{"id":23918,"date":"2021-01-19T13:53:11","date_gmt":"2021-01-19T13:53:11","guid":{"rendered":"https:\/\/www.currentaffairs.org\/2021\/01\/why-we-dont-need-a-new-domestic-terror-law\/"},"modified":"2021-01-19T14:11:10","modified_gmt":"2021-01-19T14:11:10","slug":"why-we-dont-need-a-new-domestic-terror-law","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/01\/19\/why-we-dont-need-a-new-domestic-terror-law\/","title":{"rendered":"Why We Don\u2019t Need a New Domestic Terror Law"},"content":{"rendered":"\n
\n \n \n \n \n \n \n \n \n \n <\/div>\n\n
\n

The events that transpired at the Capitol on January 6 were terrifying. Many questions remain, but it seems like things could have gone even worse. Some rioters carried zip ties<\/a>, as if they intended to take hostages. Rep. Ayanna Pressley described<\/a> how the panic buttons in her office were stripped. Rep. Alexandria Ocasio-Cortez said she and other members of Congress \u201cwere nearly assassinated\u201d<\/a> and that she was reluctant to shelter alongside some of her Republican colleagues, because she believed they would disclose her location.<\/p>\n

The impulse to \u201cdo something\u201d is perfectly reasonable<\/a>, but it\u2019s also important to critically assess the proposals being made.  <\/p>\n

In the aftermath of these events, Joe Biden has said he would prioritize<\/a> passing domestic terrorism legislation. This response, from the man who supported the Patriot Act and bragged<\/a> that it had been based on his legislation, is an unsurprising but troubling development. <\/p>\n

Liberal pundit Bill Scher, echoing Biden\u2019s comments, boldly proclaimed<\/a> in the Washington Monthly<\/em>, \u201cIt\u2019s time for a domestic terrorism law\u2026 we can meet the domestic terror threat and preserve civil liberties.\u201d <\/p>\n

Anyone with even a passing familiarity with the War on Terror and the deleterious effects it has had on civil liberties should be intrigued by this proposal. A way to balance these two often competing concerns? Let\u2019s hear Scher out! <\/p>\n

Scher begins by contextualizing the danger posed by the rioters, quoting Jonathan Greenblatt (head of the Anti-Defamation League, an organization with<\/a> a long history<\/a> of disregarding<\/a> civil liberties) who explains that the events at the Capitol were a \u201cwatershed moment for the far-right extremist movement\u201d and these groups \u201care certainly not going anywhere.\u201d<\/p>\n

This leads Scher to declare: \u201cWe are dealing with terrorists. We need a counterterrorism strategy. And that will require a new domestic terrorism law.\u201d<\/p>\n

One may wonder why we need a new domestic terrorism law to prosecute already-illegal activities, but Scher doesn\u2019t give us much of an answer. He dismisses these and related concerns from Glenn Greenwald<\/a> and Luke Savage<\/a> as \u201cknee-jerk reactions, removed from any specific, detailed proposals.\u201d Scher goes on to assert that: <\/p>\n

\n

[R]eflexive denunciations are no more helpful than mindless cheerleading for new laws. We should have a clear-eyed understanding of the Constitution, the current law, and the growing terror threat and proceed accordingly.<\/em><\/p>\n<\/blockquote>\n

Ok, so what does he have in mind?<\/p>\n

First, Scher recommends that \u201cCongress should, at minimum, pass a law establishing a permanent, sufficiently funded domestic counterterror program, either as part of a larger domestic terrorism bill or while other legal changes are debated.\u201d A fully-funded program dedicated to monitoring, infiltrating, and disrupting worrying domestic activities? What could possibly go wrong<\/a>! <\/p>\n

Scher also describes a piece of legislation he hopes will pass once Biden takes office, crafted by Illinois Democrats Rep. Brad Schneider and Sen. Dick Durbin, which would \u201cauthorize three offices, one each within the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Federal Bureau of Investigation (FBI), to monitor, investigate, and prosecute cases of domestic terrorism.\u201d <\/p>\n

