Losing Liberty The State of freedom 10 years after the patriot act Published October 2011

Muslim Advocates is a national legal advocacy and educational organization dedicated to promoting freedom, justice, and equality for all, regardless of faith, though legal advocacy, policy engagement, and civic education, and by serving as a legal resource to promote the full and meaningful participation of Muslims in American public life.

Muslim Advocates www.muslimadvocates.org [email protected] © All rights reserved. LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” ~Benjamin Franklin LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT f o r w a r d

The weeks after the harrowing attacks on 9/11 were not a proud time for civil liberties in the United States. All over Washington, I witnessed a dangerous and deeply offensive attitude develop: if you wanted to support your country, you had to support the Patriot Act. The political pressure seemed almost overwhelming, and, sadly, even some of our strongest leaders succumbed to the intimidation. But what I knew at the time, and what many others have come to understand, is that the Patriot Act was not a law narrowly written to address our country’s new realities while preserving the constitutional rights of our citizens. Instead, the Patriot Act was a blatant power-grab that gave unprecedented, unchecked power to the government to arrest, detain, and spy on our nation’s citizens with little or no judicial oversight. It’s a law that does not live up to our American ideals. Sadly, no Americans have faced more unjust intrusion and harassment from the Patriot Act than our Muslim community. Before casting the lone Senate vote against the Patriot Act, I expressed my concern that the period after 9/11 could follow as another tragic example of civil liberties in America taking a backseat to the exigencies of war; another period when one group of Americans would be singled out and discriminated against under the guise of national security. Unfortunately, in many ways, the years since 9/11 have become just that. Now, on the tenth anniversary of the passage of the Patriot Act, we must redouble our efforts to rein in the abuses of power that law still allows. I’m so pleased to see that work being done by organizations like Muslim Advocates. And I’m especially proud of their President and Executive Director, Farhana Khera, my friend and former advisor. Together, we must all work to honor and restore our common heritage of basic rights.

Russell D. Feingold Former U.S. Senator (D-WI) October 26, 2011 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT letter from the executive director

Dear Friend:

Ten years ago, I stood on the Senate floor as our nation’s leaders debated one of the most brazen assaults on constitutional rights and freedoms in the history of our country. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“Patriot Act”) gave the government unprecedented, unchecked power to target and monitor law-abiding Americans. The final version of the Patriot Act was introduced in the House on October 23, 2001, where it quickly passed 357-66, and in the Senate on October 25, 2001, where it passed 98-1 (the sole dissenting vote being that of my boss at the time, Senator Russ Feingold). President George W. Bush signed the bill into law the very next day, October 26, 2001. After the horrific attacks of 9/11 and days after news outlets and members of Congress were targeted by anthrax mailings, our leaders felt an urgent need to do something. Passage of the Patriot Act was paramount. Any debate or criticism of the bill was deemed unpatriotic and “soft” on terrorism. The speed and lack of full debate that led to the passage of this legislation foreshadowed the way in which national security legislation, policies, and practices would unfold over the next decade. The government would soon focus the Patriot Act’s new powers on law-abiding citizens not based on criminal behavior, but based on race, ethnicity, religion, national origin, or First Amendment protected activities. Law enforcement’s actions would cast a cloud of suspicion over entire faith, ethnic, and racial groups, specifically Muslims, South Asians, Arabs, and Middle Easterners, sowing fear and mistrust among all Americans. So where are we as a country ten years after the passage of the Patriot Act? • The government can review your telephone, e-mail, internet activity, medical, educational, banking, and other financial records without any evidence that you’ve done anything unlawful. • Government agents can visit you at work because of an article you post on Facebook, stop you at the border to seize and search your laptop, and ask you questions such as, “Do you pray?” and “Why do you send your children to a religious school?” • Donating $150 to a charity that helps needy children can lead to a knock on the door by the FBI. • Members of Congress speak at hate rallies where protesters scream racial and religious epithets at young children and hold congressional hearings targeting an entire faith community, without official censure or repercussions from their colleagues. Losing Liberty: The State of Freedom Ten Years After the Patriot Act is a look at how the American Muslim community—a community that has borne the brunt of overly broad, unchecked government powers—and the freedoms guaranteed by the U.S. Constitution have fared in the last ten years since the enactment of the Patriot Act. It is my hope that this report will not only be a part of the historical record of this important period in U.S. history, but will also be adopted as a blueprint for how government officials can repair the damage and uphold the Constitution once again. Thank you for reading.

Best regards, Farhana Y. Khera President & Executive Director Muslim Advocates San Francisco, California October 26, 2011 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT table of contents

Executive Summary 1

I. Introduction 4

II. The Not-So-Patriotic Act 6

III. Thoughts, Faith & Daily Activities of Innocent 10 Americans Under Surveillance A. The New FBI Adopts Biased, Bad Policing 10 B. Thought Police At The Border 14

IV. Religious & Civic Duty To Give Charity Faces Hurdles 17

V. Anti-Muslim Bigotry & Discrimination Thrives 21 A. Hate In The Public Discourse 21 B. Divisive Rhetoric & Fear-Mongering By Public Officials 23 C. Violations of American Muslim Rights & Freedoms 26 Hate Crimes 26 Opposition To Mosques 29 Employment Discrimination 30 Harassment and Bullying of Children 31 Using Sharia To Incite Fear 33

VI. Conclusion and Recommendations 35

Endnotes 41 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT executive summary

In a climate of rapidly rising fear and suspicion Muslim attire,” attend mosques, and have strong after September 11, 2001, the Patriot Act was quickly religious beliefs. The FBI routinely sends its agents or signed into law on October 26, 2001, granting informants into mosques and community gatherings unprecedented powers to the federal government to to monitor individuals and their activities. The DIOG spy on innocent Americans. The freedom to express authorizes massive data gathering on the location, oneself, to worship, to live, to work, and to travel— age, and other demographic data of racial and ethnic free of government interference—are among the communities, including ethnic-owned businesses and freedoms protected by the U.S. Constitution. Yet, the charitable giving. Consequently, Muslims all over Patriot Act and countless subsequent federal policies the country have been targeted by law enforcement, and practices violate these very fundamental freedoms not based on wrongdoing, but simply because their by singling out Muslims in America for detention, religion, ethnicity, or national origin is viewed as a interrogation, and surveillance. Ten years after passage proxy for criminal activity. of the Patriot Act, this report illustrates the reality This kind of racial, religious, and ethnic profiling for Muslims in America today in three different occurs daily at U.S. borders and ports of entry where contexts: the surveillance of thoughts, faith, and daily Customs and Border Protection (“CBP”) agents single activities; how anti-terrorism financing laws chill the out Muslim travelers for searches, lengthy detentions, religious and civic duty of giving charity; and everyday and interrogations. Law-abiding Americans from manifestations of bigotry and discrimination. all walks of life have been interrogated about their political views and activities, religious beliefs and THOUGHTS, FAITH & DAILY practices, and associations with organizations, friends, ACTIVITIES OF INNOCENT and relatives—all without any evidence that they are AMERICANS UNDER SURVEILLANCE engaged in unlawful activity. Questions have included, In the post-9/11 era, federal agencies have “How many gods do you believe in?” and “How many increasingly focused their attention on domestic times a day do you pray?” While the government intelligence gathering. The Federal Bureau of has a legitimate interest in verifying the identity Investigation (“FBI”), a law enforcement agency of those entering the country, it has no legitimate primarily responsible for investigating crimes, has interest in inquiring about Americans’ political beliefs, morphed into an intelligence agency preoccupied religious beliefs and practices, or lawful associations. with gathering massive amounts of data on innocent These beliefs and activities are protected by the First Muslim, South Asian, Arab, and Middle Eastern Amendment and have no bearing on whether an Americans who have nothing to do with criminal American should be allowed to re-enter the country. activity. The Attorney General Guidelines for Yet, the indignity of having to reveal deeply personal Domestic FBI Operations (“AG Guidelines”) and information about their faith and political views to the Domestic Investigations and Operations Guide federal officers is a reality for many American Muslim (“DIOG”), along with laws like the Patriot Act and travelers today. the Foreign Intelligence Surveillance Act (“FISA”), determine the rules by which domestic surveillance RELIGIOUS & CIVIC DUTY TO GIVE operations must comply. Since 9/11, these rules have CHARITY FACES HURDLES been relaxed. Today, FBI agents are instructed to view Muslims in America also face hurdles to the Muslims with suspicion by, for example, looking out religious and civic obligation of alms-giving, or zakat, for converts to Islam and those who wear “traditional to organizations that feed the hungry, care for the

1 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

sick, and aid victims of natural disasters. Decades Representative Peter King (R-NY) and his hearings of overly broad and complicated federal laws and as chair of the House Homeland Security Committee policies have targeted American Muslim donors and on the “radicalization” of the American Muslim charities for federal investigation and prosecution. community. Instead of focusing on the commission of terrorist Taken together, the experiences of Muslims acts, the statute criminalizing “material support” to over the past decade paint a stark picture of the a terrorist organization can prosecute the giving of state of freedom in America today. It is time for the humanitarian aid, distributing literature, or engaging President, Congress, and executive branch officials in political advocacy—even in the absence of specific to take action to protect the fundamental rights and intent to further an organization’s terrorist activities. freedoms guaranteed to all Americans. To further compound the problem, government lists of prohibited organizations are numerous and SUMMARY OF KEY constantly changing with no effective notice, thereby RECOMMENDATIONS failing to provide donors with the information The following is a summary of our key they require to ensure compliance with the law. recommendations. The full set of recommendations The current laws also make no exceptions for good can be found in the Conclusion and faith donors who unintentionally give charity to an Recommendations section of the report. organization that has been designated as prohibited. Consequently, the Muslim community has become 1) Rein in Unfettered, Baseless Surveillance increasingly fearful and reluctant to donate to • The U.S. Department of Justice (“Justice charities and to fulfill the religious and civic Department”) and the FBI should revise the AG obligation of giving charity. Guidelines to require a factual predicate before the commencement of an assessment and include ANTI-MUSLIM BIGOTRY & heightened levels of supervisory approval and DISCRIMINATION THRIVES factual predicates for investigations that implicate The government’s intensified scrutiny of the First Amendment protected activities. Muslim community parallels the marked increase in • The Justice Department should fulfill then- anti-Muslim incidents and the acceptance of anti- candidate Obama’s promise to undertake a Muslim rhetoric and attitudes in public discourse. comprehensive review of legal surveillance Hate crimes, employment discrimination, and school authorities to propose amendments that will bullying against Muslims and those perceived to protect First Amendment protected activities. be Muslim are on the rise. Opposition to building • The Justice Department, U.S. Department of mosques is growing. Anti-Islam hate groups and Homeland Security (“DHS”), and the FBI should movements continue to spread falsehoods and review training materials and operations to misinformation about Muslims and Islam. Recent incorporate an understanding of First Amendment events include a campaign to oppose the construction protected activities and the risks to civil liberties of a Muslim community center in lower Manhattan; from overbroad government activities. These a quixotic “anti-Sharia” movement that claims Islamic agencies should further revise materials that law is on the verge of taking over the U.S. legal and might be used to promote misunderstanding and political system; and Florida Pastor Terry Jones’ and intolerance of Muslims and incorporate training on copycat Quran burning stunts. Public officials are non-discrimination, especially against Muslims. also responsible for perpetuating ignorant stereotypes • The Secretary of Homeland Security should about Muslims, the most recent example being prohibit CBP agents from asking questions related

2 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

to First Amendment protected activity (e.g., • The Treasury Department and the U.S. political beliefs, religious practices, associations Department of State, which collectively maintain with and contributions to lawful charitable the various prohibited lists, should be directed to organizations) of Americans entering the United create a single, user-friendly, searchable database States. that compiles all prohibited lists in one central • The Secretary of Homeland Security should also location housed with the Office of Foreign Assets direct CBP to adopt revisions to the administrative Control at the Treasury Department. redress system such that individuals seeking explanations for the scrutiny, or removal from 3) Combat Anti-Muslim Hate & Discrimination illegitimate inclusion on government watch lists, • The administration, particularly the U.S. receive due process, including an opportunity Department of Education, should conduct to be heard and a transparent decision upon the civil rights compliance reviews of schools with completion of review. vulnerable Muslim, Arab, Middle Eastern, Sikh, • Congress should enact legislation, such as the and South Asian student populations. End Racial Profiling Act, which bans racial, • The Justice Department should pursue high ethnic, religious, and national origin profiling by profile investigations and prosecutions of anti- federal, state, and local law enforcement in all law Muslim hate crime cases to send a clear, strong enforcement and intelligence gathering activities, message that hate crimes will not be tolerated. including profiling at the border. • The Justice Department and all U.S. Attorneys should increase and enhance their engagement 2) Ease Hurdles to Charitable Giving with state and local law enforcement to ensure • Congress should amend the material support that all bias-motivated crimes are prevented, for terrorism statute to create an exemption for detected, investigated, and prosecuted. humanitarian aid, such as food and foodstuffs, • The Justice Department Civil Rights Division water, clothing, shelter, sanitation services, and should create one centralized hotline and portal medical services, which are not protected under for the receipt, referral, and tracking of all civil existing law. rights complaints to the Division. This data • The President should require the Office of Foreign collection and tracking mechanism should include Assets Control to promulgate fair procedures for race, ethnicity, national origin, and religion Specially Designated Global Terrorist designation categories and sub-categories to ensure that and review. complaints by Muslim, Arab, Middle Eastern, • The President should direct the Secretary of Sikh, and South Asian Americans can be tracked. State to waive the material support prohibition • Members of Congress and all public officials for technical advice and assistance, training, should refrain from making false and and personnel where intended for humanitarian inflammatory statements about any religion, purposes and not used to carry out terrorist or ethnic, racial or religious groups, including activity, in order to ensure that well-intentioned Islam and the American Muslim community, and charities can deliver essential aid such as water and condemn those public officials who engage in shelter. hateful rhetoric or actions. • The Justice Department and the U.S. Department • Congress should make changes to the Hate of Treasury (“Treasury Department”) should issue Crimes Statistics Act to specify additional ethnic agency orders providing a safe-harbor for well- groups in the Bias Motivation section, under intentioned donors. Ethnicity/National Origin.

3 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT i. introduction

On October 26, 2001, President George practices in the name of national security of which W. Bush signed into law the Uniting and Muslims and those perceived to be Muslim have Strengthening America by Providing Appropriate borne the brunt. This includes the roundup and Tools Required to Intercept and Obstruct detention of hundreds of mostly Arab and Muslim Terrorism Act of 2001 (“Patriot Act”),1 granting men in the weeks after the 9/11 attacks; the abuse unprecedented power to law enforcement agencies of immigration laws and material witness authority to scrutinize and monitor Americans. The Federal to detain individuals for long periods of time; the Bureau of Investigations (“FBI”) could now sweep creation of special detention facilities and units up enormous amounts of data about telephone that severely restrict communication to segregate calls; e-mails; internet activity; banking, credit, and house primarily Muslim prisoners; a series and credit card transactions; and other aspects of of interview programs targeting mostly Arab and the daily lives of millions of Americans, all without Muslim men; and the NSEERS Special Registration requiring any suspicion of wrongdoing. The Patriot program. While some of these activities were Act remains a decade-long example of rampant short-term, certain government efforts to target, government power that has gone unchecked as monitor, and interrogate the Muslim community, the FBI largely shields its use of the law from the without any suspicion or evidence of criminal courts and Congress. The passage of the Patriot Act behavior, have grown in size and scope. With law marked the beginning of a new test for democracy enforcement casting its net so unnecessarily wide, in America, not unlike other periods in U.S. history it is difficult to find a Muslim today who has not tainted by singling out a racial, religious, or ethnic been contacted by law enforcement or affected by community for discriminatory treatment that these policies. national leaders later came to regret. Since September 11, 2001, Muslims and Perhaps just as troubling, the passage of the those perceived to be Muslim—including Arabs, Patriot Act opened the floodgates to a plethora Middle Easterners, Sikhs, and South Asians— of discriminatory and invasive laws, policies, and have been continuously targeted by federal law enforcement based on religion, race, or ethnicity without suspicion of wrongdoing. This includes FBI assessments, investigations, and interviews; extensive and invasive questioning and searches at the border; the surveillance of community organizations and mosques, often relying on informants and undercover agents; and massive data gathering on law-abiding individuals. The federal government’s efforts have also focused on America’s charitable sector. Laws that existed prior to 9/11 were modified, executive orders were written, and policies adopted that purport to prevent U.S. financial and other resources from being sent overseas to support

