The signaling function of religious speech in domestic counterterrorism

Texas Law Review

Volumn 89, Issue 4, 2011, Pages 833-900

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 79955499925     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (557)

1. Memorandum from Att'y Gen. John Ashcroft to Heads of Department Components (Nov. 8, 2001), http://www.justice.gov/opa/pr/2001/November/01_ag_580.htm (announcing that the Justice Department "must shift its primary focus from investigating and prosecuting past crimes to identifying threats of future terrorist acts, preventing them from happening, and punishing would-be perpetrators").
2. These include the decision of a Somali-American to travel back to Somalia and become the first American suicide bomber; the July 2009 arrest of seven Muslims in North Carolina; the September 2009 arrest of Afghan-born Najibullah Zazi based on allegations that he intended to complete an attack on the New York subway system; the November 5, 2009 shooting spree by Army psychiatrist Major Nidal Hasan at Fort Hood, TX, which left thirteen dead; the December 2009 arrest of Pakistani-American David Headley and others in connection with the 2008 Mumbai attacks; the Christmas Day 2009 attempt by Nigerian Umar Farouk Abdulmutallab to detonate explosives on board Detroit-bound Northwest Air, flight 253; the May 1, 2010 attempt by Pakistaniborn American citizen Faisal Shahzad to explode a car bomb in New York's Times Square; and the June 5, 2010 arrest of two New Jersey men allegedly on their way to fight in Somalia.
3. Samuel J. Rascoff, The Law of Homegrown (Counter)Terrorism, 88 TEXAS L. REV. 1715, 1716 & n.8 (2010) (recognizing the "ascendancy of homegrown terrorism" and discussing the examples listed above as well as others).
4. WHITE HOUSE, NATIONAL SECURITY STRATEGY 19 (2010), available at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.
5. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413, 1419 n.22 (2002) (explicitly declining, in an important article about post-9/11 profiling, to address religious profiling); infra subpart II(B).
6. See infra Part II
7. For the various "material support" criminal offenses, see 18 U.S.C. §§ 2339A-2339C (2006).
8. Amy Waldman, Prophetic Justice, ATLANTIC MONTHLY, Oct. 2006, at 82.
9. Pamela Constable, Divisive Scholar Draws Parallels Between Islam and Democracy, WASH. POST, Apr. 11, 2007, at B6.
10. Jerry Markon, Va. Muslim Spiritual Leader Gets Life, WASH. POST, July 13, 2005, http://www.washingtonpost.com/wp-yn/content/article/2005/07/13/AR2005071301596.html.
11. Predictably, the costs of post-9/11 counterterrorism law enforcement have landed disproportionately on Muslim-American communities.
12. Aziz Huq, The New Counterterrorism: Investigating Terror, Investigating Muslims, in LIBERTY UNDER ATTACK: RECLAIMING OUR FREEDOMS IN AN AGE OF TERROR 167, 182 (Richard C. Leone & Greg Anrig, Jr. eds., 2007).
13. MARY HABECK, KNOWING THE ENEMY: JIHADIST IDEOLOGY AND THE WAR ON TERROR 7-14 (2006) (summarizing al Qaeda's putative theological justifications for the September 11 attacks);
14. MESSAGES TO THE WORLD: THE STATEMENTS OF OSAMA BIN LADEN 104-05, 109 (Bruce Lawrence ed., 2005).
15. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.").
16. Michael Spence, Signaling in Retrospect and the Informational Structure of Markets, 92 AM. ECON. REV. 434, 437 (2002)
17. PATRICK BOLTON & MATHIAS DEWATRIPONT, CONTRACT THEORY 100-07 (2005).
18. Michael Spence, Job Market Signaling, 87 Q.J. ECON. 355, 361-68 (1973).
19. A similar analysis has been applied to the problem of airport screening to suggest that reliance on visible attributes is suboptimal.
20. Atin Basuchoudhary & Laura Razzolini, Hiding in Plain Sight-Using Signals to Detect Terrorists, 128 PUB. CHOICE 245, 254 (2006). The present analysis extends that basic framework to a different context.
21. ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 33-34 (2007) (opining that the political process generally prevents liberal democratic governments from adopting policies that unnecessarily restrict liberty).
22. Peter Baker, Obama's War Over Terror, N.Y. TIMES, Jan. 17, 2010 (Magazine), at 33(observing that during his first year in office President Obama "has adopted the bulk of the counterterrorism strategy he found on his desk when he arrived in the Oval Office, a strategy already moderated from the earliest days after Sept. 11, 2001").
23. SUBCOMM. ON SOC., BEHAVIORAL & ECON. SCIS., NAT'L SCI. & TECH. COUNCIL, COMBATING TERRORISM: RESEARCH PRIORITIES IN THE SOCIAL, BEHAVIORAL AND ECONOMIC SCIENCES 6 (2006) (chronicling the formation of the Task Force on Anti-Terrorism Research and Development in the aftermath of the September 11 attacks).
24. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213 (1978) (explaining that "underenforced" constitutional norms occur in "those situations in which the [Supreme Court], because of institutional concerns, has failed to enforce a provision of the Constitution to its full conceptual boundaries").
25. Wayne McCormack, Inchoate Terrorism: Liberalism Clashes with Fundamentalism, 37 GEO. J. INT'L L. 1, 18 (2005).
26. TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, CRIMINAL TERRORISM ENFORCEMENT IN THE UNITED STATES DURING THE FIVE YEARS SINCE THE 9/11/01 ATTACKS (2006), http://trac.syr.edu/tracreports/terrorism/169/ ("In the twelve months immediately after 9/11, the prosecution of individuals the government classified as international terrorists surged sharply higher than in the previous year.");
27. Press Release, Dep't of Justice, Fact Sheet: Department of Justice Anti-Terrorism Efforts Since Sept. 11, 2001 (Sept. 5, 2006), http://www.justice.gov/opa/pr/2006/September/06_opa_590.html (outlining the various measures taken by the Department of Justice to combat domestic terrorism since 9/11, including prosecuting and convicting more terrorists, increasing border security funding, and restructuring the FBI to eliminate more terrorist threats). More recent data suggests that criminal justice resources have been deployed in a more "efficient" manner.
28. CTR. ON LAW & SEC., N.Y.U. SCH. OF LAW, TERRORIST TRIAL REPORT CARD, at i (2010).
29. Consider the purchase of box cutters by the 9/11 hijackers. Serge Schmemman, US Attacked: President Vows to Exact Punishment for 'Evil,' N.Y. TIMES, Sept. 12, 2001, at A1.
30. Memorandum from Att'y Gen. John Ashcroft, supra note 1;
31. Paul J. McNulty, Deputy Att'y Gen., Prepared Remarks at the American Enterprise Institute (May 24, 2006), available at http://www.justice.gov/archive/dag/speeches/2006/dag_speech_060524.html ("And, in deciding whether to prosecute, we will not wait to see what can become of risks. The death and destruction of September 11, 2001, mandate a transformed and preventative approach.").
32. For surveys of the use of material support and related criminal offenses as preemptive tools, see Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 STAN. L. REV. 1079, 1101-03 (2008),
33. Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, 80 S. CAL. L. REV. 425, 446-92 (2007).
34. Applications of one section of the material support statute, 18 U.S.C. 2339 (2006), were upheld against constitutional challenge in Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2731 (2010).
35. Donald Kerwin & Margaret D. Stock, The Role of Immigration in a Coordinated National Security Policy, 21 GEO. IMMIGR. L.J. 383, 398-423 (2007) (surveying the function of immigration law in counterterrorism strategy).
36. NAT'L COMM'N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 155 (2004) [hereinafter 9/11 COMMISSION REPORT].
37. REPORT OF THE OFFICIAL ACCOUNT OF THE BOMBINGS IN LONDON ON 7TH JULY 2005, at 13 (2006) [hereinafter REPORT ON LONDON BOMBINGS], available at http://www.officialdocuments.gov.uk/document/hc0506/hc10/1087/1087.pdf (asserting that the perpetrators of the bombings in London grew up on the outskirts of Leeds in West Yorkshire).
38. Intelligence Reform: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 89 (2007) [hereinafter Intelligence Reform Hearing] (statement of Charles E. Allen, Assistant Secretary for Intelligence and Analysis, Chief Intelligence Officer, Department of Homeland Security) (describing new focus on "domestic terrorists" including "Islamic extremists (Sunni and Shia)"). In 2002, federal authorities identified a suspected sleeper cell in Lakawanna, New York, leading to high-profile arrests and convictions.
39. DINA TEMPLE-RASTON, THE JIHAD NEXT DOOR, at xiii, 198-205 (2007).
40. U.K. HOME DEP'T, THE UNITED KINGDOM'S STRATEGY FOR COUNTERING INTERNATIONAL TERRORISM 28 (2009) [hereinafter U.K. STRATEGY] ("By the early nineties some propagandists for Egyptian and other organisations had settled in London. Al Qa'ida recruited people from the UK and established a network here.").
41. Id. at 15.
42. Don't Point, ECONOMIST, Jan. 8, 2005, at 51 (discussing the intensified fears regarding a terrorist attack in Britain)
43. Daniel McGrory, The New Enemy Within, TIMES (U.K.), Dec. 6, 2003, at 19 (discussing the typical British-born sleepers that are recruited into Islamic terror groups);
44. Martin Bright & Jason Burke, Is There an Enemy Within?, OBSERVER (U.K.), Feb. 27, 2005, http://www.guardian.co.uk/uk/2005/feb/27/terrorism.september11 (reporting fears among government and security officials that "the threat from British Muslim extremists is now at least as great as that from foreign terrorists");
45. Philip Johnston, Home-Grown Fundamentalists Pose a Threat to Britain, Too, TELEGRAPH (U.K.), May 2, 2003, http://www.telegraph.co.uk/comment/personal-view/3590781/Home-grown-fundamentalists-pose-a-threat-to-Britain-too.html (discussing the involvement of two British Muslims in a suicide bomb attack in Israel);
46. Raymond Whitaker et al., Special Report: Terror in Britain: The Terror Timebomb, INDEP. (U.K.), Apr. 4, 2004, available at 2004 WLNR 10582926 (chronicling the efforts of Islamist extremists to recruit disaffected young British Muslims).
47. Hearing Before the H. Permanent Select Intelligence Comm., 110th Cong. (2007) (written testimony of Charles E. Allen, Assistant Secretary for Intelligence and Analysis, Chief Intelligence Officer, Department of Homeland Security) (on file with author).
48. Violent Islamist Extremism-2009: Hearing Before the S. Comm. on Homeland Sec. and Governmental Affairs, 111th Cong. 101 (2009) (statement of Philip Mudd, Associate Executive Assistant Director, FBI).
49. James C. McKinley, Jr., Major Held in Fort Hood Rampage Is Charged with 13 Counts of Murder, N.Y. TIMES, Nov. 13, 2009, at A14 (reporting the charging of Major Nidal Malik Hasan, who espoused "beliefs that America's wars in Iraq and Afghanistan were wars against all Muslims," with thirteen counts of murder after he opened fire at Fort Hood);
50. William K. Rashbaum, 2 Men Seized at J.F.K., Accused of Plotting Jihad, N.Y. TIMES, June 7, 2010, at A1 (reporting the arrest of two men who were seeking to "join[] an Islamic extremist group to kill American troops");
51. Andrea Elliott et al., For Times Sq. Suspect, Long Roots of Discontent, N.Y. TIMES, May 15, 2010, http://www.nytimes.com/2010/05/16/nyregion/16suspect.html (reporting on Faisal Shahzad, the man accused of planting a car bomb in Times Square).
