An Analysis Into the Debate Revolving Birthright Citizenship and Illegal Immigration

By Jordan Leonard

In fall 2018 President Trump made waves in the political and Constitutional establishment by alluding to an executive order which would end the idea of birthright citizenship as it is currently understood. The President’s idea is certainly controversial[1] (as with most things President Trump has done). The first argument made by those critical to this idea, is that changing birthright citizenship is forbidden by the Fourteenth Amendment.[2] Section 1 of the Fourteenth Amendment clearly reads “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”[3]

Critics of the President’s proposal have focused on the wording of the Fourteenth Amendment to criticize the plan. For example, CNN opined “[s]uch a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: ‘[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.’” (emphasis added)[4] The ACLU argued “[t]he President cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear.”[5]

President Trump was also criticized by members of his own party. For example, Senator Chuck Grassley was quoted as saying “[i]t seems to me born in the United States is pretty simple, subject to the jurisdiction there of might be a little more debatable by lawyers and I am not a lawyer but it seems to me it would take a constitutional amendment to change that as opposed to an executive order.”[6] Paul Ryan, the former Speaker of the House, also criticized the President’s plan as violating the Fourteenth Amendment—“I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. . .”[7]

Although the President’s plan to end birthright citizenship has been largely criticized on the grounds of the Fourteenth Amendment (this essay does not analyze the President’s plan to do so by executive order), Republican Senator Lindsey Graham of South Carolina vowed to introduce legislation that would be similar to the President’s proposed executive order.[8] Further, the Vice President weighed in on the matter by arguing that the President’s proposal to end birthright citizenship to children of illegal immigrants may not run afoul of the Fourteenth Amendment[9] (however an executive order may  run still afoul of the Constitution). Vice President Pence argued “‘The Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally.’” Senator Chuck Grassley later made a formal statement echoing the Vice President’s argument :

Birthright citizenship for the children of permanent resident immigrants under the Fourteenth Amendment is settled law, as decided by the U.S. Supreme Court in United States v. Wong Kim Ark. There is a debate among legal scholars about whether that right extends to the children of illegal immigrants. . .[11]

Vice President Pence and Senator Grassley’s arguments therefore define the parameters of this discussion—does Section 1 of the Fourteenth Amendment require birthright citizenship to children of illegal immigrants born in the United States?

Senator Grassley rightly points to the Citizenship Clause of Section 1 of the Fourteenth Amendment, and to United States v. Wong Kim Ark, 169 U.S. 649 (1898), as the most relevant case on the matter. But what exactly was the Citizenship Clause intended to accomplish and what exactly did the Wong Kim Ark Court decide?

The Fourteenth Amendment was the second of the three post-Civil War amendments and was ratified in 1868.[12] The Thirteenth Amendment, ratified in 1865,[13] eliminated slavery in the United States[14]; the Fourteenth Amendment granted civil rights to former slaves (and greatly expanded rights of all Americans against states);[15] and the Fifteenth Amendment, ratified in 1870,[16] granted political rights to former (male) slaves.[17]

The Citizenship Clause of the Fourteenth Amendment reads “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The Supreme Court in in United States v. Wong Kim Ark explained the Citizenship Clause’s

main purpose doubtless was, as has been often recognized by [the United States Supreme Court], to establish the citizenship of free [African Americans], which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, 1857 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.[18]

Prior to the adoption of the Fourteenth Amendment’s Citizenship Clause, however, “national citizenship [was] derivative of state citizenship, except in cases involving the naturalization of immigrants and the regulation of federal territories.”[19] The Fourteenth Amendment changed this dynamic. Instead of being a citizen of a state first, the Citizenship Clause “made clear that all Americans were in fact citizens of the nation first and foremost, with a status and set of birthrights explicitly affirmed in a national Constitution.”[20] Therefore, the Citizenship Clause removed the authority of the states to revoke the citizenship of former slaves.

Read this way, the Citizenship Clause could plausibly be understood much like every other provision of the Fourteenth Amendment—to limit the power and authority of the states.[22] In turn, Section 5 of the Fourteenth Amendment suggests that Congress would be responsible for carrying out the Citizenship Clause.[23] But, if the Fourteenth Amendment, as a whole, was intended to expand the power of the Federal Government,[24] it would seem that a reading of the Citizenship Clause which requires the citizenship at birth for the children of illegal immigrants would in fact limit Congress’ powers under Article 1 Section 8 Clause 4—“[t]o establish a uniform rule of naturalization.”[25]

To the best of my knowledge, the Fourteenth Amendment has not largely been argued to place limits on Congress’ Article I powers. Even in extreme cases, such as segregated schools, the Supreme Court could not rely on the Fourteenth Amendment. Instead, in Bolling v. Sharpe, 347 U.S. 497 (1954), a companion case to Brown v. Board of Education, 347 U.S.483 (1954),[26] the Supreme Court held the Equal Protection Clause of the Fourteenth Amendment (also contained in Section 1 of the Fourteenth Amendment) did not limit the powers of the federal government.[27] Therefore, the Supreme Court relied on the Due Process Clause of the Fifth Amendment to eliminate segregation in the District of Columbia’s public schools.[28] If the Citizenship Clause were read to require birthright citizenship to the children of illegal immigrants, it would also create a Constitutional loophole that would limit Congress’ Article 1 Section 8 Clause 4 powers.

A counter argument, however, would be that Congress did intend to limit itself through the Citizenship Clause. The Supreme Court in Wong Kim Ark reasoned that after enshrining birthright citizenship in The Civil Rights Act of 1866,[29] Congress intended to fortify birthright citizenship in amendment as opposed to the standard legislative process.[30] Nonetheless, any argument that would potentially change Congress’ Article I powers should not be taken lightly.

Next, as the Vice President correctly pointed out, and Senator Grassley echoed, the Wong Kim Ark decision did not directly address the question of whether the Citizenship Clause mandates birthright citizenship for children of illegal immigrants born in the United States.[31] Instead, the question presented in Wong Kim Ark was very specific:

whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’[32]

The Supreme Court answered this question affirmatively.[33] Critics of the President’s proposal, further, argue that the Wong Kim Ark decision accurately captures the whole of the legislative intent behind the Fourteenth Amendment—to “extend birthright citizenship to non-U.S. nationals.””

However, the Supreme Court in Wong Kim Ark did not explicitly go this far. As indicated above, the question presented was very narrow,[35] and the specific issue never arose because Wong Kim Ark was not born in the United States to illegal immigrants. [36]

However, the Wong Kim Ark Court does indicate that there are only two primary exceptions (outside of the exception for children born to members of Indian Tribes[37]) to the general rule that persons born in the United States become citizens at birth. These exceptions are: the children of foreign diplomats, and children of “alien enemies in hostile occupation.”[38] However, others have argued children of illegal immigrants should not obtain birthright citizenship, and point to the earlier case of Elk v. Wilkins, 112 U.S. 94 (1884).[39] In Elk, the question presented was

whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residency among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution.[40]

The Supreme Court held that he was not a United States citizen under the Citizenship Clause.[41] The court reasoned “an Indian cannot make himself a citizen of the United States without the consent and cooperation of the government.”[42] Therefore, some commentators have argued birthright citizenship should not extend to the children of illegal immigrants because the United States government has not consented to their presence.[43]

However, the obvious counter argument to the requirement of “consent” is, as Professor Kamp points out, that “consent” does not appear in the Citizenship Clause.[44] Nonetheless, it is not much of a leap to question why a Native American who was born in the territorial United States could not make himself a citizen without consent of the United States, but illegal immigrants can make their children citizens by a transgression of the laws of the United States.[45]

President Trump will certainly face an uphill battle if he intends to do away with birthright citizenship for the children of illegal immigrants via executive order.[46] However, as Senator Grassley suggests, the Constitutionality of eliminating birthright citizenship for children of illegal immigrants through legislation may have more room for interpretation.[47]