4 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

discrimination; opposition to mosques; and hate With law enforcement casting its net so crimes targeting Muslim, Arab, Middle Eastern, unnecessarily wide, it is difficult to find a Sikh, and South Asian Americans. As a result, Muslim today who has not been contacted by law enforcement or affected by these policies. American Muslims are anxious about their future in a society that is mainstreaming hatred and suspicion and moving away from our shared values terrorism. These overly broad policies and practices of freedom, truth, and fairness. have created burdens on legitimate philanthropy Ten years after the Patriot Act was signed that especially affect the religious and civic into law, this report seeks to highlight the above- obligation of Muslims of zakat (alms-giving)—a mentioned trends; describe the impact on the consequence that even the U.S. Department of freedoms of American Muslims who have been Treasury concedes.2 A myriad of Muslim charities unfairly targeted; and offer recommendations to have been investigated on suspicion of wrongdoing,3 the President, Congress, and executive branch and donors face the very real threat of invasive officials on how to protect American Muslims from questioning by law enforcement. These onerous discrimination on the basis of their race, ethnicity, policies thwart the development of important religion, or national origin. social and civic charities here at home, as well as humanitarian relief for crises overseas. The U.S. Constitution and America’s promise of life, liberty, and the pursuit of happiness are the values that bind us together as Americans. The freedom to express oneself, to worship, to work, and to travel, free of government interference, are among the freedoms protected by the Bill of Rights. Yet, the Patriot Act and countless new federal policies quickly threatened these very fundamental freedoms by singling out Muslims in America for detention, interrogation, and surveillance. As these activities took place, the message was clear to the American people: fear your Muslim neighbor. Hate crimes, vandalism of mosques, and discrimination and harassment in schools and the workplace soon rose. In a poll released in August 2011, nearly half of American Muslims have personally experienced discrimination in the last year, considerably more than Mormons, Jews, Catholics, and Protestants.4 While Muslims are targeted by law enforcement, there has been an alarming rise of anti-Muslim rhetoric and incidents throughout the country. This includes irresponsible and dangerous statements by law enforcement and other government officials; a rampant increase in anti-Muslim harassment and

5 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT ii. the not-so-patriotic act

Within days of September 11, 2001, then-U.S. cautioned the administration and Congress against Attorney General John Ashcroft proposed the first taking hasty measures that would likely sacrifice the comprehensive anti-terrorism bill to Congress. constitutional ideals upon which this country was He called on Congress to act quickly and to pass, built. Attorney General Ashcroft angrily dismissed within a week of its introduction,5 a law vastly the critics as aiding terrorists. expanding the government’s ability to collect information on millions of law-abiding Americans, “To those who pit Americans against immigrants, diminishing checks and balances on domestic citizens against non-citizens, to those who surveillance. While the U.S. Department of Justice scare peace-loving people with phantoms of lost (“Justice Department”) proposal contained some liberty, my message is this: Your tactics only reasonable suggestions, for example, to update the aid terrorists for they erode our national unity and diminish our resolve. They give ammunition law to reflect evolving communications technology, to America’s enemies and pause to America’s numerous provisions went too far, granting law friends. They encourage people of good will to enforcement powers that encroached on rights remain silent in the face of evil.”8 – Former U.S. and protections guaranteed by the Constitution. Attorney General John Ashcroft A final bill was introduced in the U.S. House of Representatives on October 23, 2001, and passed the very next day with 357 Representatives voting Ashcroft’s words in favor, and merely 66 voting against the measure.6 silenced dissent in In the U.S. Senate, an overwhelming 98 Senators Congress, as the voted in favor of the measure, with Senator Russ administration Feingold (D-WI) casting the sole ‘no’ vote.7 After returned seeking more sweeping through Congress with little debate, the powers and more Patriot Act was signed into law by President George abrogations of the Constitution and our justice Bush on October 26, 2001. system. The frenzied pace at which the Patriot Act Meanwhile, the Patriot Act amended over was enacted is symbolic of the widespread fear fifteen federal statutes dealing with, among and urgency that seized the country in the other areas of law, criminal procedure, foreign weeks following September 11th. One of the intelligence, and immigration. It expanded administration’s first steps—the Patriot Act— surveillance laws permitting the government to spy proved the beginning of America’s descent into a on Americans to an unprecedented degree, while time of unchecked executive power and a steady diminishing checks and balances that might have erosion of civil liberties. The Patriot Act passed prevented abuse of the system. Numerous privacy without much discussion; the usual legislative and civil rights organizations and political leaders procedure consisting of public hearings, markup, have extensively critiqued the Patriot Act’s most 9 and floor debate in both chambers was bypassed troublesome provisions. almost entirely. This did not go unnoticed. In the The following sections are merely some of next few months, civil libertarians, legal scholars, the ways in which overly broad surveillance and and concerned Americans from all walks of life other tools continue to be a threat to all innocent

6 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

Americans who can be targeted by the FBI for disclosing this fact publicly. While some secrecy monitoring of phone calls, e-mails, online activities, may be necessary in legitimate law enforcement and searches of homes and businesses.10 investigations, the secrecy provisions in the Patriot Act are overbroad and unnecessarily infringe on free Section 215 of the Patriot Act: Business, speech. Telephone, Financial, Medical Records & Other Tangible Items. This section allows the In 2004, the first lawsuit of its government to obtain any “tangible thing” (which kind challenged the gag order includes books, records, papers, documents, and provision preventing one such other items) in connection with an international recipient from discussing the terrorism or foreign intelligence investigation and NSL with anyone, including his does not require reasonable suspicion or probable fiancée, his close friends, and his family.13 After cause that the person being investigated or the six years of litigation, plaintiff Nicholas Merrill, the president of a New York-based internet thing being seized is related to suspected criminal service provider, was finally able to identify 11 activity. In other words, compliance with the himself publicly as an NSL recipient.14 Still, law only requires that the government claim the Merrill is not allowed to reveal the information items or documents are connected to a terrorism he was asked to turn over to the FBI. or foreign intelligence investigation, and nothing Between 2003 and 2006, the FBI is said to more. This provision is written so broadly that have issued more than 192,500 letters, which is almost 50,000 NSLs each year.15 the FBI now has the power to access a slew of data detailing the private lives of law-abiding Americans, including telephone records, e-mails, Over the past decade, the issuance of NSLs bank statements, credit card transactions, medical have resulted in thousands of dossiers about records, and educational records. innocent people collected from telephone logs, email addresses of persons with whom they have Section 505 of the Patriot Act: National corresponded, internet accounts, financial records, Security Letters. In addition to rampant and credit reports.16 government access to “tangible things” with no connection to criminal activity, the Patriot Act Section 206 of the Patriot Act: Roving allows FBI field agents to obtain other records Wiretaps. The Patriot Act also loosens restrictions using “national security letters (NSLs),” which are that previously required court authorization for a form of administrative subpoenas not requiring wiretapping communication devices such as any judicial approval or even internal findings of cell phones and computers to be specific.17 In a 12 probable cause. By issuing an NSL, the FBI can terrorism or foreign intelligence investigation, force people and institutions—such as telephone this “roving wiretap” provision, which was further companies, banks, credit agencies, and internet expanded in 2002, now permits the government to service providers—to turn over records on their obtain surveillance orders without identifying the customers, without their consent. This is allowed communication device to be tapped, or without as long as there is an internal certification that naming the individual to be surveilled. Since the records sought are “relevant” to a terrorism or naming the individual is no longer a requirement, foreign intelligence investigation. the government could monitor all individuals After receiving an NSL, a “gag order” utilizing the communications device, such as a cell provision forbids the recipient of the letter from

7 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

phone, pay phone or landline, and thus monitor federal agents entered Mayfield’s home repeatedly the communications of innocent Americans. for weeks, downloaded data from his computer, and planted listening devices in his home with Section 213 of the Patriot Act: “Sneak and no notice to him.20 After Mayfield was eventually Peek.” The “sneak and peek” provision allows released, he filed a successful lawsuit against the law enforcement, in any criminal investigation, to FBI, receiving compensation and an apology. search homes and businesses while the occupants are away, and inform them only after the fact, Concern about the Patriot Act is not a perhaps weeks or months later.18 The Act’s partisan issue. While then-Senator Feingold proponents argue that this measure is necessary (D-WI), Senator Richard Durbin (D-IL), to prevent evidence from being destroyed or Congressman John Conyers (D-MI), and concealed, to prevent flight from prosecution, Congressman Jerrold Nadler (D-NY) have led or to prevent threat to life or physical safety efforts to reform the Patriot Act, they have been of an individual. But the provision goes a step often joined by Republicans such as (now former) further and includes a “catch-all” provision Senators Larry Craig (R-ID) and John Sununu allowing a “sneak and peek” search so long as (R-NH) and Senator Lisa Murkowski (R-AK). In the government shows that immediate notice a 2003 interview, former Congressman Bob Barr would seriously jeopardize an investigation. This (R-GA) stated his regret at having voted for the “catch-all” provision essentially swallows the rule. Patriot Act: “I was hoping at the time that it would Furthermore, the “sneak and peek” provisions fails not be used as a floor but as a ceiling. But it’s been to include a time limit (e.g., seven days delayed a taking-off point for expanded authority in a notice, renewable upon a court order). These number of areas . . . the administration seems to be deficiencies weaken the Fourth Amendment’s pushing its application as broadly as it can in non- safeguard that law enforcement “knock and terrorism cases.”21 announce” their presence and intention to execute a search warrant before entering a home or business. “The Patriot Act we know has nothing to do with Giving an individual notice of the search (by, for Patriotism; they always name it the opposite example, presenting the individual with a copy of of what it is. The Patriot Act is literally the the search warrant) is a constitutional protection destruction of the Fourth Amendment—that’s against law enforcement exceeding the scope of its what it’s all about.”22 – Republican presidential authority. candidate and Congressman Ron Paul (R-TX) This expansive power has the potential for abuse, as we have already seen with the analogous “secret search” authority found in terrorism and The FBI foreign intelligence investigations under the Foreign Exceeds & Abuses Intelligence Surveillance Act (“FISA”). In 2004, Its Authority. As shortly after the Madrid train bombings, the FBI concerns were quickly targeted as a suspect Brandon Mayfield, raised, the Bush an American Muslim lawyer in Portland, Oregon. administration took Based on erroneous evidence and analysis, the FBI a “just trust us” approach. In the last ten years, arrested and imprisoned Mayfield for weeks.19 however, it has become clear that the FBI abused Relying on the FISA “secret search” authority, that trust. While Congress and advocacy groups have sought information about the full extent of

8 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

the FBI’s use of its newfound powers, the FBI has civil liberties in violation of the Constitution. The largely operated in secrecy. Patriot Act would soon pave the way for a deluge One of the only independent examinations of discriminatory law enforcement policies and of the FBI’s use of its Patriot Act authority was practices to which Muslims and those perceived to a 2007 investigation by the Justice Department be Muslim are now subject. Office of the Inspector General (“IG”). The IG conducted a review of the FBI’s use of its NSL authority under the Patriot Act.23 The subsequent IG report showed widespread abuses, including the FBI’s provision of false information to Congress, and obtaining records of persons without evidence that such persons were suspected of wrongdoing.24 Between 2003 and 2005, the FBI sought numerous telephone records in violation of necessary standards, citing non-existent emergency situations to letter recipients.25 The FBI was also found to have severely underreported to Congress the number of NSLs requested by more than 4,600.26 FBI agents repeatedly “ignored or confused” the statutory requirements and used the letters to obtain private information “against individuals two or three times removed from” the subjects of FBI investigations,27 using the authority in exactly the way critics of this provision had feared. The IG’s report was a much-needed and long overdue oversight of the FBI’s use of the Patriot Act. But as important as this review was, it only focused on one provision of the Patriot Act: the NSL authority. Congress has either not pushed the FBI, or when it has, it has not received the full, candid responses that it deserves on the NSL, Section 215 and other Patriot Act powers. To date, there still has not been a full, public, and independent accounting and review of the Patriot Act surveillance powers granted by Congress to the FBI. The problem is so critical that earlier this year, Senator Ron Wyden said in an interview, “We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.”28 The Patriot Act has come to symbolize unchecked executive power and the erosion of

9 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT iii. thoughts, faith & daily activities of innocent americans under surveillance

A. The New FBI Adopts Biased, Bad Policing According to one former Prior to 9/11, the FBI’s mission was primarily senior FBI counterterrorism official, the FBI conducted focused on investigating crimes and potential nearly 500,000 such criminal activity. In the aftermath of 9/11, however, “voluntary” interviews by there has been a radical shift towards a preemptive the end of 2005, and not a single one of those counterterrorism model—one that focuses on interviews led to information that would collecting and sharing intelligence information have allowed the government to detect or 35 as a means of preventing a future terrorist attack. prevent the 9/11 attacks. FBI Director Robert Mueller has described this as a “paradigm shift in the FBI’s cultural mindset.”29 FBI Counts Mosques, Tracks Attire, Religious Unfortunately, while 9/11 was a wakeup call for Practice. Shortly after 9/11, Director Mueller law enforcement and intelligence agencies to direct and senior FBI officials insisted that they were not resources and attention to terrorism, the FBI’s new engaging in racial, ethnic and religious profiling, cultural mindset has been largely shaped by biased and that biased policing was not an FBI policy policing practices and distorted information about or practice.33 They claimed that the FBI would Islam and Muslims. This biased approach has not target Muslim, Arab, Middle Eastern, and resulted in bad policing. South Asian Americans for arrest, interrogation The FBI now gathers massive amounts of data or surveillance based on their race, ethnicity or on innocent Muslims, Arabs, Middle Easterners, religion. Those proclamations would soon change. and South Asians throughout the country.30 In the last ten years, Muslims all over the country Individuals in these communities have been have been targeted by law enforcement, not based targeted for questioning and surveillance without on wrongdoing, but simply because of their any individualized suspicion of wrongdoing. Their religion. religion, ethnicity, race, or national origin is being In early 2003, Director Mueller directed all used as a proxy for indicators of potential future 56 FBI Field Offices to count the number of criminal activity. A recent study examining the Muslims, mosques, and Islamic charities in their FBI’s operations has revealed that since 9/11, much region to create demographic profiles. This data of the agency’s budget—$3.3 billion—is devoted would then be used to “set specific numerical goals to maintaining its counterterrorism infrastructure, for counterterrorism investigations and national including a nationwide network of informants.31 security wiretaps in each region.”34 Shortly after The FBI now maintains a staggering 15,000 9/11, the FBI also directed that each of the Joint “official” spies and informants, many of whom are Terrorism Task Forces (“JTTF”), which are based tasked with infiltrating the Muslim community out of each of the FBI Field Offices, target Muslim, specifically, and as many as another 45,000 Arab, Middle Eastern and South Asian non-citizen “unofficial” informants.32 males residing in their region for questioning. According to one former senior FBI

10 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

counterterrorism official, the FBI conducted nearly other data can be obtained using authority granted 500,000 such “voluntary” interviews by the end to the FBI by the Patriot Act. of 2005, and not a single one of those interviews The revised guidelines also expanded the FBI’s led to information that would have allowed the scope of domestic intelligence gathering, and government to detect or prevent the 9/11 attacks.35 allowed FBI agents to conduct “assessments,” a surveillance stage before opening an investigation. This essentially authorizes information gathering The FBI has conflated on individuals without any factual basis for religious beliefs and suspected wrongdoing—a far more lenient standard practice with criminal than previously required.39 The ease with which activity. In an intelligence assessment issued in 2006, FBI agents can now conduct broad assessments is the FBI listed converts to further facilitated by the intrusive information- Islam and the following collecting techniques they can utilize in this phase, distinct expressions of as permitted by the current AG Guidelines. Agents religious practice as may use informants to attend community meetings indicators of potential and events; to conduct pretext interviews with violent activity: !" “Wearing traditional Muslim attire” people while hiding their true identity; and to !" “Growing facial hair” engage in indefinite physical surveillance of homes, !" “Frequent attendance at a mosque or a offices, and individuals.40 Civil rights groups have prayer group” pointed out how this is a stark contrast from past !" “Travel to a Muslim country” FBI practice.41 Under the current AG Guidelines’ !" “Increased activity in a pro-Muslim social invasive techniques, innocent Americans are subject group or political cause”36 to constant government intrusion into their daily lives without objective evidence to suspect illegal activity or wrongdoing.42 Even more disturbing The FBI encourages the public to report to law is that the AG Guidelines do not require any enforcement individuals who have views that are oversight, supervisory approval, or reporting during critical of U.S. foreign policy, or who have strongly the assessment phase.43 held (Islamic) religious beliefs.37 The DIOG not only mirrors many of the In late 2008, the FBI would codify these problems apparent in the AG Guidelines, but also practices. During the waning days of the Bush includes additional expansion of FBI activities.44 administration, the Justice Department and FBI It authorizes massive data gathering based on issued the new rules of surveillance, the Attorney troubling assumptions and stereotypes about General Guidelines for Domestic FBI Operations minority ethnic communities and allows for the (“AG Guidelines”) and the FBI agent manual “geomapping” of “ethnic/racial demographics.”45 implementing the AG Guidelines, the Domestic Investigative activities based “partially” on the Investigations and Operations Guide (“DIOG”).38 exercise of First Amendment rights or on race, The DIOG authorizes massive data gathering on ethnicity, or religion are permitted,46 and the FBI is the location and other data of racial and ethnic authorized to collect information regarding ethnic communities, including ethnic-owned businesses and religious behavior if it is “reasonably believed to and charitable giving, travel, financial and work be associated with a particular criminal or terrorist activities of those community members. Notably, element of an ethnic community.”47 This collection much of this financial, travel, charitable giving and of data based on geographic concentrations of

