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In addition to analyzing the content of their internet activities, the NSA also examined the targets' contact lists. The NSA accuses two of the targets of promoting al Qaeda propaganda, but states that surveillance of the three English-speakers’ communications revealed that they have "minimal terrorist contacts." In particular, “only seven (1 percent) of the contacts in the study of the three English-speaking radicalizers were characterized in SIGINT as affiliated with an extremist group or a Pakistani militant group. An earlier communications profile of [one of the targets] reveals that 3 of the 213 distinct individuals he was in contact with between 4 August and 2 November 2010 were known or suspected of being associated with terrorism," the document reads. The document contends that the three Arabic-speaking targets have more contacts with affiliates of extremist groups, but does not suggest they themselves are involved in any terror plots. Instead, the NSA believes the targeted individuals radicalize people through the expression of controversial ideas via YouTube, Facebook and other social media websites. Their audience, both English and Arabic speakers, "includes individuals who do not yet hold extremist views but who are susceptible to the extremist message,” the document states. The NSA says the speeches and writings of the six individuals resonate most in countries including the United Kingdom, Germany, Sweden, Kenya, Pakistan, India and Saudi Arabia.

The NSA possesses embarrassing sexually explicit information about at least two of the targets by virtue of electronic surveillance of their online activity. The report states that some of the data was gleaned through FBI surveillance programs carried out under the Foreign Intelligence and Surveillance Act. The document adds, "Information herein is based largely on Sunni extremist communications." It further states that "the SIGINT information is from primary sources with direct access and is generally considered reliable." According to the document, the NSA believes that exploiting electronic surveillance to publicly reveal online sexual activities can make it harder for these “radicalizers” to maintain their credibility. "Focusing on access reveals potential vulnerabilities that could be even more effectively exploited when used in combination with vulnerabilities of character or credibility, or both, of the message in order to shape the perception of the messenger as well as that of his followers," the document argues. An attached appendix lists the "argument" each surveillance target has made that the NSA says constitutes radicalism, as well the personal "vulnerabilities" the agency believes would leave the targets "open to credibility challenges" if exposed.

One target's offending argument is that "Non-Muslims are a threat to Islam," and a vulnerability listed against him is "online promiscuity." Another target, a foreign citizen the NSA describes as a "respected academic," holds the offending view that "offensive jihad is justified," and his vulnerabilities are listed as "online promiscuity" and "publishes articles without checking facts." A third targeted radical is described as a "well-known media celebrity" based in the Middle East who argues that "the U.S perpetrated the 9/11 attack." Under vulnerabilities, he is said to lead "a glamorous lifestyle." A fourth target, who argues that "the U.S. brought the 9/11 attacks on itself" is said to be vulnerable to accusations of “deceitful use of funds." The document expresses the hope that revealing damaging information about the individuals could undermine their perceived "devotion to the jihadist cause." The Huffington Post is withholding the names and locations of the six targeted individuals; the allegations made by the NSA about their online activities in this document cannot be verified. The document does not indicate whether the NSA carried out its plan to discredit these six individuals, either by communicating with them privately about the acquired information or leaking it publicly. There is also no discussion in the document of any legal or ethical constraints on exploiting electronic surveillance in this manner.

While Baker and others support using surveillance to tarnish the reputation of people the NSA considers "radicalizers," U.S. officials have in the past used similar tactics against civil rights leaders, labor movement activists and others. Under J. Edgar Hoover, the FBI harassed activists and compiled secret files on political leaders, most notably Martin Luther King, Jr. The extent of the FBI's surveillance of political figures is still being revealed to this day, as the bureau releases the long dossiers it compiled on certain people in response to Freedom of Information Act requests following their deaths. The information collected by the FBI often centered on sex -- homosexuality was an ongoing obsession on Hoover's watch -- and information about extramarital affairs was reportedly used to blackmail politicians into fulfilling the bureau's needs. Current FBI Director James Comey recently ordered new FBI agents to visit the Martin Luther King, Jr. Memorial in Washington to understand "the dangers in becoming untethered to oversight and accountability."

