The Counterrevolution

by Bernard E. Harcourt

  In my previous book, however, I failed to fully grasp how our expository society fits with the other features of our contemporary political condition—from torture, to Guantánamo, to drone strikes, to digital propaganda. In part, I could not get past the sharp contrast between the fluidity of our digital surfing and surveillance on the one hand, and the physicality of our military interventions and use of torture on the other. To be sure, I recognized the deadly reach of metadata and reiterated those ominous words of General Michael Hayden, former director of both the NSA and the CIA: “We kill people based on metadata.”20 And I traced the haunting convergence of our digital existence and of correctional supervision: the way in which the Apple Watch begins to function like an electronic bracelet, seamlessly caging us into a steel mesh of digital traces. But I was incapable then of fully understanding the bond between digital exposure and analog torture.

  It is now clear, though, that the expository society fits seamlessly within our new paradigm of governing. The expository society is precisely what allows the counterinsurgency strategies to be applied so impeccably “at home” to the very people who invented modern warfare. The advent of the expository society, as well as the specific NSA surveillance programs, makes domestic total information awareness possible, and in turn lays the groundwork for the other two prongs of counterinsurgency in the domestic context.

  9

  TARGETING AMERICANS

  HAVING TURNED TOTAL SURVEILLANCE ONTO THE AMERICAN population, the US government began targeting those Americans who came under suspicion. This step reflects counterinsurgency’s strategy of isolating and eliminating the active minority—the second prong of the modern warfare paradigm. And it took myriad forms.

  Shortly after 9/11, the federal government began compiling and enforcing a No Fly List that would include Americans. Many citizens found themselves grounded and unable to travel, unless they had enough political clout to challenge their inclusion on the list—as the late senator Ted Kennedy did after finding himself on the No Fly List and being prevented to board.1 There were only sixteen people on the government’s No Fly List in September 2001, but by 2006, that number had increased to about forty-four thousand, with an additional seventy-five thousand people on a separate list for additional security screening. It is estimated that hundreds of those were US citizens. After significant pruning in the late aughts, the number then increased dramatically under President Barack Obama, reaching 47,000 by 2013, 64,000 by 2014, and about 81,000 by 2016, of which, again, hundreds were American citizens. In 2016, another 28,000 people were listed for additional screening, of which about 1,700 were American citizens or permanent residents.2

  The FBI also immediately cracked down on Muslim neighborhoods after 9/11. The FBI especially targeted Pakistani neighborhoods in New York City and arrested over 254 Pakistani immigrants over the course of the next year, despite the fact that not one of the 9/11 attackers was from Pakistan. Arrested on merely civil immigration charges, many of the detainees were placed in solitary confinement and detained in isolation for twenty-three hours per day, and many claimed to have suffered sleep deprivation and other abuses at Brooklyn’s federal jail, the Metropolitan Detention Center (MDC). The FBI arrested more than five hundred other persons across the country—men and women who collectively became known as the “September 11 detainees”—in what amounted to one of the largest FBI interventions in history.3

  In addition, in November 2002, the Department of Justice began implementing a new Special Registration Program that required all men over the age of fifteen, who held a US visa and were from Iraq, Iran, Syria, Libya, or Sudan, to register and be processed at an immigration office: fingerprinted, photographed, and interviewed under pain of perjury. Another 20 countries of origin would be added to the list over the following months: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Tunisia, United Arab Emirates, and Yemen. With the exception of North Korea, these countries of origin could not more clearly have signaled that it was Muslim residents in America who were being targeted. As Jennifer Gonnerman reports, “By May, 2003, eighty-two thousand men had registered nationwide, and deportation proceedings had begun for more than thirteen thousand of them.”4