11 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

minority communities and focusing on their behavior can only be classified as ethnic, racial, and Today, the FBI has 15,000 spies religious profiling. and informants targeting the It is important to note that the above-described Muslim community and as many as another 45,000 “unofficial” tactics are not restricted to the realm of federal informants.53 law enforcement. Local police departments have replicated the FBI’s mapping of the Muslim community across the country. In 2007, the Los surveillance unit that mapped the daily life of Angeles Police Department (“LAPD”) scrapped Muslims in New York, sending undercover agents a controversial plan to map its local Muslim and informants to monitor restaurants, cafes, population after an outcry from concerned bookstores, community centers, mosques, and other community and civil liberties groups.48 In August places where Muslims congregate and/or work.50 2011, it was revealed that a similar mapping program by the New York Police Department Monitoring Prayer and Political Views. The (“NYPD”) has been in existence since 2002.49 DIOG authorizes the surveillance of millions of Working with officials from the Central Intelligence Americans in First Amendment protected spaces, Agency (“CIA”), the NYPD established a such as houses of worship and religious and political gatherings and organizations, without evidence of wrongdoing. This new authority is reminiscent of FBI uses ex-felon as past FBI surveillance abuses of civil rights leaders, mosque informant anti-war activists, and other political and religious organizations and leaders. While restrictions on domestic surveillance powers were instituted after In a highly publicized case in Orange County, California, the FBI used an ex- this dark period in the FBI’s history, the safeguards felon as an informant to infiltrate a local were all but eradicated by guidelines issued in 2002 mosque and spy on congregants without under then-Attorney General John Ashcroft and any evidence that there was criminal in 2008 under then-Attorney General Michael activity at the mosque. Mosque leaders Mukasey. became alarmed when the informant The full extent of the FBI’s authority to conduct began espousing violent ideas, and reported him to the local FBI office, at this type of surveillance is unknown, since the which time it was discovered that he was entirety of the DIOG remains undisclosed to the an informant. The informant went on to public. FBI Director Robert Mueller, however, say that he had been tasked by the FBI admitted during testimony before the U.S. Senate to dig up dirt on the immigration status, Judiciary Committee in 2010 that the FBI believes sexual activities, business problems and that it can send undercover agents or informants drug use of members of the community. into houses of worship, political meetings and other This incident resulted in fear within the American Muslim community and First Amendment sensitive spaces without evidence had the effect of limiting speech and of wrongdoing, stating: “The FBI must have a decreasing attendance at mosques in proper purpose before conducting surveillance, but Southern California and arguably across suspicion of wrongdoing is not required.”51 the country. The FBI’s use of informants and other undercover tactics has led to several high profile and

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FBI equates conservative controversial investigations and arrests that often religious practice to appear to target youth, vulnerable individuals, or suspicious behavior members of the Muslim community exercising Muslim community leaders in Houston, First Amendment protected activities.52 Law- Texas, were invited to a meeting with abiding citizens—who range from public servants the FBI, during which they were told to students to professionals—are frequently that the FBI was seeking information approached by law enforcement not because they on the Muslim community in the area. are the subject of an investigation, but, rather, Leaders were told to report any Muslims because of a perception that—by virtue of their in their communities who were espousing conservative ideologies or adopting religion, ethnicity, race, or national origin—they conservative religious practices, as that are either engaged in, or will be able to provide was evidence that the individuals were information about, criminal activity. engaged in suspicious behavior. These In certain cases, individuals have been requests appear to have been made coerced into becoming informants under threat based on generalized suspicion of an of a criminal charge or being deprived of an entire faith and ethnic community, not immigration benefit. in response to a particular investigation nor based on evidence of wrongdoing by The FBI’s broad authority and tactics have individuals in that community. resulted in the unfair scrutiny and baseless surveillance of the Muslim American community, causing fear, concern, and uncertainty. Some examples include: FBI retaliates with deportation !"FBI agents routinely attend cultural events hosted by an Arab American organization in the Imam Foad Farahi from North Miami San Francisco Bay Area, without invitation, and Beach, Florida, was first approached interview employees and participants, sometimes by FBI agents in 2004. 54 He was told without disclosing their identity. The FBI has to act as an informant in return for also sought to meet with the organization’s guaranteed U.S. residency, as well as financial assistance to pursue an employees outside regular business hours and education.55 Being a trusted leader in without consulting with the executive director the community, Farahi declined, but was or other leadership. The FBI’s tactics have the approached again two years later with effect of intimidating community members and the same offer.56 Upon declining once leaders, who are afraid that speaking out about again, he discovered the repercussions the surveillance will result in increased targeting of refusing to comply with an FBI order and scrutiny of the organization, its members to spy on his community. Soon after, he went to attend a routine hearing on and activities. his political asylum case and was told !"A young professional and Muslim American that the government had evidence that in Northern California was approached for he was involved in terrorist activity.57 questioning, in his workplace, by the FBI after He was told to either drop his asylum posting political articles from mainstream news case and leave the U.S. voluntarily or be sources on his Facebook page. His Facebook charged as a terrorist. Farahi’s case is currently on appeal.58 page had privacy settings limiting viewers of his posts to only those in his circle of Facebook

13 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

friends. Although this young man had no criminal These revelations follow documents released by background and was not the subject of a criminal the FBI earlier this year in response to a Freedom investigation, the FBI contacted him, approaching of Information Act (“FOIA”) request. That FOIA him at work, in front of his colleagues and disclosure exposed training materials from 2009 that managers. The FBI intimidated this young man referred to Islam as a religion that “transforms [a] and jeopardized his job. country’s culture into 7th-century Arabian ways.”66 As a result of these policies and practices, In response, the FBI has pledged to conduct an individuals feel chilled from speaking and internal review of its religious and cultural training worshipping freely because they are afraid that materials. Even assuming the FBI conducts a genuine their mosques or other community gatherings examination and overhaul of its counterterrorism and members are under surveillance and that their training, serious damage has already been done. The speech or religious practices may be the basis for pervasive existence of these biased training materials government scrutiny. helps to explain why the FBI views the Muslim community with suspicion, believes that religion Anti-Muslim Training by FBI Breeds Biased is an indicator of propensity to commit violence, Policing. The problem of FBI agents infiltrating and targets the Muslim community for sweeping, Muslim community spaces and surveilling innocent unfettered surveillance.67 Yet, as former experienced people is compounded by recent revelations that the FBI agents and al Qaeda investigators have noted, FBI’s counterterrorism training uses presentations biased policing is bad policing.68 and materials that perpetuate gross stereotypes The net impact of these tactics is a chill on and falsehoods about Islam and the Muslim the privacy, equal protection, due process and free community.59 Anti-Muslim biased trainers and speech, religious practice and association rights training materials have permeated vast components of American Muslims. Unfettered surveillance of the FBI and JTFF training system, including motivated by anti-Muslim bias is not only eroding training sessions at the FBI academy in Quantico, the rights of these community members, but it is VA, the FBI intranet, and the FBI library. FBI agents eroding the trust between the community and law have been taught, for example, that: enforcement and between community members and community organizations. !"“[a]ccommodation and compromise between [Islam and the West] are impermissible and B. Thought Police at the Border fighting [for Muslims] is obligatory”60 !"The Islamic practice of zakat, alms-giving, is Lawrence Ho, a Chinese-American Muslim characterized as a “funding mechanism for convert, was traveling back home to New Jersey after combat”61 attending a conference in Toronto when his car was !"Prophet Muhammad is a “cult leader”62 stopped at the U.S.-Canada border. Lawrence and !"Mainstream Muslims are “likely to be terrorist the friend with whom he was traveling were asked to sympathizers”63 step out of the car and into the border facility, where !"The more “devout,” the more likely the Muslim a Customs and Border Protection (“CBP”) agent is to be “violent”64 asked Lawrence, “When did you convert to Islam?” !"Islamic law prevents Muslims from being loyal Lawrence had no idea how the agent knew he was a Americans65 Muslim or had converted. Lawrence was held in the facility for over four hours where the questioning continued, this time

14 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

by four armed agents. Lawrence was asked again and mosques. This type of questioning suggests when he converted to Islam, what mosques he visits, that travelers are being targeted at borders and and how often he attends the mosque. After the airports for invasive questioning not based on questioning was over, Lawrence and his friend went suspicious behavior, but based on race, ethnicity, or out to retrieve their car. Lawrence watched while an religion and First Amendment protected beliefs and officer repeatedly hit the remote entry key on his activities.69 friend’s car. When another officer asked why he kept While the government has a legitimate interest hitting the key, the officer laughed and said, “Just in verifying the identity of those entering the seeing if it’d blow up.” country and ensuring that they are not seeking to Lawrence filed a complaint about his experience do our nation harm, religious and political beliefs with CBP and in response was told by a border and activities—which are protected by the First agent, “In 2001, the U.S. was attacked by Islamist Amendment—are not evidence of criminal activity extremists. If a CBP Officer inquires as to a person’s and should not be the subject of interrogations by religious beliefs in order to uncover signs of government agents. Individuals who are questioned extremist tendencies, that Officer is well within his about their First Amendment protected beliefs, authority.” activities, practices, and associations at the border The sad reality is that Lawrence’s story is fear that their responses will be used to prevent illustrative of a pattern facing travelers today. them from re-entering the country to return Muslim travelers returning home from international home or to target them unjustly for future law travel are regularly stopped, detained, searched, and enforcement attention. These individuals also worry interrogated by CBP agents. Law-abiding Americans that they may be subject to future invasive and from all walks of life have been interrogated about illegal questioning or investigative activities about their political views and activities, religious beliefs their protected beliefs, associations, and activities. and practices, and associations with organizations, Consequently, they feel chilled from exercising core friends and relatives—all without any evidence that rights to freedom of speech and association, and the they are engaged in unlawful activity. free exercise of religion. Unfortunately, CBP’s official policy on the issue Muslim travelers are being asked questions of overbroad interviews targeting First Amendment by border agents such as: protected activities is unclear. The agency has !" “What mosque do you attend?” not released any public information about the !" “How many times a day do you pray?” authorized scope of questioning and whether !" “How many gods do you believe in?” internal constraints and accountability mechanisms !" “Are you Sunni or Shia?” to deal with First Amendment infringements exist. !" “Why do you send your children to Islamic schools?” In response to numerous complaints from civil !" “What is your view of the Israeli/Palestinian liberties groups, the U.S. Department of Homeland conflict?” Security (“DHS”) Office of Civil Rights and Civil Liberties opened an investigation into the inappropriate First Amendment questioning of American Muslims citizens. While the investigation process has been have also been asked initiated, complaints from individuals subject to about donations to, or unnecessary interrogations at the border continue affiliations with, lawful unabated. U.S. charitable entities In addition to personal and intrusive questioning

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on First Amendment protected beliefs and activities, travelers returning home from international travel are subject to invasive searches at the border of their person and belongings, including electronic devices, without any individualized suspicion of wrongdoing. CBP agents look through pictures on digital cameras, documents on computers, and contacts and information in cell phones and smartphones for no reason at all. The invasive nature of these searches—and the government’s claim that it can search travelers’ belongings without reasonable suspicion—highlights the broad, unchecked power being asserted by agents at our nation’s borders.

Muslim handcuffed and interrogated at border crossing about his religious practices

A young father, returning home to the U.S. from a trip to Canada with his wife, one-year-old daughter, and other relatives, was asked to step out of the car and to put his hands behind his back. Officers handcuffed him in front of his family, patted him down, and took him to a waiting room in the CBP facility. After a two hour wait, he was asked highly intrusive and personal questions, including: “What mosque do you attend?”; “How often do you attend the mosque?”; “So you don’t consider yourself a religious person?”; “Do you give donations?”; and “Who do you give it [charity] to?” He was embarrassed and humiliated about being questioned regarding his associations and religious, beliefs, practices, and charitable activities. He has since declined several requests from his employers to travel for work because he fears being detained and interrogated again.

16 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT iv. religious & civic duty to give charity faces hurdles

Alms-giving, or zakat, is a central religious certain foreign organizations that engage in terrorist and civic obligation for American Muslims, as it activity, as designated by the Secretary of State.73 is for many Americans of faith and goodwill. Like “Material support” has been statutorily defined charities for other ethnic and religious communities to include money and tangible items, as well as in the United States, charitable, community-based personnel, training, and expert advice or assistance.74 organizations are the backbone of the American There are only two narrow exceptions to this Muslim community and are a necessary tool for prohibition: medicine and religious materials.75 civic engagement. These organizations feed the The Supreme Court’s most recent interpretation hungry, care for the sick, fulfill spiritual needs, of the statute has caused even more fear and and serve as ambassadors for international aid and uncertainty within the American Muslim humanitarian efforts. As Secretary of State Hillary community. In 2010, the Court held that material Clinton recently stated, “supporting civil society support, whether in the form of humanitarian groups is a critical part of our work to advance aid, literature distribution, or political advocacy, democracy.”70 Yet, for a decade now, convoluted and is fungible and therefore supports a terrorist overly broad federal laws and policies have targeted organization in any form.76 Consequently, one American Muslim donors and charities for federal can be guilty of materially supporting a terrorist investigation and prosecution. organization even in the absence of specific intent to further the organization’s terrorist activities. In his June 2009 Cairo speech, President Obama This means that many activities that are necessary acknowledged “rules on charitable giving for the purposes of humanitarian aid and relief have made it harder for Muslims to fulfill their can be prosecuted as “material support.” This can religious obligation,” and promised to work include the provision of food aid, latrines, blankets, with the Muslim community to ease hurdles clothing, or tents.77 to charitable giving and to protect religious Under current law, good faith donors can be freedom.71 liable even when they do not intend to violate the

law and face scrutiny for constitutionally protected

activity. For example: The heart of these hurdles is the material !"A donor can face liability, including criminal support for terrorism prosecution, for a donation to an organization statute; the ability of the that is designated as a terrorist organization after government to freeze the donation is made.78 assets of a charity indefinitely, without charge;72 !"A donor can be liable for donating to a group and an archaic and confusing list-checking system that is not designated as a terrorist organization donors must navigate prior to giving. but where the donation is later transferred to a prohibited party.79 Good Faith Donors Face Potential Criminal !"A donor can face invasive questioning about Prosecution. The material support statute prohibits legitimate religious donation practices by CBP the provision of “material support or resources” to

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at the border or by the FBI, which has been If a donor unintentionally gives directed to gather data on mosques and Muslim to a prohibited organization or charities, all without evidence of wrongdoing. gives to a valid charity that in As the current famine crisis in Somalia turn gives to a prohibited actor, demonstrates, providing humanitarian aid the government nevertheless can freeze the frequently involves donating funds to countries assets of the good faith donor. amidst political crises and social upheaval. The worst effects of the famine are concentrated in order permits the Secretary of Treasury to block southern Somalia, a region that is controlled by the assets of any individual found to have assisted al-Shabab, which has been designated by the U.S. in, sponsored, or provided financial, material, or government as a terrorist organization. That means technological support for, or financial or other that if an aid organization were to work with al- services for, acts of terrorism or organizations or Shabab to facilitate the transfer of humanitarian individuals on the Specially Designated Global assistance, that organization—and any donors to Terrorist (“SDGT”) list. The SDGT list is one of that organization—would likely be in violation a number of “prohibited lists” maintained by the of U.S. criminal laws banning the provision U.S. government. Additionally, the order allows of material support to terrorist organizations. the Secretary of Treasury to block the assets of any Members of Congress are increasingly recognizing individual found to be “other-wise associated with” that the material support laws have created organizations or individuals on the SDGT list.82 unintended consequences that thwart urgent There is no intent requirement necessary to violate humanitarian aid. For example, Senator Patrick this provision. Leahy (D-VT), chair of the Senate Judiciary Committee, has called on the Justice Department The Government’s List of Prohibited Entities to create prosecutorial guidelines to remove and Individuals is Unreasonably Difficult to uncertainty about how the law might be used and Navigate. The proliferation of such prohibited lists to create a process to ensure that legitimate donors presents additional challenges. The government’s and other good faith actors can seek exemptions.80 lists of prohibited parties are confusing, difficult to Therefore, laws and regulations need to be navigate, and constantly changing, and thus fail to reformed to protect good faith donors and to provide donors and organizations effective notice ensure the continued, essential role of charity in of prohibited parties. These massive prohibited civil society. lists currently reside on two different agency websites (Treasury and State) in a format that is Good Faith Donors Also Face Potential Civil not easily searchable.83 In addition, the government Penalties for Humanitarian Assistance. In 2001, asserts that publication of the State Department’s pursuant to Executive Order 13224, the U.S. decision to designate an entity as a Foreign Terrorist government increased the use of the International Organization (“FTO”) in the Federal Register is Emergency Economic Powers Act (“IEEPA”) sufficient notice to hold an individual criminally to target, designate, and sanction individuals liable for transacting with that organization. Yet, and organizations associated with terrorists and it is unreasonable for individual donors, small terrorist organizations, including individuals charities, and mosques to be expected to navigate and organizations located within the United the Federal Register exhaustively to check for States.81 Under EO 13224, there are essentially designated FTOs. As a result, publication in the no protections for well-intentioned donors. The

