Against a Domestic Terror Law: We Can’t Afford to Make the Same Mistakes Again
The invasion of the United States Capitol on January 6th, egged on by President Donald Trump and a legion of more than 130 Republican members of Congress defiant not to certify the entirely legitimate election of President-Elect Joe Biden, represents an unprecedented attack on American democracy. An angry mob of neo-Nazis and Proud Boys were able to do on 1/6 what not even Osama bin Laden and al-Qaeda could on 9/11: carry out an attack on the home of the American legislative branch. All in an effort to overturn the result of what Trump’s own Department of Homeland Security (DHS) called “the most secure [election] in American history.” All, again, with the active support of more than a hundred of the president’s strongest supporters in Congress, the entirety of the right-wing media landscape, and the President of the United States himself.
Many different descriptors have been used to describe the perpetrators of this act of insurrection and nullification. “Insurgents.” “Traitors.” “Insurrectionists.” And finally, “terrorists.” White supremacist violence and acts of terrorism, like those perpetrated by the Proud Boys and neo-Nazis in that depraved mass of (in)humanity at the Capitol, have grown exponentially in recent years, especially after they elected one of their own to the highest office in American government. While conservatives spent years attacking President Barack Obama for a perceived failure to condemn “radical Islamic terrorism,” more than two-thirds of the terrorist attacks to take place on American soil have been conducted by white supremacists.
The increasing salience of white supremacist domestic terrorism has led some to astutely note the differences in the way the media and the criminal justice system treat white terrorists (if they even are labeled in that way) from terrorists of color. The 9/11 attacks led to a reorienting of American foreign policy, the creation of an entire Cabinet department, invasive new surveillance practices that profiled Muslims, people of color, and people of Middle Eastern or South Asian descent, and an Authorization for the Use of Military Force that has been employed to conduct at least 41 different military operations in at least 19 countries (including against some terrorist groups, like the Islamic State, that did not even exist on 9/11). In contrast, the President of the United States called domestic terrorists “very fine people.” We as a country should welcome these concerns, as they lay bare the ways in which racism and white supremacy are embedded in our nation’s foreign and security policies.
However, others have gone further. Some, including the president-elect, are echoing an argument made for years by the FBI Agents Association and other national security analysts and officials. These folks note that although the 2001 Patriot Act formally defines domestic terrorism, there is no specific federal crime covering domestic acts of terrorism or material support for domestic acts of terrorism not attributable to al-Qaeda, other international terrorist organizations, or their sycophants as there is for international terrorism. This legal gray area, they believe, handcuffs federal prosecutors. But as noble as the intentions of those desiring legislation criminalizing domestic terrorism may be, FBI officials already have sufficient power to investigate and prosecute white supremacist violence and further institutionalizing the tools of the War on Terror is certain to imperil the civil liberties of political dissidents and grow the surveillance and police apparatuses that have long abused the rights of Americans from historically marginalized communities.
The argument from proponents of a domestic terror law that current law handcuffs law enforcement is baseless on its face. The world has changed a great deal since British Prime Minister Margaret Thatcher insisted that, “Crime is crime is crime. It is not political,” in justifying her government’s decision to rescind political prisoner status for Irish republican prisoners in the late 1970s. Today, federal prosecutors can choose between more than 50 criminal statutes to prosecute politically-motivated violence, including murder, possessing or using weapons of mass destruction, bombing, assassination, hate crimes, treason, sedition, vandalism, threat of use of deadly force laws and more. The problem is not that some silver bullet category of “domestic terrorism” does not exist, but rather that law enforcement refuses to use the full array of legal tools at its disposal, particularly with regard to right-wing domestic terrorists that have active links to law enforcement. Tom Morello was right: some of those that work forces are in fact the same that burn crosses.
Additionally, creating a parallel domestic War on Terror to the broader post-9/11 national security state will undoubtedly lead to the very same abuses of civil liberties and fearmongering that the War on Terror wrought. Innocent people from historically marginalized communities will continue to be ensnared in a draconian surveillance and police state. Equally important, if the Global War on Terror is any precedent, American policy will fail to address the root causes of terrorism anyway and instead play a pathetic, never-ending game of Whac-A-Mole. Whether out of malice or error, “terrorism” charges will be employed and abused against legitimate political dissent or racial, religious, and ethnic minorities.
