Momentum is being built in Congress for laws to combat domestic terrorism. Several bills have already been introduced.
The crowd attack on the Capitol on January 6, which some analysts claimed fit the definition of terrorism, added a sense of urgency. I have been researching international and local terrorism for decades and I am cautious about this approach. Five purely pragmatic reasons to avoid dealing with domestic terrorism with a new law:
Fast and Furious Make Bad Laws
Legislators are understandably angry. They are dealing with increasing threats of violence against themselves, their employees and their families. And yes, something must be done to deal with those who want to intimidate public officials, even if they do not physically hurt them. But hastily drafted laws are dangerous and often have unintended consequences.
When the Racketeer Influenced and Corrupt Organizations Act (RICO) was passed in the aftermath of the turbulent 1960s, no one predicted that it would apply to anti-abortion protesters or that the federal government would later consider using it against Black Lives Matter and antifa members.
The US COLLEGE Act, which some now see as a prototype for local terrorism legislation, passed Congress within three days, leading to the controversial expansion of electronic surveillance on US citizens that the bill’s sponsors had never dreamed of.
First Amendment Challenges
The US Patriot Act and other international terrorism laws enacted after 9/11 were aimed at addressing specific situations. They are not a template for combating domestic political violence, which has a completely different historical context. Yet what many in Congress are looking for is a local version of the subsidy provision of the Patriot Act, which criminalizes financial support for a designated foreign terrorist organization.
Prosecutors have broadly interpreted the financial support to include participation in propaganda activities, fundraising, and even group membership – there is no need to show any link to advance terrorism. Courts have made progress. But internally, these activities will inevitably create legal challenges under the First Amendment.
Who Gets Labeled a Terrorist?
Another aspect of the financial support provision is that it requires identifying certain groups as local terrorist organizations – this is where the problem lies.
Recent hearings have shown that Congress has not reached much consensus on the definition of terrorism, let alone the identity of today’s indigenous terrorists. Some want to ensure that the laws cover the types of violence sometimes associated with police violence protest movements in the past year; others focus on the actions of the far right.
The next discussion on who to be listed will be distracting and divisive in an area where national unity is required.
It Could Backfire
Attaching a terrorist label to your enemies provides a political advantage. President Trump wanted to designate Antifa as a terrorist organization. Others are after the Proud Boys. There are hundreds of extremist groups and other problem-focused groups on both ends of the political spectrum, as well as possibly what could be termed terrorist organizations. Moreover, organization in the local context is a slippery term. Some organizations are identifiable groups. Others are mentality.
About 10 percent of the Capitol occupants were members of known extremist groups – they came to fight, according to newly published research, based on statements from the University of Chicago on social media.
About 90 percent were ordinary people who believed they were taking patriotic action to prevent the election being stolen. They were wrong, but there is a risk of defaming a significant part of the country in connection with terrorists. But the goal of fighting domestic violent extremists is not to isolate them from potential constituencies, to widen the target.
Easier to Prosecute? Hardly.
No “terrorist” went unpunished for the absence of law. Some members of Congress may think that adding a local equivalent of the financial support provision would facilitate the prosecution of crimes. This is unlikely to be the case. Prosecutors will have to demonstrate the involvement and motivation of each defendant, and this can be difficult.
Indigenous jihadist terrorists were typically lone criminals who had to calculate their chances of success with the jury and its potential bias against Islamic defendants after 9/11. They frequently negotiated a plea deal. (My research also shows that about half of the jihadist terrorists who carried out attacks in the United States after 9/11 were prosecuted for ordinary criminal offenses that did not provide financial aid.)
Domestic violence proponents, by contrast, will want to spend their days in court. Judging them as ordinary criminals will be simpler, less controversial, and will deprive them of their political claims.
American society has traditionally tolerated a wide range of behavior in political protests, even when participants crossed the line from legal to illegal and peaceful to violence.
If the behavior becomes bad enough – as in aggravated attacks or plundering – the usual criminal laws can be applied. If there are certain shortcomings in our laws, Congress can resolve them without using the word “terrorism.” Likewise, if there are obstacles to gathering intelligence or initiating investigations, these can possibly be addressed through congressional oversight adjustments to the attorney general’s rules.
Dealing with the increased violence by indigenous extremists may be the biggest legal challenge and politically sensitive undertaking this nation has faced since the Civil War. However, our current criminal laws are sufficient. They were successfully used to weaken the former white supremacist groups and defeat the left-wing bombers of the 1970s.
Instead of a new local terrorism law, this moment requires the scrupulous and equal application of existing laws, treating criminals as ordinary criminals, and avoiding laws that could undermine Americans’ rights and create labels that deepen the existing political divide.