PREVIOUS ISSUES OF MJR&L ARE NOW AVAILABLE AT THE MLAW JOURNAL REPOSITORY
Volume 27.1 (2021)
ARTICLES
HISTORICAL RECKONING AND THE LAW
Law in the Shadows of Confederate Monuments
Article by Deborah R. Gerhardt
Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.
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INDIGENOUS GENOCIDE:
The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations
Article by Sophia Shepherd
This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. Most of the women were sterilized without their knowledge or without giving valid consent. It explains the obstacles that Connie Redbird Uri and other Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations.
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ESSAYS
REFLECTIONS ON 9/11
Origin Stories: Critical Race Theory Encounters the War on Terror
Essay by Natsu Taylor Saito
Stories matter. They matter to those intent on maintaining structures of power and privilege, and to those being crushed by those structures. In the United States, the space to tell, and to hear, our stories has been expanding. This means that the histories and lived realities of those who have been excluded, particularly people of color, are seeping into mainstream discourse, into the books our children read, the movies and television shows they watch, and the many websites comprising social media. Critical race theory has played a role in this expansion. It insists that we recognize the legitimacy of the stories of those deemed “Other” because they have been erased or distorted beyond recognition in the dominant narrative. 3 Critical race theory has helped ensure that the legacies of genocide and broken treaties, of the cruelties imposed upon enslaved persons, of the forced inclusion and exclusion of those regarded simply as disposable labor, have worked their way into the realm of what can be talked about. Critical race scholars have exposed immigration injustices and called out xenophobia and Islamophobia. All this discomfits those who benefit, or believe they benefit, from the status quo.
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REFLECTIONS ON 9/11
State Sponsored Radicalization
Essay by Sahar F. Aziz
Where was the FBI in the months leading up to the violent siege on the U.S. Capitol in 2021? Among the many questions surrounding that historic day, this one reveals the extent to which double standards in law enforcement threaten our nation’s security. For weeks, Donald Trump’s far right-wing supporters had been publicly calling for and planning a protest in Washington, D.C. on January 6, the day Congress was to certify the 2021 presidential election results. Had they been following credible threats to domestic security, officials would have attempted to stop the Proud Boys and QAnon from breaching the Capitol perimeter. Yet when the day came, the mob of pro-Trump extremists seemed to catch law enforcement by surprise. They seized the Capitol, ransacked congress members’ offices, and openly posted photos of their destruction and their weapons online. In the preceding two decades, the U.S. government has poured money into a behemoth national security apparatus. The FBI’s annual budget ballooned from $3 billion in 1999 to nearly $10 billion today. Much of this 300% increase went to countering terrorism with a mandate to surveil, investigate, and prosecute “homegrown terrorists.” In no uncertain terms, the directive was for the FBI to target Muslim communities.
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REFLECTIONS ON 9/11
Material Support Prosecutions and their Inherent Selectivity
Essay by Wadie E. Said
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.
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REFLECTIONS ON 9/11
American Informant
Essay by Ramzi Kassem
Part of my childhood was spent in Baghdad, Iraq, during the rule of Saddam Hussein. At that time, the regime offered free and universal education and healthcare. Literacy rates in the country surpassed much of the Arabic-speaking world and, indeed, the Global South. As the celebrated Egyptian intellectual, Taha Hussein, famously put it: “Cairo writes; Beirut prints; and Baghdad reads.” Booksellers were everywhere in Baghdad. Its people read voraciously and passionately debated literature, poetry, and a range of other subjects. But what struck me, even as a child, was the absence of sustained talk about politics in bookshops, markets, and other public spaces. I knew that adults could not stay away from the topic of politics in more intimate, private settings, where a deeper level of trust usually reigned. Once you entered the public sphere, however, discretion about politics—and especially local politics—clearly became the better part of valor. Iraqi society had been so thoroughly infiltrated by elements of Hussein’s intelligence services that ordinary people knew to tread with extreme caution. After all, the person standing within earshot at a bustling Baghdad market, overhearing your conversation—or maybe even your direct interlocutor— could be an informant. And the stakes were high: incarceration, torture, or death. That was an early introduction to the valency of informants—their capacity to interact with the society that surrounds them and their distorting effect on it. The lesson has colored my subsequent work on surveillance, including this reflection on the contemporary role of informants in the United States.
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REFLECTIONS ON 9/11
The Ban and its Enduring Bandwidth
Essay by Khaled Ali Beydoun
This Essay is a contribution the Michigan Journal of Race & Law’s special issue marking the 20th anniversary of September 11, 2001 and the ensuing War on Terror. It reflects on Executive Order 13769, widely known as the “Muslim Ban,” years after it was signed into law, as an extra-legal catalyst of state-sponsored and private Islamophobia that unfolded outside of the United States.
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REFLECTIONS ON 9/11
The World of Private Terrorism Litigation
Essay by Maryam Jamshidi
Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing the belief that those groups are predisposed to engage in or support terrorism. This short Article provides a brief overview of the world of private terrorism litigation. It begins by describing the various federal tort statutes on terrorism—including their fraught relationship with foundational tort law norms. It explains the connection between those laws and the U.S. government’s terrorism prosecutions, as well as its other terrorism-related priorities. It ends by demonstrating how private terrorism suits reinforce discrimination and prejudice against Arabs and Muslims that are reflected in criminal terrorism prosecutions. In focusing on private terrorism litigation, this Article highlights how private parties are furthering the government’s counterterrorism work, as well as how private terrorism suits reinforce the state’s endemic discrimination against Arabs and Muslims in the counterterrorism realm.
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REFLECTIONS ON 9/11
A Religious Double Standard: Post-9/11 Challenges to Muslims’ Religious Land Usage
Essay by Asma T. Uddin
Muslims in the United States face real limits on their religious freedom. Numerous influential individuals and organizations even posit that Islam is not a religion and that, therefore, Muslims do not have rights to religious freedom. The claim is that Islam is a political ideology that is intent on taking over the country and subverting Americans’ constitutional rights. This narrative has gained momentum since the attacks of September 11, 2001 and continues to be amplified and disseminated by a well-funded cadre of anti-Muslim agitators. One area where its effects can be seen clearly is in religious land use, where a concerted effort to deprive Muslims of basic rights frustrates the aims and principles of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
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REFLECTIONS ON 9/11
9/11 Impacts on Muslims in Prison
Essay by SpearIt
It is no understatement to say that September 11, 2001, is the most important date in the history of American Islam. From this day forth, Muslims would become a target for social wrath and become vilified like at no other time in American history. In one fell swoop, Muslims became the most feared and hated religious group in the country. While analysis of the impacts on Muslims tends to focus on Muslims outside of prison, it is critical to recognize that Muslims in prison were no exception to the post- 9/11 hostilities directed at Muslims. They experienced similarly heightened levels of Islamophobia and discrimination. The main goal of this essay is to consider the War on Terror in the prison context in the years following the events of 9/11. The work aims to assess how fear and anger seeped into prisons and became the means of repressing Muslims and casting them as a unique threat to national and institutional security. Although time has proved these attitudes unjustified and alarmist, they have taken a toll on those in prison and made life more difficult for individuals already existing in some of the harshest conditions in the country.
Michigan Journal of Race & Law 