That being said, any legislation which seeks to end birthright citizenship for the children of illegal immigrants is still on shaky ground.[48] There is evidence that shows “the legislative record as a whole makes unmistakably clear that the Senators understood the Fourteenth Amendment to extend birthright citizenship to non-U.S. nationals,”[49] the Wong Kim Ark decision, although not directly on point,[50] confirms this position,[51] and citizenship at birth has been the norm since at least Wong Kim Ark, except in a few narrow circumstances which did not include the children of illegal immigrants.[52]

[1] See John Wagner, et al. Trump Vows Executive Order to End Birthright Citizenship, a Move Most Legal Experts Say Would Run Afoul of the Constitution (Oct. 30, 2018), www.washingtonpost.com/politics/trump-eyeing-executive-order-to-end-citizenship-for-children-of-noncitizens-born-on-us-soil/2018/10/30/66892050-dc29-11e8-b3f0-62607289efee_story.html?utm_term=.ff66aecb3585. Last accessed 3/15/5

[2] See Jud Mathews Birthright Citizenship and Presidential Power (Nov. 3, 2018), https://verfassungsblog.de/birthright-citizenship-and-presidential-power/

[3] U.S. Const. amend. XIV. § 1.

[4] Kevin Liptak Trump Claims He Can Defy Constitution and End Birthright Citizenship (Oct. 31, 2018), www.cnn.com/2018/10/30/politics/donald-trump-ending-birthright-citizenship/index.html.

https://www.cnn.com/2018/10/30/politics/donald-trump-ending-birthright-citizenship/index.html

[5] Id. quoting Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project

[6] Lukas Voss Iowa Senator Chuck Grassley Addresses Trump Announcement on Birthright Citizenship (Oct. 31, 2018), cbs2iowa.com/news/local/iowa-senator-chuck-grassley-addresses-trump-announcement-on-birthright-citizenship.

[7] Eliza Collins Paul Ryan Disagrees with Trump’s Call to End Birthright Citizenship, Says It Would Be Unconstitutional (Oct. 31, 2018), www.usatoday.com/story/news/politics/2018/10/30/trump-cant-end-birthright-citizenship-executive-order-ryan-says/1821031002/.

[8] Susan Heavey U.S. Senator Says Will Offer Bill to Back Trump Birthright… (Oct. 30, 2018), www.reuters.com/article/us-usa-immigration-citizenship-graham/u-s-senator-says-will-offer-bill-to-back-trump-birthright-citizenship-plan-idUSKCN1N426C.

[9] Jordain Carney Graham to Introduce Legislation to End Birthright Citizenship (Oct. 31, 2018), thehill.com/blogs/floor-action/senate/413832-graham-to-introduce-legislation-ending-birthright-citizenship (quoting Vice President Pence in Politico).

[10] Id.

[11] Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[12] History.com Editors, 14th Amendment (Nov. 9, 2009), www.history.com/topics/black-history/fourteenth-amendment.

[13] History.com Editors, 13th Amendment (Nov. 9, 2009), https://www.history.com/topics/black-history/thirteenth-amendment.

[14] See U.S. Const. amend. XIII.

[15] See U.S. Const. amend. XIV. § 1; Akhil Reed Amar, America’s Constitution: A Biography, 382 (2005).

[16] History.com Editors, 15th Amendment (Nov. 9, 2009), https://www.history.com/topics/black-history/fifteenth-amendment.

[17] See U.S. Const. amend. XV; Akhil Reed Amar, America’s Constitution: A Biography, 382 (2005).

Cf. U.S. Const. amend. IXX.

[18] United States v. Wong Kim Ark, 169 U.S. 649, 676 (1898).

[19] Akhil Reed Amar, America’s Constitution: A Biography, 381 (2005).

[20] Id.

[21] See Id.

[22] See Tulane University Law School, History of Law: The Fourteenth Amendment, https://employment.law.tulane.edu/articles/history-of-law-the-fourteenth-amendment (“the 14th Amendment, designed to place limits on states’ power as well as protect civil rights.”).

[23] U.S. Const. amend. XIV. § 1.

[24] Id.

[25] U.S. Const. art I. § 1. Cl. 4; See also Adam C. Abrahms, Note, Closing the Immigration Loophole: the 14th Amendment’s Jurisdiction Requirement (1998), 12 Geo. Immigr. L.J. 469, 469; 486.

[26] The Brown Foundation, Combined Brown Cases, 1951-54, www.brownvboard.org/content/combined-brown-cases-1951-54. https://brownvboard.org/content/combined-brown-cases-1951-54#bolling

[27] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

[28] Id.

[29] See Wong Kim Ark, 169 U.S. at 675; see also Library of Congress, https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf .

[30] Wong Kim Ark, 169 U.S. at 675.

[31] See Jordain Carney Graham to Introduce Legislation to End Birthright Citizenship (Oct. 31, 2018), thehill.com/blogs/floor-action/senate/413832-graham-to-introduce-legislation-ending-birthright-citizenship (quoting Vice President Pence in Politico); Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[32] Wong Kim Ark, 169 U.S. at 653.

[33] Id. at 705.

[34] Mathews, Supra, n. 2.

[35] Wong Kim Ark, 169 U.S. at 653.

[36] Id. at 652.

[37] Elk v. Wilkins, 112 U.S. 94, 109 (1884).

[38] Wong Kim Ark, 169 U.S. at 682. But see Adam C. Abrahms, Note, Closing the Immigration Loophole: the 14th Amendment’s Jurisdiction Requirement (1998), 12 Geo. Immigr. L.J. 469, 485 (arguing that children of illegal aliens meet the children of enemy aliens exception because “the illegal aliens are without doubt in the United States against its will and therefore their children must be excluded.”)

[39] Allen R. Kamp Article: Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201, 223.

[40] Elk, 112 U.S. at 99.

[41] Id. at 109. Top of Form

[42] Id. Bottom of Form

[43] Allen R. Kamp Article: Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201, 223.

[44] Id.

[45] See Kelly Gindele , article, The Birthright of Citizenship as to Children Born of Illegal Immigrants in the United States: What Did the Drafters of the Fourteenth Amendment Intend? (2007), 34 N. Ky. L. Rev. 367, 387-388

[46] Mathews, Supra, n. 2.

[47] Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[48] See Mathews, Supra, n. 2.

[49] Id.

[50] See Wong Kim Ark, 169 U.S. at 653.

[51] Mathews, Supra, n. 2.

[52] See Wong Kim Ark, 169 U.S. at 682.

Capital Punishment- An International Perspective

By Lexi Thiel

A few weeks ago, while scrolling the first page of the international law section of the British online newspaper, ‘The Independent,’ among the ten or so articles featured, I noticed that two of them were focused on the death penalty, albeit in different countries. The use of the death penalty is arguably one of the most controversial issues in the American legal system, but I had never stopped to ask myself whether it was the same way in other countries. After reading the two articles, I decided to look deeper into the death penalty issue internationally.

Initially, it is worth noting, that the state of the death penalty within the United States is not entirely clear. As of October, 2018, the death penalty is permitted in thirty states.[1] Capital punishment is also lawful within the federal government and military.[2] In recent years, many states have enacted legislation concerning the issue, but the results have been all over the place. Some states, such as Georgia and Colorado, passed legislation prohibiting the imposition of the death penalty for defendants with intellectual disabilities.[3] Interestingly, Georgia has also recently enacted legislation encouraging prosecutors to seek the death penalty in cases of murder of a law enforcement officer.[4] Florida now requires unanimity among jurors in order to impose the death penalty, while Idaho, likely responding to the recent trend of exoneration of death row inmates on the basis of new laboratory procedures being applied to decades-old evidence, passed a law requiring that sexual assault evidence kits in cases involving capital punishment be preserved by law enforcement until the execution is completed and no further unidentified suspects exist.[5] Over time, many states have simply abolished the death penalty.

