Digital Commons Network^™

Terrorism And Right-Wing Extremism: History And Comparative Definitions, Kwame B. Antwi-Boasiako, Caleb Grant Hill

Faculty Publications

Recent narratives on terrorism have focused on the definitions. Terrorism is not a new phenomenon, but the problem resides in its definition and who is defining it. Conceptualizing terrorism depends on which framework one utilizes. The use of different lenses to define the term has contributed to the lack of global acceptance of what constitutes terrorism, hence the difficulty of gathering data for analysis. It is also a conundrum when powerful nations legitimize their terrorist activities against weaker ones. This, unfortunately, has led to the subjectiveness of every attempt in the literature to objectively provide a globally acceptable definition. Using …

Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells

Faculty Publications

The incitement standard announced in Brandenburg v. Ohio is one of the most familiar tests in the Supreme Court's jurisprudence. It prohibits government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity. Brandenburg's standard has become a pillar of free speech law, allowing government officials to protect public safety by punishing only speech intended and likely to create an imminent danger of harm, while protecting even the most abhorrent of speakers from suppression of their speech simply because government officials fear or dislike it. Terrorist advocacy, however, is putting pressure on …

Terrorism And The Military Institution: History And Definitions, Kwame B. Antwi-Boasiako, John Hami Hasbun

Faculty Publications

Recent narratives on terrorism have focused on the definitions. Terrorism is not a new phenomenon but the problem resides in its definition and who is defining it. Conceptualizing terrorism depends on which framework one utilizes. The use of different lenses to define a crime has contributed to lack of global acceptance of what constitutes terrorism hence the difficulty of gathering data for analysis. It is also a conundrum when a powerful nation legitimizes its terrorist activities against a weaker one through the use of military power. This, unfortunately, has led to the subjectiveness of every attempt in the literature to …

Reflections On The Christchurch Massacre: Incorporating A Critique Of Islamophobia And Twail, Cyra Akila Choudhury

Faculty Publications

On March 15, 2019 in Christchurch, New Zealand, a white supremacist entered a mosque full of worshippers and gunned down over 50 people. He was welcomed into the house of worship as Muslim immigrants and converts were about to start their Friday prayers. News of the attack spread quickly across the globe. Social media news feeds and online sources provided near-instantaneous updates. There were calls to prioritize the lives and stories of the victims and survivors. Although there were calls not to glorify or even humanize the shooter, people understandably professed interest in his writings and his motivation. Once it …

Performance, Politics, And The War On Terror: "Whatever It Takes", Lindsey Mantoan

Faculty Publications

Lindsey Mantoan reviews Performance, Politics, and the War on Terror: "Whatever It Takes" (by Sara Brady) for TDR: The Drama Review.

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Y. Cover

Faculty Publications

Court opinions in the terrorism context are often distinguished by fact-finding that relates to risk assessment. These risk assessments — inherently policy decisions — are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result, courts are apt to defer to the government and require less evidence in support of measures that curtail civil …

Packaging Inspiration: Al Qaeda’S Digital Magazine Inspire In The Self-Radicalization Process, Susan Currie Sivek

Faculty Publications

Al Qaeda is today a fragmented organization, and its strategic communication efforts now focus largely on recruiting individuals in the West to carry out “individual jihad” in their home countries. One Al Qaeda–affiliated publication, Inspire, represents an unusual use of the digital magazine format and content for recruitment. This study examines the content and design of Inspire to determine how the magazine may advance the self-radicalization that it seeks to induce in its readers. This analysis finds that the magazine weaves together jihadist ideology, a narrow interpretation of Islam, and appropriations of Western popular culture to maximize the publication’s …

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Faculty Publications

This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws are the latest …

Eco-Terrorism Or Eco-Tage: An Argument For The Proper Frame, David Thomas Sumner, Lisa M. Weidman

Faculty Publications

What does the term “terrorism” mean? Is it accurate to lump illegal acts that destroy property but carefully avoid harming people into the same category as acts clearly intended to kill? Is this a difference of kind or just of degree? While we (the authors) don't generally endorse the destruction of property as a method of generating social change, we believe that the destruction of property is fundamentally different from the intentional killing of people; therefore, to label acts of obstruction, trespassing, vandalism, sabotage, or arson as “terrorism” is inaccurate and has the potential to damage one's understanding of real …

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg

Faculty Publications

Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …

Terrorism Financing Indicators For Financial Institutions In The United States, Richard K. Gordon

