For the first time in this country’s history, a president has announced a national strategy to address domestic terrorism. The strategy is grounded in good intentions, rightly emphasizing America’s history and present escalation of white supremacist violence and the chronic contributors to that violence, including racism and bigotry. The strategy also emphasizes adherence to cherished civil rights and civil liberties in any responsive actions the government takes, and the need to foster resilience in the face of disinformation and hate.

But despite these heartening words, we have major concerns about what the strategy does — and doesn’t do. Communities of color and rights groups like ours hoped the Biden administration would rein in overbroad law enforcement powers and confront the structural bias that’s baked into domestic national security and counterterrorism policy. That policy reflects the government’s ever-expanding authority to surveil and monitor American communities; law enforcement guidance that permits profiling on the basis of race, religion, or national origin; and the use of abusive tools such as the watchlisting system against people for constitutionally protected speech and association. For the past 20 years — and longer — these approaches have disproportionately targeted Black, Brown, Muslim, and immigrant communities through the lens of “security threat,” and harmed our rights to free expression, due process, and equal protection under the law.

Biden’s strategy fails to address these wrongs, let alone reverse them. A core reason for this failure is that despite lip service to the contrary, it relies too heavily on law enforcement suspicion, investigation, and policing of beliefs rather than actual conduct — violence or attempted violence. For example, even as the strategy acknowledges the dramatic escalation of white supremacist violence, it replicates the Trump administration’s approach of instructing agencies to focus on a broad category of “racially motivated violent extremism,” lumping in a range of beliefs that aren’t demonstrably connected to political violence. Compounding this flaw, the strategy invites expansion of intrusive and abusive police powers in three key ways.

First, the strategy explicitly leaves open the possibility of enacting a new law criminalizing domestic terrorism, which rights groups have repeatedly explained is unnecessary and would be dangerous. Federal law currently defines “domestic terrorism” broadly and vaguely, and already criminalizes myriad specific or attempted acts that meet the definition; it also criminalizes hate crimes. Law enforcement agencies’ current authority to investigate and prosecute white supremacist violence is entirely adequate. A new law that criminalizes the malleable, fraught, and politicized concept of terrorism would only expand authorities that target Black and Brown communities and people engaged in dissent for unjustified surveillance, investigation, and prosecution. A new, catchall crime of domestic terrorism should be off the table.

Second, the strategy speaks of the need to “ensure that law enforcement operates without bias as it identifies and responds to domestic terrorism threats,” but it ignores a key reason why counterterrorism policy is rife with racial and religious bias: The Departments of Justice and Homeland Security permit it. Both agencies have issued guidance that purports to ban biased profiling by federal law enforcement, acknowledging that “biased practices are ineffective” and “simply not good law enforcement.” But the guidance includes gaping exceptions permitting biased profiling for national security investigations or at the border. The FBI and other agencies have used those exceptions to spy on and infiltrate Muslim communities, surveil Black activists under the spurious label of “Black Identity Extremists,” monitor protests against family separation, and “map” entire racial and ethnic communities based on crude notions about their propensity to engage in crime. These practices are not only unfair and harmful, they also entrench racism and bigotry in society.

It’s not enough for the Biden strategy to condemn biased profiling when federal law enforcement agencies openly allow it. As a matter of priority, the administration should instruct the Departments of Justice and Homeland Security to remove these loopholes.

Third, the strategy envisions continued reliance on counterterrorism programs that have proven deeply harmful to Black and Brown communities. Those include the federal government’s watchlisting system, which has metastasized to include well over one million people, disproportionately harms Muslim and immigrant communities, and stigmatizes them as security threats. The strategy refers to “robust mechanisms that are available” for people to contest their placement on a watchlist, but the existing redress process for watchlisted people is not robust — it’s a due process nightmare. Federal agencies also routinely use placement on a watchlist to exploit vulnerable people and pressure them into becoming informants on their communities, practices that are possible because the system lacks safeguards against abuse. Any policy that entrenches counterterrorism systems like this is headed in the wrong direction.

The strategy also seeks to expand social media surveillance, which law enforcement and intelligence agencies also use overwhelmingly against communities of color. Government auditors and agencies themselves have repeatedly concluded that dragnet surveillance of social media is unreliable and ineffective, flooding agencies with information about innocuous speech while dampening free expression — which is integral to democracy.

We understand the impulse to “do something” in the face of growing white supremacist violence, but that “something” should not be to double down on the authorities, systems, and practices that for decades have harmed the very communities the Biden administration says it wants to protect. The administration could have taken concrete actions that demonstrate adherence to the civil rights and liberties it wants to protect by implementing the safeguards communities of color seek. It’s not too late.

UPDATE: After 13 years, Britney’s conservatorship finally ended in November 2021, restoring her right to make decisions about her own life. But there are still over 1 million people with disabilities living under some form of conservatorship or guardianship in the U.S. — people who deserve access to their civil liberties, too.

Conservatorships, which often strip people with disabilities of their civil liberties, have gained media attention through Britney Spears’ efforts to bring her own conservatorship to an end. July is Disability Pride Month, and though Spears’ conservatorship has been highly publicized, she is only one of the more than an estimated one million disabled Americans living under some form of conservatorship or guardianship.

Spears’ story has revealed to the public how restrictive conservatorships are. Under this repressive legal structure, people with disabilities, or people who are perceived to have disabilities, are stripped of their autonomy, losing the ability to spend their own money, choose their own medical care, or even choose who they spend time with.

Although conservatorships are often perceived as protective or neutral, largely because they are court sanctioned, they are reflective of a profound and pervasive paternalism towards people with disabilities.

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During Spears’ harrowing 24-minute court statement calling for an end to her conservatorship in June, amid descriptions of being constantly surveilled and confined against her will, Spears also revealed that although she would like to have children, her conservators refuse to let her have her intrauterine device (IUD) removed. Spears’ experience is part of a long history of people with disabilities — most often people of color — being robbed of their reproductive freedom.

Conservatorships send the harmful message that it is appropriate to trample the rights of people with disabilities. Disabled people deserve autonomy and full access to education, homes, health care, jobs, families, voting, and civic engagement.

In this week’s episode of At Liberty, Zoe Brennan-Krohn, a staff attorney with the ACLU’s Disability Rights Project, discusses the implications of conservatorships for Spears and many others.

Why Britney Can't Get Out of Her Conservatorship

Why Britney Can't Get Out of Her Conservatorship

In honor of Disability Pride Month, we’re devoting a few episodes to disability rights, starting with a look at conservatorships. Conservatorships are a court-sanctioned way to strip people with disabilities of their civil liberties. The system of...

In honor of Disability Pride Month, we’re devoting a few episodes to disability rights, starting with a look at conservatorships. Conservatorships are a court-sanctioned way to strip people with disabilities of their civil liberties. The system of...

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