Spying on the Margins: The History, Law, and Practice of U.S. Surveillance Against Muslim, Black, and Immigrant Communities and Contemporary Strategies of Resistance A Project South Report. Lead Author, Amith Gupta, Esq. Edited by Azadeh Shahshahani and Manzoor Cheema Acknowledgments Project South would like to thank the following people for their advice and assistance in making this report possible: Leena Al-Arian, Dr. Sami Al-Arian, Nicole Fauster, Mike German, Nadia Guzman, Bisan Hameed, Javeria Jamil, Hamid Khan, Zainab Khan, Lara Kiswani, Sabrine Mohamed, Celine Qussiny, Sue Udry, Elica Vafaie, Jeffrey Wang, Stephanie Guilloud, and Emery Wright. Cover Page: Nahla Al-Arian, wife of Palestinian-American Muslim Professor Sami Al-Arian, shuffles through hundreds of CDs containing audio from the surveillance of all of her family’s phone calls over a decade. (Halvorsen, Line. USA vs. Al-Arian. Exposed Film, 2007, vimeo.com/128413718.) © Project South, February 2021 TABLE OF CONTENTS INTRODUCTION 2 Ethno-Religious Profiling as Probable Cause 37 Equal Protection Claims Under the Fourteenth and Fifth CHAPTER 1: THE HISTORY OF THE U.S. SURVEILLANCE Amendments 38 STATE: ORIGINS TO THE 1990S 4 Intentional Discrimination 38 Discriminatory Application of Facially Neutral Laws 39 Defining Islamophobia 4 Islamophobia as Racism 4 The State Secrets Hurdle 39 The Trans-Atlantic Slave Trade & Muslims 4 Orientalism: Islam as Foreign and Dangerous 5 CHAPTER 4: SURVEILLANCE BY STATE 40 Modern Islamophobia 5 GEORGIA 42 The Evolution of Surveillance 6 Expansive Surveillance Guidelines at the Georgia Bureau The Colonial and Racist Origins of Surveillance in the Americas 6 of Investigation & GISAC Fusion Center 42 The Repression of The Labor Movement & The Surveillance State 6 Directive 7-6: Overarching Intelligence Gathering Guidelines 42 U.S. Imperialism in the Philippines & The Surveillance State 6 Directive 8-6-5: Social Media Guidelines 43 The Repression of Dissent & Diversity: Early Twentieth Century Directive 8-8-23: Facial Recognition Software Guidelines 43 Surveillance 8 Annual Privacy Presentations 43 The COINTELPRO Era 9 Privacy Audits 43 Reforms and their Limits 12 Conclusions about GBI & GISAC 44 The Antiterrorism and Effective Death Penalty Act and Other Federal-to-Local Spying and Prosecution 44 Changes 14 JTTF & Pentagon Monitoring Protest Activity 44 Preemptive Prosecutions of Shifa Sadequee & Syed Harris CHAPTER 2: THE “WAR ON TERRORISM” AND THE Ahmed 44 CONTEMPORARY U.S.SURVEILLANCE STATE 15 Recent Incidents 45 46 Fearing Muslims: Preventative Policing & The “Radicalization” NORTH CAROLINA Thesis: 16 Expansive Surveillance Guidelines at the State Bureau of 46 Invading Muslim Spaces: The Use of Informants, Ethno- Investigation & NCISAAC 47 Religious Mapping, and Entrapment 17 Federal-to-Local Spying and Prosecution The JTTF-led Targeting and Prosecution of the Raleigh 7 47 Brutalizing Muslims: Torture, Disappearances, Renditions, Recent Incidents 48 and Secret Detentions 18 Authorizing Torture and Secret Detentions 18 FLORIDA 48 U.S. Torture of Detained People at GTMO and CIA Black Sites 19 Fusion Centers: SEFFC and the Florida Fusion Center 48 Expanding Extraordinary Renditions 19 Federal-to-Local Spying and Prosecution 48 U.S. Torture in Iraq and Afghanistan Invasions 20 Fusion Centers and JTTF Target Muslim Teens 48 President Obama’s Weak Reforms 21 The Collapse of the FISA Wall: The Prosecution of Sami Al-Arian 49 Torture and Surveilling Muslims 21 Targeting Black Muslim Poverty: The Liberty City 7 50 51 Criminalizing Muslim Society: Prosecutions for “Material LOUISIANA 51 Support” 21 Expansive Surveillance Guidelines at LA-SAFE 51 Programmatic Mass Surveillance 23 Federal-to-Local Spying and the Climate of Fear Authorizing Mass Surveillance: Statutes and Directives 23 SOUTH CAROLINA 51 Mass Surveillance in Practice 24 Expansive Surveillance Guidelines at SCIIC and in Local Leaks and Statutory Authorizations 26 Police Departments 51 The Call Detail Records Program 27 The Charleston Police Department 51 The Terrorist Surveillance Program and FISA Section 702 27 Federal and Local Surveillance Collaboration 28 CHAPTER 5: COMMUNITIES RESIST SURVEILLANCE 52 Some Reforms 29 Obstacles and Limits to Traditional Strategies 53 Watching Muslims 29 Litigation 53 The Trump Era 30 Statutory Changes 55 “Black Identity Extremism” and the Repression of Black Reclaiming Muslim Community Spaces in Atlanta, GA and Resistance 30 Kenner, LA 55 Banning Muslims 30 Shutting Down CVE Programs in Los Angeles, CA 56 Surveilling Anti-Deportation Efforts 31 Ending JTTF Agreements in San Francisco, CA 57 FISA Limits 31 Halting the Expansion of Fusion Centers in Georgia 58 CHAPTER 3: CHAPTER 3: THE LEGAL CONTOURS OF U.S. CONCLUSION & RECOMMENDATIONS 