impunity? Instead, we get an argument
whittled down to a fine point of stupid -- Our President Is A Nicer Authoritarian Than Yours Is. There is a
Democrat in the White House so it is the Republicans -- and the conservative monkeyhouse that is the party's
policy apparatus -- howling about imperial presidencies after being deadly silent about C-Plus Augustus and
his signing statements and the vast arrogation of power that occurred under the doctrine of the unitary
executive. And vice versa. And so on, forever, we go. Charlie Savage, the truly invaluable national-security
reporter at The New York Times, put it plainly in Takeover, his book on the imperial administration of
George W. Bush and Dick Cheney:
Whenever presidentialists have gained control of the White House, they have tended to make grandiose
claims of presidential power. Then, when scandals and misgovernment have arisen, the presidentialists have
temporarily retreated, only to slowly retake the ground they lost. The Korean War, the Vietnam War and the
Watergate scandal, the Iran-Contra scandal, and now the Iraq War and the war on terrorism are all chapters in
this history. Each one has also been a difficult time in America.
As loud as is the current frothing over some unlateral tinkering with the Affordable Care Act, and the
president's decision to get the Pentagon janitors a raise, prior to the John Yoo-sanctified follies of the
previous administration, the clearest example of how destructive an unmoored and unrestrained Executive
can be was, as Savage points out, the Iran-Contra foolishness, which remains the great lost opportunity for
the country and its politicians to stuff the presidency back into the constitutional corral where it belongs. We
all blew that one -- the politicians did, certainly, but so, disgracefully, did the elite media and, ultimately, so did
the American people their own selves. In 1988, knowing full well what had gone on, we elected to the
presidency a vice-president who was hip-deep in the crimes and the cover-up, and we did it because he was
able to feign anger convincingly enough while lying his withered hindquarters off to Dan Rather. In A Very
Thin Line, his definitive account of the Iran-Contra crimes, historian Theodore Draper gives us an account of
what happened to the only serious congressional attempt to respond to the demonstrable lawlessness of the
Reagan administration.
As you may recall, Iran-Contra was essentially an attempt by the Reagan White House to evade a law
prohibiting direct American aid to the various priest-killers and nun-rapers we were supporting in Central
America. (There were a number of other facets, but that's basically what it was all about.) One of the ways the
Reagan people tried to get around the law was to solicit aid -- financial and otherwise -- from third countries.
In the summer of 1989, Senator Daniel Patrick Moynihan introduced a bill specifically designed to close that
loophole, and to make what the Reaganauts tried to do a felony. As Draper points out, all hell promptly broke
loose. President George H.W. Bush threatened to veto the bill, which he eventually did at the end of
November. Nobody in the country said boo, even though Moynihan had drafted a bill that specifically
addressed the crimes at the heart of a scandal that had occupied the government for two years, and that
nearly blew up a presidency, and probably should have, and a president who knew goddamn good and well
what had gone on vetoed the bill, which was directly aimed at prohibiting activities in which said president
had been intimately involved.
The nation yawned. A lot of it was simple apathy, and the steady abandonment on the part of the country of
the obligations of self-government, and the concomitant lassitude as to their duties by the politicians elected
by an apathetic electorate. Some of it was simple fear; this was particularly true of the press, which, as Mark
Hertsgaard explains in On Bended Knee, didn't want to be thought of as having "destroyed" another lawless
presidency, as though that wasn't the essential job description in Amendment I. (This, of course, was not a
consideration in the 1990's, when a lot of the same people spent two years chasing Bill Clinton's penis all over
the Beltway.) This dereliction was usually excused within the elite media with the condescending argument
that "the people" could not stand the trauma of another "failed presidency." But this is inexcusable timidity.
As Draper writes:
Not every dispute over the Constitution endangers it. This one, however, is qualitatively different. An
authoritarian, autocratic presidency in "the management of foreign relations" is still a clear and present
danger, "most susceptible of abuse of all the trusts committed to a Government." And whatever we may
think of the constitutional issue, there remains the question: Do we want that kind of presidency?
The answer, for the moment, remains generally yes. Everything else is political noise.
--- AT: Courts Check
Judicial restrictions can’t solve --- will either throw out cases or be biased and defer
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
The judiciary, in short, does not have the foremost predicate needed for Madisonian equilibrium: “a will of its
own.”304 Whatever the court, judges normally are able to find what appear to the unschooled to be sensible,
settled grounds for tossing out challenges to the Trumanites’ projects. Dismissal of those challenges is
couched in arcane doctrine that harks back to early precedent, invoking implicitly the courts’ mystical
pedigree and an aura of politics-transcending impartiality. But challenges to the Trumanites’ projects
regularly get dismissed before the plaintiff ever has a chance to argue the merits either before the courts or,
sometimes more importantly, the court of public opinion. Try challenging the Trumanites’ refusal to make
public their budget305 on the theory that the Constitution does, after all, require “a regular statement and
account of the receipts and expenditures of all public money”;306 or the membership of Members of
Congress in the military reserve307 on the theory that the Constitution does, after all, prohibit Senators and
Representatives from holding “any office under the United States”;308 or the collection of phone records of
the sort given by Verizon to the NSA on the theory that the law authorizing the collection is
unconstitutional.309 Sorry, no standing, case dismissed.310 Try challenging the domestic surveillance of
civilians by the U.S. Army311 on the theory that it chills the constitutionally protected right to free
assembly,312 or the President’s claim that he can go to war without congressional approval313 on the theory
that it is for Congress to declare war.314 Sorry, not ripe for review, case dismissed.315 Try challenging the
introduction of the armed forces into hostilities in violation of the War Powers Resolution.316 Sorry, political
question, non-justiciable, case dismissed.317 Try challenging the Trumanites’ refusal to turn over relevant and
material evidence about an Air Force plane accident that killed three crew members through negligence,318
or about racial discrimination against CIA employees,319 or about an “extraordinary rendition” involving
unlawful detention and torture.320 Sorry, state secrets privilege, case dismissed.321
Sometimes the courts have no plausible way of avoiding the merits of national security challenges. Still, the
Trumanites win. The courts eighty years ago devised a doctrine—the “non-delegation doctrine”—that
forbids the delegation of legislative power by Congress to administrative agencies.322 Since that time it has
rarely been enforced, and never has the Court struck down any delegation of national security authority to the
Trumanite apparatus.323 Rather, judges stretch to find “implied” congressional approval of Trumanite
initiatives. Congressional silence, as construed by the courts, constitutes acquiescence.324 Even if that
hurdle can be overcome, the evidence necessary to succeed is difficult to get; as noted earlier,325 the most
expert and informed witnesses all have signed nondisclosure agreements, which prohibit any discussion of
“classifiable” information without pre-publication review by the Trumanites. As early as 1988, over three
million present and former federal employees had been required to sign such agreements as a condition of
employment.326 Millions more have since become bound to submit their writings for editing and redaction
before going to press. And as the ultimate trump card, the Trumanites are cloaked in, as the Supreme Court
put it, “the very delicate, plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relations—a power which does not require as a basis for its exercise
an act of Congress.”327 The basis of their power, the Court found, is, indeed, not even the
Constitution itself; the basis of Trumanite power is external sovereignty—the membership of the United
States in the community of nations, which confers extra-constitutional authority upon those charged with
exercising it.328
Courts can’t effectively constrain executive national security officials
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Yet the larger picture remains valid. Through the long list of military conflicts initiated without congressional
approval—Grenada, Panama, Kosovo, and, most recently, Libya—the courts have never stopped a war, with
one minor (and temporary) exception. In 1973, Justice William O. Douglas did issue an order to halt the
bombing of Cambodia333—which lasted a full nine hours, until the full Supreme Court overturned it.334
The Court’s “lawless” reversal was effected through an extraordinary telephone poll of its members
conducted by Justice Thurgood Marshall. “[S]ome Nixon men,” Douglas believed, “put the pressure on
Marshall to cut the corners.”335 Seldom do judges call out even large-scale constitutional violations that
could risk getting on the wrong side of an angry public, as American citizens of Japanese ethnicity discovered
during World War II.336 Whatever the cosmetic effect, the four cases representing the Supreme Court’s
supposed “push-back” against the War on Terror during the Bush Administration freed, at best, a tiny
handful of detainees.337 As of 2010 fewer than 4% of releases from Guantánamo followed a judicial release
order.338 A still-unknown number of individuals, numbering at least in the dozens, fared no better. These
individuals were detained indefinitely— without charges, based on secret evidence, sometimes without
counsel—as “material witnesses” following 9/11.339 One can barely find a case in which anyone claiming to
have suffered even the gravest injury as the result of the Bush-Obama counterterrorism policies has been
permitted to litigate that claim on the merits—let alone to recover damages. The Justice Department’s seizure
of Associated Press (“AP”) records was carried out pursuant to judicially-approved subpoenas, in secret,
without any chance for the AP to be heard.340 The FISC 341 has barely pretended to engage in real judicial
review. Between 1979 and 2011, the court received 32,093 requests for warrants. It granted 32,087 of those
requests, and it turned down eleven.342 In 2012, the court received 1,789 requests for electronic surveillance,
one of which was withdrawn. All others were approved.343 The occasional counterexample notwithstanding,
the courts cannot seriously be considered a check on America’s Trumanite network.
And, at best, the plan just perpetuates the façade that the judiciary can effectively
constrain the executive
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
As is true with respect to the other Madisonian institutions, there are, of course, instances in which the
judiciary has poached on the Trumanites’ domain. The courts rebuffed an assertion of the commanderinchief power in ordering President Truman to relinquish control of the steel mills following their seizure
during the Korean War.329 Over the Trumanites’ objections, the courts permitted publication of the
Pentagon Papers that revealed duplicity, bad faith, and ineptitude in the conduct of the Vietnam War.330 The
Supreme Court did overturn military commissions set up to try enemy combatants for war crimes,331 and
two years later found that Guantánamo detainees had unlawfully been denied habeas corpus rights.332
Personnel does sometimes matter. Enough apparent counterexamples exist to preserve the façade.
--- AT: We Make Congress / Courts / President Better
Madisonian institutions can’t be reformed to effectively restrict national security
bureaucracy
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
Some suggest that the answer is to admit the failure of the Madisonian institutions, recognize that for all their
faults the external checks are all that really exist, acknowledge that the Trumanite network cannot be
unseated, and try to work within the current framework.530 But the idea that external checks alone do or can
provide the needed safeguards is false. If politics were the effective restraint that some have argued it is,531
politics—intertwined as it is with law—would have produced more effective legalist constraints. It has not.
The failure of law is and has been a failure of politics. If the press and public opinion were sufficient to
safeguard what the Madisonian institutions were designed to protect, the story of democracy would consist of
little more than a series of elected kings, with the rule of law having frozen with the signing of Magna Carta in
1215. Even with effective rules to protect free, informed, and robust expression—which is an enormous
assumption—public opinion alone cannot be counted upon to protect what law is needed to protect. The
hope that it can do so recalls earlier reactions to Bagehot’s insights—the faith that “the people” can simply
“throw off” their “deferential attitude and reshape the political system,” insisting that the Madisonian, or
dignified, institutions must “once again provide the popular check” that they were intended to provide.532
That, however, is exactly what many thought they were doing in electing Barack Obama as President. The
results need not be rehearsed; little reason exists to expect that some future public effort to resuscitate
withered Madisonian institutions would be any more successful. Indeed, the added power that the Trumanite
network has taken on under the Bush- Obama policies would make that all the more difficult. It is simply
naïve to believe that a sufficiently large segment of informed and intelligent voters can somehow come
together to ensure that sufficiently vigilant Madisonian surrogates will somehow be included in the national
security decisionmaking process to ensure that the Trumanite network is infused with the right values. Those
who believe that do not understand why that network was formed, how it operates, or why it survives. They
want it, in short, to become more Madisonian. The Trumanite network, of course, would not mind appearing
more Madisonian, but its enduring ambition is to become, in reality, less Madisonian.
--- AT: Public Opinion Ensures Compliance
National security bureaucracy will buck the President and manipulate public opinion
to control policymaking
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
The idea that presidential backbone is all that is needed further presupposes a model in which the Trumanites
share few of the legitimacy-conferring features of the constitutional branches and will easily submit to the
President. But that supposition is erroneous. Mass entertainment glorifies the military, intelligence, and law
enforcement operatives that the Trumanites direct. The public is emotionally taken with the aura of mystery
surrounding the drone war, Seal Team Six, and cyber-weapons. Trumanites, aided by Madisonian leaks,
embellish their operatives’ very real achievements with fictitious details, such as the killing of Osama bin
Laden386 or the daring rescue of a female soldier from Iraqi troops.387 They cooperate with the making of
movies that praise their projects, like Zero Dark Thirty and Top Gun, but not movies that lampoon them,
such as Dr. Strangelove (an authentic F-14 beats a plastic B-52 every time).388 Friendly fire incidents are
downplayed or covered up.389 The public is further impressed with operatives’ valor as they are lauded with
presidential and congressional commendations, in the hope of establishing Madisonian affiliation.390 Their
simple mission—find bad guys and get them before they get us—is powerfully intelligible. Soldiers,
commandos, spies, and FBI agents occupy an honored pedestal in the pantheon of America’s heroes. Their
secret rituals of rigorous training and preparation mesmerize the public and fortify its respect. To the extent
that they are discernible, the Trumanites, linked as they are to the dazzling operatives they direct, command a
measure of admiration and legitimacy that the Madisonian institutions can only envy.391 Public opinion is,
accordingly, a flimsy check on the Trumanites; it is a manipulable tool of power enhancement. It is
therefore rarely possible for any occupant of the Oval Office to prevail against strong, unified Trumanite
opposition, for the same reasons that members of Congress and the judiciary cannot; a non-expert president,
like a non-expert senator and a non-expert judge, is intimidated by expert Trumanites and does not want to
place himself (or a colleague or a potential political successor) at risk by looking weak and gambling that the
Trumanites are mistaken. So presidents wisely “choose” to go along.
The public and media is not a suitable check
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
It might also be supposed that existing, non-Madisonian, external restraints pose counterweights that
compensate for the weakness of internal, Madisonian checks. The press, and the public sentiment it partially
shapes, do constrain the abuse of power—but only up to a point. To the extent that the “marketplace of
ideas” analogy ever was apt, that marketplace, like other marketplaces, is given to distortion. Public outrage is
notoriously fickle, manipulable, and selective, particularly when driven by anger, fear, and indolence. Sizeable
segments of the public—often egged on by public officials—lash out unpredictably at imaginary
transgressors, failing even in the ability to identify sympathetic allies.518 “[P]ublic opinion,” Sorensen wryly
observed, “is not always identical with the public interest.”519
The influence of the media, whether to rouse or dampen, is thus limited. The handful of investigative
journalists active in the United States today are the truest contemporary example of Churchill’s tribute to the
Royal Air Force.520 In the end, though, access remains everything to the press. Explicit or implicit threats by
the targets of its inquiries to curtail access often yield editorial acquiescence. Members of the public obviously
are in no position to complain when a story does not appear. Further, even the best of investigative
journalists confront a high wall of secrecy. Finding and communicating with (on deep background, of course)
a knowledgeable, candid source within an opaque Trumanite network resistant to efforts to pinpoint decisionmakers521 can take years. Few publishers can afford the necessary financial investment; newspapers are, after
all, businesses, and the bottom line of their financial statements ultimately governs investigatory expenditures.
Often, a second corroborating source is required. Even after scaling the Trumanite wall of secrecy, reporters
and their editors often become victims of the deal-making tactics they must adopt to live comfortably with
the Trumanites. Finally, members of the mass media are subject to the same organizational pressures that
shape the behavior of other groups. They eat together, travel together, and think together. A case in point was
the Iraq War. The Washington Post ran twenty-seven editorials in favor of the war along with dozens of oped pieces, with only a few from skeptics.522 The New York Times, Time, Newsweek, the Los Angeles Times,
and the Wall Street Journal all marched along in lockstep. 523 As Senator Eugene McCarthy aptly put it,
reporters are like blackbirds; when one flies off the telephone wire, they all fly off.524
More importantly, the premise—that a vigilant electorate fueled by a skeptical press together will successfully
fill the void created by the hollowed-out Madisonian institutions—is wrong.525 This premise supposes that
those outside constraints operate independently, that their efficacy is not a function of the efficacy of internal,
Madisonian checks.526 But the internal and external checks are woven together and depend upon one
another. 527 Non-disclosure agreements (judicially-enforced gag orders, in truth) are prevalent among those
best positioned to criticize.528 Heightened efforts have been undertaken to crush vigorous investigative
journalism and to prosecute and humiliate whistleblowers and to equate them with spies under the espionage
laws. National security documents have been breathtakingly over-classified. The evasion of Madisonian
constraints by these sorts of policies has the net effect of narrowing the marketplace of ideas, curtaining
public debate, and gutting both the media and public opinion as effective restraints.529 The vitality of
external checks depends upon the vitality of internal Madisonian checks, and the internal Madisonian checks
only minimally constrain the Trumanites.
--- AT: Consensus Exists
Consensus not meaningful --- it is just political branches trying to stay in sync with
national security bureaucracy
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
It is no answer to insist that, whatever the system’s faults, the Madisonian accountability mechanisms have at
least generated a political consensus.567 Even if consensus exists among the Madisonians themselves, the
existence of a public consensus on national security policy is at best doubtful.568 Further, if the application
of Bagehot’s theory to U.S. national security policy is correct, whatever consensus does exist at the political
level is synthetic in that it derives not from contestation among the three branches of the federal government
but from efforts of the Madisonian institutions to remain in sync with the Trumanite network. That network
is the moving force behind any consensus. It has forged the policies that the consensus supports; it has
orchestrated Madisonian support. Finally, even if real, the existence of a Madisonian/Trumanite consensus
says nothing about the content of the consensus—nothing about whether Madison’s second great goal of
protecting the people from the government has been vindicated or defeated. Autocracy can be consensusbased. The notion of a benign modern-day consensus on national security policy is, indeed, reminiscent of the
observation of Richard Betts and Leslie Gelb who, reviewing agreements that emerged from national security
deliberations during the Johnson Administration, concluded that “the system worked.”569 Well, perhaps; the
result was Vietnam.
--- AT: Double Government Thesis Wrong
Double government does exist in the U.S. --- bureaucracy is self-multiplying
Glennon, 14 --- Professor of International Law at Tufts (Michael, Harvard National Security Journal,
“National Security and Double Government,” http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf, JMP)
To many, inculcated in the hagiography of Madisonian checks and balances and oblivious of the reach of
Trumanite power, the response to these realizations will be denial. The image of a double national security
government will be shocking. It cannot be right. It sounds of conspiracy, “a state within,” and other
variations on that theme. “The old notion that our Government is an extrinsic agency,” Bagehot wrote, “still
rules our imaginations.”603 That the Trumanite network could have emerged in full public view and without
invidious intent makes its presence all the more implausible. Its existence challenges all we have been taught.
There is, however, little room for shock. The pillars of America’s double government have long stood in plain
view for all to see. We have learned about significant aspects of what Bagehot described—from some
eminent thinkers. Max Weber’s work on bureaucracies showed that, left unchecked, the inexorability of
bureaucratization can lead to a “polar night of icy darkness” in which humanitarian values are sacrificed for
abstract organizational ends.604 Friedrich Hayek’s work on political organization led him to conclude that
“the greatest danger to liberty today comes from the men who are most needed and most powerful in
government, namely, the efficient expert administrators exclusively concerned with what they regard as the
public good.”605 Eric Fromm’s work on social psychology showed how people unconsciously adopt societal
norms as their own to avoid anxiety-producing choices, so as to “escape from freedom.”606 Irving Janis’s
work on group dynamics showed that the greater a group’s esprit de corps, “the greater the danger that
independent critical thinking will be replaced by groupthink, which is likely to result in irrational and
dehumanizing actions directed against out-groups.”607 Michael Reisman’s work on jurisprudence has shown
how de facto operational codes can quietly arise behind publicly-embraced myth systems, allowing for
governmental conduct that is not approved openly by the law.608 Mills’ 1956 work on power elites showed
that the centralization of authority among officials who hold a common world view and operate in secrecy
can produce a “military metaphysic” directed at maintaining a “permanent war economy.”609 One person
familiar with Mills’ work was political scientist Malcolm Moos, the presidential speechwriter who five years
later wrote President Eisenhower’s prophetic warning.610 “In the councils of government,” Eisenhower said,
“we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the
military-industrial complex. The potential for the disastrous rise of misplaced power exists and will
persist.”611
Bagehot anticipated these risks. Bureaucracy, he wrote, is “the most unimproving and shallow form of
government,”612 and the executive that commands it “the most dangerous.”613 “If it is left to itself,” he
observed, “without a mixture of special and non-special minds,” decisional authority “will become technical,
self-absorbed, self-multiplying.”614 The net result is responsibility that is neither fixed nor ascertainable
but diffused and hidden,615 with implications that are beyond historical dispute. “The most disastrous
decisions in the twentieth century,” in Robert Dahl’s words, “turned out to be those made by authoritarian
leaders freed from democratic restraints.”616
The benefits derived by the United States from double government—enhanced technical expertise,
institutional memory and experience, quick-footedness, opaqueness in confronting adversaries, policy
stability, and insulation from popular political oscillation and decisional idiosyncrasy —need hardly be
recounted. Those benefits, however, have not been cost-free. The price lies in well-known risks flowing from
centralized power, unaccountability, and the short-circuiting of power equilibria. Indeed, in this regard
the Framers thought less in terms of risk than certainty. John Adams spoke for many: “The nation which will
not adopt an equilibrium of power must adopt a despotism. There is no other alternative.”617
Advantage Answers
1nc Terrorism Adv
***note when prepping file --- this block contains almost exclusively evidence to
answer the 1ac internal links. You should supplement this with link turns
(surveillance good to prevent terrorism) and uniqueness evidence about winning the
war on terror now. If you are not straight turning the advantage, you should also
supplement the block with other arguments, especially impact answers.
CVE fails for a number of reasons --- won’t check extremism
 Not implemented correctly, bureaucratic turf fights, lacks funding, doesn’t make Americans safer
Crowley, 15 (1/8/2015, Michael, “No answer for homegrown terrorism? Obama’s plan to combat
radicalization is a flop, critics say,” http://www.politico.com/story/2015/01/homegrown-terrorism-obamaadministration-114100.html, JMP)
In early 2011, White House officials realized they had a problem on their hands: the threat of homegrown
Islamic radicalism
In the two years since President Obama had taken office, several young Muslim Americans had plotted
terrorist attacks at home, including one who nearly exploded a car bomb in Times Square. White House aides
concluded that the government’s efforts to combat radicalism within America’s Muslim communities were a
disjointed mess.
Denis McDonough, a top Obama aide who is now White House chief of staff, took charge of the problem,
overseeing a strategy to prevent violent extremism. Released that summer, the plan focused on creating closer
partnerships with community leaders to help identify budding radicals and steer them to a peaceful path.
Obama, McDonough said in a speech that year, “has been focused on this since he took office. Behind closed
doors, he has insisted that his national security team make this a priority.”
But after a recent string of attacks on their fellow citizens by Islamic radicals, including Wednesday’s massacre
in Paris by a pair of French nationals, critics complain that the plan has been halfheartedly implemented,
produced bureaucratic turf fights, lacks funding, and does little to make Americans safer at a moment
when the Islamic extremist message is more prevalent than ever.
“I don’t think we have a strategy,” said House Homeland Security Committee Chairman Michael McCaul.
“We don’t see a lead agency, there’s no line item in the budget. There are no metrics to measure success. We
don’t even have a common definition for what it is.”
The complaints don’t come only from Republicans like McCaul. Even one of the key authors of the 2011
White House strategy, issued under the president’s signature, now doubts its effectiveness.
