The Surveillance State Attacks the First Amendment
The evangelical Christians of Greenville County, South Carolina, are afraid.
There has been talk of informants and undercover agents luring young, conservative evangelicals across the South into sham terrorist plots. The feds and the area’s police want to eliminate a particularly extreme strain of evangelical Christianity opposed to abortion, homosexuality, and secularism, whose adherents sometimes use violent imagery and speech. They fear such extreme talk could convince lone wolves or small groups of Christian extremists to target abortion clinics, gay bars, or shopping malls for attack. As a result, law enforcement has flooded these communities with informants meant to provide an early warning system for any signs of such “radicalization.”
Converts, so important to the evangelical movement, are now looked upon with suspicion — the more fervent, the more suspicious. In local barbecue joints, diners, and watering holes, the proprietors are careful not to let FOX News linger onscreen too long, fearing political discussions that could be misconstrued. After all, you can never be too sure who’s listening.
Come Sunday, the ministers who once railed against abortion, gay marriage, and Hollywood as sure signs that the U.S. is descending into godlessness will mute their messages. They will peer out at their congregations and fear that some faces aren’t interested in the Gospel, or maybe are a little too interested in every word. The once vibrant political clubs at Bob Jones University have become lifeless as students whisper about informants and fear a few misplaced words could leave them in a government database or worse.
Naturally, none of this is actually happening to evangelical Christians in South Carolina, across the South, or anywhere else. It would never be tolerated. Yet the equivalents of everything cited above did happen in and around the New York metropolitan area — just not to white, conservative, Christian Americans. But replace them with American Muslims in the New York area and you have a perfect fit, as documented by the recent report Mapping Muslims. And New York is hardly alone.
Since 9/11, American law enforcement has taken a disproportionate interest in American Muslims across the country, seeing a whole community as a national security threat, particularly in California and New York City. But here’s the thing: the facts that have been piling up ever since that date don’t support such suspicion. Not at all.
The numbers couldn’t be clearer: right-wing extremists have committed far more acts of political violence since 1990 than American Muslims. That law enforcement across the country hasn’t felt similarly compelled to infiltrate and watch over conservative Christian communities in the hopes of disrupting violent right-wing extremism confirms what American Muslims know in their bones: to be different is to be suspect.
Conducting Suspicionless Surveillance
In the aftermath of 9/11, law enforcement has infiltrated Muslim American communities and spied on them in ways that would have outraged Americans, had such tactics been used against Christian communities after the Oklahoma City bombing in 1995, or after any of the other hate crimes or anti-abortion-based acts of violence committed since then by right-wing extremists.
Documents obtained through Freedom of Information Act requests by the American Civil Liberties Union make clear that FBI agents in California used community outreach programs to gather intelligence at mosques and other local events, recording the opinions and associations of people not suspected of any crime. In 2008, the FBI loosened its internal guidelines further, allowing agents to collect demographic information on ethnically concentrated communities and map them for intelligence and investigative purposes.
There is no question that the most extreme example of such blanket, suspicion-less surveillance has been conducted by the New York City Police Department (NYPD). As revealed by the Associated Press, the NYPD’s Intelligence Division carried out a secret surveillance program on the city’s varied Muslim communities based on the erroneous belief that their religion makes them more susceptible to violent radicalization.
The program, which continues today, looks something like this, according to Mapping Muslims: “rakers,” or undercover officers, are sent into neighborhoods to identify “hot spots” — mosques, schools, restaurants, cafes, halal meat shops, hookah bars — and told to chat up people to “gauge sentiment,” while setting up “listening posts.” “Crawlers,” or informants, are then recruited and sent to infiltrate mosques and religious events. They are ordered to record what imams and congregants say and take note of who attended services and meetings.
These crawlers are encouraged to initiate “create and capture” conversations with their targets, bringing up terrorism or some other controversial topic, recording the response, and then sharing it with the NYPD. The intelligence unit also went mobile, checking out and infiltrating American-Muslim student groups from Connecticut to New Jersey and even as far away as Pennsylvania.
When news of the NYPD’s spying program broke, it shattered trust within the city’s Muslim communities, giving rise to general suspicion and fraying community ties of all sorts. This naturally raises the question: How many terrorism plots were identified and disrupted thanks to this widespread and suspicionless surveillance program? The answer: none.
Worse, the chief of the NYPD Intelligence Division admitted in sworn testimony last summer that the Muslim surveillance program did not even generate a single criminal lead. The incredibly invasive, rights-eroding program was a complete bust, a total waste of the resources of the New York City Police Department.