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Federal Register is essentially futile and provides no Man retroactively charged real notice to individual donors. with material support of HLF before the organization’s official designation as a American Muslim Donors Have Faced Often- terrorist entity Baseless Investigation and Even Prosecution for Alleged Violations of the Anti-Terrorism Mohamed Shorbagi, a Palestinian- Financing Laws. In an extensive study of Muslim American and former imam at a mosque donors, the American Civil Liberties Union in Rome, Georgia, was charged in August (“ACLU”) found that hundreds of Muslim donors 2006 with providing material support to in Texas, Michigan, New York, Virginia, Florida, terrorists for his donations to Holy Land Foundation for Relief and Development Louisiana, California, Minnesota, Missouri, and 86 (HLF). Mr. Shorbagi was charged with Wisconsin had been targeted by law enforcement. transactions between 1997 and 2001 They were asked personal and invasive questions during a period of time when HLF was about donations made to lawful charities. 87 These legally operating and not known to be interviews are often “coercive, intrusive and under suspicion. Shorbagi ultimately pled intimidating,” with many individuals characterizing guilty to providing material support to a the interviews as harassment.88 The FBI has even foreign terrorist organization. His 15-year prison sentence was commuted to seven secured donor lists to target individuals who have years and eight months. donated to certain charities prior to when those charities were designated terrorist organizations and added to the prohibited lists.89 While in certain cases, the FBI may be Justice Department publicly investigating potential violations of the law, it is labels 246 people and also clear that the FBI no longer believes it needs organizations unindicted evidence of wrongdoing before monitoring and co-conspirators in violation questioning individuals about their donations to of its own policy and associations with charitable entities, including lawful U.S. based charities.90 In addition, the FBI’s In its prosecution of the Holy Land surveillance of mosques and other community Foundation, the federal government organizations has created a significant chill on labeled 246 individuals and organizations charitable giving. The use of informants in houses as unindicted co-conspirators.84 This of worship spreads fear amongst the congregation, list of alleged co-conspirators was causing many donors to reduce donations or give made public in violation of the Justice in cash to avoid attracting government attention.91 Department’s own policies.85 It was so Muslim congregants have also complained overly broad that it targeted people and entities without any allegations of that FBI agents asked about donors’ charitable specific intent to engage in terrorism. contributions, why they were donating, and who The list smeared these individuals and was receiving the money.92 groups, without giving them notice of the As previously mentioned, CBP agents have allegations or the ability to challenge the also joined the fray, interrogating American “unindicted co-conspirator” designation Muslims returning from overseas travel about their in a court of law. donations to and associations with lawful, U.S.- based charities–questions that have nothing to

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do with the purpose of their travel abroad. These he was found to have made a $150 donation to questions intrude on First Amendment speech and Help the Needy.100 association protections and give donors pause as Many donors find themselves asking whether they contemplate giving to and associations with they should abandon their charitable wishes out charities in the future. of fear of government scrutiny.101 According to Law enforcement scrutiny of the charitable one Dearborn, Michigan, accountant, donor and giving of the American Muslim community is business owner, “[c]ontributions across the board ongoing and continues to expand, significantly have been drastically reduced because of the fear; contributing to the fear of giving in the American people associate contributions with risk and they Muslim community. Heightened scrutiny by the don’t want that.”102 Similarly, some donors are IRS of charitable giving to Islamic organizations has afraid of writing checks for humanitarian aid for had a chilling effect on donations.93 Furthermore, fear of ending up on a government database of donors fear a visit from the FBI at their home or suspected supporters of terrorism.103 workplace, or getting questioned at the border. For example, Dr. Rafil Dhafir, a U.S. citizen and oncologist led a charity called Help the Needy, which provided humanitarian aid, including food and medicine, to people suffering from sanctions in Iraq.94 Dr. Dhafir was arrested in February 2003 in a raid at his home in Central New York, and labeled a suspected terrorist by then-Attorney General John Ashcroft.95 Dr. Dhafir was convicted and sentenced to 22 years for violating the Iraq sanctions program by assisting the needy.96 His indictment did not include charges of terrorism, yet Dr. Dhafir was placed in a Communications Management Unit (“CMU”), a maximum federal prison facility, in which prisoners are allowed one 15-minute phone call per month with immediate family only; one hour-long, non-contact visit per month with immediate family only; and one sent letter per week consisting of three pieces of paper only.97 Close to 150 people from Dr. Dhafir’s local community who had donated to Help the Needy were harassed and intimidated during the course of the government’s investigation.98 Donors were asked questions unrelated to the investigation, including whether they were born Muslim, how often they prayed, and their citizenship status.99 One individual reported that federal agents reviewed his bank records going back 20 years after

20 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT v. anti-muslim bigotry & discrimination thrives

While the government has increasingly taking over the U.S. legal and political system. viewed the American Muslim community with These anti-Muslim activities and incidents have suspicion, the last decade has also seen a marked continued unabated in 2011. uptick in anti-Muslim attitudes, hate crimes, and discrimination. The public appears to be A. Hate in the Public Discourse taking cues from government policies—like those discussed earlier in this report—that paint the Recent studies show that anti-Muslim sentiment entire Muslim community with one broad brush is increasing amongst the American public. A as a security threat. During the summer of 2010, survey on American values recently conducted we began to see anti-Muslim rhetoric and activities by the Public Religion Research Institute found accelerate rapidly, spilling into mainstream that 45% of Americans believe that the values of media and attacking the fundamental freedoms Islam are at odds with the American way of life.108 guaranteed by the Constitution to all Americans, Another study reports that a majority of Americans regardless of faith. (53%) say their opinion of Islam is either “not too This dangerous trajectory of anti-Muslim favorable” (22%) or “not favorable at all” (31%).109 hatred began with a campaign to oppose the More than 4 in 10 Americans (43%) admit to construction of a Muslim community center in feeling at least “a little” prejudice toward Muslims, lower Manhattan. This soon became a media which is more than twice the number who say the frenzy, with politicians across the country weighing same about Christians, Jews, and Buddhists.110 in, blaming collectively the American Muslim The Southern Poverty Law Center (“SPLC”) community for the acts of a criminal few.104 Then, has found that there has been a dramatic resurgence with anti-Muslim vitriol already in high gear, Florida Pastor Terry Jones announced plans to conduct Quran burnings on the anniversary of 9/11, which he called “International Burn a [Qu]ran Day.”105 While that Quran burning did not take 43% place, copycat incidents of planned and admit to feeling actual Quran burnings were recorded at least “a little” across the country.106 By summer’s end, a Americans say their prejudice toward Muslim cab driver in New York City had opinion of Islam is Muslims, which is been stabbed repeatedly after answering “Not too favorable” more than twice affirmatively when his passenger inquired the number who say the same if he was Muslim.107 A few months later, 22% about Christians, we would also see the launch of an “anti- “Not favorable at all” Jews, and Sharia” movement, which promotes the Buddhists. canard that Islamic law is on the verge of 31%

21 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

of hate groups in the U.S.111 For the first time These hate groups seek to both generate ever, SPLC has designated Pam Geller’s Stop and capitalize on the fear and paranoia about Islamization of America (“SIOA”)—the group Muslims and Islam. A recent Center for American behind the initial campaign to stop construction Progress report reveals the intricate channels of of the mosque in lower Manhattan—as an active funding that are the lifeblood of these groups.118 anti-Muslim hate group.112 It has also designated The report names seven charitable groups that at least three other groups as anti-Muslim have provided a staggering $42 million-plus to hate groups: Right Wing Extreme in Georgia, anti-Muslim organizations between 2001 and Christian Phalange in North Carolina, and 9/11 2009.119 In addition, prominent religious and Christian Center at Ground Zero in New York.113 military leaders are feeding the misinformation It describes anti-Muslim hate groups as typically and fear-mongering campaign. For example, holding “conspiratorial views regarding the the Rev. Franklin Graham has repeatedly called inherent danger to America posed by its Muslim- Islam “evil and wicked,”120 and U.S. Army American community.”114 Disturbingly, SIOA Lieutenant General (ret.) and former senior has won much recognition and support from Defense Department official William Boykin white supremacist groups such as Stormfront, has stated, “We need to remember that Islam is Council of Conservative Citizens, and American not a religion, but a totalitarian way of life with Renaissance, a group that publicly stated a religious component. Yet we protect the entire that black people are incapable of sustaining thing under the [F]irst [A]mendment . . . Islam’s civilization.115 objective in America is to replace our Constitution Another anti-Muslim organization, ACT! For with Sharia law.”121 America, which in early 2011 promoted a vicious Perhaps most frightening is that the extremist hate rally in Southern California, now has a staff and once fringe ideology of these hate groups has of eight that includes a full-time federal lobbyist, now infiltrated the mainstream and government a detailed legislative agenda, and a television agencies. For some years after 9/11, their hate program, all of which are apparently dedicated to agenda was primarily relegated to the remote spreading fear, bigotry and misinformation about reaches of the blogosphere or media, but in Islam and Muslims.116 The ACT! For America the last year, they have begun to emerge in founder and CEO Brigitte Gabriel has said that mainstream media, appearing in such outlets as she may be creating a political action committee CNN and The New York Times.122 As described (PAC) or a 527 organization to get directly in Section III of this report, the FBI has been involved in campaigns and elections.117 teaching its counterterrorism agents many of the same distortions and falsehoods that the anti-Muslim groups promote–misguided Seven charitable and inflammatory statements like Prophet groups have provided Muhammad is a “cult leader” and that Islamic law a staggering prevents Muslim from being loyal Americans.123 $42 million-plus At the local level, NYPD officers being trained to anti-Muslim in counterterrorism measures were required organizations between to watch an inflammatory, grossly misleading 2001 and 2009. film about Muslims and Islam with footage of bombings and American flags and churches being

22 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

New York Police Department officers being trained in counterterrorism measures were required to watch an inflammatory, grossly misleading film about Muslims and Islam with footage of bombings and American flags and churches being burned.124 The narrator of the film informs the audience, “Americans are being told that most of the mainstream Muslim groups are moderate . . . when in fact if you look a little closer you’ll see a very different reality. One of their 125 Commissioner Ray Kelly primary tactics is deception.” After public outcry, the NYPD acknowledged that the film was “wacky” and “inappropriate,”126 and Commissioner Ray Kelly stated that the film is no longer being used.127

burned.124 The narrator of the film informs the B. Divisive Rhetoric & Fear-Mongering by audience, “Americans are being told that most of Public Officials the mainstream Muslim groups are moderate . . . when in fact if you look a little closer you’ll see a Public officials have an important very different reality. One of their primary tactics responsibility to promote freedom, respect, is deception.”125 After public outcry, the NYPD truth and fairness. This is not about “political acknowledged that the film was “wacky” and correctness” or free speech; it is about the “inappropriate,”126 and Commissioner Ray Kelly responsibility of elected officials to uphold the stated that the film is no longer being used.127 Constitution and to promote unity and social Suspicion and hostility towards American cohesion. Muslims manifests themselves in many ways with Public officials should lead by their actions serious consequences for our society and public and words and ensure that, as President Obama safety. Discrimination, harassment, bullying said, “we are talking with each other in a way that of children, acts of bias-driven violence, or heals, not a way that wounds.”128 opposition to mosques and community centers All too often, however, public officials do have become a haunting reality in the lives of not heed this call, particularly when the topic is many American Muslims today. Muslims and Islam. Ten years after the tragic events of 9/11, public officials appear to be increasing their offensive and dangerously misinformed statements about Muslims [See next page]:

23 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

In 2007, Peter In August 2010, during the King stated, “we controversy over the Muslim have too many community center in lower mosques in this Manhattan, former Speaker of the country. There House and aspiring presidential are too many candidate Newt Gingrich said that people who are the proposed mosque would be a sympathetic to symbol of Muslim “triumphalism” and radical Islam . . compared the building of a Muslim . [a]nd it’s a real community center two blocks from threat here in this the site of the 9/11 attacks to “putting country.”140 a Nazi sign next to the Holocaust Museum . . . [i]t’s profoundly and terribly wrong.”129 Rep. Peter King (R-NY) Former Rep. Newt Gingrich

In February 2011, former Arkansas governor, 2008 presidential candidate, and ordained minister Mike Huckabee exhibited his woeful lack of knowledge about Islam and maligned Muslims, as he criticized In January 2011, U.S. Representative Allen two Protestant churches that allowed local West (R-FL) appeared on the South Florida- Muslims to worship in their facilities on based program The Shalom Show where he occasion: was asked how he would manage working with U.S. Representative Keith Ellison “As much as I respect the autonomy of each (D-MN), a Muslim. He responded that local church, you just wonder, what are they Ellison represents the “antithesis of the thinking? . . . If the purpose of a church is principles upon which this country was to push forward the gospel of Jesus Christ, established.”130 and then you have a Muslim group that says that Jesus Christ and all the people that follow him are a bunch of infidels who Rep. Allen West should be essentially obliterated, I have a (R-FL) hard time understanding that.”132

Former Gov. Mike Huckabee

24 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

In February 2011, U.S. Representatives Gary Miller (R-CA) and Ed Royce (R-CA) attended and spoke at In February 2011, at a House an anti-Muslim rally in Orange County, California Homeland Security Committee where protesters shouted hateful comments at Hearing, U.S. Representative Paul American Muslim families attending a fundraiser Broun (R-GA) encouraged the use to support women’s shelters and charitable efforts of ethnic and racial profiling to curb hunger and homelessness.133 At the rally, to target Muslim, Arab, and protesters yelled, “You are stupid terrorists! South Asian travelers by airport Go home! Go home! Go home!” 134 Villa Park security personnel: “I went Councilwoman Deborah Pauly went so far as to make through security at TSA . . . [there] a death threat, speaking from the stage, “I know was a guy who followed me, very quite a few Marines who will be very happy to help obviously was of Arabian (sic) or these terrorists to an early meeting in paradise.”135 Middle Eastern descent. Both of us were not patted down. There was a grandma who followed me, and she was patted down . . . I have yet to see a grandma try to bomb any U.S. facility . . . [s]o I think we need to focus on those who want to do us harm . . .”131 Rep. Gary Miller Rep. Ed Royce (R-CA) (R-CA) Rep. Paul Broun (R-GA)

On July 17, 2011, Republican presidential candidate Herman Cain insisted during a Fox News Sunday interview that Islam is different from all other religions because it “is both a religion and . . . Sharia law.”136 He stated his opposition to the building of a mosque in Murfreesboro, Tennessee, firmly stating that communities have the right to ban the construction of mosques in their neighborhoods, and that such opposition does not constitute discrimination based on religion.137 He has also said that he would require a special loyalty test for any Muslim serving in his administration, should he be elected.138

While Cain later apologized for “caus[ing] offense to Muslim Americans and their friends,” he stood by his opposition to the mythical threat of Sharia law to the U.S. legal system.139

2012 Presidential Candidate Herman Cain

25 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

Perhaps more disturbing has been the use of with being a Muslim in this country? The answer’s government power by public officials to promote no, that’s not America.”143 fear and suspicion toward a faith community. Earlier this year, U.S. Representative Peter King (R-NY), C. Violations of American Muslim Rights & chair of the House Homeland Security Committee, Freedoms launched a series of hearings on the “radicalization” of the American Muslim community, suggesting that Increasingly, America’s promise of life, liberty Muslims are somehow uniquely prone to violence. It and the pursuit of happiness is not enjoyed by all. is, in fact, this wrongful conflation of religion As they go about their everyday lives, American and violence that formed the basis for the hearing Muslims face threats to their guaranteed rights in the first place. In 2007, King stated, “we have too and freedoms. These threats and violations include many mosques in this country. There are too many hate crimes, bullying and harassment in schools, people who are sympathetic to radical Islam . . . discrimination in the workplace, increased levels [a]nd it’s a real threat here in this country.”140 of vandalism against mosques and community Leading up to the hearing earlier this year, centers, and concerted community opposition Representative King also insinuated that American against mosque construction proposals. As U.S. Muslims are not American.141 The hearing singled Attorney General Eric Holder, the nation’s top law out the American Muslim community as uniquely enforcement official, stated in 2010, anti-Muslim susceptible to violence, a notion that is unfair, false hate is “the civil rights issue of our time.”144 To meet and ignores the range of grave threats to the security this challenge, Congress, government officials, and of our nation. As the tragic shootings in Oslo on all Americans need to uphold our commitment to July 22, 2011, and in Tucson, Arizona, on January freedom, justice, and equality for all, regardless of 11, 2011, painfully remind us, those who engage in faith. extremist violence reflect a range of race, ethnicity, religious affiliation, or political leanings. Hate Crimes These examples demonstrate a breakdown in The threat of being harassed, assaulted or even the norms of civility and respect that Americans killed because of one’s faith, race or ethnicity has expect from our elected officials. There should be become an increasing concern for Muslim, Arab, no place in political discourse for vitriol and open Middle Eastern, Sikh, and South Asian Americans. displays of bias and hatred. The American public is During the period from January 2010 to August deeply influenced by its public officials, and these 2011 alone, there have been numerous cases of statements promote the troubling message that it is alleged hate-motivated physical violence or threats acceptable to engage in bigotry and hatred against a of physical violence to individuals across the country group of Americans based on their faith. Regardless [see map for a sample of incidents]. of political party, it is wrong and not who we are as Americans to spread falsehoods, fear, and hate of any religious, ethnic, or racial group. As President Obama recently noted, “American Muslims are part of our American family.”142 And as former Secretary of State Colin Powell courageously asked in 2008 in response to the anti-Muslim rhetoric of members of his own political party: “Is there something wrong

26 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

The number of reported hate crimes remains substantially above pre-2001 levels.