James Bamford, a journalist who has been covering the NSA since the early 1980s, said the use of surveillance to exploit embarrassing private behavior is precisely what led to past U.S. surveillance scandals. "The NSA's operation is eerily similar to the FBI's operations under J. Edgar Hoover in the 1960s where the bureau used wiretapping to discover vulnerabilities, such as sexual activity, to 'neutralize' their targets," he said. "Back then, the idea was developed by the longest serving FBI chief in U.S. history, today it was suggested by the longest serving NSA chief in U.S. history." That controversy, Bamford said, also involved the NSA. "And back then, the NSA was also used to do the eavesdropping on King and others through its Operation Minaret. A later review declared the NSA’s program 'disreputable if not outright illegal,'" he said. Baker said that until there is evidence the tactic is being abused, the NSA should be trusted to use its discretion. "The abuses that involved Martin Luther King occurred before Edward Snowden was born," he said. "I think we can describe them as historical rather than current scandals. Before I say, 'Yeah, we've gotta worry about that,' I'd like to see evidence of that happening, or is even contemplated today, and I don't see it."

Jaffer, however, warned that the lessons of history ought to compel serious concern that a "president will ask the NSA to use the fruits of surveillance to discredit a political opponent, journalist or human rights activist." "The NSA has used its power that way in the past and it would be naïve to think it couldn't use its power that way in the future," he said.

One can only measure success or failure by reference to what one is trying achieve. So, in practice, what have U.S. objectives been? Are these objectives still valid? If we’ve failed to advance them, what went wrong? What must we do now to have a better chance of success? Our objectives in the Middle East have not changed much over the course of the past half century or more. We have sought to 1. Gain acceptance and security for a Jewish homeland from the other states and peoples of the region; 2. Ensure the uninterrupted availability of the region’s energy supplies to sustain global and U.S. security and prosperity; 3. Preserve our ability to transit the region so as to be able to project power around the world; 4. Prevent the rise of a regional hegemon or the deployment of weapons of mass destruction that might threaten any or all of these first three objectives; 5. Maximize profitable commerce; and 6. Promote stability while enhancing respect for human rights and progress toward constitutional democracy. Let’s briefly review what’s happened with respect to each of these objectives. I will not mince words.

Israel has come to enjoy military supremacy but it remains excluded from most participation in its region’s political, economic, and cultural life. In the 67 years since the Jewish state was proclaimed, Israel has not made a single friend in the Middle East, where it continues to be regarded as an illegitimate legacy of Western imperialism engaged in racist removal of the indigenous population. International support for Israel is down to the United States and a few of the former colonial powers that originally imposed the Zionist project on the Arabs under Sykes-Picot and the related Balfour Declaration. The two-state solution has expired as a physical or political possibility. There is no longer any peace process to distract global attention from Israel’s maltreatment of its captive Arab populations. After years of deference to American diplomacy, the Palestinians are about to challenge the legality of Israel’s cruelties to them in the International Criminal Court and other venues in which Americans have no veto, are not present, or cannot protect the Jewish state from the consequences of its own behavior as we have always been able to do in the past. Israel’s ongoing occupation of the West Bank and siege of Gaza are fueling a drive to boycott its products, disinvest in its companies, and sanction its political and cultural elite. These trends are the very opposite of what the United States has attempted to achieve for Israel.

In a stunning demonstration of his country’s most famous renewable resource — chutzpah — Israel’s Prime Minister chose this very moment to make America the main issue in his reelection campaign while simultaneously transforming Israel into a partisan issue in the United States. This is the very opposite of a sound survival strategy for Israel. Uncertainties about their country’s future are leading many Israelis to emigrate, not just to America but to Europe. This should disturb not just Israelis but Americans, if only because of the enormous investment we have made in attempts to gain a secure place for Israel in its region and the world. The Palestinians have been silent about Mr. Netanyahu’s recent political maneuvers. Evidently, they recall Napoleon’s adage that one should never interrupt an enemy when he is making a mistake. This brings me to an awkward but transcendently important issue. Israel was established as a haven from anti-Semitism — Jew hatred — in Europe, a disease of nationalism and Christian culture that culminated in the Holocaust. Israel’s creation was a relief for European Jews but a disaster for the Arabs of Palestine, who were either ethnically cleansed by European Jewish settlers or subjugated, or both.  But the birth of Israel also proved tragic for Jews throughout the Middle East — the Mizrahim. In a nasty irony, the implementation of Zionism in the Holy Land led to the introduction of European-style anti-Semitism — including its classic Christian libels on Jews — to the region, dividing Arab Jews from their Muslim neighbors as never before and compelling them to join European Jews in taking refuge in Israel amidst outrage over the dispossession of Palestinians from their homeland. Now, in a further irony, Israel’s pogroms and other injustices to the Muslim and Christian Arabs over whom it rules are leading not just to a rebirth of anti-Semitism in Europe but to its globalization.