And that’s without even considering what is surely its most harmful aspect: the likelihood that, at least in the short term, it has caused irreparable damage to the Muslim community’s trust in the police. Surveillance, concludes the Mapping Muslims report, “has stifled constitutionally protected activity and destroyed trust between American Muslim communities and the agencies charged with protecting them.”
When people fear the police, tips dry up, potentially making the community less safe. This is important, especially given that the Muslim-American community has helped prevent, depending on whose figures you use, from 21%–40% of all terrorism plots associated with Muslims since 9/11. That’s grounds for cooperation, not alienation: a lesson that would have been learned by a police department with strong ties to and trust in the community.
Numbers May Not Lie, But They Sure Can Be Ignored
The idea that American law enforcement’s mass surveillance of Muslim communities is a necessary, if unfortunate, counterterrorism tool rests with the empirically false notion that American Muslims are more prone to political violence than other Americans.
This is simply not true.
According to the National Consortium for the Study of Terrorism and Responses to Terrorism (START), right-wing terrorists perpetrated 145 “ideologically motivated homicide incidents” between 1990 and 2010. In that same period, notes START, “al Qaeda affiliates, al Qaeda-inspired extremists, and secular Arab Nationalists committed 27 homicide incidents in the United States involving 16 perpetrators or groups of perpetrators.”
Last November, West Point’s Combating Terrorism Center published a report on America’s violent far-right extremists. Its numbers were even more startling than START’s. “The consolidated dataset,” writes report author Arie Perliger, “includes information on 4,420 violent incidents that occurred between 1990 and 2012 within U.S. borders, and which caused 670 fatalities and injured 3,053 people.” Perliger also found that the number of far-right attacks had jumped 400% in the first 11 years of the 21st century.
It’s highly probable that the FBI drastically undercounts instances of terrorism perpetrated by right-wing extremists because of cultural double standards. As the New America Foundation’s Peter Bergen has noted, attacks associated with anti-abortion or white supremacist ideologies are rarely, if ever, counted as terrorist attacks. A typical example: the massacre of worshippers at a Sikh temple in Oak Creek, Wisconsin, in August 2012 by a white supremacist.
Simply put, there is an unhealthy obsession among American law enforcement agencies (and American society at large) with stopping violence perpetrated by American Muslims, one that is wholly out of line with the numbers. There is no doubt that the events of 9/11 play into this — never mind that not one hijacker was American — but there is something much darker at work here as well. It’s the fear of a people, a culture, and a religion that most Americans do not understand and therefore see as alien and dangerous.
The fear of the “other” has wiggled its way into the core of another American generation.
“While Vile, All of This Speech Is Protected by the First Amendment”
Widespread surveillance and suspicion aren’t the only things American Muslims have to worry about, feel frustrated by, or fear. They can also point to the way fellow American Muslims are treated in the larger criminal justice system.
Since 9/11, the FBI has used tactics that clearly raise the issue of entrapment in arresting hundreds of Muslims inside the U.S. on terrorism-related charges. Investigative journalist Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, did the hard work of compiling and analyzing all of these cases between September 11, 2001, and August 2011. What he found was alarming.
“Of the 508 defendants, 243 had been targeted through an FBI informant, 158 had been caught in an FBI terrorism sting, and 49 had encountered an agent provocateur. Most of the people who didn’t face off against an informant weren’t directly involved with terrorism at all, but were instead Category II offenders, small-time criminals with distant links to terrorists overseas. Seventy-two of these Category II offenders had been charged with making false statements, while 121 had been prosecuted for immigration violations. Of the 508 cases, I could count on one hand the number of actual terrorists… who posed a direct and immediate threat to the United States.”
Those numbers, however damning, still don’t fully reflect the inequity American Muslims face within the U.S. criminal justice system when it comes to terrorism allegations. An analysis of two separate but similar cases offers a clear sense of how terrorism allegations targeting the American right and American Muslims in the criminal justice system can end with very different results. The common question running through two federal terrorism prosecutions — one against a group of seven anti-government right-wing Christian paranoids, better known as the Hutaree Militia, and the other against a Massachusetts pharmacist and Islamic radical — is what kind of speech is protected by the First Amendment and just who can rest safely under its shield?