52. Obama's New Security Strategy Stresses Diplomacy, BBC NEWS, May 27, 2010, http://www.bbc.co.uk/news/10169144.
53. WHITE HOUSE, supra note 3, at 19.
54. Rone Tempest, In Lodi Terror Case, Intent Was the Clincher, L.A. TIMES, May 1, 2006, at B1
55. Government's Trial Memorandum at 2-5, United States v. Hayat, No. S-05-240 (E.D. Cal. Feb. 14, 2006) [hereinafter Hayat Trial Memo] (listing the counts).
56. Hayat Trial Memo, supra note 38, at 2-5. Hayat's father Umer Hayat was also charged with two counts of making false, material statements.
57. Id. at 5.
58. The charges against him were later dropped. Neil MacFarquhar, Echoes of Terror Case Haunt California Pakistanis, N.Y. TIMES, Apr. 27, 2007, at A1.
59. Tempest, supra note 38 (noting that the prosecution "had no direct evidence").
60. John Diaz, The Phantom Terrorist Camp, SFGATE.COM, Sept. 16, 2007, http://articles.sfgate.com/2007-09-16/opinion/17260704_1_terrorist-camp-fbi-headquarters-hamidhayat (noting that "the prosecution offered no direct evidence to corroborate Hayat's admission of attending a terrorist training camp" and that Hayat's admissions of having attended the camp "were rife with bizarre details and contradictions").
61. Tempest, supra note 38.
62. Principally, the State relied on an "irresolute" confession with "scant and fuzzy" details of the terrorist acts Hayat was to aid.
63. Waldman, supra note 7, at 82-83
64. accord Diaz, supra note 41.
65. Hayat Trial Memo, supra note 38, at 16 (describing the necessary mens rea as whether "the defendant knew or intended that the material support and resources were to be used in preparation for or in carrying out a violation of 18 U.S.C. § 2332b, which prohibits acts of terrorism transcending national boundaries").
66. Waldman, supra note 7, at 83 ("[T]he prosecution cited [the note] as 'probative evidence' that Hayat had 'the requisite jihadist intent'.").
67. Hayat Trial Memo, supra note 38, at 34.
68. Denny Walsh, Witness Is Pressed on Hayat Prayer, SACRAMENTO BEE, Mar. 16, 2006, http://www.sacbee.com/2006/03/16/6552/witness-is-pressed-on-hayat-prayer.html.
69. Waldman, supra note 7, at 89.
70. Walsh, supra note 48.
71. Stephen Magagnini, Closing Phase Begins Today in Lodi Terror Case, SACRAMENTO BEE, Apr. 12, 2006, http://www.sacbee.com/2006/04/12/6580/closing-phase-begins-today-in.html;
72. Mark Araz, The Agent Who Might Have Saved Hamid Hayat, L.A. TIMES, May 28, 2006, at 1 (noting that Hayat did not testify).
73. Walsh, supra note 48.
74. Mohammed also testified that "the supplication would be carried by a holy warrior ready to fight the enemies of Islam. He suggested that the throat is 'the most vulnerable spot' for a 'mortal wound,' and added, 'You are asking God to be your champion.
75. Demian Bulwa, Trial Focuses on Notation: Warrior's Creed or Simple Prayer, SFGATE.COM, Mar. 15, 2006, http://articles.sfgate.com/2006-03-15/bay-area/17284650_1_lodi-man-fbi-agentsumer-hayat.
76. Offered for the purposes of one case, Mohammed's interpretation by definition claims a wider applicability. Defense lawyers found several religious experts who disagreed with Mohammed's interpretation, but all proved "reluctant" to testify.
77. Waldman, supra note 7, at 89-90. These experts may have been unwilling to irk a potential future employer-the federal government.
78. Id. at 82.
79. Hayat Trial Memo, supra note 38, at 35.
80. Waldman, supra note 7, at 92 (explaining that the jury "conclud[ed] that the evidence suggesting that Hayat would act-the scrapbook, the prayer, and so on-was stronger than the evidence that he would not").
81. Id. at 90.
82. Robert L. Jackson, Case Against Muslim Cleric Could Blow Up in Prosecutors' Faces, L.A. TIMES, Sept. 28, 1994, at A5;
83. James C. McKinley Jr., Sheik's Talk at Issue in Trial, N.Y. TIMES, Mar. 1, 1995, at B2.
84. PAUL M. BARRETT, AMERICAN ISLAM: THE STRUGGLE FOR THE SOUL OF A RELIGION 248-49 (2007) (describing the material that al-Hussayen allegedly disseminated over the Internet);
85. Timothy Egan, Computer Student on Trial over Muslim Web Site Work, N.Y. TIMES, Apr. 27, 2004, at A16;
86. Maureen O'Hagan, A Terrorism Case that Went Awry, SEATTLE TIMES, Nov. 22, 2004, http://seattletimes.nwsource.com/html/localnews/2002097570_sami22m.html.
87. BARRETT, supra note 59, at 244.
88. Curt Anderson, Defense Fears Terrorism Retrial Won't Be Fair to 6 Defendants, AILY J., Jan. 3, 2008, available at http://www.daily-journal.com/archives/dj/display.php?id=411128 (noting prosecutors' intention to introduce evidence to portray the ringleader of the plot as a "Muslim fanatic").
89. Jason Trahan, Lawyers Tangle About Greetings, DALL. MORNING NEWS, Sept. 25, 2008, at 1B. The prosecution did not go forward with this strategy.
90. Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 622 (2005) (explaining the charging of suspected terrorists with lesser offenses including immigration violations, identity theft, visa fraud, and money laundering).
91. Harry Litman, Pretextual Prosecutions, 92 GEO. L.J. 1135, 1175-76 (2004) (defending the practice of pretextual charges)
92. Richman &Stuntz, supra note 63, at 584-87 (explaining pretextual charges).
93. United States v. Khan, 309 F. Supp. 2d 789, 810 (E.D. Va. 2004).
94. McCormack, supra note 20, at 1 & n.1.
95. Milton Viorst, The Education of Ali al-Timimi, ATLANTIC MONTHLY, June 2006, at 69, 78.
96. McCormack, supra note 20, at 1 & n.1;
97. Jerry Markon, Muslim Leader Is Found Guilty, WASH. POST, Apr. 27, 2005, at A1.
98. McCormack, supra note 20, at 2 (explaining that the acts resulting in al-Timimi's convictions primarily involved only speaking with and advising others).
99. Markon, supra note 69 (describing prosecutorial arguments that al-Timimi's words were intended to cause violence and the subsequent guilty verdict imposed by the jury).
100. U.K. STRATEGY, supra note 29, at 12.
101. Terrorism Act, 2006, c. 11, § 1(2)(b)(i).
102. Id. § 1(3) (emphasis added).
103. TERRORISM ACT 2006: EXPLANATORY NOTES ¶ 20, at 4 (2006).
104. Terrorism Act 2006, 2(1)(a), 2(2).
105. According to a U.K. government audit of counterterrorism actions, there have been such actions. See LORD CARLILE OF BERRIEW Q.C., REPORT ON THE OPERATION IN 2007 OF THE TERRORISM ACT 2000 AND OF PART I OF THE TERRORISM ACT 2006, at 56 (2008) ("There have been successful prosecutions brought under the section [criminalizing the glorification of terrorism], and others are pending.")
106. CROWN PROSECUTION SERV., VIOLENT EXTREMISM AND RELATED CRIMINAL OFFENCES § 5, http://www.cps.gov.uk/publications/prosecution/violent_extremism.html (describing some successful antiterrorism prosecutions but none under the antiglorification laws).
107. But there have been some arrests. See, e.g., Sean O'Neill & Stewart Tendler, Islamist Radical who Heckled Reid Is Arrested over 'Glorifying of Terrorism,' TIMES (U.K.), Feb. 9, 2007, at 2;
108. Stephen Wright et al., Hate Preacher who Praised Bombers Is Among Six Arrested, DAILY MAIL (U.K.), Apr. 25, 2007, at 20.
109. Sean O'Neill, Muslim Faces Prison over Terror Speeches, TIMES (U.K.), Apr. 18, 2008, at 21.
110. R v. Malik, [2008] EWCA (Crim) 1450 (Eng.)
111. S. Chehani Ekaratne, Redundant Restriction: The U.K.'s Offense of Glorifying Terrorism, 23 HARV. HUM. RTS. J. 205, 216-17 (2010) (describing the Malik case).
112. Haroon Siddique, 'Lyrical Terrorist' Convicted over Hate Records, GUARDIAN (U.K.), Nov. 8, 2007, http://www.guardian.co.uk/uk/2007/nov/08/terrorism.world (describing the documents found in Malik's possession).
113. The conviction was later overturned. Lee Glendinning, 'Lyrical Terrorist' Has Conviction Quashed, GUARDIAN (U.K.), June 17, 2008, http://www.guardian.co.uk/uk/2008/jun/17/uksecurity.ukcrime.
114. The Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, allowed, inter alia, the exclusion of any alien "affiliated with groups that advocate World Communism or totalitarian dictatorship."
115. DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 164-67 (2003) (describing litigation in which the Immigration and Nationality Act, also known as the McCarran-Walter Act, was struck down).
116. In at least one case, a failed prosecution has been followed seriatim by an immigration action.
117. See, e.g., Elaine Silvestrini, ICE Puts Chill on Megahed Acquittal, TAMPA BAY ONLINE, Apr. 12, 2009, http://www2.tbo.com/content/2009/apr/12/na-ice-puts-chill-on-megahed-acquittal/(noting the use of immigration law to deport Sami al-Hussayen after the failed prosecution of him).
118. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 381 (2006) (describing an "increasing overlap between criminal and immigration law").
119. For an overview of relevant changes in the immigration statute, see Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 647-48 (2006).
120. At the same time, judicial scrutiny of immigration law's workings has diminished. In 1999, the Supreme Court held that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation."
121. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999).
122. USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 411, 115 Stat. 272, 346.
123. REAL ID Act of 2005, Pub. L. No. 109-13, § 103, 119 Stat. 302, 306-07 (codified as amended at 8 U.S.C. § 1182(a)(3)(B)(i) (2006)).
124. Pamela Constable, Divisive Scholar Draws Parallels Between Islam and Democracy, WASH. POST, Apr. 11, 2007, at B6;
125. ACLU, THE EXCLUDED: IDEOLOGICAL EXCLUSION AND THE WAR OF IDEAS 11 (2007), available at http://www.aclu.org/files/pdfs/safefree/the_excluded_report.pdf (noting that Ramadan's exclusion had initially been justified by the government on the ground that he "endorsed or espoused terrorism").
