Excerpted From: Ahmed Al Rawi, Blocking Faith: How American Muslims Are Chilled Through the New Anti-Muslim Statutes and the Security Agencies' Surveillance in the Era of Digital Policing, 39 Touro Law Review 1 (2024) (235 Footnotes) (Full Document)

AhmedAlRawi01.jpegThe ongoing violation of the freedom of religion of American Muslims resulting from the U.S. government's two types of chilling effects (actions and laws) is a critical subject that needs to be discussed with the public. During the McCarthy era, the Supreme Court defined the chilling effect as any action or law that might hinder individuals from exercising their First Amendment rights in the U.S. The surveillance operations by U.S. intelligence agencies on American Muslims' religious activities are the first type of chilling effect (action) on this minority religious group, and they are carried out due to fear of Muslim individuals. Furthermore, the new wave of anti-Muslim statutes, such as Andy's law and anti-Sharia laws established in different states, are the second type of chilling effect--laws. These laws can lead to confusion among Muslim individuals about the limitation between exercising their freedom of religion and the punishment they could face for violating new statutes.

This Article argues that the U.S. government security agencies' surveillance operations (actions) that target American Muslims' religious activities and the new anti-Muslim statutes (laws) established in various states are clear violations of Muslim Americans' First Amendment right of freedom of religion. Additionally, this Article suggests the following three points to alleviate the chilling-effect problem imposed by the U.S. government on American Muslims. First, a legal framework must be implemented that balances national security concerns with the constitutionally protected rights held by the Islamic community, in order to avoid confusion when courts make rulings on these types of cases. Second, lawmakers need to revise the anti-Muslim laws to avoid the threat to American Muslims for exercising their freedom of religion. Third, there needs to be transparency concerning Executive Order 12,333, which has highly influenced the chilling-effect problem on American Muslims.

The next section of this Article discusses the chilling effect problem on American Muslims by touching on two points: (1) the violation of American Muslims' freedom of religion through the surveillance operations by U.S. security agencies; and (2) the violation of the American Muslims' freedom of religion through establishing anti-Muslim laws. Then, section three of this article discusses contemporary court cases related to the problem of the chilling effect and the violation of Muslims' freedom of religion by the U.S. government. Section four explains how the state secrets privilege works to violate Muslims' freedom of religion. Section five suggests legal frameworks to avoid confusion in court cases related to surveillance of American Muslims by U.S. government security agencies. Section six proposes revising the anti-Muslim laws to limit any possible violation of American Muslims' freedom of religion. Accordingly, section seven discusses the need for transparency regarding Executive Order 12,333 to reduce the chilling effect of legal problems on American Muslims.

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The actions and the laws of the U.S. government, represented by security agencies' surveillance operations of American Muslims and anti-Muslim statutes established by different states, raise a serious concern related to the chilling effect problem threatening the freedom of religious rights of this minority group in the U.S. The ongoing random electronic and physical surveillance operations by the U.S. government security agencies of American Muslims' religious activities illustrates the dangers of the chilling effect problem of this minority religious group. The problem lies in the fact that these surveillance processes on American Muslims are conducted neither with restrictions nor with any transparency as to the surveillance procedures followed by security agencies. Relying on an untenable presumption, the U.S. government alleged that Muslims' religious beliefs might pose a threat to the national security of the U.S. This presumption has been used to justify increased surveillance and control of Muslim religious activities by U.S. security agencies. As a result, the surveillance operations of U.S. government security agencies on American Muslims (i.e., action) are considered a real threat to exercising the freedom of religion for this minority group. Moreover, the anti-Muslim statutes established by various states are a second type of chilling effect that hinders American Muslims from practicing their religion freely without any obstacles. Specifically, the new wave of anti-Muslim statutes in different states has made American Muslims self-control their religious activities in order to avoid punishment for violating the new statutes. The anti-Sharia and Andy's laws are clear current examples of laws that have chilling effects on American Muslims.

The contemporary court cases discussed in this article, Fazaga and Hassan, are clear examples of the chilling effects American Muslim communities face in the U.S. as a result of security agencies' surveillance operations. Furthermore, the court cases discussed in this manuscript show the state of chaos in the U.S. courts regarding the surveillance of American Muslims. The reversing, remanding, and dismissing of rulings among different court levels illustrate the lack of a framework that could be used by judges while ruling in modern surveillance court cases related to violations of the freedom of religion rights of American Muslims.

