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, as if they intended to take hostages. Rep. Ayanna Pressley described how the panic buttons in her office were stripped. Rep. Alexandria Ocasio-Cortez said she and other members of Congress “were nearly assassinated” and that she was reluctant to shelter alongside some of her Republican colleagues, because she believed they would disclose her location.
The impulse to “do something” is perfectly reasonable, but it’s also important to critically assess the proposals being made.
In the aftermath of these events, Joe Biden has said he would prioritize passing domestic terrorism legislation. This response, from the man who supported the Patriot Act and bragged that it had been based on his legislation, is an unsurprising but troubling development.
Liberal pundit Bill Scher, echoing Biden’s comments, boldly proclaimed in the Washington Monthly, “It’s time for a domestic terrorism law… we can meet the domestic terror threat and preserve civil liberties.”
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’s hear Scher out!
Scher begins by contextualizing the danger posed by the rioters, quoting Jonathan Greenblatt (head of the Anti-Defamation League, an organization with a long history of disregarding civil liberties) who explains that the events at the Capitol were a “watershed moment for the far-right extremist movement” and these groups “are certainly not going anywhere.”
This leads Scher to declare: “We are dealing with terrorists. We need a counterterrorism strategy. And that will require a new domestic terrorism law.”
One may wonder why we need a new domestic terrorism law to prosecute already-illegal activities, but Scher doesn’t give us much of an answer. He dismisses these and related concerns from Glenn Greenwald and Luke Savage as “knee-jerk reactions, removed from any specific, detailed proposals.” Scher goes on to assert that:
[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.
Ok, so what does he have in mind?
First, Scher recommends that “Congress 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.” A fully-funded program dedicated to monitoring, infiltrating, and disrupting worrying domestic activities? What could possibly go wrong!
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 “authorize 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.”
It takes a special type of delusion to look at the sprawling American surveillance 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.
That’s not just my opinion. Rep. Alexandria Ocasio-Cortez, Vice Chair of the Oversight Subcommittee who ran investigations into domestic terror laws, has said that “Our problems on Wednesday weren’t that there weren’t enough laws, resources, or intelligence. We had them, [and] they were not used.”
But don’t take Rep. AOC’s word for it, here’s former FBI Agent Michael German:
First, what I want the public to understand is that no new law is necessary. …
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’s plenty legal authority to address these crimes …
Law enforcement already has the power to address violent crime. They’re choosing not to. What Congress needs to do and what the new administration needs to do is get to the bottom of why they’re choosing not to.
Another piece of legislation Scher approvingly references is by Rep. Adam Schiff. The California Democrat’s bill, according to Scher, would (among other things) further expand what’s 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:
[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.
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 “to make these groups radioactive” so that Americans would be afraid to have any kind of association with them. “That’s not good for the health of our democracy,” Kadidal observes.
It’s not only Americans who are harmed by the material support statute. The Trump administration has just moved to classify the Houthi rebels in Yemen, who control territory where 80 percent of Yemenis reside, as a terror group. As a result, aid efforts may be seriously impeded in a country that has been described as the world’s worst humanitarian crisis.
Expanding the statute further, as Rep. Schiff, Scher, and some Biden advisers seem to want, could cause even more trouble. “A domestic material support statute,” Kadidal explains, “would 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.” Is Scher oblivious to these civil liberties concerns, or does he just not care?
Scher’s response to another concern raised by law professor Francesca Laguardia should give you an indication. Commenting on Rep. Schiff’s bill and two other pieces of legislation, Laguardia asks: “would 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.”
Scher’s glib reply is “don’t throw a brick through a window with a swastika on it.” 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 “kill all the billionaires” and smashing a window is a far cry from terrorism. The fact that Rep. Schiff’s 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, and most punitive, 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?
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 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 about how our criminal justice system and other government agencies operate, there is good reason to believe that people of color, Muslims, and leftists (like those involved in antifascist organizing) will be disproportionately surveilled, prosecuted, and punished under a domestic terrorism law.
It’s worth remembering that despite occasional lip service 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) treatment that rioters who stormed the Capitol received when met by police provides a good indication of the type of disparate treatment they and other conservatives and white supremacists might receive if a new domestic terrorism law is enacted.
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’t especially want authoritarian 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 to have these powers. I shudder to think how they would wield them.
Indeed, the terrorism laws we already have on the books allow for things like imprisoning a lawyer for sending a press release to Reuters, 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, and the criminalization of advising 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 accusing two animal liberation activists who released some minks and vandalized various properties of “domestic terrorism.” Protesters who participated in the George Floyd uprisings have also been charged with terrorism, often for property damage.
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’t hold up. (A former chief prosecutor at Guantanamo urging that “we start a domestic war on sedition by domestic terrorists” 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.
Let’s not fall for it.