61 FEDERAL LAW ON SURVEILLANCE AND RELATED LITIGATION 32 APPENDIX 62 - 79 First Amendment Challenges to Surveillance 32 The Laird Barrier 32 Overcoming Laird 33 The First Amendment and Material Support Prosecutions 34 Fourth Amendment Challenges to Surveillance 34 A Reasonable Expectation of Privacy 34 The Third Party Doctrine 36 The Foreign Intelligence Surveillance Exception 36 The Border Search Exception 37 INTRODUCTION n the aftermath of September 11th, 2001, Project South worked with our regional movement partner Highlander Research & Education Center to hold an emergency meeting for movement leaders from across the U.S. South. "This report offers a historical As a Southern-based movement organization rooted in the Black Radical Traditions of the U.S. South, we anticipated that the events of September 11th and the State response Iwould create a paradigm shift for the social, economic, and political conditions in our country. As a result of that meeting, Project South initiated a set of popular education workshops and legal perspective to support in 2002 and published a workbook called Roots of Terror to provide historical context for the “War on Terror” and USA PATRIOT Act after 9/11. Since that time, Project South has developed analysis and programs to contend with the rise in Islamophobia as a critical frontline in the work for racial justice and movement building. In 2009, Project South’s organizing efforts supported the family of Shifa Sadequee, a member of movement organizing that aims to our community. Sadequee, a young Muslim man in Atlanta, was targeted, surveilled, kidnapped in Bangladesh, charged, and convicted in a U.S. federal court on four counts of terrorism. The case (explored in more depth in Chapter Four) exposed The first chapter traces the origins of Islamophobia as a the lengths to which preemptive prosecution and social control form of anti-Black racism connected to the trans-Atlantic slave mechanisms had evolved, and the organization continued trade. The report connects the rise of the surveillance state to to monitor and organize around state social control. A 2011 dismantle surveillance policies crush social movements and extreme forms of surveillance and People’s Movement Assembly connected the impacts of the repression that emerged in the 1960s, like COINTELPRO, and U.S. War on Drugs, War on Immigrants, and War on Terror continued into the 1990s, leading up to the 9/11 attacks. Chapter on Black, Brown, and Muslim communities. Project South Two describes the shift towards more significant surveillance and launched a more cohesive set of legal and advocacy programs “counter-terrorism” programs justified by President George W. led by attorney Azadeh Shahshahani in 2015. Bush’s War on Terror. The efforts included mass round-ups of Muslims, preventative policing, and entrapment, all of which have and practices as part of a wider In 2018, Project South developed a more concentrated shaped the surveillance state for African American and immigrant effort to document state surveillance practices targeting communities throughout the twenty-first century. Muslim, Black, and immigrant communities. A number of developments informed the project: the continued expansion Chapter Three investigates the legal precedents of federal law and normalization of mass surveillance in U.S. society; the as it relates to surveillance and potential challenges communities elevation of Islamophobia to the highest level of U.S. Executive can consider. The fourth chapter dives into specific surveillance power; and the targeting of people for surveillance, primarily call for the abolition of prisons, and social control regulations in Georgia, North Carolina, consisting of individuals from Muslim, immigrant, and/or Florida, Louisiana, and South Carolina, detailing specific case African American backgrounds. Project South’s Protect and study examples in each. The fifth chapter explores resistance Defend Initiative received repeated reports from members of strategies to contend with the surveillance state. From litigation to local Muslim communities in the U.S. South about unwelcome community organizing and education efforts, the report provides visits from law enforcement and suspicion that various possible avenues and several successful examples of challenging law enforcement agents were engaged in discriminatory anti-Muslim ordinances and Joint Terrorism Task Force initiatives. police, and law enforcement surveillance. Beginning in 2019, Project South’s Protect and Project South’s organizing to stop SB15—a Georgia Senate Bill Defend Initiative began an extensive effort to build our legal that would have expanded data mining, surveillance, and policing and historical knowledge of surveillance policies; obtain