The National Security Exception Was Never Going to Stop at Prosecuting Muslims

For 25 years, the US ran a parallel legal system largely for Muslims. It now reaches immigrants and the left.

Less than two weeks after the September 11, 2001, attacks, President George W. Bush told Congress that the war on terror “begins with al Qaeda, but it does not end there.” Twenty-five years later, his line reads as a confession: the war on terror was designed to have no borders and no end, and the legal machinery built to wage it at home was drafted in the same way.

In my work as a federal criminal defense and constitutional law attorney, I defend people unjustly prosecuted by that machinery. Until recently, most of my clients were Muslim. What their cases demonstrate is that after 9/11, the United States built a separate system of justice — a national security exception to the Constitution — that was largely tested on a population that was demonized by both the state and the media. While non-Muslims were assured it would never apply to them — and were repeatedly told not to worry about the creeping encroachment of the state if they had nothing to hide — that assurance has expired.

A Second-Class System of Justice

The national security exception to the Constitution operates through a variety of mechanisms: statutes vague enough to criminalize charity and speech; informants and undercover agents who manufacture crimes they later “disrupt”; classified evidence defendants cannot see; mass surveillance; and a sentencing enhancement that categorizes even first-time, nonviolent defendants as hardened career offenders. Each element was justified as an emergency measure, but none of them has expired.

In 2004, Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld (a Supreme Court case that found that American citizens detained from an active combat zone as enemy combatants retain the right to due process and a meaningful opportunity to challenge the factual basis of their detention before a neutral decision-maker) that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” But for Muslims in U.S. courtrooms, it has functioned as one. Sixty years earlier, dissenting in Korematsu v. United States, in which the Supreme Court upheld the internment of over 120,000 Japanese Americans during World War II, Justice Robert Jackson warned that a principle of discrimination, once blessed by the courts, “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need,” and that “every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

We have been living inside that warning, with the guise of “national security” as the ever-prevailing “urgent need.”

Laws Written to Be Expanded

The statutes criminalizing the “material support” of terrorism sit at the center of the exception. Under the U.S. federal criminal code, Section 2339B of Title 18 makes it a felony to provide “material support or resources” to any group the secretary of state designates a foreign terrorist organization, with no requirement that the defendant intended to further violence or that anything they provided was ever used for such purpose. Section 2339A criminalizes “material support” of terrorist acts, which includes property damage, for anyone — no organizational affiliation, foreign or domestic, is necessary. After 9/11, Congress added “expert advice or assistance,” to the definition of material support, extended the law to “any property, tangible or intangible, or service,” and increased the maximum sentence for Section 2339B to 20 years. In Holder v. Humanitarian Law Project, the Supreme Court held in 2010 that even teaching members of designated groups to peacefully use international law and petition the United Nations could be prosecuted as support for terrorism.

The vagueness of this language grants broad discretion, and in national security cases, that discretion has never been exercised neutrally. When a statute can be interpreted to apply to a donation, a translation, a social media post, or group chat, it introduces ambiguity. The decisive question becomes not what a person did but whom the government decides that person to be, or what that person is associated with, leaving prosecutors free to target particular religious communities, political viewpoints, and speech while insisting they are simply enforcing the law.

Whatever policy aims these prosecutions served, their political function was hard to dispute. Every “foiled plot” announced at a press conference reinforced a story in which the enemy was Muslim, already among us, and defeatable only through wars abroad and extraordinary powers at home.

That story helped sell wars built on falsehoods, including the invasion of Iraq, premised on weapons of mass destruction that did not exist. Brown University’s Costs of War Project estimates that more than 940,000 people were killed by direct violence in the post-9/11 war zones through 2023, with more than 432,000 of them civilians, and total deaths reaching 4.5 to 4.7 million.

Domestically, the “Muslim terrorist” narrative regularly painted by state officials and the media also gave permission to non-Muslim people to look the other way, casting suspicion on an entire religion instead of scrutinizing how these legal exceptions were operating. As a result, for two decades, the government largely took aim at Muslims, with little notice from broader society — until these powers and statutes were applied to less marginalized groups and people whose political leanings have fallen out of favor.