It takes a special type of delusion<\/a> to look at the sprawling<\/a> American surveillance<\/a> state and conclude that the issue is inadequate monitoring. These departments can already monitor, investigate, and prosecute people engaged in alleged wrongdoing, and the notion that legislation expanding their mandate and powers further will in some way make us all safer is plain wrong.<\/p>\n

That\u2019s not just my opinion. Rep. Alexandria Ocasio-Cortez, Vice Chair of the Oversight Subcommittee who ran investigations into domestic terror laws, has said<\/a> that \u201cOur problems on Wednesday weren\u2019t that there weren\u2019t enough laws, resources, or intelligence. We had them, [and] they were not used.\u201d<\/p>\n

But don\u2019t take Rep. AOC\u2019s word for it, here\u2019s former FBI Agent Michael German<\/a>:<\/p>\n

\n
\n
\n
\n
\n

First, what I want the public to understand is that no new law is necessary. \u2026<\/em><\/p>\n<\/blockquote>\n

\n

There are five federal hate crime statutes. There are 51 federal crimes and terrorism statutes that apply to domestic terrorism. There are organized crime statutes. There are conspiracy statutes. There\u2019s plenty legal authority to address these crimes …<\/em><\/p>\n<\/blockquote>\n

\n

Law enforcement already has the power to address violent crime. They\u2019re choosing not to. What Congress needs to do and what the new administration needs to do is get to the bottom of why they\u2019re choosing not to.<\/em><\/p>\n<\/blockquote>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

Another piece of legislation Scher approvingly references is by Rep. Adam Schiff. The California Democrat\u2019s bill, according to Scher, would (among other things) further expand what\u2019s called the material support statute. Shayana Kadidal, a Senior Managing Attorney at the Center for Constitutional Rights who served as counsel on major cases challenging the constitutionality of the material support statute, explained that:<\/p>\n

\n

[T]he material support statute is designed to make it criminal to do almost anything beyond independent professing agreement with an organization that the President places on the list. If, for instance, an overseas chapter of the Proud Boys were listed under the material support statute, and we wrote a[n op-ed] stating that the law was overbroad and the group should not be listed, that could be held to be a felony if we wrote it in any degree of coordination with members of the group.<\/em><\/p>\n<\/blockquote>\n

Feel free to swap in another organization that is more sympathetic for left-wingers (like antifa or Black Lives Matter) if it helps you understand the dangers of this statute. According to Kadidal, a government lawyer once said in court that the goal of the statute was \u201cto make these groups radioactive\u201d so that Americans would be afraid to have any kind of association with them. \u201cThat\u2019s not good for the health of our democracy,\u201d Kadidal observes.<\/p>\n

It\u2019s not only Americans who are harmed by the material support statute. The Trump administration has just moved to classify<\/a> the Houthi rebels in Yemen<\/a>, who control territory where 80 percent of Yemenis reside, as a terror group. As a result, aid efforts<\/a> may be seriously impeded<\/a> in a country that has been described as the world\u2019s worst humanitarian crisis. <\/p>\n

Expanding the statute further, as Rep. Schiff, Scher, and some Biden advisers seem to want, could cause even more trouble. \u201cA domestic material support statute,\u201d Kadidal explains, \u201cwould permit the government to criminalize a variety of associations traditionally protected by the First Amendment, without ever producing evidence of specific intent to further the criminal ends of these organizations.\u201d Is Scher oblivious to these civil liberties concerns, or does he just not care?<\/p>\n

Scher\u2019s response to another concern raised by law professor Francesca Laguardia should give you an indication. Commenting on Rep. Schiff\u2019s bill and two other pieces of legislation, Laguardia asks<\/a>: \u201cwould these statutes call it terrorism to throw a brick through a window, provided there was a swastika on it? The low level of damage required for a charge of terrorism renders the three proposed statutes frighteningly extreme.\u201d<\/p>\n