“Considering where we started, we’ve made progress. Is it really affecting things on the ground? I don’t
know,” said Quintan Wiktorowicz, a former Obama national security council aide who specializes in radical
extremism.
Their “Muslim-American cooperation” claim is wrong and offensive
Crowley, 15 (1/8/2015, Michael, “No answer for homegrown terrorism? Obama’s plan to combat
radicalization is a flop, critics say,” http://www.politico.com/story/2015/01/homegrown-terrorism-obamaadministration-114100.html, JMP)
Meanwhile, even as Obama’s strategy takes fire from national security hawks like McCaul, it has rankled some
civil liberties advocates — as well as senior law enforcement officials in Washington — who call it misguided
and even counterproductive.
A public outreach strategy is built on a “false premise,” says Mike German, a former undercover FBI agent
now with the Brennan Center for Justice, namely that “there is a monolithic Muslim community [whose
leaders] know who the bad guys are and simply aren’t telling. That’s both factually wrong and insulting to
the innocent Muslim community.”
Some Muslim leaders have in fact complained about Obama’s strategy, which was careful not to single out
any particular religion but has focused on Muslim communities in practice. Homeland Security Secretary Jeh
Johnson has called building that trust “a personal priority,” and has held closed-door meetings with American
Muslim leaders.
Officials say that several would-be domestic terrorists have been identified thanks to tips from within their
communities, and that better trust between law enforcement and Muslim leaders will encourage more such
reporting.
But German warns that a “If you see something, say something” policy can be counter-productive, creating
false alarms and deluging law enforcement officials with false leads.
German noted that, in an April 2014 speech, Obama’s top counterterrorism advisor, Lisa Monaco, suggested
that parents be alert to “sudden personality changes in their children at home — becoming confrontational.”
“Okay, but do we want every parent with a belligerent teenager to call the FBI?” German asked. “Rather than
spending resources focusing on innocent people and communities, they should be focusing their time and
attention on people they have some factual basis to suspect of wrongdoing.”
Programs to prevent extremism will fail --- we don’t understand the causes AND
Britain proves community outreach programs create a stigma that actually reduces
cooperation
Byman, 15 --- professor in the security studies program at Georgetown University and research director of
the Center for Middle East Policy at Brookings (2/13/2015, Daniel, “Five myths about violent extremism,”
http://www.washingtonpost.com/opinions/five-myths-about-violent-extremism/2015/02/13/2dc72786b215-11e4-827f-93f454140e2b_story.html, JMP)
Citing the “tragic attacks in Ottawa, Sydney, and Paris,” the White House on Wednesday is convening a
summit on violent extremism. Its goal is admirable and ambitious: neutralizing terrorism’s root causes by
stopping people from radicalizing in the first place. Yet the causes of violent extremism are poorly
understood, and programs are often targeted at the wrong audiences. So to help the world leaders at
the summit do more good than harm, let’s dispel some of the biggest myths.
1. We understand radicalization.
The just-released National Security Strategy warns repeatedly of the danger of extremism, citing weak
governance, widespread grievances, repression and the lack of a flourishing civil society among other causes
that allow “extremism to take root.” This list suggests that we know what motivates radicalization — but
almost every social malady falls into these categories. The difficult reality is that there is no single path
toward radicalization; it varies by country, by historical period and by person.
Experts have long searched for a useful psychological profile of terrorists, without much success. The
problem, as terrorism scholar Bruce Hoffman observed many years ago, is “how disturbingly ‘normal’ most
terrorists seem.”
Nor does the answer lie in the realm of faith. Many volunteers for terrorist groups have little knowledge of
religion. Indeed, their lack of religious knowledge makes them easy prey for recruiters who don the mantle of
religious authority. The two British Muslims who bought “Islam for Dummies” before heading to Syria are
more the rule than the exception.
And describing an entire religious group as potentially dangerous isn’t especially helpful. Britain’s
Prevent program, which included efforts to promote community cohesion and fight extremist ideology,
made Muslims feel stigmatized and made it harder to gain their cooperation.
Community outreach not key to counter-terror programs AND Muslim-American
communities are already providing info
Crowley, 15 (2/18/2015, Michael, “Barack Obama’s 'extremism' language irks both sides; His carefully
selected words on ISIL have frustrated both the left and the right,”
http://www.politico.com/story/2015/02/barack-obamas-extremism-language-irks-both-sides-115304.html,
JMP) ***Note --- Hina Shamsi is director of the American Civil Liberties Union’s national security
project
Critics of community outreach programs say little data exists to demonstrate their effectiveness in
spotting terrorists. One academic guest at Wednesday’s summit admitted as much, Shamsi said.
Nor, they argue, is there reason to believe Muslim-American communities are shy about reporting would-be
radicals: A 2011 study by a University of North Carolina at Chapel Hill sociologist found that “the largest
single source of initial information [about terror plots] … involved tips from the Muslim-American
community.”
The plan won’t make CVE effective --- mistrust of government runs too deep
because of past outreach programs that doubled as surveillance policies
Crowley, 15 (2/18/2015, Michael, “Barack Obama’s 'extremism' language irks both sides; His carefully
selected words on ISIL have frustrated both the left and the right,”
http://www.politico.com/story/2015/02/barack-obamas-extremism-language-irks-both-sides-115304.html,
JMP)
Barack Obama’s summit on violent extremism has come under fire from conservatives who are bashing his
reluctance to use the words “Islam” and “Muslim” to describe the threat from terror groups like Al Qaeda
and the Islamic State in Iraq and the Levant.
But in his remarks at the event Wednesday, Obama sounded more concerned about mollifying Muslim
Americans who feel targeted by government outreach to their communities, promising not to “securitize” the
relationship. Even so, some Muslim American and civil rights leaders said much of Wednesday’s session of
the White House’s three-day Countering Violent Extremism summit — which focused on the threat from
domestic radicals — was based on flawed premises.
“Today’s summit confirmed that there are significant reasons for concern about [such] approaches and that
none of the hard questions about protection of civil rights and privacy have yet been answered,” said Hina
Shamsi, director of the American Civil Liberties Union’s national security project. Shamsi, who attended
Wednesday’s proceedings, said that while White House officials had listened to such concerns in private
meetings, they were given little airing at the summit.
With Americans joining ISIL and Al Qaeda in Syria, and after recent domestic terror attacks in Europe and
Canada, the Obama administration is on high alert for terror attacks staged from within. A plan to counter
domestic radicalism launched in 2011 under the supervision of Denis McDonough, now Obama’s chief of
staff, aimed to identify possible terrorists before they struck through education about risk factors and greater
dialogue and trust between law enforcement and local communities. On Wednesday, Obama touted pilot
programs in Boston, Los Angeles and Minneapolis-St. Paul that embody such efforts.
Many Muslim leaders protest that they are the obvious focus of the initiatives, even if they are
described in the generic, non-religious terms that annoy conservatives. And they say the difficult art of
discerning emerging terrorists from brooding social misfits is outweighed by the risk of civil liberties
violations.
“Since Sept. 11, Muslims have been targeted and profiled, and we have created this narrative that we need
to ‘watch out’ for the Muslim community,” said Jaylani Hussein, executive director of the Minnesota
chapter of the Council on Muslim-American Relations.
In his remarks on Wednesday, Obama took care to address such anxieties.
“I know some Muslim Americans have concerns about working with government, particularly law
enforcement. And their reluctance is rooted in the objection to certain practices where Muslim Americans
feel they’ve been unfairly targeted,” Obama said.
“So, in our work, we have to make sure that abuses stop, are not repeated, that we do not stigmatize entire
communities. Nobody should be profiled or put under a cloud of suspicion simply because of their faith.
Engagement with communities can’t be a cover for surveillance.”
Critics of Obama’s efforts were not satisfied.
“The idea that you’re tying outreach to terrorist activity is both offensive to the community and
specious from a counterterrorism research perspective,” said Mike German of the Brennan Center for
Justice at New York University School of Law.
The frustration extends beyond civil liberties advocates and into the Muslim-American communities the
Obama administration hopes to reach.
One of them is the Minneapolis-St. Paul area, home to a large Muslim immigrant population and the site of
one of three counter-radicalism pilot programs featured by the White House during Wednesday’s program.
CAIR’s Hussein said many Muslims there mistrust government outreach — especially after recent efforts
appeared to be doubling as a means of surveillance.
After 22 Somali-Americans left the area to join the radical Islamic group Al Shabab in Somalia from 2007 to
2009, the FBI helped the Justice Department expand a longstanding community policing effort with no
particular terrorism focus known as the Community Outreach program.
Unknown to local residents, according to a September 2014 report by the Brennan Center that drew from
government documents, that program was funded and run by FBI counterterrorism officials in Washington
collecting data on possible radicals.
The FBI revised its policies in 2010 to draw a clearer line between outreach and intelligence. “[M]embers of
the public contacted through a community outreach activity,” one internal memo noted, “generally do not
have an expectation that information about them will be maintained in an FBI file or database.”
The mistrust lingers within Muslim communities, Hussein said: “People believe that even talking about
foreign policy puts you on some kind of watch list.”
--- XT: CVE Fails
CVE won’t solve --- funding shortages discourage outreach and there is resistance
within the government to it
Crowley, 15 (1/8/2015, Michael, “No answer for homegrown terrorism? Obama’s plan to combat
radicalization is a flop, critics say,” http://www.politico.com/story/2015/01/homegrown-terrorism-obamaadministration-114100.html, JMP) ***note --- Quintan Wiktorowicz is a former Obama national
security council aide who specializes in radical extremism, and Michael McCaul is House
Homeland Security Committee Chairman
Adding to frustration among the program’s advocates, the White House announced in September that it
would host an October summit dedicated to the issue. But the event has since been postponed twice, and a
firm date still has not been set.
A senior administration official made no apology for the plan on Thursday, touting it as “a centerpiece of this
administration’s counterterrorism strategy.”
“Our CVE approach is premised on the principle that local partners, including local law enforcement and
communities, are at the forefront of preventing violent radicalization and recruitment both online and
person-to-person,” says the official.
But Wiktorowicz echoes McCaul’s concern that no federal dollars are specifically allocated to the kind of
counter-extremism programs Obama’s 2011 strategy described, which included better communication
between the government and community leaders from religious figures to Little League coaches, as well as
efforts to challenge radical interpretations of Islam.
That means departments and agencies see a zero-sum game when it comes to reaching out to Muslim
communities. A former government official says that local FBI offices often consider such outreach to be
“social work” that requires agents to be pulled off active criminal cases. And while the FBI set up a
Countering Violent Extremism Office in 2011, it has been plagued by “personnel turnover,
underfunding, and resistance from CVE skeptics in the Bureau,” Wictorowicz wrote in a June post for
the national security blog Lawfare.
Funding shortfalls will undermine the program
Schmitt, 14 (10/5/2014, Eric, “U.S. Is Trying to Counter ISIS's Efforts to Lure Alienated Young
Muslims,” Lexis, JMP)
But efforts at countering violent extremism, especially at home, ''have lagged badly behind other
counterterrorism pillars,'' said Michael Leiter, a former director of the National Counterterrorism Center. ''It
is heartening to see the administration attempt to invigorate those efforts, but it is unfortunate that it has,
despite the efforts of many, been so long in coming.''
Government supporters question whether funds will be available to sustain these programs. ''The
administration has the right framework for doing this, but long-term success will depend on sustainable
resourcing to help local government, communities and law enforcement build initiatives that can
have impact,'' said Quintan Wiktorowicz, a former senior White House aide who was one of the principal
architects of the current strategy.
That strategy here at home, called countering violent extremism, has proved much more difficult for
American officials to master than the ability of the Pentagon and spy agencies to identify, track, capture and,
if necessary, kill terrorists overseas.
--- XT: Muslim-American Cooperation Answers
Muslim leaders already cooperating to challenge ISIS recruitment
Goodstein, 15 (2/19/2015, Laurie, “U.S. Muslims Take On ISIS’ Recruiting Machine,”
http://www.nytimes.com/2015/02/20/us/muslim-leaders-in-us-seek-to-counteract-extremistrecruiters.html?_r=0, JMP)
STERLING, Va. — Imam Mohamed Magid tries to stay in regular contact with the teenager who came to
him a few months ago, at his family’s urging, to discuss how he was being wooed by online recruiters working
for the Islamic State, the extremist group in Syria and Iraq.
But the imam, a scholar bursting with charm and authority, has struggled to compete. Though he has
successfully intervened in the cases of five other young men, persuading them to abandon plans to fight
overseas, the Islamic State’s recruiting efforts have become even more disturbing, he said, and nonstop.
“The recruiters wouldn’t leave him alone,” Imam Magid said of the young man he met with recently. “They
were on social media with him at all hours, they tweet him at night, first thing in the morning. If I talk to him
for an hour, they undo him in two hours.”
President Obama on Wednesday described the fight against violent extremism as a “generational challenge”
that would require the cooperation of governments, religious leaders, educators and law enforcement. But
even before he called on more than 60 nations to join the effort, the rise of the Islamic State and the attacks
by homegrown terrorists in Paris, Ottawa, Copenhagen and Sydney, Australia, had jolted American
Muslims into action.
Muslim leaders here and elsewhere have already started organizing or expanding prevention programs and
discussions on countering violent extremism, often with assistance from law enforcement officials and trained
counter-recruiters who emphasize that the Internet’s dangers for young Muslims now go far beyond
pornography.
With the Islamic State in particular deploying savvy online appeals to adolescents alongside videos of horrific
executions, the sense of urgency has grown. Though some Muslim leaders still resist cooperating with the
government, fearing that they would be contributing to religious profiling and anti-Muslim bigotry, many
have been spurred to respond as they have come into contact with religiously ardent youths who feel
alienated by life in the West and admit that they have been vulnerable to the Islamic State’s invitation to help
build a puritanical utopia.
“The number is small, but one person who gets radicalized is one too many,” said Rizwan Jaka, a father of six
and the board chairman of the All Dulles Area Muslim Society, where Imam Magid is the spiritual leader.
“It’s a balancing act: We have to make sure our youth are not stereotyped in any way, but we’re still dealing
with the real issue of insulating them from any potential threat of radicalization.”
No uniqueness for their internal link --- moderate Muslims are speaking out now
against extremist violence
Byman, 15 --- professor in the security studies program at Georgetown University and research director of
the Center for Middle East Policy at Brookings (2/13/2015, Daniel, “Five myths about violent extremism,”
http://www.washingtonpost.com/opinions/five-myths-about-violent-extremism/2015/02/13/2dc72786-
b215-11e4-827f-93f454140e2b_story.html, JMP) ***note --- Byman is listing “myths” about violent
extremism and answering them
2. Moderate Muslims need to speak out.
Whenever an attack occurs, commentators chide moderate Muslims for not doing enough. Fox News
contributor Monica Crowley argued that Muslims “should be condemning” the Charlie Hebdo attack but said
that she hadn’t “heard any condemnation.” Bill Maher made a similar point when he claimed that “hundreds
of millions” of Muslims “applaud an attack like this.”
Impressionable young people should know that their communities reject violence, and Muslims should
indeed speak out — and they do. All the time. They condemn specific attacks such as the Charlie Hebdo
killings, and they condemn terrorism in general. As the Islamic State emerged, more than 120 Muslim
scholars from around the globe issued a point-by-point rebuttal of its religious arguments.
One problem for Sunni Islam is that it lacks a single church or spokesperson, so unlike Catholicism or the
more hierarchical Shiite Islam, it can’t condemn (or endorse) anything in a categorical way. Blogger Daniel
Haqiqatjou mockingly called for an iCondemn app that would allow Muslims to efficiently denounce acts of
terror around the globe and reassure non-Muslims as to where they stand.
Of course, we shouldn’t hold ordinary people responsible for what violent people do in their name. Catholics
should condemn the killing of an abortion doctor, but I don’t blame them for the murder if they don’t.
Cooperation now with Muslim communities --- including on the CVE program
Audi, 15 (4/20/2015, Tamara, “U.S. Muslim Community Divided Over White House Outreach Plan; Lawenforcement efforts to prevent radicalization provoke both support and suspicion,”
http://www.wsj.com/articles/u-s-muslim-community-divided-over-white-house-outreach-plan-1429555173,
JMP) *** CVE = plan called Countering Violent Extremism
Despite the criticism, government officials say many Muslim communities have embraced the program,
such as in Denver and Detroit, especially in the wake of more high-profile prosecutions of young people
from the U.S. attempting to join Islamic State.
Hennepin County Sheriff Rich Stanek, whose county includes Minneapolis, spoke about his outreach efforts
at the White House summit on CVE earlier this year. He and others from his department attend Somali
community events several nights a week. His department also hired a Somali refugee to serve as ambassador
to the Somali community. Under CVE, Mr. Stanek said he hopes to expand that outreach with more
community liaisons to the Somali community.
“We’ve built trust and that’s paid off tremendously,” Mr. Stanek said, pointing to the arrests in
Minnesota as partly the result of information provided by community members. “This is what community
outreach progarms are about.”
“People are really worried about” ISIS recruitment, said an administration official. “So if Muslim-American
groups are concerned, that’s not the government singling them out. That’s the government responding to
their needs.”
Another administration official recalled that in meetings with Muslim leaders at the White House earlier this
year, President Barack Obama said that “there have been cases in the past that made the community more
mistrustful, and said that’s why it’s so important for the community to be more involved.”
“The core of this program is building healthy and resilient communities, promoting civic participation,” said
Joumana Silyan-Saba of the Los Angeles Human Relations Commission, who worked on L.A.’s CVE. Law
enforcement has a role, she said, but the program also calls for beefing up social services for immigrant
families.
Muslim anti-terror cooperation now
Glionna, 14 (11/3/2014, John M., “U.S. Muslim leaders say FBI pressuring people to become informants,”
http://www.latimes.com/nation/la-na-muslims-fbi-20141103-story.html, JMP)
In Florida, tips from the Muslim community led to the arrest of Sami Osmakac, later convicted of planning a
terrorist attack at a Tampa-area nightclub. Osmakac was found guilty in June of attempted possession of a
weapon of mass destruction.
--- AT: Economic Development & Education Solve Extremism
Economic development and education won’t reduce terrorism
Byman, 15 --- professor in the security studies program at Georgetown University and research director of
the Center for Middle East Policy at Brookings (2/13/2015, Daniel, “Five myths about violent extremism,”
http://www.washingtonpost.com/opinions/five-myths-about-violent-extremism/2015/02/13/2dc72786b215-11e4-827f-93f454140e2b_story.html, JMP) ***note --- Byman is listing “myths” about violent
extremism and answering them
3. The best response is economic development and education.
It seems intuitive that poor people would be angry and that uneducated people would be more susceptible to
terrorist brainwashing — a view that conservatives as well as liberals have embraced. President George W.
Bush declared that it was important to fight poverty “because hope is an answer to terror.” The 9/11
Commission also called for supporting public education and economic openness.
Yet even a moment’s reflection shows the limits of this logic. Billions suffer poverty worldwide, and
discrimination and ignorance are tragically widespread, yet few among these billions commit acts of terrorism.
Religious schools in Pakistan do educate terrorists, but so do Pakistan’s public schools — and Western
universities. Doctors and engineers are well represented in the ranks of international terrorists: Ayman alZawahiri, the current leader of al-Qaeda, is a trained surgeon.
Promoting education and economic development is good in its own right — but don’t expect it to combat
terrorism.
Instead, we should think small, in part because in the West the problem involves small numbers of potential
terrorists: thousands, not millions. The focus should be on high-risk communities, both Muslim and nonMuslim. Prisons, for example, are breeders of terrorists, and ensuring that radicals do not dominate religious
instruction behind bars and that there are programs (and intelligence agents) in place to stop terrorist
recruitment is vital.
Particularly important is targeting what terrorism expert William McCants calls “law-abiding supporters” —
those who embrace jihadist ideas on social media or are otherwise clearly at risk of joining a terrorist group,
but have not yet broken the law. Using community interventions and other means to move these people off
the path of violence will prevent the stark choice of jail or Syria, and give family members of potential recruits
a reason to seek out government help.
--- 1nc Defense – No Impact
ISIS not plotting attacks against the West --- surveillance will prevent fighters
returning home from carrying out attacks
Byman, 15 --- professor in the security studies program at Georgetown University and research director of
the Center for Middle East Policy at Brookings (2/13/2015, Daniel, “Five myths about violent extremism,”
http://www.washingtonpost.com/opinions/five-myths-about-violent-extremism/2015/02/13/2dc72786b215-11e4-827f-93f454140e2b_story.html, JMP) ***note --- Byman is listing “myths” about violent
extremism and answering them
4. The fighting in Iraq and Syria will spawn terrorism in the West.
The flow of foreign fighters to Iraq and Syria has understandably alarmed security officials around the world.
FBI Director James Comey expressed the views of many when he warned in May 2014 that “there’s going to
be a diaspora out of Syria at some point, and we are determined not to let lines be drawn from Syria today to
a future 9/11.”
But officials raised similar fears about foreign fighters involved in earlier conflicts, especially after the 2003
U.S. invasion of Iraq, and those conflicts did not produce a surge in terrorism in Europe or the United States.
Many of the most dangerous foreign fighters die on the battlefield, blowing themselves up in suicide attacks
or perishing in firefights. Others opt to continue fighting in the region. And those who return home are
likely to be under the surveillance of state security services, inhibiting their ability to carry out
attacks.
So far the Islamic State’s agenda is first and foremost local and regional — killing Alawites and Shiites,
toppling the governments in Iraq and Syria, and so on — not plotting attacks against the West. There
remains a real threat, especially from “lone wolf” attacks, as the cachet of the Islamic State inspires Muslims
around the world. But such attacks are unlikely to be on the scale of 9/11 or carried out in a sustained
way.
1nc Islamophobia / Discrimination Adv
***Note when prepping file --- this particular evidence is referencing an article by
Michael Greenwald (https://firstlook.org/theintercept/2014/07/09/undersurveillance/) that claimed Muslim American Leaders were being spied on because
of their race, religion, and political views.
Their internal link is nearly impossible to prove --- built in checks prevent worst
forms of discrimination
Harris, 14 --- senior staff writer at Foreign Policy, covering intelligence and cyber security (7/9/2014,
Shane, “The FBI’s Dirty Little Secret; The NSA wasn't the only one snooping on ordinary Americans,”
http://foreignpolicy.com/2014/07/09/the-fbis-dirty-little-secret/, JMP) ***Mike German is a former FBI
agent
If the racial and religious profiling allegations prove true, the FBI would not only have broken the law, but it
would be guilty of the worst intelligence abuses since the days of COINTELPRO, the covert and occasionally
illegal spying programs that targeted American political activists, Vietnam War protesters, civil rights leaders,
and even some U.S. government officials for their political associations and views. The ensuing scandal gave
birth to the system of privacy laws that govern spying on Americans today.
But the article doesn’t provide that evidence. The spreadsheet came from the seemingly endless trove of
classified government documents that Snowden, a former NSA contractor, has provided to reporters,
including Greenwald. It apparently doesn’t include the individual applications for warrants that Justice
Department attorneys may have submitted to the Foreign Intelligence Surveillance Court before
collecting the men’s emails. "It is unclear whether the government obtained any legal permission to monitor
the Americans on the list," wrote Greenwald and his co-author, Murtaza Hussain. And given that any
government justification for spying is presumably classified, "it is impossible to know why their emails were
monitored, or the extent of the surveillance," they wrote.
And there’s the rub. Absent the underlying presentations that FBI agents and Justice Department lawyers
made to the court or to senior U.S. officials, it’s impossible to know what evidence the government
believed justified reading the emails of five U.S. citizens. That doesn’t diminish the significance of the
story in one respect: It’s practically unheard of for a target of intelligence surveillance to be publicly identified.