126. Ramadan's exclusion was later justified under a different statutory provision.
127. Olivier Guitta, The State Dept. Was Right, WEEKLY STANDARD, Oct. 16, 2006, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/800naxnt.asp ("[T]he State Department denied a visa to Muslim scholar Tariq Ramadan on the grounds that he had contributed around 600 euros to a French charity classified as a terrorist organization.").
128. Guitta, supra note 89 ("Ramadan holds out Islam as the solution to all the problems of Muslim youth."). Ramadan himself attributed the exclusion to political differences.
129. Tariq Ramadan, Op-Ed., Why I'm Banned in the USA, WASH. POST, Oct. 1, 2006, at B1 ("I am increasingly convinced that the Bush administration has barred me for a much simpler reason: It doesn't care for my political views."). Ramadan was subsequently admitted into and entered the United States.
130. Am. Acad. Religion v. Napolitano, 573 F.3d 115, 134-39 (2d Cir. 2009) (vacating and remanding the initial refusal based on a possible procedural flaw in the consular decision);
131. Kirk Semple, At Last Allowed, Muslim Scholar Visits, N.Y. TIMES, Apr. 8, 2010, at A29.
132. Jonathan Birt, Good Imam, Bad Imam: Civic Religion and National Integration in Britain Post-9/11, 96 MUSLIM WORLD 687, 694-95 (2006).
133. Id. at 698.
134. Ben Saul, Speaking of Terror: Criminalising Incitement to Violence, 28 U. NEW S. WALES L.J. 868, 870 (2005).
135. Alan Cowell, Britain Deports Man Accused of Ties to Attacker in'05 Bombing, N.Y. TIMES, May 26, 2007, at A7.
136. Alan Travis et al., Clarke Uses 'Personal Power' to Ban Bakri from UK, GUARDIAN (U.K.), Aug. 13, 2005, http://www.guardian.co.uk/politics/2005/aug/13/terrorism.syria?INTCMP=SRCH.
137. COUNTERING INTERNATIONAL TERRORISM: THE UNITED KINGDOM'S STRATEGY 12 (2006), available at http://www.iwar.org.uk/homesec/resources/uk-threat-level/uk-counterterrorismstrategy.pdf.
138. Terrorism Act, 2006, c. 11, § 21 (emphasis added). In the same provision, glorification is defined to "include[] any form of praise or celebration." Id.; cf. Saul, supra note 93, at 879 (describing a similar scheme introduced by the Howard government in Australia).
139. Press Release, Home Office, Home Office to Ban Terror Groups (July 17, 2006), available at http://press.homeoffice.gov.uk/press-releases/ban-terror-groups;
140. Ian Cobain et al., Reborn Extremist Sect Had Key Role in London Protest, GUARDIAN (U.K.), Feb. 11, 2006, at 14
141. Neil McKay, How the Fire Spread, SUNDAY HERALD, Feb. 12, 2006, at 37 (describing the groups' role in the cartoon controversy);
142. Alan Travis, Reid Uses New Laws to Ban Two Islamist Groups for 'Glorifying Terrorism,' GUARDIAN (U.K.), July 18, 2006, at 9 (reporting on the ban).
143. U.K. HOME OFFICE, PROSCRIBED TERRORIST GROUPS 2-3, 6 (2010), available at http://www.homeoffice.gov.uk/publications/counter-terrorism/proscribed-terror-groups/proscribedgroups?view=Binary.
144. See supra subpart II(A).
145. Kevin R. Johnson, How Racial Profiling Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005, 1035-36 (2010) (analyzing the "[r]esurgence" of racial profiling in counterterrorism, based largely on law enforcement's biases against individuals who appear to be Arab).
146. Sager, supra note 19, at 1216.
147. Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. REV. 144, 178 (2003).
148. Murad Hussein, Note, Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, 117 YALE L.J. 920, 926 (2008).
149. Id. at 938.
150. Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) ("The First Amendment. does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.");
151. KENT GREENAWALT, SPEECH, CRIME & THE USES OF LANGUAGE 79-126 (1989) (discussing agreements to commit crimes, criminal threats, and inducements to crime).
152. Dennis v. United States, 341 U.S. 494, 581-91 (1951) (Douglas, J., dissenting) (expressing doubt that speech should be treated as an actus reus).
153. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94, 109 (1952) ("Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric, neither his robe nor his pulpit would be a defense.").
154. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (upholding basic rights of the press to prevail over a statute supposedly permitting prior restraint);
155. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) ("Viewpoint discrimination is thus an egregious form of content discrimination.");
156. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (recognizing content-based regulations of speech as "presumptively invalid").
157. Catholics and Protestants in the United States have long clashed over the proper translation of the Bible. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 299-300 (2001). Even the text of the Ten Commandments is subject to debate.
158. Van Orden v. Perry, 545 U.S. 677, 717-18 (2005) (Stevens, J., dissenting) ("There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.").
159. For Catholic concerns along these lines, see Sarah Barrington Gordon, "Free" Religion and "Captive" Schools: Protestants, Catholics, and Education, 1945-1965, 56 DEPAUL L. REV. 1177, 1183 (2007). For Evangelical concerns,
160. Stanley Fish, Children and the First Amendment, 29 CONN. L. REV. 883, 886-88 (1997) (chronicling the case of Mozert v. Hawkins, 582 F. Supp. 201 (E.D. Tenn. 1984), rev'd, 827 F.2d 1058 (6th Cir. 1987), in which an Evangelical Christian mother sued to prevent her child from being made to read a textbook that exposed readers to a variety of religious beliefs).
161. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 951 (1995) ("Any society or social context has what I call here social meanings-the semiotic content attached to various actions, or inactions, or statuses, within a particular context.").
162. Carolyn Marshall, 24-Year Term for Californian in Terrorism Training Case, N.Y. TIMES, Sept. 11, 2007, at A20.
163. Waldman, supra note 7, at 90 (noting the jury foreman's skepticism of the testimony of a University of Oregon professor "who had testified that Pakistanis commonly carry a [Muslim talisman called a] tawiz to ward off evil, much the way Jews place a mezuzah outside their door").
164. The prosecution's specific interpretation of the throat note was at a minimum highly questionable. According to several experts, it was in fact "a traditional supplication. reported to have been said by the Prophet [Mohammad] when he feared harm from a group of people." Id. In her excellent reporting on the trial, Amy Waldman sought views from two experts (Bernard Haykel and Ingrid Mattson) and a Pakistani New York Times reporter based in Islamabad and consulted published and online collections of traditional Islamic prayers. All confirmed that the prosecution's interpretation was incorrect.
165. Supra notes 65-71 and accompanying text.
166. Caryle Murphy, For Conservative Muslims, Goal of Isolation a Challenge, WASH. POST, Sept. 5, 2006, at A1.
167. The idea of endorsement was first suggested by Justice O'Connor and later picked up by other Justices.
168. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring) (asking whether the state had impermissibly "sen[t] a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community")
169. Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592-94 (1989) (engaging in an endorsement analysis based on Justice O'Connor's concurrence in Lynch). Justice O'Connor later explained that the endorsement analysis is applied from the perspective of a "reasonable observer." Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 779-80 (1995) (O'Connor, J., concurring).
170. 80 U.S. (13 Wall.) 679 (1871).
171. Id. at 722-28.
172. Id. at 722.
173. Id. at 725.
174. Id. at 727.
175. 1 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: FREE EXERCISE AND FAIRNESS 263-65 (2006) (discussing the Court's grouping of questions concerning the rights to church properties into three categories, including a category for when a congregation is subordinate to a larger church organization)
176. Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 COLUM. L. REV. 1843, 1847-52 (1998) (describing Watson comprehensively).
177. Watson, 80 U.S. at 728.
178. Bouldin v. Alexander, 82 U.S. (15 Wall.) 131, 140 (1872) (holding that a majority rule would be followed for congregational churches provided that the majority "adhere to the organization and to the doctrines" of the church).
179. Gonzales v. Roman Catholic Archbishop, 280 U.S. 1, 16-17 (1929).
180. Brundage v. Deardorf, 55 F. 839, 847-48 (C.C.N.D. Ohio 1893) (stating that only "a bona fide decision" of an ecclesiastical tribunal would be recognized)
181. Note, Judicial Intervention in Church Property Disputes-Some Constitutional Considerations, 74 YALE L.J. 1113, 1119 n.32 (1965) (collecting cases).
182. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94, 120-21 (1952) ("Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls.").
183. Kreshik v. Saint Nicholas Cathedral of the Russian Orthodox Church, 363 U.S. 190, 190-91 (1960) (per curiam) (holding that a state court could not deny a "right conferred under canon law").
184. Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 450 (1969). Akin to the arbitrariness exception, the "departure-from-doctrine" rule invited judicial scrutiny into church doctrine
185. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 712-16 (1976).
186. While courts can still inquire into "fraud" or "collusion," the continuing validity of these exceptions to the general rule of noninquiry into church decision making is uncertain.
187. Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1397 (1981) (citing cases where state courts relying on fraud exceptions were reversed and commenting that such exceptions do not fit the Court's broad rationale).
188. Mary Elizabeth Blue Hull, 393 U.S. at 449.
189. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring);
190. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860-61 (2005) (describing a showing of government purpose to favor one religion over another or adherence to religion generally as a message to nonadherents that they are outsiders); supra note 119.
191. Lemon v. Kurtzman, 403 U.S. 602, 615-23 (1971) (applying the entanglement test);
192. Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) ("Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.").
193. The Court has expressed concern that a tax regulation requiring the IRS to differentiate "secular" from "religious" benefits might lead to entangling inquiries. Hernandez v. Comm'r, 490 U.S. 680, 694 (1989).
194. Entanglement captures at least three different concerns: Excessive state aid, excessive surveillance, and the fostering of divisive political competition on religious lines.
195. Laycock, supra note 131, at 1392-94.
196. Mary Elizabeth Blue Hull, 393 U.S. at 443.
197. Id. at 450.
198. Justice Brennan referred opaquely to the First Amendment as a source for this rule, citing Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).
199. Id. at 449.
200. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 718 (1976).
201. Id. at 720.
202. Mary Elizabeth Blue Hull and Serbian Eastern Orthodox were subsequently confirmed in Jones v. Wolf, 443 U.S. 595, 602-06 (1979).
203. Md. & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970) (per curiam) (dismissing an appeal because "the Maryland court's resolution of the dispute involved no inquiry into religious doctrine").
204. New York v. Cathedral Acad., 434 U.S. 125, 133 (1977).
205. 403 U.S. 602, 612-13 (1971) (stating that "[a] law may be one 'respecting' the [establishment of religion] while falling short of its total realization" because the concern is to avoid "foster[ing] an 'excessive government entanglement with religion"' (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970))).
206. Kent Greenawalt, Religion and the Rehnquist Court, 99 NW. U. L. REV. 145, 146 (2004) ("In a brief decade and a half, we have moved from expansive readings of both of the religious clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.").
207. I assume here the widely shared view of constitutional doctrine as implementing the Constitution's values through a sequence of judicially crafted doctrinal rules that respond to institutional limitations and changing circumstances.
208. Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 2-3 (1975) ("[A] surprising amount of what passes as authoritative constitutional 'interpretation' is best understood as. a substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions.").
209. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 885 (1996) ("[O]ur written constitution has. become part of an evolutionary common law system, and the common law. provides the best way to understand the practices of American constitutional law.").
210. Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 CALIF. L. REV. 673, 694-706 (2002) (chronicling the shift toward minority protection in religious free-expression cases).
211. Nelson Tebbe, Excluding Religion, 156 U. PA. L. REV. 1263, 1264 (2008) (referencing the general agreement that the government cannot target individual religious groups in regulations, barring extraordinary circumstances).
212. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338-39 (1987) (finding an exception to Title VII for religious groups).
213. 494 U.S. 872 (1990).
214. Id. at 879.
215. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32, 546 (1993) (holding that a "law burdening religious practice that is neither neutral nor of general application must undergo the most rigorous of scrutiny").
216. For early criticism of Smith, see Douglas Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 10-23;
217. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 138-39 (1992).
218. Smith, 494 U.S. at 882.
219. Lukumi Babalu, 508 U.S. at 536 (applying this rule).
220. The relevant Supreme Court precedent for this proposition, Lukumi Babalu Aye, is an outlier. In that case, the social and historical context of the local ordinance at issue could not have been more thoroughly imbricated with evidence of animus against a classically discrete, insular, and unpopular minority.
221. Lukumi Babalu Aye, 508 U.S. at 526-27. The social meaning of a law will not necessarily be so obvious.
222. See Van Orden v. Perry, 545 U.S. 677, 686-92 (2005) (plurality opinion) (relying on "unbroken history" as a warrant for display of the Decalogue on the grounds of the Texas State Capitol)
223. see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26-30 (2004) (Rehnquist, J., concurring in the judgment) (arguing that expressive state action constituting "public recognition of our Nation's religious history and character" ought to survive an Establishment Clause challenge).
224. See, e.g., Van Orden, 545 U.S. at 695-97 (Thomas, J., concurring) (criticizing the endorsement test). In the academic literature, endorsement has critics.
225. see Feldman, supra note 146, at 710-18 (arguing that endorsement does not protect against certain forms of exclusion but that there is no reason religion should be singled out for endorsement-related protection), and putative reformers.
226. see Adam Samaha, Endorsement Retires: From Religious Symbols to Anti-sorting Principles, 2005 SUP. CT. REV. 135, 144-158.
227. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 888-94 (2005) (Scalia, J., dissenting).
228. Salazar v. Buono, 130 S. Ct. 1803, 1818 (2010) (plurality opinion).
229. But see id. at 1832-33 (Stevens, J., dissenting) (applying the endorsement test). The Court further diluted the endorsement test by suggesting that "text-based [public] monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do notcontain text is likely to be even more variable."
230. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1135 (2009).
231. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002)
232. see also Mitchell v. Helms, 530 U.S. 793, 809-10 (2000) (plurality opinion) (stating that neutrality toward religious groups is required to ensure that no endorsement of religion has occurred).
233. Zelman, 536 U.S. at 655.
234. Everson v. Bd. of Educ., 330 U.S. 1, 20 (1947) (Jackson, J., dissenting) (arguing that an aid program discriminated because the New Jersey scheme in question "authorize[d] disbursement of. taxpayer's money. to those who attend public schools and Catholic schools.
235. The extent to which school vouchers, for example, can yield predictable effects over time is debated.
236. See Vincent Blasi, Vouchers and Steering, 18 J.L. & POL. 607, 619-20 (2002) (drawing attention to the differing opinions about the long-term effects of vouchers on schools' independence).
237. From early in the twentieth century, the no-aid principle was intended to control distributional outcomes and to stop financial distributions to Catholics.
238. See Jeffries & Ryan, supra note 110, at 312-17 (describing the evolution of Protestant and Jewish opposition to distributions to Catholics and the general public secularist interest in limiting distributions in order to protect public education).
239. See Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133, 141-45 (1996) (describing cooperation-defection differential between membership and nonmembership in religious groups and noting ways the state can modify it).
240. In Zelman, Chief Justice Rehnquist acknowledged the risk that financial incentives might skew a program toward religious schools but concluded that so long as "neutral, secular" criteria were used no constitutional problem obtained. See Zelman, 536 U.S. at 653-54 & n.3 (noting in addition that the Cleveland voucher program "in fact create[d] financial disincentives for religious schools," which received less funding than community or magnet schools).
241. At the time of this writing, the Supreme Court has sub judice a challenge to an Arizona school voucher system that raises a version of this concern.
242. See Garriott v. Winn, 130 S. Ct. 3324 (2010)
243. Ariz. Christian Sch. Tuition Org. v. Winn, 130 S. Ct. 3350 (2010) (both granting writ of certiorari).
244. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
245. see also Kenneth F. Ripple, The Entanglement Test of the Religion Clauses-A Ten Year Assessment, 27 UCLA L. REV. 1195, 1197-98 (1980) (noting that entanglement was first articulated in Walz v. Tax Commission, 397 U.S. 664 (1970), but only designated as a separate Establishment Clause test in Lemon).
246. New York v. Cathedral Acad., 434 U.S. 125, 133 (1977)
247. Roemer v. Bd. of Pub. Works, 426 U.S. 736, 749-60 (1976).
248. 521 U.S. 203 (1997).
249. Id. at 232-33.
250. Arguably, the end was visible earlier. See Ripple, supra note 162, at 1208-14. Agostini abandoned the idea that a prohibition on entanglement reflected a value distinct from the no-aid and no-harm elements of the Establishment Clause. Justice Souter commented that excessive focus on entanglement in Aguilar "obscured" constitutionally salient facts.
251. Agostini, 521 U.S. at 242 (Souter, J., dissenting).
252. See Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (stating that "inquiry into the [state aid] recipient's religious views. is not only unnecessary but also offensive" because "courts should refrain from trolling through a person's or institution's religious beliefs").
253. The Mitchell plurality picked up a thread initially developed in cases concerning property-tax exceptions and aid to tertiary educational institutions.
254. See Roemer, 426 U.S. at 748 n.15 ("The importance of avoiding persistent and potentially frictional contact between governmental and religious authorities is such that it has been held to justify the extension, rather than the withholding, of certain benefits to religious organizations.")
255. Walz, 397 U.S. at 691-92 & n.12 (Brennan, J., concurring) (noting that state cessation of exemptions "might conflict with the demands of the Free Exercise Clause").
256. See, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 394-95 (1990) (holding that the administration and collection of a sales tax is not entangling)
257. Hernandez v. Comm'r, 490 U.S. 680, 696-97 (1989) (holding that the monitoring of a tax benefit is not entangling)
258. Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 305-06 (1985) (holding that the record-keeping requirements of the Fair Labor Standards Act are not entangling).
259. 42 U.S.C § 2000bb-1 (2006)
260. see also id. § 2000cc-5(7) (providing that a practice need not be "central to" a religion to be an "exercise of religion").
261. A unanimous Supreme Court endorsed this test in 2006 as applied to the federal government. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 & n.1 (2006).
262. Winnifred Fallers Sullivan, Judging Religion, 81 MARQ. L. REV. 441, 444-49 (1998) [hereinafter Sullivan, Judging Religion]. Sullivan argues for "the impossibility of fairly delimiting the contours of contemporary religious life" in light of the thick multitude of localized religious "folkways" that characterize religious life in the United States.
263. WINNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM 146, 153 (2005) [hereinafter SULLIVAN, IMPOSSIBILITY OF RELIGIOUS FREEDOM].
264. Sullivan, Judging Religion, supra note 169, at 448-49.
265. SULLIVAN, IMPOSSIBILITY OF RELIGIOUS FREEDOM, supra note 169, at 6
266. Sullivan, Judging Religion, supra note 169, at 448-49.
267. But see Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 924 (1999) (arguing for a theory of "remedial equilibration" that "leaves no room for a distinction between the abstract, analytic definitions of constitutional rights and remedial concerns that prevent courts from enforcing those rights to their 'true' limits").
268. Sager, supra note 19, at 1222-27.
269. See Aziz Z. Huq, What Good Is Habeas?, 26 CONST. COMMENT. 385, 431 (2010) (questioning the effect of the Supreme Court's interventions related to Guantanamo).
270. See, e.g., Hartman v. Moore, 547 U.S. 250, 260 (2006) (holding that, for a retaliatoryprosecution case, once a claimant has made a prima facie showing of retaliatory harm, if the defendant official can show that "retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official's mind")
271. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) (holding that the doctrine of constitutional doubt does not require that 28 U.S.C. § 1252(g) be interpreted to permit immediate review of a respondent's selectiveenforcement claim)
272. United States v. Armstrong, 517 U.S. 456, 462 (1996) (holding that Rule 16(a)(1)(c) of the Federal Rules of Criminal Procedure does not require the government to permit discovery of documents material to the "defense" of a selective-prosecution claim).
273. For example, the Warren Court's criminal procedure cases provided a centerpiece for Richard Nixon's presidential campaign, which in turn led to a change in the Court's personnel and thus direction.
274. See LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 410 (2002).
275. Aziz Z. Huq, Against National Security Exceptionalism, 2009 SUP. CT. REV. 225, 226.
276. Id. at 257-65.
277. See, e.g., id. at 267-72 (discussing Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), as an example of the impact of security concerns on transsubstantive rules, such as civil pleading requirements).
278. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 190-91 (2004) (upholding a state statute requiring a person stopped by the police to produce identification documents).
279. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2262-63 (2010) (finding a waiver of the right against self-incrimination based on a one-word answer given after two hours and forty-five minutes of silence in the face of questions).
280. See Gross & Livingston, supra note 4, at 1415 (defining "racial profiling"-at least the kind that provokes public outrage-as "whenever a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person" because of his or her racial or ethnic background).
281. See, e.g., Michael R. Smith, Depoliticizing Racial Profiling: Suggestions for the Limited Use and Management of Race in Police Decision-Making, 15 GEO. MASON U. C.R. L.J. 219, 219 (2005) (highlighting the growth of the term racial profiling from "a term virtually unheard of five years ago" to a "part of the national lexicon").
282. The Hayat case was criticized by the Muslim community of Lodi, California, where Hayat lived, as an instance of discrimination-not as a failure of interpretation.
283. MacFarquhar, supra note 39.
284. Commentators from across the political spectrum noted the lack of public reaction to the trial of Ali al-Timimi.
285. See, e.g., Debra Erdley, Al-Timimi Verdict Turning Point in Legal War on Terror, TRIBLIVE NEWS, May 1, 2005, http://www.pittsburghlive.com/x/pittsburghtrib/s_329818.html (quoting a defense attorney in saying that the Muslim community "seem[s] resigned to what's going on" and that they no longer expect fair trials)
286. Daniel Pipes, Convicting [Ali al- Timimi,] the "Paintball Sheikh," DANIELPIPES.COM (May 2, 2005), http://www.danielpipes.org/2579/convicting-ali-al-timimi-the-paintball-sheikh (observing that "the mainstream media stayed resolutely away from the case").
287. See supra notes 104-08 and accompanying text
288. Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 J. MARSHALL L. REV. 439, 459 n.125 (2004) (summarizing congressional findings that racial profiling causes members of minority communities to "experience fear, anxiety, humiliation, anger, resentment, and cynicism when they are unjustifiably treated as criminal suspects").
