Academic journal article Boston College Law Review

Pathologizing "Radicalization" and the Erosion of Patient Privacy Rights

Academic journal article Boston College Law Review

Pathologizing "Radicalization" and the Erosion of Patient Privacy Rights

Article excerpt


Mahin Khan ("Khan") is an autistic Muslim eighteen-year-old currently serving an eight-year sentence in Arizona state prison.1 In July 2016, Khan was charged with plotting to commit terrorism in support of the Taliban and the Islamic State.2 Khan first came into contact with the Federal Bureau of Investigation (FBI) when he was fifteen, after he sent a threatening letter to a teacher. 3 He subsequently underwent a forty-five day evaluation in an inpatient psychiatric facility, arranged in part by the FBI.4 Over the next few years, the FBI met with Khan every few months under the pretense of mentoring him and coordinating his mental health care.5 During one of these meetings, authorities provided Khan with a cell phone.6 Using this phone, Khan allegedly made statements to an undercover informant indicating his willingness to commit terrorism.7

Two weeks after Khan turned eighteen, he was charged as an adult with conspiracy to commit terrorism and conspiracy to commit misconduct involving weapons.8 At Khan's trial, his parents argued that their son had the mental capacity of a thirteen-year-old and was incapable of formulating the complex plot he was accused of, let alone carrying it out.9 Unpersuaded by this argument, an Arizona state court judge sentenced Khan to eight years in prison and lifetime probation.10

Khan is just one of several mentally ill or developmentally disabled young Muslim men who have been subjects of surveillance and high-profile prosecutions since the September 11, 2001, terrorist attacks ("9/11").11 These cases show a correlation between terrorism-related criminal prosecutions and mental illness or developmental disabilities.12 Researchers have relied on this correlation in attempting to identify a causal link between behavioral and psychological indicators and terrorism.13

Countering Violent Extremism ("CVE") is a preventive counter-terrorism strategy deployed in the War on Terror.14 Rather than focusing solely on military responses, governments around the world have incorporated political and social science methods into their national security policies.15 As a result of this embrace of a multidisciplinary approach to the War on Terror, CVE has expanded worldwide.16 CVE is based on the assumption that there are identifiable "radicalization" processes through which law-abiding individuals adopt "extreme" ideas that may motivate terrorist activity.17 CVE is also based on the assumption that there are ways of intervening at early stages of these processes to prevent future acts of terrorism.18

CVE has two main functions.19 First, CVE includes a risk assessment function.20 Helping professionals involved in CVE risk assessment are tasked with monitoring individuals in their care for signs of "vulnerability to radicalization."21 Second, CVE includes an intervention function.22 Individuals identified as being "vulnerable to radicalization" are referred to teams of professionals from different disciplines-including mental health workers, teachers, imams, and law enforcement officials-for religious and ideological reprogramming.23

Although Khan's arrest does not appear to be directly linked to any official CVE program, his case highlights the dangers of law enforcement interference in mental health treatment.24 CVE is often promoted as a way of provid18 ing "off-ramps" to vulnerable individuals before they ever reach the point of engaging in criminal activity.25 The use of the term "off-ramp" implies that CVE identifies and reroutes individuals on the path towards becoming "extremists," keeping communities safe and minimizing prosecutions.26 In Khan's case, however, the integration of mental health treatment and monitoring did not provide an off-ramp.27 Rather, it led to his prosecution, incarceration, and lifetime probation.28

This Note addresses the privacy concerns CVE raises, particularly with respect to individuals like Khan who receive services relating to mental illness or developmental disabilities. …

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