Usually, the targets themselves never find out. But without clear evidence that the men were spied on because
they’re of Muslim heritage, because they spoke out against government counterterrorism policies, or even
because they represented individuals or groups accused of terrorism, as one lawyer did, the tale of the FBI
spying is unlikely to provoke outrage on Capitol Hill or lead to any significant changes in U.S. surveillance
law.
To bring more transparency to a historically secretive process, Congress is considering a bill that would
require the intelligence surveillance court to hear challenges to the government’s warrant requests from an
adversarial attorney, one appointed by the court and allowed to examine classified information. The Intercept
story could give ammunition to the backers of that proposal. The story underscores how opaque the court
process is to most Americans and even to lawmakers, German said. "There are some issues about the candor
involved in these interactions between the government and the court," he added.
Government lawyers present their case, based largely off information collected by the FBI or the NSA. But a
warrant application, which can number from 50 to 100 pages of material, is never made public, so it’s
impossible to publicly evaluate the merits of the government’s argument. That has always been true, however,
and is arguably essential to preserve the secrecy of covert intelligence operations. The system also has a
significant check, defenders of the process point out: FBI agents and federal prosecutors can go to jail for
misrepresenting facts to the court.
Supporters of the FBI saw not only an absence of evidence of illegal spying in the Intercept story, but said it
was highly unlikely that the government would have based its suspicions of terrorist ties solely on the
targets’ public speech or associations. Surveillance court judges, they said, would never approve a
warrant based on activities protected by the First Amendment.
The Justice Department and the Office of the Director of National Intelligence were quick to categorically
deny the central allegations of the monitored men. "It is entirely false that U.S. intelligence agencies conduct
electronic surveillance of political, religious or activist figures solely because they disagree with public policies
or criticize the government, or for exercising constitutional rights," the agencies said in a joint statement.
Without acknowledging that the FBI collected the men’s emails or whether a court approved the spying, the
statement noted that the government, except for limited cases like emergencies, must obtain a court order "to
target any U.S. citizen or lawful permanent resident for electronic surveillance." And that permission
only comes following a showing of "probable cause, based on specific facts …
that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign
power," the statement said.
The former senior intelligence official said it would be illegal to monitor any of the five men simply because
of their jobs or political affiliations. "Someone might be the head of a Muslim organization. But that cannot
be the basis for suspicion" used to obtain a surveillance warrant, the former official said. "You have to make
the case. You have to have probable cause. It can’t be a fishing expedition."
Stewart Baker, who was the NSA’s general counsel in the early 1990s, echoed that prohibition and added that
the mere fact of someone’s profession isn’t proof that he was unfairly or illegally targeted. "Just because
someone is a senior official at the Council on American-Islamic Relations doesn’t answer the question of
whether there’s probable cause" to suspect him of terrorism or espionage, Baker said. "But it’s not proof that
he must be a victim of a witch hunt."
Ultimately, the FBI may not have to offer any public evidence of why it targeted the five men. Lawmakers on
Wednesday showed no immediate signs that they were eager to hold hearings or grill the bureau and the
Justice Department on the standards it uses in presenting evidence to the surveillance court — in this case or
any others.
Rep. Michael Rogers, the chairman of the House Intelligence Committee and a former FBI agent, questioned
how one spreadsheet showing a list of email addresses could lead to any definitive answers about FBI spying.
"They’re basing conclusions on a slide," Rogers said in an interview.
Recent court ruling will increase FBI transparency and accountability
ACLU, 15 (3/26/15, “FBI Ordered To Disclose Surveillance Tactics On Muslim Communities; As the FBI
has expanded its activities to include generalized monitoring and surveillance, unconnected to any suspected
criminal activity, it is critical that records related to those broad surveillance programs be available for public
scrutiny,” http://www.mintpressnews.com/fbi-ordered-to-disclose-surveillance-tactics-on-muslimcommunities/203726/, JMP)
Today, a federal district court in San Francisco issued an important ruling for government transparency and
accountability. Judge Richard Seeborg disallowed the FBI’s attempt to use a “law enforcement exemption” in
the Freedom of Information Act to shield from public disclosure details of the agency’s surveillance
programs.
The case originated in 2010, when—concerned about new FBI initiatives like “domain management” and
“threat assessments” that do not require a criminal predicate, as well as intense and sometimes frightening
efforts to recruit Muslim community members to become “informants”—the ACLU of Northern California,
Asian Americans Advancing Justice – Asian Law Caucus and the San Francisco Bay Guardian filed a
Freedom of Information Act request for records relating to FBI surveillance of Northern California’s Arab,
Middle Eastern, Muslim and South Asian (“AMEMSA”) communities. Then, with the help of Morrison &
Foerster, we filed suit to force release of the records and received over 50,000 pages of documents, many of
which revealed troubling practices (see below).
But many of those documents were redacted in part, and many others withheld in full, based on a variety of
rationales. One asserted justification—the one that was the sole focus of the court’s opinion today—was that
the records were “complied for law enforcement purposes,” also called exemption 7. We argued that the
documents related to surveillance techniques and activities that did not involve enforcement of a particular
federal law could not be withheld based on that exemption. We highlighted records describing training to
recruit community members to be “informants” unconnected to any actual criminal investigation, documents
describing community outreach efforts, and threat assessment and domain management documents, which by
definition do not require a criminal predicate. The court agreed with us and held, “Because the FBI’s
explanation of the link between its law enforcement activities and the particular documents withheld fails to
meet the [applicable] ‘rational nexus’ standard . . ., the FBI is altogether precluded from withholding
information under [the law enforcement exemption].” The court confirmed that “‘generalized monitoring and
information-gathering’ are not sufficient justifications to apply Exemption 7.” And, in this case, because the
FBI failed to show any additional justification and failed to “tether the activities the withheld documents
concern to the enforcement of any particular law,” the court ruled that the FBI cannot rely on Exemption 7
to withhold the documents at issue.
This ruling well upholds the purpose of the Freedom of Information Act and its limited law enforcement
exemption.
Review the documents
Documents that we received through this litigation have shed considerable light on FBI’s surveillance
activities and biased approach to AMEMSA communities, for example:
The FBI used “community” outreach to collect and possibly illegally store intelligence information on
Americans’ political and religious beliefs;
The FBI engaged in problematic racial profiling and racial “mapping;”
The FBI had used Anti-Arab and Anti-Muslim counterterrorism training materials; and
The FBI was not as responsive to hate crime complaints from some Northern California AMEMSA
communities
Impact is overhyped and the only evidence is based on anecdotal claims
Tobin, 13 --- Senior Online Editor of Commentary magazine (11/26/13, Jonathan S., “FBI Stats Again
Belie Islamophobia Myth,” https://www.commentarymagazine.com/2013/11/26/fbi-stats-again-belieislamophobia-myth/, JMP)
When it comes to the question of America’s alleged Islamophobia, there is a consensus in the American
media: American Muslims have been under siege since the 9/11 attacks. Every attempt on the part of lawenforcement agencies to probe the growth of homegrown terrorism and the possible incitement to hate and
violence being conducted at some mosques, as well as by community groups influenced or controlled by
Islamists, is branded as more proof of the allege persecution of Muslims and Arabs. The fact that no proof of
discrimination or systematic violence other than anecdotal claims is ever brought forward is disregarded
so as not to impinge on the need for Americans to feel guilty about the treatment of Muslims.
But with the annual release of the FBI’s hate crime numbers, statistical proof is once again available for those
who are interested in the real answer as to which groups are subjected to the most attacks. This year’s
numbers, like those of every other previous year since they began compiling such statistics, are clear: Jews
remain the No. 1 target of hate crimes in America and no other group comes even close. Incidents involving
Muslims, who are, according to the unchallenged meme that is central to every story or broadcast about the
subject, the prime targets actually suffer only a fraction as much as Jews. Is it too much to ask reporters who
regurgitate the same tired, unproven story lines about Muslims in the coming year to take these facts into
account?
As in previous years, Jews top the figures for hate crimes, which the FBI claims are down from previous
years. Of the 1,340 incidents of anti-religious hate crimes reported, 674 or 62.4 percent were anti-Jewish in
nature. Only 130 incidents or 11.6 percent involved Muslim victims. These figures are not much different
from those assembled by the government for previous years. In virtually every year, the number of antiSemitic incidents is a multiple of those involving Muslims.
It is possible that some anti-Muslim attacks might be categorized as an ethnic issue involving Arabs rather
than a religious one. But even if we were to try and take some attacks involving national origins, again the
enormous gap between the anti-Semitic incidents and those about Muslims is not bridged. The total number
of those attacks involving that category that were not about targeting Hispanics (which make up over 60
percent of that total) was 283 and it is likely that, at best, only some of those were about Muslims or Arabs.
It is true that the Anti-Defamation League has criticized the FBI report for trumpeting the overall decline in
hate crimes. The ADL rightly points out that hate crimes reporting isn’t mandatory in parts of the country
and that the number of agencies funneling figures to the FBI actually declined from 14,500 to 1,3022 in 2012.
So it’s likely that there wasn’t any real decline in the number of hate crimes.
But there is no proof or any logical reason to believe that this flaw would lead to any underreporting of antiMuslim crimes since the percentage of such incidents in 2012 is essentially the same as in previous years.
What does this all mean?
First, as much as we should decry all hate crimes and urge those responsible to be prosecuted and harshly
punished, no matter who their victims might be, there is no epidemic of such incidents directed at any
single group.
Though Jews are the most likely victims of religious crimes, no reasonable person can claim that they are
under siege or that Jewish life is under attack in any manner in this country. Indeed, as the Pew Survey on
American Jews that I discussed in the November issue of COMMENTARY reported, less than 20 percent of
Jews have even experienced an anti-Semitic remark, let alone an attack. Anti-Semitism is on the rise around
the world and particularly in Europe, but in a nation where a tenth of the U.S. Senate and a third of the U.S.
Supreme Court are Jews, its impossible to argue that there are any genuine obstacles to Jewish achievement,
let alone a wave of Jew-hatred.
Yet, we are asked by the mainstream media to believe that a group which claims to have roughly the same
small slice of the national population as the Jews but which, at best, suffers only a fifth of the hate crimes
incidents as Jews, is actually laboring under a grievous and discriminatory wave of bias attacks. It not only
makes no sense, it is not even remotely congruent with the facts.
America isn’t perfect. Hate still exists against religious and ethnic groups, and religious minorities. Yet once
again the annual release of FBI statistics debunks the notion of a post 9-11 backlash against Muslims. But
don’t expect the liberal mainstream media to notice this or to take it into account when they resurrect the
same misleading story lines in the coming year.
Doesn’t solve --- most profiling occurs during traffic stops and pat-downs of
pedestrians by state and local agents
Hannon, 14 (12/8/2014, Elliot, “Justice Department Announces New Limits on Racial Profiling by Law
Enforcement,”
http://www.slate.com/blogs/the_slatest/2014/12/08/new_limits_on_racial_profiling_by_law_enforcement
_announced.html, JMP)
The Obama administration released a new set of guidelines on Monday aimed at curtailing the profiling of
specific groups by law enforcement. The Justice Department issued the expanded rules prohibiting profiling
on the basis of race, religion, national identity, gender, sexual orientation, and gender identity by federal law
enforcement—such as the FBI. The new policy broadens the Bush administration's 2003 policy that banned
racial and ethnic profiling, except for cases of national security. The new rules, however, “won’t apply to
screening at borders and airports, where Department of Homeland Security personnel have long given extra
scrutiny to people from certain countries,” the Wall Street Journal reports. “The policy also doesn’t apply to
local or state law enforcement, beyond those personnel assigned to federal task forces.”
Attorney General Eric Holder ordered the review to the Justice Department policy in 2009 and the new
guidlines were announced this week as local police tactics faced enormous criticism following the deaths of
Michael Brown and Eric Garner. While the newly announced guidelines extend the restrictions on the use of
profiling, “[c]oncerns about racial profiling on the part of civil-liberties groups mostly have to do with
traffic stops and pat-downs of pedestrians,” according to the Journal. “Because federal law-enforcement
agents rarely engage in those activities, barring them from profiling may have little impact on how and
why people are stopped in their everyday lives.”
Maximizing all lives is the only way to affirm equality
Cummiskey 90 – Professor of Philosophy, Bates (David, Kantian Consequentialism, Ethics 100.3, p 601-2, p 606, jstor)
We must not obscure the issue by characterizing this type of case as the sacrifice of individuals for some abstract "social entity." It
is not a question of some
persons having to bear the cost for some elusive "overall social good." Instead, the question is whether some persons must bear the
inescapable cost for the sake of other persons. Nozick, for example, argues that "to use a person in this way does not sufficiently respect and take account of the fact that he
is a separate person, that his is the only life he has."30 Why, however, is this not equally true of all those that we do not save through our failure to act? By
emphasizing solely the one who must bear the cost if we act, one fails to sufficiently respect and take account
of the many other separate persons, each with only one life, who will bear the cost of our inaction. In such a
situation, what would a conscientious Kantian agent, an agent motivated by the unconditional value of rational beings,
choose? We have a duty to promote the conditions necessary for the existence of rational beings, but both choosing to
act and choosing not to act will cost the life of a rational being. Since the basis of Kant's principle is "rational nature exists as an end-in-itself' (GMM, p. 429), the reasonable
If I sacrifice some for the sake of
other rational beings, I do not use them arbitrarily and I do not deny the unconditional value of rational beings.
Persons may have "dignity, an unconditional and incomparable value" that transcends any market value (GMM, p. 436), but, as rational beings, persons
also have a fundamental equality which dictates that some must sometimes give way for the sake of
others. The formula of the end-in-itself thus does not support the view that we may never force another to bear some cost in order to benefit others. If one focuses on
the equal value of all rational beings, then equal consideration dictates that one sacrifice some to save many. [continues] According to
Kant, the objective end of moral action is the existence of rational beings. Respect for rational beings requires that, in deciding what to do, one
give appropriate practical consideration to the unconditional value of rational beings and to the conditional value of happiness.
Since agent-centered constraints require a non-value-based rationale, the most natural interpretation of the demand that one give equal respect to
all rational beings lead to a consequentialist normative theory. We have seen that there is no sound Kantian reason for abandoning this natural
consequentialist interpretation. In particular, a consequentialist interpretation does not require sacrifices which a Kantian ought to consider unreasonable, and it does
not involve doing evil so that good may come of it. It simply requires an uncompromising commitment to the equal
value and equal claims of all rational beings and a recognition that, in the moral consideration of conduct, one's own subjective
concerns do not have overriding importance.
solution to such a dilemma involves promoting, insofar as one can, the conditions necessary for rational beings.
No risk of endless warfare
Gray 7—Director of the Centre for Strategic Studies and Professor of International Relations and Strategic Studies at the University of Reading, graduate of the
Universities of Manchester and Oxford, Founder and Senior Associate to the National Institute for Public Policy, formerly with the International Institute for Strategic
Studies and the Hudson Institute (Colin, July, “The Implications of Preemptive and Preventive War Doctrines: A
Reconsideration”, http://www.ciaonet.org/wps/ssi10561/ssi10561.pdf)
In the hands
of a paranoid or boundlessly ambitious political leader, prevention could be a policy for endless warfare. However, the
American political system, with its checks and balances, was designed explicitly for the purpose of
constraining the executive from excessive folly. Both the Vietnam and the contemporary Iraqi experiences reveal
clearly that although the conduct of war is an executive prerogative, in practice that authority is disciplined by public attitudes. Clausewitz made this
7. A policy that favors preventive warfare expresses a futile quest for absolute security. It could do so. Most controversial policies contain within them the possibility of misuse.
point superbly with his designation of the passion, the sentiments, of the people as a vital component of his trinitarian theory of war. 51 It is true to claim that power can be, and indeed is often, abused,
both personally and nationally. It is possible that a state could acquire a taste for the apparent swift decisiveness of preventive warfare and overuse the option. One might argue that the easy success
achieved against Taliban Afghanistan in 2001, provided fuel for the urge to seek a similarly rapid success against Saddam Hussein’s Iraq. In other words, the delights of military success can be habit
forming. On balance, claim seven is not persuasive, though it certainly contains a germ of truth. A country with unmatched wealth and power, unused to physical insecurity at home—notwithstanding
we ought not to endorse the
argument that the United States should eschew the preventive war option because it could lead to a futile, endless
search for absolute security. One might as well argue that the United States should adopt a defense policy and develop capabilities shaped strictly for
homeland security approached in a narrowly geographical sense. Since a president might misuse a military instrument that had a global
reach, why not deny the White House even the possibility of such misuse? In other words, constrain policy
ends by limiting policy’s military means. This argument has circulated for many decades and, it must be admitted, it does have a certain elementary logic. It is the
opinion of this enquiry, however, that the claim that a policy which includes the preventive option might lead to a search for
total security is not at all convincing. Of course, folly in high places is always possible, which is one of the many reasons why popular democracy is the superior form of
government. It would be absurd to permit the fear of a futile and dangerous quest for absolute security to preclude
prevention as a policy option. Despite its absurdity, this rhetorical charge against prevention is a stock
favorite among prevention’s critics. It should be recognized and dismissed for what it is, a debating point with
little pragmatic merit. And strategy, though not always policy, must be nothing if not pragmatic.
42 years of nuclear danger, and a high level of gun crime—is vulnerable to demands for policies that supposedly can restore security. But
--- XT: Doesn’t Solve State / Locals
Plan doesn’t solve state and local officers that commit most of the abuses --- no
modelling either
Saab, 14 --- Senior Government Relations Analyst at Deloitte (12/8/2014, Maria, “One Step Forward, Two
Steps Back: DOJ Profiling Guidance Revisions Fail to Ban Profiling,”
http://www.aaiusa.org/blog/entry/one-step-forward-two-steps-back-doj-profiling-guideline-revisions-fail-toa/, JMP)
Holder’s new guidelines arrive during a time where law enforcement activities are under intense scrutiny.
Conversations regarding immigration reform, border security, and recent events in Ferguson, MO., New
York City, and Cleveland not only emphasize the need to address such activities, but also highlight how little
these new guidelines will address the real issues at stake. For one thing, the changes will only apply to federal
law enforcement agencies, and will not extend to local and state law enforcement officers, which have
been the source of a number of related controversies. The Obama Administration hopes that the new
guidelines will serve as a possible roadmap for local police to reform their own practices regarding profiling,
but this does not ultimately guarantee change on behalf of local police forces that work closely with
particularly vulnerable communities.
Addressing only federal practices allows discriminatory surveillance to continue at
the local level
Saab, 14 --- Senior Government Relations Analyst at Deloitte (12/8/2014, Maria, “One Step Forward, Two
Steps Back: DOJ Profiling Guidance Revisions Fail to Ban Profiling,”
http://www.aaiusa.org/blog/entry/one-step-forward-two-steps-back-doj-profiling-guideline-revisions-fail-toa/, JMP)
But profiling will by and large continue to be permitted in cases where national security and border protection
are concerned. For example, federal agents are not obligated to abide by the Guidance’s prohibitions within
100-miles of national borders, which includes nearly one-third of the country and places 197.4 million people
under potentially arbitrary investigation. TSA officers will also be allowed to stop passengers at airports based
on prohibited qualities. The national security exception will also allow for the FBI to continue “mapping”
specific communities on the basis of race, religion, and ethnicity, which has been of particular concern to
Arab American and American Muslim communities nationwide. Because the guidance is confined to federal
law enforcement practices, this does nothing to address the types of discriminatory targeting and surveillance
programs that local agencies, such as the New York Police Department, conduct in contravention to
numerous constitutionally protected freedoms.
--- XT: Util
Consequentialism key---their existentialist focus is complicit with evil
Isaac 2 --- Professor of Political Science at Indiana-Bloomington, Director of the Center for the Study of Democracy and Public Life, PhD from Yale (Jeffery C.,
Dissent Magazine, Vol. 49, Iss. 2, “Ends, Means, and Politics,” p. Proquest)
As a result, the most important political questions are simply not asked. It
is assumed that U.S. military intervention is an act of
"aggression," but no consideration is given to the aggression to which intervention is a response. The status
quo ante in Afghanistan is not, as peace activists would have it, peace, but rather terrorist violence abetted by
a regime--the Taliban--that rose to power through brutality and repression. This requires us to ask a question that most "peace"
activists would prefer not to ask: What should be done to respond to the violence of a Saddam Hussein, or a Milosevic,
or a Taliban regime? What means are likely to stop violence and bring criminals to justice? Calls for diplomacy and international law are
well intended and important; they implicate a decent and civilized ethic of global order. But they are also
vague and empty, because they are not accompanied by any account of how diplomacy or international law
can work effectively to address the problem at hand. The campus left offers no such account. To do so
would require it to contemplate tragic choices in which moral goodness is of limited utility. Here what matters is not
purity of intention but the intelligent exercise of power. Power is not a dirty word or an unfortunate feature of the world. It is the core of politics. Power is the ability to
effect outcomes in the world. Politics,
in large part, involves contests over the distribution and use of power. To
accomplish anything in the political world, one must attend to the means that are necessary to bring it about.
And to develop such means is to develop, and to exercise, power. To say this is not to say that power is beyond morality. It is to say
that power is not reducible to morality. As writers such as Niccolo Machiavelli, Max Weber, Reinhold Niebuhr, and Hannah Arendt have taught, an
unyielding concern with moral goodness undercuts political responsibility. The concern may be morally laudable, reflecting a
kind of personal integrity, but it suffers from three fatal flaws: (1) It fails to see that the purity of one's intention does not ensure the
achievement of what one intends. Abjuring violence or refusing to make common cause with morally
compromised parties may seem like the right thing; but if such tactics entail impotence, then it is hard to view
them as serving any moral good beyond the clean conscience of their supporters; (2) it fails to see that in a
world of real violence and injustice, moral purity is not simply a form of powerlessness; it is often a form of
complicity in injustice. This is why, from the standpoint of politics--as opposed to religion--pacifism is always a
potentially immoral stand. In categorically repudiating violence, it refuses in principle to oppose certain
violent injustices with any effect; and (3) it fails to see that politics is as much about unintended
consequences as it is about intentions; it is the effects of action, rather than the motives of action, that is
most significant. Just as the alignment with "good" may engender impotence, it is often the pursuit of "good" that generates evil. This is the lesson of communism
in the twentieth century: it is not enough that one's goals be sincere or idealistic ; it is equally important, always, to ask about the effects of
pursuing these goals and to judge these effects in pragmatic and historically contextualized ways. Moral
absolutism inhibits this judgment. It alienates those who are not true believers. It promotes arrogance. And it
undermines political effectiveness.