289. See supra Part II.
290. See supra notes 38-57 and accompanying text.
291. LOUISE RICHARDSON, WHAT TERRORISTS WANT: UNDERSTANDING THE ENEMY, CONTAINING THE THREAT 49 (2006).
292. Michael Pye, Problems of Method in the Interpretation of Religion, 1 JAPANESE J. RELIGIOUS STUD. 107, 120-21 (1974) ("All sophisticated religions experience some degree of tension between the doctrinal norms and formulations which they have inherited and the changing needs of the times. This results in a constant string of new interpretations.").
293. See MICHAEL BONNER, JIHAD IN ISLAMIC HISTORY: DOCTRINES AND PRACTICE 1-2 (2006) (summarizing the different interpretations of the word).
294. Id. at 2, 21
295. see also Fred M. Donner, The Sources of Islamic Conceptions of War ("The Qur'an makes. frequent reference to 'struggle' or striving[] (jihad and other derivations), by which physical confrontation or fighting appears often-but not always-to be intended.")
296. JUST WAR AND JIHAD: HISTORICAL AND THEORETICAL PERSPECTIVES ON WAR AND PEACE IN WESTERN AND ISLAMIC TRADITIONS 31, 46 (John Kelsay & James Turner Johnson eds., 1991).
297. BONNER, supra note 191, at 3 ("A typical Book of Jihad [within a larger work of jurisprudence] includes the law governing the conduct of war, which covers treatment of nonbelligerents, division of spoils among the victors, and such matters.")
298. Donner, supra note 192, at 52 (describing the development of Islamic jus in bello rules).
299. See KHALED ABOU EL FADL, THE PLACE OF TOLERANCE IN ISLAM 11-13 (2002) (describing the "literal[] and ahistorical[]" Koranic readings used to justify terrorism)
300. HABECK, supra note 11, at 19-39 (sketching the evolution of jihad as a justification for violence).
301. As Olivier Roy points out, "the new jihad is an individual and personal decision" quite distinct from the "collective duty (fard kifaya)" that jihad connoted in earlier doctrinal discussions.
302. OLIVIER ROY, GLOBALIZED ISLAM: THE SEARCH FOR A NEW UMMAH 41-43 (2004)
303. GILLES KEPEL, JIHAD: EXPANSION ET DÉCLIN DE I'ISLAMISME 487-88 (2d ed. 2003).
304. See W. MONTGOMERY WATT, ISLAMIC PHILOSOPHY AND THEOLOGY 159-60 (2008) (chronicling the life, thought, and influence of Ibn-Taymiyya)
305. see also WAEL B. HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES 139-40 (1997) (situating Ibn-Taymiyya in the context of debates about the epistemological force of analogies)
306. CHARLES ALLEN, GOD'S TERRORISTS: THE WAHHABI CULT AND THE HIDDEN ROOTS OF MODERN JIHAD 42-48 (2006) (discussing Ibn-Taymiyya's life and how "his reinterpretation of jihad lies at the heart of modern Islamist revivalism").
307. ANNEMARIE SCHIMMEL, MYSTICAL DIMENSIONS OF ISLAM 98, 112 (1975).
308. James Madison, Memorial and Remonstrance Against Religious Assessments ("Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; o that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world."), reprinted in 5 THE FOUNDERS CONSTITUTION 83 (Philip Kurland & Ralph Lerner eds., 1987).
309. JOHN LOCKE, TWO TREATISES ON GOVERNMENT AND A LETTER CONCERNING TOLERATION 220 (Ian Shapiro ed., 2003).
310. See Douglas Laycock, The Many Meanings of Separation, 70 U. CHI. L. REV. 1667, 1672 (2003) (book review) (collecting Biblical authorities).
311. Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 716 (1981)
312. see also United States v. Ballard, 322 U.S. 78, 86-87 (1944) ("Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.").
313. Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 24
314. (2000). (describing the "literal[] and ahistorical[]" Koranic readings used to justify terrorism).
315. GREENAWALT, supra note 124, at 262. Other commentators provide specific grounds for concern about the status and treatment of religious identity.
316. Blasi, supra note 158, at 613 ("[R]eligion remains as a distinctively dangerous political force, even as it serves for many individuals as an important source of communal identity, personal understanding, and comfort.").
317. Waldman, supra note 7, at 89 (stating that the prosecution in Hayat's case felt that a prayer found in Hayat's wallet was so critical to the case that the prosecution hired Mohammed- who affirmed that the prayer had no other use than in connection with violent jihad-to interpret it).
318. United States v. Scheffer, 523 U.S. 303, 313 (1998) ("A fundamental premise of our criminal trial system is that 'the jury is the lie detector."' (quoting United States v. Barnard, 490
319. F.2d 907, 912 (9th Cir. 1973))); Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891) (stating that jurors "are presumed to be fitted for [their task] by their natural intelligence and their practical knowledge of men and the ways of men").
320. William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2164 (2002).
321. Douglas Laycock, The Supreme Court, 2003 Term-Comment: Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 HARV. L. REV. 155, 195-96 (2004).
322. There is no reason to believe that the adversarial system will throw up the best available expertise to enable a fact finder to resolve an empirical question.
323. Christopher Tarver Robertson, Blind Expertise, 85 N.Y.U. L. REV. 174, 184 (2010) (arguing that "[t]hrough selection, affiliation, and compensation biases, litigants make experts more favorable but less accurate compared to their base rates of accuracy in the real world").
324. JOHN MUELLER, OVERBLOWN: HOW POLITICIANS AND THE TERRORISM INDUSTRY INFLATE THE NATIONAL SECURITY THREATS, AND WHY WE BELIEVE THEM 29-50 (2006) (describing the "terrorism industry" and condemning its distorting effect on policy choices)
325. Petra Bartosiewicz, Experts in Terror, NATION, Feb. 4, 2008, http://www.thenation.com/article/experts-terror (noting that one expert received $135,000 in Justice Department funds in one year).
326. Dana Priest & William M. Arkin, Monitoring America, WASH. POST, Dec. 20, 2010, http://projects.washingtonpost.com/top-secret-america/articles/monitoring-america/.
327. Bartosiewicz, supra note 208 (describing one expert who lacked formal academic credentials and noting that those with credentials are often reluctant to take sides).
328. Elected officials generally evince low levels of understanding of Islam and Muslim onstituencies.
329. LORENZO VIDINO, THE NEW MUSLIM BROTHERHOOD IN THE WEST 102-04
330. (2010) (discussing factors that contribute to "a pervasive ignorance among many of the top officials in charge of issues that have closely to do with Islam and Islamism").
331. INT'L CRISIS GRP., ISLAM AND IDENTITY IN GERMANY 17 (2007), available at http://www.crisisgroup.org/~/media/Files/europe/181_islam_in_germany.ashx.
332. COMMISSION REPORT, supra note 26, at 73-107 (describing the evolution of counterterrorist activities in the United States and noting institutional failures in law enforcement, the FAA, the U.S. Intelligence Community, the State Department, the Department of Defense, the White House, and Congress that impaired effective counterterrorist efforts).
333. AMY B. ZEGART, SPYING BLIND: THE CIA, THE FBI, AND THE ORIGINS OF 9/11, at 49-56 (2007) (describing how government agencies do not experience the market pressure to adapt that private firms experience). This was the case even before 9/11.
334. AMY B. ZEGART, FLAWED BY DESIGN: THE EVOLUTION OF THE CIA, JSC, AND NSC 9 (1999) ("[T]he modern American national security apparatus has not performed up to par. We do not need a theory of optimal agency design to reach this conclusion.").
335. Ben Feller, Obama Acknowledges More 'Red Flags' in Flight Plot, BOSTON.COM, Jan. 6, 2010, http://www.boston.com/news/nation/washington/articles/2010/01/06/obama_acknowledges_more_red_flags_in_flight_plot/ (quoting President Obama as saying that the Intelligence Community failed to "'connect [the] dots"' and prevent an attempted bombing by Umar Farouk Abdulmutallab).
336. This is not the only instance in which government confronts a sorting problem. Identifying desired migrants from a larger immigration inflow is another example of the problem.
337. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809, 824 (2007) (describing immigration as an example of a sorting problem where the information relevant to the sorting algorithm is unknown to the state but may be known to the immigrants).
338. Joseph E. Stiglitz, Information and the Change in the Paradigm in Economics, 92 AM. ECON. REV. 460, 463-464 (2002) (describing incentives to either share or hide information regarding educational qualifications by individuals in the Kenyan employment market depending on how the Kenyan government valued education). ("There are incentives on the part of individuals for information not to be revealed, for secrecy, or, in modern parlance, for a lack of transparency.").
339. Id. at 473.
340. Joseph E. Stiglitz, The Contributions of the Economics of Information to Twentieth Century Economics, Q.J. ECON. 1441, 1443 (2000).
341. See id. at 1450-1453 (noting different approaches to the selection problem).
342. Spence, supra note 13, at 437 (emphasis added). Spence emphasized the possibility of "multiple equilibria in the market." Id. That is, education does not always function as a signal
343. Its capacity to do so depends on its cost profile.
344. If education is too expensive for either high- or low-productivity workers, it will obviously not serve the same function.
345. Id. at 440.
346. Douglas G. Baird et al., GAME THEORY AND THE LAW 123 (1994) ("Employers are most likely to be able to draw [positive] inferences when there is an action that industrious applicants can take that is more attractive to them than to lazy applicants.")
347. Nick Feltovich et al., Too Cool for School? Signaling and Countersignaling, 33 RAND J. ECON. 630, 631 (2002) (noting that standard models conclude that "in a separating equilibrium, 'high' types. send a costly signal to differentiate themselves from lower types").
348. Al Qaeda indeed did in preparing the September 11 attacks
349. Jerrold M. Post, THE MIND OF THE TERRORIST: THE PSYCHOLOGY OF TERRORISM FROM THE IRA TO AL-QAEDA 200 (2007) (describing an al Qaeda training manual that instructs terrorists to avoid certain behaviors in order to "maintain their cover").
350. Sam Harris, THE END OF FAITH: RELIGION, TERROR, AND THE FUTURE OF REASON 123 (2004) ("Islam, more than any other religion human beings have devised, has all the makings of a thoroughgoing cult of death.")
351. Ralph Peters, Betraying Our Dead: Forgetting the Vows We Made, N.Y. POST, Sept. 11, 2009, http://www.nypost.com/p/news/opinion/opedcolumnists/betraying_our_dead_H6T95r1BTCnkC1UbEdUfsO (arguing that Islam is not a religion of peace, as evidenced by "the curious absence of Baptist suicide bombers").
352. PEW RESEARCH CTR., MUSLIM AMERICANS: MIDDLE CLASS AND MOSTLY MAINSTREAM 9-10 (2007), available at http://pewresearch.org/assets/pdf/muslim-americans.pdf.
353. Across Muslim majority countries, support for terrorism also varies widely. C. Christine Fair & Bryan Shepherd, Research Note, Who Supports Terrorism? Evidence from Fourteen Muslim Countries, 29 STUD. CONFLICT & TERRORISM 51, 53-58 tbl.2 (2006).
