Recent Terrorism Sanctions with Shayana Kadidal

So before we get into talking about what we're here to talk about, which is recent sanctions and terrorism designations, you've been working on this stuff for a long time.

Is there any context grounding that you think it's important for people to have in mind from the post 9-11 so-called war on terror that is helpful grounding for this?

For this being talking about sanctions, sure.

You know, look, when 9-11 happened, I think, you know, the Bush administration was full of a lot of sort of former Nixon era rejects, you know, lawyers from from who were youngsters working in Nixon's administration who deeply resented what the Warren court had done in the 60s in terms of extending all sorts of procedural rights to criminal defendants.

And in particular, things like, you know, exclusion of evidence being a penalty for illegal searches and seizures.

Right.

All these technicalities that became, you know, the centerpiece of every 1970s police procedural drama.

Right.

You know, the criminal gets off because, you know, the tough law enforcement agent didn't follow all the lawyers.

Nice little technical rules.

And they wanted to, you know, get rid of all these protections that, you know, had been attached to the ordinary criminal justice system.

And replace it maybe with, you know, something that is a little bit more familiar from, you know, kind of World War II fighting against the Germans on the battlefield, right? You know the enemy when you see them and you're allowed to shoot at them and detain them without process, without charges, because, you know, they are bad guys and you are trying to preempt them from shooting at you, right? So it's kind of replacing the criminal justice system where you wait for something wrong to be done and then you bring that person in and try them.

with all sorts of procedural protections with a model of kind of prevention, which seemed, you know, very appealing when you're talking about preventing, you know, mass terrorist attacks that killed 3,000 civilians, right? This is a new era, and we've got to be able to go out and stop crimes kind of before they happen.

To stop them in the planning stages.

Now, Anglo-American law has always had a facility for this called conspiracy charges.

Conspiracy is the crime of planning a crime.

There are some safeguards involved in there.

It's not enough to just plan the crime.

You have to take one kind of step towards making it actually happen, what we call an overt act.

But this is kind of a unique thing to Anglo-American law.

And this is what allows us to preempt criminal conspiracies before they achieve fruition, right? It's, you know, half of all charges in federal court are conspiracy charges because they mostly involve, you know, dealing in illegal drugs, right? So you go out and stop the crime before it's happened and you take this military mentality with you of we know who the bad guys are and we get to stop them the second we recognize them.

Right.

So how does that apply to terrorism sanctions? Well, yeah.

You know, during World War II type wars, you know, going all the way back to World War I, the government gave itself really broad embargo powers, right? World War I starts under the Trading with the Enemy Act or its predecessor powers.

We get to put an embargo on Kaiser Wilhelm's Germany.