In late March 2010, FBI raids led to the arrest of members of the Hutaree Militia across the Midwest. A Christian Patriot militia, Hutaree members believed that the end of the world was near and local, state, and federal law enforcement officerswere actually “foot soldiers” in the “New World Order.” According to the federal indictment, Hutaree leader David Brian Stone, Sr., planned the murder of a local police officer. But that was just to be the bait. When law enforcement from across the nation attended his burial, the Hutaree would attack the funeral procession with improvised explosive devices and other homemade bombs, sparking a revolt against the government.
Seven Hutaree members were charged with at least four felonies, including seditious conspiracy and conspiracy to use weapons of mass destruction. Like many post-9/11 counterterrorism investigations, the case was built via an undercover FBI agent, primarily by using the violent, antigovernment statements some of the accused made as proof that a terrorist conspiracy existed. The defendants all filed motions for a judgment of acquittal, arguing that the government didn’t have enough evidence to sustain a conviction.
In March 2012, Judge Victoria Roberts agreed with the motions of the defendants, acquitting all seven on the most serious charges. (David Stone, Sr., and his son were convicted of weapons-related offenses and were sentenced to time served.) Read Roberts’s decision and it’s hard to disagree with her ruling, which concludes that the plot was all talk among paranoid people.
Referring to Stone Sr.’s anti-government statements, Roberts writes, “While vile, all of this speech is protected by the First Amendment.” Ultimately, Roberts concluded, the government’s case was far too flimsy. “[T]he plethora of inferences the Government asks this Court to make are in excess of what the law allows,” she wrote. “But the Government crosses the line from inference to pure speculation a number of times in this case. Charges built on speculation cannot be sustained.”
Can anyone doubt, however, that if David Stone, Sr., had an Islamic-sounding name, he, his two sons, and the four other codefendants would likely be spending the rest of their lives in a federal penitentiary?
Does the First Amendment Have a Blind Spot for Muslims?
Consider the case of 29-year-old Tarek Mehanna. In April 2012, he was convicted of conspiracy to provide material support to al-Qaeda, providing material support to terrorists, conspiracy to commit murder in a foreign country, and lesser charges like lying to the FBI.
According to the federal government’s case, Mehanna and two associates went to a terrorist training camp in Yemen in 2004 with the intention of later making their way to Iraq to resist the U.S. occupation of that country. Mehanna countered that he went to Yemen to study Islam and learn Arabic. Whatever Mehanna intended, we know that, in fact, he never made it to any terrorist training camp.
That, however, wasn’t the alleged “crime” the FBI was most interested in. On his return from Yemen, Mehanna began translating into English and posting jihadist videos and documents on the Internet advocating that Muslims defend their lands against American imperialism. One video was particularly gruesome. It showed the mutilation of the remains of U.S. personnel in Iraq after the reported rape of an Iraqi girl by an American service member. After watching it, an associate asked Mehanna whether there was a way to try the U.S. serviceman suspected of the crime. Mehanna replied, “Who cares? Texas BBQ is the way to go.”
However grotesque or cruel Mehanna’s Internet activity or talk may have been, it all constituted First-Amendment protected activity. The government, however, argued that Mehanna’s online activities materially supported al-Qaeda, even though Mehanna was known to have rejected al-Qaeda’s worldview. He did not, among other things, believe civilians should be targeted in response to the actions of their government abroad. His belief was clear enough: “Those who fight Muslims may be fought, not those who have the same nationality as those who fight.”
The distinction didn’t matter. Mehanna is currently serving a 17 ½-year sentence in a federal supermax prison. His thought crime: engaging in the same kind of violent but constitutionally-protected online advocacy regularly engaged in by white supremacists and anti-government militias on the radical Right.
That, to say the least, is the benefit of the doubt American Muslims cannot take for granted in the United States more than a decade after 9/11. White Christians rarely have to worry that an informant or undercover agent has infiltrated their churches, their neighborhoods, or their student groups. They never have to fear someone watching them and taking notes. They never have to question whether the new person who seems so friendly may be just a little too friendly, just a little too provocative. They don’t have to think twice before they say or post online something political, controversial, or even violently angry. None of this is their responsibility, their burden in life, just because some random person within their community lashes out in the name of God. And that’s how it should be, for everyone.
Matthew Harwood is a freelance writer, whose work has been published by the American Conservative, Columbia Journalism Review, the Guardian, Guernica, Reason, Salon, Truthout, and the Washington Monthly. He also regularly reviews books for the Future of Freedom Foundation. He works as a media strategist at the American Civil Liberties Union in Washington, D.C. Naturally, his opinions are his own. Follow him on Twitter at @mharwood31.