TREVOR W. MORRISON, Columbia University – Law School
The Obama Administration has faced substantial criticism for both the substance of, and the process leading to, its conclusion that U.S. military involvement in Libya does not constitute “hostilities” for purposes of the War Powers Resolution. This short essay focuses on the process question. Although press reports depict a highly anomalous decision-making process – especially as relates to the Justice Department’s Office of Legal Counsel (OLC) – it is not yet clear that those reports offer a completely accurate picture of what happened. Here I discuss what an appropriate process would have been, and underscore the short- and long-run institutional costs to the White House of departing from that process. In the course of doing so I also say a few things about my ongoing exchange with Bruce Ackerman over legal interpretation in the executive branch.
Western New England University – School of Law
University of Pennsylvania Journal of International Law, Forthcoming
Almost ten years after the attacks of September 11, 2001, it almost goes without saying that the acts of grotesque violence committed on that day have had enormous effects on national security law and policy in all parts of the world. To be labeled a terrorist, or to be accused of being involved in an act of terrorism, carries far more severe repercussions now than it did ten years ago. This is true under both international law and domestic law in nations which have dealt with serious national security concerns for many years.
Given the U.N.’s global mandate to combat terrorism and that being defined as a terrorist can have widespread legal implications, this paper seeks to address how legal definitions are shaped and analyzes the lack of a globally accepted definition of terrorism in the context of domestic counterterrorism obligations. This article addresses a significant historical gap in examining the interplay between international obligations and domestic definitions, the previously overlooked history and evolution of those definitions, and the potential rule of law issues arising from the definitions in their current form.
In examining counterterrorism law and in the United States, the United Kingdom and India, it is clear that definitions of terrorism under various domestic laws have been repurposed from one legislative context to another and broadened in application, particularly since September 11. This has led to the arguably unintended consequences of disparate impact on outsider groups and the unmooring from rule of law principles. Since neither international norms nor domestic courts provide a significant check against creeping definitions, legislatures must take proactive steps to combat potential overreaching in applying the label of terrorism.
“Caught in a Preventive Dragnet Ten Years Later: Selective Counterterrorism Against Muslims, Arabs, and South Asians”
Georgetown Law Center; Texas Wesleyan University School of Law
Gonzaga Law Review, Forthcoming
The United States government’s preventive counterterrorism strategy is no secret. Weeks after the 9/11 terrorist attacks, former Attorney General John Ashcroft declared, “Our single objective is to prevent terrorist attacks by taking suspected terrorists off the street. Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.”
As the U.S. government adopted a no-tolerance policy to apprehending the terrorists, a fear-stricken public watched as images of nefarious dark-skinned, bearded Muslims flashed 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.
Body scans at every airport strip us of our privacy. Fusion centers have sprung up in states across the country gathering intelligence on average Americans to deposit into massive databases monitored by the government. Warrantless National Security Letters are used to obtain information about our financial and political lives absent evidence of criminal activity. Police departments have shifted resources from necessary crime fighting to mapping communities based on their religious faith and ethnic origins under the auspices of protecting national security. Overreaching enforcement of broad material support to terrorism laws has chilled religiously mandated charitable giving and humanitarian aid operations, eroding the independence of the American nonprofit sector and unduly politicizing humanitarian assistance. And fears of pervasive “homegrown terrorism,” fueled by irresponsible Congressional rhetoric, have legitimized bigoted discourse on Muslims in America to the extent that some Americans challenge the status of Islam as a bona fide religion deserving of constitutional protection.
At first blush the preventive paradigm appears facially legitimate. Few would contest the collective public safety interests in stopping terrorism before it occurs. Even so, at what point should the government be permitted to investigate individuals? Does mere political dissent, even if virulently anti-American, or unpopular orthodox religious practices suffice to subject individuals to heightened scrutiny or worse, loss of liberty? At what point does legitimate counterterrorism become political and religious persecution? The answers determine the type of country we want to live in – a free and just society consistent with the Founding Fathers’ vision or a paranoid society dislodged from fundamental principles of fairness and the rule of law.
While post-9/11 preventive counterterrorism policies have adversely impacted various groups of Americans, no group has been as deeply affected as the Muslim, Arab, and South Asian communities. Mosque infiltration has become so rampant that congregants assume they are under surveillance as they fulfill their spiritual and religious obligations. Government informants have ensnared numerous seemingly hapless and unsophisticated young men such that Muslims no longer know whom they can trust among each other. Aggressive prosecutions of Muslim charities and individuals across the country have embittered communities that feel under siege by their government and despised by their non-Muslim compatriots. As most clearly evinced in the vitriolic discourse surrounding the Park 51 Community Center in lower Manhattan in 2010, selective counterterrorism enforcement has fueled public bias against Muslims. As a consequence, the vibrancy and development of civil society within these communities has been significantly stunted.
This article focuses on three of the most damaging 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. First, the current preventative paradigm for countering terrorism risks seriously infringing on First Amendment protected activities and misdirects limited law enforcement resources away from criminal activity. Second, the wide-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, peacebuilding, and human rights advocacy. Finally, the current debate about “homegrown terrorism” facilitates selective and arbitrary enforcement of counterterrorism laws against Muslims, while many non-Muslims commit acts of terror undetected.
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.
MICHAEL G. FREEDMAN, affiliation not provided to SSRN
The federal law prohibiting the provision of material support to terrorist organizations has been no stranger to controversy. From its politically charged origins through its repeated amendment after September 11, 2001, it has remained an important, but often critiqued, weapon in the government’s legal response to terrorism. The most prominent legal challenge to the law lasted over a decade. It culminated in June 2010, when the United States Supreme Court upheld the constitutionality of the law in Holder v. Humanitarian Law Project. The Court’s opinion, however, correctly recognized that important questions remain unresolved.
One such question, which this note addresses, is the application of the law to Muslim charities. Muslim charities are a complex, often misunderstood phenomenon. The use of the law against groups such as the Holy Land Foundation has achieved limited success, but has also alienated significant numbers of Muslim Americans. Civil actions against the group based on the material support law have been particularly ineffective. Likewise, criminal prosecutions have met considerable difficulty. This note explores applications of the material support statute to Muslim charities and concludes by proposing several recommendations for reform in this important area.
For centuries, there have been vast numbers of formally recognized actors in the international legal process other than the state, although far too many assume incorrectly that traditional or classical international law had been merely state-to-state and that under traditional international law individuals and various other non-state actors did not have rights or duties based directly in international agreements or customary international law. Even today, invidious consequences occur when judges cling to manifestly a historical assumptions about international law and rule erroneously that “customary international law consists of only those norms that are… obligatory in the relations of States inter se.” [2d Cir. panel, Kiobel case, 2010] This article seeks to explode such a false and inhibiting myth by identifying a large number of such actors from each inhabited region of the globe and a number of specific forms of formal participation from the 1700s through the early 20th Century when, according to myth, state-oriented positivism allegedly achieved complete and universal acceptance and denied the existence of any status, role, right, or duty of any non-state actor.