While each state has its own legislation concerning the death penalty, and there is not much of a consensus between the states as to whether the death penalty is constitutional, how it should be applied, whether there are limits to who can be executed and for what crimes, etc., the fact remains that the death penalty is still alive and well in the United States. Internationally, the United States has held firm in that position as well. In December 2016, the General Assembly of the United Nations approved a decree “calling for a worldwide ‘moratorium on the use of the death penalty,’” for the sixth time in ten years.[6] The United States represented one of the forty votes against the moratorium, in contrast to the a hundred and seventeen votes in favor.[7] Those involved explained the United States’ vote by arguing that capital punishment decisions rest with each Member State individually, since capital punishment in general is not in violation of international law.[8] Commentators noted that “the position reflects the American reality of supporting the death penalty in principle, but increasingly outlawing it in practice.”[9] As mentioned above, only thirty states authorize the death penalty. Furthermore, even though the practice remains legal in over half the states, only five states actually performed executions in 2016[10].

The second part of the General Assembly’s resolution concerned safeguards for defendants in countries that chose to keep the death penalty. The General Assembly stressed the importance of the application of international laws to the death penalty decisions within the Member States.[11] Specifically, the resolution called for capital punishment to be limited to defendants who commit only the most serious crimes, which it defined as “intentional crimes that have ‘lethal or other extremely grave consequences.’”[12] The resolution also sought to impose procedural requirements when the death penalty was a possibility. These include a fair trial by a competent court, a final judgement, the right to appeal, and the ability to seek a pardon.[13] While the United States voted in the negative regarding the resolution as a whole, those involved with the decision seemed to be in full agreement with this second aspect of the resolution. In this regard, the U.S. practices what it preaches, since over time the Supreme Court has limited the capital punishment sentence to defendants over the age of majority who commit the most grievous murders, and even when the death penalty is imposed, there is often decades that pass before execution when the defendants are exercising their appeal rights established under due process in the U.S.[14]

The United States is not the only country that still authorizes the death penalty, but it is one of a limited few. The number of executions internationally has fluctuated in recent years, but currently the global trend seems to be moving towards abolition of capital punishment.[15] While in 2015 the number of global executions reached its peak, and in 2016 the number of death sentences imposed was at an all-time high, according to Amnesty International, since 2017 the world has seen a decrease in such measures.[16] As of 2017, hundreds of countries had outlawed capital punishment, leaving just a few who continue to carry out executions.[17] In fact, in a somewhat startling figure, just four countries accounted for 84% of executions that year.[18] Those countries were Iran, Saudi Arabia, Pakistan, and Iraq. That year, Iran recorded over 507 executions, Saudi Arabia recorded over 146, Iraq recorded over 125, and Pakistan recorded over sixty.[19] For comparison, the United States had the eighth-most executions in 2017 with twenty-three.[20] These countries have consistently been the global leaders in execution numbers. Interestingly, however, it is widely believed that China is actually responsible for the most executions, by a long shot. China considers data on capital punishment a state secret, so the number of executions are not publicly reported. Consensus seems to be, however, that China executes thousands of people annually, which, if true, would be more than the top eight countries with the most confirmed executions combined.[22]

Among the countries that still authorize capital punishment, there are significant differences in their application. One difference between countries lies in the crimes for which the death penalty can be imposed. As I discussed earlier, in the United States, each state has formulated its own legislation regarding capital punishment, so states differ with respect to crimes punishable by death. Federally, the United States lists forty-one capital offenses for which the death penalty may be imposed.[23] Most of these capital offenses consist of some sort of murder, such as murder of a member of Congress, an important executive official, or Supreme Court Justice, murder committed in a federal government facility, murder by a federal prisoner, etc.[24] Other examples of capital offenses include treason, death resulting from aircraft hijacking, willful wrecking of a train resulting in death, genocide, and espionage.[25]

As you can see, all of the capital offenses in the U.S. are either forms of homicide or offenses that are considered especially dangerous to the security of the country, usually relating to terrorism. Other countries take a different approach to defining capital offenses. Specifically, as of 2017, fifteen countries imposed the death penalty for drug-related offenses, predominantly those located in the Middle East and North Africa.[26] This practice seems wrong, compared with the U.S.’s practice of only imposing the death penalty for the most heinous, typically violent, offenses. The idea is not so far-fetched however, as only recently, President Trump publicly voiced support for capital sentences in drug-trafficking cases. Whether this ever comes to fruition is up for debate. It seems, though, to violate international law, which, as mentioned earlier, imposes limitations on the types of crimes for which a defendant may be executed.

Some countries who authorize the death penalty in non-violent drug cases have taken measures recently to limit the use of capital punishment in these instances. For instance, in Iran, the threshold for drug amounts required to enforce a mandatory death sentence was increased.[27] The fact that in Iran, not only is capital punishment authorized for certain non-violent drug offenses, but the death penalty is mandatory for those crimes without regard to aggravating or mitigating factors in any given case, is alarming. Time will tell whether Iran continues to restrict capital punishment’s role in drug cases. Additionally, in Malaysia, legislation was recently amended allowing for discretion in sentencing drug trafficking offenders, taking away the mandatory aspect it had before.[28]

Another difference between countries that authorize the death penalty concerns the types of people that can be executed. One major area of divergence among countries is the age at which a defendant may be sentenced to death. In the United States, the death penalty is not authorized for offenders under the age of eighteen, following the 2005 decision of the Supreme Court in Roper v. Simmons, which held that imposing the death penalty on defendants who were minors when the crime was committed violates the Eighth Amendment.[29] This practice is also banned under international human rights law under the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the General Assembly of the UN in 1966 and has been ratified by 169 countries, including the U.S.[30] Still, some countries continue to use the death penalty in cases involving minors. Specifically, Amnesty International found that since 1990, nine countries were responsible for the executions of 138 offenders under the age of eighteen.[31] Among those countries are China, Pakistan, Iran, and Saudi Arabia, countries that consistently perform the most executions worldwide.[32]

Countries also differ on the procedural protections provided to those facing a possible death sentence. ICCPR Article 6 expressly delineates the rights of defendants facing capital punishment under international human rights law.[33] Its provisions unequivocally prohibit the imposition of the death penalty to an individual who has not received a fair trial.[34] Under international law, a fair trial requires, at the minimum, “the presumption of innocence, being informed promptly and in detail of all charges, the right to appoint counsel of one’s own choosing, sufficient time to prepare a defense, the right to be tried without undue delay by an independent, impartial tribunal, and the right to review by a higher tribunal.”[35] Still to this day, several countries follow practices inconsistent with international law in this regard. One example is Indonesia, where research uncovered the country’s disregard for the requirement of a fair trial in death penalty cases. For example, international human rights law mandates that the defendant be afforded a “competent” and “professional” attorney and translator, yet these rights were often denied in Indonesia.[36] Additionally, due to the vagueness of the laws in Indonesia concerning police tactics during interrogation, the vast majority of convicts in the country are subjected to improper force and intimidation by police during interrogation in conflict with the rules surrounding obtaining confessions in death penalty cases.[37]

There are several arguments commonly used to support abolition of the death penalty. Countries that have outlawed capital punishment vary in their reasons. In Europe, the issue is viewed as one of morality. The European Union takes a strong stance on capital punishment by making abolition an absolute condition to EU membership.[38] This is based on the position that capital punishment “undermines human dignity and makes any miscarriage of justice irreversible and fatal.”[39] From this it is clear that the EU views execution as both contrary to its fundamental values and problematic in light of potential wrongful convictions. Interestingly, the countries that still authorize the death penalty are typically “less democratic and less committed to the protection of human rights,” so morality appeals may be less effective.[40] Though the United States is a democracy with a commitment to human rights, it retains the death penalty and similarly is not as concerned with moral considerations. Instead, the trend toward abolition in the United States is more a result of efficiency concerns.[41] Research in the U.S. has shown that the death penalty costs the states more money than life imprisonment.[42] In fact, before the economic recession in the U.S., only fourteen states had abolished capital punishment. Once states began facing financial difficulties, eight more proposed abolishment as a cost-saving measure.[43]

In sum, capital punishment is just as controversial globally as it is in the United States. This has led individual countries to have varying approaches to the issue, much like the states in the U.S. The prevalence of capital punishment has waxed and waned internationally over the past decade, so it remains to be seen whether this most recent decrease in executions will continue toward eventual abolishment worldwide. Either way, it is clear that the General Assembly of the UN and other international authorities will remain active in ensuring that capital punishment is implemented consistent with international law.