Far from merely locking up the terrorists who planned and perpetrated the 9/11 terror attacks, the Bush Administration instead exploited mass fear to instigate two separate wars that destabilized the Middle East and South Asia, set aside American treaty obligations in establishing a global torture program that destroyed America’s moral standing in the world, add drone strikes to the American arsenal that are of dubious legality and kill many more civilians than terrorists, and exploit new and existing surveillance authorities in blatant disregard of the Fourth Amendment. The security state also gave us so-called “Countering Violent Extremism” (CVE) programs, which have systematically surveilled everyday Muslims, even as Muslims commit fewer acts of terrorism than white supremacists. Some of these provisions were clawed back by President Barack Obama and others were expanded. Then President Trump rolled back Obama’s rollbacks. But not once did it appear that the question was asked whether such a state of perpetual war and surveillance was necessary or desirable. Americans and their leaders effectively submitted to the national security state out of misguided fears that the country would otherwise be “soft on terror.” Adopting a new draconian domestic terror law would illustrate that American policymakers have learned nothing from this experience and can only conceive of crushing and imperial military, policing, and surveillance solutions to the problem of white supremacy, solutions that only enhance white supremacy.
Biden will say that he can narrowly tailor the law to address civil liberties concerns and discern between “good” and “bad” civil unrest. But he cannot mitigate its potential dangers. If Biden has any doubt that the next Republican president and conservative courts will weaponize such a law against completely different, legitimate left-wing political actors, or that innocent people are caught up in traditional counterrorism policy, he can just ask Murat Kurnaz, who was detained and tortured for five whole years in Guantanamo Bay because English was not his first language and he answered in the affirmative to the question “Do you (personally) know Osama bin Laden?” when he thought his interrogators were asking whether he had merely heard of bin Laden. He can ask the victims of DHS’s perpetually increasing lawlessness and cruelty whether the agency’s abuses were at all stopped by the Obama Administration (Or not. Or perhaps he already has. President Biden himself acknowledged that the Obama Administration’s numerous deportations of immigrants without criminal records- carried out by DHS- were a mistake).
Of course, we already know that the security state and the conservative movement will weaponize counterterror and national security tools to quash domestic dissent. Richard Nixon ordered his aides to carry out a firebombing and break-in of the Brookings Institution, the eminent left-of-center think tank in D.C., to steal the think tank’s files on Vietnam. More recently and more related to terrorism, last summer President Trump expressed the desire to designate Antifa as a domestic terrorist organization. The idea that Antifa is an organization of any sort is utterly laughable. It is merely an idea and a largely nonviolent, localized movement against fascists like the president himself. It has no sort of chain of command or designated leaders, unlike terrorist organizations or really organizations of any sort. The president does not like Antifa, and has without basis echoed conspiracy theories that blamed them for the Charlottesville white supremacist massacre. If a president can throw in jail citizens engaging in First Amendment protected speech just because it offends his racist supporters or preaches leftist thought, political dissent in this country would be severely restricted.
It is an integral fact of American history that national security laws have been employed most fervently and viciously not against America’s adversaries, but rather against dissenters in the ranks of its own citizenry. For example, anti-racketeering laws (such as the Racketeering Influenced and Corrupt Organizations Act) passed during the 1940s and 1950s placed severe restrictions on union activity and kicked out suspected Communists (in flagrant violation of the First Amendment) from those organizations, all despite the fact that unions are no more or less corrupt than your average large institution and all in the name of national security. Even today, conservative judges and large corporations use RICO to disrupt union activity.
During the Cold War and the communist scare, the FBI exploited fears of communism to launch COINTELPRO, a program ostensibly designed to create factions and rifts that would destroy the Communist Party USA (again, despite the fact that advocating for communism is protected political speech in line with the First Amendment). The tactics used included anonymous phone calls, IRS audits, and the creation of fake documents designed to blackmail. The program's persecution of communists for expressing their First Amendment rights to free speech and freedom of association weas without question illegal, reckless, and exploitative. But FBI Director J.Edgar Hoover did not stop there. He shared in the conspiracy theory that any political dissident on the left in the U.S. was possibly a Soviet agent of subversion, and on his orders, the FBI unconstitutionally surveilled integral members of the civil rights movement, especially those like Dr. Martin Luther King, Jr. and Dr. T.R.M. Howard who had criticized the FBI specifically for its failure to investigate the murders of Black Americans in the South. In Dr. King’s case, Domestic Intelligence Chief William Sullivan wrote him a letter ordering King to commit suicide.