How the Machinery Was Built

From 2001 to 2025, the FBI’s counterterrorism budget tripled, and informants were sent in droves into mosques. A 2014 Human Rights Watch and Columbia Law School report found that nearly half of more than 500 federal counterterrorism convictions came from informant-based cases. Almost 30 percent of them were stings in which the informant actively shaped the plot for which the person was prosecuted.

The Holy Land Foundation, once the largest Muslim charity in the country, became the template: its leaders were prosecuted over donations to local charity committees in Gaza that appeared on no U.S. terrorist list, and after a first trial ended without a single conviction, the five men were sentenced in 2009 on retrial to up to 65 years. Paying religiously mandated charity to support orphans could now make Muslims suspects.

As the government continued focusing its purported “counterterrorism” efforts on Muslims, including in United States v. Adel Daoud and United States v. Tarek Mehanna, its own analysts documented a deadlier threat it pursued with far less zeal. A 2017 Government Accountability Office report attributed 73 percent of deadly violent extremist incidents between 9/11 and the end of 2016 to far right extremists, and in 2020 the Department of Homeland Security called white supremacist extremists “the most persistent and lethal threat in the Homeland.” Even after the 2017 report, the vast majority of counterterrorism investigations and prosecutions were brought against Muslims instead.

What It Looks Like From the Defense Table

In my work at the National Security Criminal Defense Center at the Muslim Legal Fund of America, we have defended against the expansion and abuse of this post-9/11 legal machinery. In 2019, Imad Eddin Wadi, a Syrian-born American with no criminal record and no history of violence, needed investors for a halal slaughterhouse business venture. An FBI informant introduced him to the representative of a wealthy “Kuwaiti sheikh,” whom the Fifth Circuit itself described as “FBI-concocted.” The invented sheikh offered Wadi $9 million on the condition that a share go to a Syrian armed group (the group was undesignated but the government argued the individuals were part of a designated terrorist organization, known then as Jabhat al-Nusra and more recently as Hay’at Tahrir al-Sham). Due to this plot directed by the FBI, Wadi was sentenced to 160 months in federal prison. Before trial, the informant, an undercover FBI agent, replaced the phone he used throughout the operation, violating a court evidence preservation order, and the courts refused to give any sanction or remedy. We asked the Supreme Court whether the government escapes accountability when its informant wipes important evidence in defiance of a court order; in June of this year, it declined to hear the case.

In July 2025, the State Department revoked the terrorist designation of Hay’at Tahrir al-Sham. The group’s leader until its disbanding, Mohammed Al-Jolani (now rebranded as Ahmad al-Sharaa) is now the president of Syria and was invited in 2025 to the White House. Meanwhile, Wadi remains in prison.

Jason Fong, a Chinese American Marine Corps reservist, drew federal attention for joining online discussions of a possible American civil war only after he converted to Islam in 2020. Undercover operatives spent months trying to draw him into a crime. After sharing PDF materials and a fundraising link for Hamas upon their request, he was charged with material support offenses carrying up to 80 years. During Fong’s trial, the covert FBI employee’s problematic tactics were exposed, including the in-person contact between the adult FBI employee and a minor child that involved driving around together and radicalizing discussion, without parental knowledge. Prosecutors there offered to dismiss every material support count in exchange for a false statement plea.

These kinds of informant stings often target the most vulnerable. As reported by The Intercept, FBI agents posing as Islamic State contacts began communicating with Humzah Mashkoor, a teenager diagnosed with autism, when he was 16. He was arrested for attempted material support to a terrorist organization weeks after turning 18. In another case, Davin Meyer’s mother reported her son, who was autistic and suffering from mental health issues, to local authorities hoping to get him help; paid FBI informants began cultivating him soon after his 18th birthday and helped him plan a trip abroad to join a terrorist organization that ended in his arrest. As his lawyer put it in court, the government “fanned the flames of what they condemn now.”

