Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America
Sahar F. Aziz
Texas A&M School of Law
December 31, 2012
47 Gonz. L. Rev. 429 (2011/2012)
The United States government’s preventive counterterrorism strategy is no secret. As the U.S. government adopted a no-tolerance policy to apprehending the 9/11 terrorists, a fear-stricken public watched images of nefarious, dark-skinned, and bearded Muslims flash across millions of television screens. The message was, if there had ever been any doubt, that the 9/11 attacks confirmed Muslims and Arabs are inherently violent and intent on destroying the American way of life. Heightened scrutiny of these communities was thus perceived as not only warranted, but a rational response to an existential threat to the country.
Ten years later, the 9/11 terrorist attacks appear to have succeeded in transforming the American way of life for the worse. In our hasty passage of the expansive PATRIOT Act, our fears gave way to the government’s demand for unfettered discretion to preserve national security at the expense of civil liberties for all Americans. As a consequence, America has come to resemble a police state where government surveillance extends into almost every aspect of life.
This article focuses on three of the most powerful components of the counterterrorism preventive paradigm and the significant risks they pose to the civil rights and civil liberties of the communities most targeted by the policies - Muslims, Arabs, and South Asians. Section I examines the adverse consequences of the government’s use of religiosity as a proxy for terrorism. The current preventative paradigm for countering terrorism risks infringing on First Amendment protected activities and misdirects limited law enforcement resources away from criminal activity. In addition to wasting limited resources, religious and racial profiling erodes trust between law enforcement and Muslim communities. To the extent constructive relations between communities and law enforcement bolsters public safety, the government has an interest in curtailing arbitrary and overreaching counterterrorism enforcement.
Section II demonstrates the aggressive use of “material support to terrorism” as the fall back against individuals that the government cannot prove are engaged in terrorism. Indeed, the charges are found in most “terrorism-related” cases where a government informant plays a leading role in the attempted plot. The far-reaching and devastating effects of broadly interpreted material support laws on American Muslim charities and Muslim donors, as well as the broader American nonprofit sector, effectively criminalize otherwise legitimate charitable giving, peace building, and human rights advocacy. As a result, religious freedom rights are chilled as Muslims are deterred from practicing their faith fully from fear of inviting unwanted government scrutiny. In addition to calling for more judicious enforcement of material support laws not based on political ideology or religious belief, this paper argues for the need for a specific intent requirement in the law as a means of ensuring innocent but unpopular individuals are not targeted for prosecution.
Section III focuses on the most recent and troubling developments in the preventive paradigm – the racial subtext of homegrown terrorism as a “Muslims only” club. The current debate about homegrown terrorism facilitates selective and arbitrary enforcement of counterterrorism laws against Muslims, while many non-Muslims commit or attempt to commit deadly acts of terror undetected. Notwithstanding the rise in terrorism by militias and right wing extremists, law enforcement has developed counterterrorism strategies based on essentialist stereotypes of terrorists as religious Muslims. Some Congressional leaders have followed suit by calling for more aggressive scrutiny of mosques, Muslim community organizations, and Muslim student groups. Furthermore, they seek to deputize Muslim religious leaders to spy on their congregations with little regard for the broad, adverse implications on religious freedom for all Americans. The article concludes by calling for smarter, more efficient policies that focus on criminal activity rather than false stereotypes that stigmatize entire communities as suspicious and disloyal.
To the extent that Muslims, Arabs, and South Asians are the “miner’s canary” in forecasting the post-9/11 loss of civil rights and liberties for all Americans, their experiences demonstrate America’s downward progression away from the Founding Fathers’ vision of a society where individuals can speak, assemble, and practice their faith free of government intervention or persecution.
Number of Pages in PDF File: 71
Keywords: National Security, Post-9/11, September 11th Terrorist Attacks, Civil Rights, Muslims, Arabs, South Asians, Counter TerrorismAccepted Paper Series
Date posted: May 2, 2011 ; Last revised: June 10, 2012
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