Ethical policymaking requires calculation of consequences
Gvosdev 5 – Rhodes scholar, PhD from St. Antony’s College, executive editor of The National Interest (Nikolas, The Value(s) of Realism, SAIS Review 25.1,
pmuse)
the morality of a foreign policy action is judged by
its results, not by the intentions of its framers. A foreign policymaker must weigh the consequences of any course of action
and assess the resources at hand to carry out the proposed task. As Lippmann warned, Without the controlling principle that the nation must maintain its
As the name implies, realists focus on promoting policies that are achievable and sustainable. In turn,
objectives and its power in equilibrium, its purposes within its means and its means equal to its purposes, its commitments related to its resources and its resources adequate
to its commitments, it is impossible to think at all about foreign affairs.8 Commenting on this maxim, Owen Harries, founding editor of The National Interest, noted, "This
is a truth of which Americans—more apt to focus on ends rather than means when it comes to dealing with the rest of the world—need always to be reminded."9 In fact,
Morgenthau noted that "there can be no political morality without prudence."10 This virtue of prudence—which Morgenthau identified as the cornerstone of realism—
should not be confused with expediency. Rather, it takes as its starting point that it
is more moral to fulfill one's commitments than to make "empty" promises, and
to seek solutions that minimize harm and produce sustainable results. Morgenthau concluded: [End Page 18] Political realism does
not require, nor does it condone, indifference to political ideals and moral principles, but it requires indeed a sharp distinction between the desirable and the possible,
between what is desirable everywhere and at all times and what is possible under the concrete circumstances of time and place.11 This is why,
prior to the outbreak of fighting in the former Yugoslavia, U.S. and European realists urged that Bosnia be decentralized and partitioned into ethnically based cantons as a
way to head off a destructive civil war. Realists felt this would be the best course of action, especially after the country's first free and fair elections had brought nationalist
candidates to power at the expense of those calling for inter-ethnic cooperation. They had concluded—correctly, as it turned out—that the United States and Western
Europe would be unwilling to invest the blood and treasure that would be required to craft a unitary Bosnian state and give it the wherewithal to function. Indeed, at a
diplomatic conference in Lisbon in March 1992, the various factions in Bosnia had, reluctantly, endorsed the broad outlines of such a settlement. For the purveyors of
moralpolitik, this was unacceptable. After all, for this plan to work, populations on the "wrong side" of the line would have to be transferred and resettled. Such a plan
struck directly at the heart of the concept of multi-ethnicity—that different ethnic and religious groups could find a common political identity and work in common
institutions. When the United States signaled it would not accept such a settlement, the fragile consensus collapsed. The United States, of course, cannot be held responsible
for the war; this lies squarely on the shoulders of Bosnia's political leaders. Yet Washington fell victim to what Jonathan Clarke called "faux Wilsonianism," the
belief
that "high-flown words matter more than rational calculation" in formulating effective policy, which led U.S. policymakers to
dispense with the equation of "balancing commitments and resources."12 Indeed, as he notes, the Clinton administration had
criticized peace plans calling for decentralized partition in Bosnia "with lofty rhetoric without proposing a practical
alternative." The subsequent war led to the deaths of tens of thousands and left more than a million people homeless. After three years
of war, the Dayton Accords—hailed as a triumph of American diplomacy—created a complicated arrangement by which the federal union of two ethnic units, the MuslimCroat Federation, was itself federated to a Bosnian Serb republic. Today, Bosnia requires thousands of foreign troops to patrol its internal borders and billions of dollars in
foreign aid to keep its government and economy functioning. Was the aim of U.S. policymakers, academics and journalists—creating a multi-ethnic democracy in Bosnia—
not worth pursuing? No, not at all, and this is not what the argument suggests. But aspirations were not matched with capabilities. As
a result of holding out
for the "most moral" outcome and encouraging the Muslim-led government in Sarajevo to pursue maximalist aims rather than finding a
workable compromise that could have avoided bloodshed and produced more stable conditions, the peoples of Bosnia suffered
greatly. In the end, the final settlement was very close [End Page 19] to the one that realists had initially proposed—and the one that had
also been roundly condemned on moral grounds.
Survival focus inevitable, doesn’t lead to tyranny, and preconditions all other human
values
Callahan 73 (Daniel, The Tyranny of Survival, p 90-1, AG)
in order to remain human, they should not be all that responsive. Or better, they should be responsive only to
those survival arguments which manage to integrate the need for survival with a whole range of other human needs, some of
Moreover, I would want to argue that,
which would risk survival for the achievement of higher values. A beginning can be made toward this integration by noting some of the uses and abuses of the concept of survival. Historically, the uses
unless one exists, everything else is in
vain. That is why survival, the desire to live, is so potent a force, and why the right to life is such a basic part of any reasonably enlightened social, political
and legal system. Politically, particularly in time of war, national survival has been a potent force for mobilization of community effort, transcendence of self-interest, and creation of patriotic spirit.
For individuals, the desire to ensure the survival of offspring has been the source of great and selfless sacrifice and the voluntary acceptance of obligation to future generations. Within the private self, a
will to live, to survival at all costs has literally kept people alive, starving off a despair which would otherwise have
been totally destructive. That individuals, tribes, communities and nations have committed so much will, energy and intelligence to
survival has meant that they have survived, and their descendants are present to tell the tale. Nothing is so powerful a motive force, for self or society, as the threat of
have been more evident than the abuses. Among the uses are those of a fundamental perception of a biological reality principle:
annihilation, nothing so energizing as the necessity to live. Without life, all else is in vain. Leaving aside the question of whether we need more enlightened attitudes toward suicide in our society, which
we may, it is still not for nothing that suicide has been looked upon with abhorrence, whether from a religious or a psychological perspective. It seems to violate the most fundamental of human drives,
and has always required a special explanation or justification.
Extinction irreversibility justifies prioritizing survival
Callahan 73 (Daniel, The Tyranny of Survival, p 106-7)
At what point in the deterioration should survival become a priority? Observe that I said a priority; it should never become the priority if that means the sacrifice
of all other values. But there are surely conditions under which it could become a priority, and a very high one. The most important of those conditions would be the existence of
evidence that irreversibility was beginning to set in, making it increasingly impossible to return to the original conditions.
--- AT: No Value to Life
“No value to life” doesn’t outweigh---prioritize existence because value is subjective
and could improve in the future
Torbjörn Tännsjö 11, the Kristian Claëson Professor of Practical Philosophy at Stockholm University,
2011, “Shalt Thou Sometimes Murder? On the Ethics of Killing,” online: http://people.su.se/~jolso/HStexter/shaltthou.pdf
I suppose it is correct to say that, if
Schopenhauer is right, if life is never worth living, then according to utilitarianism
we should all commit suicide and put an end to humanity. But this does not mean that, each of us should
commit suicide. I commented on this in chapter two when I presented the idea that utilitarianism should be applied, not only to
individual actions, but to collective actions as well.¶ It is a well-known fact that people rarely commit suicide. Some even claim that no one who
is mentally sound commits suicide. Could that be taken as evidence for the claim that people live lives worth living? That would be rash. Many people
are not utilitarians. They may avoid suicide because they believe that it is morally wrong to kill oneself. It
is also a possibility that, even if
people lead lives not worth living , they believe they do . And even if some may believe that their lives, up to
now, have not been worth living, their future lives will be better . They may be mistaken about this. They may hold false
expectations about the future.¶ From the point of view of evolutionary biology, it is natural to assume that people should rarely commit suicide. If we
set old age to one side, it has poor survival value (of one’s genes) to kill oneself. So it should be expected that it is difficult for ordinary people to kill
themselves. But then theories about cognitive dissonance, known from psychology, should warn us that we may come to believe that we live better
lives than we do.¶ My strong belief is that most of us live lives worth living. However, I do believe that our lives are close to the
point where they stop being worth living. But then it is at least not very far-fetched to think that they may be worth not living, after all. My assessment
may be too optimistic.¶ Let us just for
the sake of the argument assume that our lives are not worth living, and let us
accept that, if this is so, we should all kill ourselves. As I noted above, this does not answer the question what we
should do, each one of us . My conjecture is that we should not commit suicide. The explanation is simple. If I kill myself,
many people will suffer. Here is a rough explanation of how this will happen: ¶ ... suicide “survivors” confront a complex array of feelings.
Various forms of guilt are quite common, such as that arising from (a) the belief that one contributed to the suicidal person's anguish, or (b) the failure
to recognize that anguish, or (c) the inability to prevent the suicidal act itself. Suicide also leads
to rage, loneliness, and awareness of
vulnerability in those left behind. Indeed, the sense that suicide is an essentially selfish act dominates many popular perceptions of suicide.
¶ The fact that all our lives lack meaning , if they do, does not mean that others will follow my example. They will
go on with their lives and their false expectations — at least for a while devastated because of my suicide. But then I have an obligation, for their sake,
to go on with my life. It is highly likely that, by committing suicide, I create more suffering (in their lives) than I avoid (in my life).
Disad Links
Politics DA Links
The plan will be contentious --- Congress has consistently demonstrated an antiMuslim attitude
Haqiqatjou, 15 (1/22/2015, Daniel, “Congress Doesn’t Applaud Muslim Tolerance – Are We
Surprised?” http://muslimmatters.org/2015/01/22/congress-doesnt-applaud-muslim-tolerance-are-wesurprised/, JMP)
Trust me, Congress. The feeling is mutual.
By now, we have all seen it. During the State of the Union, President Obama called for a rejection of
offensive Muslim stereotypes. Instead of applauding approval, the crowd went dead silent. As far as
we can tell, Congress and the other government officials who were in attendance are perfectly fine with
offensively stereotyping Muslims.
My question is, are we really surprised?
Let's take a look at a brief list of facts in order to gauge how Muslim-friendly Congress and the US
government at large have been over the years.
1. This is the same Congress and the same President that have initiated and continued the “War on Terror,”
backing military operations in seven different Muslim nations over the past fourteen years: Afghanistan, Iraq,
Libya, Somalia, Yemen, Syria, North West Pakistan. In the few Muslim nations that have not been subjected
to direct assault, the US has supported brutal dictators (Egypt, the Gulf) or perpetuated punitive sanctions
(Iran, pre-invasion Iraq). The loss of innocent life in these parts of the Muslim world is beyond tallying. To
add insult to injury, the instability caused by the “War on Terror” has directly led to the rise of brutal
warlords and radical groups, like ISIS, which predominantly kill Muslims.
2. Did you know that as of 2014, there are eight US states that ban Shariah law? Did you know that 34 states
have considered banning Shariah just in the past five years?
3. Some Muslims have praised President Obama for speaking against offensive Muslim stereotypes in the
State of the Union address. But, let's not overlook the fact that right before the Muslim stereotypes line,
Obama said, “As Americans, we respect human dignity, even when we're threatened, which is why I've
prohibited torture and worked to make sure our use of new technology like drones is properly constrained.”
Is it not interesting that he references two programs that have disproportionately affected Muslims? Many will
argue that Obama's drone program is anything but “constrained,” considering the hundreds of civilians killed
to date, as well as the brutal tactic of “double tapping” strike targets. Also, it is inaccurate for Obama to claim
that he has “prohibited torture.” Torture was prohibited by President Reagan in 1988 when he signed the UN
General Assembly's Conventions Against Torture. In light of the CIA Torture Report, Obama is violating
international law by not prosecuting those in the Bush Administration who authorized torture.
4. On that point, let's not forget the recent CIA Torture Report and how the victims of CIA torture were,
again, predominantly Muslim, many of whom were not even suspected of any wrongdoing. So far, neither
President Obama nor Congress has felt the need to prosecute the perpetrators of these crimes against
humanity. Again, failing to prosecute torturers is itself a crime according to international law.
5. Also mentioned in the State of the Union was good ol' Guantanamo. Obama promised to shut it down.
We can only wonder if this latest promise will be as hollow as the promise he made as a presidential candidate
in 2008. Be that as it may, the fact remains that the majority of Gitmo prisoners are Muslims who have not
been charged with any crime, yet have had to endure torture and all manner of barbarity.
6. The 2011 Congressional hearing on “domestic Islamic terrorism” is a great example of how many key
members of Congress have viewed the American Muslim community and Muslims at large. The House
Committee on Homeland Security, which orchestrated this farce, was accused of “Muslim McCarthyism” by
implying that all Muslims are loosely responsible for terrorism. Rep. Peter King went so far as to question the
legitimacy of CAIR, i.e., the most important legal advocacy group the American Muslim community has. Of
course, we were all left wondering, what is the grave “domestic Islamic terrorism” threat Congress is so
concerned about, since the vast majority of domestic terrorism in the US is not conducted by Muslims. The
FBI itself reports that, between 1980 and 2005, there were more Jewish acts of terrorism within the United
States than Muslim (7% vs. 6%). In light of this fact and others, multiple university studies have concluded
that the threat of American Muslim terrorism is greatly exaggerated. Hmm, who could possibly benefit from
this overt stigmatization of Muslims?
7. How about NYPD illegal surveillance of Muslims? Just your everyday racial profiling run amok, putting
hundreds of thousands of innocent American Muslims under the pressure of unfounded suspicion. But what
did the federal government have to say? Well, John Brennan, Obama's Homeland Security adviser at the time
praised the program. Obama himself praised Ray Kelly, the NYPD commissioner who oversaw Muslim
surveillance, and in 2013 strongly considered appointing him as Secretary of Homeland Security.
8. Another major federal agency is the FBI. Perhaps you have heard of the FBI's entrapment program, known
best for foiling terror plots of its own making. According to a report published by Project SALAM, nearly
95% of terror related arrests post 9/11 have been the result of the FBI foiling terror plots of its own making.
As the report describes: “The government uses agents provocateur to target individuals who express dissident
ideologies and then provides those provocateurs with fake (harmless) missiles, bombs, guns, money,
encouragement, friendship, and the technical and strategic planning necessary to see if the targeted individual
can be manipulated into planning violent or criminal action.” I highly encourage people to peruse all the
different cases of Muslim entrapment over the years as the details are often unbelievable. Some have even
reported on how the FBI and other agencies use “outreach” programs to spy on the Muslim community. As
far as the Obama Administration is concerned, Attorney General Eric Holder of the DOJ has expressed
support for the FBI's tactics with respect to the Muslim community.
9. It hardly requires mention, but surely we cannot overlook President Obama demanding, in an address to
the UN last year, that Muslims denounce ISIS and radical Islamic ideologies. As myself and many other
commentators have repeatedly explained, requiring Muslims as a collective to apologize for and denounce the
crimes of a deranged few to which we have no connection is nothing other than racist stereotyping. Even
comedian Aziz Ansari made this simple point on Twitter, but apparently our President and much of Congress
are too dense to understand this. If Obama wants us to reject offensive Muslim stereotypes, he should start
with himself.
10. Remember the “Ground Zero Mosque”? How many members of Congress actively condemned it back in
2010? Quite a few, actually. Obama did make some tepid comments in support of Park51 initially but quickly
backtracked and stated: “I was not commenting and I will not comment on the wisdom of making the
decision to put a mosque there.” So much for offensive Muslim stereotypes.
11. So, we have covered the CIA, the FBI, the DOJ, the Department of Homeland Security. How about the
NSA? Do they have a disproportionate interest in Muslims? Why, yes indeed! As the Snowden leaks detail,
the NSA has been datamining the communications of Muslim leaders and activists for years.
12. We would be remiss not to mention the Israeli Lobby and the US government's undying support for
every crime and act of genocide that that nation commits, despite the fact that Israel has more spies in the US
than any other country. The fact that Palestinians are majority Muslim I'm sure has no impact on influencing
how congressmen view Muslims in general, given that those same congressmen grovel at the feet of their
Zionist handlers. Let's be real.
Anyway, this brief list merely scratches the surface. An entire five volume set could be written cataloging the
depth and breadth of US policy disproportionately and negatively impacting Muslims in America and abroad,
causing all manner of death, destruction, detention, bullying, and violence in the past 14 years alone. And it is
no secret that Islamophobia and riling people up with anti-Muslim fervor is quite lucrative for everyone
involved.
So, no, it is not a surprise that Congress withheld applause for Muslims. At least they were consistent, unlike
President Obama, who, as always, waxes poetic about tolerance, acceptance, mutual understanding, etc., while
his policies, in effect if not intent, are diametrically opposed to those ideals.
--- XT: Politics Links
The plan will be contentious --- there is political division over the issue
Mint Press, 13 (4/23/2013, Mint Press News Desk, “Ellison Fights Back Against Calls For Police
Surveillance Of Muslim American Communities,” http://www.mintpressnews.com/ellison-fights-backagainst-calls-for-police-surveillance-of-muslim-american-communities/61575/, JMP)
“This individual came to the attention of the FBI because of things he said and things he did. That’s
appropriate. What should not be cause for alarm is somebody’s status as a member of a particular religious
faith or how devout they may happen to be,” Congressman Keith Ellison (D-Minn.) said in an interview this
week with Tamron Hall on MSNBC.
Ellison was speaking about the recent arrest of Dzhokhar Tsarnaev, the sole surviving Boston bombing
suspect who is being held in police custody and charged with crimes that could carry the death penalty if he is
convicted. Ellison, one of only two Muslims elected to the U.S. Congress, has tried to stave off the onslaught
of accusations against Muslims living in the U.S., pitting himself against other elected officials calling for
broad FBI surveillance of Muslim communities.
“Ninety-nine percent of the Muslims are outstanding Americans,” said Rep. Peter King (R-N.Y.) on “Fox
News Sunday.” “The fact is, that’s where the threat is coming from. When the FBI was after the Westies, they
went to the Irish community. When they were after the mafia, they went to the Italian community. If you
know a certain threat is coming from a certain community, that’s where you have to look.”
The FBI and U.S. police departments began broad surveillance of mosques and Muslim communities in the
aftermath of the Sept. 11, 2001 attacks, a method some believe has unfairly targeted a group of people for
their religious affiliation and physical appearance.
“All Americans should be concerned,” said New York City Democratic Councilmember Daniel Dromm after
the release of “Mapping Muslims,” a report issued by the Muslim American Civil Liberties Coalition, the
Asian American Legal Defense and Education Fund and the Creating Law Enforcement Accountability &
Responsibility (CLEAR) project last month. “The policing that’s going on now encourages mistrust or
distrust within the Muslim community. It is not good policing.”
These rights groups claim that the NYPD has targeted Muslim communities around the city. The report
alleges that since 2001, the NYPD “has mapped, monitored and analyzed American Muslim daily life
throughout New York City, and even its surrounding states.”
In the present case, some elected officials are calling for similar surveillance techniques for Muslim
communities in the wake of the bombings and shootings that killed four and injured 170.
Ellison has led the pushback in Congress against expanding surveillance based upon religion or physical
appearance, saying, “In all these cases, where you see acts of radicalized individuals using violence, they may
have a religious affiliation, but oftentimes, when they give reasons for why they did what they did, it is
politics.” He added, “The FBI did not go after all Italians or all Irish people. No one ever said let’s surveil a
whole ethnic community. They went after people who were criminals and who were exhibiting criminal
behavior … To say that because of the Westies that every Irish person was under suspect; Everyone in
America knows that is ridiculous. But still, [King] wants to cast a wide net with regard to Muslims.”
The plan will be contentious --- there is congressional division on the issue
Gentilviso, 13 (4/28/2013, Chris, “Peter King, Keith Ellison Spar Over Muslim Community Views
(VIDEO),” http://www.huffingtonpost.com/2013/04/28/peter-king-keith-ellison_n_3175292.html, JMP)
Reps. Peter King (R-N.Y.) and Keith Ellison (D-Minn.) clashed on Sunday over the idea of using
surveillance in America's Muslim communities.
One week after stressing the need to go after known threats from "a certain community," King reinforced
that notion, specifically questioning the FBI's decision to not speak to Boston police about now deceased
bombing suspect Tamerlan Tsarnaev.
Ellison recognized the need for public safety. But he sees it as "ineffective law enforcement to go after a
particular community."
“Once you start saying we’re going to dragnet or surveil a community, what you do is you ignore dangerous
threats that are not in that community and you go after people who don’t have anything to do with it,"
Ellison said.
Ellison pointed to events in the past and present, notably the recent string of ricin letters in Washington and
historic example of Japanese Americans in World War II. King scoffed at that latter comparison, saying that
"no one is talking about internment."
Terrorism DA Links
New profiling rules preserves FBI flexibility to fight terrorism --- broader restrictions
will wreck mission effectiveness
Apuzzo, 14 (4/9/2014, Matt, “Profiling Rules Said to Give F.B.I. Tactical Leeway,”
http://www.nytimes.com/2014/04/10/us/profiling-rules-said-to-give-fbi-tactical-leeway.html?_r=0, JMP)
WASHINGTON — Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice
Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed
by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open
investigations.
The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race,
but religion, national origin, gender and sexual orientation. And they increase the standards that agents must
meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map
neighborhoods, recruit informants, or look for foreign spies, according to several current and former
United States officials either involved in the policy revisions or briefed on them.
While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security
exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil
rights a central issue of his five years in office, the draft rules represent a compromise between his desire
to protect the rights of minorities and the concern of career national security officials that they would
be hindered in their efforts to combat terrorism.
The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it
will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims,
in particular, say federal agents have unfairly singled them out for investigation. The officials who described
the draft rules did so on the condition of anonymity because they were not authorized to discuss them.
Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of
racial profiling on Wednesday before the National Action Network, the civil rights group founded by the
Rev. Al Sharpton.
“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a
young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was
unwarranted,” he said.
Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a
reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s
approach to national security.
The Bush administration banned racial profiling in 2003, but that did not apply to national security
investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or
religion and nationality the “sole factor” for its investigative decisions.
Civil rights groups see that as a loophole that allows the government to collect information about Muslims
without evidence of wrongdoing.
Intelligence officials see it as an essential tool. They say, for example, that an F.B.I. agent investigating
the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population
and, if so, where it is.
As written, the new rules are unlikely to satisfy civil rights groups and some of the administration’s liberal
allies in Congress. Senator Richard J. Durbin, Democrat of Illinois, has said the existing rules “are a license to
profile.”
The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of
Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security
investigations.
Farhana Khera, the president of Muslim Advocates, said expanding the rules to cover nationality and religion
would be a significant step forward. But she opposed any rule that allowed the F.B.I. to continue what it calls
“domain mapping” — using census data, public records and law enforcement data to build maps of ethnic
communities. Agents use this data to help assess threats and locate informants.
“It would certainly mean we have work to do,” said Ms. Khera, who was one of several rights advocates who
met with Mr. Holder about the profiling rules last week. “We want an effective ban on all forms of profiling.”
Before federal agents could consider religion or other factors in their investigations under the new rules, they
would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be
averted,” according to an official who has seen the draft.
That would not prevent agents from considering religion or nationality, but officials said the goal was to
establish clear rules that made doing so rare.
Department officials were prepared to announce the new rules soon and had told Congress to expect them
imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of
racial profiling that includes the Department of Homeland Security, officials said.
That is significant because the Bush-era racial profiling rules also contained an exception for border
investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that
caveat as Muslims are to the exception for national security investigations.
Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes
border agents can conduct their investigations without profiling and by following the same rules as the Justice
Department, one law enforcement official said.
It is not clear how long this broader review will take, but for now it has delayed release of the Justice
Department rules.
Relations between the F.B.I. and Muslims have at times been strained since the weeks after 9/11, when
agents arrested dozens of Muslim men who had no ties to terrorism.
Since then, the F.B.I. has adopted new policies and invested heavily to explain them to Muslim populations.
Senior agents speak at mosques and meet regularly with imams and leaders of Muslim nonprofit groups, but
suspicions remain.
Internal F.B.I. documents revealed that agents used their relationship-building visits at mosques as a way to
gather intelligence. Leaked training materials, which the F.B.I. quickly disavowed, described the Prophet
Muhammad as a cult leader and warned that mainstream Muslims shared the same “strategic themes” as
terrorists.
The draft rules would establish a program to track profiling complaints. The current process is less organized,
making it difficult to track patterns in complaints or how they are resolved.
Surveillance of Muslim communities key to prevent terrorism
Lengell, 15 (1/7/2015, Sean, “Peter King: Surveillance of Muslim community vital for national security,”
http://www.washingtonexaminer.com/peter-king-surveillance-of-muslim-community-vital-for-nationalsecurity/article/2558311, JMP)
Rep. Peter King said Wednesday’s attack on a Paris newspaper that killed a dozen people highlights the need
for enhanced police surveillance in Muslim communities to help combat terrorism.
“It shows us that we should put political correctness aside and realize that it is important to have police in the
communities to be using sources, to be using informers,” the conservative New York Republican told Fox
News on Wednesday.
“Let's face it. The threat is coming from — for the most part, it's coming out of the Muslim community. It's a
small percentage, but that's where it's coming from.”
King said law enforcement spying of certain ethnic communities is nothing new, saying that police for
decades have used such tactics to combat the Italian-American Mafia and the Westies, a gang that sprang
from New York City's Irish-American community in the 1960s.