The late King `Abdullah of Saudi Arabia engineered a reversal of decades of Arab rejectionism at Beirut in 2002. He brought all Arab countries and later all 57 Muslim countries to agree to normalize relations with Israel if it did a deal — any deal — with the Palestinians that the latter could accept. Israel spurned the offer. Its working assumption seems to be that it does not need peace with its neighbors as long as it can bomb and strafe them. Proceeding on this basis is not just a bad bet, it is one that is dividing Israel from the world, including Jews outside Israel. This does not look like a story with a happy ending. It’s hard to avoid the thought that Zionism is turning out to be bad for the Jews. If so, given the American investment in it, it will also have turned out to be bad for America. The political costs to America of support for Israel are steadily rising. We must find a way to divert Israel from the largely self-engineered isolation into which it is driving itself, while repairing our own increasing international ostracism on issues related to Israel.  

Despite Mr. Netanyahu’s recent public hysteria about Iran and his efforts to demonize it, Israel has traditionally seen Iran’s rivalry with the Arabs as a strategic asset. It had a very cooperative relationship with the Shah. Neither Israelis nor Arabs have forgotten the strategic logic that produced Israel's entente with Iran. Israel is very much on Daesh’s list of targets, as is Iran. For now, however, Israel’s main concern is the possible loss of its nuclear monopoly in the Middle East. Many years ago, Israel actually did what it now accuses Iran of planning to do. It clandestinely developed nuclear weapons while denying to us and others that it was doing so. Unlike Iran, Israel has not adhered to the Nuclear Non-Proliferation Treaty or subjected its nuclear facilities to international inspection. It has expressed no interest in proposals for a nuclear-free zone in the Middle East. It sees its ability to bring on nuclear Armageddon as the ultimate guarantee of its existence.

To many, Israel now seems to have acquired the obnoxious habit of biting the American hand that has fed it for so long. The Palestinians have despaired of American support for their self-determination. They are reaching out to the international community in ways that deliberately bypass the United States. Random acts of violence herald mayhem in the Holy Land. Daesh has proclaimed the objective of erasing the Sykes-Picot borders and the states within them. It has already expunged the border between Iraq and Syria. It is at work in Lebanon and has set its sights on Jordan, Palestine, and Israel. Lebanon, under Saudi influence, has turned to France rather than America for support. Hezbollah has intervened militarily in Iraq and Syria, both of whose governments are close to Iran. Egypt and Turkey have distanced themselves from the United States as well as from each other. Russia is back as a regional actor and arms supplier. The Gulf Arabs, Egypt, and Turkey now separately intervene in Libya, Syria, and Iraq without reference to American policy or views. Iran is the dominant influence in Iraq, Syria, parts of Lebanon, and now Yemen. It has boots on the ground in Iraq. And now Saudi Arabia seems to be organizing a coalition that will manage its own nuclear deterrence and military balancing of Ir

