September 14, 2016

Private: Equality Matters in the National Security Context, Too

ACSblog Symposium on the Fifteenth Anniversary of Sept. 11, Margo Schlanger

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. 

*This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

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.

It is not that there has been no civil rights progress at all.  In the immediate aftermath of 9/11, DOJ rounded up over a thousand Muslims—citizens and foreigners—nationwide and subjected many to significant mistreatment in detention.  And 2003 Department of Justice “guidance” document on racial profiling conspicuously excluded border or national security activities and did not cover religion, at all. So it was a step forward when the DOJ issued new guidance, in 2014, that does a little bit better (as does the 2013 analogous document at DHS).

But with respect to intelligence, rather than domestic law enforcement and in the core of the Intelligence Community—ODNI, CIA, NSA, etc.—even in the Obama administration, there have been only the vaguest gestures towards equality commitments. For example, the President’s 2014 reform policy directive provides:

The United States shall not collect signals intelligence for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion.

The phrasing disallows only the most egregious (and unusual) animus-driven racism, leaving entirely unconstrained the far more common and far more worrisome, use of ethnicity, race and religion as a proxy for suspicion.  

And the IC’s older foundational documents do not even wave at civil rights. Executive Order 12333, the closest thing the Intelligence Community (IC) has to a charter, calls out liberty but not equality:

The United States Government has a solemn obligation and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties and privacy rights guaranteed by Federal law. 

Correspondingly, the IC’s civil liberties offices (with the exception of the DHS’s office, which has an additional authorizing statute) do not reference civil rights as part of their mission.

In short, there is no evidence that equality concerns are given any real weight when intelligence policy and practices are being formulated and the infrastructure that is supposed to bring civil libertarian values into the IC is nearly entirely absent for civil rights values. And of course there has been additional damage done to American Muslim equality by Donald Trump’s bigotry—which has authorized and reinforced the idea that Muslims are scary outsiders and that even the innocent among them are undeserving of consideration.

What is going on here? In so many situations, including this one, stress encourages hardening of the boundaries between the ins and the outs, people who merit solicitude and those who do not.  Indeed, perhaps progress on liberty even discourages progress on equality.  In a 2003 paper, Mark Tushnet speculated that national-security civil liberties progress may actually come with a civil rights cost. He wrote, “The social learning process, that is, couples learning about exaggerated reactions to perceived threats with a persistent creation of an Other—today, the non-citizen—who is outside the scope of our concern. Perhaps, indeed, we are able to discern exaggerated reactions and learn to reduce their reach, only because we are able to displace our concerns on to that Other.”  The argument is, for example, that it is easier to eliminate a surveillance program for everyone if it is preserved for some suspicious group—even if suspicion is based on equality-threatening criteria like race, religion or national origin.

At other times in our history, though, we have seen liberty and equality concerns reinforce each other, rather than trade off. A good many of the civil liberties victories in the Supreme Court in the 1960s—cases protecting freedom of association and anonymity, protest rights and the like—were driven by the civil rights context in which those interests were threatened. The Court responded to civil liberties incursions that were particularly problematic because they undermined the equality of African Americans working to dismantle Jim Crow.

We need a response like that, now. We need to couple civil rights with civil liberties—every time—when we talk about our aspirations for justice for the national security state. We need to resist liberty “solutions” that concentrate the burdens of law enforcement and intelligence scrutiny on small minorities defined by characteristics like religion, national origin and ethnicity. We must incorporate civil rights into our instructions to the national security agencies and insist, every time, that equality is as important a value as liberty.