[1] Death Penalty Fast Facts, CNN (Mar. 22, 2019), https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html.

[2] States and Capital Punishment, NCSL (June 6, 2018), http://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx.

[3] Id.

[4] Id.

[5] Id.

[6] Lincoln Caplan, The Growing Gap between the U.S. and the International Anti-Death Penalty Consensus, The New Yorker (Dec. 21, 2016), https://www.newyorker.com/news/news-desk/the-growing-gap-between-the-u-s-and-the-international-anti-death-penalty-consensus.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Research Shows a Global Trend Towards Abolition of the Death Penalty, but More Work Remains, Amnesty International (Apr. 11, 2018), https://www.amnestyusa.org/reports/research-shows-a-global-trend-towards-abolition-of-the-death-penalty-but-more-work-remains/.

[16] Id.

[17] Id.

[18] Id.

[19] The Death Penalty: An International Perspective, DPIC, https://deathpenaltyinfo.org/death-penalty-international-perspective.

[20] Id.

[21] Id.

[22] Id.

[23] 41 Federal Capital Offenses, ProCon.org (Sept. 12, 2012), https://deathpenalty.procon.org/view.resource.php?resourceID=004927.

[24] Id.

[25] Id.

[26] Research Shows a Global Trend Towards Abolition of the Death Penalty, but More Work Remains, Amnesty International (Apr. 11, 2018), https://www.amnestyusa.org/reports/research-shows-a-global-trend-towards-abolition-of-the-death-penalty-but-more-work-remains/.

[27] Id.

[28] Id.

[29] Execution of Juveniles in the U.S. and other Countries, DPIC (Oct. 22, 2018) https://deathpenaltyinfo.org/execution-juveniles-us-and-other-countries.

[30] Id.

[31] Death Penalty, Amnesty International, https://www.amnesty.org/en/what-we-do/death-penalty/.

[32] Id.

[33] The Death Penalty under International Law, International Bar Association, https://www.ibanet.org/human_rights_institute/about_the_hri/hri_activities/death_penalty_resolution.aspx

[34] Id.

[35] Id.

[36] Sharifa Amalia, Research Finds Most Death Penalty Convicts in Indonesia Still Denied Fair Trials, Magdalene (Jan. 18, 2019), https://magdalene.co/story/research-finds-most-death-penalty-convicts-in-indonesia-still-denied-fair-trials.

[37] Id.

[38] Statement on the Death Penalty, Delegation of the European Union to the Council of Europe  (Oct. 17, 2018), https://eeas.europa.eu/delegations/council-europe/52324/statement-death-penalty_en.

[39] Id.

[40] Carol S. Steiker and Jordan M. Steiker, The Pope Changed the Catholic Church’s Position on the Death Penalty. Will the Supreme Court Follow?, Time (Aug. 15, 2018), http://time.com/5359690/pope-death-penalty-supreme-court-united-states/.

[41] Id.

[42] Saving Lives and Money, The Economist (Mar. 12, 2009), https://www.economist.com/united-states/2009/03/12/saving-lives-and-money.

[43] Id.

 

Islamophobia on the Rise Due to President 45: An Op-Ed

Islamophobia on the Rise Due to President 45: An Op-Ed

By Yousra Jouglaf

“[I call for] a total and complete shutdown of Muslims entering the United States.” [1]At the time this statement was made, Donald Trump was the Republican frontrunner in the 2016 presidential election.[2] Less than a year later, Trump beat out Democratic-nominee Hillary Rodham Clinton, laying claim to the presidency in a surprising win.[3] However, three years later, and in the face of rising white supremacy and its supporters, his win no longer seems so surprising. Trump’s rhetoric against ethnic minorities caused what can only be described as the rebirth of xenophobia; white supremacists across the country and the world began to come out of hiding, finding warmth under the spotlight Trump cast for their bigoted beliefs to finally show. Two dates now haunt the Muslim community for the rest of their lives: 9/11 and 11/9, the date Trump became the U.S. President-elect.[4]

Upon Donald Trump’s taking of office, he has not been shy about his condescension of non-white communities. White supremacy has been on the rise since his term began — in 2017 alone, the Federal Bureau of Investigations reported 8,126 hate crime offenses with 8,493 victims.[5] In an analysis on single-bias incidents, the FBI reported that 58.1% of those hate crime incidents were motivated by race, with an additional 22% prompted by religious bias.[6] These incidents share a common denominator: bigotry on the rise.[7] Americans across the nation have serious concerns about the rise of bigotry and white supremacy; in a poll conducted by Quinnipiac University, 63% percent of 1,238 surveyed voters nationwide responded “yes” to a question asking whether Trump’s election has increased prejudice and hatred in the United States.[8] Ethnic minorities and their white counterparts alike voted similarly, with genuine concern for the safety of their families and their neighbors.[9]

This concern has become a serious plight for Muslims around the world and in the United States. But the increase in concern begs the question of what caused it in the first place, and moreover, how does one become a radicalized white supremacist to begin with? White supremacists are commonly misconceived as “disaffected white guy[s] with economic anxieties.”[10] Research conducted by Kathy Blee of the University of Pittsburgh, an expert in white extremism, shows that this misconception is not only untrue, but very dangerous.[11] It’s casual viewers, usually white males, belonging to the middle class who are drawn into the white supremacy movement.[12] White supremacist groups pander to the specific fears of these viewers, targeting people “who are aimless, marginalized, isolated, and quite extreme in their thinking.”[13]

In the United States alone, there has been a steep increase in white supremacy-motivated hate crimes since Trump’s reign began.[14] White supremacists in the U.S. have been linked to at least 50 deaths within the last year, whereas “Islamist extremism directed at Westerners has dropped dramatically.”[15] Brian Levin, director of the Center for the Study of Hate and Extremism at California University, San Bernardino noted that, “This threat of homegrown, far-right-wing white nationalism, terrorism, and extremism is the most prominent threat facing our nation.”[16] As polarization continues to plague our country, the targeted groups for hate crimes have been immigrants and foreigners, with special focus on Muslims and Jews.[17] As the rise in hate crimes continues, we see little national leadership and sensitivity from Donald Trump, whose most recent comment on the rise of white supremacy was to defer blame to “a small group of people ‘with very, very serious problems.’”[18] Trump blatantly denied the existence of a “worrying rise” in white supremacy.[19]

The “small group of people” he referred to, however, did not find the spotlight for their supremacy to shine on their own.[20] In fact, Brenton Tarrant, the New Zealand terrorist who took the lives of 50 Muslims, had an 80-page manifesto in which he praised Trump, mentioning him by name because he “saw him [Trump] as a symbol of renewed white identity.”[21] When questioned about the Charlottesville, Virginia event where white nationalist marchers met counter-protesters in a violent riot, Trump’s response did not decry the white nationalists. Instead, Trump took to Twitter to define the nationalists as “very fine people.”[22] When questioned about his endorsement from Ku Klux Klan leader David Duke, Trump noted he would not want to unequivocally condemn them and refuse their support without knowledge of the group and the people in it; instead, he noted there are members of the KKK that may be “totally fine”, and disavowing their support without personally knowing them “would be very unfair.”[23] This is the same man who ran on a platform classifying all Mexicans as “rapists and drug dealers”, and Muslims as “radical Islamic terrorists” deserving of a “Muslim ban”. Trump’s rhetoric is clear: when it comes to minorities, the act of one man speaks for his entire race or religion. Yet when it comes to white supremacists, he can only refer to them as “very fine people”.[24]