In other cases, COINTELPRO resources sought to surveil and undermine feminist organizations, environmentalists, animal rights advocates, Puerto Rican independence groups, and other New Left organizations engaging in lawful political dissidence. Not to be upstaged by the CIA’s support at the time for brutal right-wing paramilitary coups abroad, the FBI financed and armed a San Diego right-wing paramilitary called the Secret Army Organization that used violent and intimidatory tactics to silence anti-Vietnam War demonstrators. On multiple occasions, the FBI directly ordered the assasination of Chicano organizers and Marxist university professors. The Black Panther Party, the famous Black liberation organization, was also undermined by COINTELPRO tactics of perjury, intimidation, false imprisonment, and assassination of several of its leaders, namely Fred Hampton and Mark Clark. One can easily imagine a Justice Department like the one currently headed by Attorney General Bill Barr and previously headed by Jeff Sessions manipulating this new domestic terror law to intimidate nonviolent Black Lives Matter protesters. Indeed, the Trump Administration already is doing it with existing law, as its controversial surveillance of so-called “Black Identity Extremists” (read: anti-police brutality and anti-white supremacy activists) emerged and may still be in use.
But perhaps the clearest cautionary tale for a domestic terror law is the 1917 Espionage Act. The nativistic and right-wing roots of this wartime legislation are evident upon a glance at the words of President Woodrow Wilson at the time: “There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue ... I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own.” Once enacted, the Espionage Act criminalized the dissemination of information with the intention of interfering with the war effort of the United States (or assisting its enemies), as well as abusive language about the American form of government and efforts to cause disloyalty in the armed forces or obstructing the recruitment of the U.S. military. The Postmaster General was also permitted to refuse to mail publications that did any of those things. The penalties for these supposed acts of disloyalty were immense- ranging from sizable fines to 20-30 years in prison, to death.
A simple read of Wilson’s quotation makes clear that foreigners and those with “foreign” ideologies like socialism or pacifism were really the intended target of the law the whole time, though. In practice, opponents of the war were aggressively prosecuted by the U.S. government. A disproportionate degree of enforcement took place in the Western states, where the Industrial Workers of the World were active. Perhaps most famously targeted during World War I by the Espionage Act was Socialist Party presidential candidate Eugene V. Debs, who was sentenced to ten years imprisonment and stripped of his citizenship due to a speech he had given in Canton, Ohio that declared, “The master class has always declared the wars; the subject class has always fought the battles” (this was the only time that Debs actually even addressed the war in the speech).
Attorney General A. Mitchell Palmer and his deputy J. Edgar Hoover prosecuted hundreds of suspected foreign subversives, socialist anti-war publishers, and pacifist members of the clergy during the war and after the Russian Revolution, while the free speech claims of those prosecuted were ignored or refuted by the Supreme Court. Just two dissenting justices in the landmark case Abrams v. United States noticed the obvious flaw in this government policy: “Nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” That is to say, if in the eyes of the government, if one random, largely unknown private individual could sabotage the war effort on their own through their individual writings, then there could be no room for dissent and therefore the First Amendment would effectively not exist during wartime. It was perhaps altogether fitting and uniquely American that those who opposed World War I from the left faced greater repercussions from the American government than the American corporations who engaged in deceitful practices to evade sanctions for supplying the Axis Powers with oil during World War II.
