Aziz Z. Huq

89 Texas L. Rev. 833

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In this Article, Huq analyzes the legal and policy significance of state reliance on religious speech as a predictor of terrorism risk.  In attempting to preempt terrorist conspiracies, law enforcement agencies in the United States and Europe are faced with the problem of acting without information that typically indicates criminal violence.  They lack reliable signals of alleged terrorist intent.  Law enforcement agencies have come to consider religious speech a proxy for such intent.  Yet, asks Huq, is such reliance constitutional?  The Religion Clauses seem to restrain this.  Huq wonders if such reliance is wise.

From a constitutional perspective, this use of religious speech as proxy for terrorist intent indirectly casts a shadow on religious liberties.  Using a religious phrase or doctrine as evidence of terrorist intent, argues Huq, creates an incentive for others who follow that religion not to use that phrase or doctrine.

From a counterterrorism perspective, religious speech also appears to be a poor proxy for terrorist intent. First, government is ill-equipped, according to Huq, to make judgments about the meaning of religious speech.  Second, empirical and social science studies suggest that the close associations of a suspect would be a superior signal, as variance in religious speech has been shown not to correlate with the risk of terrorist violence.  The emergence of terrorism tends to be associated with the presence of insular groups that have separated from the cultural or subcultural mainstream.  Identifying these groups, rather than searching for particular kinds of religious speech, may provide better guidance as to the likely incidence of terrorist violence.

In conclusion, Huq argues that because of emerging evidence that association rather than religious speech better correlates to terrorist intent, government should change its focus from religious speech, thus alleviating the constitutional concerns that the current approach indirectly fosters.