Aziz Z. Huq

Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: Evidence from the United Kingdom

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a random-sample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate voluntarily in law enforcement efforts against terrorism. Cooperation is defined to have two elements: a general receptivity toward helping the police in anti-terror work, and a specific willingness to alert police upon becoming aware of a terror-related risk in a community. We find that procedural justice concerns prove better predictors for both measures of cooperation in counter-terrorism policing among British Muslims. Unlike previous studies of policing in the United States, however, we find no correlation between judgments about the legitimacy of police and cooperation. Rather procedural justice judgments influence cooperation directly.

Monopolizing Force? Police Legitimacy and Public Attitudes toward the Acceptability of Violence

Why do people believe that violence is acceptable? In this paper we study people’s normative beliefs about the acceptability of violence to achieve social control (as a substitute for the police, for self-protection and the resolution of disputes) and social change (through violent protests and acts to achieve political goals). Addressing attitudes towards violence among young men from various ethnic minority communities in London, we find that procedural justice is strongly correlated with police legitimacy, and that positive judgments about police legitimacy predicts more negative views about the use of violence. We conclude with the idea that police legitimacy has an additional, hitherto unrecognized, empirical property – by constituting the belief that the police monopolise rightful force in society, legitimacy can create a ‘crowding out’ effect on positive views of private violence. [131 words]

Algorithmic Decision Making and the Cost of Fairness

Algorithms are now regularly used to decide whether defendants awaiting trial are too dangerous to be released back into the community. In some cases, black defendants are substantially more likely than white defendants to be incorrectly classified as high risk. To mitigate such disparities, several techniques have recently been proposed to achieve algorithmic fairness. Here we reformulate algorithmic fairness as constrained optimization: the objective is to maximize public safety while satisfying formal fairness constraints designed to reduce racial disparities. We show that for several past definitions of fairness, the optimal algorithms that result require detaining defendants above race-specific risk thresholds. We further show that the optimal unconstrained algorithm requires applying a single, uniform threshold to all defendants. The unconstrained algorithm thus maximizes public safety while also satisfying one important understanding of equality: that all individuals are held to the same standard, irrespective of race. Because the optimal constrained and unconstrained algorithms generally differ, there is tension between improving public safety and satisfying prevailing notions of algorithmic fairness. By examining data from Broward County, Florida, we show that this trade-off can be large in practice. We focus on algorithms for pretrial release decisions, but the principles we discuss apply to other domains, and also to human decision makers carrying out structured decision rules.

Against National Security Exceptionalism

Terrorist attacks trigger novel policy responses. New policies selected by the federal executive after the 9/11 attacks strained against constitutionally permissible margins, and prompted diverse judicial responses. The resulting scholarly literature is largely normative. But the currently dominant accounts of national security jurisprudence also each include some descriptive claim about what courts in fact do. Each account further claims that courts do something distinctive in these cases. That is, in the course of making a prescriptive argument for what courts ought to do differently in national security cases, these accounts make a descriptive claim about what courts in fact do differently in this class of cases. I argue that this threshold descriptive claim – call it “national security exceptionalism” – finds no empirical support in at least one important class of post-9/11 cases concerning emergency detention policies. Instead, judicial responses to national security emergencies align closely with transubstantive trends in public law and judicial responses to non-security emergencies. Using the Supreme Court’s recent ruling in Ashcroft v Iqbal as a starting point, I examine the close and largely unexamined relationship between national security jurisprudence and the larger domain of public law doctrine and practice. Situating judicial responses to national security emergencies in a more general public law context draws attention to the role emergencies can play in catalyzing larger legal changes law, and the effect of transubstantive trends on emergency responses. It further may have a bearing on the emergent “national security” discipline in the legal academy.

What Can Constitutions Do?: The Afghan Case

What aims should guide a new constitutions drafters? Aspirational homilies about the rule of law, human rights, or democracy aside, there remains a surprising dearth of tools with which to gauge the success or failure of a constitution. We suggest four mid-range metrics for constitution-making: the legitimation of a new state; the channeling of political conflict; the dampening of agency costs from representational government; and the creation of national public goods. We apply these metrics to the 2004 Afghan constitution, arguing that it has had some modest successes in some areas, while failing in others.