Faculty Publications

At least since the Financial Action Task Force (FATF) first published its Forty Recommendations, financial institutions in FATF-compliant jurisdictions have been required to implement preventive measures that require FIs to identify customers, establish client profiles, monitor for unusual transactions, review those transactions to see if there was suspicion that they involved the proceeds of crime and, if so, report the transaction to the authorities in the form of a suspicious transaction report (STR). When these requirements were first established, neither financial institutions nor their supervisors/regulators had much experience as to what in a client's profile and the client's patterns of …

Defining International Terrorism: Historical Reality And The African Experience, Kwame B. Antwi-Boasiako

Faculty Publications

Violence is terror and terror is violence. Liberators, freedom fighters, revolutionaries and terrorists have all become labels of convenience. Terrorism, historically, has been institutionalized by some governments to their advantage. Academicians and politicians fail to agree on the issues surrounding terrorism hence defining terrorism has become an academic puzzle. The ambiguity in its definition has also contributed to lack of any universal comprehensive acceptable theory. The literature on terrorism by and large accused weaker nations of supporting terrorism. This paper argues otherwise by using the African experience, slavery and colonization, to question the literature on terrorism. Nations throughout history have …

Searching For Remedial Paradigms: Human Rights In The Age Of Terrorism, Frances Howell Rudko

Faculty Publications

Nine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists' extreme human rights violations without violating international humanitarian law.

Pakistan’S Nuclear Weapons Program And Implications For Us National Security., Michael Tkacik

Faculty Publications

This article analyzes Pakistan’s nuclear weapons program and the characteristics of the environment in which the program is nested. These characteristics include Pakistan’s history of internal and external instability; nuclear saber rattling during crises; support for Islamic terrorism in order to advance state goals; indigenous production of many elements of its nuclear forces; possession of delivery and command and control systems with destabilizing characteristics; and finally, nuclear doctrine that appears to advocate first use of nuclear weapons. The article argues that the characteristics of Pakistan’s nuclear weapons program generate threats to US national security interests. The article examines six interrelated …

"Over-Kill": The Ramifications Of Applying New York's Anti-Terrorism Statute Too Broadly, Louis Jim

Faculty Publications

(Excerpt)

On October 31, 2007, a jury in Bronx County, New York convicted Edgar Morales, a gang member, of manslaughter in the first degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and conspiracy in the second degree. Those convictions arose out of a shooting that occurred on August 18, 2002. That night, Mr. Morales and a group of his friends "showed up uninvited at a christening party at St. Paul's Lutheran Church" in New York City. Sometime that evening, "several people commandeered the disc jockey's microphone, and before long a fight broke …

A Narrative Account Of The Wider Impact Of The 7 July 2005 London Bomb Attacks, Shahid Bux, Sarah M. Coyne

Faculty Publications

The London bombings on 7 July 2005 highlighted the prevailing terrorist threat to the UK. The present study addressed the psychological response of community (n=294) indirectly exposed to the attacks to discern he broader impact and effects of terrorism. Qualitative content analysis was used to develop a profile of emotions and responses to the attacks. This was supplemented by the use of linguistic analysis demonstrating the enormous heterogeneity and complexity of responses to terrorism. In light of previous work on the wider impact of terrorism, the present study highlighted a relatively restrained impact of terrorism. Notwithstanding this observation, responses were …

Canada (En)Counters Terrorism: Us-Canada Relations And Counter-Terrorism Policy, Veronica Kitchen, Karthika Sasikumar

Faculty Publications

This paper examines the role of identity in shaping counter-terrorism policy in Canada. We show that identity functions in three ways: constitutively by defining the range of choices a state is likely to consider; strategically by being a resource to buttress arguments based in economic or sovereignty interests; and heuristically by using identity as a marker for risk. This three-faceted explanation helps explain why, despite close economic, social, and political links between Canada and the United States which might lead us to expect Canada to follow American counter-terrorism policy, Canadian counter-terrorism policy often diverges from the American lead.

