National Review Online
Thursday, May 19, 2022
Anti-terrorism laws are supposed to be
law-enforcement tools, not political stratagems. The so-called Domestic
Terrorism Prevention Act, which House Democrats began pushing after the January
6 riot and have now revived in the wake of the Buffalo massacre, is
clearly a political stratagem.
The point of the revived proposal, which House Democrats
plan to push to the floor for a vote in coming days, is not to beef up the
government’s capacity to investigate and prosecute acts of terrorism committed
inside the United States. That would merely be superfluous. Federal and state
law-enforcement agencies already have a rich arsenal of authorities that enable
suspected terrorists to be monitored and, if they plot or carry out mass
murder, to be prosecuted and punished severely.
Instead, the Democrats’ proposal would actually create
indefensible exceptions in terrorism law. It would narrow the
scope of terrorist activity that existing statutes can reach — for the
blatantly political purpose of labeling white supremacism, alone, as the
nation’s urgent domestic security challenge. Toward that end, it would divert
investigative resources from other terrorist threats. Democrats would then, we
can be sure, demagogue conservative policy preferences — e.g., Second Amendment
rights, free expression, opposition to progressive indoctrination in the
schools and other institutions — as catalysts of white supremacism that must be
monitored by the Justice Department.
As our Andrew C. McCarthy detailed when Democrats initially rolled out the
proposal in early 2021, the legislation would tweak federal law’s current
definition of domestic terrorism — a definition that properly encompasses all ideologically
driven violence — in a manner that shields jihadist terrorism from its reach.
That is why Islamist organizations, which align politically with Democrats and
reliably oppose initiatives to improve national security, have expressed
support for the proposed Domestic Terrorism Prevention Act.
Federal law does not detail a specific list of crimes
that are designated as domestic terrorism; quite appropriately, it simply
defines the broad term. A plethora of statutory offenses already address
terrorist activity — as attested by the speed with which federal and state
authorities responded to the mass murder in Buffalo.
In the realm of foreign terrorism, Congress has had to
proscribe crimes because alien terrorists are non-Americans who predominantly
operate outside U.S. jurisdiction, and thus beyond the otherwise limited
authority of U.S. law enforcement and courts. By contrast, as the courts have
acknowledged, domestic terrorism is inevitably and inextricably bound up with
constitutionally protected dissent and association. As we learned from
20th-century domestic-spying scandals, loose legal standards invite the
government to invoke “domestic terrorism” as a pretextual rationale for
surveillance of the opposition.
For these reasons, the trigger for conducting
domestic-terrorism investigations is evidence that a subject is engaged in
criminal activity. That is a sensible red line. There are many potential crimes
that terrorists commit in the preparation and execution phases of their operations,
so the standard does not unduly restrain competent investigators from opening
cases and monitoring suspects. Indeed, the more we learn about the Buffalo
atrocity, the more questions there are about why police and prosecutors did not
do more under existing law to follow up on a suspect who was
known for a year to be dangerous and disturbed.
The Democrats’ proposal also calls for an array of
federal security agencies to create domestic-terrorism units, in addition to
establishing a new “Domestic Terrorism Executive Committee” made up of
high-ranking law-enforcement officials, for the purpose of focusing
microscopically on white supremacism. There would be mandatory training on how
to combat white supremacism: Federal agents would be instructed on the supposed
warning signs in order to prevent suspected “domestic terrorists” from
infiltrating law-enforcement agencies. It does not require much imagination to
grasp the abuses and politically motivated harassment this would encourage.
Federal agencies would have to account for their white
supremacism-related cases; naturally, that would push them to generate such
cases, regardless of whether evidence of actual criminal activity warranted
investigation.
For years, federal enforcement agencies have assured the
public that they are working with state and municipal counterparts to guard
against any violence ignited by white supremacism. There is no reason to
believe they have been lax in this regard. In fact, the opposite may be true,
given the revelations of how extensively government informants and undercover
agents have infiltrated suspect groups in some high-profile cases — such as the
case involving an alleged kidnapping plot targeting Michigan governor Gretchen
Whitmer, which resulted in acquittals because the overly aggressive
investigators appeared to create rather than prevent the crime.
Federal law on domestic terrorism is in no need of
overhauling, much less underhauling. All terrorism poses a threat,
no matter what political agenda, ideological perversion, or mental instability
inspires the consequent violence. Investigating and prosecuting the violence
attributable to any –ism is the business of the law. The focus on a
particular –ism for perceived partisan advantage is the business of
politics. The Domestic Terrorism Prevention proposal is sheer politics — and
politics of the worst kind: theater at the expense of national security.
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