A Muslim cab A Muslim woman in driver in NYC A Sikh store clerk in Seattle Idaho was screamed at was stabbed was punched in the head in a grocery store by a after telling his and told “You’re not even man who said he had a passenger that he American, you’re (al Qaida). concealed weapon and was Muslim.145 Go back to your country.”146 had killed Muslims and would kill more.153 A Muslim high school Two Muslim women in Seattle student in Staten Island were called “terrorists” and A Muslim teenager was punched, spat on “suicide bombers” before in Iowa was called and harassed at school being physically assaulted at a “raghead” and for approximately one a gas station.150 a “sand nigger,” year before coming and had his jaw forward to report the broken.148 abuse.149

A Muslim woman in Portland was threatened by a neighbor that he would shoot her A Muslim woman dog and rape her in Ohio was while she was followed by a man praying.152 to a local Islamic Center, where he threatened to kill her and pepper- A Muslim sprayed her.151 Navy reservist in Southern In March 2011, in Elk Grove, California was California, two elderly Sikh men in In March 2011, an Arab punched in traditional garb were out walking American filmmaker in the face while near their homes one afternoon Chicago was allegedly staffing a booth to when a truck drove by and shot at beaten by four men at a answer questions them both, killing one instantly; party and kicked in the about Islam and the other died approximately one face repeatedly while Muslims.147 month later after succumbing to being told, “How dare you his injuries.155 With no apparent come in here, you sand motive, and the Sikh appearance nigger. Fucking Usama of the men, law enforcement Bin Laden, you sand officials stated the circumstances nigger.”154 increasingly raise the possibility that the attack was a hate crime.156

27 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

These incidents are just some recent gaps in relying solely on current FBI hate crime tragic examples of the very real life and death statistics: consequences of the increasing climate of anti- “Many police agencies throughout the country, Muslim hate. Pursuant to the Hate Crimes including in major cities, do not participate in Statistics Act, the FBI attempts to track hate crimes the FBI’s reporting system, and many victims incidents, which includes a sub-category of religion do not report the hate crimes perpetuated bias based crimes segregated for “anti-Islamic” hate against them. In fact, the Bureau of Justice crimes. The FBI has reported during the period Statistics puts the actual annual number of hate from 2001 to 2009, 1,552 incidents of hate crimes crimes in the tens of thousands. This fact is based on “anti-Islamic” bias, resulting in 1,785 enough to make one’s blood run cold.”163 offenses.157 Despite widespread underreporting–also acknowledged by the Attorney General–the number Furthermore, Muslim, Arab, Middle Eastern, of reported incidents remains substantially above Sikh, and South Asian communities do not pre-2001 levels.158 The data for 2010, a year when always know where to turn and how to report anti-Muslim bigotry spiked in other areas, has not hate-motivated violence and threats of violence. yet been released. Regrettably, trust between law enforcement and As stark as these numbers are, however, they these affected communities, which is needed to do not paint the full scope of the problem. encourage the reporting of crimes, has eroded No government agency collects accurate, since 9/11. These communities may fear bringing comprehensive data on hate crimes motivated by themselves to law enforcement’s attention, anti-Muslim hate targeting Muslim, Arab, Middle which could result in unrelated investigations or Eastern, Sikh, and South Asian Americans. The surveillance. Affected communities also fear public FBI does not separately track victims who may be retaliation, experience language barriers, or believe subjected to racial, ethnic, or national origin bias the police can do nothing.164 motivated crimes based on their Arab, Middle The Justice Department, under both Republican Eastern, South Asian or other ethnic background. and Democratic administrations, has made an Moreover, the FBI’s hate crimes tracking effort to investigate and prosecute crimes motivated system, which relies on voluntary reporting by local by anti-Muslim hate, but more needs to be done. police departments, is deeply flawed. The Justice The Matthew Shepard and James Byrd, Jr. Department’s Bureau of Justice Statistics has found Hate Crimes Prevention Act of 2009 gave the that the FBI hate crime statistics are inaccurate federal government increased authority to engage and woefully undercount the full number of hate in hate crimes investigations and prosecutions crimes. 159 The study also found that only 44% of that local authorities do not or cannot pursue hate crimes are reported to the police.160 There are and to assist state and local agencies that take other reasons hate crimes may not be recorded by the lead in investigating and prosecuting hate the FBI: police may fail to record crimes as hate crimes. Significantly, the law has eliminated the crimes, police departments may fail to report hate requirement that the victim be engaged in one crimes to their state reporting agencies, and those of six enumerated federally protected activities at agencies in turn may not report the full data to the time of the crime.165 This requirement had the FBI.161 In fact, the real number of hate crimes greatly narrowed the circumstances under which may be fifteen times higher than the FBI’s statistics, the federal government could intervene. Now, according to the Southern Poverty Law Center.162 the Justice Department and FBI can do more to Even Attorney General Holder has pointed out the tackle hate crimes. According to Attorney General

28 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

Murfreesboro, Tennessee Marchers walked in opposition to a mosque being constructed in Murfreesboro, Tennessee. Many carried signs with hostile messages about mosque leaders supporting the killing of converts.

Holder, the Justice Department has convicted more on the free exercise of religion, including religious hate crime defendants in 2010 than in any other institutions. It did so, in part, because it found year since 2000.166 These activities underscore the that zoning authorities were frequently placing federal government’s stepped-up commitment excessive or unreasonable burdens on the ability of to protecting all Americans from hate-motivated congregations to exercise their faith with little to no violence and discrimination. Still, there is more justification in violation of the Constitution. work to be done to ensure the safety of all American Muslims today face exactly this kind Americans. of subtle and overt discrimination, threatening the right to practice religion guaranteed by the Opposition to Mosques Constitution. A particularly egregious example The controversy over the Muslim community of opposition to mosque construction involved a center in New York City in 2010 was just one proposed mosque in Murfreesboro, Tennessee. After example of increasing hostility towards mosques the Islamic Center of Murfreesboro announced and Islamic centers. Existing and proposed plans to build a new mosque to accommodate its mosque sites across the country have been targeted growing congregation, local Muslims were stunned for vandalism and other criminal acts.167 Anti- at the outpouring of anti-Muslim sentiment. Muslim graffiti on mosques and protests include Mosque opponents went to court not only to statements such as “wake up America, the enemy is seek an injunction against construction, but to here,”168 “U.S. military is going to kill you all,”169 argue that Islam is not a religion and therefore “murderers,”170 and “Jesus hates Muslims.”171 not deserving of First Amendment protections. There have also been efforts to block necessary Both signs the Center erected at the construction zoning permits for the construction and expansion site were vandalized–the first had “not welcome” of mosques and Muslim community centers. spray-painted across it; the second was smashed in In some cases, the opposition takes the guise of two.174 Even after the Center gained official County neighbors’ concerns about traffic, noise, parking approval, there were aggressive protests. 172 and property values. In others, however, opponents of mosques and community spaces also Underscoring the level of fear-mongering and cited unfounded fears about Islam, Sharia law, and ignorance, Ron Ramsey, Tennessee’s lieutenant terrorism.173 governor and a gubernatorial candidate, With this heightened level of opposition to wondered publicly “whether being a Muslim is actually a religion, or is it a nationality, a way American Muslim institutions, Congress and the of life or cult, whatever you want to call it.”175 federal government should be reminded of its historical commitment to religious freedom. In

2000, Congress enacted the Religious Land Use Congressional candidate and Institutionalized Persons Act (“RLUIPA”) Lou Ann Zelenik declared to prevent local governments from enacting land that the mosque was “a use regulations that impose substantial burdens

29 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

political movement designed to fracture the moral and political foundation of Middle Tennessee.”176 Muslims are approximately Opponents of the mosque asked Frank Gaffney, another leading Muslim-basher, to testify on their 2% of the American population but account for behalf. Feeding the fear and hysteria, he argued that Sharia is a real and imminent threat to the 25% Constitution and that most mosque leaders preach percent of the total number of discrimination 177 Sharia. In October, the Justice Department filed complaints against employers an amicus brief citing RLUIPA and supporting the community’s right to construct a mosque, making clear that Islam is a religion entitled to protection under the First Amendment.178 In fact, In August 2010, the Equal Employment U.S. Attorney for the Middle District of Tennessee Opportunity Jerry E. Martin publicly stated, “To suggest that Commission sued a meatpacking company Islam is not a religion is quite simply ridiculous.”179 in Minnesota on behalf of 160 Somali The court denied the plaintiffs’ request for workers, saying “supervisors and workers temporary injunctive relief halting the mosque’s had cursed them for being Muslim; thrown construction,180 but the lawsuit proceeds.181 blood, meat and bones at them; and Public protests against the construction or interrupted their prayer breaks.”186 expansion of community spaces and mosques continue unabated. The ACLU has tracked over 60 incidents of anti-mosque activity throughout the Title VII of the Civil Rights Act of country in the past five years.182 The Pew Forum 1964 prohibits employers from engaging in on Religious and Public Life has indicated that in discrimination, including harassment and the past two years alone, there have been at least retaliation, on the basis of race, sex, color, 187 35 proposed mosques and Islamic centers that religion, and national origin. Since 2001, the have encountered community resistance.183 And Equal Employment Opportunity Commission according to the Justice Department’s own data on (“EEOC”) has been tracking the number of charges RLUIPA cases, of the 24 RLUIPA cases involving received under Title VII alleging employment mosques opened since the law was passed in 2000, discrimination specifically based on race, religion fourteen–one-half–have been opened since May and national origin due to 9/11. Between 2010, which the Justice Department believes 9/11/2001 and 9/11/2010, 1,026 charges were “reflects a regrettable increase in anti-Muslim filed under Title VII alleging post-9/11 backlash 188 sentiment.”184 employment discrimination. In addition, during this same period, the EEOC received 5,750 charges Employment Discrimination of discrimination based on the complainant’s Amid growing anti-Muslim sentiment, Muslim faith. For a comparable period of time American Muslims are also facing increased prior to 9/11/2001 (9/11/1992 to 9/10/2001 discrimination in the workplace. Complaints range (nine years)), the EEOC received 2,186 charges from experiencing a hostile work environment, of discrimination based on the complainant’s with co-workers hurling epithets such as “camel Muslim faith. Between September 2008 and jockey,” “terrorist” or “Osama,” to not being able to September 2009, the EEOC received a record wear headscarves (hijab) or take prayer breaks.185 803 complaints alleging anti-Muslim bias, which

30 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

was a 20% increase from the previous year.189 harassment and discrimination experienced by Muslims are approximately two percent of the children based on their religion. Muslim and Sikh American population, yet, according to this most community groups, however, are increasingly recent data, anti-Muslim bias in the workplace documenting cases of harassment and bullying. complaints accounted for 25% of the total number In one such egregious instance, a Muslim high of complaints received by the EEOC.190 Mary school student in Staten Island was subjected to Jo O’Neill, regional attorney of the EEOC’s a harrowing ordeal in which he was frequently Phoenix office, expressed shock at the level of labeled a “terrorist,” punched in the groin, and spat discrimination: “I’ve been doing this for 31 years, on by fellow teenagers.196 He was beaten so severely and I’ve never seen such antipathy toward Muslim that there was blood in his urine, and he suffered workers.”191 from headaches and memory loss afterwards.197 At the same time, dangerous gaps in federal There have also been a series of incidents in law are emerging. Two federal courts have recently Minnesota, where, for example, Muslim students interpreted Title VII to allow employers to of Somali origin have been targeted by another segregate their visibly religious employees from the high school student who created a Facebook group public and from customers. In one case, the court called “I hate the Somalians [sic] at Tech High.”198 found that the employer was not in violation of Two Somali students expressed no surprise at this, the law when it offered a turbaned Sikh a position and said that students making disparaging remarks that kept him out of the public eye.192 In another, about Muslim classmates was entirely common: the court held that an employer’s segregation of an “They always make fun of us and they say, ‘Go employee—a Muslim woman wearing hijab—did back to your countries,’ and, ‘You guys stink,’ not constitute an actionable adverse employment and, ‘This is our country, and we don’t need black action.193 people,’ so it’s every single day . . . [i]t’s not several times, it’s all the time.”199 Harassment and Bullying of Children Muslim, Arab, Middle Eastern, Sikh, and South Asian American children have 78 Northern not been spared from anti-Muslim hate. Virginia Muslim Children of all ages are vulnerable to children ages discrimination, harassment, and bullying 12 to 17: because of their faith. According to one education advocate, children from these 80% responded that they had been subjected communities face “ongoing harassment to bigoted taunts, epithets, and harassment. and bullying in classrooms, hallways, the lunch room, recess and on the bus 75% indicated the epithets had occurred which can make the life of a child or more than once. youth miserable, with little recourse.”194 Community and civil rights groups have 50% reported being called names in front complained that school administrators of teachers and school administrators. The and teachers either downplay such abuse harassment includes being called “terrorist,” and perhaps even share the prejudice, or “raghead,” “tower takers,” “bomber,” and “pirate” (referring to Somali children). do not know the appropriate response.195 No federal agency collects data on

31 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

In March 2010, Muslim Mothers Against Violence, a community organization, surveyed A Muslim high school student in 78 Muslim male and female youth between 12 Staten Island was subjected to a and 17 years of age in Northern Virginia about harrowing ordeal in which he was their experiences in school.200 Eighty percent frequently labeled a “terrorist,” punched (80%) responded that they had been subjected in the groin, and spat on by fellow to bigoted taunts and epithets and harassment, teenagers. He was beaten so severely that there was with three-quarters indicating the epithets had blood in his urine, and he suffered from headaches occurred more than once. Fifty percent (50%) and memory loss afterwards. report being called names in front of teachers and school administrators. The harassment includes 203 being called “terrorist,” “raghead,” “tower takers,” or national origin. While Title VI does not “bomber,” and “pirate” (referring to Somali prohibit discrimination based solely on religion, children). One youth said, “other minorities are the Education Department has found that “groups protected but not us.” One student reported the that face discrimination on the basis of actual or following experience at school: “My principal saw perceived shared ancestry or ethnic characteristics me wearing a kufi (headcap) and asked what kind may not be denied protection under Title VI of a Muslim I was. I told him I was regular, and on the ground that they also share a common 204 he said if I wore it again, I would get in school faith.” During the last year, the administration suspension. My dad told me not to wear it to school has begun to recognize the urgent need to address again, we don’t need trouble.”201 That is a snapshot harassment and bullying of children and has taken of the new reality of growing up Muslim in steps to encourage efforts to prevent harassment America today, where one’s classmates and teachers and bullying, including launching a designated wield anti-Muslim attitudes and messages that they website with resources for children, parents and learn at school, at home, and from the media. educators, and providing guidance to educators and Anti-Muslim hate also deeply affects non- communities about the legal obligations of schools 205 Muslim Arab, Middle Eastern, Sikh, and South to prevent and address bullying. The White Asian children. Importantly, the Sikh Coalition House also held a conference on bullying in schools has issued five reports in the last four years and communities and how to prevent it. Valerie documenting ugly and persistent abuse and Jarrett, President Obama’s senior advisor said, bullying experienced by Sikh children particularly “What could be more important than our children? in New York City and the San Francisco Bay There is a perception that bullying is a rite of 206 area.202 Sikhs are called names such as “Arab” and passage. And it’s not . . . it’s just not acceptable.” “terrorists,” which is clearly rooted in the climate of These are significant steps forward. However, anti-Muslim bigotry. Sikh children, who often do given that these issues have risen to a crisis point, not cut their hair for religious reasons, are regularly the federal government needs to increase and tailor threatened with hair-cutting or with having their its prevention and enforcement activities and turbans pulled off, and in certain cases have had resources to address specifically the harassment and their hair forcibly cut and turban lit on fire. bullying experienced by Muslim, Arab, Middle Under federal laws enforced by the Justice Eastern, Sikh, and South Asian American children Department and U.S. Department of Education, and youth. It is important that the administration schools must protect students from harassment and Congress work tirelessly to ensure that our and discrimination on the basis of race, color, children feel safe in their schools and communities.

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As a nation, we should not allow our children, of Sharia.207 A Muslim in Oklahoma successfully America’s future, to be subject to hatred and challenged the ban on First Amendment grounds, discrimination. and the case is currently on appeal in the U.S. Court of Appeals for the Tenth Circuit. Meanwhile, in Using Sharia to Incite Fear Tennessee, an amended bill, removing all specific Anti-Muslim activists have taken their campaign references to Sharia, also passed unanimously in to the public, particularly state legislatures, with an March 2011.208 In April 2011, Arizona passed a bill especially absurd new movement to spread fear and prohibiting the enforcement of all foreign law.209 misinformation about Muslims, focusing on Islamic Earlier versions of the bill specifically banned the religious law called Sharia. These activists claim that implementation of Sharia law, but references to Sharia—whose definition they also distort–is about specific religious law were removed so the bill would to take over the U.S. legal and political system. pass constitutional muster. They have gone so far as to introduce bills or ballot The Free Exercise Clause and Establishment initiatives in at least a dozen states to ban the use of Clause of the First Amendment allow a wide array Sharia law. Several of these initiatives have passed, of religious practice in America.210 If enacted and regardless of the fact that the Supremacy Clause allowed to stand, anti-Sharia laws would affect ensures that the Constitution, not any religious or the ability of American Muslims to practice their foreign law, is the law of the land. faith. Marriages under religious law would not be The first anti-Sharia measure to pass was in recognized, and Muslims would not be allowed to November 2010, when Oklahoma adopted a voter- congregate and pray (as the proposed Tennessee bill approved constitutional amendment prohibiting in its original form envisioned), rights enjoyed by state and federal courts from using international law every other faith community in America.211 These or Sharia law when making rulings. The author of bills are surely unconstitutional, as one federal the proposal, Representative Rex Duncan, declared court has already ruled, since they would abridge the necessity of preventing the “hideous invasion” the free exercise of religion and suggest a preference

Anti-Muslim Hate & Legislation in the United States in 2010-2011

Discrimination & Hate Crimes

Anti-Shariah Bills

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by government of one religion over another. Yet, the fear-mongering continues, preying on the ignorance of the American people to level suspicion and hate against their fellow Americans.

