by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan. In 2010 and 2011, she served as the presidentially appointed Department of Homeland Security Officer for Civil Rights and Civil Liberties.
In the fifteen years since that terrible day in 2001, we have seen significant threats to civil liberties—augmented surveillance, a cramped vision of the Fourth Amendment, abridgements to habeas corpus, aggressive use of material support laws, etc. Sometimes prompted by public dismay, we have also seen the courts, Congress and the President moderate the government’s course on some of the most aggressive practices. In addition to more well-known interventions, a less-known response (though one I have written about at length) is that the Congress and the President have institutionalized, inside of the government, somewhat domesticated civil libertarian voices on national security topics. In the 2004 Intelligence Reform and Terrorism Prevention Act, Congress instructed the lead Intelligence Community elements to establish Civil Liberties Protection Offices and in the years since, several more have been added. There is an office along these lines in the Office of the Director of National Intelligence, one in the CIA, the NSA, etc. These offices are supposed to ensure that “civil liberties and privacy protections [are] integral considerations in the planning of intelligence activities” and that “[i]ntelligence activities [are] conducted in a manner that protects civil liberties and privacy.”
In my view, the threats to civil rights are even more significant than the threats to civil liberties. There has been a palpable erosion of American equality as Arabs and Muslims, including American citizens, have been targeted for special law enforcement, intelligence and immigration attention. Two examples, which could be multiplied many times over: It is commonplace, now, for non-Muslims who express fear of their Muslim fellow airline passengers based on innocuous phrases or ordinary behavior to have those fears ratified rather than rebutted when the Muslims (and the occasional Sikh) are pulled off the plane, facing questioning by the FBI. And Muslim students have to worry that their associations may be monitored, their conversations reported to police, perhaps twisted and used to their detriment.
And yet we have seen far less civil rights than civil liberties recalibration. Take, for example, the issue of selective immigration enforcement. The Supreme Court in 1999 left the door for challenges to this practice only the tiniest bit ajar, noting that in general selective immigration enforcement was lawful, though the Court “need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” as to justify an exception. In the years since, I am not aware of any court that has found any case sufficiently “outrageous” to support a challenge.