Countering Religion or Terrorism: Selective Enforcement of Material Support Laws Against Muslim Charities
The American government’s preventive counterterrorism
strategy is no secret. Weeks after the
9/11 terrorist attacks, then-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 government adopted a no-tolerance policy, 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, the 9/11 attacks confirmed that Muslims and
Arabs are inherently violent and intent upon destroying the American way of
life. Heightened scrutiny of these communities was thus perceived not only as
warranted, but also as a rational response to an existential threat to the
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, the United States has
adopted practices commonly found in police states where government surveillance
extends into almost every aspect of life.
Body scans at airports strip us of our privacy. Fusion
centers have sprung up across the country to gather and deposit intelligence on
average Americans in massive government-monitored databases. Warrantless
National Security Letters are used to obtain information about our financial
and political lives, despite the absence of any evidence of criminal activity.
Police departments have shifted resources from fighting crime to mapping
communities based on their religion and ethnic origins under the auspices of
protecting national security. The overreaching enforcement of broad “material
support to terrorism” laws has chilled religiously mandated charitable giving
and hampered humanitarian aid operations, thereby eroding the independence of
the American nonprofit sector and unduly politicizing humanitarian assistance.
And fears of “homegrown terrorism,” fueled by irresponsible Congressional
rhetoric, have legitimized a bigoted discourse on the country’s Muslims to such
an extent that some Americans challenge Islam’s status as a bona fide religion
deserving of constitutional protection.
At first glance, the preventive paradigm appears facially
legitimate. Few would contest the collective public safety interest 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 a 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 its 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 community, especially its Arab and South Asian members.
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, thereby sowing distrust among Muslims. Aggressive prosecutions
of Muslim charities and individuals across the country have embittered
communities that feel besieged by their government and distrusted by their
non-Muslim compatriots. As most clearly evinced in the vitriolic discourse
surrounding the Park 51 Community Center in lower Manhattan during 2010,
selective counterterrorism enforcement has also fueled public bias against
Muslims. As a consequence, the vibrancy and development of civil society within
these communities is at risk of being significantly stunted.
This article focuses on the use of material support laws in
the counterterrorism preventive paradigm and the significant risk they pose to
the civil rights and civil liberties of those communities most targeted: Muslim
Arabs and South Asians. The wide-reaching and devastating effects of these
broadly interpreted material support laws on American Muslim charities and
their donors, as well as on the broader American nonprofit sector, has
effectively criminalized otherwise legitimate charitable giving, peace-building
efforts, and human rights advocacy.
To the extent that these groups are the “miner’s canary” in
forecasting the post-9/11 loss of civil rights and liberties for all Americans,
their experiences demonstrate the United States’ 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