34 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT vi. conclusion and recommendations

In the ten years since passage of the Patriot by our nation’s leaders to thoroughly examine Act, constitutionally protected freedoms of discriminatory laws and policies, amend laws, and ordinary Americans have been drastically hold government officials responsible for policies curtailed. Intelligence gathering and the scrutiny and practices that trample fundamental rights and of individuals and organizations based on race, freedoms. Ten years after passage of the Patriot Act, religion, ethnicity and First Amendment protected it is time for our nation to pause and reflect about activity are widespread. The blanket of suspicion the state of freedom today. cast on the American Muslim community by law enforcement in turn has increased fear and hatred throughout the country, leading to a significant uptick in hate crimes, bullying and discrimination. The quality of public discourse has degenerated to the point where political, civic and religious leaders can unapologetically make hateful, bigoted comments about a group of Americans based on their faith. While there are numerous challenges, and much work to do to uphold our nation’s founding values, it is heartening to see some government officials beginning to take action. In the summer of 2010, the U.S. House of Representatives Judiciary Committee, Subcommittee on the Constitution, held a hearing on racial profiling by law enforcement, where witnesses testified about the corrosive result of federal, state and local law enforcement targeting communities based on race, ethnicity and religion. This hearing was the first congressional hearing held on this important issue since September 11th. In March of 2011, the Senate Judiciary Committee, Subcommittee on the Constitution, held the first ever congressional hearing on the civil rights of American Muslims. Congressional hearings are important to probe and publicly acknowledge the ways in which Americans have been affected by law enforcement policies and practices since September 11th and the passage of the Patriot Act. However, they are only the first step. There has to be a serious undertaking

35 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

POLICY RECOMMENDATIONS

1. REIN IN UNFETTERED, BASELESS SURVEILLANCE

The Executive Branch

!"The Justice Department should fulfill then- use of undercover agents or informants in places of candidate Obama’s promise to undertake a worship. Both the AG Guidelines and the DIOG comprehensive review of legal surveillance should clarify that race, ethnicity, national origin or authorities to propose amendments that would religion should not be considered in deciding upon protect First Amendment-protected activities. the scope and substance of domestic intelligence or !"The FBI should withdraw the 2006 FBI other law enforcement activity, except when there Intelligence Assessment, “The Radicalization is trustworthy information, relevant to the locality Process: From Conversion to Jihad,” and issue and timeframe, that links a person of a particular revised guidance clearly stating that religious race, ethnicity, national origin, or religion to an practices and political advocacy are protected identified criminal incident or scheme. activities under the First Amendment and are not !"The administration should order an extensive indicators of future violence. review of all federal agencies, including the FBI !"The Justice Department, DHS, and the FBI and its counter-terrorism program, to purge all use should review training materials and operations to of bigoted materials and stereotypical depictions incorporate an understanding of First Amendment of Muslims and Islam. All such programs should protected activities and the risks to civil liberties be genuinely examined and overhauled to reassure from overbroad government activities. These Congress and the public that corrective steps have agencies should further revise materials that been taken. might be used to promote misunderstanding and !"The Secretary of DHS should: intolerance of Muslims and to incorporate training #!Prohibit CBP from asking questions related on non-discrimination, especially against Muslims. to First Amendment-protected activity (e.g., !"The U.S. Attorney General should strengthen the political beliefs, religious practices, associations Department of Justice’s 2003 Guidance Regarding with and contributions to lawful charitable the Use of Race by Federal Law Enforcement organizations) of travelers entering the United Agencies (“Guidance”) to include religion and States; national origin as protected classes; remove the #!Prohibit CBP from using travel patterns as a national security and border integrity exception; pretext for profiling according to race, religion, and explicitly state that the ban on profiling national origin or ethnicity; applies to intelligence activities carried out by law #!Revise the CBP border search policy to require enforcement agencies subject to the Guidance. reasonable suspicion to search an electronic !"The Attorney General and the FBI should revise device and probable cause to seize or copy data the AG Guidelines and DIOG, respectively, from it; to require a factual predicate before the #!Require CBP to develop a training module for commencement of an assessment and include all agents and supervising field officers on these heightened levels of supervisory approval and new policies, ensuring that they understand the factual predicates for investigations that implicate limits of their authority and permissible bases for First Amendment protected activity, including the extensive interrogations and searches;

36 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

#!Adopt revisions to the administrative redress !"Congress should amend section 213 of the Patriot system such that individuals seeking explanations Act—the “sneak and peek” provision—to require for the basis of their scrutiny, or removal from that notice be given within seven days, unless illegitimate inclusion on government watch lists, a court is convinced that more time should be receive due process, including an opportunity permitted, and to limit the grounds upon which to be heard and a transparent decision upon notice can be delayed to risk of: (1) endangering the completion of review. Relevant agencies the life or physical safety of an individual; (2) flight should also remedy overbroad and opaque watch from prosecution; or (3) destruction or tampering lists by improving redress processes to allow of evidence. effective assessments of individual designations, !"Congress should conduct rigorous oversight of all strengthening internal oversight to prevent Patriot Act surveillance powers to prevent abuse initially overbroad designations, and purging and misuse. designations lacking a defensible basis; and !"Congress should enact the End Racial Profiling #!Collect, track and publicly report data on the Act, which bans racial, ethnic, religious and race, ethnicity, religion (as perceived by the CBP national origin profiling by federal, state and local agent) and national origin of individuals selected law enforcement in all investigatory activities, for questioning, as well as a random sample including intelligence gathering and profiling at to enable statistical comparison. CBP should the border. also record and track the specific facts in each !"Congress should conduct oversight and enact instance giving rise to individualized suspicion legislation, such as the Travelers Privacy Protection and the basis for the extensive questioning. Act, that includes: #!Suspicion standards to limit arbitrary scrutiny Congress by CBP (e.g., requiring reasonable suspicion before allowing a search or intelligence-gathering !"Congress should amend Section 215 of the Patriot interrogation; probable cause before seizing an Act—the records and tangible items provision—to electronic device or copying data from it); require the FBI to set forth a factual, individualized #!Subject matter limits on interrogations, making showing that the information sought pertains clear that questions about religious beliefs, to a suspected terrorist or spy. Congress should political views and associations with lawful also modify the gag provision so that recipients persons and organizations are neither legitimate maintain the right to disclose that they have been subjects for scrutiny, nor related to security the recipient of a section 215 order. concerns; and !"Congress should amend Section 505 of the Patriot #!Measures to stop, monitor and prevent potential Act—the NSL provision—to require the FBI to set future profiling according to race, religion, forth that there is factual, individualized suspicion ethnicity or national origin, such as demographic that the information sought pertains to a suspected data about individuals selected for scrutiny, terrorist or spy. reporting requirements, a mandated audit and !"Congress should amend Section 206 of the Patriot public report, and a private right of action based Act–the roving wiretap under FISA provision–to on a disparate impact standard. mirror the roving wiretap authority under criminal law by including an “ascertainment” requirement. Congress should also require that either the place to be monitored or the identity of the target be included in the FISA wiretap order.

37 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

2. EASE HURDLES TO CHARITABLE GIVING

• Congress should amend the material support shall be created to ensure ease and accessibility to for terrorism statute to create an exemption for the prohibited lists by donors and the public. This humanitarian aid, such as food and foodstuffs, database shall generate a receipt to the user at the water, clothing, shelter, sanitation services and conclusion of a search that a search was conducted medical services, which are not protected under and the results of that search. existing law. • The Treasury Department should withdraw • By Executive Order, the President should require its vague and quasi-voluntary Anti-Terrorist the Office of Foreign Assets Control to promulgate Financing Guidelines: Voluntary Best Practices for fair procedures for Specially Designated Global U.S. Based Charities, which chill the delivery of Terrorist designation and review. critical humanitarian aid and provide charities • The President should direct the Secretary of the with no protection from legal sanction even if the U.S. Department of State to use her authority Guidelines are painstakingly followed. under 18 USC § 2339B(j) to waive the material • The Treasury Secretary should implement policies support prohibition for technical advice and to ensure frozen charitable funds held by the assistance, training and personnel where intended Department are released to donors or used for for humanitarian purposes and not used to carry their charitable purpose according to the original out terrorist activity, in order to ensure that well- donor’s intent. intentioned charities can deliver essential aid, such • The Attorney General should enforce Justice as water and shelter. Department policies requiring that federal • The Justice Department and the Treasury prosecutors not disclose the identities of Department should issue agency orders providing unindicted co-conspirators, given the chilling a safe-harbor for well-intentioned donors.212 effect overbroad designations and public These orders should specify that donors will not disclosure of charitable entities has had on civic be subject to federal investigation or prosecution participation. provided that the donor makes the contribution of money, items or services to a party that is not on the Prohibited Lists213 at the time of contribution. The government can rebut the presumption by showing beyond a reasonable doubt that the donor had actual knowledge that the intended beneficiary was on a Prohibited List at the time of the contribution of money, items or services. • The Treasury Department and the State Department, which collectively maintain the various Prohibited Lists, should be directed to create a single, user-friendly, searchable database that compiles all Prohibited Lists in one central location housed with the Office of Foreign Assets Control at the Treasury Department. The database

38 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

3. COMBAT ANTI-MUSLIM HATE & DISCRIMINATION

The Executive Branch

!"The administration, particularly the U.S. !"The Attorney General and Justice Department Department of Education, should increase and should continue playing a leadership role with tailor its bullying prevention resources and other Justice Department components and enforcement to the needs of Muslim, Arab, federal agencies, including the Community Middle Eastern, Sikh, and South Asian youth, Relations Service (CRS), Department of by: Housing and Urban Development, EEOC, #!Developing tools and mechanisms to educate and Department of Education, to create a parents about their rights and the process for coordinated federal response to the rise in anti- filing complaints; Muslim hate activities. The AG should also #!Continuing to provide state boards of direct CRS offices to act immediately to defuse education with guidance regarding federal tensions where incidents have already occurred protections for students; and in areas where incitement activities are #!Identifying state resources available for expected to take place. complaints not eligible for federal intervention; !"The Justice Department Civil Rights Division #!Conducting civil rights compliance reviews should create one centralized hotline and portal of schools with vulnerable Muslim, Arab, for the receipt, referral and tracking of all civil Middle Eastern, Sikh, and South Asian student rights complaints to the Division. This data populations; collection and tracking mechanism should #!Collecting data, especially separate data for include race, ethnicity, national origin and race, national origin and religion, to fully religion categories and sub-categories to ensure understand the depth and scope of the problem that complaints by Muslim, Arab, Middle experienced by Muslim, Arab, Middle Eastern, Eastern, Sikh, and South Asian Americans can Sikh, and South Asian American youth.214 be tracked. The Justice Department should !"The Justice Department should pursue high report this comprehensive data on civil rights profile investigations and prosecutions of anti- complaints to Congress and the public annually. Muslim hate crime cases to send a clear, strong message that hate crimes will not be tolerated. Congress !"The Justice Department and all U.S. Attorneys should increase and enhance their engagement !"Members of Congress and all public officials with state and local law enforcement to ensure should refrain from making false and that all bias-motivated crimes are prevented, inflammatory statements about any religious, detected, investigated and prosecuted. racial, and/or ethnic groups, including Islam and !"The Justice Department should encourage and the American Muslim community, and condemn incentivize state and local law enforcement those public officials who do. agencies to report all bias-motivated crimes to the !"Congress should explore amending Title VI FBI in order to facilitate federal investigations of the Civil Rights Act of 1964 to include and prosecutions when local authorities are religion as a protected class to ensure that unable to do so and to ensure comprehensive religious communities with diverse racial and tracking of all hate crimes incidents. ethnic compositions, such as Muslim and Sikh

39 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

communities, can be fully protected from discrimination and harassment in schools. !"Congress should require the Justice Department to collect and track complaints received alleging a violation of RLUIPA, including the basis for the complaint, whether an investigation was opened and its outcome, and to report this data in six months and annually thereafter to Congress and the public. (The first report should include a report to Congress and the public on all the RLUIPA complaints received by the Justice Department since the law was enacted in 2010.) !"Congress should require the Justice Department to report in six months and then annually thereafter on the above steps and all other actions it has taken to stem civil rights violations rooted in anti-Muslim hate. !"Congress should make the following crucial changes to the Hate Crimes Statistics Act to promote comprehensive and more accurate reporting of hate crimes: #"Mandate state and local authorities to report the occurrence of hate crimes to the FBI. #"Specify additional ethnic groups in the Bias Motivation section, under Ethnicity/National Origin. Currently, the statistics only track “Anti-Hispanic” and “Anti-Other Ethnicity.” This does not take into account ethnicities at high risk of being targeted for hate crimes because they are perceived to be Muslims. There should be a section tracking “anti-Arab” crimes and “anti-South Asian” crimes. #"Provide additional specificity in the Bias Motivation section under the “Religion” section. Sikh Americans, for instance, are frequent targets of hate crimes because they are perceived to be Muslim.

40 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT e n d n o t e s

1 Uniting and Strengthening America by Providing Appropriate 13 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004); Ellen Tools Required to Intercept and Obstruct Terrorism Nakashima, Plaintiff Who Challenged FBI’s National Security Letters (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Reveals Concerns, WASH. POST, Aug. 10, 2010, available at http:// Stat. 272 (2001), available at http://frwebgate.access. www.washingtonpost.com/wp-dyn/content/article/2010/08/09/ gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_ AR2010080906252.html. laws&docid=f:publ056.107 [hereinafter Patriot Act]. 14 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008); Nakashima, supra 2 U.S. Dep’t of the Treasury, Protecting Charitable Giving note 13. Frequently Asked Questions, at 11 (June 4, 2010), http://www. 15 Nakashima, supra note 13. treasury.gov/resource-center/terrorist-illicit-finance/Documents/ 16 National Security Letters, American Civil Liberties Union, Jan. Treasury%20Charity%20FAQs%206-4-2010%20FINAL.pdf. 10, 2011, http://www.aclu.org/national-security-technology-and- 3 “At least six U.S.-based Muslim charities run by American liberty/national-security-letters. Muslims, including KinderUSA (Texas), Life for Relief and 17 Patriot Act, supra note 1, Sec. 206. Development (Michigan), Al-Mabarrat (Michigan), Child 18 Patriot Act, supra note 1, Sec. 213. Foundation (Oregon), Help the Needy (New York), and Care 19 Garrett Epps, Vengeance is Brandon Mayfield’s, SALON, Oct. International (Massachusetts) have been raided by a Department 3, 2007, http://dir.salon.com/story/news/feature/2007/10/03/ of Justice Joint Terrorism Task Force (JTTF) and in some cases brandon_mayfield/index.html. declared under investigation.” Blocking Faith, Freezing Charity: 20 Id. Chilling Muslim Charitable Giving in the “War on Terrorism 21 Jesse Walker, Bob Barr, Civil Libertarian, Reason Magazine, Dec. Financing” (ACLU, New York, NY), June 2009 at 64, available 2003, http://reason.com/archives/2003/12/01/bob-barr-civil- at http://www.aclu.org/pdfs/humanrights/blockingfaith.pdf libertarian. [hereinafter Blocking Faith, Freezing Charity]. 22 Representative Ron Paul, Address at the American Conservative 4 Muslim Americans: Faith, Freedom, and the Future (Abu Dhabi Union annual Conservative Political Action Conference (Feb. 11, Gallup Ctr., Abu Dhabi, U.A.E.), Aug. 2011, at 39, available 2011), http://www.c-spanvideo.org/program/PaulRem. at http://www.abudhabigallupcenter.com/File/148778/MAR_ 23 Office of the Inspector Gen., Dep’t of Justice, A Review of the Report_ADGC_Bilingual_072011_sa_LR_web.pdf. Federal Bureau of Investigation’s Use of National Security Letters 5 Attorney General John Ashcroft, Press Briefing with FBI Director 120 (2007), available at http://www.usdoj.gov/oig/special/s0703b/ Robert Mueller (Sept. 17, 2001), available at http://www.justice. final.pdf [hereinafter OIG Review]. gov/archive/ag/speeches/2001/0917pressbriefingfbi.htm. 24 Id.; see also supra note 9 at 16. 6 Final Vote Results for Roll Call 398, Office of the Clerk, U.S. 25 Eric Lichtblau, FBI Made ‘Blanket’ Demands for Phone Records, House of Representatives (Oct. 24, 2001), http://clerk.house.gov/ N.Y. TIMES, Mar. 13, 2008, available at http://www.nytimes. evs/2001/roll398.xml. com/2008/03/13/washington/13fbi.htm. 7 Roll Call Vote 313, U.S. Senate (Oct. 25, 2011), http://www. 26 Id. senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?co 27 The Permanent Provisions of the Patriot Act Hearing Before the ngress=107&session=1&vote=00313. Subcomm. on Crime, Terrorism and Homeland Security of the 8 Department of Justice Oversight: Preserving Our Freedoms While H. Comm. on the Judiciary, 112th Cong. 31 (2011) (statement Defending Against Terrorism Hearing Before the S. Comm. on the of Michael German, Senior Policy Counsel, American Civil Judiciary, 107th Cong. 309, 313 (2001) (statement of Hon. John Liberties Union), available at http://judiciary.house.gov/hearings/ Ashcroft, Attorney General of the United States). printers/112th/112-15_65486.PDF. 9 See e.g., Reclaiming Patriotism: A Call to Reconsider the Patriot Act, 28 Spencer Ackerman, There’s a Secret Patriot Act, Senator (ACLU, New York, NY), Mar. 2009, available at http://www. Says, WIRED, May 25, 2011, http://www.wired.com/ aclu.org/pdfs/safefree/patriot_report_20090310.pdf (examining dangerroom/2011/05/secret-patriot-act/. widespread abuses that have occurred under the Patriot Act and 29 Ten Years After 9/11: Are We Safer? Hearing Before the S. Comm. on providing more information on parts of the Patriot Act that need Homeland Security & Governmental Affairs, 112th Cong. 2 (2011) to be amended). (statement of Robert S. Mueller III, Director, Federal Bureau of 10 After the Patriot Act’s passage, we continued to see arbitrary and Investigation, U.S. Department of Justice). excessive surveillance by the government. In one particularly 30 Michael Isikoff, Investigators: The FBI Says, Count the Mosques, high profile revelation, the Bush administration had begun NEWSWEEK, Feb. 2, 2003, available at http://www.newsweek. wiretapping international electronic communications without com/2003/02/02/investigators-the-fbi-says-count-the-mosques. court authorization, including wiretapping the communications html; Eric Lichtblau, F.B.I. Tells Offices to Count Local Muslims of American citizens. Once the program became public and its and Mosques, N.Y. TIMES, Jan. 27, 2003, at A13, available at legality was questioned, the administration scrambled to have http://www.nytimes.com/2003/01/28/politics/28MOSQ.html; Congress retroactively approve its actions. Congress essentially Domestic Intelligence: New Powers, New Risks, (Brennan Center obliged, enacting the FISA Amendments Act in 2008. The FISA for Justice at New York University School of Law, New York, NY), Amendments Act allows the government to tap all telephone calls Jan. 18, 2011, at 29, available at http://www.brennancenter.org/ and e-mails coming in and out of the United States involving content/resource/domestic_intelligence_new_powers_new_risks/ a U.S. person abroad for up to seven days, without a warrant, [hereinafter Brennan Center Report] (noting that “FBI Director and involving non-U.S. persons abroad for up to a year, without Robert Mueller ordered all FBI branch offices to count the a warrant. The law also legitimizes years of illegal wiretapping number of mosques within their jurisdictions as a starting point facilitated by major telephone companies for the government that for proactive investigation of potential terrorists”). had taken place prior to 2008. Foreign Intelligence Surveillance 31 Trever Aaronson, The Informants, MOTHER JONES, Sept.–Oct. Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 2011, available at http://motherjones.com/politics/2011/08/fbi- Stat. 2436 (2008), available at http://www.gpo.gov/fdsys/pkg/ terrorist-informants. PLAW-110publ261/pdf/PLAW-110publ261.pdf. 32 Id. 11 Patriot Act, supra note 1, Sec. 215. 33 Attorney General John Ashcroft, Press Briefing with FBI Director 12 Patriot Act, supra note 1, Sec. 505. Robert Mueller, supra note 5. 34 Isikoff, supra note 30. 41 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

