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Gonzaga Law Review




While post-9/11 preventive counterterrorism policies have adversely impacted various groups of Americans, no group has been more profoundly affected than the Muslim, Arab, and South Asian communities. Mosque infiltration has become so rampant that some congregants assume they are under surveillance as they fulfill their 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 now feel under siege by their government and distrusted by their non-Muslim compatriots.19 Selective counterterrorism fuels public bias, as evidenced by the vitriolic discourse surrounding the Park 51 Community Center in lower Manhattan in 2010. As a consequence, the vibrancy and development of civil society within these communities has been significantly stunted. Current counter-terrorism efforts thus attack the social relationships, as well as the civil liberties, long understood as the glue holding this country together.

This article focuses on three powerful components of the government's counterterrorism preventive paradigm and the significant risks they pose to civil rights and civil liberties. Part I examines the adverse consequences of the government's use of religiosity as a proxy for terrorism. Specifically, the current preventative paradigm for countering terrorism risks the First Amendment infringement of 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 bolster public safety, the government has an interest in curtailing arbitrary and overreaching counterterrorism enforcement.

Part II demonstrates the government's aggressive use of "material support" laws found in 18 U.S.C. §§ 2339A and B as a prosecutorial fallback against individuals that otherwise cannot be shown to have participated in terrorism. For example, in 2009 the Center on Law and Security at New York University School of Law found that defendants had been charged with § 2339B "[i]n 11 indictments, comprising four cases ... either alone or in association with lesser statutes." The far-reaching and devastating effects of these broadly interpreted laws-felt by American Muslim charities, Muslim donors, and the broader American nonprofit sector-are the effective criminalization of otherwise legitimate charitable giving, peacebuilding, and human rights advocacy. As a result, the fear of inviting unwanted government scrutiny chills religious freedom rights and deters Muslims from fully practicing their faith. In addition to calling for more judicious enforcement of material support laws, this paper argues for a specific intent requirement in §§ 2339A and 2339B as a means of ensuring innocent but unpopular individuals are not targeted for prosecution.

Part 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 over 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. This rhetoric seeks 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 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 from the Founding Fathers' vision of a society where individuals can speak, assemble, and practice their faith free of government intervention or persecution.

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Gonzaga University School of Law

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