To describe this as out of control is hardly adequate. What are we to do about it? Perhaps we should start by recalling the first law of holes — “when stuck in one, stop digging.” It appears that “don’t just sit there, bomb something” isn’t much of a strategy. When he was asked last summer what our strategy for dealing with Daesh was, President Obama replied, “We don’t yet have one.” He was widely derided for that. He should have been praised for making the novel suggestion that before Washington acts, it should first think through what it hopes to accomplish and how best to do it. Sunzi once observed that “tactics without strategy is the noise before defeat." America’s noisy but strategy-free approach to the Middle East has proven him right. Again the starting point must be what we are trying to accomplish. Strategy is "the discipline of achieving desired ends through the most efficient use of available means" [John Lewis Gaddis].Our desired ends with respect to the Middle East are not in doubt. They have been and remain to gain an accepted and therefore secure place for Israel there; to keep the region's oil and gas coming at reasonable prices; to be able to pass through the area at will; to head off challenges to these interests; to do profitable business in the markets of the Middle East; and to promote stability amidst the expansion of liberty in its countries. Judging by results, we have been doing a lot wrong. Two related problems in our overall approach need correction. They are “enablement” and the creation of “moral hazard.” Both are fall-out from  relationships of codependency.

Enablement occurs when one party to a relationship indulges or supports and thereby enables another party’s dysfunctional behavior. A familiar example from ordinary life is giving money to a drunk or a drug addict or ignoring, explaining away, or defending their subsequent self-destructive behavior.  Moral hazard is the condition that obtains when one party is emboldened to take risks it would not otherwise take because it knows another party will shoulder the consequences and bear the costs of failure. The U.S.-Israel relationship has evolved to exemplify codependency. It now embodies both enablement and moral hazard. U.S. support for Israel is unconditional.  Israel has therefore had no need to cultivate relations with others in the Middle East, to declare its borders, or to choose peace over continued expansion into formerly Arab lands. Confidence in U.S. backing enables Israel to do whatever it likes to the Palestinians and its neighbors without having to worry about the consequences. Israel is now a rich country, but the United States continues to subsidize it with cash transfers and other fiscal privileges. The Jewish state is the most powerful country in the Middle East. It can launch attacks on its neighbors, confident that it will be resupplied by the United States. Its use of U.S. weapons in ways that violate both U.S. and international law goes unrebuked. 41 American vetoes in the United Nations Security Council have exempted Israel from censure and international law. We enable it to defy the expressed will of the international community, including, ironically, our own.

We Americans are facilitating Israel's indulgence in denial and avoidance of the choices it must make if it is not to jeopardize its long-term existence as a state in the Middle East. The biggest contribution we could now make to Israel's longevity would be to ration our support for it, so as to cause it to rethink and reform its often self-destructive behavior. Such peace as Israel now enjoys with Egypt, Jordan, and the Palestinians is the direct result of tough love of this kind by earlier American administrations. We Americans cannot save Israel from itself, but we can avoid killing it with uncritical kindness. We should support Israel when it makes sense to do so and it needs our support on specific issues, but not otherwise. Israel is placing itself and American interests in jeopardy. We need to discuss how to reverse this dynamic.

Moral hazard has also been a major problem in our relationship with our Arab partners. Why should they play an active role in countering the threat to them they perceive from Iran, if they can get America to do this for them? Similarly, why should any Muslim country rearrange its priorities to deal with Muslim renegades like Daesh when it can count on America to act for it? If America thinks it must lead, why not let it do so? But responsible foreign and defense policies begin with self-help, not outsourcing of military risks. The United States has the power-projection and war-fighting capabilities to back a Saudi-led coalition effort against Daesh. The Saudis have the religious and political credibility, leadership credentials, and diplomatic connections to organize such an effort. We do not. Since this century began, America has administered multiple disappointments to its allies and friends in the Middle East, while empowering their and our adversaries. Unlike the Gulf Arabs, Egypt, and Turkey, Washington does not have diplomatic relations with Tehran. Given our non-Muslim identity, solidarity with Israel, and recent history in the Fertile Crescent, the United States cannot hope to unite the region’s Muslims against Daesh.  Daesh is an insurgency that claims to exemplify Islam as well as a governing structure and an armed force. A coalition led by inhibited foreign forces, built on papered-over differences, and embodying hedged commitments will not defeat such an insurgency with or without boots on the ground.