Structural Constitutionalism as Counterterrorism

During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals do not translate into robust and empirically defensible generalizations for twenty-first-century security decisions. Structural constitutionalism thus cannot serve as a foundation for heuristics or shortcuts in the judicial consideration of new security measures. To the extent courts properly pass on the legality of counterterrorism policies, judges should rely instead on the ordinary tools of doctrine, statutory construction, and fact finding. The ensuing jurisprudence of counterterrorism would look much more like ordinary public law.

How to Lose a Constitutional Democracy

Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of newly installed President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socioeconomic environment and geopolitical shifts are what make the question a truly pressing one. Eschewing a focus on current events, this Article develops a taxonomy of different threats of democratic backsliding, the mechanisms whereby they unfold, and the comparative risk of each threat in the contemporary moment. By drawing on comparative law and politics experience, we demonstrate that there are two modal paths of democratic decay. We call these authoritarian reversion and constitutional retrogression. A reversion is a rapid and near-complete collapse of democratic institutions. Retrogression is a more subtle, incremental erosion to three institutional predicates of democracy occurring simultaneously: competitive elections; rights of political speech and association; and the administrative and adjudicative rule of law. We show that over the past quarter-century, the risk of reversion in democracies around the world has declined, whereas the risk of retrogression has spiked. The United States is neither exceptional nor immune from these changes. We evaluate the danger of retrogression as clear and present here (and elsewhere), whereas we think reversion is much less likely. We further demonstrate that the constitutional safeguards against retrogression are weak. The nearterm prospects of constitutional liberal democracy hence depend less on our institutions than on the qualities of political leadership, popular resistance, and the quiddities of partisan coalitional politics.

Community-Led Counterterrorism

ABSTRACT This article explores the idea that nonstate actors embedded in geographically and religiously defined communities have a distinctive role to play in responding to growing terrorist recruitment efforts in Europe and North America. The resulting “community-led counterterrorism” works through at least two causal channels, which I label “ideological competition” and “ethical anchoring.” Existing counterterrorism policing strategies do not harness these mechanisms and may well undermine them. Community-led counterterrorism thus presents an untapped opportunity, even as it raises new and difficult ethical questions for both Muslim minority communities in the West, as well as liberal democracies.

The Commander-in-Chief after 9/11

One of the most contested questions of constitutional law after September 11 has been the meaning of Article II, Section 2’s first clause: “The President shall be Commander in Chief of the Army and Navy of the United States.”1 This chapter aims to answer three questions: What disputes over the meaning of the so-called Commander-in-Chief Clause did post-9/11 policies and practices incite? Why did such controversies arise? And, how will such debates about the Commander-in-Chief Clause’s meaning likely be settled in the future?

Performance of constitutions: Transitional provisions

As detailed throughout this volume, assessing the performance of a constitution is a complex and subjective task, and perhaps even an impossible one. Problems include determining the objectives against which performance is to be measured, what can be positively and negatively attributed to the constitution, and what the counter-factual in any given case might be. We focus here on one aspect of constitutional implementation which is crucial to nearly all constitutional stories, and an issue which we often observe as a key practical challenge which does not receive the attention it deserves – that of constitutional transitional provisions (“transitional provisions”). Transitional provisions provide a series of directions through which the new constitutional regime is established, and the old order is phased out. During this state of “interregnum” between one constitutional order (or in some cases, a lack thereof) and the new order, transitional provisions must cover a series of issues including, inter alia , the establishment of new institutions and reform of continuing institutions; continuity of law and the status of the current law on the books, transitional justice processes and the timing and procedures for the first elections. The argument that more attention should be paid to the performance of transitional provisions is threefold. Firstly, as mentioned by Ginsburg and Huq in the introductory chapter, transitional provisions provide a “threshold bundle of steps” set forth by a constitution in the process of institutional development. As they rightly observe, these steps are generally methodologically simple to measure, and cannot only reveal how well implementation is progressing, but might also reveal where blockages might lie, and afford an opportunity to address such obstacles. Secondly, without the establishment of the fundamental building blocks of the new constitutional order, the performance of the constitution in terms of fulfilling its own goals and objectives is immediately subject to question. Cracks in the foundations will more often than not lead to significant challenges in constructing the new house.