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Why A Domestic Terrorism Law Would Create More Problems Than It Solves


Would a federal domestic terrorism law do much to solve violent extremism here at home? There’s now a push underway to enact legislation to that effect, with a New York Times feature story trumpeting the effort necessary to suppress the new threat of “white supremacy.”

The Times relies on a new report by the New Jersey office of Homeland Security and Preparedness that equates “White Supremacists” with “Homegrown Violent Extremists” as equally “high”-level threats.

Homegrown Violent Extremism is the preferred DHS euphemism for jihadist terrorists whose ties to a specific terror group cannot be established. Ironically, the report goes on to list the groups with whose ideology the so-called HVEs align, including al-Qaeda and Islamic State, as “Low” threats. The FBI investigates HVEs under the rubric of international terrorism for this reason.

Federal law differentiates international terrorism, committed by members of designated foreign groups or by American nationals in league with these foreign groups, and domestic terrorism, when there is no such foreign link.

While some states have domestic terrorism legislation, the laws almost always require the commission of a violent crime before authorities can legally intervene. This means prosecutors can often do little to preempt attacks when perpetrators are discovered, except to file relatively minor weapons charges. There is no similar legislation at the federal level. So we have the pattern of “known wolves” whom authorities had identified but were powerless to stop before a mass shooting or terrorist attack.

In comparison, membership in a designated foreign terrorist organization is itself a crime, and acts of material support (including raising money, engaging in propaganda and the like) are also felonies and can be aggressively prosecuted. Could domestic groups be similarly proscribed, as many on both right and left have argued?

Getting Bad Guys Without Crushing American Rights

The answer is not as easy as common sense would have us believe. Challenges hinder drawing up domestic terrorism legislation in a nation founded on liberty. Yet the early American founders dealt with two severe and violent rebellions—Shay’s Rebellion in Massachusetts and the Whiskey Rebellion in and around western Pennsylvania—and suppressed both unapologetically. Clearly the duly elected representatives of the people, acting with just authority, need not suffer the whims of domestic factions that would use or threaten violence to achieve political aims.

How does one rightfully draw distinctions between domestic factions with seditious intent, and the people jealously guarding their rights? When the government utilizes seemingly vague terms like “Anti-Government” in its rubric, it raises genuine concerns from citizens. How ought the government to determine who is, and who is not, a threat?

In foreign terrorism, this is relatively easy. Any attempt by foreign entities to overthrow the government or the Constitution, or forcefully impose foreign law, is de facto illegitimate. Current U.S. immigration regulations provide guidelines:

The officer will review an applicant’s record and testimony during the interview on the naturalization application to determine whether he or she was ever a member of or in any way associated (either directly or indirectly) with: The Communist Party; any other totalitarian party; or a terrorist organization.

Current and previous membership in these organizations may indicate a lack of attachment to the Constitution and an indication that the applicant is not well disposed to the good order and happiness of the United States.

Recently a U.S. judge ruled that al-Qaeda operative Iyam Faris, an immigrant from Pakistan, would be stripped of his American citizenship. The government argued that Faris lied on immigration papers before becoming a naturalized U.S. citizen in 1999 and that his terrorist affiliations demonstrated a lack of commitment to the U.S. Constitution.

Foreigners who become citizens must swear a commitment to the Constitution as a condition of naturalization. Such commitment for natural-born citizens is presumed. But by what means do security agencies make a distinction between a patriot with a healthy distrust of the government and a dangerous proponent of national socialism, Communism, or radical Islam?

What Does It Mean to Support the Constitution?

Most of us have a moral sense that allows us to understand these fundamental differences. In a Hill article arguing for domestic terrorism legislation, Seamus Hughes and Jon Lewis cite the case of Christopher Hasson, the white supremacist arrested with a stockpile of arms, as the best example of the domestic threat.

It seems reasonable that Hasson would fail this key test about defending the Constitution. Obviously, native-born citizens cannot be stripped of their American citizenship. But the language of the constitutional loyalty test does provide a framework for understanding why George Washington is rightfully regarded as a freedom fighter and Hasson as a domestic terrorist.