When elections have yielded governments whose policies we oppose, we have not hesitated to conspire with their opponents to overthrow them. But the results of our efforts to coerce political change in the Middle East are not just failures but catastrophic failures. Our policies have nowhere produced democracy. They have instead contrived the destabilization of societies, the kindling of religious warfare, and the installation of dictatorships contemptuous of the rights of religious and ethnic minorities. Frankly, we have done a lot better at selling things, including armaments, to the region than we have at transplanting the ideals of the Atlantic Enlightenment there. The region’s autocrats cooperate with us to secure our protection, and they get it. When they are nonetheless overthrown, the result is not democracy or the rule of law but socio-political collapse and the emergence of  a Hobbesian state of nature in which religious and ethnic communities, families, and individuals are able to feel safe only when they are armed and have the drop on each other. Where we have engineered or attempted to engineer regime change, violent politics, partition, and ethno-religious cleansing have everywhere succeeded unjust but tranquil order. One result of our bungled interventions in Iraq and Syria is the rise of Daesh. This is yet another illustration that, in our efforts to do good in the Middle East, we have violated the principle that one should first do no harm.

Americans used to believe that we could best lead by example. We and those in the Middle East seeking nonviolent change would all be better off if America returned to that tradition and forswore ideologically motivated hectoring and intervention. No one willingly follows a wagging finger. Despite our unparalleled ability to use force against foreigners, the best way to inspire them to emulate us remains showing them that we have our act together. At the moment, we do not. In the end, to cure the dysfunction in our policies toward the Middle East, it comes down to this. We must cure the dysfunction and venality of our politics. If we cannot, we have no business trying to use an 8,000-mile-long screwdriver to fix things one-third of the way around the world. That doesn’t work well under the best of circumstances. But when the country wielding the screwdriver has very little idea what it’s doing, it really screws things up.

The poll also shows, as Glenn Greenwald puts it at The Intercept, that “religious fanaticism is a huge factor in Americans’ support for Israel.” Bloomberg Politics finds that “Born-again Christians are more likely than overall poll respondents, 58 percent to 35 percent, to back Israel regardless of US interests. Americans with no religious affiliation were the least likely to feel this way, at 26 percent.” “The US media loves to mock adversary nations, especially Muslim ones, for being driven by religious extremism, but that is undeniably a major factor, arguably the most significant one, in explaining fervent support for Israel among the American populace,” Greenwald observes.

The poll also confirms that Israel is increasingly becoming a niche issue of the right: “62 percent of self-identified conservatives say supporting Israel is key, while that drops to 35 percent among moderates,” the poll states.

This is all in line with broader trends in recent years: an increasingly multicultural and younger America is moving to the left, while an older, whiter, more Christian America that is in demographic decline has been moving to the right. What’s striking is that Hillary Clinton’s campaign launch video – featuring multiracial families, single moms and a gay couple about to get married – was calculated to appeal to the America that is increasingly alienated from Israel and the conservatives who love it. The America Hillary Clinton is trying to woo is moving away from Israel. Will the presidential hopeful and the Democratic Party leadership follow? I wouldn’t bet on it any time soon, but the trends are hard to ignore.

Pape’s analysis is consistent with what Lydia Wilson found when she interviewed captured ISIS fighters in Iraq. “They are woefully ignorant about Islam and have difficulty answering questions about Sharia law, militant jihad, and the caliphate,” she recently wrote in The Nation. “But a detailed, or even superficial, knowledge of Islam isn’t necessarily relevant to the ideal of fighting for an Islamic State, as we have seen from the Amazon order of Islam for Dummies by one British fighter bound for ISIS.”

The National Security Agency last year significantly expanded its cooperative relationship with the Saudi Ministry of Interior, one of the world’s most repressive and abusive government agencies. An April 2013 top secret memo provided by NSA whistleblower Edward Snowden details the agency’s plans “to provide direct analytic and technical support” to the Saudis on “internal security” matters. The Saudi Ministry of Interior—referred to in the document as MOI— has been condemned for years as one of the most brutal human rights violators in the world. In 2013, the U.S. State Department reported that “Ministry of Interior officials sometimes subjected prisoners and detainees to torture and other physical abuse,” specifically mentioning a 2011 episode in which MOI agents allegedly “poured an antiseptic cleaning liquid down [the] throat” of one human rights activist. The report also notes the MOI’s use of invasive surveillance targeted at political and religious dissidents. But as the State Department publicly catalogued those very abuses, the NSA worked to provide increased surveillance assistance to the ministry that perpetrated them. The move is part of the Obama Administration’s increasingly close ties with the Saudi regime; beyond the new cooperation with the MOI, the memo describes “a period of rejuvenation” for the NSA’s relationship with the Saudi Ministry of Defense. In general, U.S. support for the Saudi regime is long-standing. One secret 2007 NSA memo lists Saudi Arabia as one of four countries where the U.S. “has [an] interest in regime continuity.”