354. Bruce Hoffman, INSIDE TERRORISM 84-85 (rev. & expanded ed. 2006)
355. Matthew Carr, THE INFERNAL MACHINE: A HISTORY OF TERRORISM 239 (2006); ALAN B. KRUEGER, WHAT MAKES A TERRORIST: ECONOMICS AND THE ROOTS OF TERRORISM 80-81 (2007) ("Religious differences are among the many potential sources of the grievances that lead to terrorism. They are not the only reason. [and] are not specific to any one religion.").
356. Gary LaFree et al., Cross-National Patterns of Terrorism: Comparing Trajectories for Total, Attributed and Fatal Attacks, 1970-2006, 50 BRIT. J. CRIMINOLOGY 622, 639 fig.1 (2010) (listing the countries with the highest total number of terrorist attacks between 1970 and 2006 as Colombia, France, India, Israel, Northern Ireland, Pakistan, Russia, Spain, Sri Lanka, and Turkey).
357. Marieke Slootman & Jean Tillie, INST. FOR MIGRATION & ETHNIC STUDIES, PROCESSES OF RADICALISATION: WHY SOME AMSTERDAM MUSLIMS BECOME RADICALS 4 (2006), available at http://www.dmo.amsterdam.nl/publish/pages/85462/processesofradicalisationimes.pdf (stressing that "orthodoxy does not lead automatically to political discontent (and from there to potential radicalisation), and vice versa" because "the religious and political dimensions are independent of each other").
358. Mark Juergensmeyer, TERROR IN THE MIND OF GOD: THE GLOBAL RISE OF RELIGIOUS VIOLENCE, at xi (3d ed. 2003) ("Violent ideas and images are not the monopoly of any single religion. Virtually every major religious tradition. has served as a resource for violent actors.").
359. Id. at 10-11.
360. Eli Berman, RADICAL, RELIGIOUS, AND VIOLENT: THE NEW ECONOMICS OF TERRORISM 16 (2009).
361. El Fadl, supra note 194, at 10-11 ("Wahhabism and its militant offshoots share both attitudinal and ideological orientations. But Wahhabism is distinctively inward-looking- although focused on power, it primarily asserts power over other Muslims.").
362. Quintan Wiktorowicz, Anatomy of the Salafi Movement, 29 STUD. CONFLICT & TERRORISM 207, 208, 225-228 (2006) [hereinafter Wiktorowicz, Anatomy]
363. Quintan Wiktorowicz, A Genealogy of Radical Islam, 28 STUD. CONFLICT & TERRORISM 75, 75 (2005) [hereinafter Wiktorowicz, Genealogy].
364. Wiktorowicz, Anatomy, supra note 237, at 221.
365. Quintan Wiktorowicz, RADICAL ISLAM RISING: MUSLIM EXTREMISM IN THE WEST 14 (2005).
366. Fawaz A. Gerges, JOURNEY OF THE JIHADIST: INSIDE MUSLIM MILITANCY 224-229 (2007) (describing the fractured Islamist reaction to 9/11)
367. Fawaz A. Gerges, THE FAR ENEMY: WHY JIHAD WENT GLOBAL 29-34 (2005) (illustrating the struggle between jihadi leaders about whether their efforts should be focused locally or globally)
368. Peter Bergen & Paul Cruickshank, The Unraveling: Al Qaeda's Revolt Against bin Laden, NEW REPUBLIC, June 11, 2008, at 16-18 (describing the repudiation of al Qaeda by Sayyid Imam Al Sharif, the organization's "ideological godfather"). Similarly, radical Islamists in Libya have also repudiated political violence.
369. Id. at 17. 241.
370. Farhad Khosrokhavar, The Psychology of the Global Jihadists (identifying specific sects that disagree on the use of violence), in THE FUNDAMENTALIST MINDSET 139, 139 (Charles B. Strozier et al. eds., 2010).
371. Wiktorowicz, Genealogy, supra note 237, at 75-87.
372. There is a large body of literature on psychological profiling
373. Michael P. Arena & Bruce A. Arrigo, THE TERRORIST IDENTITY: EXPLAINING THE TERRORIST THREAT 4 (2006) (noting that research describing those who commit terrorist acts as "intrapsychically flawed, abnormal, and/or psychopathic is rare and typically of poor quality")
374. id. at 26, 229 (finding "serious limitations" in the focus on individual abnormality)
375. John Horgan, THE PSYCHOLOGY OF TERRORISM 28-46 (2005) (discussing the limitation of psychology literature on terrorism but stressing the importance of an "environmental context which gives rise to, sustains, directs, and controls it")
376. Marc Sageman, UNDERSTANDING TERROR NETWORKS 83-91 (2004) (reviewing and rejecting psychological personality explanations)
377. Arie Kruglanski & Shira Fishman, The Psychology of Terrorism: "Syndrome" versus "Tool" Perspectives, 18 TERRORISM & POL. VIOLENCE 193, 195, 200-201 (2006) (noting that "the systematic quest for a unique terrorist personality has yielded few encouraging results" and rejecting the idea of a "uniform sociopsychological phenomenon" of the terrorist "syndrome")
378. Max Taylor & John Horgan, A Conceptual Framework for Addressing Psychological Process in the Development of the Terrorist, 18 TERRORISM & POL. VIOLENCE 585, 585 (2006) (finding "little or no evidence of particular or distinctive individual qualities being associated with the terrorist")
379. Charles Tilly, Terror as Strategy and Relational Process, 46 INT'L J. COMP. SOC. 11, 21 (2005) ("If we are trying to explain when, where, and how people actually engage in terror, relational explanations will serve us far better than systemic or dispositional explanations.").
380. Richardson, supra note 189, at 14-15, 41. Psychologist Marc Sageman's study found evidence of childhood conduct disorders in a small minority of the sample of Islamist terrorists he studied (four of sixty-one). SAGEMAN, supra note 243, at 80-83.
381. RICHARDSON, supra note 189, at 14-15, 41.
382. Id. at 41
383. id. at 41-44 (noting that these are reasons why individuals join a terrorist group in the first place).
384. Edward Newman, Exploring the "Root Causes" of Terrorism, 29 STUD. CONFLICT & TERRORISM 749, 750-752 (2006) (finding no correlation between terrorist acts and either poverty or educational deprivation).
385. Urmee Khan, How to Be an 'Ordinary, Decent' Muslim, GUARDIAN (U.K.), Aug. 31, 2006, http://www.guardian.co.uk/world/2006/aug/31/religion.uk.
386. Tilly, supra note 243, at 21. In his larger work, Tilly emphasizes the collective context of contentious political claim making in general.
387. Charles Tilly, THE POLITICS OF COLLECTIVE VIOLENCE 31 (2003) ("Every actor that engages in claim making includes at least one cluster of previously connected persons among whom have circulated widely accepted stories concerning their strategic situation. ").
388. Olivier Roy, Al Qaeda in the West as a Youth Movement: The Power of a Narrative 16 (MICROCON, Policy Working Paper No. 2, 2008), available at http://www.microconflict.eu/ publications/PWP2_OR.pdf.
389. Jason Franks, RETHINKING THE ROOTS OF TERRORISM 41 (2006
390. ARENA & ARRIGO, supra note 243, at 73-74 (stressing the centrality of "group relationships" because "groups have a more immediate influence on shaping behavior" than traits such as race, religion, or ethnicity)
391. RICHARDSON, supra note 189, at 45 (noting that becoming a terrorist "requires a charismatic leader or a functioning organization to mix these feelings of simplification, identification, and revenge]. and turn them into action")
392. Wiktorowicz, supra note 239, at 14-15 (describing the importance of social networks to recruitment for Islamist groups)
393. HORGAN, supra note 243, at 34, 104-07
394. Kruglanski & Fishman, supra note 243, at 199-201
395. Taylor & Horgan, supra note 243, at 590-591, 598 (all noting the importance of group context and emphasizing "gradual socialization" into committing terrorist acts).
396. Roy, supra note 194, at 50 ("Islamic radical movements are always structured as a sect, with a tight-knit core and a looser network of sympathisers.")
397. David J. Kilcullen, Countering Global Insurgency, 28 J. STRATEGIC STUD. 597, 603 (2005) (describing al Qaeda as modeled "on a traditional Middle Eastern patronage network" with an intricate "web of dependency" that is "like a tribal group").
398. TILLY, supra note 249, at 32 ("Constituent units of claim-making actors often consist not of living breathing individuals, but of groups, organizations, bundles of social relations, and social sites such as occupations and neighborhoods.")
399. Anthony Oberschall, Explaining Terrorism: The Contribution of Collective Action Theory, 22 SOC. THEORY 26, 27-28 (2004) (noting the importance of organizational capacity for achieving terrorist violence)
400. Jerrold M. Post et al., The Terrorists in Their Own Words: Interviews with 35 Incarcerated Middle Eastern Terrorists, 15 TERRORISM & POL. VIOLENCE 171, 175 (2003) (Observing the salience of group identity among the terrorists studied).
401. HORGAN, supra note 243, at 294.
402. But it not impossible: The claim here is probabilistic, not a matter of formal logic.
403. This is not to suggest that in every group there is a clearly identified facilitator. There are some anecdotal accounts of groups moving collectively toward endorsement and use of terrorist violence, rather than being moved in that direction by the conscious actions of one individual. Some studies of terrorist recruitment among European Muslims, for example, highlight the role of "gatekeepers[,]. veteran militants who fought against the Soviets in the 1980s, or radicals who have trained in jihad camps."
404. Petter Nesser, Jihadism in Western Europe After the Invasion of Iraq: Tracing Motivational Influences from the Iraq War on Jihadist Terrorism in Western Europe, 29 STUD. CONFLICT & TERRORISM 323, 326 (2006)
405. Donald Black, The Geometry of Terrorism, 22 SOC. THEORY 14, 16 (2004) ("Pure terrorism is not only collective but well organized.").
406. Kruglanski & Fishman, supra note 243, at 199-200 (Observing a variety of leadership, charismatic and otherwise, among terrorist groups).
407. Mia Bloom, DYING TO KILL: THE ALLURE OF SUICIDE TERROR 76 (2005)
408. cf. id. at 84 (distinguishing between the individual and group rationality of suicide bombing). For an individual, hypothesized posthumous spiritual rewards or the psychic gain of imagining an opponent's losses might arguably suffice to make an act of suicide terrorism rational.
409. Mancur Olson, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE
410. THEORY OF GROUPS 1-3, 7 (1971) ("When a number of individuals have a common or collective interest-when they share a single purpose or objective-individual, unorganized action. will either not be able to advance that common interest at all, or will not be able to advance that interest adequately.")
411. id. at 33-36 (explaining why "the larger the group, the less it will further its common interests").
412. Peter Kurrild-Klitgaard et al., The Political Economy of Freedom, Democracy and Transnational Terrorism, 128 PUB. CHOICE 289, 291 (2006) (discussing the "early application of rational choice theory to the study of terrorism")
413. Michael Munger, Preference Modification vs. Incentive Manipulation as Tools of Terrorist Recruitment: The Role of Culture, 128 PUB. CHOICE 131, 132, 138 (2006) (noting the risk of free riding).
414. Charles Tilly, Terror, Terrorism, Terrorists, 22 SOC. THEORY 5, 5 (2004) (describing terrorism as the "asymmetrical deployment of threats and violence against enemies using means that fall outside the forms of political struggle routinely operating within some current regime").
