“Domestic Terrorism”: the next excuse for an erosion of civil liberties?

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Dayton, Ohio – 9 dead; El Paso, TX – 22 dead; Virginia Beach, VA – 12 dead; Umpqua Community College, OR – 9 dead; Columbine High School, CO – 15 dead; Marjorie Stoneman Douglas High School, FL – 17 dead; Orlando, FL – 49 dead; Sutherland Springs, TX – 27 dead; Sandy Hook, CT – 28 dead; Las Vegas, NV – 59 dead.

And the tragic list goes on and on.

The perceived threat of mass shootings by American citizens now dwarfs the threat of attacks by Islamist terrorists, according to a recent Fox News poll. 60 percent fear the former more than the latter.

The poll revealed that this attitude holds true for Democrats and Republicans, liberals and conservatives, men and women, whites with and without a college degree, urban, suburban, and rural residents, and (by a margin of 53 percent to 23 percent) gun owners.

With this kind of public fear, it’s not surprising that there’s now a lot of talk about what should be done, what current laws need to be better enforced, what new laws are needed and what resources should be devoted to combating a rising threat.

“Now is the time to move past the politics that have prevented needed action, to get started on a comprehensive review of the actual threat and to recommend possible and substantive plans to public officials at the federal, state and local levels,” say Javed Ali, a Towsley Policymaker in Residence at the University of Michigan’s Gerald R. Ford School of Public Policy, and Josh Kirshner, former special assistant to the Under Secretary of State for Arms Control and International Security.

John R. Alle and Brett McGurk, former special presidential envoys for the Global Coalition to Counter ISIS, asserted a similar view in an Aug. 6 Washington Post opinion column: “The United States now faces a new national security threat. The enemy is not the Islamic State but domestic and homegrown white nationalist terrorism. And “terrorism” is the term that must be used.”

History shows us, however, that we should be extremely cautious about over-reacting in the heat of the moment, heading pell-mell down the road of tougher, more intrusive measures designed to counter what is perceived as a rising threat.

Caution was certainly not the byword when, immediately following the September 11, 2001 terrorist attacks, Congress considered The USA PATRIOT Act (officially titled the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”).

The American Civil Liberties Union urged Congress to reject the Patriot Act. “The American Civil Liberties Union believes that the USA PATRIOT Act gives the Attorney General and federal law enforcement unnecessary and permanent new powers to violate civil liberties that go far beyond the stated goal of fighting international terrorism,” the ACLU said in a letter to Senators.  “These new and unchecked powers could be used against American citizens who are not under criminal investigation, immigrants who are here within our borders legally, and also against those whose First Amendment activities are deemed to be threats to national security by the Attorney General.”

But the objections of the ACLU and others went unheeded. President George W. Bush signed the Patriot Act into law on October 26, 2001.

As the Constitutional Rights Foundation noted, “Soon after September 11, U.S. Attorney General John Ashcroft brought before Congress a list of recommended changes in the law to combat terrorism. Some of these measures had long been opposed by members of Congress as infringing on the rights of Americans. But September 11 had swept away all previous objections.”

Sept11

Still, vociferous critics of the hastily written Patriot Act quickly emerged after it went into effect.

The Electronic Frontier Foundation said the law “gives sweeping search and surveillance to domestic law enforcement and foreign intelligence agencies and eliminates checks and balances that previously gave courts the opportunity to ensure that those powers were not abused.” The law and potential follow-up legislation “threaten the basic rights of millions of Americans,” the Foundation said.

The 9/11 Commission led by former New Jersey Governor Tom Keane and former Indiana Congressman Lee Hamilton, put forward a broad swath of recommendations that generated objections, too.

Critics said, for example, that the recommendations could lead to such things as: privacy violations; the development of massive databases about citizens who were not the targets of criminal investigations; lowering the bar for launching foreign intelligence wiretaps and searches; exposing people to guilt by association.

Another fast-track move after 9/11 was the creation of a massive Department of Homeland Security (DHS) because of concerns about the lack of coordination and intelligence sharing among government agencies. was a central concern that led to the cabinet department’s creation.

The Homeland Security Act of 2002 became law on November 25, 2002, combining 22 different federal departments and agencies. Today it has more than 240,000 employeesin a sprawling federal bureaucracy and is widely accused of general mismanagement, misallocated investment, and civil liberties abuse.