On March 14th, 2019, New Zealand’s Muslim Christchurch community gathered at the Masjid al Noor Mosque for Friday prayers, the holiest day of the week for Muslims as they pray “Jumu’ah” together in an act of congregational worship.[25] Muslims gather at different mosques for worship and to “develop unity, cooperation, and cohesiveness” within both Muslim and non-Muslim communities.[26] It is meant to be a day of peace, love, and worship. It is now, however, a day that has been slightly tainted with the fear of untimely death as Muslim worshippers and their family members alike have sought to reduce their attendance for fear of attack.[27] Now, when devout Muslims return for Jumu’ah prayer, they may no longer be picturing a peaceful house of worship; instead, they may see Brenton Tarrant’s unapologetic face flashing a symbol of white supremacy at his initial sentencing.[28]

Trump’s rhetoric has undeniably played a large part in the rise of white supremacy. From the very beginning of his campaign, Trump has targeted minorities as cause for the different issues plaguing our country.[29] He has emboldened white supremacists and other extremists by displacing blame on innocent minority groups, causing a larger rift and further polarizing an already divided nation.[30] Trump centered his campaign platform around appealing to the right-wing supremacists who have caused the very trauma minorities are experiencing today. He constructed an “Us v. Them” narrative, defining Muslims as a violent threat to the safety of American citizens.[31] This xenophobic rhetoric resonated with extremists who had been searching for further reason to hate their Muslim neighbors, because if the president can speak hatefully toward Muslims, then why can’t they?[32] It gave them the permission they needed to come out of hiding, for they finally had a president who shared the same sentiments about minorities they did.[33] Trump ostensibly legitimized and lent credibility to their fear, and that was all white-supremacists needed to inspire their violence-driven views and actions.[34]

Trump’s rhetoric may not be the proximate cause of the rise of xenophobia, racism, and hate crimes, but it is surely the ground by which white supremacists have found their footing. Trump has played an integral role in heightening the fears white supremacists already held, and his continued denial of white supremacy’s rise only furthers legitimizes its existence. Not condemning the acts of terror against the Muslim community (both nationwide and internationally) as acts of terrorism stemming exactly from white supremacy is an issue in itself. The blind eye Trump has turned numerous times against minority communities is the same eye which sends a wink of approval to extremists looking for a reason to incite violence and murder communities of color. The notion of white supremacy is rooted in the belief that the Caucasian race reigns supreme above any and all others,[35] and Trump’s refusal to discount such a notion only further fuels the fire that will eventually overwhelm us all.

When that day comes, the Muslim community will open its arms to any and all seeking help. And we will open our arms just as Christchurch’s first victim, Hajj-Daoud Nabi did, with a “Welcome, brother.” We can only hope the rest of the world will do the same.

[1] Johnson, Jenna Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’ WASH. POST (Dec. 7, 2015)

[2] Id.

[3] Author Unknown, (Nov. 9 2016), https://www.bbc.com/news/election-us-2016-37920175

[4] Oakley, Nicola “11/9 is the new 9/11”: Americans Liken Trump’s Win to Most Devastating Day in Country’s History, MIRROR (Nov. 9, 2016)

[5] Federal Bureau of Investigation, Uniform Crime Reporting Program ‘s Hate Crime Statistics (2017), https://ucr.fbi.gov/hate-crime/2017/topic-pages/incidents-and-offenses

[6] Id.

[7] Id. 

[8] Malloy, Tim Hatred on the, American Voters Say, Quinnipiac University National Poll Finds; Concern about Anti-Semitism Jumps in One Month (Mar. 9, 2017)

[9] Id.

[10] Siegler, Kirk, A ‘Mainstreaming of Bigotry’ As White Extremism Reveals Its Global Reach, (Mar. 16, 2019)

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Collinson, Stephen, Trump Again Punts On White Supremacy After New Zealand Attacks, CNN (Mar. 16, 2019).

[19] Id.

[20] Id.

[21] Id.

[22] Merica, Dan, Trump Says Both Sides to Charlottesville Backlash, CNN (Aug. 16, 2017).

[23] Kessler, Glenn, Donald Trump and David Duke: For The Record, Washington Post (Mar. 1, 2016).

[24] Kessler, Glenn, Donald Trump and David Duke: For The Record, Washington Post (Mar. 1, 2016).

[25] Author Unknown, Salutal-Jumu’ah, https://www.alislam.org/library/book/salat/friday-prayer/

[26] Id.

[27] Hui, Nicole, Canadian Muslim Community Afraid to Attend Mosque After New Zealand Shootings Today, Narcity. (Mar. 14, 2019)

[28] Feuerherd, Ben, New Zealand ‘Shooter’ Flashes ‘White Power’ Symbol in Court, New York Post. (Mar. 15, 2019)

[29] Ye Hee Lee, Michelle, Donald Trump’s False Comments Connects Mexican Immigrants and Crime, Washington Post (July 8, 2015).

[30] Id.

[31] Williams, Jennifer, Donald Trump’s Speech Scared Me as an American Muslim. It Should Scare You, Too. Vox. (June 14, 2016)

[32] Id.

[33] Id.

[34] Id.

[35] https://www.merriam-webster.com/dictionary/white%20supremacist

The Nordic Myth: A Criticism of the Loki that is “Democratic Socialism”

The Nordic Myth:
A Criticism of the Loki that is “Democratic Socialism”

By Erich Greiner

The debate surrounding “Democratic Socialism” has entered again into the headlines in light of the recent entry of United States Senator Bernie Sanders into the race for the Democratic Party nomination for the President of the United States[1] and the historic election of Congresswoman Alexandria Ocasio-Cortez, a “self-declared Democratic socialist” to the House of Representatives during the 2018 midterms.[2] Embodying the left-wing populism[3] that has surged in response to the rise of right-wing populism under President Donald Trump[4],  both Senator Sanders and Congresswoman Ocasio-Cortez have campaigned on Medicare for All, tuition free public college, a fifteen dollar an hour minimum wage, and advocated for the “Green New Deal” to combat climate change. [5],[6] Both have also pointed to Scandinavian social democracy—the welfare states of Norway, Sweden, and Denmark[7]—as model for the United States to follow.[8],[9]  Advocates of the model cite that Scandinavians, and more specifically Danes, “are more likely to have jobs than Americans,. . . in many cases. . .earn substantially more, . . . take more vacations. . .,” and that “income inequality is much lower, and life expectancy is higher.”[10] However, this analysis belies certain truths.

