Reflections on Security, Race, and Rights Twenty-years After 9/11

Ref‌lections on Security, Race, and Rights Twenty-

Years After 9/11

Sahar F. Aziz*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

I. RACE AND COUNTERTERRORISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

A. FBI Voluntary Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

B. Terrorist Watch Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

C. Public Scrutiny and Government Surveillance . . . . . . . . . . . . 141

II. MANUFACTURING “MUSLIM TERRORISM” THROUGH PREDATORY STING

OPERATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

III. INSIGHTS FOR FUTURE POLICY MAKERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

A. Be a Professional, Not a Politician . . . . . . . . . . . . . . . . . . . . 147

B. Improve Standards and Qualif‌ications in Hiring National

Security Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

C. Do Not Tokenize Muslims and Arabs in Government . . . . . . . 149

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

INTRODUCTION

I began the fall of 2001 eager to start law school with a specif‌ic professional

goal: to support the rule of law and individual rights in Egypt, the country of my

birth. Having completed all my schooling in America, I was indoctrinated to

believe this country was the land of the free where individual rights were not just

embedded in law, but also enforced in practice. I trusted the American legal sys-

tem in protecting human rights and empowering its people to check abuses of

power through democratic means. In cases where the state infringed on those

rights, they were anomalies or exceptions that could be rectif‌ied through reforms.

In short, I was a true believer in the rule of law. For that reason, I was eager to use

my law degree to partner with human rights advocates and lawyers in the Middle

East to support their indigenous efforts to obtain dignity, equality, and freedom.

Little did I know then, before the largest terrorist attack on U.S. soil, the extent

to which my faith in the American legal system would diminish. The ensuing

national crisis exposed the ugly underbelly of Western legal systems – they often

serve the political objectives of the powerful under the guise of liberalism’s neu-

trality. In the months and years following the September 11

th

attacks, I witnessed

my Muslim and Arab communities exempted, exceptionalized, and cast out of

* Professor of Law, Chancellor’s Social Justice Scholar, and Middle East Legal Studies Scholar at

Rutgers University Law School. Sahar Aziz is the founding Director of the Center for Security, Race

and Rights (csrr.rutgers.edu) and author of THE RACIAL MUSLIM: WHEN RACISM QUASHES RELIGIOUS

FREEDOM (2021). She thanks Dina Mansour for her able research assistance. © 2021, Sahar F. Aziz.

135

rights regimes under the guise of national security. I was alarmed to discover that

their political vulnerability as immigrants, religious minorities, and ethnic minor-

ities made them more prone to abuse, contradicting the values of a nation that

boasts a robust civil rights regime for its people, including the immigrants who

arrive on its shores each year. Their multiple subordinated identities made

Muslims and Arabs easy prey for a nation seeking retribution for the murder of

3,000 civilians on its soil.

My decision to go to law school in that historical moment turned out to be

timely, but not for the reasons I expected. That fateful day of September 11, 2001

would be the start of a two-decade journey working alongside other lawyers in

defense of the rule of law – not in Egypt – but right here in the United States. It

did not take long for me to come to the painful realization that the race and reli-

gion of groups targeted by rights-infringing national security practices exempts

them from some of the most basic rule of law principles.

1

Laws neutral on their face were weaponized to surveil, investigate, deport, and

harass Muslims and Arabs in the United States. International law was f‌louted to

kidnap, assassinate, torture, and indef‌initely detain Muslims in an extraordinary

rendition program.

2

Had Guantanamo Bay not been controlled by the United

States, we would have unf‌linchingly called it a gulag. Its Muslim prisoners were

othered as terrorists, savages, and “enemy combatants,” cast out of the rights re-

gime of our “civilized world.”

3

Within our own borders, tens of thousands of

Muslims experienced civil and human rights violations in immigration and coun-

terterrorism enforcement due to an anything but neutral rationale that “our”

national security takes precedence over “their” individual rights.

While the scope of national security laws deployed to (over) police Muslim

American communities is too far-reaching to exhume here, this essay expounds

on three counterterrorism practices that have been most harmful to their civil and

dignitary rights: 1) FBI “voluntary” interviews, 2) physical and electronic surveil-

lance, and 3) predatory sting operations led by dubious informants and over-

zealous undercover agents. All three have been wildly successful in chilling reli-

gious freedom, censuring political dissent, and making Muslim-Americans feel

like second-class citizens.

4

My critiques center on both law and selective enforce-

ment because the two cannot be disconnected, whether in national security

1. KATHERYN MONTALBANO, GOVERNMENT SURVEILLANCE OF RELIGIOUS EXPRESSION: MORMONS,

QUAKERS, AND MUSLIMS IN THE UNITED STATES (2019) (examining various cases where the government

subjected religious minorities to heightened surveillance and prosecutions).

2. See Bernard Lewis, The Roots of Muslim Rage: Why so Many Muslims deeply resent the West, and

why their bitterness will not easily be mollif‌ied, ATLANTIC (September 1990), https://perma.cc/GW2U-

KG92; Robert Johnson, Extraordinary Rendition: A Wrong Without a Right, 43 U. RICH. L. REV. 1135

(2009).

3. Remarks at the Chief Executive Off‌icers Summit in Shanghai, II Pub. Papers 1273 (Oct. 20, 2001),

https://perma.cc/E7W2-24ZN. See generally Sherene Razack, CASTING OUT: THE EVICTION OF

MUSLIMS FROM WESTERN LAW AND POLITICS (2008) (providing a political and historical context

underpinning the failure of law to protect Muslims’ civil rights).

4. Paul Vitello & Kirk Semple, Muslims Say F.B.I. Tactics Sow Anger and Fear, N.Y. TIMES (Dec.

17, 2009), https://perma.cc/UR4V-796C; see MONTALBANO, supra note 1, at 123-127 (describing how

136 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:135