Hanging over all of these cases is the federal terrorism sentencing enhancement, the most severe sentencing enhancement that was promulgated without any evidentiary basis. This sentencing enhancement is discriminatorily applied and requires only that the offense was calculated to influence or affect the conduct of government through intimidation, retaliation, or coercion. It results in a recommended maximum sentence in every case and a recommended 360 months to life sentence in any material support case, including for purely online, nonviolent, first-time offense conduct. As I have documented for the U.S. Sentencing Commission, the terrorism sentencing enhancement adds 12 offense levels on top of the base offense level and assigns the criminal history category reserved for “career offenders,” producing a minimum guideline range of 17.5 years and usually a recommended range of 360 months to life. This puts immense pressure on defendants to plead guilty and forego their constitutional rights to a fair trial and to confront the evidence against them.

A system that was built for persecuting one disfavored group is always going to seek out others. This legal machinery has been turned on Venezuelan migrants who have been labeled gang members under the Alien Enemies Act, on Palestine solidarity activists, and on the left. In September 2025, President Donald Trump declared “antifa” a domestic terrorist organization, though no statute authorizes such a designation, and National Security Presidential Memorandum 7 directed the offices of the FBI Counterterrorism’s Joint Terrorism Task Forces and newly created Joint Task Force Vanguard, to pursue organizations and funders animated by “anti-Americanism, anti-capitalism, and anti-Christianity” and “extremism on migration, race, and gender.” Muslims were not replaced as targets but folded in: the administration designated several more Muslim organizations and a vast majority of Palestinian civil society organizations.

In June of this year, federal judges in Fort Worth sentenced seven defendants in the Prairieland Detention Center case, the Justice Department’s first antifa prosecution of 16 noise demonstrators, to 30 to 100 years, though only one person was convicted of the shooting that injured one officer outside the immigrant jail (the officer receive sutures and made a full recovery). Indeed, one of the people charged did not even attend the demonstration but simply moved a box of zines and personal documents in its wake, and the others who received 50-70 years were not involved when shot was fired. I represent one of those defendants, Maricela Rueda, on appeal. Every tool used in that case was developed, tested, and normalized in the prosecutions of Muslims.

Precedents Come For Us All

Both ignorance and fear, fed by popular entertainment depicting Muslims as terrorists and right-wing commentators pushing racist propaganda like the “great replacement” conspiracy theory, have kept most Americans from diving into the legal mechanisms behind these cases. Administrations change; precedents do not. The system used against Muslims yesterday and leftists today will belong to whoever holds power next.

The Constitution protects no one on its own; it did not stop Japanese American internment or the people targeted by FBI’s COINTELPRO, and its guarantees have been real only when people and movements have forced the government to honor them. When a court accepts that a Muslim individual’s charity, business, or speech is terrorism, that ruling becomes law for everyone. The ground Muslim defendants lost is the ground all of us were standing on.

Frederick Douglass warned in 1857 that if you “find out just what any people will quietly submit to,” you will have found “the exact measure of injustice and wrong which will be imposed upon them.” For 25 years, the measure of what Americans would quietly submit to was taken in regard to Muslims.

Changing this system must begin where the exception began: with the word “terrorism” itself. Our legal system does not objectively define the term, and its use turns mostly on one’s ideology or identity rather than on any intent to further exceptional violence. The terrorism enhancement puts immense pressure on defendants to plead guilty and avoid a maximum sentence exposure after trial due to its draconian sentencing provisions. Its discriminatory application should be measured and exposed and eliminated. We need to roll back the vast powers exercised by inter-agency Joint Terrorism Task Forces and the veil of classification that lays over “national security” cases. Until then, everyone charged under this regime deserves a trial that forces the government to actually prove its case, rather than pushing a narrative based on decades of racialized hate.

An injustice against Muslims was never going to remain an injustice against Muslims alone. Whatever one’s politics, these precedents will eventually be wielded by an unfriendly administration against one’s community. Reforming the legal machinery of the war on terror is the only protection any of us will have when the next authority arrives with “a plausible claim of an urgent need.”