“We have to be able to go in there and find out what's happening so we can be tipped off and not stand back
and treat all communities as if they're the same,” he said. "If it's Islamist terrorism, we have to have more
surveillance in those communities.”
The Associated Press reported that three masked gunmen shouting "Allahu akbar!" stormed the Paris offices
of the satirical weekly newspaper Charlie Hebdo, killing 12 people, including its editor, before escaping in a
car. The publication's caricatures of the Prophet Muhammad have frequently drawn condemnation from
Muslims.
King said that while it’s uncertain if enhanced surveillance could have stopped the Paris shooting, “it shows
the absolute necessity” of “on-the-ground intelligence.
“You can't provide security for every soft target in a major city. But if you have surveillance, if you're in the
community, if you have informers, that shows how essential this [is], like the NYPD's been doing over the
years,” he said.
Terrorism DA Link Uniqueness
Recent DOJ guidelines won’t result in any changes to FBI practices and still permits
surveillance in critical areas
Phelps, 14 (12/9/2014, Timothy M., “Comey says new profiling guidelines will have no effect on the FBI,”
http://www.latimes.com/nation/la-na-fbi-comey-profiling-20141209-story.html, JMP)
The new Justice Department guidelines governing profiling by federal law enforcement officers will have no
effect on FBI practices, its director, James B. Comey, said Tuesday.
On Monday, Comey’s boss, Atty. Gen. Eric H. Holder Jr., said the new guidelines were “a major and
important step forward to ensure effective policing by federal law enforcement officials.”
But at a press briefing Tuesday, Comey said that the FBI, the lead federal law enforcement agency, is already
in compliance with the new guidelines and strongly asserted that no changes were required.
The guidelines “don’t have any effect on the FBI,” he said
Asked whether the new guidance would change anything to FBI does now, Comey said, “No, nothing. It
doesn’t require any change to our policies or procedures.”
He said the FBI field manual for agents would not be changed because it was already in compliance with the
guidelines, which expand restrictions on racial and ethnic profiling to cover religion, national origin, sexual
orientation and gender identity.
He defended the FBI practice of “mapping” communities to identify neighborhoods by race, religion or
national origin. Civil rights leaders were critical Monday of the failure of the Justice Department to curtail the
practice.
“We need to be able to understand the communities we serve and protect,” Comey said. “When there is a
threat from outside the country, it makes sense to know who inside the country might be able to help law
enforcement.”
“It is about knowing the neighborhoods: what’s it like, where’s the industry, where are the businesses, are
there particular groups of folks who live in a particular area?”
Despite shortcomings, recent review demonstrates FBI’s effectiveness because of
unfettered surveillance
Ackerman, American national security reporter and blogger, national security editor for the Guardian,
and Yuhas, 15 (3/25/2015, Spencer & Alan, The Guardian, “FBI told its cyber surveillance programs
have actually not gone far enough; In-house 9/11 Review Commission calls for further expansion of
informant and cyber surveillance networks but largely ignores domestic intelligence gathering,” Lexis, JMP)
An in-house review of the FBI has found the agency failing to go far enough in its expansion of physical and
cyber surveillance programs, urging the bureau to recruit deeper networks of informants and bring its
technological abilities up to pace with other intelligence agencies.
While billed as a damning critique of the FBI, the in-house assessment known as the 9/11 Review
Commission primarily attacks the bureau for not moving fast enough to become a domestic intelligence
agency, precisely the direction in which the FBI has pivoted since the 2001 terror attacks.
The majority of the panel's findings recommend bureaucratic changes - such as expanded training for FBI
intelligence analysts or expanding cooperation with local and state law enforcement through the agency's Joint
Terrorism Task Force - or otherwise urge Director James Comey onward in the long-set course he and
predecessor Robert Mueller have set, such as bolstering the FBI's "human intelligence" (Humint) network of
informants.
In particular, the report found that the agency fails to support analysts and linguists who interpret intelligence
behind the scenes. The "imbalance" between support for field agents and analysts "needs urgently to be
addressed to meet growing and increasingly complex national security threats, from adaptive and increasingly
tech-savvy terrorists, more brazen computer hackers, and more technically capable, global cyber syndicates",
the report's authors wrote.
Yet the "Review Commission cannot say that with better JTTF collaboration, Humint or even intelligence
analysis that the FBI would have detected those plots beforehand", the panel concedes, offering only that FBI
counterterrorism "might have benefited" with an acceleration of what the agency has already been doing.
Much of the report remarked approvingly on the FBI's activities of the past decade, praising the way it
shares information with government agencies and the new rules that allow it to surveil a target
without a warrant.
"With the new and almost entirely unclassified AG Guidelines, special agents working on national security
issues could now at the assessment stage 'recruit and task sources, engage in interviews of members of the
public without a requirement to identify themselves as FBI agents and disclose the precise purpose of the
interview, and engage in physical surveillance not requiring a court order' just as special agents working on
organized crime investigations could do," the authors wrote.
Administrative Law CP
Notes
Given how well this counterplan clashes with the FBI political and religious
surveillance aff, you probably don’t need to risk competition issues by including
“propose [the plan]” in text. You can credibly say that the two mandates resolve civil
liberty concerns.
1nc Administrative Law CP
The United States federal government should propose [the plan] but require that:
 The Attorney General or FBI Director provide both notice of a decision to
amend the Attorney General's Guidelines for Domestic FBI Operations or the
Domestic Investigations and Operations Guide and written justifications for
their ultimate decisions.
 Any changes to the Guidelines regime be accompanied by a binding "Civil
Liberties Impact Statement" prepared by the Justice Department, and that the
Privacy and Civil Liberties Oversight Board be given veto power in the process
of drafting or modifying the Guidelines and their implementing regulations.
The counterplan solves the case and still preserves the FBI’s decision-making role
and expertise to prevent terrorism
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
A recent quote from former Director of National Intelligence Mike McConnell captures the sentiment of
many security policymakers. In his view, the American people have "very little appreciation for the threat,"
and "special interests, particularly civil liberty groups with privacy concerns," prevent the intelligence
community from doing its job as well as it otherwise could. n153 This view of the need to consider privacy
concerns as a [*41] hurdle to effective policy, rather than as an integral part of policymaking, illustrates the
tension that sometimes arises between the FBI's primary mission and its responsibility to protect civil
liberties. As others have pointed out, the FBI will value success in carrying out its primary mission and will
favor terrorism prevention "over competing concerns such as the protection of civil liberties." n154
Pointing out the elevation of the FBI's anti-terrorism mission over other considerations is not meant to be an
indictment. That mission is a vital one that should be pursued vigorously. And with over a century of
experience conducting criminal and security investigations, the FBI is the agency in the best
position to determine the most effective means of pursuing that mission. This includes decisions
regarding which investigative methods will be most successful in countering threats to the country. This
expertise should not be undervalued.
At the same time, the decision about what level of intrusiveness society is prepared to accept in pursuit of
security is not a matter of technical, investigative, or intelligence-collection expertise. Determining the
intrusiveness of an investigation justified by any particular set of circumstances necessarily involves normative
judgments implicating fundamental values. As should now be clear however, the only true constraints on the
FBI's intelligence-collection activities are the Guidelines and the DIOG. This leaves decisions regarding the
appropriate balance between the FBI's security mission and the interests on the other side of the scale in the
hands of the Attorney General. He, in turn, has delegated many of those [*42] decisions to the FBI itself.
Thus, concerns over security will have a prominent role in such decision making and other interests will be
short-changed.
III. Administrative Strategies as Governance
If the usual tools of governance fail to apply effectively to the Guidelines and the DIOG, how do we devise
mechanisms to fill this governance gap? This Part argues that we can borrow from the institutional design
principles of the administrative state to address three specific challenges presented by the Guidelines regime.
First, the absence of both doctrinal and practical limits on the FBI's intelligence collection confers expansive
discretion on the Attorney General and the FBI. Second, the lack of judicial, legislative, or public scrutiny of
FBI policy results in a deficit of both accountability and democratic legitimacy. And third, the FBI's focus on
threat prevention creates a risk that its rulemaking decisions will give insufficient attention to liberty and
privacy interests. With respect to each of these challenges, this Part identifies strategies the administrative
state employs, and uses those strategies to develop concrete suggestions to improve intelligence-collection
governance.
This examination of administrative law strategies--designed to channel discretion, increase
accountability and legitimacy, and ensure that competing priorities are afforded sufficient attention-suggests the following concrete reform proposals. First, a reason-giving framework should be implemented
that (1) requires the Attorney General to provide notice of his or her intention to modify the Guidelines; and
(2) specifies that any modifications must be justified in writing. n155 Second, to promote meaningful pluralist
input, the Attorney General should be obligated to consider as part of the Guidelines-development process
the views of stakeholders outside the intelligence community (though not necessarily outside the
government). n156 Third, in order to ensure liberty interests are not marginalized, [*43] (1) the Justice
Department should be required to prepare a statement indicating the likely impact on civil liberties of any
changes to the Guidelines, and (2) the Privacy and Civil Liberties Oversight Board should be empowered to
participate meaningfully in the Guidelines' development. n157 Before beginning the analysis that suggests
these particular reforms, however, a few preliminary points are in order.
2nc Must Read for Net Benefits & Solvency ***
CP is a distinct process that avoids our net benefits because it doesn’t require FBI to
cede any particular powers or to discontinue existing policy, BUT it solves better
because adopting the procedural framework will result in better substantive rules.
The counterplan boosts FBI transparency, consistency, fairness, and accountability
and ensures public confidence.
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP) ***Note – APA = Administrative Procedure Act
[*46] Given the appropriate political environment, there are at least three reasons to think that the
imposition of a framework like the one suggested here is not entirely implausible. As an initial matter, there is
the FBI's concern over legitimacy. The Bureau's ability to succeed in its mission requires constructive
relationships with the communities in which it operates. n168 Yet its aggressive intelligence-collection tactics-and their concentration in Muslim communities--has alienated many members of that community, raised
suspicion and distrust of the Bureau in some quarters, and undermined cooperative relationships. n169
Improved governance is thus not the only benefit that would flow from implementing APA-like procedures;
institutionalizing rulemaking procedures would also yield improvements in community relations, public
perceptions of legitimacy, and consequently, FBI effectiveness. In addition, government documents and
scholarly commentary are replete with arguments about the value of process in legitimating government
action. n170 The FBI's practice of reaching out to nongovernmental organizations in anticipation of issuing
new intelligence-collection rules indicates an awareness of the benefits of generating the support of outside
stakeholders. n171 Subjecting itself to a set of procedural rules would go far in this regard. And finally, none
of the proposals here are substantive. They do not call upon the FBI to cede any
particular powers, or to discontinue existing policy. Indeed, they acknowledge the
Attorney General's and FBI's role in generating the rules by which the FBI operates, so long as they
can show [*47] both that changes in the FBI's authority are needed and that the proposed changes are
reasonable ones. And finally, when it comes to imposing limits on government actors, broad
procedural frameworks often face less opposition than substantive policy changes. n172
A second preliminary note concerns the role of the APA. While several of the proposed reforms are inspired
by provisions of the APA, this Article does not argue that the APA's procedural rules apply to the FBI
as a matter of binding law. n173 In fact, it does not take a position with respect to whether the Guidelines
or the DIOG constitute legislative rules subject to APA requirements, or whether they represent informal
guidance documents or "rules of agency organization, procedure, or practice," which are explicitly exempt
from many of the APA's constraints. n174 Instead, the Article looks to the way the APA and other sources of
administrative law address particular concerns and argues that intelligence-collection governance would
benefit from implementing procedures inspired the animating principles behind these sources of
administrative law.
The idea of imposing a governance framework on the development of rules in the absence of a statutory
requirement to do so is not a novel one. The Office of Management and Budget (OMB)--part of the
Executive Office of the President tasked with overseeing the regulatory decisions of administrative agencies
n175--in its Final Bulletin for Agency Good Guidance Practices "establishes policies and procedures for the
development, issuance, and use of significant guidance [*48] documents." n176 These policies are designed
to increase the quality, transparency, consistency, fairness, and accountability of agency guidance
practices. n177 To that end, the Bulletin suggests that agencies engage in "procedures similar to APA noticeand-comment requirements" for some types of guidance documents in order to "increase the quality of the
guidance and provide for greater public confidence in and acceptance of the ultimate agency
judgments." n178 Similar language appears in the Department of Homeland Security's (DHS) official
guidance on preparing Privacy Impact Assessments (PIAs), n179 which all agencies--including the FBI--must
generate for any substantially revised or new Information Technology System that collects, maintains, or
disseminates personally identifiable information from or about members of the public. n180 According to the
DHS Guidance, requiring agencies to follow procedures designed to call attention to issues of legitimacy
"demonstrates to the public and to Congress" that the new systems "have consciously incorporated
privacy protections." n181 In other words, both OMB and DHS policy takes the position that
procedural constraints result in both better substantive rules and an increase in
the perceived legitimacy of those rules, even when those constraints are selfimposed rather than statutorily required.
2nc Terrorism NB
Continued congressional delegation to the FBI is necessary for counter-terrorism
effectiveness
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
The accountability gap left by the absence of judicial review will not be filled by legislative or public scrutiny.
The origin story of the original Attorney General Guidelines included a significant role for Congress. n121
Having been prompted by the Church [*35] Committee's findings of misconduct and the resulting public
outrage, the legislature was intimately involved in developing the contents of the Guidelines. n122 Congress
held a series of hearings on the issue over the course of several years, and saw its suggestions ultimately
reflected in the Levi Guidelines. n123 Given that the Guidelines were implemented, at least in part, to avoid
more stringent legislative action, n124 this is not a surprise. Surely Attorney General Levi knew that if the
rules he instituted did not appear to address Congress's concerns, they would fail to sap the momentum for
enacting a statutory charter for the FBI.
The contemporary political economy of congressional oversight in this area means that legislative oversight
will not provide any more effective a check than judicial action. Legislators' incentives weigh against
aggressive involvement. The downside risks of unsuccessful counterterrorism policies (additional attacks) are
high. n125 If those policies are developed outside of the legislative process, Congress can share (if not entirely
evade) blame. Moreover, counterterrorism policy "is a subject matter that is especially prone to
legislative delegation because it often entails hard trade-offs," which are the types of questions
Congress is least likely to address. n126 In addition to undermining legislative involvement in
counterterrorism policy formulation, existing institutional features also render [*36] congressional oversight
of domestic intelligence-collection policy ineffectual. Congress, of course, retains oversight authority over the
FBI. n127 If it wants to play a more active role in overseeing the Guidelines, it has the tools to do so. n128
After all, Congress determines whether and to what degree the FBI's intelligence-collection activities are
funded. n129 Moreover, the relevant committees of jurisdiction conduct regular oversight hearings at which
the Attorney General and FBI Director appear. n130 Legislators can ask Justice Department and FBI officials
for information about the Guidelines or the FBI's activities at any time. n131
Administrative governance balance competing missions so security is not
undermined
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
[*66] D. Reconciling Conflicting Missions
Administrative governance also has developed ways to address the challenges posed when agencies are
responsible for pursuing multiple, competing goals. The FBI must carry out its mission of preventing security
threats from manifesting while simultaneously protecting fundamental rights. The principles behind the
administrative state's tactics for reconciling conflicting missions offer ideas about how to implement
structural checks to prevent the FBI's intelligence-collection mission from overwhelming these other
important interests.
1. Juggling Mandates
Conflict among agency missions comes about when one or more statutes issue mandates to a single agency
that come into tension with one another or when government-wide mandates conflict with the primary goals
of individual agencies subject to those mandates. n251 In one example, the National Park Service must
protect the natural resources of the parks while simultaneously developing facilities for visitors. n252
Similarly, the Fish and Wildlife Service is required to manage wildlife refuges for the conservation of plants
and animals while also providing for recreation on those refuges. n253 And the National Environmental
Policy Act of 1969 (NEPA) n254 requires "all federal agencies" to minimize the environmental impacts of
their actions. n255 For an agency focused on, for example, building roads [*67] through environmentally
sensitive territory, the charge to protect the environment can be at odds with this focus.
The FBI's mandate to protect civil liberties can be viewed as a "secondary" mission--one that frequently
comes into tension with its primary mission of preventing security threats. n256 Studies show that an agency
will focus on what it considers to be its primary mission, and it will shirk on performing "secondary" or less
easily evaluated goals. n257 As a secondary mission, protection of civil liberties is, therefore, sure to be shortchanged in favor of security in the same way that environmental concerns have so often gone underaddressed in favor of development or other economically profitable activities.
2. Relieving the Tension Among Multiple Missions
Fortunately, several administrative law strategies suggest ways to ensure that the Guidelines regime
sufficiently takes into account civil liberties concerns as well as security concerns. n258 Though all of
the options discussed below are possible paths to follow, the final two approaches discussed below seem
particularly promising.
Regulatory strategies can ensures the protection of civil liberties without
undermining the FBI’s ability to prevent terrorism
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
HIGHLIGHT: Abstract
Scholars have long recognized that a Federal Bureau of Investigation wielding robust domestic intelligencecollection powers poses a threat to civil liberties. Yet the FBI's post-9/11 mandate to prevent terrorist attacks
(not merely investigate completed attacks) demands that the agency engage in broad intelligence-collection
activities within the United States--activities that can threaten fundamental freedoms. This Article argues that
strategies derived from administrative law principles can help alleviate the tendency of threat-prevention
efforts to erode civil liberties.
The fundamental problem this Article tackles is that the traditional governance mechanisms we rely upon to
protect individual rights are ineffective in the domestic intelligence-collection realm. This failure of traditional
checks stems from, first, the absence of practical constraints to channel the enormous discretion that the
Justice Department and the FBI enjoy in determining the scope and nature of the FBI's domestic
6intelligence-collection activities; second, the lack of judicial or political checks on these activities, resulting in
a deficit of democratic legitimacy and accountability; and third, the risk that the FBI's singular focus on
terrorism prevention will overwhelm rights-protection concerns.
Drawing on principles of administrative law, this Article explains how regulatory strategies can be employed
to improve governance of domestic intelligence gathering. It recommends imposing procedural
requirements on the exercise of discretion, facilitating meaningful pluralist input into relevant decision making
processes, and augmenting the attention given to civil liberties concerns by requiring the Justice Department
to prepare Civil Liberties Impact Statements and by including in the process an entity whose primary goal is
the protection of civil liberties. These governance reforms will prompt domestic intelligence regulation to
take account of civil liberties while preserving the ability of law enforcement to pursue security.
--- AT: Secrecy Link Applies to CP
Notice and justification can be limited to those with a security clearance to maintain
necessary secrecy
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Rules should similarly dictate that the Attorney General or FBI Director provide notice explaining the
reasons for any proposed changes to the Guidelines or the DIOG and a justification for the ultimate
decisions that demonstrates that all of the relevant available information was taken into consideration and
that there was a valid basis for the change. The distinctions between traditional administrative law and
national security administration require, however, some adjustments to the usual procedural design. While
most agency notices of proposed rulemaking are part of the public record and freely available for wide
dissemination, the classified nature of much of the FBI's activity and some of the rules contained in the
DIOG requires that the dissemination of the notice and justification will often be limited to individuals with
the necessary security clearance. n205 Imagine, for example, a proposed rule-change designed to modify
surveillance operations to make them less likely to be detected by the target. Publicizing that intention and
[*55] the resulting rule might undermine entirely the purpose of the revision.
1nc Politics NB
Only the plan will face congressional opposition --- Congress wants to defer to the
executive on the issue and avoid blame for intelligence failures
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
First, some brief thoughts on political economy. This Article aims to propose some plausible reforms in an
area where what Professor Heather Gerken calls the "here to there" problem is a significant obstacle. n158
Perhaps even more than in other policy areas, expectations that Congress will act to implement these
recommendations--through legislation or through other available levers of power--are likely to be
disappointed. Indeed, congressional oversight of national security policy has long been considered ineffective
by government officials, outside task forces, and scholars. n159 The dearth of public information about
national [*44] security policy, which makes oversight significantly more challenging, is partially to blame.
n160 But there are also perverse incentives at work: legislators have no incentive to engage in aggressive
oversight of intelligence-collection powers. n161 Legislators gain little by taking ownership over security
policy. n162 Meanwhile, so long as Congress can label such policies "executive," it cannot be blamed
for intelligence failures. n163 The result is that all electoral incentives point toward congressional deference
to executive policy preferences in this area. n164 This is [*45] especially so for intelligence-collection policies
imposing disproportionate impact on certain segments of society, such as minorities or noncitizens, whose
interests carry little electoral weight with legislators. n165 Expectations that Congress will take action in this
area are thus likely to be disappointed.
2nc Politics NB
CP avoids political battles in congress and insulates policies from backlash
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Similarly, because granting decision-making authority to bureaucrats not subject to electoral forces that
constrain other policymakers removes those decisions from the field of political battle, Congress both
eludes responsibility for making difficult policymaking decisions and insulates the policies themselves
from electoral backlash. n185 Broad agency discretion thus undermines the very nature of participatory
democracy and raises concerns about political accountability for critical decisions of national policy. n186
[*51] And while the Supreme Court's decisions limiting legislative delegations to agencies were confined to
the New Deal-era, n187 so long as Congress sets down an "intelligible principle" for the agency to follow,
n188 many of the procedural rules developed in the administrative state serve to cabin discretion. n189 Thus,
while agency decision makers continue to enjoy significant leeway, the threat to democracy and accountability
posed by agency discretion has not gone unaddressed.
CP alone doesn’t link to politics --- Congress wants to delegate the policy-making to
others
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
The accountability gap left by the absence of judicial review will not be filled by legislative or public scrutiny.
The origin story of the original Attorney General Guidelines included a significant role for Congress. n121
Having been prompted by the Church [*35] Committee's findings of misconduct and the resulting public
outrage, the legislature was intimately involved in developing the contents of the Guidelines. n122 Congress
held a series of hearings on the issue over the course of several years, and saw its suggestions ultimately
reflected in the Levi Guidelines. n123 Given that the Guidelines were implemented, at least in part, to avoid
more stringent legislative action, n124 this is not a surprise. Surely Attorney General Levi knew that if the
rules he instituted did not appear to address Congress's concerns, they would fail to sap the momentum for
enacting a statutory charter for the FBI.
The contemporary political economy of congressional oversight in this area means that legislative oversight
will not provide any more effective a check than judicial action. Legislators' incentives weigh against
aggressive involvement. The downside risks of unsuccessful counterterrorism policies (additional attacks) are
high. n125 If those policies are developed outside of the legislative process, Congress can share (if
not entirely evade) blame. Moreover, counterterrorism policy "is a subject matter that is especially
prone to legislative delegation because it often entails hard trade-offs," which are the types of questions
Congress is least likely to address. n126 In addition to undermining legislative involvement in
counterterrorism policy formulation, existing institutional features also render [*36] congressional oversight
of domestic intelligence-collection policy ineffectual. Congress, of course, retains oversight authority over the
FBI. n127 If it wants to play a more active role in overseeing the Guidelines, it has the tools to do so. n128
After all, Congress determines whether and to what degree the FBI's intelligence-collection activities are
funded. n129 Moreover, the relevant committees of jurisdiction conduct regular oversight hearings at which
the Attorney General and FBI Director appear. n130 Legislators can ask Justice Department and FBI officials
for information about the Guidelines or the FBI's activities at any time. n131
Perhaps as a result of the existing incentive structure, however, Congress has shown little appetite to
pursue Guidelines-related issues of late. n132 The most recent modification to the Guidelines, for
example, failed to reflect congressional input. The Justice Department provided the Senate Judiciary [*37]
Committee a completed draft of the Mukasey Guidelines a few months before they were implemented. n133
A handful of senators requested that Attorney General Mukasey delay their implementation until Congress
had the opportunity to develop suggestions regarding ways to minimize civil liberties concerns. n134 Their
request went unanswered. And even when FBI Director Robert Mueller III inaccurately testified in 2010
before Congress that the FBI did not have the authority to conduct unpredicated investigations, legislators
took no follow-up action. n135
While Congress has shown little interest in scrutinizing the Guidelines, the public is not given a choice in the
matter. Activity undertaken pursuant to the Guidelines is secret and therefore rarely apparent on its own or
reported in sufficient detail in the news media. n136 Moreover, information about how the Guidelines are
used is exempt from disclosure under the Freedom of Information Act on the basis of either the law
enforcement or the classified-information exemption contained in that statute. n137 The public also lacks
means to scrutinize how the rules are [*38] implemented. In some cases even the rules themselves are secret.