The Obama administration has strained to reconcile the vast counter-terrorism bureaucracy with its policy declarations that the US is not at war with Islam and has attempted, with mixed results, to cultivate a less militarized and security-focused relationship with US Muslims, often preferring the term "countering violent extremism" over "counter-terrorism".In some anti-Islam circles, the removal of the instructional material is infamous and considered evidence of an administration capitulation to Islam – the exact opposite of the concern raised by the Intercept on Wednesday. The Intercept report, by former Guardian columnist Glenn Greenwald, Murtaza Hussain and Josh Meyer, suggested a persistent counter-terrorism atmosphere in which the mixture of Muslim heritage or faith and political activism attracted the scrutiny of US security agencies, despite first amendment protections. It presented the cases of five American activists and attorneys of Muslim heritage who appear to have been targeted for surveillance, at least between 2002 and 2008. None have been charged with a crime.

US Muslim leaders and civil rights groups reacted with fury to the Intercept report.A coalition of 44 civil rights organizations wrote Obama on Wednesday to request a meeting with him, attorney general Eric Holder and FBI director James Comey. "In short, the government’s domestic counterterrorism policies treat entire minority communities as suspect, and American Muslims have borne the brunt of government suspicion, stigma and abuse," reads an open letter issued by a coalition that includes the ACLU, the Presbyterian Church (USA), the Arab-American Institute, and dozens of others.In a statement, the law firm Muslim Advocates said the spying, apparently conducted between 2002 and 2008, "confirms the worst fears of American Muslims"."The federal government has targeted Americans, even those who have served their country in the military and government, simply because of their faith or religious heritage," the group said. "The report clearly documents how biased training by the FBI leads to biased surveillance."

Vincent Warren, executive director of the Center for Constitutional Rights, issued a statement comparing the surveillance of Nihad Awad of the Council on American-Islamic Relations, named by the Intercept as one of the five surveillance targets, to the infamous surveillance of the Civil Rights Movement."The NSA’s surveillance of Nihad Awad and CAIR fits the same pattern as the FBI surveillance of Martin Luther King Jr, Ella Baker, Jesse Jackson, Malcolm X, and other leaders of the civil rights movement. Then it was based on manufactured suspicions of associations with the Communist party. Now it is seemingly based on unproven claims of tangential associations with Hamas," Warren said.

Goldberg’s analysis about the state of the relationship is, in some ways, mirrored by Bret Stephens’s weekly “Global View” column in Tuesday’s Wall Street Journal, “Bibi and Barack on the Rocks,” although he, entirely predictably given his pro-settler worldview, sees Bibi as the wronged party. And, unlike Goldberg, he doesn’t see the US as the more powerful. Noting how Defense Minister Moshe Yaalon was snubbed by senior administration officials with whom he requested to meet, Stephens, a former editor of the Jerusalem Post, writes: The administration also seems to have forgotten that two can play the game. Two days after the Yaalon snub, the Israeli government announced the construction of 1,000 new housing units in so-called East Jerusalem, including 600 new units in the Ramat Shlomo neighborhood that was the subject of a 2010 row with Joe Biden. Happy now, Mr. Vice President? Stephens calls for a “trial separation” by the two countries in which Israel will give up its $3 billion dollar/year US aid package to free itself from US interference

The administration likes to make much of the $3 billion a year it provides Israel (or, at least, U.S. defense contractors) in military aid, but that’s now less than 1% of Israeli GDP. Like some boorish husband of yore fond of boasting that he brings home the bacon, the administration thinks it’s the senior partner in the marriage. Except this wife can now pay her own bills. And she never ate bacon to begin with. It’s time for some time away. Israel needs to look after its own immediate interests without the incessant interventions of an overbearing partner. The administration needs to learn that it had better act like a friend if it wants to keep a friend. It isn’t as if it has many friends left. This is precisely where Goldberg believes current Israeli policy is leading it.

