Questioning Law Enforcement: The First Amendment and Counterterrorism Interviews
Law enforcement interviews are sometimes viewed as among the least intrusive and least objectionable investigative methods in the government’s counterterrorism arsenal. Yet FBI and Customs and Border Protection interviews of U.S. Muslims in the terrorism context involve greater coercion and stigma than prevailing accounts recognize. While such interviews have almost entirely escaped scholarly attention, I argue that as common, direct, and visible encounters between individuals in the U.S. Muslim community and the U.S. government, interviews inform targeted individuals’ and communities’ sense of “belonging” and inclusion in the United States. Moreover, interviews triggered by individuals’ political, religious, or cultural expression or association – those that are based on “First Amendment profiling” – impose particularly grave stigmatic costs and chilling effects on expression. First Amendment profiling, while sometimes justified, is wrong both where the government deliberately seeks to suppress speech and where investigations undertaken for a legitimate law enforcement purpose sweep too broadly in burdening lawful speech and association. I contend that although courts are deeply divided as to which investigations warrant judicial review, and how rigorous that review should be, existing First Amendment doctrine offers the potential for courts to question the questioners in an important segment of cases. Courts should employ heightened scrutiny to evaluate First Amendment profiling rather than categorically defer to law enforcement justifications.