Today, the Espionage Act has been employed in a manner completely foreign to its original use. Time after time, especially during the Nixon, Obama, and Trump administrations, the Espionage Act has been invoked to suppress national security information leakers, even when (in the case namely of the Pentagon Papers), the leaks concern events that had already occurred and posed no ongoing threat to the war effort or the national security of the United States. Daniel Ellsberg, the Pentagon Papers whistleblower, has said that the Espionage Act makes a fair trial entirely unattainable to those who expose classified wrongdoings. Journalists and legal experts alike have derided the law for its lack of a public interest defense and ambiguity. The targets of the Espionage Act no longer are those who seek to aid the adversaries of the United States or even the opponents of American national security policy or foreigners that the virulent racist Wilson sought to have prosecuted. They are those who risk it all to expose wrongdoing or criminality on the part of the United States government. If a domestic terror law comes to fruition, it is not only possible but likely that the second control of government changes, those in power will seek to use its immense power to silence their critics.
Republicans in many states have already been seeking to curtail the First Amendment freedom of association and speech protections of American citizens. About 30 different states each have laws on the books criminalizing the Boycott, Divestment, and Sanctions movement, whose followers seek to exert economic and political pressure on Israel to end its occupation of Palestine and recognize equal rights for Palestinians (including the right of Palestinian refugees to return as sanctioned in UN Resolution 194) through boycotts of Israeli companies. At the federal level, a resolution condemning BDS passed the House of Representatives with a bipartisan 398-17 majority while a Senate bill formally allowing states to punish companies that refuse to do business with Israel failed in the Senate in 2019, but only because 43 Democrats banded together to filibuster the GOP majority’s efforts. Like it or not, BDS is a completely First Amendment compliant form of activism, modeled after the famous boycott movement against apartheid in South Africa. Efforts to criminalize it would send the message that American citizens are only allowed to criticize American foreign policy toward some countries, but not others.
Since the Dakota Access Pipeline protests in 2016 and the rise of the Black Lives Matter movement in the U.S., there have been numerous bills introduced in state legislatures that would unduly infringe upon the rights of Americans to protest against police brutality and projects with adverse impacts on the environment and indigenous communities. In Kentucky, South Dakota, West Virginia, and Utah, laws were passed in 2020 that increased penalties and charges for those found to be “interfering with oil and gas activity,” which civil rights and environmentalist groups have largely concluded to mean peaceful protesters against pipeline projects. In Indiana, Republicans introduced a bill that would make protesters convicted of rioting ineligible for state and local government employment, as well as state and local benefits. Additionally, the bill requires cash bail and other increased penalties for crimes committed during protests, despite the fact that there already exist laws protecting for destruction of property and the like.
The intent of these cynical laws is quite simple: due to the increased potential risks of protesting, citizens will simply decide that protesting is not worth it, and these protests will disappear. These bills stigmatize protesting and chill free speech. Now imagine that the same cynical folks introducing these bills have the power to declare certain citizens to be “domestic terrorists.” Sure, maybe some Nazis would be prosecuted. But as the Espionage Act, COINTELPRO, and these state laws indicate, there exists no shortage of bigots and wannabe authoritarians who would abuse this new authority to prosecute alleged leftist members of Antifa or indigenous protesters at pipelines. It would be both unconstitutional and un-American to rid ourselves of our strongest defenses against authoritarianism when history tells us a War on Terror, foreign or domestic, will raid our national resources for more policing, more surveillance, and more of the same abuses and terrors that have long been weaponized against left-wing dissidents in America.
In the aftermath of the 9/11 attacks, Representative Barbara Lee (D-CA) justified her vote against the Authorization for the Use of Military Force in Afghanistan in saying, “As we act, let us not become the evil that we deplore.” Her message was not heeded, and the expansions of policing, war powers, and surveillance that followed produced immense violations of the civil liberties of people of color and political dissidents. A domestic terrorism law may appear at first glance noble, but at some point in time, those tasked with its enforcement will assuredly be less than noble. It is with those times in mind that America must realize that it must destroy, not recreate, the War on Terror state, and defeat the cause (white supremacy) through rebuilding representative, just, and inclusive political and economic structures rather than dwell on the acts of terrorism that can be prosecuted already with the existing tools available to the FBI. If our national reckoning with racial injustice and our Forever Wars did not teach Americans that combining abusive terrorism authorities with a racist criminal justice system will unleash unparallelled terror on the very communities the government claims to be protecting, then America is doomed to repeat the mistakes of the past.
A.J. Manuzzi is a senior in the School of Public Affairs. He is an Editor for Domestic Affairs at the Agora.
Image courtesy Rhea Ball, Creative Commons