The publicly available version of the DIOG, for example, entirely redacts the rules governing undisclosed
participation in religious or political gatherings. n138
Attorney General Guidelines are empirically designed to prevent legislative action
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Over time, both the Bureau's focus and the rules governing its activities have swung back and forth along the
spectrum between the targeted investigations of crime solving and the broader intelligence gathering
associated with prevention. The Guidelines themselves are the product of the FBI's early-1970s move away
from intelligence collection. After the United States Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, commonly known as the Church Committee for its chair
Senator Frank Church (D-ID), [*13] revealed that decades of unregulated intelligence collection by the FBI
had resulted in widespread abuses of the government's investigative powers, n29 Congress determined that
the FBI should be subject to a legislative charter setting out strict limits on its intelligence-collection authority.
n30 In an effort to stave off potentially more restrictive legislative action, President Gerald Ford's
Attorney General, Edward Levi, issued in 1976 the first set of Attorney General's Guidelines--known as the
Levi Guidelines. n31
Guidelines are shrouded from public criticism
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
While Congress has shown little interest in scrutinizing the Guidelines, the public is not given a choice in the
matter. Activity undertaken pursuant to the Guidelines is secret and therefore rarely apparent on its own or
reported in sufficient detail in the news media. n136 Moreover, information about how the Guidelines are
used is exempt from disclosure under the Freedom of Information Act on the basis of either the law
enforcement or the classified-information exemption contained in that statute. n137 The public also lacks
means to scrutinize how the rules are [*38] implemented. In some cases even the rules themselves are secret.
The publicly available version of the DIOG, for example, entirely redacts the rules governing undisclosed
participation in religious or political gatherings. n138
2nc Solvency ***
***note when prepping file --- the ev in “AT: No Enforcement” is also very useful to
defend the general solvency of the counterplan. The ev in both blocks are useful in
many different ways.
Indicts of the administrative law process assume the current Guidelines and do not
reflect the counterplan’s changes to the process --- it creates a more transparent,
accountable, and legitimate means to balance security objectives with the protection
of civil liberties.
CP ensures accountability and constrains agency abuses
 Reason-giving requirements will help constrain agency abuses and ensure accountability --- CP would
have prevented most dangerous changes in 2008 Guidelines
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
B. Reason-Giving as Constraint
Courts and commentators have raised a litany of reasons why extending broad discretion to administrative
agencies can be problematic from a governance standpoint--reasons that apply with equal force to the FBI's
exercise of intelligence-collection powers. Agency strategy for channeling discretion, largely dominated
by reason-giving requirements, is therefore an important source of ideas for addressing that concern
in the context of the Guidelines regime.
1. The Downsides of Discretion
Consigning significant policy choices to administrative agencies operating with broad discretion undermines
the constitutional mechanism of promoting both accountability and sound decision making. When it comes
to legislation, the Constitution seeks to avoid these concerns by subjecting legislative decisions to the
deliberation and contestation that serves as a bulwark against faction and tyranny. n182 Freed from [*50] the
requirements of Article 1, § 7, n183 however, agency decision makers might engage in a wise and thoughtful
decision-making process; but they are equally capable of making poor choices, opting for policies that are
uninformed, arbitrary, irrational, self-interested, or otherwise untethered to the public interest. n184 Absent
some alternative check on the way in which discretion is exercised, there is therefore no reason to expect an
agency's decision-making process to result in the best outcome--however that is defined.
Similarly, because granting decision-making authority to bureaucrats not subject to electoral forces that
constrain other policymakers removes those decisions from the field of political battle, Congress both eludes
responsibility for making difficult policymaking decisions and insulates the policies themselves from electoral
backlash. n185 Broad agency discretion thus undermines the very nature of participatory democracy and
raises concerns about political accountability for critical decisions of national policy. n186
[*51] And while the Supreme Court's decisions limiting legislative delegations to agencies were confined to
the New Deal-era, n187 so long as Congress sets down an "intelligible principle" for the agency to follow,
n188 many of the procedural rules developed in the administrative state serve to cabin discretion. n189 Thus,
while agency decision makers continue to enjoy significant leeway, the threat to democracy and
accountability posed by agency discretion has not gone unaddressed.
2. Channeling Discretion into Reasoned Decision-Making
The administrative state has grappled with legitimizing broad delegations throughout its history. n190 Over
the years, reasoned decision making emerged as an important means of [*52] limiting discretion and
improving the quality of agency policymaking by requiring agencies to justify their actions. n191 And while
these reason-giving requirements exist in part to facilitate judicial review of agency action, they also have the
intrinsic value of promoting agency experts' exercise of their discretion in a thoughtful, principled fashion.
n192 These requirements come from two sources: the Administrative Procedure Act n193 supplemented by
the requirement from SEC v. Chenery Corp. (Chenery II) n194 that agency actions are valid only if they can
be upheld according to the rationale given by the agency at the time the decision was made. n195
[*53] The APA procedures for informal rulemaking employ two strategies for ensuring that agencies can
engage in a process of reasoned decision making. n196 First, the APA has a notice requirement, which is
designed to broaden the range of information and perspectives the agency must take into account n197 in
order to promote more informed decision making. n198 To ensure these goals are met, the APA demands
that an agency's notice must "fairly apprise interested persons of the subjects and issues" at stake whenever
they intend to engage in a rulemaking n199 and indicate the rulemaking's legal and factual basis as well as its
policy purpose. n200 Thus, the APA aims to ensure that agencies have before them all relevant information
when making policy decisions
The second element of the APA's strategy for channeling discretion is the obligation that agencies issue a
public statement when announcing a final rule. n201 Just as written judicial opinions demonstrate that a
court's decision is supported by facts, law, and [*54] precedent, these statements of purpose serve to
demonstrate that agency officials considered all of the information before them and engaged in a "process of
reasoned decision-making." n202 To that end, the statement must include the rule's basis and purpose as well
as a justification of the decisions that led to its adoption, and it must "indicate the major issues of policy that
were raised in the proceedings and explain why the agency decided to respond to these issues as it did." n203
Moreover, under Chenery II, only if the purpose provided by the agency constitutes a valid justification for
the decision will it be legitimate. n204
Rules should similarly dictate that the Attorney General or FBI Director provide notice explaining the
reasons for any proposed changes to the Guidelines or the DIOG and a justification for the ultimate
decisions that demonstrates that all of the relevant available information was taken into consideration and
that there was a valid basis for the change. The distinctions between traditional administrative law and
national security administration require, however, some adjustments to the usual procedural design. While
most agency notices of proposed rulemaking are part of the public record and freely available for wide
dissemination, the classified nature of much of the FBI's activity and some of the rules contained in the
DIOG requires that the dissemination of the notice and justification will often be limited to individuals with
the necessary security clearance. n205 Imagine, for example, a proposed rule-change designed to modify
surveillance operations to make them less likely to be detected by the target. Publicizing that intention and
[*55] the resulting rule might undermine entirely the purpose of the revision.
While the effect of limited dissemination of notice and justification will not be as robust as a process that is
entirely transparent, limits on dissemination need not render written notice and justification worthless. In
addressing concerns over excessive discretion, the crucial elements of the relevant administrative strategy are
(1) that the notice broaden the range of information and perspectives that the agency considers and (2) that
the written justification demonstrates that the agency's decision enjoys sufficient factual and legal support. To
accomplish this, the notice and justification must go to individuals or entities whose participation would serve
to expand the information and perspectives available to the decision makers and whose scrutiny of the
ultimate justification would encourage the adoption of rules supported by reasoned argument and available
evidence.
Candidates to receive this notice and justification are both inside and outside the Justice Department. The
Justice Department's Civil Rights Division and Office of Privacy and Civil Liberties as well as the National
Security Division could be invited to comment. Similarly, other members of the intelligence community, such
as the Office of the Director of National Intelligence should be involved. But the Privacy and Civil Liberties
Oversight Board (PCLOB) should contribute its perspective as well. This is not meant to be an exhaustive list
of possibilities. Nor will each of these institutions necessarily take on the role of civil-liberties champion or do
so effectively. n206 For now, it is enough to say that so long as they have access to the relevant information
and bring a perspective different from the one within the Attorney General's office or the FBI, their
participation would help to channel discretion in a productive direction.
The 2008 modifications to the Guidelines provide a concrete example of how the requirement that the
Attorney General provide reasons justifying amendments could impact the process. [*56] One proffered
justification for amending the Guidelines in 2008 was that they were necessary to provide tools the FBI
needed to support its preventive role. n207 But the then-existing Guidelines already described prevention as
the FBI's "central mission," and included several provisions added in 2002 that were aimed at empowering
and enabling this aspect of the FBI's activities. n208 In asserting that the 2008 Guidelines were necessary for
terrorism prevention, the Bureau had no obligation to explain how its activities were unacceptably
constrained by the rules that were then in effect, which were drafted for the same purpose. n209 Under these
proposed rules, the Attorney General would have had to make that case, allowing those entities that were
notified the opportunity to question the need for changes and possibly even make those concerns public.
n210 And if the Attorney General could not do so satisfactorily, it would have made altering the Guidelines a
much more controversial proposition.
Requiring written justification of the final rules also might have had an impact on the 2008 revisions. On the
one hand, the Justice Department downplayed the extent to which the Guidelines expanded the FBI's
powers. The new Guidelines were characterized as merely consolidating several existing sets of rules without
making substantive changes. n211 In fact, Justice Department officials asserted that assessments were nothing
[*57] new, and that under the pre-2008 Guidelines it could already conduct assessments using pretext
interviews, physical surveillance, and the tasking of informants. n212 But there was no "assessment" level in
the pre-2008 Guidelines. n213 Indeed, they explicitly prohibited both pretext interviews and physical
surveillance until a preliminary inquiry--a predicated investigation--had been opened. n214 "Threat
assessments" were permitted in some contexts under the 2003 National Security Investigation Guidelines, but
by the FBI's own admission, some of the techniques available in today's assessments were prohibited in that
context. n215 Had the Attorney General or FBI Director been required to explain exactly what changes were
being made and provide the rationale for the new rules, the creation of assessments in their current form--the
central innovation of the 2008 Guidelines--might have met with more resistance. In particular, the ways in
which assessments expanded the FBI's powers, for example permitting use of several investigative techniques
historically reserved for predicated investigations, would have become clear and consequently would have
been subject to closer examination. As it was, the Attorney General could simply disclaim the idea that new
powers were being granted without having to substantiate that statement.
[*58] In addition to any substantive differences to the 2008 Guidelines that would have resulted, a notice
and justification requirement would have provided other concrete benefits. First, it would have guaranteed
that decision makers had the benefit of additional perspectives while they were still developing the
policy. It is much easier--and therefore more likely--for policymakers to incorporate alternative perspectives
into policy still being developed than once that policy is nearing its final form. n216 Second, obligating the
Attorney General to address the information that was submitted to him and to explain in writing why the
Guidelines should be implemented in his chosen format would force him to digest that information and
therefore might actually result in a more informed decision. n217 Third, it would have added additional
legitimacy to the final product if n218 the 2008 Guidelines development had been based on specific,
reasoned arguments regarding the need for modifications.
CP’s participatory process makes the guidelines more democratic and boosts support
and cooperation from communities
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
C. Participatory Policymaking
Nowhere does the Constitution provide for the existence of administrative agencies, much less for specific
means of ensuring that their actions do not infringe on fundamental rights or that they are subject to
democratic accountability. n219 The administrative state has grappled with this "democracy deficit" almost
since its inception. n220 One means employed to address it has been through increasing opportunities for
broad participation in agency decision making. Designing ways to employ these [*59] strategies for increased
participation could lend increased democratic legitimacy to the intelligence-collection realm.
1. Administrative Agencies' Democracy Deficit
Administrative agencies initially were viewed either as entities merely implementing congressional will or as
bastions of expertise, making decisions on the basis of scientific or technical knowledge. n221 By the latter
half of the twentieth century, however, it had become clear that many congressional delegations are vague and
that many agency decisions cannot be resolved definitively through substantive expertise. n222 Instead, such
decisions often rest on subjective judgments about policy priorities, the value of human well-being, and who
should bear the costs of inevitable risks. The Guidelines are thus not alone in their undemocratic nature. This
democracy deficit "has spawned an extensive literature concerning the legitimacy of the administrative state."
n223 Indeed, Professor Jody Freeman has suggested that "[a]dministrative law scholarship has organized itself
largely around the need to defend the administrative state against accusations of illegitimacy" n224 based on
the unaccountability of agency officials, a lack of transparency, and limited opportunities for public
participation. n225
[*60] 2. Increasing Democracy, Increasing Participation
One answer to the democracy deficit implemented by the administrative state has been to boost the
democratic pedigree of agency rules by insisting on broad participation. n226 A variety of procedural and
doctrinal rules in the administrative state promote the broad participation of interested stakeholders.
As with limits on discretion, the informal rulemaking process set out in the APA promotes participation
through the implementation of strategies that can help improve the democratic pedigree of the
Guidelines and the DIOG.
The first element of the strategy for improved democratic legitimacy is that the notice of proposed
rulemaking itself must be provided in such a way as to facilitate meaningful participation, n227 such as
including the legal and factual basis for the proposed rule n228 and the data on which the agency relied in
making its proposal. n229 These mandates ensure that stakeholders who want to participate have enough
information to permit them to raise objections, provide additional information, or offer alternative
perspectives. The notice, therefore, not only alerts diverse interested parties that there is a decision being
contemplated for which they might want to provide input, but also ensures that input can be meaningful.
Second, the agency must actually consider this input. A final rule's statement of basis and purpose must
"indicate the major issues of policy that [*61] were raised in the proceedings and explain why the agency
decided to respond to these issues as it did." n230 Thus any failure to take into account relevant comments
can invalidate the rule. This risk of invalidation discourages the development of rules that do not take
all relevant perspectives into consideration. n231
Again, these requirements will also result in rules that enjoy more democratic legitimacy than a rule prepared
without such input. Affected parties are more likely to view agency decisions as legitimate if the process
provides for a meaningful opportunity for presentation and consideration of their views. And if the rules are
considered legitimate, the FBI will be much more likely to enjoy the full support and cooperation of
the communities it is policing, leading to more effective intelligence collection.
Devising rulemaking mechanisms that are inclusive and allow for meaningful input from interested
stakeholders presents a challenge when it comes to the domestic-intelligence regime because secrecy presents
a formidable barrier to inclusion. n232 Even with respect to rules that are themselves public, such as the
Guidelines, robust public participation in the process is impractical because there is insufficient public
information about how those rules are implemented. The public may know, for example, that FBI agents are
permitted to attend any religious service that is open to the public. n233 But it will not know how [*62]
often agents engage in this activity, what information they collect, or what is done with the information. Rules
that are themselves secret, such as portions of the DIOG, present an even more formidable challenge. To be
sure, a strong case can be made that the existing levels of secrecy--with respect to both the rules and the
policy implementation--are excessive. n234 Unless and until that secrecy is reduced, however, intelligencecollection policies will struggle to gain the benefits that inhere in broadly inclusive agency rulemaking.
Yet, the Justice Department clearly hopes to realize at least some of the benefits of democratic input when it
comes to the Guidelines. Recall the Department's 2008 briefing of relevant congressional committees and
other interested parties prior to the Guidelines' adoption. n235 The Bureau did the same thing in 2001 when
it revised the DIOG. n236 These meetings allowed the FBI to characterize these documents as rules
developed with input from an array of stakeholders and thus deserving of the enhanced legitimacy that broad
participation confers. n237 So even if the consultations themselves failed to result in meaningful participation
beyond the Justice Department, n238 they indicate recognition that agency decision makers desire (at least the
appearance of) an inclusive process.
The benefits of participatory decision making require a more robust process than the one undertaken in 2008.
Recognizing that [*63] the public at large will not be able to play a meaningful role, a second-best measure is
to seek out proxies for points of view currently not formally represented in the process of developing the
Guidelines and the DIOG. An example comes from Professors DeShazo and Freeman's empirical case study
of the licensing practices of the Federal Energy Regulatory Commission. n239 In the amended Electric
Consumers Protection Act of 1986, n240 "Congress [required the Commission] to consult with fish and
wildlife agencies prior to issuing licenses [and demanded] that nondevelopmental values be given 'equal
consideration' with power concerns." n241 DeShazo and Freeman explain that this amendment was
specifically intended to strengthen the role of resource agencies in the Federal Energy Regulatory
Commission's decision-making process n242 and that it did in fact have the desired effect. n243
[*64] A procedural regime governing the Guidelines' development could similarly mandate the participation
of particular entities that will bring alternative perspectives to the discussion. Each of the entities noted as a
potential recipient of notice and source of information could play this role. One especially promising
candidate for this role is the Privacy and Civil Liberties Oversight Board (PCLOB), a statutorily created
independent agency charged with ensuring that privacy and civil liberties concerns are considered in the
development and implementation of laws, regulations, and policies related to terrorism. n244 The PCLOB
took several years to get off the ground. n245 In the wake of recent revelations regarding NSA surveillance,
however, it has demonstrated its ability to participate in the surveillance-policy conversation by insisting on a
classified briefing about the controversial surveillance programs, meeting with the President, n246 holding a
public hearing seeking concrete suggestions for improving the civil liberties protections included as part of
those programs. n247 Based in part on what members of the Board learned at that meeting, the PCLOB
issued a detailed report recommending specific changes to one existing surveillance program and anticipates
issuing similar reports about other programs. n248 Whether any of the PCLOB's recommendations will [*65]
be adopted remains to be seen. But giving the Board an official role in the process in which the Guidelines
and the DIOG are formulated would ensure that the civil liberties point of view is represented.
This participation could take one of several forms, ranging from an opportunity to express views to veto
power. n249 If the requirement is modeled on the concept behind the participation requirements included in
notice-and-comment rulemaking, then it will end up somewhere between these two extremes, with something
like the following arrangement: The PCLOB would have the opportunity to submit its perspective; having
received this input, the Attorney General or the FBI Director would be required to demonstrate that it was
taken into consideration.
Finding ways to broaden the perspectives involved when it comes to the DIOG is particularly important.
Currently, nobody outside the FBI must be involved. Ensuring that alternative perspectives are voiced and
requiring that the final rules reflect, or explain why they fail to reflect, these perspectives may provide some of
the benefits of the multilateral, deliberative process that truly pluralist rulemaking procedures promote. n250
Administrative state mechanisms can check the AG and FBI --- external checks fail
 The administrate state has developed mechanisms that can be borrowed to ensure the Attorney
General and FBI protect civil liberties and maintain anti-terror effectiveness --- other external checks
will fail
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
[*5] I. Introduction
In the summer of 2013, former National Security Agency contractor and Central Intelligence Agency
employee Edward Snowden shook the world with revelations of extensive United States government
surveillance activities--including surveillance of American citizens. n1 The revelations sparked a renewed
debate about the proper scope of intelligence collection in a democracy. What has gone unaddressed in this
debate, however, is the vast investigative powers conferred on America's domestic surveillance agency--the
Federal Bureau of Investigation (FBI). And unlike the foreign-intelligence programs disclosed by Snowden's
leaks, some of the FBI's most powerful domestic intelligence-collection authorities include neither statutory
limits nor judicial oversight. n2
If the FBI determines that an individual's daily life is relevant to a terrorism investigation, it can easily draw a
detailed picture of that life. n3 With no reason at all for suspicion and no judicial approval, agents can follow
the individual around the clock to ascertain where he goes. They can ask his neighbors about their
conversations with him, or dispatch an informant to his house of worship to report on the individual's
religious [*6] observance. With the minimal process associated with issuing an administrative subpoena, n4
the government can establish a record of the individual's movements and social dealings by acquiring financial
and employment records, a list of email addresses with which he has corresponded, and a list of phone
numbers he has dialed.
These broad investigative powers operate in tension with fundamental rights. Collecting extensive personal
information about innocent Americans raises concerns about privacy; about impact on freedoms of
expression, association, and religious practice; and to the extent that such activity is disproportionately
focused on particular communities, it can raise equal protection concerns as well. n5 The challenge, then, is
how to mitigate these civil liberties threats without unduly interfering with the FBI's ability to prevent
terrorist attacks.
This Article argues that administrative law strategies suggest several measures that, taken together,
would represent a domestic intelligence governance regime better equipped to safeguard civil
liberties. This argument bridges a gap between two growing areas of literature. The first, which I label "riskmanagement literature," advocates taking a regulatory approach to the threat of terrorism--to treating it not as
an enemy to defeat, but, like environmental or health and safety risks, as a chronic problem to be assessed
and managed. n6 The other, the [*7] "rights-protection literature," argues that the current domestic
intelligence-collection governance regime fails to address effectively the tension with civil liberties created by
the FBI's contemporary counterterrorism efforts. n7 I contend that the risk-management literature's valuable
insight that administrative law can usefully be applied to improve governance in the security context suggests
a means of mitigating the rights-protection scholars' concerns
These rights-protection concerns arise in large part because traditional means of regulating executive
power cannot effectively protect civil liberties in this area. This failure of traditional checks results from
three characteristics of the regime regulating domestic intelligence collection. First, it lacks both doctrinal and
practical constraints on the FBI and Justice Department's enormous discretion in drafting and implementing
the applicable rules. n8 Second, the checks that normally ensure the accountability and democratic legitimacy
of government actions--judicial review, congressional oversight, and public scrutiny--simply do not operate
effectively in the secretive world of intelligence collection. n9 And third, in its vigorous pursuit of [*8]
terrorism prevention, the FBI is not subject to any structural checks to prevent it from undervaluing rights
protection. n10
This broad discretion, democracy deficit, and absence of counterweight to the FBI's prevention goal means
that--despite the privacy and liberty implications of the FBI's activities--the responsibility of striking a
balance between security needs and other important interests is left almost entirely to the Attorney
General and the FBI itself. Restraints on the FBI's domestic intelligence-collection activities come from the
Attorney General's Guidelines for Domestic FBI Operations (Guidelines) n11 and the Domestic
Investigations and Operations Guide (DIOG). n12 The Guidelines are developed by the Attorney General
and set out a basic framework for the FBI's operations; the several-hundred-page DIOG, promulgated by the
FBI, specifies more detailed rules for the Guidelines' implementation. n13 The Guidelines were originally
created to forestall impending legislative efforts to cabin the Bureau's intelligence-collection powers n14 but
due to subsequent changes--particularly post-9/11 changes aimed at promoting terrorism-prevention efforts-the Guidelines and DIOG now serve to facilitate rather than limit the Bureau's intelligence-collection role.