415. Kruglanski & Fishman, supra note 243, at 202-203.
416. John Mackinlay, THE INSURGENT ARCHIPELAGO 199 (2009).
417. Richardson, supra note 189, at 49.
418. Id. Richardson uses the phrase to describe broader public cultures, but it also has resonance here. Dennis Chong, Values Versus Interests in the Explanation of Social Conflict, 144 U. PA. L. REV. 2079, 2105 (1996) ("Individuals tend to form their views on social issues within the context of specific group memberships.").
419. Munger, supra note 259, at 153.
420. Id. at 144.
421. The salience of culture as a source of tastes and preferences is not limited to terrorism. Lauding networks of shared production, Yochai Benkler argues that such networks provide "shared frames of meaning" through which individuals decide what "institutions and decisions are considered 'legitimate' and worthy of compliance and participation," and "what courses of action are attractive." YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 274-75 (2006). Contemporary terrorism involves a similar pooling of ideas and social capital for quite different purposes. Another relevant analytic frame that might be applied here is Pierre Bourdieu's notion of "habitus."
422. Pierre Bourdieu, OUTLINE OF A THEORY OF PRACTICE 78 (Richard Nice trans., 1972) (defining habitus as a "durably installed generative principle of regulated improvisations" that produces regular behavioral patterns).
423. A religious "community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring).
424. Eric Hoffer, THE TRUE BELIEVER: THOUGHTS ON THE NATURE OF MASS MOVEMENTS 11 (1951).
425. In some contexts, this includes provision of nonspiritual services, in the form of material aid to the families and intimates of group members. BERMAN, supra note 235, at 75-78 (describing the use of mutual aid).
426. Taylor & Horgan, supra note 243, at 590-93.
427. Sheldon Stryker & Peter J. Burke, The Past, Present, and Future of an Identity Theory, 63 SOC. PSYCHOL. Q. 284, 284 (2000). Relevant here, Stryker and Burke describe how the "structure and connectedness" of groups "provides the first level of social structures' impact on identities."
428. Id. at 289.
429. Lawrence Rosen, The Integrity of Cultures, 34 AM. BEHAV. SCIENTIST 594, 595 (1991). As Alan Krueger notes, terrorists tend to be educated and thus to have developed a political vocabulary. The utterly dispossessed, by contrast, lack the rhetorical arsenal necessary for the turn to violence and thus rarely engage in terrorism.
430. KRUEGER, supra note 230, at 7, 46-48 (suggesting terrorists are more likely to come from moderate-income and high-income countries than from low-income countries).
431. WIKTOROWICZ, supra note 239, at 15-16 (emphasis added).
432. Clifford Geertz, THE INTERPRETATION OF CULTURES 14 (1973).
433. Amy Gutmann, IDENTITY IN DEMOCRACY 14 (2003) ("Recognition of interests often follows from group identification rather than being given simply by the pre-existing interests of individuals apart from their group identifications.")
434. Post et al., supra note 253, at 176 ("[I]ndividual measures of success become increasingly linked to the organization and stature and accomplishments within the organization.").
435. George A. Akerlof & Rachel E. Kranton, Economics and Identity, 115 Q.J. ECON. 715, 717 (2000). Relevant here, Akerlof and Kranton observe that identity also underlies "a new type of externality." Id. They give the example of socialization into gender roles, and how a man wearing a dress creates externalities in the form of other men's anxieties about masculinity. Id. Analogously, an individual recruited to be a terrorist may experience new externalities as a result of exposure to "impure" cultures. These in turn may reinforce his turn toward the group.
436. Neal Kumar Katyal, Conspiracy Theory, 112 YALE L.J. 1307, 1317 (2003).
437. Id. at 1322.
438. Psychological research, explains Katyal, demonstrates that groups often polarize to "extreme attitudes and behaviors," and alter members' perceptions of their own preferences. Id. At 1316-21. There are feedback loops between group identity and group rewards.
439. e.g., id. At 1362-1363. Group polarization is "a predictable shift within a group discussing a case or problem. As the shift occurs. groups coalesce, not toward the middle of antecedent dispositions, but toward a more extreme position in the direction indicated by those dispositions."
440. Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 85 (2000) [hereinafter Sunstein, Deliberative Trouble];
441. Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets, 80 N.Y.U. L. REV. 962, 979-981, 985-986 (2005) [hereinafter Sunstein, Group Judgments] (comparing the function of deliberation in problem solving and the ability of individuals and groups to answer questions correctly).
442. Sunstein, Deliberative Trouble, supra note 280, at 82 (asserting that "[p]eople think and do what they think. relevant others think and do" thanks to informational cascades and reputational sanctions).
443. Id. at 107.
444. Id. at 98.
445. See WIKTOROWICZ, supra note 239, at 18 ("For Islamist groups, socialization is thus critical for mobilizing support and activism in the face of extensive costs and risks.").
446. Kruglanski & Fishman, supra note 243, at 206.
447. Taylor & Horgan, supra note 243, at 58, 61.
448. ROY, supra note 194, at 50.
449. Michael Walzer has suggested that "moral life is rooted in a kind of association that military discipline precludes or temporarily cuts off" because of the pressures of conformity, the presumption of superior orders' validity, and the pervasive need to participate in unreflective coordinated action.
450. MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 316 (1977). One way of seeing the moral valence of terrorist groups is an effort to re-create, or even heighten, this aspect of military life.
451. Marc Sageman succinctly calls it the "'bunch of guys' phenomenon": "cliques commonly produce social cohesion and a collective identity and foster solidarity, trust, community, political inclusion. and other valuable social outcomes." SAGEMAN, supra note 243, at 155-57;
452. see also RICHARDSON, supra note 189, at 48 (noting that many activists speak of an "intense feeling of camaraderie within the group")
453. Chong, supra note 264, at 2110 ("People will sometimes defend values that appear to run against their immediate self-interest in order to preserve social relationships that return long-term benefits.")
454. cf. Mariano-Florentino Cuéllar, The Untold Story of al Qaeda's Administrative Law Dilemmas, 91 MINN. L. REV. 1302, 1339-40 (2007) (noting al Qaeda's use of financial resources to secure loyalty). In his account of joining Hizb-ut-Tahrir, Ed Husain notes that members gained greater social standing within the group for "more extrovert[ed]" expressions of solidarity with the group.
455. ED HUSAIN, THE ISLAMIST 67 (2007).
456. See Kruglanski &Fishman, supra note 241, at 203 (rejecting the idea of a "uniform sociopsychological phenomenon" of the terrorist "syndrome")
457. Post et al., supra note 253, at 179 (describing how different terrorists justified their actions as a means to affect political change).
458. Daryl J. Levinson, Collective Sanctions, 56 STAN. L. REV. 345, 373-76 (2003).
459. Karsten Hundeide, Becoming a Committed Insider, 9 CULTURE & PSYCHOL. 107, 111 (2003) (emphasis added).
460. One example of ethical reorientation is al-Muhajiroun's use of the doctrine of takfir, or "the process of declaring a Muslim an unbeliever." WIKTOROWICZ, supra note 239, at 174. Al-Muhajiroun has developed an intricately exhaustive enumeration of reasons for declaring individuals takfiri, hence, moving them beyond the pale of ethical concern.
461. ROY, supra note 194, at 52.
462. see also id. at 316-19 (describing the formation of networks in Europe and the United States);
463. Gilles Kepel, THE WAR FOR MUSLIM MINDS: ISLAM AND THE WEST 250 (Pascale Ghazaleh trans., 2004);
464. Olivier Roy, THE POLITICS OF CHAOS IN THE MIDDLE EAST 144-45 (Ros Schwartz trans., 2008) (both noting the possibility of increasing cycles of alienation among Muslim youth in Europe).
465. REPORT ON LONDON BOMBINGS, supra note 27, at 16-17;
466. see also SLOOTMAN & TILLIE, supra note 232, at 5 (describing radicalization as a "social phenomenon").
467. Bruce Hoffman points out that the "terrorist is also very different from the lunatic assassin, who may use identical tactics," and distinguishes the "political" goals of a group from the "intrinsically idiosyncratic, completely egocentric and deeply personal" attitude of an individual violent actor, even one such as Sirhan Sirhan (Robert Kennedy's assassin), who acted for explicitly political ends. HOFFMAN, supra note 230, at 37. Hoffman argues that an individual acting alone is not properly categorized as a "terrorist." Id.
468. Nesser, supra note 256, at 334
469. see also Ian Buruma, MURDER IN AMSTERDAM: THE DEATH OF THEO VAN GOGH AND THE LIMITS OF TOLERANCE 193-95, 205-16 (2006) (recounting Bouyeri's involvement in the Hofstad Group).
470. Nesser, supra note 256, at 334-35. Evidence suggested that the group had planned attacks on Dutch public and governmental sites before being broken up by police. Id.
471. Farhad Khosrokhavar, QUAND AL-QAÏDA PARLE: TÉMOIGNAGES DERRIÈRE LES BARREAUX 11, 20-21 (2006).
472. Il faut. tenter de comprendre les mécanismes subjectifs qui leur donnent leur spécificité, commandant leur representation du monde et leur vécu, les sentiments religioux qui les animent." Id. In one of Khosrokhavar's fascinating interviews, one informant sketches his view of an unbridgeable gap between Islam and the West and specifically describes the separation as a failure of interpretation: "Il y a une histoire commune entre l'Occident et l'islam mais en fait, rien n'est commun. L'interpretation n'est pas commune." Id. at 178 (emphasis added).
473. 301. Cf. Farhad Khosrokhavar, INSIDE JIHADISM: UNDERSTANDING JIHADI MOVEMENTS WORLDWIDE 9-10 (2009) (noting the evidence that shows that "Jihadist cells are formed in relation to ties of family, friendship, local residence, and kinship relations").
474. ARENA & ARRIGO, supra note 243, at 230-31.
475. Post et al., supra note 253, at 176.
476. Id. at 175.
477. Bernard Rougier, EVERYDAY JIHAD: THE RISE OF MILITANT ISLAM AMONG PALESTINIANS IN LEBANON 21 (Pascale Chazaleh trans., 2007).
478. GEERTZ, supra note 275, at 14.
479. Rosen, supra note 273, at 595;
480. see also KHOSROKHAVAR, supra note 299, at 18 (emphasizing the coherence of "Jihadist ideology").
481. Winnifred Sullivan observes that the vast majority of religious practice in America is made up of "folkways," not "high tradition." SULLIVAN, IMPOSSIBILITY OF RELIGIOUS
482. FREEDOM, supra note 169, at 140-41, 146. In deciding which religious practices to recognize and protect, courts must decide what "counts legally [as] religion." Id. at 147. Sullivan argues that courts have placed themselves "at odds with the mainstream of American religion" by failing to focus on local practices. Id.