Washington Post investigation found that many DHS employees said they had “a dysfunctional work environment” with “abysmal morale.”

Making its job more difficult, a complex tangle of 90 congressional committees and subcommittees oversee DHS. I’ve worked on the Hill and I assure you that level of Congressional connections is simply unmanageable.

Keane and Hamilton have now resurfaced to advocate another commission on domestic terrorism similar to theirs with a similar mandate. Who knows what mischief could occur in another commission with this charge.

Robert M. Chesney, Director of the Robert Strauss Center for International Security and Law at the University of Texas School of Law, has written in Lawfare about whether a federal ‘Domestic Terrorism’ statute should be created, a purely domestic surveillance system should be established or legislation should be passed to create a domestic version of the designated foreign terrorist organization list, complete with a ban on material support to such groups.

In the aftermath of recent mass shootings, President Trump vowed Monday to give federal law enforcement “whatever they need” to investigate and disrupt hate crimes and domestic terrorism.

Republican Sen. Martha McSally of Arizona and Democratic Rep. Adam Schiff of California have already introduced bills that would provide federal law enforcement with tools to combat domestic terrorism. Both bills they raise domestic terrorism to the moral equivalent of international terrorism,

The McSally and Schiff bills are essentially the same. Both would create a new crime of domestic terrorism, making it illegal to kill, kidnap or assault another person; create a substantial risk of serious bodily injury by intentionally destroying or damaging property; or threaten to do so “with the intent to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion[,] or affect the conduct of a government by mass destruction, assassination or kidnapping,” in the language of the House bill. The wording of the Senate bill is substantively similar.

Both bills also amend 18 U.S.C. § 2339A, which makes it a crime to provide material support or resources “knowing or intending that they be used in preparation for, or in carrying out, a violation of” certain statutes. The new provision adds to that list of crimes the new domestic terrorism offense.

“These bills would provide much-needed tools to federal agents and prosecutors who sometimes find themselves without adequate means for addressing domestic terrorism,” Barbara McQuade, a Professor of Law at the University of Michigan Law School, has argued in Lawfare.

But federal action could also lead to surveillance systems of once unimaginable breadth, all in the name of security. China is already well on the way to showing what can happen.

China is close to having 600 million surveillance cameras watching its population.  “The cameras feed government databases in real time and, with the assistance of sophisticated facial-recognition software,” F.H. Buckley wrote on Aug. 29  in the Wall Street Journal. “Beijing eventually expects to be able to identify everyone, everywhere within three seconds of anything happening. That may deter crime, but it will also enable the government to monitor people it thinks undesirable.”

 

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China’s facial recognition technology identifies visitors in a display at the Digital China Exhibition in Fuzhou, Fujian province, in May 2019.

Then there’s China’s emerging Social Credit System. Under this system, the government plans to create a big data–enabled surveillance infrastructure to manage, monitor, and predict the trustworthiness of its people and implement a punishment/reward system based on scores.

Proposals for combating domestic terrorism in the U.S. are also surfacing at the state level.

In New Mexico, for example, the governor, key lawmakers and members of law enforcement have said they will pursue several initiatives. Proposals include increasing penalties for hate crimes, improving mental health care, proposing additional gun safety legislation and creating a state counterterrorism unit.

And in Texas, the governor is launching a domestic terrorism task force that will analyze current and emerging state threats to improve prevention strategies.

All of this activity, and likely more to come, increases the likelihood of actions that are done in haste, not well thought out and potentially endanger civil liberties.

“…proposals tend either to be duplicative of laws that already exist or expansive in ways that violate First Amendment rights of speech and association,” David Cole, the legal director of the American Civil Liberties Union, told the New York Times earlier this month.

Former Obama Chief of Staff Rahm Emanuel advised never letting a crisis go to waste. Politicians and ideologues are unlikely to let the much- hyped threat of domestic terrorism go to waste.

Then there’s the law of unintended consequences. As James Risen, Senior National Security Correspondent at The Intercept, a left-leaning online news outlet, put it, “…simplistic answers like launching a domestic war on terror would certainly lead to unintended consequences that would cascade for decades, and might be worse than those that stemmed from the original global war on terror.”

A lot to think about.

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