Material Support Prosecutions and their Inherent Selectivity

The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory scheme for foreign policy purposes. This Article explores the dynamics of the designation process and material support prosecutions, highlighting the selectivity inherent at every turn, which tells who and from what major monotheistic faith the terrorist threat emanates

Palestinian Refugees: Host Countries, Legal Status and the Right of Return

Given the Palestinian refugees’ precarious legal status in their host countries, recognition of the Palestinian right of return is not only legally viable, but also crucial for the establishment of a just and lasting peace in the Middle East. That racially driven demographic considerations have been employed up until now to derail binding and directly applicable laws and practices, as well as keep the refugees in a state of legal limbo in their host countries, cuts to the heart of the fundamental injustice currently plaguing the Middle East. No amount of obfuscating the facts and the law can tarnish the applicability and relevance of the right of return, and Palestinian refugees and their advocates remain in both a strong moral and legal position to continue to call for the recognition of that right.Considérant la précarité du statut légal des réfugiés palestiniens dans leur pays hôte, la reconnaissance du Droit au retour des Palestiniens est non seulement légalement viable mais aussi un facteur essentiel pour qu’une paix juste et durable soit établie au Moyen Orient. L’usage – d’inspiration raciste – de facteurs démographiques pour faire échouer jusqu’à présent les lois et les pratiques exécutoires directement applicables et ainsi maintenir les réfugiés dans un état juridique incertain dans leur pays hôte, est au coeur de l’injustice fondamentale qui empoisonne la situation au Moyen-Orient. Toutes les tentatives en vue d’obscurcir les faits et la loi n’arriveront jamais à ternir l’applicabilité et la pertinence du Droit au retour. Les Palestiniens et leurs défenseurs restent donc en position forte, aussi bien au plan moral que légal, pour continuer leur revendication pour la reconnaissance de ce Droit

The Terrorist Informant

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions

Limitless Discretion in the Wars on Drugs and Terror

The wars on terror and drugs have been defined, largely, by what they lack: a readily identifiable opponent, a clear end goal, a timeline, and geographical boundaries. Based on that understanding, this Article discusses the increasingly expansive discretion of American authorities to prosecute individuals where the wars on terror and drugs intersect. Through laws such as the Maritime Drug Law Enforcement Act, the ban on providing material support to foreign terrorist organizations, and the narco-terrorism statute, the United States exercises a kind of universal jurisdiction to pursue anyone, anywhere it believes its laws are being violated. Wielding the power of federal criminal prosecution on a global scale is a natural result of characterizing the anti-drug and anti-terror campaigns as wars, yet with such power comes essentially limitless police and prosecutorial discretion. However, such a broad jurisdictional scheme risks exporting several of the most unjust and ineffective practices of both the war on terror and the war on drugs, which threaten to impact disproportionately minority communities, based on impermissible factors like race and religion. Specifically, this Article compares the war on drugs to the war on terror, arguing that the paradigm of fighting terror has led to a war model that deeply informs the complexities and shortcomings of the war on drugs. The phenomenon is one we should not ignore or downplay, as the vast discretion enjoyed by law enforcement and prosecutors to charge individuals with no ties to the United States represents an expansion of the reach of American laws that needs to be understood and more thoroughly debated. As a matter of public policy and constitutional interpretation, courts should be wary of broad assertions of discretion to fight wars of dubious provenance. While the United States, as a sovereign nation, can pursue its interests in stopping trafficking in narcotics and political violence against its own citizens, those interests must be defined more narrowly, lest the country transform into a sort of world police force without an international mandate

The Politicization of Criminal Prosecutions

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system\u27s heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the act of protest in and of itself as criminal. This is in contrast to rightwing protest activity, which must be violent to merit prosecutorial attention. The chief example here is that of the January 6 riot, where the violent activities of the participants have driven the prosecutorial response, not the protest itself The difference between the two types of protest has clear racial implications as well, as noted below. When foreign policy interests drive a prosecution, the authorities can be more explicit in articulating racial and religious biases, with criminal defendants often powerless to defend themselves, even if their culpability is questionable at best. Even when defendants are found not guilty, the possibility of extended immigration detention looms. In other words, criminal prosecution articulates a national interest that encompasses a constructed racial component, which captures both minorities and foreigners as representative of the threat