Aziz on Selective Enforcement of Material Support Laws Against Muslim Charities

Sahar F. Aziz (Tex. Wesleyan U. School of Law) has posted Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities. The abstract follows.

The laws that prohibit providing material support to terrorism are the linchpin of the preventive counterterrorism paradigm. These laws are often the fall-back criminal provisions employed when the government cannot prove terrorism charges. But they are so broad and vaguely worded that they effectively criminalize a myriad of activities that would otherwise be constitutionally protected. Moreover, as the government is not statutorily required to prove that the defendant had a specific intent to support terrorism, it has carte blanche to prosecute a broad range of legitimate activities, such as charitable giving, peace building, and human rights advocacy. The Department of Justice, with the Supreme Court’s blessing, has consequently criminalized training and advocacy in support of nonviolence on the justification that such activities legitimize a designated group or individual. The government’s standards for what it deems as “legitimizing” are so broad that then- Solicitor General Elena Kagan went so far as to call for prosecuting lawyers for filing an amicus brief on behalf of a terrorist organization. Read more

Volokh on the Efficacy of Faith-Based Prisons

Sasha Volokh has been writing a series of deeply interesting and thoughtful articles on the phenomenon of the faith-based prison, focusing especially on the effectiveness of faith-based prisons in reducing recidivism and in other ways.  Readers interested in the subject will find much to admire in Sasha’s careful and provocative work: see here and here.  For criticism of Sasha’s views, see this short reply by Giovanna Shay. 

For my own take on faith-based prisons — which focuses neither on empirical nor constitutional questions, but instead on the conceptual position, historical and contemporary, of (religious) penance in punishment theory — see this piece.

US Government Grants Tribe Permit to Sacrifice Bald Eagles

The US Fish and Wildlife Service this month granted a permit to the Northern Arapaho Tribe to capture and kill two wild bald eagles a year for use in religious ceremonies. Although some conservation and animal-rights groups question the need for killing, suggesting the tribe use the carcasses of eagles killed accidentally instead, the tribe maintains that wild birds are necessary. The tribe had filed a lawsuit against the Service to force the grant of the permit, but the Service says its decision was unrelated to the pending litigation. Federal law protects bald and golden eagles, but the government has granted permits for killing eagles in religious ceremonies to several Native American tribes.

Rienzi on the Constitutional Right Not to Kill

Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.

Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Read more