Weeks ago, following pressure from local civil liberties groups and the Muslim community, Tennessee legislators altered an "anti-sharia" bill that would have criminalized the observance of Islam, eliminating all references to sharia from the bill.
The bill remains legally problematic.
“The bill now gives the attorney general and the governor extraordinary discretion to designate an organization as terrorist without notice, probable cause, or a meaningful opportunity to defend themselves,” says Hedy Weinberg, director of the ACLU of Tennessee.
For starters, the bill would authorize the Tennessee governor and attorney general to unilaterally designate purely domestic entities as "terrorist organizations," freezing their assets and criminalizing interaction with those groups as "material support for terrorism." Designated groups are offered no opportunity to challenge designations prior to them being made. Violent domestic groups such as the mob, the KKK, or the Aryan Nations are typically dealt with through the Racketeer Influenced and Corrupt Organizations Act, or RICO. Tennessee already has its own RICO bill. The new Tennessee bill doesn't require criminal charges as part of designation. For that reason, not only is the bill unnecessary in terms of neutralizing genuine criminal activity--it raises serious First Amendment and due process issues.
The Tennessee bill is based on a federal law that allows the federal government to designate foreign entities as "terrorist organizations." But the federal scheme only allows foreign, not domestic groups to be designated, owing to the wide latitude given the executive branch in implementing foreign policy.
"The broad scope of the federal scheme was tolerable in no small part because it effectively embargoed foreign groups, just as we might embargo a foreign state," explains Robert Chesney, a national security law expert who teaches at the University of Texas School of Law. "There’s no embargo analogue for wholly domestic groups, let alone domestic individuals."
There are both tactical and legal reasons why this is the case. "If you have the state of Tennessee designating [an organization], if the federal government wanted to lift the designation, they would remain designated in Tennessee," explains Daveed Gartenstein-Ross, Director of the Center for the Study of Terrorist Radicalization at the Foundation for Defense of Democracies. "That would create a conflict where the executive could not fully control American foreign policy because the state of Tennessee would have its own foreign policy.”
Moreover, the Department of the Treasury, which makes such designations, unlike the state government of Tennessee, has access to reams of classified information to justify its decisions. "There's a limit to how much intelligence is shared in this context, but [Treasury] has a broad range of information, including signals intelligence and human intelligence, and the state of Tennessee just doesn't have the same capacity," Gartenstein-Ross says.
Nor is Tennessee facing a surge of Islamist terrorism. “In terms of who actually comes up, when you're talking about international jihadis, there are only two cases,” says Karen Greenberg, Director of New York University's Center on Law and Security, which maintains a terrorism database. “They were both lame cases, both aspirational, not operational,” with no direct connection to international groups.
Weinberg remains convinced that the intent of the law is to target Muslims, not prevent terrorism. On Monday, the bill's sponsor, Tennessee State Senator Bill Ketron, distributed a DVD to state senators of a video made by a Boston-based organization called the Americans for Peace and Tolerance that showed a local Muslim leader Awadh Binhazim making inflammatory statements. The video, which features Melvin Bledsoe, the father of Carlos Bledsoe, who plead guilty to shooting two military recruiters and killing one, claiming that his son was radicalized by local Muslims in Memphis. The group also touts the dubious "Team B" report on sharia put together by Frank Gaffney's anti-Muslim Center for Security Policy on its webpage. As The Tennessean reported, the video also thanks the Tennessee Freedom Coalition, which last week hosted an event with anti-Muslim Dutch politician Geert Wilders.
Ultimately however, the bill, if it passes, may end up with a much more powerful foe than local Muslim groups in Tennessee.
“It looks to me that it doesn't serve any particular purpose, but it gets in the way of what the federal government is doing,” says Gartenstein-Ross. "There's a good argument that this is preempted by the federal government, and I suspect that if this passed, the federal government would challenge it.”