First is the false premise that Scandinavian “third-way” model is, in fact, socialist. It would be more accurate to say that the economies of Norway, Denmark, and Sweden are social-democratic than democratic-socialist. [11] Danish Prime Minister Lars LØkke Ramussen himself disavowed the label at a speech at Harvard’s Kennedy School of Government, stating, “The Nordic model is an expanded welfare state which provides a high level of security to its citizens, but it is also a successful market economy. . .” [12] In fact, none of the Nordic states could be considered traditionally socialist under the definition of socialism: “any of various economic political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods”—unlike a country such as Venezuela where the government “nationalized” the oil industry.[13],[14]

Furthermore, the goods associated with the social-democratic system cited in support of the Nordic model are largely misconstrued as products of the system, instead of existing before the creation of the expansive welfare state, or, in some cases, actively being hobbled by the enactment of the social-democratic system. Due in large part to the necessity of innovation demanded by the harsh climate and limited natural resources of the region, the peoples of the Nordic countries adopted liberal economic policies, relying on optimizing “ ‘maximum profitable agricultural activity’ and taking greater advantage of international trade.”[15] The adoption of these policies, the enforcement of property rights that enabled the transfer of land from landlords to farmers, the creation of small, localized banks that would extend credit to entrepreneurs with little or no collateral, and competition between firms of all sizes enabled Denmark’s economy to outpace better-resourced countries such as Ireland in the late nineteenth century.[16] During this time Denmark had a larger population than Ireland, higher levels of agricultural output, a greater level of trade, a lower national debt, a higher level of income, and a demonstrably higher standard of living than Ireland and Western Europe.[17] Moreover, over the span of a century, some of the Nordic state’s most famous brands, on which the welfare state greatly relies as a source of tax revenue were developed: Ikea, H&M, Volvo, Alfa Laval and Tetra Pak, all of whom have come to symbolize the brilliance of the Scandanavian free-market approach.[18] In fact, the brands’ home country of Sweden experienced the highest growth rate in per capita GDP in the world from 1870-1936.[19]

However, Sweden’s growth, like that of her sister Nordic countries, has been handicapped by the creation of the social-democratic welfare state in the early 1930s. Over nearly another century, from 1936-2008, Sweden’s growth rate fell to 13th out of 28 industrialized nations, while Denmark’s economy, which had experienced the 6th largest growth rate in the world prior to the adoption of similar social democratic policies in 1924, fell to the 16th largest growth rate from 1924-2008.[20] This stagnation is the natural outcome of a market reaction to the policies of radical social democrats that were adopted in the 1950s and 1960s in an attempt to seek a social-planned “third-way” economy, somewhere between communism and capitalism.[21] Attempting to support what Swedish Prime Minister, GÖran Perrson, deemed the “bumblebee” of massive entitlement and welfare programs on the wings of the Nordic economies’ capitalist underpinnings, Sweden and other Nordic countries have clipped those same wings by creating oppressive tax regimes.[22] With an effective marginal tax rate on Swedish businesses that at times exceeded 100 percent of profits, a private business owner could pay a marginal effective tax rate of 137% on capital gained through the issuing of new shares, costing himself money.[23] Additionally, when long-established companies such as Nokia are relied upon for nearly a quarter of Finnish growth from 1998 to 2007 despite being established over a century before, it is little wonder that innovation has been hobbled and entrepreneurship disincentivized.[24]

The adoption of the social-democratic model has also created deleterious effects that extend far beyond mere economic output. While the application of free-market principles, innovation and trade led the Nordic states to lead the industrialized world in terms of GDP and standard of living, it was the underlying social fabric and political stability that enabled the states to create such high levels of wealth. “High[] levels of trust and social capital” enabled the Danish to establish cooperative creameries that were founded by dairy farmers, whereas in the better-resourced but highly partisan Ireland, no such organizations could be founded.[25] The extraordinary level of trust is also why the aforementioned community banks could make low or no-collateral loans to entrepreneurs that provided the capital necessary to engage in business.[26] However, the adoption of social-democratic policies has also torn at the social fabric and increased mistrust. For example, though the supporters of social-democracy point to the high levels of health of citizens of Nordic states, it is interesting to note that “only the Netherlands spends more on incapacity-related unemployment than the Scandinavian countries” and that “forty-four percent believed that it was acceptable to claim sickness benefits if they were dissatisfied with their working environment.”[27] Additionally, in recent years, absence of men at work claiming sickness increased by forty-one percent during the 2002 World Cup.[28]

Even more problematic is that while distrust among the domestic population of the Nordic countries grows, immigrants face an even greater struggle. In response to the ongoing Migrant Crisis, the Nordic countries have increased restrictions and tightened access to benefits, including those that provided to health services, financial benefits, and stipends for food.[29] Further, due to the strained labor markets, even those who are highly skilled migrants face an unemployment rate 8 percentage points higher than that of native-born citizens, such as that of Finland and Sweden.[30]

In Norse mythology, Loki is the “trickster god. . . [who] often runs afoul of societal expectations”.[31] In Icelandic, loki as a common noun translates to “knot” or “tangle”.[32] Though we may look to the Scandinavian countries as a model for economic success and egalitarianism, we should not be tricked into misattributing their success to, nor become illusioned about, the entanglements and snares of the social-democratic system.

[1] Bernie Sanders Announces Presidential Run, Calls Trump an ‘Embarrassment’, Bloomberg (Feb.  19, 2019), https://www.bloomberg.com/news/articles/2019-02-19/bernie-sanders-announces-candidacy-in-2020-presidential-race.

[2] Meet Alexandria Ocasio-Cortez, the millennial socialist political novice who’s now the youngest woman ever elected to Congress, Business Insider (Jan. 8, 2019),  https://www.businessinsider.com/all-about-alexandria-ocasio-cortez-who-beat-crowley-in-ny-dem-primary-2018-6

[3] Bernie Sanders is Back, The New Yorker. (Feb. 19, 2019), https://www.newyorker.com/news/current/bernie-sanders-is-back

[4] Populism and Nationalism in the Trump Era, Cato Institute (Jan. 25, 2017), https://www.cato.org/events/populism-nationalism-trump-era

[5] Bernie Sanders is running for president—and his policies would have a huge impact on business, CNBC (Feb. 19, 2019), https://www.cnbc.com/2019/02/19/bernie-sanders-is-running-for-president-in-2020–here-is-his-platform.html

[6] This is the platform that launched Alexandria Ocasio-Cortez, a 29-year-old democratic socialist, to become the youngest woman ever elected to Congress, Business Insider (Jan. 4, 2019), https://www.businessinsider.com/alexandria-ocasio-cortez-platform-on-the-issues-2018-6

[7] Scandinavia, Encyclopedia Britannica (Jan. 10, 2019), https://www.britannica.com/place/Scandinavia

[8] “I think he’s scared: Alexandria Ocasio-Cortez celebrates Trump’s criticism of socialism in the State of the Union, Business Insider (Feb. 26, 2019), https://www.businessinsider.com/alexandria-ocasio-cortez-celebrates-trumps-slam-of-socialism-2019-2

[9] Bernie Sanders’ American Dream is in Denmark, CNN (Feb. 17, 2016), https://www.cnn.com/2016/02/17/politics/bernie-sanders-2016-denmark-democratic-socialism/index.html

[10] Something Not Rotten in Denmark, The New York Times (Aug. 16, 2018), https://www.nytimes.com/2018/08/16/opinion/denmark-socialism-fox.html

[11] Nima Sanandaji, Scandinavian Unexceptionalism: Culture, Markets, and the Failure of Third-Way Socialism, 18 (Institute of Economic Affairs, 2015)

[12] Denmark’s prime minister says Bernie Sanders is wrong to call his country socialist, VOX (Oct. 31, 2015), https://www.vox.com/2015/10/31/9650030/denmark-prime-minister-bernie-sanders

[13] Socialism, Merriam-Webster (Dec. 29, 2018), https://www.merriam-webster.com/dictionary/socialism

[14] How Venezuela Ruined Its Oil Industry, Forbes (May 7, 2017), https://www.forbes.com/sites/rrapier/2017/05/07/how-venezuela-ruined-its-oil-industry/#612e494f7399

[15] See Supra. note 11 at 12-13, (Quoting Irish economist James Beddy)

[16] Id., 13-15

[17] Id., 12-13

[18] Id. at 15

[19] Id. at 15-16.

[20] Id. at 17-18

[21] Id. at 20-21

[22] Id. at 11, 22

[23] Id., at 22-24.

[24] Id..

[25] Id., at 13 (Quoting Irish economist Kevin O’Rourke)

[26] Id.

[27] Id., at xv

[28] Id.

