Abstract
This paper will discuss the American response to Daesh in relation to those of a number of other countries including France and Canada as well as supranational institutions including the UN Security Council and the Council of Europe. It will be suggested that American First Amendment Culture and legislative gridlock have helped prevent the enactment of new emergency type laws enacted in other democracies. Moreover, it will be suggested that such a response may have some virtues compared to European approaches based on emergency powers, less restrained alternatives to the criminal sanction and the regulation of expression.
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Notes
- 1.
For an overview of these models, see Gross and Aoláin (2006).
- 2.
Pfander (2017). US officials have, however, been charged criminally by several European states, notably Italy, and European states have been held accountable in the European Court of Human Rights for their complicity in US-led renditions and black sites.
- 3.
Gross (2003), 1011.
- 4.
- 5.
Goldsmith (2009).
- 6.
- 7.
- 8.
Said (2015).
- 9.
For a fuller account of the Canadian response, see Forcese and Roach (2015).
- 10.
Huntington (1996).
- 11.
“Trump to focus counter-extremism program solely on Islam- sources” Reuters Feb. 2, 2017 at http://www.reuters.com/article/us-usa-trump-extremists-program-exclusiv-idUSKBN15G5VO.
- 12.
“Deadly attacks since 9/11” at http://securitydata.newamerica.net/extremists/deadly-attacks.html. The data also contains a much larger group of terror plots. See http://securitydata.newamerica.net/extremists/terror-plots.html.
- 13.
These incidents occurred in October 2014 and killed two members of the Canadian Forces as well as the two lone perpetrators. Even in 2014, this death toll was eclipsed by the killing of three police officers by a right wing extremist Justin Bourque. See Canadian Network for Research on Terrorism, Security and Society Canadian Incident Database at http://extremism.ca/results.aspx?Pivot=Year. Since that time, six worshippers in a Quebec City mosque were killed by a lone gun man in January 2017 in what many have characterized as an act of anti-Muslim terrorism.
- 14.
Two hostages were killed in a Daesh-related incident in the Lindt Café in Sydney in December 2014, and a civilian police employee was killed in Sydney in November 2015. See Global Terrorism Database at http://www.start.umd.edu/gtd/search/IncidentSummary.aspx?gtdid=201510020040.
- 15.
Bergen (2016), 83.
- 16.
“Fort Hood shooter writes to ISIS leader, asks to become ‘citizen’ of Islamic State” CNN News 29 August 2014 at http://www.cnn.com/2014/08/28/us/isis-fort-hood-shooter/index.html?hpt=hp_t2.
- 17.
Manny Fernandez, Serge F Kovaleski and Eric Schmitt, “Soldier’s Attack at Base Echoed 2009 Rampage” New York Times (4 March 2014) https://www.nytimes.com/2014/04/04/us/fort-hood-security-problems.html.
- 18.
US Country Report S/2006/397 See also Roach (2011), 227–229.
- 19.
Shane (2016) ch 6.
- 20.
James Dao, “A Muslim Son, a Murder and Many Questions” New York Times (16 February 2010).
- 21.
Bergen (2016) 66.
- 22.
‘Man Accused of Beheading a Female Coworker after Being Suspended from His Job Begs Judge to Let Him Plead Guilty and Die by Lethal Injection’ Daily Mail (20 May 2016) http://www.dailymail.co.uk/news/article-3600849/Man-accused-Oklahoma-beheading-scheduled-plea-hearing.html.
- 23.
Abby Ohlheiser, “What We Know about Alton Nolen, Who Has Been Charged with Murder in the Oklahoma Beheading Case” The Washington Post (30 September 2014) https://www.washingtonpost.com/news/post-nation/wp/2014/09/30/what-we-know-about-alton-nolen-who-has-been-charged-with-murder-in-the-oklahoma-beheading-case/.
- 24.
Jon Hurdle and Richard Pérez-Pena, “Gunman Said He Shot Philadelphia Policeman for ISIS, Police Say” The New York Times (1 August 2016) https://www.nytimes.com/2016/01/09/us/philadelphia-police-officer-wounded-in-ambush-on-his-patrol-car.html.
- 25.
Michael Schwirtz and William K. Rashibaum, “Attacker With Hatchet Is Said to Have Grown Radical on His Own” The New York Times (24 October 2014) https://www.nytimes.com/2014/10/25/nyregion/man-who-attacked-police-with-hatchet-ranted-about-us-officials-say.html.
- 26.
