Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by Association Critique
University of Texas School of Law
Michigan Law Review, Vol. 101, pp. 1409-1450, May 2003
The events of September 11 prompted the adoption of a broad set of laws and policies aimed at preventing terrorist activity, and this in turn has spurred a fierce debate concerning the impact of these antiterrorism measures on civil liberties. Participants approach this debate from a range of theoretical perspectives, including the social learning model, the pathological perspective, and moral panic. Another perspective meriting special attention is a pessimistic variant of the social learning model, which I refer to as adaptive learning. The adaptive learning model posits that in times of perceived national security crisis government actors attempt to circumvent civil liberties bulwarks while still paying lip service to them.
Two recent books by David Cole, one co-authored by James X. Dempsey, employ an adaptive learning perspective to take issue with a wide range of current antiterrorism measures. To assess the merits of this approach, I consider a representative aspect of their critique: the claim that the law banning material support for designated foreign terrorist organizations subtly resurrects the discredited Cold War concept of guilt by association. I conclude that this objection is misplaced as to most applications of the material support statute.
There is, however, a caveat. Close examination reveals that the government interprets the material support law to prohibit more than the provision of money, weapons, equipment, and services to designated groups; in the government's view, the law also prohibits membership itself in certain circumstances. In this limited respect, the material support law does implicate guilt by association (although no court to consider the issue thusfar has acknowledged as much). The guilt by association critique accordingly bears out to a limited degree the predictions of the adaptive learning model.
Number of Pages in PDF File: 44
Keywords: Civil liberties, Freedom of Association, National Security
JEL Classification: K14, K42
Date posted: May 5, 2003