[29] Overwhelmed by Refugee Flows, Scandinavia Tempers its Warm Welcome, Migration Policy Institute (Feb. 10, 2016), https://www.migrationpolicy.org/article/overwhelmed-refugee-flows-scandinavia-tempers-its-warm-welcome

[30] See Supra. note 26.

[31] Loki, Norse Mythology for Smart People, https://norse-mythology.org/gods-and-creatures/the-aesir-gods-and-goddesses/loki/

[32] Id.

“ALGORITHMS FIGHTING TERRORIST CONTENT – A THREAT TO OUR BASIC FREEDOMS?”

ALGORITHMS FIGHTING TERRORIST CONTENT – A THREAT TO OUR BASIC FREEDOMS?

The Islamic State efficiently weaponized social media with their hashtag #alleyesonISIS and the publication of thousands of Youtube videos.[1] The marring videos of beheadings and other ghastly executions trolled the Internet to the inspiration of some, and the abhorrence of most.[2] Their social media propaganda recruited more than 40 000 foreign fighters from 110 countries.[3]

The Internet is a very efficient propaganda machine because content uploaded to one webpage spreads like wildfire to other platforms. This is why heads of states from all over the world have called for the industry to do more and faster to strike down terrorist content with new technology.[4] However, the current algorithms for detecting terrorist and extremist content do not have the same ability as humans to distinguish between legal and illegal content.[5] The question thus becomes: Are we ready to trade our right to freely express and receive information in exchange for security?

In this blogpost I want to address the tension between our efforts to win the online war against terrorism and the responsibility to respect and protect our right to freely express and receive information. I do not aim to answer the questions that arise, but rather, to highlight some of the challenges that must be addressed. I start by looking briefly at international and European human rights law. Then I turn to a recent legislative proposal from the European Union that calls for the development and use of automatic detection tools to rid us of “terrorist content”. Further I look at how this pressure from world leaders and legislators to take action has impacted the conduct of companies with YouTube as the example. Finally I offer some thoughts on the limitations of the current technology and how the rush to use it may seriously impact our fundamental freedoms.

1. The Law

Freedom of expression is a fundamental right enshrined in the constitution of most democratic states. It also forms an integral part of international human rights treaties. According to the Universal Declaration on Human Rights article 19, ”[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[6] This right was further codified in the International Covenant on Civil and Political Rights (ICCPR) article 19, which means that the Covenants 172[7] state parties are obligated to respect, protect and fulfil this right.[8] As the quoted article emphasises, the right to freely seek and receive information is an integral part of the human right to free expression.

Freedom of expression also holds a central place in the European Convention on Human Rights and Fundamental Freedoms (ECHR). Similarly to the ICCPR article 19 nr. 3, the ECHR article 10 provides that any restriction that removes information or access to it must be “prescribed by law and necessary in a democratic society” as well as protect a legitimate interest listed in article 10 nr. 2 such as “national security” and “public safety.”[9]

As the prime interpreter of the ECHR, the European Court of Human Rights has repeatedly emphasised the importance of scrutinizing national decisions to censor the publication of information in whatever form. In the case Yildirim v. Turkey, the Court held that “the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court, (…) for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”[10] The Court further stated that “a prior constraint is not necessarily incompatible with the Covenant as a matter of principle” but that any such restraint must be subject to a legal framework to ensure ”both tight control over the scope of bans and effective judicial review to prevent any abuse of power”.[11] This legal test is just as important to uphold in regard to traditional media as it is on the Internet. The Court acknowledged the special role of Internet in today’s information environment in the case Times Newspapers Ltd v. the United Kingdom. In their reasoning the Court stated that “[i]n the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.”[12]

These human rights obligations demand that governments strike a fair balance between protection of free speech and the need to curtail terrorist propaganda in order to prevent terrorist activities. Governments are not released from their responsibility where they demand that private companies effectively provide censorship on their behalf.

2. The Rush to Crack Down on Offensive Content

For years the online platform providers have worked both separately and together to remove online terrorist and extremist content.[13] The pressure to take action has come from all corners of the world. Back in 2016 the Obama administration made it quite clear that Silicon Valley should do more to contribute to combat terrorists utilizing their online platforms.[14] Since then leaders from all over the world have joined up to pressure private companies to act faster and with more vigour to crack down on terrorist propaganda.[15]

In response to this pressure the tech-giants are taking steps to repeal unwanted content such as terrorist propaganda. As the mother company of Youtube, Google reports that it removed 1,667,587 channels and a baffling number of 7,845,400 videos during a three-month period in 2018 alone.[16] The videos are removed because they breach the YouTube Community Guidelines that prohibit content with incitement to violence, harassment, pornography or hate speech.[17] Of these removals, 6,387,658 videos were removed by automated flagging and 74,5 % of that number was removed before receiving any views, effectively prohibiting publication.[18] Although nowhere near the height of their power and popularity, ISIS supporters still managed to upload 1,348 YouTube videos and generated 163,391 views between March and June 2018.[19]

Google and Facebook have previously stated that human beings review whether to remove the content or not.[20] The reality, however, is that large parts of the removals are effected by automated or semi-automated decisions.[21] As I shall highlight below, the sophistication of this technology becomes very important for whether any laws obliging the companies to continue this practice complies with the right to express and receive information.

  1. EU Proposal: Legal Duty to Proactively Eradicate Terrorist Content

Deciding that the private companies responsible for these platforms are not doing enough, the European Union has decided that the voluntary measures are insufficient to win the battle against the terrorist propaganda. In September 2018 the European Commission launched a hard-hitting new regulation targeting “terrorist content” specifically.[22] According to the press release this term refers to “material and information that incites, encourages or advocates terrorist offences, provides instructions on how to commit such crimes or promotes participation in activities of a terrorist group.”[23]

The private companies obligated by the proposal are “all hosting service providers offering services in the EU”.[24] This definition is so broad that it is likely to affect all servers hosting user content no matter where they are based as long as they provide services in the European Union.[25] The provisions are aimed at compelling the companies to take both proactive and reactive measures to reduce the amount of terrorist content online.

The reactive duty includes the duty to remove any content flagged by the relevant member state authority within 1 hour of notice.[26] A daunting fine of up to 4 % of global turnover is what looms in the background if a company systematically fails to comply with these “removal orders” in time.[27] The one-hour limit might sound short, but if the goal is to take down the terrorist content before it creates too much damage it may even be too long. A report from 2018 spells it out for us: during one minute more than 2.5 quintillion bytes of data are created, we make more than 3,877,140 Google searches, watch more than 4,333,560 Youtube videos, and send more than 473,400 tweets.[28] When contemplating these numbers one can only imagine how much impact a video or tweet from ISIS could have in 60 minutes.

In recognition of these statistics the legislative proposal includes a duty for the private companies to deploy “automated detection tools where appropriate and when they are exposed to the risk of hosting terrorist content.”[29] These automated detection tools are algorithms that can sift through an amazing amount of data in a very short amount of time. The caveat is that applying automated detection tools to differentiate between what is “terrorist content” and what is merely “the expression of radical, polemic or controversial views in the public debate on sensitive political questions”[30] may fail. There is a risk that the algorithm detects and flags perfectly legal content.

The Commission is aware that this automated process must comply with the human rights legal framework protecting the freedom to express and receive information. The proposal therefore includes several provisions that try to ensure these rights. Examples include the duty to ensure “oversight and human assessment” of the content detected and enforcement of “effective safeguards to ensure full respect of fundamental rights, such as freedom of expression and information.”[31]

On the face of it seems like a great way to strike the balance between waging war on terrorist content and respecting fundamental human rights. The problem is that the legislation sets a lot of store by the sophistication of the automatic detection technology. It is hard to believe that the European Commission actually thinks that there can be human oversight over all content flagged by an algorithm. The details of the proposal are not yet out, so it is still unclear whether this would be an obligation or not. In any case, the use of automated detection tools to both detect and make the decision to remove content to comply with the regulation is very tempting if the goal is to take down the terrorist propaganda before it spreads.

