Aziz HuqFollow

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Texas Law Review


A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a proxy for terrorism risk in order to resolve this signaling problem. This Article analyzes the legal and policy significance of state reliance upon religious speech as a predictor of terrorism risk. Constitutional doctrine under the Religion Clauses does recognize interests implicated by the signaling function of religious speech. Yet analysis suggests that such doctrinal protection is fragile. Symptomatic of a wider inflexibility of pre-9/11 constitutional doctrine, this doctrinal protection shows little capacity for responsive change. The absence of constitutional barriers, however, does not mean government should persist in relying on religious speech as a signal. Rather, analysis of counterterrorism policy concerns suggests another path. Institutional considerations and an emerging social science literature on terrorism suggest that religious speech is ill suited to the signaling role it now plays. Instead, empirical social science on terrorism points to the epistemic superiority of a different signal: the close associations of a terrorism suspect. The Article concludes by examining the constitutionality of such a signal and elaborating ways that insight from the new social science of terrorism can be realized without compromising important individual interests.

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