Camila Domonoske, “Number Of Police Officers Killed By Firearms Rose In 2016, Study Finds” National Public Radio (30 December 2016) http://www.npr.org/sections/thetwo-way/2016/12/30/507536360/number-of-police-officers-killed-by-firearms-rose-in-2016-study-finds.
- 27.
Manny Fernandez and others, “In Chattanooga, a Young Man in a Downward Spiral” The New York Times (20 July 2015) https://www.nytimes.com/2015/07/21/us/chattanooga-gunman-wrote-of-suicide-and-martyrdom-official-says.html.
- 28.
James Queally, “Seattle Man Says He Killed 4 in Wash., N.J. to Gain Revenge against U.S.” Los Angeles Times (20 August 2014) http://www.latimes.com/nation/nationnow/la-na-nn-seattle-shootings-confessions-20140820-story.html accessed 15 April 2017; “LGBT Americans Have Always Lived under the Threat of Violence. Will Orlando Force Straight People to Acknowledge It?” Los Angeles Times (15 June 2016) http://www.latimes.com/opinion/opinion-la/la-ol-violence-pulse-lgbt-queer-orlando-attack-massacre-20160614-snap-story.html, accessed 15 April 2017.
- 29.
Billy Wichert, “Accused Brendan Tevlin Killer Gets Lengthy Prison Term in Armed Robbery” NJ.com (20 January 2016) http://www.nj.com/essex/index.ssf/2016/01/accused_brendan_tevlin_killer_gets_lengthy_prison.html.
- 30.
‘Suspect in Fort Lauderdale Shootings Pleads Not Guilty’ The New York Times (30 January 2017) https://www.nytimes.com/2017/01/30/arts/esteban-santiago-fort-lauderdale-airport-shooting.html.
- 31.
“Denver slaying suspect says he supports the Islamic State” New York Times (17 February 2017).
- 32.
Department of Justice News Release at https://www.justice.gov/opa/pr/phoenix-man-convicted-conspiracy-support-isil-and-other-terrorism-related-offenses.
- 33.
Kevin Stankiewicz and T Rees Shapiro, “Trump Visits Ohio State Victims, Officer Who Killed Attacker” The Washington Post (12 August 2016) https://www.washingtonpost.com/news/grade-point/wp/2016/12/08/trump-to-visit-victims-of-ohio-state-university-attack/?utm_term=.f972a2464775.
- 34.
“Deadly Attacks Since 9/11” at http://securitydata.newamerica.net/extremists/deadly-attacks.html.
- 35.
Grinshteyn and Hemenway (2016), 271 Table 4.
- 36.
18 USC 2239 B. The 2015 amendment is contained in Pub L 114-23.
- 37.
Center on National Security, “Case by Case ISIS Prosecutions in the United States March 1, 2014-June 30, 2016” (2016).
- 38.
Ibid 18.
- 39.
See general Roach (2010).
- 40.
US v. Cromitie 727 F.3d 192, 207-08 (2d Cir, 2013).
- 41.
Eric Lichtblau, “F.B.I. Steps Up Use of Stings in ISIS Cases” The New York Times (7 June 2016) https://www.nytimes.com/2016/06/08/us/fbi-isis-terrorism-stings.html, accessed 15 April 2017.
- 42.
R. v. Nuttall 2016 BCSC 1404.
- 43.
Betsy Trumpener, “Crown Seeks ‘Terrorism Peace Bond’ for Couple Convicted Then Freed in B.C. Legislature Bomb Plot” CBC News (29 July 2016) http://www.cbc.ca/news/canada/british-columbia/crown-seeks-peace-bond-for-john-nuttall-and-amanda-korody-under-fear-of-terrorism-criminal-code-section-1.3701536.
- 44.
Holder v. Humanitarian Law Project 561 U.S. 1 (2010).
- 45.
Said (2015) 70.
- 46.
Public Law 114-23.
- 47.
2016 HR 1735.
- 48.
Ashcroft v. Iqbal 556 U.S. 662 (2009); Ashcroft v. al Kidd 563 U.S. 731 (2011) See generally Pfander (2017) chs. 4 and 5.
- 49.
Immigration Act, 2014 s.66
- 50.
Australian Citizenship (Allegiance to Australia) Act, 2016
- 51.
Afroyim v. Rusk 387 U.S. 253 at 257 (1967)
- 52.
Ibid at 262.
- 53.