Netanyahu, and the even more hawkish ministers around him, seem to have decided that their short-term political futures rest on a platform that can be boiled down to this formula: “The whole world is against us. Only we can protect Israel from what’s coming.” …But for Israel’s future as an ally of the United States, this formula is a disaster.”

That’s why I find the Third Circuit’s analysis in Hassan so significant — not because it allows this particular civil suit to go forward, but because it does so based upon an explicit (and conscious) rejection of Korematsu — style legal reasoning. As Judge Ambro explains, “No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.” And applying the strict judicial scrutiny that is triggered by government action deemed to be intentionally discriminatory on the basis of religious affiliation, the court proceeds to hold that the NYPD lacked a sufficiently compelling justification for such discriminatory treatment, because even if abstract claims of security necessity could be a compelling government interest, the NYPD’s alleged policy was far too overbroad to survive the narrow tailoring required by strict scrutiny. Thus, quoting directly from Justice Jackson’s Korematsu dissent, Judge Ambro closed his opinion by noting that “Our job is judicial. We ‘can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.'”

Faiza’s post provides far more detail on the specifics of the Third Circuit’s analysis, and the opinion itself is worth a read. For present purposes, though, it’s this mentality that I find so refreshing — that even when the government invokes the specter of September 11 and the need to prevent future acts of terrorism, courts will not abdicate their responsibility to scrutinize the government’s justifications with care, and to be especially wary of overbroad government programs carried out under the broad guise of “necessity.” Hassan certainly isn’t the first example of this kind of principled judicial decisionmaking in a post-September 11 counterterrorism suit, but it is the one that, at least in my view, most directly confronts — and rejects — the kind of deferential judicial review that was responsible for the second constitutional failure in Korematsu, and all of the pain that followed.

The real question is this: if concern over suppression of political rights is not the real reason the U.S. is imposing new sanctions on Venezuela (perish the thought!), what is? Among the most insightful commentators on U.S. policy in Latin America is Mark Weisbrot of Just Foreign Policy. Read his excellent article for Al Jazeera on the recent Obama decree on Venezuela. In essence, Venezuela is one of the very few countries with significant oil reserves which does not submit to U.S. dictates, and this simply cannot be permitted (such countries are always at the top of the U.S. government and media list of Countries To Be Demonized). Beyond that, the popularity of Chavez and the relative improvement of Venezuela’s poor under his redistributionist policies petrifies neoliberal institutions for its ability to serve as an example; just as the Cuban economy was choked by decades of U.S. sanctions and then held up by the U.S. as a failure of Communism, subverting the Venezuelan economy is crucial to destroying this success. As Weisbrot notes, every country in the hemisphere except for the U.S. and Canada have united to oppose U.S. sanctions on Venezuela. The Community of Latin American and Caribbean States (CELAC) issued a statement in February in response to the prior round of U.S. sanctions on Venezuela that “reiterates its strong repudiation of the application of unilateral coercive measures that are contrary to international law.” This week, the chief of the Union of South American Nations (UNASUR) issued a statement announcing that “UNASUR rejects any external or internal attempt at interference that seeks to disrupt the democratic process in Venezuela.” Weisbrot compares Obama’s decree this week on Venezuela to President Reagan’s quite similar 1985 decree that Nicaragua was a national security threat to the U.S., and notes: “The Obama administration is more isolated today in Latin America than even George W. Bush’s administration was.”

If Obama and supporters want the government of Venezuela to be punished and/or toppled because they refuse to comply with U.S. dictates, they should at least be honest about their beliefs so that their true character can be seen. Pretending that any of this has to do with the U.S. Government’s anger over suppression of political opponents — when their closest allies are the world champions at that — should be too insulting of everyone’s intelligence to even be an option.