  The targeted surveillance of mosques and Muslim groups also fueled more aggressive federal and local prosecutions for material support of terrorism. Federal prosecutors started using communications eavesdropping under FISC warrants, with their lower threshold, as a basis for federal criminal prosecutions.5 In his first months in office, President Donald Trump signed executive orders imposing travel restrictions on American Muslim residents. Meanwhile, in response to mounting protest, states and municipalities enacted or introduced more draconian laws aimed at restricting political protest, some with severe penalties under antiracketeering laws, for instance in Arizona, and others that carry prison terms.6 These various federal and local measures implemented in the wake of 9/11 provide the context for a range of discrete incidents that reflect the particular ways in which the domestication of counterinsurgency strategies have played out. These ways are evident in a series of stories involving the militarized crackdown of police protesters and the targeting of Muslims at home by our government—stories of individuals like Izhar Khan or Ahmed Mohamed who became, unwittingly, part of a phantom active minority invented on American soil.

  These incidents are not simply scattered instances of excessive repression against Muslims, African Americans, and other minorities in the United States since 9/11, but in fact reflect a broader impulse, rooted in counterinsurgency theory, to define, target, and eliminate an active minority—in effect, to invent an insurgency and then govern by it. There is an inextricable link between total information awareness at home and these incidents. The connection becomes evident the moment we see the larger picture of modern warfare. It is crucial, in effect, to place these incidents within the larger context of our new paradigm of government, in order to see how they reflect the domestication of the second prong of the counterinsurgency model.

  Sending money home to family, friends, and institutions is not unusual among immigrants. Indeed, it is often one of the reasons that one emigrates to the United States or other advanced capitalist nations such as Germany, Sweden, or Saudi Arabia: to achieve some economic security and to give back to one’s family and community of origin. It’s almost expected.

  But things are different if your family comes from the Swat Valley, a mountainous region in Pakistan near the border with Afghanistan. Then, any wire transfer becomes immediately suspect. And if your name is Izhar Khan and you are the twenty-four-year-old mufti of a large mosque called Jamaat Al-Mu’mineen in Margate, Florida, and you wear “a long black beard, a black cotton robe, and a skullcap,” you are doubly suspect.7 After 9/11, those elements made you suspect of being one of the active minority in favor of terrorism.

  Suspicion fell on Izhar Khan primarily because of his father, Hafiz Khan, an elderly imam of one of Miami’s oldest mosques, Masjid Miami. His father had immigrated to the United States in 1994 and was in his late seventies by 2011. Never having learned English, he had a propensity to spend all his time at the mosque on the phone with friends and family in the Swat Valley. According to FBI records, the agency collected thirty-five thousand telephone calls between February 2009 and October 2010—an average of about three or four calls an hour.8

  Hafiz Khan’s phone calls record his bad temper. “May God just make her dead,” he said of his granddaughter when she would not stop crying. “May he be run over by a truck,” he said of his son when his son left his wife at home to cook. According to Evan Osnos at the New Yorker, he “routinely described Pakistan’s leaders as pimps, pigs, sons of donkeys, huge bastards, and dumb-asses,” and begged God to “make them so scared that ‘when they sit down to shit their guts start to spill out.’” He also called the Taliban leaders the “biggest bastards” and, according
to Osnos, “wished that they would surrender.” On another occasion, after hearing about injured civilians, he cursed, “May God destroy them whoever it is, whether they are mischievous or if they are the Taliban or if they are from the government.”9

  Hafiz Khan, the father, was by no means rich. He had never really adjusted to living in the United States. His belongings apparently fit in two plastic bags. He lived in a one-bedroom apartment across from the mosque with his wife. He was albino and his eyesight was bad.

