Establishing official Islam? The law and strategy of counter-radicalization.

Author:Rascoff, Samuel J.
 
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INTRODUCTION I. THE VARIETIES OF COUNTER-RADICALIZATION A. Counter-Radicalization Methodologies 1. Secular methods 2. Proselytization B. Counter-Radicalization Theories 1. Behavioral counter-radicalization 2. Ideological counter-radicalization C. De-Radicalization II. THE EMERGENCE OF DOMESTIC COUNTER-RADICALIZATION A. A Genealogy of American Counter-Radicalization 1. European Official Islam: from identity politics to security 2. The evolution of Prevent in the United Kingdom B. American Counter-Radicalization and the Elaboration of Official Islam 1. Engagement 2. Bureaucratic entrenchment 3. Expression III. THE ESTABLISHMENT CLAUSE AND COUNTER-RADICALIZATION: FROM DOCTRINE TO STRATEGY A. The Lemon Test and Anti-Erastianism 1. Legal framework 2. Strategic worries about legitimacy and competence B. Endorsement, Nonpreferentialism, and Equality 1. Legal framework 2. Strategic worries about equality and pluralism C. Coercion and Liberty of Conscience 1. Legal framework 2. Strategic worries about liberty IV. CRITIQUES AND COUNTER-CRITIQUES A. Counter-Radicalization Is Fundamentally Political, Not Religious B. Expressive Counter-Radicalization Is Protected as Government Speech. C. Grassroots Counter-Radicalization Avoids Legal and Strategic Problems CONCLUSION INTRODUCTION

In the name of national security, the U.S. government as well as state and local governments are increasingly intervening in the religious lives of Muslims and into Islam itself. These interventions--which implicate initiatives from intelligence gathering and analysis to prison management to community outreach--form an essential part of what is now commonly called "counterradicalization." While the concept remains open-ended and undertheorized, the core intuition behind counter-radicalization is that the prevention of future violence requires official involvement in shaping the ideational currents that are thought to underpin that violence. The arrival of counter-radicalization on the domestic scene--it has been part of American foreign policy for a decade (1)--represents a significant, if unheralded, development in American counterterrorism. Indeed, some have even suggested that domestic counter-radicalization represents the signature counterterrorism policy of the Obama Administration. (2)

The reasons for the recent rise of domestic counter-radicalization are numerous and overlapping. First, and most basically, counter-radicalization conforms to the preemptive logic of counterterrorism, which focuses on strategies that minimize the risk and intensity of future terrorist attacks. (3) By devoting official resources to changing the ideological orientations of individuals and entire communities before that ideology carries over into violent acts, (4) counter radicalization aspires to prevent people from "supporting terrorism or violent extremism in the first place." (5) Second, the United States has a morally, legally, and strategically (6) mixed record in its use of "hard power" counterterrorism techniques--such as interrogation, (7) detention, (8) and the targeting of lethal force against American citizens in league with al Qaeda. (9) Accordingly, counter-radicalization has appealed to some critics of the national security state as supplying an attractive "soft power," (10) "therapeutic" alternative approach to counterterrorism that may be both more effective and less harmful to the government's reputation at home and abroad. (11) Third, the turn to counter-radicalization reflects an appreciation that the contemporary terrorist threat includes a "homegrown" dimension, which in turn necessitates a domestic preventive approach. (12) A spate of recent terrorist plots and attacks implicating individuals born or raised in the United States has increased pressure on the government to invest in counterterrorism initiatives at home, (13) including in counter-radicalization. (14) For example, a report issued by the Bipartisan Policy Center recently observed that "[t]he American 'melting pot' has not provided a firewall against the radicalization and recruitment of American citizens and residents." (15) Accordingly, elected representatives have begun to draw attention to the issue of domestic radicalization. (16)