Scher\u2019s glib reply is \u201cdon\u2019t throw a brick through a window with a swastika on it.\u201d Reasonable people can disagree about whether property damage, as a tactic, is the right approach for advancing a political agenda, but hopefully we can all agree that spray painting \u201ckill all the billionaires\u201d and smashing a window is a far cry from terrorism. The fact that Rep. Schiff\u2019s legislation and other legislation even potentially raises the possibility of prosecuting petty vandalism as terrorism should be seriously disturbing to everyone, particularly people like Scher who profess to be concerned about civil liberties. Living in a country with the largest<\/a>, and most punitive<\/a>, prison system in the world, is it really necessary (let alone a good idea) to make prison sentences harsher and give prosecutors one more tool to lock people up?<\/p>\n

It may be true, as Scher contends, that white supremacists have committed most of the lethal domestic terrorist attacks over the last two decades. But this does not necessarily <\/em>mean that most of the people surveilled, prosecuted, and punished under a new domestic terrorism law will be white supremacists. In fact, given what we know<\/a> about how our criminal justice system<\/a> and other government agencies<\/a> operate, there is good reason to believe that people of color<\/a>, Muslims<\/a>, and leftists<\/a> (like those involved in antifascist<\/a> organizing) will be disproportionately surveilled, prosecuted, and punished under a domestic terrorism law.<\/p>\n

It\u2019s worth remembering that despite occasional lip service<\/a> to the contrary, the FBI, DHS, DOJ, and other American government agencies are not made up of people who share your or my politics. The gingerly (and in some cases outright cordial<\/a>) treatment that rioters who stormed the Capitol received when met by police provides a good indication of the type of disparate treatment<\/a> they and other conservatives and white supremacists might receive if a new domestic terrorism law is enacted. <\/p>\n

Even if you expect a Biden administration to be more sympathetic toward people of color, Muslims, and leftists, the legislation and prosecutorial powers will remain after the Biden administration ends. I don\u2019t especially want authoritarian<\/a> President Tom Cotton whose administration is run by genteel American fascist Dan Crenshaw, QAnon Looney Tune Marjorie Taylor Greene, Hitler Youth Madison Cawthorn, and Attorney General Alex Jones<\/a> to have these powers. I shudder to think how they would wield them.<\/p>\n

Indeed, the terrorism laws we already have on the books allow for things like imprisoning a lawyer <\/a>for sending a press release<\/a> to Reuters<\/em>, imprisoning a man for 15 years without charge who never was accused of raising arms against the United States but was a cook for the Taliban<\/a>, and the criminalization<\/a> of advising<\/a> terrorist groups on peace negotiations. The former FBI Director under Obama, James Comey, did not believe the Charleston church murderer was a terrorist, but the FBI had no trouble<\/a> accusing two animal liberation activists who released some minks and vandalized various properties of \u201cdomestic terrorism.\u201d Protesters who participated in the George Floyd uprisings have also been charged with terrorism<\/a>, often for property damage.<\/p>\n

We already have all the laws, resources, and intelligence we need to prosecute people for doing things like conspiring to harm federal officials. Biden, Scher, Rep. Schiff, and others will try and persuade you otherwise, but their case doesn\u2019t hold up. (A former chief prosecutor at Guantanamo<\/a> urging that \u201cwe start a domestic war on sedition by domestic terrorists\u201d should give everyone who claims to care about civil liberties pause.) All passing a domestic terrorism law will do is invest the government with even more power to spy, prosecute, imprison, and punish. There is no shortage of those things in this country already, and anyone who tells you otherwise is selling you a fantasy. And, as usual, the people who will be disproportionately affected will be Muslims, people of color, and leftists.<\/p>\n

Let\u2019s not fall for it.<\/p>\n <\/section>\n\n\n

This post was originally published on Current Affairs<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

The government already has all the power it needs\u2026<\/p>\n","protected":false},"author":1671,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23918"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1671"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=23918"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23918\/revisions"}],"predecessor-version":[{"id":23919,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/23918\/revisions\/23919"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=23918"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=23918"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=23918"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}