Next up was the lower court’s dismissal of the case on the grounds that the plaintiffs had failed to state a claim. The plaintiffs had alleged that the NYPD’s surveillance program was facially discriminatory because it targeted Muslims. In response, the City had demanded information about “when, by whom, and how the policy was enacted and where it was written down.” But the court found the plaintiffs had met their burden, alleging specifics about the program “including when it was conceived (January 2002), where the City implemented it (in the New York Metropolitan area with a focus on New Jersey), and why it has been employed because of the belief ‘that Muslim religious identity … is a permissible proxy for criminality.’” In other words, the plaintiffs had sufficiently alleged a facially discriminatory policy even when they couldn’t identify a piece of paper on which it was memorialized. For civil rights lawyers concerned that cases like Iqbal and Twombly are closing off avenues for civil rights litigation, the Third Circuit holding provides some comfort. A key issue in the case was the NYPD’s intent in monitoring Muslims. The City had successfully argued below that it “could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.” Its motive, the City argued, was counterterrorism, not treating Muslims differently. The problem with this argument, the Third Circuit explained, was that the City was mixing up “intent” and “motive.” The intent inquiry focuses on whether a person acts intentionally rather than accidentally, while the motive inquiry focuses on why a person acts. “[E]ven if NYPD officers were subjectively motivated by a legitimate law enforcement purpose … they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they not been Muslim,” the court concluded.

The court then turned to whether, assuming differential treatment, the NYPD program was nevertheless justified on security or public safety grounds. It began its inquiry by examining the appropriate standard of review, concluding that it was appropriate to apply heightened scrutiny to religion-based classifications under the equal protection clause rather than simply to examine whether the City had a rational basis for its actions. Even though religious affiliation, unlike race, is capable of being changed, the Third Circuit agreed with many of its sister courts that it was of such fundamental importance that people should not be required to change their faith.

New York City had argued that the surveillance program met the heightened scrutiny standard because it was necessary to meet the threat of terrorism. In support, the City put forward its oft-repeated argument that a “comprehensive understanding of the makeup of the community would help the NYPD figure out where to look — and where not to look — in the event it received information that an Islamist radicalized to violence may be secreting himself in New Jersey.” The court was not convinced that this was a sufficiently close fit with the goal, finding that the City failed to meet its burden of rebutting the presumption of unconstitutionality created by plausible allegation of discrimination. Harking back to the World War II internment of Japanese Americans

the Third Circuit cautioned: No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights … Given that “unconditional deference to [the] government[’s] … invocation of ‘emergency’ … has a lamentable place in our history,” the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.

Lastly, the Third Circuit rejected as “threadbare” the City’s argument that plaintiffs First Amendment free exercise and establishment clause claims failed because they did not allege “overt hostility and prejudice.” As with the equal protection claims, it was not necessary for plaintiffs to demonstrate animus. *     *     * In conclusion, the court reminded us that the targeting of Muslims, which has been a leitmotif of US security policy, was not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.”

Meanwhile, this is not the first No Fly List-related lawsuit against the FBI. In 2010 the American Civil Liberties Union (ACLU) attempted to sue US Department of Justice and the FBI over their barring of American citizens, including several veterans of the US military, who ended up on the No Fly List and have been denied entry to their own country. The No Fly List was created by the US government’s Terrorist Screening Center (TSC) after the September 11, 2001 attacks on the United States. In 2012, the list was extended to around 21,000 individuals. The list, including US citizens and residents as well as foreigners, has been repeatedly criticized on civil liberties grounds, due to ethnic, religious, economic, political and racial discrimination. It has also raised concerns about privacy and government secrecy.

The ACLU called inclusion on a list a potentially “life-altering” experience, adding that “it is not at all clear what separates a ‘reasonable-suspicion-based-on-a-reasonable-suspicion’ from a simple hunch.” Until March, no one had successfully convinced a court to force authorities to take them off the No Fly List. Rahinah Ibrahim, a Malaysian architect, became the first person ever removed from the notorious list after the managed to force officials to admit she had been placed on the list due to an error by the agency.