The Signaling Function of Religious Speech in Domestic Counterterrorism

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a proxy for terrorism risk in order to resolve this signaling problem. This Article analyzes the legal and policy significance of state reliance upon religious speech as a predictor of terrorism risk. Constitutional doctrine under the Religion Clauses does recognize interests implicated by the signaling function of religious speech. Yet analysis suggests that such doctrinal protection is fragile. Symptomatic of a wider inflexibility of pre-9/11 constitutional doctrine, this doctrinal protection shows little capacity for responsive change. The absence of constitutional barriers, however, does not mean government should persist in relying on religious speech as a signal. Rather, analysis of counterterrorism policy concerns suggests another path. Institutional considerations and an emerging social science literature on terrorism suggest that religious speech is ill suited to the signaling role it now plays. Instead, empirical social science on terrorism points to the epistemic superiority of a different signal: the close associations of a terrorism suspect. The Article concludes by examining the constitutionality of such a signal and elaborating ways that insight from the new social science of terrorism can be realized without compromising important individual interests. I. Introduction Since the September 11, 2001 terrorist attacks, law enforcement agencies in the United States and Europe have strived to anticipate and to intervene early against alleged terrorist conspiracies.1 Governments focus investigative or regulatory resources on a point substantially before the occurrence of violence, sometimes before clear evidence demonstrates violence to be imminent. This preemptive approach, however, creates an informational problem for governments. They must act without the factual predicates that typically flag criminal violence. Governments, that is, often lack reliable signals of the intention to commit or abet violence and must instead identify new signals of dangerousness to serve as proxies for overt evidence of a terrorist threat. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably the central challenge for law enforcement tasked with prevention of further terrorist attacks on American soil. The task has taken on new urgency after a wave of domestic-source terrorism incidents in late 2009 and early 2010.2 Those attempts prompted the White House in the May 2010 National Security Strategy to "underscore[] the threat to the United States and our interests posed by individuals radicalized at home."3 My aim in this Article is to evaluate one proxy that governments use as a solution to this signaling problem. Religious speech has to an underappreciated extent4 become for law enforcement in both the United States and the United Kingdom a signal to identify high-risk terrorist threats. Consider the following examples:5 * Federal law enforcement officers arrest a Pakistani immigrant recently returned from what might have been training in a foreign terrorist camp. Unable to prove that the suspect in fact received training, the Government charges him with a "material support" offense6 in relation to a planned future attack. To show the suspect's intent to commit this future attack, the Government relies on an Arabic note found in his wallet at the time of arrest that reads, "Oh Allah, we place you at their throats, and we seek refuge in you from their evil. …