[*9] Conceptualizing the threat of terrorism as a regulatory challenge represents a significant first step
toward devising an improved governance regime for the Guidelines and the DIOG. But there are additional
steps that the existing risk-management literature has not yet taken. The idea of how administrative law would
apply to intelligence collection remains undertheorized--an unsurprising state of affairs given the recent
emergence of this line of inquiry. Scholars have not yet tackled the thorny question of how to truly reap the
benefits that the regulatory approach offers, while simultaneously taking into account the unique governance
challenges presented by the domestic-intelligence context. Nor has the literature to date sufficiently grappled
with civil liberties concerns. n1
This Article seeks to fill these gaps, drawing on administrative law principles to suggest novel governance
designs custom tailored to address the civil liberties concerns inherent in domestic intelligence collection. To
do so it looks to areas of administrative law that present similar governance challenges, identifies how those
challenges have been addressed in the administrative state, and suggests how to adapt those strategies to
function in the intelligence-collection context. n16
Each of the governance challenges this Article identifies has an analog in the administrative state. Take first
the scope of discretion conferred on federal officials. This delegation of discretionary authority to the
Attorney General and the FBI resembles the broad delegations in statutes establishing administrative
agencies' powers and responsibilities. Concerns arising from the scope of these delegations are addressed
through [*10] the Administrative Procedure Act's (APA) n17 procedural requirements. n18 Second, the
absence of judicial, legislative, or public involvement in the design and implementation of the Guidelines is
reminiscent of the democracy deficit inherent in the promulgation of regulations by technical experts so often
at the heart of debates over the legitimacy of the administrative state. The administrative state has
responded to this deficit by developing mechanisms to increase the participatory nature of
administrative activity. n19 And third, the risk that the Guidelines privilege the FBI's primary mission--the
prevention of terrorism and protection of national security--over concerns for fundamental rights mirrors the
many circumstances where agencies are charged simultaneously with multiple, competing goals. A menu of
regulatory tools has been developed to reconcile competing agency missions. n20 Looking to the
lessons that can be gleaned from these administrative governance strategies provides a useful roadmap for
filling the intelligence-collection governance gap in a way that also protects civil liberties.
The Article proceeds in three parts. Part II first argues that the expansive scope of investigative authority that
the current Attorney General's Guidelines and the FBI's implementing procedures confer on the Bureau exist
in tension with the protection of civil liberties. It then contends that the lack of practical, traditional judicial
or political, and structural checks to impose effective oversight on domestic intelligence gathering necessitates
the implementation of alternative governance mechanisms.
In Part III, the Article harnesses administrative law strategies to suggest regulatory tools custom tailored to
yield [*11] regulatory benefits that protect fundamental rights in the context of the FBI's Guidelines regime.
To do so, it first explores the underlying purposes and justifications of traditional administrative law tools
that are used to address governance challenges conceptually similar to those that the Guidelines regime
presents. n21 It then suggests specific reforms designed to achieve the same ends as those traditional tools in
the intelligence-collection context. n22 First, the Attorney General's discretion in the development and
implementation of the Guidelines should be subject to a reason-giving requirement. Specific procedural
limitations should require that the Attorney General or FBI Director provide both notice of a decision to
amend the Guidelines or the DIOG and written justifications for their ultimate decisions. Second, to enable
meaningful pluralist input into the process, the FBI must go beyond the cursory meetings with interested
stakeholders that it has relied upon to date. Instead, a variety of entities inside the government should be
empowered to participate in the amendment process. Third, to balance the government's interest in
security with privacy and liberty concerns, (1) any changes to the Guidelines regime should be
accompanied by a "Civil Liberties Impact Statement" prepared by the Justice Department, and (2)
stakeholders whose primary goal is the protection of liberties--rather than the pursuit of security--should be
involved in the process of drafting or modifying the Guidelines and their implementing regulations. n23 This
approach will impose a meaningful governance regime crafted for domestic intelligence gathering that
mitigates concerns about the impact on civil liberties without sacrificing security.
Part IV addresses some possible sources of skepticism for this proposal. It first explains why reliance on
existing administrative law tools--even if those tools are partially modified to operate in the intelligencecollection realm--will be [*12] insufficient to protect civil liberties. n24 It then responds to questions about
how to enforce these reforms in the absence of judicial review, suggesting alternative compliance
mechanisms. n25
CP ensures that civil liberties are considered and protected
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
V. Conclusion
Domestic intelligence collection presents a challenge in a democracy. While it can play a crucial role in
keeping our nation secure, it also poses threats to the very freedoms that make that nation worth defending.
When the prevention of terrorism is viewed as a regulatory problem--one to be managed rather than
defeated--the challenge becomes more manageable. Examining regulatory strategies developed over the past
half-century in the administrative state provides a roadmap for the development of structural and
procedural mechanisms to channel executive discretion into reasoned, evidence-based decisions; to
include viewpoints from outside the intelligence community in the process; and to ensure that the Justice
Department explicitly takes into account the civil liberties perspective. n350 The need to substitute
alternative mechanisms for tools that are often effective in governing agency action, such as judicial review
and public scrutiny, means that they may be less directly effective in achieving their goals. n351 But
developing such a framework is a [*91] viable second-best option in a context where the traditional means
of government oversight break down. n352 It will contribute to generating the appropriate FBI for the
twenty-first century, one that takes into account not only the nature of the disease, but also the potential costs
of the cure.
Solves Terrorism / Community Trust / Legitimacy
***note when prepping file --- there is also ev in “2nc Solvency” that defends why
the CP boosts ties with communities.
CP allows the FBI to boost its legitimacy and rebuild trust with communities
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
[*46] Given the appropriate political environment, there are at least three reasons to think that the
imposition of a framework like the one suggested here is not entirely implausible. As an initial matter, there is
the FBI's concern over legitimacy. The Bureau's ability to succeed in its mission requires constructive
relationships with the communities in which it operates. n168 Yet its aggressive intelligence-collection tactics-and their concentration in Muslim communities--has alienated many members of that community, raised
suspicion and distrust of the Bureau in some quarters, and undermined cooperative relationships. n169
Improved governance is thus not the only benefit that would flow from implementing APA-like procedures;
institutionalizing rulemaking procedures would also yield improvements in community relations, public
perceptions of legitimacy, and consequently, FBI effectiveness. In addition, government documents and
scholarly commentary are replete with arguments about the value of process in legitimating government
action. n170 The FBI's practice of reaching out to nongovernmental organizations in anticipation of
issuing new intelligence-collection rules indicates an awareness of the benefits of generating the
support of outside stakeholders. n171 Subjecting itself to a set of procedural rules would go far in this
regard. And finally, none of the proposals here are substantive. They do not call upon the FBI to cede any
particular powers, or to discontinue existing policy. Indeed, they acknowledge the Attorney General's and
FBI's role in generating the rules by which the FBI operates, so long as they can show [*47] both that
changes in the FBI's authority are needed and that the proposed changes are reasonable ones. And finally,
when it comes to imposing limits on government actors, broad procedural frameworks often face less
opposition than substantive policy changes. n172
The problem with the current FBI Guidelines is that they shrouded from public
input and criticism
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
While Congress has shown little interest in scrutinizing the Guidelines, the public is not given a choice in the
matter. Activity undertaken pursuant to the Guidelines is secret and therefore rarely apparent on its own or
reported in sufficient detail in the news media. n136 Moreover, information about how the Guidelines are
used is exempt from disclosure under the Freedom of Information Act on the basis of either the law
enforcement or the classified-information exemption contained in that statute. n137 The public also lacks
means to scrutinize how the rules are [*38] implemented. In some cases even the rules themselves are secret.
The publicly available version of the DIOG, for example, entirely redacts the rules governing undisclosed
participation in religious or political gatherings. n138
AT: Solvency Deficit --- Top Level
Aff can’t solve any better --- external checks embodied in the plan aren’t applicable
in this context
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
B. Existing Failures of Intelligence-Collection Governance
If the FBI's intelligence-collection authorities do not run afoul of existing legal limits, why is the way in which
they are governed a cause for concern? Because despite these authorities' [*29] undisputed implications for
civil liberties n94--indeed, their tendency to result in civil liberties infringements is what inspired the
implementation of the Guidelines in the first instance--they are untouched by the nondoctrinal constraints
that usually accompany law enforcement activities. This means that the only constraints on the FBI's
intelligence-collection powers are the internal rules the Justice Department and the FBI have imposed on
themselves.
Several inherent differences between intelligence collection and crime-solving investigations account
for the inapplicability of constraints that usually limit government action. First, the very nature of the
intelligence-collection enterprise is inherently more expansive in scope--proactive rather than reactive and less
narrowly targeted. n95 Consequently, practical constraints that usually serve to limit law enforcement
agencies' activities--resource limitations and a focus on solving individual crimes--are inapplicable. Second,
the secretive nature of intelligence-collection activities renders them effectively
immune to judicial review as well as scrutiny from the legislature and the
public. n96 And third, the Justice Department and the FBI generate the Guidelines and the DIOG in the
context of the FBI's post-9/11 focus on terrorism prevention. n97 This means that the rules are crafted by
government officials with security and intelligence-collection expertise. There are, therefore, no structural
checks to remove from the hands of security technocrats the normative judgments that must be made about
the relative importance of [*30] aggressive intelligence collection and rights protections. n98 The result is
that, despite the fact that intelligence collection implicates important values, the only constraints on that
collection are effectively self-imposed.
AT: Solvency Deficit --- Court Specific
CP solves better --- judicial restrictions will fail for 3 reasons
 Secrecy, no standing, state secrets privilege
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
2. Intelligence Collection and Judicial or Political Constraints
In engaging in the broad intelligence-collection activities envisioned by the Guidelines, the FBI will
elude traditional checks on power, such as judicial review and congressional or public oversight. The
result is that the Guidelines and their implementation lack both the accountability and the democratic
legitimacy that usually accompanies government policy. n108
There are several obstacles to judicial review of the Guidelines and the activities undertaken pursuant to
them. As an initial matter, the Guidelines themselves disclaim any intention to create enforceable rights, so
any action taken pursuant to them can be challenged only if it is otherwise unlawful. n109 In addition, the
secrecy of these activities ensures that individuals who seek to challenge intelligence-collection regimes will
struggle to demonstrate a sufficiently concrete injury to establish standing to sue. n110 Surveillance tactics are
designed to prevent targets from being alerted to the fact that law enforcement is gathering information about
them, so it is difficult to point to specific government action causing harm. n111 Moreover, courts have held
[*33] that neither allegations of general chill nor an "objectively reasonable likelihood" that a plaintiffs'
communications will be subject to surveillance are sufficient. n112 Thus, standing remains a bar to the
courthouse door.
Another barrier that has proved fatal to judicial review of intelligence collection is the state secrets privilege,
n113 which allows the government to withhold evidence whose disclosure might endanger national security.
n114 At times the privilege results in a case being dismissed outright. n115 In other instances, a [*34] suit
may proceed with evidence that the government is willing to share only ex parte, n116 undermining the
proceedings' adversarial nature.
The government's investigative actions are most frequently scrutinized through motions to suppress evidence
collected in violation of the Fourth Amendment. n117 But this process generally eludes the targets of
surveillance. When the government gathers information for the purposes of criminal prosecution and seeks to
introduce it as evidence at trial, only the individual about whom the information was gathered--the criminal
defendant--will have the opportunity to challenge the government's actions through a suppression motion.
n118 This means that these practices will face challenges in those circumstances where the government's case
is most compelling--when a guilty person seeks to exclude probative inculpatory evidence. n119 Moreover,
much of the government's intelligence-collection activity never leads to prosecution. As a result,
innocent targets of surveillance--those whose information is collected because it is deemed "relevant" to an
investigation, or members of a house of worship who change their religious practices due to fear of
surveillance--will be unable to invoke judicial protection. n120
AT: Solvency Deficit --- Congress Specific
Congress can’t solve --- strong incentives will discourage effective follow through
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
The accountability gap left by the absence of judicial review will not be filled by legislative or public scrutiny.
The origin story of the original Attorney General Guidelines included a significant role for Congress. n121
Having been prompted by the Church [*35] Committee's findings of misconduct and the resulting public
outrage, the legislature was intimately involved in developing the contents of the Guidelines. n122 Congress
held a series of hearings on the issue over the course of several years, and saw its suggestions ultimately
reflected in the Levi Guidelines. n123 Given that the Guidelines were implemented, at least in part, to avoid
more stringent legislative action, n124 this is not a surprise. Surely Attorney General Levi knew that if the
rules he instituted did not appear to address Congress's concerns, they would fail to sap the momentum for
enacting a statutory charter for the FBI.
The contemporary political economy of congressional oversight in this area means that legislative oversight
will not provide any more effective a check than judicial action. Legislators' incentives weigh against
aggressive involvement. The downside risks of unsuccessful counterterrorism policies (additional attacks) are
high. n125 If those policies are developed outside of the legislative process, Congress can share (if
not entirely evade) blame. Moreover, counterterrorism policy "is a subject matter that is especially prone to
legislative delegation because it often entails hard trade-offs," which are the types of questions Congress is
least likely to address. n126 In addition to undermining legislative involvement in counterterrorism policy
formulation, existing institutional features also render [*36] congressional oversight of domestic intelligencecollection policy ineffectual. Congress, of course, retains oversight authority over the FBI. n127 If it wants to
play a more active role in overseeing the Guidelines, it has the tools to do so. n128 After all, Congress
determines whether and to what degree the FBI's intelligence-collection activities are funded. n129 Moreover,
the relevant committees of jurisdiction conduct regular oversight hearings at which the Attorney General and
FBI Director appear. n130 Legislators can ask Justice Department and FBI officials for information about the
Guidelines or the FBI's activities at any time. n131
Perhaps as a result of the existing incentive structure, however, Congress has shown little appetite to pursue
Guidelines-related issues of late. n132 The most recent modification to the Guidelines, for example, failed to
reflect congressional input. The Justice Department provided the Senate Judiciary [*37] Committee a
completed draft of the Mukasey Guidelines a few months before they were implemented. n133 A handful of
senators requested that Attorney General Mukasey delay their implementation until Congress had the
opportunity to develop suggestions regarding ways to minimize civil liberties concerns. n134 Their request
went unanswered. And even when FBI Director Robert Mueller III inaccurately testified in 2010 before
Congress that the FBI did not have the authority to conduct unpredicated investigations, legislators took no
follow-up action. n135
AT: Doesn’t Curtail Surveillance
Attorney General Guidelines have the capability to curtail surveillance --- only
recently has there been a departure from those past restrictions
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Over time, both the Bureau's focus and the rules governing its activities have swung back and forth along the
spectrum between the targeted investigations of crime solving and the broader intelligence gathering
associated with prevention. The Guidelines themselves are the product of the FBI's early-1970s move away
from intelligence collection. After the United States Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, commonly known as the Church Committee for its chair
Senator Frank Church (D-ID), [*13] revealed that decades of unregulated intelligence collection by the FBI
had resulted in widespread abuses of the government's investigative powers, n29 Congress determined that
the FBI should be subject to a legislative charter setting out strict limits on its intelligence-collection authority.
n30 In an effort to stave off potentially more restrictive legislative action, President Gerald Ford's Attorney
General, Edward Levi, issued in 1976 the first set of Attorney General's Guidelines--known as the Levi
Guidelines. n31
The Levi Guidelines strictly curtailed domestic intelligence investigations through a basic regulatory
structure that subsequent versions of the Guidelines have largely retained. n32 [*14] This structure
consists of multiple investigative levels. For each successive level, a higher threshold of suspicion is necessary
to proceed; the investigative tools agents may use are more intrusive; and procedural safeguards, such as the
need for supervisory approval and limits on the temporal length of investigations, are more robust. n33 The
Guidelines continue to function as the primary constraint on the FBI's operations and remain a justification
for the lack of a statutory charter governing the FBI's activities, but they have not remained static. n34
Multiple modifications made in the years between 1976 and 2001 eased, though ultimately retained,
restrictions on intelligence collection. n35
With 9/11, however, came a wholesale rejection of the anti-intelligence-collection mindset of the Levi era,
resulting in a dramatic shift in favor of an aggressive prevention paradigm. The FBI's prioritization of
preventing terrorism was reflected not only in the allocation of its resources, its focus, and its conception of
its core mission but also in some dramatic modifications to the Guidelines themselves. n36 The eventual
result was a set of [*15] Guidelines--which were implemented by Attorney General Michael Mukasey in
2008 and remain in effect today--embodying an unprecedented license for domestic intelligence collection
and delegating to the FBI responsibility for imposing limits on that power. n37
AT: No Enforcement
Justification requirements create incentives for agencies to follow the impact
statement – the Inspector General will make up for the secret nature of the process
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis)
B. Oversight of Procedural Requirements
One possible objection to this Article's proposals is that, in eschewing judicial review and conceding the
secret nature of the Guidelines regime, they relinquish all means of enforcing their requirements. As with the
proposed procedural rules themselves, however, the principles behind the administrative state's compliance
mechanisms offer a (partial) solution. n332
Notice-and-comment rulemaking employs the transparency of the rulemaking process followed by public and
judicial review to enforce the regulatory regime to which agency decision making is subjected. n333 The
public's role in that regime is to play watchdog. Because rulemaking and its results are conducted in a
transparent fashion, interested stakeholders can be relied upon to object if they believe that an agency has not
acted appropriately. n334 The public will scrutinize not only proposed rules to ensure that they do not suffer
from procedural, logical, or evidentiary deficiencies, but also any information that is made public as part of
the process. If, for example, an Environmental Impact Statement predicts dire environmental consequences
from a proposed agency action, environmental activists will use that [*86] Statement to lobby not only the
agency but also Congress and the President to prevent the agency from taking the proposed action. n335
Another important compliance-related element of public scrutiny is the fact that it can lead to legal challenges
to agency rules. If a regulated entity believes that a regulation applied to it was adopted through flawed
procedures, it can bring suit, thereby subjecting the regulation to judicial review. n336 Through this review,
courts serve to confirm that agency decisions are not unjustified exercises of discretion and that they followed
the mandated procedures. n337 Consequently, courts engage in a "searching and careful" review of the record
an agency makes of its decision-making process n338 and will invalidate the results of proceedings that are
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." n339 These standards
are not necessarily particularly stringent, but like public scrutiny, [*87] they do ensure that agency decisions
have been reached through the proper procedures and therefore that they are reasoned rather than arbitrary
or irrational.
Perhaps just as importantly, the roles that the public and the courts play impose an important "prior restraint"
on agencies. Knowing that their rules and the justifications that they offer for them will be public and
potentially subject to judicial scrutiny, agencies will be more likely to be conscientious, hoping to ensure
that their decision-making processes pass judicial muster. n340 In other words, they will take any
procedural requirements seriously from the outset knowing that, if they do not, any resulting rule could
ultimately be invalidated.
Fashioning equally effective means of supervising Justice Department or FBI compliance with any relevant
rules is a challenge, because the transparency that facilities both public scrutiny and judicial review is
concededly difficult to replicate. Any proceedings regarding the Guidelines that take place outside of public
view are shielded from the public-as-watchdog. If the relevant rules were legislatively mandated, challenges to
any failure to abide by them theoretically could be reviewed by the courts. n341 But even in the unlikely event
that Congress imposes procedural requirements akin to those suggested here, such suits will fall prey to the
same barriers that currently exist to challenging the FBI's intelligence-collection activities--any individual or
entity seeking to challenge the Guidelines or the DIOG on the grounds that they did not follow the required
procedures would struggle to establish standing and to overcome the state secrets privilege. n342
As with the reforms suggested to channel the Justice Department's discretion and to improve the
participatory nature of the Guidelines' development process, ensuring compliance with procedural
requirements would necessitate a means of approximating the traditionally public and judicial roles. One
[*88] option in this regard would be to enlist proxies within the executive branch to engage in scrutiny of the
decision-making process, to inquire whether the process complied with any required procedures, and to
consider whether the required statement(s) of justification are adequate. A government watchdog could be
assigned to take the place of the public and judicial watchdogs that normally play this role. n343 The Justice
Department's Inspector General (IG)--who is statutorily empowered to conduct audits, investigations,
inspections, and reviews of Justice Department programs and to issue reports to Congress regarding the
results of any investigations that it does conduct--might play a constructive role in holding the Attorney
General and FBI Director accountable for following any applicable procedural rules. The IG investigates not
only alleged violations of the law by DOJ employees, but also audits and inspects DOJ programs regularly.
n344 That office could perform reviews of the process employed each time the Guidelines or the DIOG are
amended. Audits conducted by the IG would be especially effective in replicating the effects of traditional
transparency if the results of those audits could be released publicly. Indeed, IGs have, at times, played quite
important roles in uncovering violations of law and policy in pursuit of security. n345 Perhaps more
than any other oversight mechanism (with the exception of unlawful leaks of classified information),
audit reports from the Justice Department's Inspector General have shed light on the FBI's
investigative activities in the wake of 9/11. These reports, some of which revealed violations of law or
[*89] policy, drew both public and congressional attention, and consequently prompted changes to
internal FBI policy. n346
To be sure, even publicly released IG conclusions would lack some of the other compliance-enhancing
characteristics of public and judicial scrutiny. The IG does not have the power to invalidate rules that are
adopted through flawed procedures or lack sufficient justification. It can point out flaws and insufficiencies,
but ultimately any findings or recommendations would be nonbinding. This absence of compulsory power
sacrifices some of the sword-of-Damocles threat inherent in the promise of judicial review. If, however, the
findings and recommendations can be made public, the threat of reputational costs to the FBI still imposes
some ex ante incentive to comply with required procedures. And IGs have been particularly successful in
generating public reports for reviews of even the most sensitive programs. n347
Civil Liberties Impact Statement will force information assessments that facilitate
oversight efforts from the public, the legislature, or internal watchdogs and check
government abuses
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Generating Information. More promising models of reconciling conflicting priorities are focused on agency
culture, rather than agency structure. One mechanism for placing pressure on agency culture and
prompting decision makers to consider factors that they otherwise might not give much weight is a
requirement that an agency generate certain types of [*71] information. According to Professor Eric Biber,
for example, "[a] major goal of NEPA was to force agencies that formerly had focused too heavily on primary
missions such as highway construction, water-project development, or the extraction of natural resources, to
also consider the impacts of their actions on the environment." n272 To accomplish this goal, NEPA requires
all federal agencies proposing actions that will "significantly [affect] the quality of the human environment" to
prepare an Environmental Impact Statement and make copies available to the public for written comments.
n273 These statements augment the information available to agencies, including the possible impacts on the
environment, and proposals about how to avoid adverse environmental effects. n274 And commentators
agree that NEPA has been successful in integrating environmental goals into agency decision making. n275
Similarly, all agencies--including the FBI--must generate a Privacy Impact Assessment (PIA) for "any
substantially revised or new Information Technology System" n276 that collects, maintains, or disseminates
personally identifiable information from or about members of the public. n277 And the Department of
Homeland Security's Office of Civil Rights and Civil Liberties generates Civil Rights and Civil Liberties
Impact Assessments when required to do so by statute, when [*72] they are requested by Department
officials, or when the Officer for Civil Rights and Civil Liberties believes it appropriate. n278
Generating these assessments not only facilitates oversight efforts from the public, the legislature, or
internal watchdogs, but--like requiring written justifications for changes--it has other benefits as well. As an
initial matter, it forces agency decision makers to consciously consider the impact their proposed
policy will have. n279 As one set of commentators put it, "a systematic review of potential impacts during
the planning process can focus the attention of decision makers on issues that they would otherwise deem
to be outside their agency's mandate." n280 Requiring that effort will, at times, lead to agency choices more
solicitous of the issue on which the assessment is focused. Decision-makers might simply need to be made
aware of the impact of their choices. In addition, they will recognize that the substance of the assessment will
be subject to scrutiny and, perhaps, criticism that they would rather avoid. And by ensuring that this
information is before the decision makers while they are engaged in the decision-making process--rather than
after the fact--makes the exercise all the more likely to have an impact. n281 In addition, DHS's Privacy
Office Official Guidance on Privacy Impact Assessments notes that the use of PIAs "demonstrates to the
public and to Congress" that the new systems "have consciously incorporated privacy protections,"
contributing to the legitimacy of the systems. n282
In order to ensure that the Attorney General or FBI Director consider explicitly specific "secondary" goals,
he or she should be required to prepare a "Civil Liberties Impact Statement," [*73] articulating the likely
effects of any proposed changes to the Guidelines. Requiring the Attorney General to consider, and to
explain, whether the cost to civil liberties of any particular rule or tactic outweighs its investigative benefits is
sure to raise the profile of civil liberties protection in the decision-making process. And while these
Statements will not include the detailed scientific analysis that forms part of Environmental Impact
Statements, they will identify the potential civil liberties impacts of proposed rules and force government
officials both to note those impacts, and to think about what steps can be taken to mitigate them.
