Of 'Scalpels' and 'Sledgehammers': Religious Liberty and the Policing of Muslim Charities in Britain and America Since 9/11

9 UCLA Journal of Near Eastern and Islamic Law 25 (2010)

46 Pages Posted: 7 Nov 2010 Last revised: 19 Jun 2012

Malick W. Ghachem

Massachusetts Institute of Technology; University of Maine School of Law

Date Written: September 1, 2010

Abstract

Several commentators have remarked that, since 9/11, Muslim charities have met with a softer and more flexible hand in the United Kingdom and continental Europe than in the United States. The American federal government has resorted to "sledgehammer" - style tools - wholesale freezing of assets, designation of entire entities as terrorist organizations, and aggressive criminal prosecutions - in its efforts to police Islamic philanthropy. By contrast, the Charity Commission in Britain has employed "scalpel" - like measures, such as the removal of individual trustees or temporary transfer of a charity’s management, that have generally spared British Muslim charities from American-style criminalization. The continental European states, for their part, have tended to gravitate more closely to the British than the American pole of this comparative dichotomy. The sweeping assertion of executive branch authority during the Bush administration only partly explains this difference. Contrasting traditions of religious liberty are also at stake. A First Amendment culture of “non-entanglement” has historically kept the federal government out of the business of administering religious institutions. In the U.K. and continental Europe, albeit to differing degrees, traditions of state involvement in religious institutions and functions (including the classic Christian function of providing charity) have permitted a more targeted and nuanced approach to the regulation of Muslim charities. Lacking the administrative and legal tools descended from those traditions, American policymakers have resorted to criminalization and its accessories as a path of first, rather than last, resort.

Keywords: criminal law, first amendment, comparative law, constitutional law, Islamic, Muslim, charities, religion, religious, freedom, liberty, Islam, terrorism, counter-terrorism, Britain, criminal procedure, 9/11, separation, church, state

Suggested Citation

Ghachem, Malick W., Of 'Scalpels' and 'Sledgehammers': Religious Liberty and the Policing of Muslim Charities in Britain and America Since 9/11 (September 1, 2010). 9 UCLA Journal of Near Eastern and Islamic Law 25 (2010). Available at SSRN: https://ssrn.com/abstract=1703626

Malick W. Ghachem (Contact Author)

Massachusetts Institute of Technology ( email )

United States
617-324-7284 (Phone)

HOME PAGE: http://history.mit.edu/people/malick-w-ghachem

University of Maine School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

HOME PAGE: http://mainelaw.maine.edu/faculty/profiles/ghachem.html

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