09.22.2016 0

Fight a constitutional war on terror—before it’s too late

By Robert Romano

As originally published at http://www.lifezette.com/polizette/fighting-terror-with-the-constitution/

With recent Islamic State-inspired terrorist attacks in New York, New Jersey, and Minnesota, the nation is once again focusing on the continued radicalization of Muslim-Americans by Islamic State — and what, if anything, the federal government can do to identify terrorists before bombs start exploding.

How did the New York bombing suspect Ahmad Khan Rahami, an Afghan-born American citizen, and Minnesota stabber Dahir Adan, a Somali refugee who was shot and killed by a former police chief, become radicalized Islamists? Was it at their local mosques? On the internet? While on overseas trips?

It might not catch every lone wolf, but the Justice Department should not be standing in the way of old-fashioned police work that has succeeded in the past because of overblown fears about profiling.

These are the key questions facing law enforcement and intelligence officials. It is the way to finding new terrorists before they act. Given the torrent of attacks in Paris, San Bernardino, Orlando, New York, New Jersey, and Minnesota, it appears that ISIS possesses a unique capability to radicalize Muslims in ways al-Qaida only ever dreamed of.

A clue comes from Abu Bakr al-Baghdadi’s July 4, 2014 sermon, in which he declared the global caliphate and himself as its self-proclaimed ruler, the caliph. When the enemy speaks, perhaps we should listen. Here, al-Badhdadi was speaking to the Ummah.

Islam, for all intents and purposes, is as much a nationality, culture, and even a geographic region as it is a religion. Ummah in Arabic means “nation,” and depending on the interpretation, could refer to the whole Islamic nation or community. The caliphate, both in history and its modern iteration sought by Islamic State, are examples of attempts to bring a single government or rule to the entire Ummah — that is, all Muslims in the world.

The Ummah is a critical concept for the West to comprehend in considering who the enemy is and how they identify themselves.

The key is that the enemy’s identity will not be written on his or her passport.

The dilemma is that those radicalized by Islamic State will not recognize the legitimacy of secular governments anywhere, since their goal is hegemony of the Ummah. Looking at their passports to check which countries they traveled to will matter a lot less than identifying a belief in this goal.

In other words, you do not need to be from or have traveled to Syria, Iraq, or other terror havens to believe in the hegemony of the Ummah — but you do need to be a Muslim.

In that context, the recent spate of attacks were all attempts to expand the Ummah to other nations outside the current geographic world of Islam. So how do intelligence and law enforcement agencies identify adherents who believe in this radical notion of nationhood?

And how do we stop the killers as a society while still respecting the U.S. Constitution?

It’s not as easy as it sounds. Not every Islamic State follower is going to leave Facebook manifestos broadcasting their plans — or talk about it on the phone or via email or text message. Or even read instructions on how to complete their plans online. Mass surveillance may sound great, but besides the very real constitutional concerns that have been raised, signals intelligence like the National Security Agency’s capabilities so far have failed to preemptively identify these recent Islamic State attackers.

Homeland Security checks every single person who travels through airports into the United States. They can see where everyone traveled while overseas. But none of these identifiers helped the government capture recent attackers like Rahami, who visited Afghanistan two years ago, or the San Bernardino killer, Syed Farook, who also visited Saudi Arabia before his attack and who obtained a fiancé visa for his new spouse, Tashfeen Malik.

So what to do?

Republican presidential nominee Donald Trump has proposed treating domestic terrorists as enemy combatants — presumably even if they are citizens. But the proposal raises obvious Fifth Amendment-due process concerns, Americans for Limited Government Foundation and General Counsel Nathan Mehrens noted, pointing to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld.

“The nutshell is, if you are a U.S. citizen you are entitled to receive information on why you are classified as an enemy combatant, and an opportunity to challenge this before a neutral decision-maker” like federal courts, Mehrens said.

Given this hurdle, Trump’s proposal appears reactive since it would only come into application after a terrorist attack has been committed. Otherwise, very clear evidence of a planned attack would be needed to meet the threshold in Hamdi in order for an enemy combatant invocation to be sustained.