The exceptionalism of the state secrets privilege is another major problem related to the chilling effects on American Muslims' religious activities. Specifically, in the courts, the U.S. government security agencies hide evidence of their surveillance operations on American Muslims and rely on the state secrets privilege claim. The U.S. government security agencies state that disclosing sensitive and secret information to the public could harm national security. Besides, the U.S. security agencies claim that they have the right to hide this evidence from the public under the state secrets privilege for the sake of protecting the national security of the U.S. The problem here is that the U.S. government can claim that anything is a privileged state secret, and there is no way for anyone to evaluate how that decision was made. Thus, documents are secret because the government says they should be secret--period. The use of the state secrets privilege by government security agencies can be seen in many cases related to the surveillance of Muslims in recent years. Fazaga has been considered among recent controversial cases regarding the use of state secrets privilege on American Muslims. Fazaga, like many others related to the surveillance of American Muslims, shows the problem of security agencies using the state secrets privilege in any lawsuit. In particular, under the state secrets privilege claim, the security agencies could be excused from any legal liability when violating the freedom of religion of American Muslims. U.S. lawmakers must therefore review the use of state secrets privilege in lawsuits, especially those related to the violation of American Muslims' freedom of religion resulting from the security agencies' surveillance of this minority group.

From another perspective, this paper suggests a legal framework regarding the surveillance of American Muslims by U.S. government security agencies in order to resolve the confusion of judges in surveillance court cases. The main issue is related to how different courts analyze and view the security agencies' surveillance cases of Muslims from different angles. While judges at the district court level rely on state secrets privileges, other judges rely on FISA to analyze the surveillance methods of security agencies. Regarding this confusion at different court levels by different judges, an essential legal question that could solve it could be seen in Fazaga: “Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displace the state-secrets privilege and authorize a district court to resolve the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence?” Therefore, this paper suggests that judges must thoroughly examine the chilling effect and its impact on American Muslims' freedom of religion while analyzing the surveillance cases involving security agencies and this minority group.

This paper also suggests the need for revising anti-Muslim laws that are considered a part of the chilling effect and a violation of American Muslims' freedom of religion. The new wave of anti-Muslim laws in many states might lead Muslims to become afraid of practicing their religion freely due to the fact that these anti-religious laws prevent Muslims from freely and peacefully worshipping. Since 2010, a wave of enacted and proposed anti-Sharia laws has arisen in different states. In many states that enacted anti-Sharia laws, those states considered adherence to Sharia law a real threat to the national security of the U.S. States like Tennessee clearly communicated their belief that Sharia law encourages jihad and terroristic actions and therefore must be banned. The problem lies in the fact that banning Sharia law through enacted anti-Sharia laws means restricting Muslims from practicing their religion freely, such as worshipping and going to mosques to practice certain religious deeds. Therefore, this Article argues that the anti-Muslim laws must be revised by U.S. lawmakers in order to guarantee the protection of American Muslims' freedom of religion, especially in cases involving the chilling effect.

This Article also suggests the need for more transparency regarding Executive Order 12,333 in order to reduce the chilling effect on American Muslims. The main problem centers on the fact that E.O. 12,333 is considered a regulation that has vague and broad restrictions not particularly directed to the freedom of religion that is protected by the First Amendment. Such governmental restrictions might deter Muslims from practicing their religion freely. Consequently, a chilling effect might exist and raise legal concerns about violating the freedom to practice Islam that is protected under the First Amendment rights. Therefore, this Article recommends that E.O. 12,333 needs more transparency regarding the surveillance procedure by the U.S. government security agencies, especially regarding American Muslims' religious activities. Additionally, this Article illustrates that increasing the transparency of E.O. 12,333 could help in decreasing the chilling effect problem that occurs as a result of the ambiguous surveillance procedure of this order.

Lastly, this Article recommends that U.S. lawmakers pay attention to the freedom of religion violation of American Muslims through the two contemporary types of the chilling effect: actions and laws. As the violation of the freedom of religion of minorities has happened in the U.S. throughout its history, judges and U.S. lawmakers need to see the real problem of the freedom of religion violation on American Muslims without paying attention to race or religious background, as Judge Thomas L. Ambro stated in Hassan:

We have been down similar roads before. Jewish-Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight--that loyalty is a matter of the heart and mind, not race, creed, or color.

Not surprisingly, the history of the U.S. reveals abuses of minorities' civil rights that still exist today and need to be eradicated.

Ahmed Al Rawi is a Ph.D. candidate at the Donald P. Bellisario College of Communications at Penn State.