Historically, this was not so controversial. The U.S. government took strong action to disrupt and destroy the Ku Klux Klan, Black Panthers, and Weather Underground precisely because they understood the groups, by their ideological nature and their behavior, represented threats to the Constitution. The FBI first targeted the KKK in 1915, not because of terrorism, but because of its subversive ideology.

Our government and its security and law enforcement agencies are empowered to act against threats in fulfilment of their obligation to defend the Constitution from all enemies, “foreign and domestic.” But doing so requires understanding the ideological motivations of those that threaten.

What Motivates a ‘Violent Extremist,’ Anyway?

Today we use the term “violent extremist,” which contains a circular logic. A person is considered an “extremist” if he is able or willing to engage in violence in support of his views, yet his motivation for violence is presumed to be his fervent beliefs. Are views extreme because they are violent? Or are they violent because they are extreme?

This formulation makes the intensity of belief the determining factor for whether an individual or group should be of interest to law enforcement, rather than the degree to which their beliefs are incompatible with constitutional governance.

Politicization within the very services committed to protect the nation against terrorism has ruined what had been a common-sense approach.

Politicization within the very services committed to protect the nation against terrorism has ruined what had been a common-sense approach. In 2009, a Department of Homeland Security report on “Right-Wing Extremism” raised an uproar after it was found to have identified Second Amendment supporters and military veterans among potential extremists. The report outraged conservatives, including legislators, who observed that it drew far too wide a net that targeted people holding positions well within the American constitutional norm.

DHS eventually withdrew the report. The author of the document, Daryl Johnson, later wrote a series for the Southern Poverty Law Center (SPLC), and the SPLC’s Mark Potok wrote the foreword to Johnson’s book.

This is a good example of how politicization has corrupted institutions of trust. The SPLC has received millions of dollars in donations for deliberately stretching and obscuring the definition of threats for decades. SPLC and its sympathizers increasingly draw little distinction between threats on which there is widespread agreement, and regular, if conservative, participants in the political process, ranging from the Alliance Defending Freedom to the Family Research Council.

Partisan groups like the SPLC labeled tens of thousands of law-abiding Americans supporting the Second Amendment in Richmond, Virginia as “far-right extremists.” Virginia’s governor used the claimed presence of “extremists” as an excuse to invoke a legally questionable “state of emergency” in an effort to disrupt the protest, further exacerbating tensions with Virginia citizens seeking to exercise constitutional rights.

Ignoring Ideological Content Is a Problem

Labeling one’s political opponents as “extremists,” thereby implying they deserve the full power of governmental scrutiny and even arrest, is ripe for abuse. Without “commitment to the Constitution” as a limiting principle, any group that fervently believes in its position can be labeled an “extremist.”

Before we enact any legislation, the president and Congress must rebuild trust in American institutions.

The federal government, wedded to the content-neutral “violent extremism” narrative, finds itself increasingly incapable of analyzing the ideological and doctrinal makeup of threats, including of Islamists, Antifa, national socialists, black nationalists, or white supremacist groups, that pull at the country’s fabric. There is the ever-present temptation to include among “extremists” those with legitimate constitutional concerns.

Despite what intemperate civil libertarians might argue, there is nothing precluding the establishment of a federal domestic terrorism law. Such a law may indeed be fruitful and necessary.

But recent scandals involving not just a few bad actors at the top, but politicized careerists who engage in partisanship even while claiming to be impartial professionals have substantially weakened the public’s trust of the intelligence and law enforcement bureaucracy. Indeed, their misconduct causes reasonable people to question those officials’ commitment to upholding their oaths to the Constitution.

Before we enact any legislation, the president and Congress must rebuild trust in American institutions. They must act against the current politicized culture and insist our intelligence and law enforcement agencies reorient their understanding of domestic threats to one in accord with the country’s first principles.