  But he did send money back to Pakistan, and told his children to do so as well—as Osnos suggests, “in the Muslim tradition of charity known as zakat.” He was an imam, after all. And so, over the years, the father sent thousands of dollars back to Pakistan, possibly up to $50,000 in all, for the most part to help support a mosque and Islamic school, the Madrassa Arabia Ahya-al-Aloom in the Swat Valley. He had been instrumental in founding the school in 1971, and, according to Osnos, “He had ambitions to expand [the school], and when the complex needed repairs he told a friend that the school was ‘dearer to me than my children.’”10

  The money transfers raised the suspicions of the FBI, and a paid FBI informant, wearing a wire, began to befriend the father. He offered the father $5,000 to help repair the school he had founded in Swat. And then the informant did his best to get the father to say incriminating statements on surreptitious recordings. Apparently after much prodding, he did. He said some favorable things about the Taliban. As Osnos explains, though, “Away from the informant, Hafiz was recorded warning his grandson that Siddiqui [the informant] ‘talks nonsense’ and should be indulged only because he planned to give money to the school. ‘He is a very nice person, but he is also stupid,’ Hafiz said.”11

  Suspicion spread to Hafiz’s son, Izhar Khan, and his brother, Irfan Khan, a thirty-seven-year-old software technician, because they too sent money to Pakistan. All three men were arrested and indicted, and Hafiz and Izhar Khan were prosecuted as conspirators materially supporting terrorism because of the wire transfers and statements about the Taliban.

  Once arrested, the men were treated as dangerous insurgents. Both sons were detained for months in solitary confinement in Miami’s federal jail, separated from each other and their families, locked down twenty-three hours a day by themselves in their cells in the special housing unit.12 Irfan Khan spent more than ten months in isolation, Izhar Khan more than sixteen.

  Both are free today. Irfan Khan, the older son, was abruptly released after all the charges were dropped. During his ten months in solitary confinement, it became apparent, for instance, that the money he had sent by Western Union to one “Akbar Hussein,” a reputed Taliban commander in Kaboswatt, Pakistan, had actually been directed to “his wife’s uncle, Akbar Hussain, a retired biology professor, who had taught at local universities.”13 The Western Union records listed the names and government ID number of Hussain. Hussein, Hussain—that small slip up was enough to take ten months of a man’s life.

  Izhar Khan, the younger son, was taken to trial, but the federal judge ruled favorably on a motion to acquit—practically unheard of in trial practice—because the evidence presented to the jury did not amount to anything. He was ultimately released after spending more than sixteen months in solitary confinement and four more months in general population.

  Both sons’ lives were ruined. Irfan Khan, the former software programmer, is driving a cab now, obsessively going over the wiretapped conversations. Izhar Khan is pretty much homeless, having sold his house and car to pay for his defense counsel. Of course, they cannot go back to Pakistan, because, having been detained for so long and ultimately released, they would be suspected back home of having cooperated with the feds—“they’ll assume that you’re working for either the CIA or the FBI.” Plus, they would not want to leave their father behind. He was convicted of two counts of conspiracy and two counts of providing material support, and sentenced to a fixed term of twenty-five years without parole—which will extend to 2033 at which point he will be, if alive, ninety-eight years old.14

  The case against the Khan brothers bore all of the indicia of counterinsurgency theory. It began, of course, with total information awareness, which in this case meant wiretapping their conversations and reviewing over thirty-five thousand calls. And then, it placed them in the category of that active minority of those who purportedly want to harm America. It eliminated the sons by placing them in solitary confinement and by destroying their lives. The arrests and prosecutions were also highly publicized, affording the rest of us the satisfaction of feeling safe and secure. Of showing us how well we are protected.

  This first incident reflects how the counterinsurgency mindset produces black-and-white approaches to situations with a lot of gray. Lots of immigrants send money home, and it is not unheard of for some of it to end up in questionable hands. Yet only some people are looked at with deep suspicion and no presumption of innocence when they do so. A second incident shows how the counterinsurgency logic can be taken to more absurd extremes, outside the context of a conventional counterterrorism investigation, to the realm of school discipline—a much more quotidian sort of governance. But the impulses are revealingly similar.