483. See supra text accompanying notes 38-57.
484. Anthropologists have long been acutely aware of "the difficulty of grasping the world of alien peoples-the many years of learning and unlearning needed, the problems of acquiring a thorough linguistic competence" and, perhaps more relevant here, the "both subtle and blatant" ways understanding is "directed or circumscribed by. informants." James Clifford, On Ethnographic Authority,
485. REPRESENTATIONS, Spring 1983, at 118, 122, 135.
486. There may be other factors cutting in favor of wider judgments. For example, al Qaeda and its affiliates have invested in "ideological training." Rohan Gunaratna, INSIDE AL-QAEDA: GLOBAL NETWORK OF TERROR 112-26 (3d ed. 2003). They have "intuitively grasped the enormous communicative potential of the Internet" in spreading their ideology. HOFFMAN, supra note 230, at 214-20.
487. See supra note 225 and accompanying text.
488. 314. See Lucas a. Powe, Jr., THE SUPREME COURT AND THE AMERICAN ELITE 1789-2008, at 232-39 (2009) (describing the Cold War historical context).
489. David Cole, Hanging with the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association, 1999 SUP. CT. REV. 203, 216.
490. Elfbrandt v. Russell, 384 U.S. 11, 19 (1966)
491. see also United States v. Robel, 389 U.S.
492. 258, 262 (1967) (noting the specific intent requirement of the Smith Act);
493. Scales V. United States,
494. 367 U.S. 203, 228-30 (1961) (finding the specific intent requirement to be "fairly implied" from the statute);
495. Wieman v. Updegraff, 344 U.S. 183, 191 (1952) (finding a statute that indiscriminately classified innocent activity with knowing activity to be an unconstitutional assertion of arbitrary power).
496. Greenawalt, supra note 107, at 266.
497. Ybarra v. Illinois, 444 U.S. 85, 91 (1979);
498. Maryland V. Pringle, 540 U.S. 366, 372 (2003) (upholding searches of all men in an automobile where narcotics were found).
499. See Hoffa V. United States, 385 U.S. 293, 300-03 (1966) (rejecting Fourth Amendment arguments against the use of informants).
500. Scales, 367 U.S. at 232-33.
501. See Alien Registration (Smith) Act of 1940, ch. 439, 54 Stat. 670 (codified as amended at
502. 18 U.S.C. §§ 2385, 2387 (2006)) (criminalizing advocacy of the forceful overthrow of government).
503. Yates V. United States, 354 U.S. 298, 339 (1957) (Black, J., concurring in part and dissenting in part). The record in Yates consisted of 14,000 pages.
504. Id. at 327 n.34 (majority opinion). Yates's prosecution for advocacy of "Marxist-Leninist principles" was "standard fare" in Smith Act cases. Geoffrey R. Stone, PERILOUS TIMES: FREE SPEECH IN WARTIME 413 (2004).
505. Holder V. Humanitarian Law Project, 130 S. Ct. 2705, 2724-27 (2010).
506. See id. at 2730 ("'The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. What [§ 2339B] prohibits is the act of giving material support." (quoting Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir. 2000))). The protection of membership simpliciter, but not membership plus any affirmative collaboration, in effect renders collective action impossible.
507. See id. at 2724-31 (affirming that the case was controlled by precedents dictating a high level of scrutiny but nonetheless liberally hypothesizing as to how plaintiffs' speech could aid proscribed terrorist organizations).
508. For a general explanation of path dependency, see Paul Pierson, Increasing Returns, Path
509. Dependence, and the Study of Politics, 94 AM. POL. SCI. REV. 251, 260-62 (2000). For applications in law, see
510. Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 603-06 (2001);
511. John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process, 26 CARDOZO L. REV. 543, 570 (2005);
512. R. George Wright, Originalism and the Problem of Fundamental Fairness, 91 MARQ. L. REV. 687, 694 (2008).
513. See Andrew E. Taslitz, Fortune Telling and the Fourth Amendment: Of Terrorism, Slippery Slopes, and Predicting the Future, 58 RUTGERS L. REV. 195, 234-35 (2005) (explaining how fresh acts of terrorism increase pressure to relax civil liberties).
514. Feltovich et al., supra note 225, at 631.
515. See William K. Rashbaum, At Trial on Subway Bomb Plot, Informer Finishes Star Turn,
516. N.Y. TIMES, May 9, 2006, at B2 (illustrating the mosque police informant's colorful testimony);
517. William K. Rashbaum, Closing Arguments in Trial of Subway Bombing Case, N.Y. TIMES, May 23, 2006, at B3 (elaborating on the entrapment defense of a subway plotter caught with help from the mosque informant)
518. William K. Rashbaum, Window Opens on City Tactics Among Muslims: Getting a Conviction and Causing Concern, N.Y. TIMES, May 28, 2006, at B29 (recounting courtroom revelations of the police informants' activity at an area mosque). For similar stories,
519. see John Caher, Terrorism Trial of Muslims Raises Issues of Entrapment, N.Y. L.J., Sept. 14, 2006, at 1 (reporting on the trial of businessmen accused of entering into a money laundering plot with an undercover agent posing as a terrorist);
520. Larry Keller, Disputes Bedevil Terrorism Arrests: Opinions Diverge on Whether Increased Post-Sept. 11 Arrests Are Justified or Effective in Fighting the War on Terror, PALM BEACH POST, June 26, 2005, at A1 (highlighting the dilemma posed in distinguishing "wannabees egged on by [an] undercover agent to make foolish boasts" and serious terrorists)
521. Walter Pincus, FBI Role in Terror Probe Questioned: Lawyers Point to Fine Line Between Sting and Entrapment, WASH. POST, Sept. 2, 2006, at A1 (detailing the role of FBI informants in a nascent terrorist cell and the possibility of entrapment).
522. William K. Rashbaum & Kareem Fahim, Informer's Role in Bombing Plot: Looking for Recruits in a Newburgh Mosque, N.Y. TIMES, May 23, 2009, at A1.
523. For a general analysis of the legal regulation of confidential informants,
524. see Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645 (2004).
525. Teresa Watanabe & Scott Glover, Man Says He Was FBI Informant, L.A. TIMES, May 23, 2009, at B1.
526. Robert Lambert, Empowering Salafis and Islamists Against Al-Qaeda: A London Counterterrorism Case Study, 41 PS: POL. SCI. & POL. 31, 32 (2008).
527. To be sure, information privacy is valuable to many people without respect to their links to crime or terror.
528. Lambert, supra note 333, at 32.
529. See, e.g., Teresa Watanabe & Paloma Esquivel, Muslims Say FBI Spying is Causing Anxiety: Use of an Informant in Orange County Leads Some to Shun Mosques, L.A. TIMES, Mar. 1, 2009, at B1 (describing community outrage and degradation of the FBI's reputation with the community as effects of the FBI's use of undercover informants in local mosques).
530. INT'L CRISIS GRP., supra note 212, at 14-15.
531. The Role of Local Law Enforcement in Countering Violent Islamist Extremism: Before the S. Comm. on Homeland Sec. and Gov. Affairs, 110th Cong. (2007) (statement of Michael P.
532. Downing, Commanding Officer, Counter-Terrorism/Criminal Intelligence Bureau, LAPD), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=483590e6-9f4e-4aa6-b595-8ca3791e4acb.
533. Richard Winton & Teresa Watanabe, LAPD's Muslim Mapping Plan Killed, L.A. TIMES, Nov. 15, 2007, at A1;
534. see also Richard Winton. et al., Outcry over Muslim Mapping, L.A. TIMES, Nov. 10, 2007, at A1 (noting "intense backlash" against the mapping plan and concerns among Muslim activists and civil libertarians that it amounted to "religious profiling").
535. Similar frictions arose in the United Kingdom around the government's "Prevent" strategy, which included local government agencies in counterterrorism strategies. Some Muslim community groups objected to "the requirement in the [Prevent] strategy for local authorities to have a 'sophisticated understanding of local Muslim communities.'
536. HOUSE OF COMMONS COMMUNITIES & LOCAL GOV'T COMM., PREVENTING VIOLENT EXTREMISM: SIXTH REPORT OF SESSION 2009-10, at 15 (2010), http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcomloc/65/65.pdf [hereinafter HOUSE OF COMMONS REPORT]. Non-Muslim ethnic groups also objected to the greater local government attention toward Muslims. Id. at 18.
537. See Tom R. Tyler, Stephen J. Schulhofer & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counterterrorism: A Study of Muslim Americans, 44 L. & SOC. REV. 365 (2010) (presenting empirical evidence that public cooperation in counterterrorism efforts is linked to public perceptions of police procedural justice).
538. KEPEL, supra note 294, at 8 ("The most important battle in the war for Muslim minds during the next decade will be fought not in Palestine or Iraq but in these communities of believers on the outskirts of London, Paris, and other European cities, where Islam is already a growing part of the West.").
539. Home Office v. Tariq, [2010] EWCA (Civ) 462, [2] (Eng.).
540. Federal courts have declined to review the merits of decisions to deny security clearances.
541. See Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir. 2005) ("Because the authority to issue a security clearance is a discretionary function of the Executive Branch and involves the complex area of foreign relations and national security, employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.");
542. Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999) (collecting like authority from other circuits).
543. James C. Scott, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED 54 (1998).
544. Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 484 (2006);
545. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373, 1427-28 (2000) ("Informational privacy. is a constitutive element of a civil society in the broadest sense of that term.").
546. Rumsfeld v. Forum for Acad. & Institutional Rights, 547 U.S. 47, 59 (2006) (stating that the government cannot withhold benefits from a person due the constitutionally protected exercise of free speech, even if the person is not entitled to the benefit).
547. Birt, supra note 91, at 701-02.
548. See HOUSE OF COMMONS, COMMUNITIES & LOCAL GOV'T COMM., PREVENTING VIOLENT EXTREMISM PATHFINDER FUND 2007/08: CASE STUDIES 4 (2007) (discussing the objectives of the Preventing Violent Extremism Pathfinder Fund, including establishing dialogues with communities and working with mosques and educational institutions, and deciding to increase the funding available to six million pounds for fiscal year 2007-2008);
549. see also HOUSE OF COMMONS, COMMUNITIES & LOCAL GOV'T COMM., PREVENTING VIOLENT EXTREMISM:COMMUNITY LEADERSHIP FUND GUIDANCE 3 (2008) (describing availability of funds for community groups)
550. Alan Travis, New Plan to Tackle Violent Extremism, GUARDIAN (U.K.), June 3, 2008 (describing the plan as a "nationwide 'deradicalisation' programme").
551. HM GOVERNMENT, THE PREVENT STRATEGY: A GUIDE FOR LOCAL PARTNERS IN ENGLAND 18 (2008).
552. Jessica Powley Hayden, Note, Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid, 95 GEO. L.J. 171, 179 (2006).
553. HOUSE OF COMMONS REPORT, supra note 340, at 21 (citation and quotation marks omitted).
554. Id. (citation and quotation marks omitted)
555. see also Vikram Dodd, Communities Fear Project to Counter Extremism Is Not What It Seems, GUARDIAN (U.K.), Oct. 19, 2010, http://www.guardian.co.uk/society/2009/oct/16/prevent-counter-islamic-extremism-intelligence (noting concerns about information sharing as a consequence of the Prevent strategy).
556. Philip Hamburger, More Is Less, 90 VA. L. REV. 835, 840 (2004) (citing the Toleration Act, 1689, 1 W. & M., c.18 (Eng.)).
557. CHRISTOPHER HILL, THE CENTURY OF REVOLUTION, 1603-1714, at 211-12 (1961).