Bus Bombings And A Baby's Custody: Insidious Victories For Terrorism In The Context Of International Custody Disputes, Andrew Zashin

Faculty Publications

This article will address the problematic intersection of terrorism and child custody battles. The most immediate consequences of a terrorist attack are loved ones lost and buildings reduced to rubble. These losses are devastating, shocking and scary. But to end an analysis of terrorist victories with a body count is a fatal mistake. Americans fervently shout we cannot let "them" win, but how do we decide if they are winning? What do the terrorists want? It is not the goal of terrorists to simply kill Americans, causing death and destruction. That is merely a horrific means to their end. Terrorists …

A Tale Of Two Networks: Terrorism, Transnational Law, And Network Theory, Christopher J. Borgen

Faculty Publications

Talk of networks and "network theory" has become almost ubiquitous in the field of counterterrorism. Terrorist organizations are networks. Terrorists have been empowered by the Internet, ethnic diasporas, and cell phones—networks all. Many of the putative targets of terrorists—electrical grids, oil pipelines, and transportation systems, to name a few—are themselves networks. And, perhaps less often mentioned, terrorists are increasingly hampered by national and international laws that foster cooperation and coordination among states—a network of laws.

From "smart mobs" to "net wars," from narco-trafficking to the Internet, network theory has provided insights into decentralized social organizations and their coordinated action. Both …

On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin

Faculty Publications

At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …

Regulating The Business Of Insurance: Federalism In An Age Of Difficult Risk, Robert H. Jerry Ii, Steven E. Roberts

Faculty Publications

Natural disasters and terrorism events of a massive scale are "difficult risks." They are difficult (or, if large enough, impossible) to insure, and they present enormous risk-management challenges. Indeed, we are now in an era when difficult risks are the dominant feature of the risk-management landscape. These kinds of risks are inevitably multi-jurisdictional in nature, and managing them effectively requires a cohesive, comprehensive national catastrophe policy involving ex ante prevention and mitigation measures, effective risk allocation through insurance mechanisms, and ex post victim-compensation strategies. Although our nation is not yet close to establishing a much-needed and increasingly discussed national catastrophe …

Foreword: Terrorism On Trial, Michael P. Scharf, Amy E. Miller

Faculty Publications

While the Lockerbie approach is currently out of vogue, are there nonetheless lessons from Lockerbie that policy makers can draw on in determining how to best use law as a weapon against terrorism in the future? To explore this important and timely question, the Frederick K. Cox International Law Center assembled a group of high level United Nations officers, former U.S. government officials, noted prosecutors and defense counsel, and prominent journalists and scholars for a day-long symposium at Case Western Reserve University School of Law on October 8, 2004, entitled "Terrorism on Trial." The conference, which was cosponsored by the …

Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf

Faculty Publications

This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach?

Review Of The Final Frontier, Michael F. Russo

Faculty Publications

No abstract provided.

Is Civil Authority Business Interruption Coverage A Soft Risk In The Post-9/11 World, Robert H. Jerry Ii

Faculty Publications

Tthe question whether 9/11 has changed the insurance world cannot be answered simply In some respects, nothing is different, but it is difficult to be sanguine about this assessment. Terrorism is less predictable in terms of magnitude and frequency of loss, and this raises doubts about the capacity of the industry with respect to future events. Until the uncertainty with respect to the terrorism risk abates and markets stabilize, problems of cost and availability will persist. This, of course, has been true in other insurance sectors in the past, and temporary dislocations do not necessarily justify government intervention. If, however, …

Insurance, Terrorism, And 9/11, Robert H. Jerry Ii

Faculty Publications

The question of whether 9/11 has changed the insurance world cannot be answered simply. In some respects, nothing is different, but it is difficult to be sanguine about this assessment. Terrorism is less predictable in terms of magnitude and frequency of loss, and this raises doubts about the capacity of the industry with respect to future events. Until the uncertainty with respect to the terrorism risk abates and markets stabilize, problems of cost and availability will persist. This, of course, has been true in other insurance sectors in the past, and temporary dislocations do not necessarily justify government intervention. If, …

Security And Freedom: Are The Government's Efforts To Deal With Terrorism Volatile Of Our Freedoms?, Michael P. Scharf

Faculty Publications

Introducation to the Proceedings of the Canada-United States Law Institute Conference on Canada-U.S. Security and the Economy in the North American Context, Cleveland, Ohio, 2003.

War: Rhetoric And Norm-Creation In Response To Terror, Tawia Baidoe Ansah

Faculty Publications

Everything is very simple in war," said Carl von Clausewitz, "but the simplest thing is difficult." This essay will suggest that the resort to the language of war, as "natural" and "starkly simple" as it is, nevertheless has a profound impact on how the law's intervention is shaped, or how the laws governing the transnational use of force are interpreted to accommodate a "war" on terrorism. I argue that although "war" is absent from the principal international legal instruments by which states are guided (and obligated) in their relations with other states, the concepts suppressed by this elision have an …

Crisis And Constitutionalism, Michael J. Gerhardt

Faculty Publications

No abstract provided.