This is not to say that there have not been attempts to implement citizenship stripping in the US. Senator Ted Cruz has long campaigned for citizenship stripping of terrorists, and then, President elect Trump proposed that those who burned the American flag have their citizenship stripped. Most, however, dismiss such proposals as clearly unconstitutional. David A Graham, “The Republican Vogue for Stripping Citizenship” [2016] The Atlantic. https://www.theatlantic.com/politics/archive/2016/11/the-republican-vogue-for-stripping-citizenship/508979/, accessed 15 April 2017.
Alan Feuer, “AR-15 Rifles Are Beloved, Reviled and a Common Element in Mass Shootings” The New York Times (13 June 2016) https://www.nytimes.com/2016/06/14/nyregion/ar-15-rifles-are-beloved-reviled-and-a-common-element-in-mass-shootings.html, accessed 15 April 2017.
- 54.
US v. Heller 554 U.S. 570 (2008) The Second Amendment also applies to state and local governments. Macdonald v. City of Chicago 561 U.S. 742 (2010).
- 55.
Kristina Peterson and Siobhan Hughes, “Senate Rejects Four Gun-Control Proposals” Wall Street Journal (21 June 2016) <http://www.wsj.com/articles/congress-latest-gun-law-effort-faces-another-likely-impasse-1466458575>.
- 56.
David M Herszenhorn and Emmarie Huetteman, “Democrats End Sit-In After 25 h, Drawing Attention to Gun Control” The New York Times (23 June 2016) https://www.nytimes.com/2016/06/24/us/politics/senate-gun-control.html.
- 57.
Carl Hulse, “Gun Control Wall, Bolstered by Republicans, Shows a Crack” The New York Times (29 June 2016) https://www.nytimes.com/2016/06/30/us/politics/gun-control-republicans-congress.html.
- 58.
Gross “Chaos and Rules” supra.
- 59.
“Aaron Driver, ISIS sympathizer, was planning ‘imminent’ attack, police say” CBC News August 11, 2016 at http://www.cbc.ca/news/canada/aaron-driver-imminent-attack-1.3716997.
- 60.
“French ask whether Priest’s killer, listed as a terrorist threat, could have been stopped” New York Times July 27, 2016 at http://www.nytimes.com/2016/07/28/world/europe/france-attack-priest-church-syria.html?_r=0.
- 61.
S.C. 2014 c. 22.
- 62.
S.C. 2015 c. 20.
- 63.
On the military tradition in US counter-terrorism, see Kent Roach “Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism” (2012) George Mitchell Law Review 1701 at 1721-23.
- 64.
“Operation Inherent Resolve” at https://www.defense.gov/News/Special-Reports/0814_Inherent-Resolve (last accessed 31 December 2016).
- 65.
Inspectors General Quarterly Report at 26 at https://oig.state.gov/system/files/oir_quarterly_march2016.pdf.
- 66.
Scott Shane “Drone strike statistics answer few questions and raise many” New York Times (July 3, 2016).
- 67.
“UK puts figure of ISIS fighters killed at half US figure” CNN News Dec 16, 2016 at http://www.cnn.com/2016/12/16/politics/uk-us-number-isis-fighters-killed/.
- 68.
“Killing terrorists, creating more” New York Times April 16, 2013 at http://www.nytimes.com/2013/04/15/us/letter-killing-terrorists-creating-more.html.
- 69.
“Islamic State and the Crisis in Iraq and Syria in Maps” at http://www.bbc.com/news/world-middle-east-27838034.
- 70.
“Trump’s Yemen Raid that Killed Nine Children: What Went Wrong” Newsweek Feb 9, 2017 at http://www.newsweek.com/trumps-yemen-raid-killed-nine-children-what-went-wrong-554611.
- 71.
Thronson (2013), 771–777.
- 72.
Smith v. Obama (US Dist Court) decided Nov 21, 2016 at https://www.justsecurity.org/wp-content/uploads/2016/11/Smith-Opinion-dismissing-case.pdf.
- 73.
Al-Aulaqi v. Obama, No. 10-1469, 2010 U.S. Dist. LEXIS 129601 (D.D.C. Dec. 7, 2010).
- 74.
Roach (2011).
- 75.
Gross (2003).
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I thank the Pierre Trudeau Foundation for funding a fellowship that facilitated this work.
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Roach, K. (2018). The Continued Exceptionalism of the American Response to Daesh. In: Auriel, P., Beaud, O., Wellman, C. (eds) The Rule of Crisis. Ius Gentium: Comparative Perspectives on Law and Justice, vol 64. Springer, Cham. https://doi.org/10.1007/978-3-319-74473-5_5
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