There is also Trump’s proposal to limit immigration from regions known for terrorism. In a June 13 speech at Saint Anselm College in Manchester, New Hampshire, in response to the terrorist attack in Orlando, he said, “The immigration laws of the United States give the president the power to suspend entry into the country of any class of persons that the president deems detrimental to the interests or security of the United States, as he deems appropriate.”

Here, Trump is referring to 8 U.S.C. 1182(f), a broad grant of power by Congress under the heading, “Suspension of entry or imposition of restrictions by President,” which states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In fact, there are currently 16 such presidential travel restrictions in place against certain countries.

At least one of those proclamations dates back to 1981. And President Obama is no stranger to these restrictions, either. He has issued two.

Agree or disagree with Trump’s proposal, here Trump would be standing on solid constitutional grounds. Congress has full power to regulate immigration under Article I of the Constitution, and this explicit congressional grant to the president to suspend immigration in a national security situation is uncontested. Besides, no immigrant possesses a natural right to travel here. If there’s an emergency, there’s an emergency, and the president can shut down the border.

Others such as Department of Homeland Security whistleblower Philip Haney have revealed the Obama administration has willfully blinded itself to tell-tales signs of radicalization of Muslims, techniques that were used after 9/11 to nab potential killers.

If law enforcement comes into clear information about a potential radical terrorist, officers can target sting operations on them and develop probable cause — the same way they bust drug dealers. Offer radicals an opportunity to engage in terrorism. When they accept, arrest them.

It might not catch every lone wolf, but the Justice Department should not be standing in the way of old-fashioned police work that has succeeded in the past because of overblown fears about profiling. Targeted stings and using undercover agents are well-grounded constitutionally. It may be the only way to stop killers before they get a chance to attack us.

U.S. Rep. Pete King (R-N.Y.) over the years has proposed wider scrutiny of radical mosques — but this could be rife with constitutional obstacles as well. Surely a good idea, and yet easy First Amendment challenges emerge, as well as a Fourth Amendment challenge if the searches are not responding to anything specific or attempting to establish probable cause.

Rather than general surveillance then, a better approach would be targeted federal, state, and local law enforcement stings that have agents masquerading as terrorists to root out potential sleeper cells based in mosques. The government might announce that you don’t know where these stings are or where they might pop up, and then a deterrent — however limited — comes into view, with specific warrants only when probable cause emerges. Again, the constitutionality of undercover agents is well-grounded.

In the process, the government could recruit moderate imams in a community-based approach to curtailing and creating social pressure against radical Islamist extremism. Then, when a sleeper cell gets popped, these imams are out there in the media assuring everyone that they’re not going to let a few rotten apples spoil the whole bunch — and otherwise are available to foster communities where terrorism becomes socially unacceptable, and al-Baghdadi’s radical teachings on the Ummah are explicitly denounced.

Some will scoff at a community-based approach, but it has its merits. Immigration restrictions, more vetting, mosque monitoring and surveillance can only go so far. There are millions of Muslims who already live in the U.S. legally. Therefore, without the participation of Muslim communities, we may not stand a chance at getting a handle on this problem. These communities must be assisted to help regain awareness of Islamic State’s target audience for radicalization: young Muslims. Parents and families have to be involved, for they may be the final warning system that can catch the killers before they act.

All these constitutional options and more must be considered by policymakers immediately. The danger is that if there is a catastrophic nuclear, chemical, or biological attack by terrorists, and tens of thousands of Americans or more are killed, the American people will not be looking for a constitutional solution. They will be looking for a military solution — with potential challenges to constitutional freedoms. Martial law, mass surveillance, checkpoints — you name it. Really, it’s a race against time.

Could constitutional law ever be suspended in the event of a major terrorist attack? It’s probably better to never find out. That is why it’s up to government at every level to use the legal tools it has to combat these threats — before it is too late. Right now, it looks like we’re leaving a lot on the table, increasing the risk that the big one will hit.

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