Even as domestic counter-radicalization is on the rise, it is fraught with the potential for significant legal tension and strategic confusion. On the legal side, counter-radicalization risks conflict with core American commitments to religious freedom embodied in the First Amendment's Religion Clauses. (17) Of particular concern is the manner in which counter-radicalization may contribute to the "establishment" of what I call "Official Islam" (18): a government-sponsored account of "mainstream Islam" offered by the state in place of radical doctrinal alternatives. (19) For the government to formulate (or to pick out from among rival options (20)) and endorse a preferred conception of Islam--in effect to play the role of theologian and missionary--raises potentially serious concerns rooted in the Establishment Clause and the values it enshrines. That the government has proved capable of shaping religious beliefs and practices in the past, (21) sometimes with a distinctly heavy hand, (22) hardly supplies a compelling legal foundation for the present preoccupation with Official Islam. (23)

The idea that a portion of the Bill of Rights puts pressure on a claimed governmental authority rooted in national security is not, in the abstract, new conceptual terrain; (24) indeed, the "constant tension between security and liberty" may even supply "[t]he defining character of American constitutional government." (25) And it is hardly a secret that wartime generates its own distinctive challenges to the protection of basic rights. (26) But the narrower question of the relationship between religious liberty and national security has only rarely been explored. (27) So it is perhaps unsurprising that the tension between the emergent domestic counter-radicalization regime and the law and values that derive from the Establishment Clause has thus far largely evaded official comment (28) and academic engagement. (29) (The commentary on the related but distinct question of whether the Establishment Clause applies to foreign aid programs, and if so, with what kind of intensity, merely assumes that domestic national security initiatives are subject to whatever constraints might be imposed by the Establishment Clause. (30))

On the question of the Establishment Clause, this Article considers not solely the protean doctrine that has evolved over the last sixty years, but also the deeper and more pervasive traditions and values that the law in this area embodies. Most importantly, this Article restores a sense of urgency to an area of Establishment Clause theory and doctrine that has been largely absent for a generation, namely the sense in which the First Amendment embodies a commitment to Anti-Erastianism. (31) Based on their familiarity with European (and in particular, English) establishments, the Framers were deeply concerned with attempts by the state to harness the power of religion to achieve "secular" political goals, and they conceived of the Establishment Clause as a bulwark against precisely this sort of aggrandizement of the state. (32) The establishment of Official Islam that this Article analyzes therefore sheds light on a key underlying principle of the Establishment Clause in a way that the contemporary raft of Religion Clause cases--which have frequently engaged in analyses "more commonly associated with interior decorators than with the judiciary" (33)-arguably do not. (34)

More broadly, this Article embraces Larry Sager's theoretical insight that the limits on judicial resolution of constitutional claims are not coextensive with the conceptual boundaries of those claims, and that it necessarily falls to institutions outside the courts to identify and vindicate "underenforced constitutional norms." (35) Thus, the Article assumes that consideration and enforcement of the relevant issues are as likely (or more so) to take place in an opinion generated by the Office of Legal Counsel (OLC) (36) as in a judicial opinion resolving a constitutional challenge. (37) Whatever weight ought to or does ultimately attach to the legal conclusions reached by executive branch opinions of this sort, (38) they represent important sites for the application of law to cutting-edge national-security initiatives, including domestic counter-radicalization. (39)

Legal concerns about counter-radicalization rooted in the law and traditions associated with the Establishment Clause and in conceptions of religious liberty more generally overlap with, and are reinforced by, a series of pragmatic and strategic concerns about its efficacy--concerns which have actually surfaced in the context of counter-radicalization efforts undertaken over the last five years by American allies overseas, (40) most prominently the United Kingdom's domestic counter-radicalization program, Prevent. (41) Does the government possess the right sort of institutional capacity and legitimacy to intervene in the religious lives of Muslim citizens in a manner that will ultimately reduce the threat of terrorism? (42) Might not the institutional focus on winning Muslim "hearts and minds" carry unintended risks, and possibly even backfire, producing a net loss to security? What toll might counter-radicalization exact on the fragile and hard-won ecosystem of American religious pluralism given its potential for sowing social disunity among and within religious groups? (43) The British experience--the primary model for domestic counter-radicalization in the United States (44)--supplies cautionary answers to each of these questions.

This Article proceeds as follows. In Part I, I offer a conceptual account of contemporary counter-radicalization. In Part II, I move from the conceptual to the programmatic...

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