  Ahmed Mohamed was fourteen years old and lived with his parents in Irving, a small suburb of Dallas, Texas.15 In 2015, he was a ninth-grader at the local school, MacArthur High School, and a model student. A science and technology buff, Ahmed spent his extracurricular time working on homemade science, robotics, and electronics projects in his bedroom. He was especially fond of NASA and space technology. He made lots of electronic gadgets, would repair his classmates’ devices, and had earned the nickname “Inventor Kid” in middle school.

  Born in Sudan and of Muslim faith, Ahmed had moved to the United States as a young boy. His father, Mohamed El-Hassan Mohamed, was well known in the community, having lived in the same house in Irving for thirty years. In 2015 and 2010, his father had unsuccessfully run to unseat the current president of Sudan, Omar al-Bashir.16

  On Monday morning, September 14, 2015, Ahmed Mohamed took one of his inventions to school. This little LED clock that he had built in his bedroom consisted of an LED digital display mounted on a small metal case containing a circuit board. It was about the size of his extended hand. He was so proud that he wanted to show it to his engineering teacher.

  At school, Ahmed showed the clock to his engineering teacher, who apparently praised him, during a morning class. Later that day, during his English class, the clock beeped, and when Ahmed took it out to silence it, his English teacher saw it and became concerned. Shortly thereafter, school officials notified the police.

  Ahmed was forcibly detained and interrogated by four police officers—two school resource officers who were regularly assigned to the high school and their supervisor who arrived on the scene along with another police sergeant—for almost an hour, and was denied the opportunity to meet with his father. He was not allowed to have a parent present, or anyone else on his behalf. Ahmed was alone with four adult police officers.

  Although the officers “quickly determined,” in the words of Police Chief Larry Boyd of Irving, that they were not dealing with a bomb or incendiary device, Ahmed was arrested by the police and handcuffed.17 There is a disturbing picture of the young boy, gangly and adolescent looking, wearing his NASA T-shirt, placed in handcuffs behind his back at the police station, looking dumbfounded and panicked.

  He was transported to the nearest juvenile detention facility where he was booked; his fingerprints and a mug shot were taken.

  He was immediately suspended from his high school for three days.

  Following the event, many came to his defense, while others cast aspersions on him. Others, including President Obama, weighed in, not pointing fingers, but making the best of a bad situation. “Cool clock, Ahmed,” President Obama’s official Twitter account read. “Want to bring it to the White House? We should inspire more kids like you to like science. It’s what makes America great.�
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  The incident has been characterized, at one extreme, as an innocent mistake in a world where there is concern about school shootings and other violence, and, at the other, as a clear case of racial profiling and Islamophobia. I would argue that it reflects the growing domestic influence of counterinsurgency thinking. In a dangerous world of supposed insurgents, Ahmed’s name, color, and religion made him instantly suspect. He became potentially part of a small minority of insurgents at war with America. And for that reason, it became immediately necessary to isolate and contain him—to detain, handcuff, and send him to a juvenile facility.

  Ahmed Mohamed arrested at his high school, 2015. (@IStandWithAhmed, Twitter, September 17, 2015, retweet.)

  Even as it became rapidly clear that Ahmed did not pose a threat, it nevertheless remained important to gather information about him. To get his fingerprints, his photograph. To book him. To place him in the system, so that we would have information on him the next time.

  Ahmed’s treatment reflected all three prongs of the counterinsurgency model: creating a member of an insurgent minority, containing him so that he did not contaminate the majority, and gathering intelligence so as to feed the larger project of total information awareness.

  What might have been a legitimate effort to prevent actual terrorist attacks after 9/11 has fostered a counterinsurgency mindset that sees danger everywhere domestically and that, as a result, harshly targets Muslim people here in the United States, often notwithstanding their innocence.

  While the first two incidents targeted particular individuals, turning them into an active minority that must be eliminated, two other episodes construct an entire category of dangerous individuals out of whole cloth. The first involves protesters and, predominantly, African Americans in the context of social movements against police killings of unarmed civilians. The second, American Muslims as a whole.