35 Michael E. Rolince, Remarks During Workshop on Muslim-Law 63 Ackerman, supra note 59. Enforcement Partnership at Muslim Public Affairs Council 5th 64 Id. Annual Convention (Dec. 17, 2005). 65 Spencer Ackerman, New Evidence of Anti-Islam Bias Underscores 36 Federal Bureau of Investigation, Counterterrorism Division, Deep Challenges for FBI’s Reform Pledge, WIRED, Sept. 23, Intelligence Assessment: The Radicalization Process: From 2011, http://www.wired.com/dangerroom/2011/09/fbi-islam- Conversion to Jihad (May 10, 2006). domination/. 37 FBI in Houston Met the Community Leadership Advising to Lookout 66 Spencer Ackerman, FBI ‘Islam 101’ Guide Depicted Muslims as 7th- for Radicalization, Pakistan Chronicle Weekly Newspaper, May 18, Century Simpletons, WIRED, July 27, 2011, http://www.wired.com/ 2010; Arun Kundnani, The FBI’s ‘Good’ Muslims, THE NATION, dangerroom/2011/07/fbi-islam-101-guide/. Sept. 19, 2011, at 18. 67 Ackerman, supra note 59. 38 U.S. Dep’t of Justice, Federal Bureau of Investigation, Domestic 68 Id. Investigations and Operations Guide (2008) (hereinafter 69 Muslim Advocates chronicled the stories of almost three dozen “DIOG”). travelers in its report, Unreasonable Intrusions: Investigating the 39 Allison Jones, The 2008 FBI Guidelines: Contradiction of Original Politics, Faith & Finances of Americans Returning Home (Muslim Purpose, 19 B.U. Pub. Int. L.J. 137, 168 (2009). Advocates, San Francisco, CA), Apr. 2009, available at http://www. 40 Id. muslimadvocates.org/documents/Unreasonable_Intrusions_2009. 41 Brennan Center Report, supra note 30. pdf. 42 Id. 70 U.S. Sec’y of State Hillary Rodham Clinton, Address at the 43 Id. Community of Democracies in Krakow, Poland (July 3, 2010), 44 On September 16, 2009, after months of pressuring the available at http://www.state.gov/secretary/rm/2010/07/143952. Department of Justice to release the documents pursuant to a htm. previously-filed request under the Freedom of Information Act, 71 President Barack Obama, The President’s Speech in Cairo: A New Muslim Advocates filed suit seeking the public release of the Beginning (June 4, 2009), available at http://www.whitehouse.gov/ DIOG. Muslim Advocates and other civil rights groups were able the-press-office/remarks-president-cairo-university-6-04-09. to view a draft version of the DIOG in late November of 2008, but 72 Blocking Faith, Freezing Charity, supra note 4, at 39. the final version was never released publicly. Shortly after the suit 73 18 U.S.C. § 2339B(a)(1). was filed, a heavily redacted version was released to the public on 74 18 U.S.C. §§ 2339A(b), 2339B(g)(4). September 25, 2009. 75 18 U.S.C. §§ 2339A(b)(1). 45 DIOG, supra note 38, § 4.3(C)(2)(b). 76 Humanitarian Law Project v. Holder, 130 S. Ct. 2705 (2010). 46 Id. § 5.3; See also Brennan Center Report, supra note 30, at 27. 77 Blocking Faith, Freezing Charity, supra note 4, at 10. 47 DIOG supra note 38, at § 4.3(D). 78 See, e.g., Brenda Goodman, Leader of a Georgia Mosque Pleads 48 Richard Winton & Teresa Watanbe, LAPD’s Muslim Mapping Guilty to Aiding Hamas, N.Y. TIMES, Oct. 14, 2006, available Plan Killed, L.A.TIMES, Nov. 15, 2007, available at http://articles. at http://www.nytimes.com/2006/10/14/us/14hamas.html latimes.com/2007/nov/15/local/me-muslim15. (Mohamed Shorbagi, an imam and community leader in Rome, 49 Adam Goldman & Matt Apuzzo, With CIA Help, NYPD Moves Georgia, was convicted for donations to HLF made from 1997 to Covertly in Muslim Areas, Associated Press, Aug. 24, 2011, available 2001, before HLF was designated as a terrorist entity). at http://www.denverpost.com/breakingnews/ci_18747455. 79 Kirk Semple, At Last Allowed, Muslim Scholar Visits, N.Y. TIMES, 50 Id. Apr. 7, 2010, available at http://www.nytimes.com/2010/04/08/ 51 Spencer S. Hsu, FBI Director says Justice Department is nyregion/08muslim.html. Investigating Possible Exam Violations, WASH. POST, Jul. 28, 2010, 80 Countering Terrorist Financing: Progress and Priorities: Hearing available at http://www.washingtonpost.com/wp-dyn/content/ Before the Senate Comm. on the Judiciary, 112th Cong. (2011) article/2010/07/28/AR2010072800619.html. (statement of Senator Patrick Leahy). 52 Aaronson, supra note 31; Targeted and Entrapped: Manufacturing 81 Exec. Order No. 13224, 66 Fed Reg. 49,079 (Sept. 25, 2001). the “Homegrown Threat” in the United States (Center for 82 Id. Human Rights and Global Justice at NYU School of Law, New 83 “Prohibited lists” refers collectively to the Foreign Terrorist York, NY) 2011, available at http://www.chrgj.org/projects/docs/ Organization (FTO), Specially Designated Global Terrorist targetedandentrapped.pdf. (SDGT), Specially Designated National (SDN), Terrorist 53 Aaronson, supra note 31. Exclusion List (TEL), and Office of Foreign Assets Control 54 Trevor Aaronson, FBI Tries to Deport Muslim Man for Refusing (OFAC) Country Sanction Program lists. To Be An Informant, MIAMI NEW TIMES, Oct. 8, 2009, available 84 Jasan Trahan, Judge Ruled Prosecutors Should Not Have Publicly at http://www.miaminewtimes.com/2009-10-08/news/unholy- Released Holy Land Unindicted Co-Conspirators List, DALLAS war-fbi-tries-to-deport-north-miami-beach-imam-foad-farahi-for- MORNING NEWS, Nov. 6, 2010, available at http://www.dallasnews. refusing-to-be-an-informant/4/. com/news/local-news/20101106-Judge-ruled-prosecutors-should- 55 Id. not-have-6808.ece. 56 Id. 85 See U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ MANUAL, 57 Id. § 9-27.760 (“federal prosecutors should remain sensitive to the 58 Id. privacy and reputation interests of uncharged third-parties”); id. at 59 Spencer Ackerman, FBI Teaches Agents: ‘Mainstream’ Muslims Are §9-11.130 (instructing U.S. Attorneys to not disclose the identities ‘Violent, Radical’, WIRED, Sept. 14, 2011, http://www.wired.com/ of unindicted co-conspirators during or in preparation for the dangerroom/2011/09/fbi-muslims-radical/. trial); see also United States v. Briggs, 514 F.2d 794 (5th Cir. 1975) 60 Id. (criticizing the practice of naming individuals as unindicted co- 61 Id. conspirators in an indictment charging a criminal conspiracy). 62 Spencer Ackerman & Noah Shachtman, Video: FBI Trainer Says 86 Blocking Faith, Freezing Charity, supra note 4, at 69. Forget ‘Irrelevant’ al-Qaida, Target Islam, WIRED, Sept. 20, 2011, 87 Id. http://www.wired.com/dangerroom/2011/09/fbi-islam-qaida- 88 Id. irrelevant/. 89 Id. at 69-70.

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90 DIOG, supra note 38, at § 4.3(C)(2)(d). 112 White Supremacists Find Common Cause with Pam Geller’s Anti- 91 Teresa Watanabe and Paloma Esquivel, L.A. Area Muslims Say FBI Islam Campaign, Southern Poverty Law Center, Aug. 25, 2010, Surveillance has a Chilling Effect on Their Free Speech and Religious available at http://www.splcenter.org/blog/2010/08/25/white- Practices, L.A. TIMES, Mar. 1, 2009, available at http://articles. supremacists-find-common-cause-with-pam-gellers-anti-islam- latimes.com/2009/mar/01/local/me-muslim1. campaign/. 92 Id. 113 Active Anti-Muslim Groups, Southern Poverty Law Center, 93 Eric Gorski, U.S. Muslims Experiencing Anxiety Over Roles, THE available at http://www.splcenter.org/node/3502/activegroups. DENVER POST, Aug. 19, 2011, available at http://www.denverpost. 114 Anti-Muslim, Southern Poverty Law Center, available at http:// com/frontpage/ci_18692208. www.splcenter.org/get-informed/intelligence-files/ideology/anti- 94 Iraqi-American Doctor Convicted of Violating Iraq Sanctions, muslim. DEMOCRACY NOW!, Feb. 11, 2005, available at http://www. 115 White Supremacists Find Common Cause with Pam Geller’s Anti- democracynow.org/2005/2/11/iraqi_american_doctor_convicted_ Islam Campaign, supra note 112. of_violating. 116 Ben Smith, Brigitte Gabriel Tries to go Mainstream, POLITICO, 95 Thomas J. Lueck, Four Accused of Illegally Sending Money to Iraq, March 7, 2011 available at http://www.politico.com/blogs/ N.Y. TIMES, February 27, 2003, available at http://www.nytimes. bensmith/0311/Brigitte_Gabriel_tries_to_go_mainstream.html. com/2003/02/27/nyregion/27SYRA.html. 117 Id. 96 Brian Dominick, Iraq Charity Director Sentenced to 22 Years for 118 Wajahat Ali, Eli Clifton, Matthew Duss, et al., Fear, Inc.: The Nonviolent Crimes, THE NEWSTANDARD, Nov. 3, 2005, available at Roots of the Islamophobia Network in America (Center for American http://newstandardnews.net/content/index.cfm/items/2556. Progress, Washington D.C.), Aug. 26, 2011, available at http:// 97 Bureau of Prisons Should Shutter Secret and Isolated Communications www.americanprogress.org/issues/2011/08/pdf/islamophobia.pdf. Management Units, Says ACLU, American Civil Liberties Union, 119 Id. at 23. June 2, 2010, available at http://www.aclu.org/prisoners- 120 Rev. Franklin Graham: Islam “Evil,” POLITICO, Oct. 3, 2010, rights/bureau-prisons-should-shutter-secretive-and-isolated- available at http://www.politico.com/blogs/politicolive/1010/ communications-management-unit. Rev_Franklin_Graham_Islam_evil.html. 98 Iraqi-American Doctor Convicted of Violating Iraq Sanctions, supra 121 W. Thomas Smith, Jr., Boykin: Islam’s Primary Object is Conquest, note 94. FAMILY SECURITY MATTERS, Aug. 6, 2010, available at http://www. 99 Id. familysecuritymatters.org/publications/id.6966/pub_detail.asp. 100 Katherine Hughes, United States of America v. Rafil A. Dhafir: 122 See, e.g., Pam Geller, Pam Geller: In Her Own Words, N.Y. TIMES, Individual Responsibility and Complicity, Nov. 2, 2005, available at Oct. 8 2010, available at http://www.nytimes.com/2010/10/10/ http://www.informationclearinghouse.info/article10859.htm. nyregion/10gellerb.html; see also Laurie Goodstein, Drawing 101 Neil MacFarquhar, Fears of Inquiry Dampen Giving by U.S. U.S. Crowds with Anti-Islam Message, N.Y. TIMES, Mar. 7, 2011, Muslims, N.Y. TIMES, Oct. 30, 2006, available at http://www. available at http://www.nytimes.com/2011/03/08/us/08gabriel. nytimes.com/2006/10/30/us/30CHARITY.html. html. 102 Id. 123 Ackerman, supra note 59. 103 Alan Cooperman, Muslim Charities Say Fear Is Damming Flow 124 Tom Robbins, NYPD Cops’ Training Included an Anti-Muslim of Money, WASH. POST, Aug. 9, 2006, available at http://www. Horror Flick, THE VILLAGE VOICE, Jan. 19, 2011, available at washingtonpost.com/wp-dyn/content/article/2006/08/08/ http://www.villagevoice.com/2011-01-19/columns/nypd-cops- AR2006080801246.html. training-included-an-anti-muslim-horror-flick/. 104 Bobby Ghosh, Does America Have a Muslim Problem?,TIME, 125 Id. Aug. 19, 2010, available at http://www.time.com/time/nation/ 126 Justin Elliott, NYPD Gins Up Cops With Anti-Muslim Video, article/0,8599,2011798-2,00.html. SALON, Jan. 19, 2011, available at http://www.salon.com/news/ 105 Sean Alfano, Pastor Terry Jones says Jesus Christ Would Burn Qurans, politics/war_room/2011/01/19/nypd_third_jihad. Will Go Ahead with Controversial 9/11 Event, N.Y. DAILY NEWS, 127 Margaret Lau, Muslim New Yorkers Seek Dignity, Respect from Sept. 8, 2010, available at http://www.nydailynews.com/news/ NYPD, THE EPOCH TIMES, Mar. 22, 2011, available at http:// national/2010/09/08/2010-09-08_pastor_terry_jones_says_jesus_ www.theepochtimes.com/n2/united-states/muslim-new-yorkers- christ_would_burn_korans_will_go_ahead_with_contro.html. seek-dignity-respect-from-nypd-53403.html. 106 Anti-Muslim Bigotry Intensifies in the U.S., American 128 William M. Welch, Obama Asks for Words that Heal, Not Wound, Defamation League, Aug. 27, 2010, available at http://www. USA TODAY, Jan. 13, 2011, available at http://www.usatoday.com/ adl.org/main_Extremism/muslim_bigotry.htm?Multi_page_ news/washington/2011-01-13-1Amemorial13_ST_N.htm. sections=sHeading_4. 129 Edward Wyatt, Three Republicans Criticize Obama’s Endorsement 107 N.R. Kleinfield, Rider Asks if Cabby is Muslim, Then Stabs Him, of Mosque, N.Y. TIMES, Aug. 14, 2010, available at http://www. N.Y. TIMES, Aug. 25, 2010, available at http://www.nytimes. nytimes.com/2010/08/15/us/politics/15reaction.html. com/2010/08/26/nyregion/26cabby.html. 130 Luke Johnson, Allen West: Muslim Rep. Keith Ellison Represents 108 Old Alignment, Emerging Fault Lines: Religion in the 2010 Election the “Antithesis of the Principles Upon Which This Country Was and Beyond (Public Religion Research Institute, Washington Established, THE WASHINGTON INDEPENDENT, Jan. 24, 2011, D.C.), November 2010, at 17, available at http://publicreligion. available at http://washingtonindependent.com/105125/allen- org/site/wp-content/uploads/2011/06/2010-Post-election- west-muslim-rep-keith-ellison-represents-the-antithesis-of-the- American-Values-Survey-Report.pdf. principles-upon-which-this-country-was-established. 109 Religious Perceptions in America: With an In-Depth Analysis of U.S. 131 Understanding the Homeland Threat Landscape: Considerations for Attitudes Toward Muslims and Islam (Abu Dhabi Gallup Center, the 112th Congress: Hearing Before the House Comm. on Homeland Abu Dhabi, United Arab Emirates), 2009, at 7, available at http:// Sec., 112th Congress (2011). www.abudhabigallupcenter.com/File/144335/WorldReligion_ 132 Bob Allen, Huckabee Draws Heat for Anti-Islam Remarks, THE Report_en-US_final.pdf. CHRISTIAN CENTURY, Feb. 21, 2011, available at http://www. 110 Id. christiancentury.org/article/2011-02/huckabee-draws-heat-anti- 111 U.S. Hate Groups Top 1,000, Southern Poverty Law Center, Feb. islam-remarks. 23, 2011, available at http://www.splcenter.org/get-informed/ news/us-hate-groups-top-1000.

