Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Targeting Muslims and Civil Liberties Prevention:
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations
Introduction
CVE seeks to prevent the proliferation of extremist
ideologies; though previous programs have shared this
American Muslims have borne the brunt of measures taken
aim, CVE was the first to do so as an explicit part of its
by federal, state, and local governments and law
strategy. All of these approaches taken in the name of
enforcement agencies aimed at preserving and advancing
national security in the post-9/11 era are unconstitutional,
national security in the aftermath of the 9/11 attacks. The
as evidenced by both their strategic frameworks and their
passage of the USA PATRIOT Act in 2001 was an
effects on Muslim communities.
inflection point in increasing securitization. Granting law
enforcement agencies the authorization to enhance their This article will elucidate the deficiencies in the
surveillance capabilities became the impetus for constitutionality of the CVE program. The first section
ever-expanding counterterror programs.
provides a brief history of the CVE, including an outline of
the three pilot programs in Boston, Los Angeles, and
These programs included divisions for research into the
Minneapolis, and characterizes the prominent
causes of terrorism itself. The prevailing theories on terror
radicalization theories underpinning CVE programs,
advanced by research analysts at the FBI and NYPD
highlighting the central premise: an assumed causal
identified adherence to Salafism or ?jihadi? interpretations
relationship between adherence to Islam and participation
of Islam as the primary precursors to extremist violence.
in violent extremism. The second section, in reviewing
These radicalization theories, coupled with new capacities
three relevant Supreme Court cases, addresses the
as a result of expanded security apparatuses, led to
unconstitutionality of the CVE program based on its
unprecedented intelligence gathering programs, both overt
violation of freedom of speech under the First
and covert. The National Security Entry-Exit Registration
Amendment. The third section analyzes whether the
System required male non-citizens entering the United
targeting of entire Muslim communities by the CVE
States from Muslim-majority countries to register with
programs can meet the strict scrutiny standard for
their local Immigration and Customs Enforcement office in
burdening freedom of religion, a right protected by the
an effort to track ?potential terrorists.? The NYPD Muslim
First Amendment. The fourth section considers whether
Surveillance Program recruited and supervised thousands
the CVE program, motivated by blatant anti-Muslim
of informants engaged in ?warrantless, blanket
animus, violates the prohibition against the establishment
surveillance of Muslim communities? in New York City,
Pennsylvania, New Jersey, and parts of Connecticut. 1 of an official religion set forth in the First Amendment.
This
The article concludes that the CVE program is
information gathering on supposed ?centers of terrorism?
unconstitutional in all three regards? infringing on
furthered de facto criminalization and created an air of
freedom of speech, burdening the free exercise of religion,
suspicion toward Muslim communities.
and discriminating against American Muslims on the basis
It is in the context of enhanced surveillance and
of religion.
counterterrorism efforts in the post-9/11 era that the
Countering Violent Extremism (CVE) Task Force arose. It
can be distinguished from previous programs by two main
characteristics. First, instead of unilateral action on the part
of government and law enforcement, CVE seeks to work
with community partners to combat extremism. Second,
Countering Violent Extremism Task Force
The Countering Violent Extremism Task Force is a
program, housed in the Department of Justice and the
Department of Homeland Security, that was unveiled by
the Obama administration in August 2011 with the purpose
1. Asad Dandia, ?Bloomberg?s NYPD Spied On Me For Being Muslim. He Has Never Apologized,? Washington Post, February 20, 2020.
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