Strong PCLOB role will force the FBI to internalize the protection of civil liberties
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
Inter-Agency Lobbying. A final mechanism the administrative state has used successfully to force agencies to
consider specific, under-emphasized perspectives is for the political branches to enlist other agencies to
police the primary decision-making agency. This idea, too, has potential in the Guidelines context. In
some ways, this approach is simply a form of expanding the scope of participation, including a "lobbying"
agency in the decision-making process to represent a particular interest that the decision-making agency is
required to consider. n283 In other words, for the lobbying agency, its primary mission is to promote an
interest that may be a "secondary" goal to the decision-making agency. This approach can differ from merely
expanding participation in the process in that it envisions a more active role for the lobbying agency than
merely providing a particular view to the decision maker. Again, a recommendation already mentioned
provides an example. Recall Professors DeShazo and Freeman's study about the licensing practices of the
Federal Energy Regulatory Commission and the impact of Congress's requirement that the Commission
consult with fish and wildlife agencies prior to issuing licenses. n284 They concluded that this requirement
had a real impact on the Commission's treatment of the fish and wildlife agencies' concerns. n285
[*74] Conferring a role in the decision-making process on an agency whose priority is the protection of
fundamental rights might mitigate concerns that the FBI's primary mission will unnecessarily
endanger civil liberties. The Attorney General might, for example, be required to include officials from
such an agency in the process of devising the FBI's investigative rules--to give them a seat at the table. Just as
including the Fish and Wildlife Service in agency decision making ensures that decisions take animal habitats
into account, including an agency like the PCLOB could play a similar role with civil liberties concerns in the
intelligence-collection context. n286 Members and staff of the board--many of whom, unlike staff at the
Office of the Director for National Intelligence (ODNI) or FBI charged with protecting civil liberties offices,
are drawn from the privacy and civil liberties advocacy community n287--could raise civil liberties concerns
that particular rules present, offer alternative means of achieving the FBI's desired ends, suggest procedural
protections that should accompany particular rules, or argue that certain rules should not be approved at all.
Most importantly, ensuring an entity such as the PCLOB a seat at the table means that there is a voice actively
involved in the process whose primary concern is not necessarily the prevention of terrorist acts.
While this type of interagency influence exertion can happen informally, n288 the regulatory or legislative
creation of more hierarchical forms of agency interaction to vindicate "secondary" goals is likely more
effective. Such a hierarchical structure causes decision makers to regulate in the "shadow" of that lobbying
agency, prompting the decision-making agency "to internalize the [*75] secondary mandates." n289
Consider the role of the OIRA, through which the Executive Office of the President monitors regulation.
n290 A presidential order places OIRA in a hierarchical position over federal agencies to evaluate whether the
benefits of agencies' proposed rules exceed their costs. n291 And OIRA has the power not just to make
suggestions for modifications but actually to block implementation of an agency regulation on this basis. n292
This "veto" power requires those agencies to take into account what they might consider a secondary goal-efficiency--when contemplating regulatory action. n293
As with the requirement that the Attorney General or FBI Director consider input from particular entities,
the impact and effectiveness of this model would be highly contingent on the degree to which Justice
Department officials were obligated to take the PCLOB's opinions into account. n294 An agency statutorily
empowered to overrule DOJ proposals would have enormous practical effect. But such drastic (and
implausible) measures are not required. Again, there are a range of possible roles for the PCLOB. For
example, it could simply be given a seat at the table during the formulation of the Guidelines, allowing its
representative to raise civil liberties concerns. n295 Or a stronger [*76] thumb on the scale of civil liberties
might be to require a report to Congress about any instances in which the PCLOB and the Attorney General
or FBI Director are unable to reach agreement on a particular issue. n296
In sum, the procedural framework for the Guidelines should explicitly require that the Attorney General or
FBI Director take into account the civil liberties costs when weighing policy options by preparing a "Civil
Liberties Impact Statement" detailing the likely impact of the proposed changes on fundamental rights, and
should empower the PCLOB to play an active role in formulating the Guidelines. These suggested
procedures will not eliminate all concerns about civil liberties raised by the Guidelines and the DIOG. But in
a context where preferred methods of rights protection break down, they offer a second-best option. n297
AT: CP Process is Burdensome / Costly
Potential costs or personnel tradeoffs are productive --- they will serve as a barrier to
arbitrary or unnecessary changes
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
A final preliminary note: implementing these reforms would not be costless. As an initial matter, any increase
in the onerousness of modifying the Guidelines creates pressure to shift [*49] policy-making decisions to a
level where these rules do not apply, making accountability even more elusive. For this reason, any efforts at
reform would have to apply to changes to the DIOG as well as the Guidelines, and consider ways to prevent
further devolution of decision-making responsibility. These suggested changes would also, of course,
consume time and personnel not currently devoted to the Guidelines. But these costs need not be prohibitive.
As an initial matter, the costs themselves would impose a potentially valuable barrier to arbitrary or
unnecessary changes. Only when changes are in fact necessary will the Attorney General or FBI Director
undertake the amendment process. Moreover, the Guidelines and DIOG are modified so infrequently that
the need to allocate additional resources to the project would be rare. If implemented effectively, these rare
additional costs would be justified by their benefits.
AT: SQ Laws Prevent the CP
Very few statutory or constitutional constraints --- Justice Department and FBI set
their own internal rules
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
In this Part, Section A demonstrates the scope of some of the FBI's contemporary intelligence-collection
powers and their potential to create tension with privacy; rights of association, expression, and religious
exercise; and equal protection principles. n38 Section B then argues that the absence of nondoctrinal checks-whether practical, judicial, political, or [*16] structural--on domestic intelligence collection means that the
only constraints on the FBI's intelligence-collection powers are the internal rules that the Justice
Department and the FBI have imposed on themselves.
A. The Scope of the FBI's Intelligence-Collection Powers
Statutory and constitutional doctrine provides very few limits on government access to a vast amount of
information about innocent Americans. n39 Any information that we have disclosed to a third-party
individual or business entity, for example, lacks Fourth Amendment protection against unreasonable searches
and seizures. n40 Thus the Constitution places no limits on the collection of information contained in credit
card transactions, bank records, Internet service provider (ISP) records, Amazon.com transaction histories,
Facebook activities, electronic toll records, cell-tower location data (in some jurisdictions n41), and even
statements made to undercover agents or government informants--regardless of whether the agent or
informant discloses his intention to share the contents of the conversation. n42 The First Amendment
similarly lacks purchase [*17] here. Intelligence-collection powers that impact religious practice would likely
run afoul of the Free Exercise Clause as a facial matter only if they were being implemented with the purpose
of suppressing religious exercise. n43 And if the Guidelines chill expression or curtail association, the
activities they permit would be immune to facial constitutional challenge so long as they were narrowly
tailored to further the compelling interesting in preventing terrorism, an interest that has been afforded great
weight by the courts. n44 Statutes provide only slightly more protection. n45
The permissiveness of the doctrine means that the FBI's intelligence-collection powers face very few external
legal constraints. In this doctrinal vacuum, the Attorney General was able to make several post-9/11
amendments to the Guidelines that facilitate an aggressive intelligence-collection role for the FBI. The first
relevant amendment is the Guidelines' expression of the FBI's newly adopted preventive mission. Specific
language explicitly affirms the FBI's role in the intelligence community and specifies authority to collect,
retain, and analyze information for intelligence purposes. The Guidelines declare that "[t]he FBI is an
intelligence agency as well as a law enforcement agency . . . [whose] functions accordingly extend beyond
limited [*18] investigations of discrete matters" n46 and urge the Bureau to use its analytic authority to
"identify and understand trends, causes, and potential indicia of criminal activity and other threats to the
United States that would not be apparent from the investigation of discrete matters alone." n47 To facilitate
this analytical project, the Guidelines provide that all information collected "at all stages of investigative
activity is . . . to be retained and disseminated for [intelligence purposes to facilitate the solution and
prevention of crime, protect the national security, and further foreign intelligence objectives] regardless of
whether it furthers investigative objectives in a narrower or more immediate sense." n48 Even information
that wholly exonerates a group or individual from suspicion remains in government databases for storage,
analysis (sometimes by algorithmic data-mining), and dissemination for inclusion in other government
agencies' databases. n49
AT: Permutation – Do the CP
***note when prepping file --- a longer version of this ev is the “2nc Must Read”
block
Permutations severs --- doesn’t mandate curtailment of government surveillance. It
just institutes a process that might in the future result in reduced FBI powers.
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP) ***Note – APA = Administrative Procedure Act
[*46] Given the appropriate political environment, there are at least three reasons to think that the
imposition of a framework like the one suggested here is not entirely implausible. As an initial matter, there is
the FBI's concern over legitimacy. The Bureau's ability to succeed in its mission requires constructive
relationships with the communities in which it operates. n168 Yet its aggressive intelligence-collection tactics-and their concentration in Muslim communities--has alienated many members of that community, raised
suspicion and distrust of the Bureau in some quarters, and undermined cooperative relationships. n169
Improved governance is thus not the only benefit that would flow from implementing APA-like procedures;
institutionalizing rulemaking procedures would also yield improvements in community relations, public
perceptions of legitimacy, and consequently, FBI effectiveness. In addition, government documents and
scholarly commentary are replete with arguments about the value of process in legitimating government
action. n170 The FBI's practice of reaching out to nongovernmental organizations in anticipation of issuing
new intelligence-collection rules indicates an awareness of the benefits of generating the support of outside
stakeholders. n171 Subjecting itself to a set of procedural rules would go far in this regard. And finally, none
of the proposals here are substantive. They do not call upon the FBI to cede any particular powers, or
to discontinue existing policy. Indeed, they acknowledge the Attorney General's and FBI's role in
generating the rules by which the FBI operates, so long as they can show [*47] both that changes in the
FBI's authority are needed and that the proposed changes are reasonable ones. And finally, when it comes to
imposing limits on government actors, broad procedural frameworks often face less opposition than
substantive policy changes. n172
A second preliminary note concerns the role of the APA. While several of the proposed reforms are inspired
by provisions of the APA, this Article does not argue that the APA's procedural rules apply to the FBI
as a matter of binding law. n173 In fact, it does not take a position with respect to whether the Guidelines
or the DIOG constitute legislative rules subject to APA requirements, or whether they represent informal
guidance documents or "rules of agency organization, procedure, or practice," which are explicitly exempt
from many of the APA's constraints. n174 Instead, the Article looks to the way the APA and other sources of
administrative law address particular concerns and argues that intelligence-collection governance would
benefit from implementing procedures inspired the animating principles behind these sources of
administrative law.
Reject severance --- prevents testing the opportunity costs of the plan with
counterplans and disadvantages.
They are disingenuous --- the 1ac is littered with references why external controls are
necessary for the FBI. The CP takes a very different approach that promotes internal,
agency based limitations.
Relevant scholarly literature also proves the counterplan is a competing policy option
--- you should defer to lit because that is the source of topic education and legal
experts have a much greater understanding of policy precision.
Berman, 14 --- Visiting Assistant Professor of Law, Brooklyn Law School (Winter 2014, Emily,
Washington & Lee Law Review, “Regulating Domestic Intelligence Collection,” 71 Wash & Lee L. Rev. 3,
Lexis, JMP)
2. Relieving the Tension Among Multiple Missions
Fortunately, several administrative law strategies suggest ways to ensure that the Guidelines regime
sufficiently takes into account civil liberties concerns as well as security concerns. n258 Though all of
the options discussed below are possible paths to follow, the final two approaches discussed below seem
particularly promising.
Congress Reclaims Authority. One option, of course, is for Congress simply to relieve an agency of
responsibility for one of [*68] the competing goals, reclaiming that decision-making authority for itself. n259
Following revelations of civil liberties violations in the 1970s, Congress reclaimed some decision-making
authority regarding the executive's surveillance powers by enacting the Foreign Intelligence Surveillance Act
(FISA). n260 Or Congress could generate more piecemeal limitations, barring particular techniques that pose
threats to civil liberties, or defining the circumstances under which such techniques could be used. Congress
could, for example, statutorily reinstate the rule regarding the use of undercover agents to investigate First
Amendment protected activities as it existed in the Guidelines in 2001, which required that the FBI have
probable cause or a reason to believe a crime had been committed before sending an agent into the meetings
of a religious or political group. n261
Congress need not legislate to bring such changes about. If Congress wanted to alter particular investigative
tactics, or even to pressure the Justice Department to adopt of its own volition the type of procedural
framework suggested in this Article, it has an array of tools at its disposal to press for its desired policy
change. Just the threat of legislation, so long as it is credible, can spur executive action. Recall that the original
Attorney General's Guidelines were implemented to sap the momentum from Congress's efforts to enact a
legislative charter for the FBI. n262 So long as the option of enacting an FBI charter remains a viable means
for Congress to limit the Attorney General's discretion when it comes to FBI investigations, the threat of
such legislation can be used to press for Congress's desired policy outcomes. Congress possesses carrots as
well as sticks--its control over the FBI and Justice Department's budget also can impose a great [*69] deal of
pressure for policy change. Given the political economy of this policy area, n263 however, reliance on
Congress to reconcile the tension between the FBI's security mission and civil liberties is not the most
promising route.
Separate Agency Functions. Another way that the administrative state deals with competing mandates is to
separate agency functions, assigning one mandate to another (new or pre-existing) agency and leaving each
free to focus solely on its own particular mandate. The APA's requirement that investigative and adjudicative
functions be separated from one another, thereby insulating some decision making from possibly biased
influences, n264 is a way to implement this division-of-functions idea within a single agency. Professor Rachel
Barkow has advocated, for example, for the separation of adjudicative and enforcement functions within
prosecutors' offices. n265 And in the domestic investigative context, the United Kingdom offers an
illustration. Rather than relying on one agency both to enforce criminal laws and to collect intelligence, those
functions are divided between two different agencies. n266 The police forces investigate crimes and enforce
criminal law, and MI5 collects intelligence. n267 Some commentators have argued that the United States
should consider more closely the idea of spinning off the FBI's intelligence-collection function into an
independent agency. n268 This alone would not, of course, address many of the concerns that the FBI's
current powers raise. But it is possible that, recognizing the special threats to civil liberties that [*70]
intelligence collection poses, an agency designed solely for that purpose would be subjected to more stringent
limits. Indeed, to prevent overreaching, MI5's expansive intelligence-collection powers do not include arrest
or detention authority. n269 Thus powers that are necessary for successful anti-crime efforts could
nonetheless be off-limits or curtailed for the intelligence agency.
This division-of-functions solution, whether within or between agencies, is also unlikely to garner much
support in the Guidelines context. As an initial matter, congressional passivity with respect to intelligence
oversight will undermine any legislative efforts in this direction. But more importantly, many of the reforms
to the intelligence community's structure in the past decade-plus have been explicitly designed to consolidate,
rather than separate, functions. Perceived information-sharing failures prior to 9/11 led to a chorus of calls
for breaking down barriers both within and between agencies, n270 and both Congress and the executive
branch have responded. The USA PATRIOT Act's removal of the so-called "wall," which barred
coordination between law enforcement and intelligence officials, is perhaps the most well-known, though by
no means the only, post-9/11 change along these lines. n271 Regardless of the salutary impact that separation
of functions might have on civil liberties, the perceived security value of consolidation means that neither
Congress nor the executive seems likely to reverse this trend.
Generating Information. More promising models of reconciling conflicting priorities are focused on
agency culture, rather than agency structure. One mechanism for placing pressure on agency culture and
prompting decision makers to consider factors that they otherwise might not give much weight is a
requirement that an agency generate certain types of [*71] information. According to Professor Eric Biber,
for example, "[a] major goal of NEPA was to force agencies that formerly had focused too heavily on primary
missions such as highway construction, water-project development, or the extraction of natural resources, to
also consider the impacts of their actions on the environment." n272 To accomplish this goal, NEPA requires
all federal agencies proposing actions that will "significantly [affect] the quality of the human environment" to
prepare an Environmental Impact Statement and make copies available to the public for written comments.
n273 These statements augment the information available to agencies, including the possible impacts on the
environment, and proposals about how to avoid adverse environmental effects. n274 And commentators
agree that NEPA has been successful in integrating environmental goals into agency decision making. n275
Similarly, all agencies--including the FBI--must generate a Privacy Impact Assessment (PIA) for "any
substantially revised or new Information Technology System" n276 that collects, maintains, or disseminates
personally identifiable information from or about members of the public. n277 And the Department of
Homeland Security's Office of Civil Rights and Civil Liberties generates Civil Rights and Civil Liberties
Impact Assessments when required to do so by statute, when [*72] they are requested by Department
officials, or when the Officer for Civil Rights and Civil Liberties believes it appropriate. n278
Generating these assessments not only facilitates oversight efforts from the public, the legislature, or internal
watchdogs, but--like requiring written justifications for changes--it has other benefits as well. As an initial
matter, it forces agency decision makers to consciously consider the impact their proposed policy will have.
n279 As one set of commentators put it, "a systematic review of potential impacts during the planning
process can focus the attention of decision makers on issues that they would otherwise deem to be outside
their agency's mandate." n280 Requiring that effort will, at times, lead to agency choices more solicitous of
the issue on which the assessment is focused. Decision-makers might simply need to be made aware of the
impact of their choices. In addition, they will recognize that the substance of the assessment will be subject to
scrutiny and, perhaps, criticism that they would rather avoid. And by ensuring that this information is before
the decision makers while they are engaged in the decision-making process--rather than after the fact--makes
the exercise all the more likely to have an impact. n281 In addition, DHS's Privacy Office Official Guidance
on Privacy Impact Assessments notes that the use of PIAs "demonstrates to the public and to Congress" that
the new systems "have consciously incorporated privacy protections," contributing to the legitimacy of the
systems. n282
In order to ensure that the Attorney General or FBI Director consider explicitly specific "secondary" goals,
he or she should be required to prepare a "Civil Liberties Impact Statement," [*73] articulating the likely
effects of any proposed changes to the Guidelines. Requiring the Attorney General to consider, and to
explain, whether the cost to civil liberties of any particular rule or tactic outweighs its investigative benefits is
sure to raise the profile of civil liberties protection in the decision-making process. And while these
Statements will not include the detailed scientific analysis that forms part of Environmental Impact
Statements, they will identify the potential civil liberties impacts of proposed rules and force government
officials both to note those impacts, and to think about what steps can be taken to mitigate them.
Inter-Agency Lobbying. A final mechanism the administrative state has used successfully to force agencies to
consider specific, under-emphasized perspectives is for the political branches to enlist other agencies to police
the primary decision-making agency. This idea, too, has potential in the Guidelines context. In some ways,
this approach is simply a form of expanding the scope of participation, including a "lobbying" agency in the
decision-making process to represent a particular interest that the decision-making agency is required to
consider. n283 In other words, for the lobbying agency, its primary mission is to promote an interest that may
be a "secondary" goal to the decision-making agency. This approach can differ from merely expanding
participation in the process in that it envisions a more active role for the lobbying agency than merely
providing a particular view to the decision maker. Again, a recommendation already mentioned provides an
example. Recall Professors DeShazo and Freeman's study about the licensing practices of the Federal Energy
Regulatory Commission and the impact of Congress's requirement that the Commission consult with fish and
wildlife agencies prior to issuing licenses. n284 They concluded that this requirement had a real impact on the
Commission's treatment of the fish and wildlife agencies' concerns. n285
[*74] Conferring a role in the decision-making process on an agency whose priority is the protection of
fundamental rights might mitigate concerns that the FBI's primary mission will unnecessarily endanger civil
liberties. The Attorney General might, for example, be required to include officials from such an agency in
the process of devising the FBI's investigative rules--to give them a seat at the table. Just as including the Fish
and Wildlife Service in agency decision making ensures that decisions take animal habitats into account,
including an agency like the PCLOB could play a similar role with civil liberties concerns in the intelligencecollection context. n286 Members and staff of the board--many of whom, unlike staff at the Office of the
Director for National Intelligence (ODNI) or FBI charged with protecting civil liberties offices, are drawn
from the privacy and civil liberties advocacy community n287--could raise civil liberties concerns that
particular rules present, offer alternative means of achieving the FBI's desired ends, suggest procedural
protections that should accompany particular rules, or argue that certain rules should not be approved at all.
Most importantly, ensuring an entity such as the PCLOB a seat at the table means that there is a voice actively
involved in the process whose primary concern is not necessarily the prevention of terrorist acts.
While this type of interagency influence exertion can happen informally, n288 the regulatory or legislative
creation of more hierarchical forms of agency interaction to vindicate "secondary" goals is likely more
effective. Such a hierarchical structure causes decision makers to regulate in the "shadow" of that lobbying
agency, prompting the decision-making agency "to internalize the [*75] secondary mandates." n289 Consider
the role of the OIRA, through which the Executive Office of the President monitors regulation. n290 A
presidential order places OIRA in a hierarchical position over federal agencies to evaluate whether the
benefits of agencies' proposed rules exceed their costs. n291 And OIRA has the power not just to make
suggestions for modifications but actually to block implementation of an agency regulation on this
basis. n292 This "veto" power requires those agencies to take into account what they might consider a
secondary goal--efficiency--when contemplating regulatory action. n293
As with the requirement that the Attorney General or FBI Director consider input from particular entities,
the impact and effectiveness of this model would be highly contingent on the degree to which Justice
Department officials were obligated to take the PCLOB's opinions into account. n294 An agency statutorily
empowered to overrule DOJ proposals would have enormous practical effect. But such drastic (and
implausible) measures are not required. Again, there are a range of possible roles for the PCLOB. For
example, it could simply be given a seat at the table during the formulation of the Guidelines, allowing its
representative to raise civil liberties concerns. n295 Or a stronger [*76] thumb on the scale of civil liberties
might be to require a report to Congress about any instances in which the PCLOB and the Attorney General
or FBI Director are unable to reach agreement on a particular issue. n296
In sum, the procedural framework for the Guidelines should explicitly require that the Attorney General or
FBI Director take into account the civil liberties costs when weighing policy options by preparing a "Civil
Liberties Impact Statement" detailing the likely impact of the proposed changes on fundamental rights, and
should empower the PCLOB to play an active role in formulating the Guidelines. These suggested
procedures will not eliminate all concerns about civil liberties raised by the Guidelines and the DIOG. But in
a context where preferred methods of rights protection break down, they offer a second-best option. n297
And, the counterplan gives the PCLOB a veto over the process, means no certain
outcome is guaranteed.
“Should” means “must” and requires immediate legal effect
Summers 94 (Justice – Oklahoma Supreme Court, “Kelsey v. Dollarsaver Food Warehouse of Durant”,
1994 OK 123, 11-8,
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=20287#marker3fn13)
¶4 The
legal question to be resolved by the court is whether the word "should"13 in the May 18 order connotes futurity or
may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the
age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the
turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2)
constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16
[CONTINUES – TO FOOTNOTE]
13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not
always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH
LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge
quotation infra note 15. Certain
contexts mandate a construction of the term "should" as more than merely
indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in
proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California
Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section
of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v.
Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should"
would mean the same as "shall" or "must" when used in an instruction to the jury
praesenti means literally "at the present time." BLACK'S LAW
which tells the triers they "should disregard false testimony"). 14 In
phrase denotes that which in law is presently or immediately effective, as
opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365,
DICTIONARY 792 (6th Ed. 1990). In legal parlance the
1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).