43 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

133 Rachel Rose Hartman, Congressman Ed Royce On Defense Following 151 Barry Leibowitz, Anti-Muslim Hate Crime? Woman Says She Was Anti-Muslim Rally Uproar,YAHOO NEWS, Mar. 4, 2010, (The Followed by Car, Pepper-Sprayed Near Ohio Mosque, CBS NEWS, Ticket Blog), http://news.yahoo.com/s/yblog_theticket/20110304/ Dec. 21, 2010, available at http://www.cbsnews.com/8301- pl_yblog_theticket/congressman-ed-royce-on-defense-following- 504083_162-20026330-504083.html. anti-muslim-rally-uproar. 152 Mara Stine, Hate Crime Suspect Arrested, Placed on Immigration 134 Id. Hold, PORTLAND TRIBUNE, Jan. 11, 2011, available at http:// 135 Id. www.portlandtribune.com/news/print_story.php?story_ 136 Evan McMorris-Santoro, Herman Cain: American Communities id=129479726798952900. Have The Right to Ban Mosques, TALKING POINTS MEMO, July 17, 153 Man Arrested After Threatening Muslim Woman at Walmart, 2011, available at http://tpmdc.talkingpointsmemo.com/2011/07/ KTVB.COM, Dec. 24, 2010, available at http://www.ktvb. herman-cain-american-communities-have-the-right-to-ban- com/home/Man-arrested-after-threatening-Muslim-woman-at- mosques.php. Walmart-112435824.html. 137 Id. 154 William Lee, Filmmaker says 1st Name ‘Usama’ Led to Beating, 138 Id. THE CHICAGO TRIBUNE, March 7, 2011, available at http://www. 139 Evan McMorris-Santoro, Herman Cain Apologizes to Muslims, chicagotribune.com/news/local/breaking/chibrknews-filmmaker- TALKING POINTS MEMO, July 27, 2011, available at http://tpmdc. says-1st-name-usama-led-to-beating-20110307,0,1334947.story. talkingpointsmemo.com/2011/07/herman-cain-apologizes-to- 155 Lee Romney, Second Sikh Shooting Victim in Sacramento Suburb muslims.php. Has Died, LOS ANGELES TIMES, April 15, 2011, available at: http:// 140 Rep. Peter King: There are “Too Many Mosques in This Country, latimesblogs.latimes.com/lanow/2011/04/second-sikh-shooting- POLITICO, Sept. 19, 2007, available at http://www.politico.com/ victim-in-sacramento-area-suburb-dies.html. blogs/thecrypt/0907/Rep_King_There_are_too_many_mosques_ 156 Id. in_this_country_.html. 157 FBI Hate Crimes Statistics (2001-2009), available at http://www. 141 Secure Freedom Radio With Frank Gaffney, Jan. 6, 2011 (stating, fbi.gov/about-us/cjis/ucr/ucr. “[w]hen a war begins, we’re all Americans. But in this case, this is 158 Confronting the New Faces of Hate: Hate Crimes in America not the situation. And whether it’s pressure, whether it’s cultural 2009, (The Leadership Conference on Civil and Human Rights, tradition, whatever, the fact is the Muslim community does not Washington D.C.), June 2009, at 30, available at: http://www. cooperate anywhere near to the extent that it should. The irony is civilrights.org/publications/hatecrimes/. that we’re living in two different worlds.”). 159 C.W. Harlow, Hate Crime Reported by Victims and Police,.U.S. 142 President Barack Obama, State of the Union Address (Jan. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, Nov. 2005, 25, 2011), available at http://www.whitehouse.gov/the-press- available at http://bjs.ojp.usdoj.gov/content/pub/pdf/hcrvp.pdf. office/2011/01/25/remarks-president-state-union-address. 160 Id. at 4. 143 Interview with Former Secretary of State Gen. Colin Powell (Ret.), 161 Southern Poverty Law Center, Report: FBI Hate Crime Statics Vastly Meet the Press, Oct. 19, 2008, available at http://www.msnbc. Understate Problem (Southern Poverty Law Center, Intelligence msn.com/id/27266223/ns/meet_the_press/t/meet-press-transcript- Report), Winter 2005, available at http://www.splcenter.org/get- oct/. informed/intelligence-report/browse-all-issues/2005/winter/hate- 144 Attorney General Eric Holder, Remarks During Meeting with crime. Muslim Advocates and Faith Leaders (Sept. 7, 2010). 162 Id. 145 Elyse Siegel, Cab Driver STABBED in New York City, Micheal 163 U.S. Attorney General Eric Holder, Remarks to the Anti- Enright Arrested on Hate Crime Charges, THE HUFFINGTON Defamation League, (October 17, 2009), available at http://www. POST, Aug. 25, 2010, available at http://www.huffingtonpost. adl.org/Civil_Rights/speech_Eric_Holder.asp. com/2010/08/25/cab-driver-attacked-stabbed-new-york- 164 Beverly McPhail, Hating Hate: Policy Implications of Hate Crime muslim_n_694091.html. Legislation, 74 THE SOCIAL SERVICE REVIEW, 74(4), at 641 (Dec. 146 Sikh Store Clerk Attacked, Called Al-Qaida, UPI.COM, Aug. 2000). 31, 2010, available at http://www.upi.com/Top_News/ 165 18 U.S.C. § 245 (2010). US/2010/08/31/Sikh-store-clerk-attacked-called-al-Qaida/UPI- 166 U.S. Attorney General Eric Holder, Remarks at Muslim Advocates’ 83121283303910/. Annual Banquet, (Dec. 10, 2010), available at http://www.justice. 147 Press Release, Council on American Islamic Relations (“CAIR”), gov/iso/opa/ag/speeches/2010/ag-speech-1012101.html. Southern Calif. Muslim Called ‘Raghead,’ Assaulted by July 4th 167 Controversies Over Mosques and Islamic Centers Across the U.S., Revelers (Jul. 7, 2010), available at http://ca.cair.com/losangeles/ Pew Forum on Religion & Public Life, Sep. 24, 2010, available at news/southern_calif._muslim_called_raghead_assaulted_by_ http://features.pewforum.org/muslim/controversies-over-mosque- july_4th_revelers. and-islamic-centers-across-the-us.html. 148 Trish Mehaffey, Iraqi Teen, Muslim Group Say Assault was Racially 168 Diana Marcum, Authorities Investigate Acts of Vandalism at Mosque Motivated, EASTERN IOWA NEWS NOW, June 28, 2010, available at as Potential Hate Crime, L.A. TIMES, Sep. 8, 2010, available at http://easterniowanewsnow.com/2010/06/28/iraqi-teen-muslim- http://articles.latimes.com/2010/sep/08/local/la-me-0908-madera- group-say-assault-was-racially-motivated/. mosque-20100908. 149 Jon Lauinger, Staten Island Teens Charged with Hate Crime for 169 Racial Slurs Painted on Cypress Mosque, NBC LA, Jun. 4, 2009, Attacking Muslim Classmate over Faith, N.Y. DAILY NEWS, Oct. available at http://www.nbclosangeles.com/news/local/Racial-Slurs- 11, 2010, available at http://www.nydailynews.com/news/ Painted-on-Cypress-Mosque.html. ny_crime/2010/10/11/2010-10-11_staten_island_teens_charged_ 170 Daniel Tepfer, Angry Protestors Descend on Mosque, CONNECTICUT with_hate_crime_for_attacking_muslim_classmate_over_.html. POST, Aug. 6, 2010, available at http://www.ctpost.com/news/ 150 Conor Christofferson, Hate Crime Charges Filed in Attack on article/Angry-protesters-descend-on-mosque-606515.php. Muslim Women, KOMO NEWS, Oct. 21, 2010, available at http:// 171 Id. tukwila.komonews.com/content/hate-crime-charges-filed-attack- 172 Map of Nationwide Anti-Mosque Activity,” American Civil Liberties muslim-women. Union, available at http://www.aclu.org/map-nationwide-anti- mosque-activity. 173 Id.

44 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

174 Elisabeth Kauffman, In Murfreesboro, Tenn.: Church ‘Yes,’ Mosque 197 Amy Padnani, “Staten Island Student Endures the Torment ‘No,’ TIME, Aug. 19, 2010, available at http://www.time.com/time/ of Violence and ‘Terrorist’ Taunts,” STATEN ISLAND ADVANCE, nation/article/0,8599,2011847,00.html. October 10, 2010, available at http://www.silive.com/news/index. 175 Id. ssf/2010/10/young_student_endures_the_torm.html. 176 Id. 198 Ambar Espinoza, “Somali Population, Cultural Tension Rising 177 Rachel Slajda, TN Mosque Opponents Bring in Sharia ‘Expert’ Frank in St. Cloud,” MPR NEWS, March 15, 2010, available at http:// Gaffney, TALKING POINTS MEMO, Sep. 8, 2010, available at http:// minnesota.publicradio.org/display/web/2010/03/15/st-cloud- tpmmuckraker.talkingpointsmemo.com/2010/09/tn_mosque_ tensions. opponents_bring_in_national_sharia_exper.php. 199 Id. 178 Press Release, Department of Justice, Office of Public Affairs, 200 Copy on file with author at Muslim Mothers Against Violence. Justice Department Files Brief in Support of Continued 201 Id. Construction of Murfreesboro, Tenn., Mosque, (Oct. 18, 2010), 202 See Sikh Coalition, New York Civil Liberties Union, and Asian available at http://www.justice.gov/opa/pr/2010/October/10- American Legal Defense and Education Fund, “Bullying in NYC: crt-1162.html. Educators Speak Out,” February 24, 2011, available at http:// 179 Id. www.sikhcoalition.org/documents/DOE_Report.2.24.2011.pdf; 180 Christian Grantham, Judge Denied Mosque Injunction, 2010 Bay Area Civil Rights Report, (Sikh Coalition, New York, MURFREESBORO POST, Nov. 17, 2010, available at http://www. N.Y.), 2010, available at http://www.sikhcoalition.org/documents/ murfreesboropost.com/judge-denies-mosque-injunction- Bay_Area_Civil_Rights_Agenda.pdf; 2009 Report Card on NYC cms-25105. Public Schools Anti-Bullying Work, (Sikh Coalition, New York Civil 181 Elizabeth Emmons, Mosque Lawsuit Will be Heard in April, Liberties Union & Asian American Legal Defense and Education NASHVILLE NEWS, Feb. 15, 2011, available at http://www.wsmv. Fund), 2009; 2009 Civil Rights Agenda for NYC (Sikh Coalition), com/news/26869438/detail.html. 2008; Hatred in the Hallways (Sikh Coalition) 2007. 182 ACLU, supra note 172. 203 42 U.S.C. § 2000d. et seq. 183 Pew Forum on Religion & Public Life, supra note 167. 204 Dear Colleague Letter on Bullying & Harassment to the U.S. 184 Protecting the Civil Rights of American Muslims: Hearing Before the Dept. of Education, (Oct. 26, 2010), available at http://www2. U.S. Senate Judiciary Committee, U.S. Senate Judiciary Committee, ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. 112th Cong. (Mar 29, 2011) (statement of Thomas Perez, Ass’t 205 Secretary of the Department of Education Bullying Law and Policy Attorney General for Civil Rights). Memo, (Dec. 16, 2010), available at http://www.stopbullying. 185 Steven Greenhouse, Muslims Report Rising Discrimination at Work, gov/references/white_house_conference/white_house_conference_ N.Y. TIMES, Sep. 23, 2010, available at http://www.nytimes. materials.pdf. com/2010/09/24/business/24muslim.html. 206 Jonathan Capehart, Bullying is Not a Right of Passage, THE 186 Id. WASHINGTON POST, Mar. 10, 2011, http://www.washingtonpost. 187 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e com/blogs/post-partisan/post/bullying-is-not-a-rite-of- (1964), et seq. passage/2011/03/04/ABBpIrQ_blog.html. 188 Charges related to the events of 9/11/01, by an individual who 207 Kelly Holt, Judge Draws Ire in Suspending Oklahoma Sharia is-or is perceived to be-Muslim, Arab, Afghani, Middle Eastern or Ban, NEW AMERICAN, Nov. 9, 2010, available at http://www. South Asian or individuals alleging retaliation related to the events thenewamerican.com/index.php/usnews/constitution/5146-judge- of 9/11/01. See Fact Sheet: Backlash Employment Discrimination draws-ire-in-suspending-oklahoma-sharia-ban. Charges (U.S. Equal Employment Opportunity Commission) 208 S.B. 1028 Gen. Assem. (TN 2011), available at related to the events of 9/11/2001, against individuals who are, http://wapp.capitol.tn.gov/apps/BillInfo/default. or are perceived to be, Muslim, Arab, Afghani, Middle Eastern or aspx?BillNumber=SB1028&GA=107. South Asian, September 11, 2010. 209 H.B. 2064 Gen. Assem. (AZ 2011), available at http://www. 189 Id. azleg.gov//FormatDocument.asp?inDoc=/legtext/50leg/1r/bills/ 190 Id. hb2064o.asp&Session_ID=102. 191 Steven Greenhouse, Muslims Report Rising Discrimination at Work, 210 Sally Steenland, Setting the Record Straight on Sharia: An Interview N.Y. TIMES, Sep. 23, 2010, available at http://www.nytimes. with Intisar Rabb, Center For American Progress, Mar. 8, 2011, com/2010/09/24/business/24muslim.html. available at http://www.americanprogress.org/issues/2011/03/ 192 Birdi v. United Airlines, Corp, No. 99 C 5576, slip op. (N.D. Ill. rabb_interview.html. 2002). 211 TN State Sen. Bill Ketron, who introduced the bill, recently 193 Ali v. Alamo Rent-a-Car, et al., 246 F.3d 662 (4th Cir. 2001). stated that he would amend the bill to remove its offensive and 194 Letter from Maha Elgenaidi, Islamic Networks Group, Santa Clara, discriminatory provisions; however, we have been unable to locate to the Secretary of the Department of Education, Arne Duncan, a copy of the purported amendment to verify the claim. See (Sep. 6, 2010), available at http://www.ing.org/downloads/ING- Tennessee State Senate, Press Release, March 22, 2011, available at Letter-to-Arne-Duncan-September-2010.pdf. http://www.capitol.tn.gov/senate/members/Ketron/032211.pdf. 195 Id.; Sikh Coalition, et al., “Comments on Department of 212 “Donor” means any United States citizen, individual residing in Education Agency Plan for White House Initiative on Asian the United States, church (as defined by the Internal Revenue Americans and Pacific Islanders,” submitted Feb. 17, 2011; Code), or U.S. nonprofit entity recognized under Section 501(c) Teaching Tolerance, “Combating Anti-Muslim Hate,” available (3) of the Internal Revenue Code, that provides money, items or at http://www.tolerance.org/magazine/number-39-spring-2011/ services to a charitable entity. combating-anti-muslim-bias. 213 Comments on Department of Education Agency Plan for White House 196 John Del Signore, “Four Staten Island Teens Arrested for Anti- Initiative on Asian Americans and Pacific Islanders, Sikh Coalition Muslim Hate Crime,” GOTHAMIST, October 10, 2010, available et. al., (Feb. 17, 2011) (Copy available from Sikh Coalition or at http://gothamist.com/2010/10/11/four_staten_island_teens_ Muslim Advocates.) arrested_f.php.

45 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

Image Credits

Pg. 4 Patriot Act signing Credit: White House Photo by Eric Draper

Pg. 6 Ashcroft Credit: Photo by Scott J. Ferrell/Congressional Quarterly

Pg. 11 Cartoon Credit: Cartoon by Wesley “Westcoast” Ruff, DeviantArt.com

Pg. 17 Obama Credit: Photo by Mandel Ngan, Agence France Presse

Pg. 21 Islam will dominate the world Credit: Ben Stansall/Agence France-Presse

Pg. 23 Ray Kelly Credit: Photo by James Keivom

Pg. 24 Allen West Credit: Photo by Gage Skidmore

Pg. 24 Peter King Credit: Photo by Lauren Victoria Burke/AP

Pg. 24 Mike Huckabee Credit: AP Photo/Rogelio V. Solis

Pg. 25 Herman Cain Credit: Photo by Mark Wilson

Pg. 29 Ron Ramsey Credit: AP Photo/Mark Humphrey

46 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

47 LOSING LIBERTY: THE STATE OF FREEDOM 10 YEARS AFTER THE PATRIOT ACT

48 Acknowledgements

This report could not have been possible without the passion, dedication and collaborative effort of the Muslim Advocates staff, particularly lead authors Jawziya Zaman, Nura Maznavi and Mohamed Sabur, as well as guidance and support by Bobbi Perez, Sam Karimzadeh, and consultant Fatima Khan.

Muslim Advocates also extends its deep gratitude to Kate Martin of the Center for National Security Studies for her input and guidance.

Finally, Muslim Advocates extends its sincere appreciation to all the advocates, government officials, philanthropists, journalists, and other concerned Americans who have had the courage to stand up and defend the Constitution. It is these brave Americans to whom we are forever indebted. Losing Liberty The State of freedom 10 years after the patriot act

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