Whether these automated detection and decision tools are within the limits of the human rights legal framework depends, as I see it, on at least three questions: 1) whether the state of technology is so sophisticated that the algorithm can differentiate between “terrorist content” and other content 2) whether the algorithm can ensure the human rights balancing test when it makes a decision to remove content at the cost of freedom to express and receive information, and 3) even if it can, whether the use of automated decisions will make it impossible for judicial review because the algorithm may not be able to provide an explanation of its legal analysis that humans can understand.

  1. Misconceptions on the Sophistication of the Technology

So how sophisticated is this automated detection and decision technology? Is it up to the job of replacing a human that can decipher legal from illegal content and make the requisite human rights legal analysis? A number of voices within the legal tech-community appear to think that it is not. The Center for Technology and Democracy (CTD) published a report on the limitations of automated social content analysis where they emphasised that the technology is not sophisticated enough to comprehend “the nuanced meaning of human communication or to detect the intent or motivation of the speaker.”[32] It is therefore important that politicians and legislators understand these limitations before they make statements or enact legislation that calls for action that cannot be done without compromising our basic human rights.

Stakeholders all over the world have reacted to the European Commissions press release on the new “terrorist content”-legislation with a message of caution and warning. This includes three United Nations Special Rapporteurs, the Council of Europe, private companies and NGOs.[33] One of these organisations, The Global Networking Initiative (GNI), stated as part of a lengthy article that they believe the proposal as it stands “could unintentionally undermine [the shared objective of tackling dissemination of terrorist content online] …by putting too much emphasis on technical measures to remove content, while simultaneously making it more difficult to challenge terrorist rhetoric with counter-narratives.”[34] In addition, the GNI expressed concerns that the regulation would place significant pressure on the affected companies to ”monitor users’ activities and remove content in ways that pose risks for users’ freedom of expression and privacy.”[35] As many other stakeholders share this concern, it indicates that they do not believe the European legislator understands the limitations of the technology when they propose this duty to put in place “proactive” measures.

  1. Blindly Trading Liberty for Security?

The possibilities for using machine learning to automate decision-making can turn out to be both a blessing and a curse. The pressing need for our politicians and jurists to have in-depth knowledge on emerging technology is mounting. The fight on the online battlefield against terrorism demonstrates the stakes we are facing. Striking the balance between liberty and security is difficult, but at least up until now it has been an issue where we could understand in what direction the wind is blowing when reviewing new legislation. The duty to use automated detection and decision-making tools may shake this safeguard. We must therefore ask our selves whether we are about to, or perhaps already did, enter an era where we unintentionally and unknowingly trade our fundamental right to express and receive information in exchange for security.

 

[1] Singer, P.W. and Emerson T. Brooking. LikeWar, New York: Houghton Mifflin Harcourt, 2018, p.5.

Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[2] Koerner, Brendan I. Why ISIS is Winning the Social Media War. (2016), https://www.wired.com/2016/03/isis-winning-social-media-war-heres-beat/ [Cited 02/14/2019]

[3] BBC.com. IS foreign fighters: 5,600 have returned home – report. (2017) https://www.bbc.com/news/world-middle-east-41734069 [Cited 02/05/2019]

[4] Sengupta, Somini. World Leaders Urge Big Tech to Police Terrorist Content. (2017)

https://www.nytimes.com/2017/09/21/world/internet-terrorism-un.html [Cited 02/05/2019]

[5] Center for Democracy and Technology. Mixed Messages: the Limits of Automated Social Media Content Analysis. (2017), https://cdt.org/insight/mixed-messages-the-limits-of-automated-social-media-content-analysis/  [Cited 02/05/2019]

[6] United Nations. Universal Declaration of Human Rights. (Date unknown), http://www.un.org/en/universal-declaration-human-rights/ [Cited 02/05/2019]

[7] United Nations Treaty Collection. International Covenant on Civil and Political Rights. (2019), https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND [Cited 02/09/2019]

[8] United Nations Human Rights Office of the High Commissioner. International Law. (Date Unknown), https://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx [Cited 02/09/2019]

[9] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, Article 10 nr. 2.

[10] Case of Yildirim v. Turkey, Application no. 3111/10, 12/18/2012, paragraph 47.

[11] Case of Yildirim v. Turkey, Application no. 3111/10, 12/18/2012, paragraph 64.

[12] Case of Times Newspapers Ltd (nos 1 and 2) v. the United Kingdom Application no. 3002/03 and 23676/03, 03/10/2009, paragraph 27.

[13] Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[14] Handeyside, Hugh. Social Media Companies Should Decline the Government’s Invitation to Join the National Security State. (2016), https://www.justsecurity.org/28755/social-media-companies-decline-governments-invitation-join-national-security-state/ [Cited 02/14/2019]

[15] Sengupta, Somini. World Leaders Urge Big Tech to Police Terrorist Content. (2017)

https://www.nytimes.com/2017/09/21/world/internet-terrorism-un.html [Cited 02/05/2019]

[16] Google. Transparacy Report: YouTube Community Guidelines enforcement. (2018), https://transparencyreport.google.com/youtube-policy/removals?hl=en&total_removed_videos=period:Y2018Q3;exclude_automated:&lu=total_removed_videos [Cited 02/05/2019]

[17] Ibid.

[18] Ibid.

[19] Greenemeier, Larry. Social Media’s Stepped-Up Crackdown on Terrorists Still Falls Short. (2018), https://www.scientificamerican.com/article/social-medias-stepped-up-crackdown-on-terrorists-still-falls-short/ [Cited 02/14/2019]

[20] Council of Europe. “Algorithms and Human Rights: Study on the Human Rights Dimensions of Automated Data Processing Techniques (in particular algorithms) and Possible Regulatory Implications.” Council of Europe Study DGI(2017)12, p. 18.

[21] Ibid.

[22] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[23] Ibid.

[24] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[25] Bennett, Owen. The EU Terrorist Content Regulation – a threat to the ecosystem and our users’ rights. (2018), https://blog.mozilla.org/netpolicy/2018/11/21/the-eu-terrorist-content-regulation-a-threat-to-the-ecosystem-and-our-users-rights/ [Cited 02/06/2019]

[26] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[27] Ibid.

[28] DOMO. Data Never Sleeps 6.0: How Much Data is Created Every Minute? (2018/2019), https://www.domo.com/learn/data-never-sleeps-6 [Cited 02/06/2019]

[29] European Commission. State of the Union 2018: Commission proposes new rules to get terrorist content off the web. (2018), http://europa.eu/rapid/press-release_IP-18-5561_en.htm [Cited 02/06/2019]

[30] Ibid.

[31] Ibid.

[32] Center for Democracy and Technology. Mixed Messages? The Limits of Automated Social Media Content Analysis. (2017) https://cdt.org/insight/mixed-messages-the-limits-of-automated-social-media-content-analysis/ [Cited 02/06/2019]

[33] See for example: 1) Open Letter from the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the right to privacy and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 12/07/2018, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24234, and 2) Council of Europe. Misuse of anti-terror legislation threatens freedom of expression. (2018),

https://www.coe.int/en/web/commissioner/blog/-/asset_publisher/xZ32OPEoxOkq/content/misuse-of-anti-terror-legislation-threatens-freedom-of-expression https://edri.org/terrorist-content-regulation-warnings-from-the-un-and-the-coe/

[34] Global Network Initiative. GNI Statement on Europe’s Proposed Regulation on Preventing the Dissemination of Terrorist Content Online. (2019), https://globalnetworkinitiative.org/gni-statement-draft-eu-regulation-terrorist-content/#_ftn15 [Cited 02/06/2019]

[35] Ibid.