Why Enacting A Domestic Terror Law Is A Terrible Idea

One wonders how long it would take for a domestic terrorism law to be weaponized against political dissidents and minorities.

Memorials to victims outside the Tree of Life synagogue — Official White House Photo by Andrea Hanks

Jan. 13, 2021

This week, Washington D.C. seemed to be preparing for full-scale war, as thousands of national guard troops were deployed to the Beltway. The scenes showed heavy military equipment and troops occupying large swaths of the city, with some service members forced to sleep on the Capitol floors.

The dramatic images of military forces patrolling D.C. brought back dark memories of the city in the immediate days after 9/11, when, like now, Washington seemed scared and panicked. Amid the fears following 9/11, Congress passed a bevy of new laws and programs. Most notably, lawmakers passed the U.S. Patriot Act and created the Department of Homeland Security, both of which were later used to spy on Americans and abuse their Constitutional rights.

Last week, in response to the riot on Capitol Hill, lawmakers, including President-elect Joe Biden, did not hesitate in letting the latest crisis in Washington go to waste. Almost immediately, members of Congress began calling for new legislation aimed at making “domestic terrorism” against the law.

But the push to make “domestic terrorism” a federal offense is not new. Molly McCord, a former DOJ lawyer who oversaw the early stages of the RussiaHoax pushed for the creation of such an offense years ago.

Federal law defines terrorism as dangerous and illegal acts intended to coerce a population or influence the population or the government. While the crime can be charged in some states, no generic federal law exists.

Those pushing for the creation of a domestic terror law argue that enacting a federal crime would place it on the same “moral plane” as international terrorism and likely deter people from engaging in domestic acts of terror.

Further, they assert that making domestic terror a federal offense would allow not only those who commit terroristic acts to be prosecuted, but allow anyone who provides “material support” to be dragged into court under 18 U.S.C. § 2339A.

Make no mistake, enacting a domestic terror law is a terrible idea.

First, there are ample criminal statutes that provide for substantial punishment for those who commit violent crimes in furtherance of domestic extremist causes. Murder is a crime in all 50 states, punishable by life imprisonment or, in some cases, death.

Moreover, all states, including the federal government, have various hate crimes on the books. Depending on the law, hate crimes are also punishable by death. For example, Dylan Roof was convicted of 33 federal hate crimes and was sentenced to death. Thus, while applying the label “domestic terrorist” might make some feel better, but it would have little practical impact for punishment purposes.

Mugshot of Roof taken by the Charleston County Sheriff’s Office, June 18, 2015

Second, consider the practical implications at trial for both the defendant and the government. For starters, think about how the label “domestic terrorist” might affect a defendant’s ability to get a fair trial. For Democrats who often decry the justice system and push for criminal justice reform, this consideration should not be lost.

Being labeled a domestic terrorist would undoubtedly have a prejudicial effect on the defendant. From a practical standpoint, it might require courts to change the venue, like in the case of Timothy McVeigh.

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As for the government, it would likely require prosecutors to prove that the defendant intended to intimidate or influence the government or civilian population. Thus, securing a criminal conviction in cases where the defendant did not clearly offer a motive for his actions—for example, like the Las Vegas shooter—it would be an uphill battle for prosecutors.

Third, creating a domestic terrorism law would add little to improve the investigative techniques of law enforcement.

In international terrorism cases, the government general receives considerably judicial deference, allowing its agents to engage in rigorous surveillance under the arguably loose oversight of FISA courts.

But in internal affairs, the Supreme Court has been quite clear, the Constitution’s Fourth Amendment protections apply. Thus, even with a domestic terror law, government surveillance and investigation of “domestic terrorists” would (and should) be restricted by the Constitution and federal law (Title III), and require the issuance of traditional warrants. As a result, Congress making “domestic terrorism” a crime would add little in bolstering the legal tools available to the FBI.

Last, and perhaps most importantly, one wonders how long it would take for a domestic terrorism law to be used against political dissidents and minorities. It’s a concern that even the ACLU has raised.

In a recent letter to Congress, the ACLU wrote:

While well-intentioned, this act has repercussions for people of color and other marginalized communities—populations that have long been targeted for unjustified and discriminatory domestic terrorism investigations and surveillance…Enacting “domestic terrorism” legislation would not only entrench a system that lacks meaningful oversight, transparency, and legitimate standards, but also codifies a framework that is used to target and discriminate against the very communities Congress hopes to protect.

Moreover, consider the impact that a domestic terror law could have on political “protest” groups.

In the summer of 2020, according to some liberal commentators, “Trump sent federal troops to invade Portland.” Imagine how federal agents, armed with their newfound domestic terror authority, could have quickly arrested not just the members of ANTIFA who attacked the federal court house, but anyone who ever provided any “material support” to the organization.

Enacting a domestic terror law is a terrible idea. There are already ample criminal statutes available to prosecute violent extremists. Passing a federal offense would provide little benefit and comes at the extreme risk of unleashing the widespread targeting and surveillance of marginalized communities by the federal government.

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