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Law on Domestic Terrorism Is a Bad Idea
At one time, I supported the idea that enacting domestic terrorism laws would be important for our national security. Several terrorist actions, particularly by lone wolfs, were stopped by local police and the FBI. I believed that if we didn’t focus our attention on identifying and hampering these activities, we would all be at risk.
My opinion has drastically changed.
This subject came to my attention when I read an article in the WSJ about Georgia’s use of a domestic terrorism law:
Georgia prosecutors have deployed a unique strategy against a group of mostly out-of-town protesters who opposed a new police and fire training center here, using a state domestic-terrorism law to charge more than a dozen people in recent months.
It is the first time the law has been used in this manner, according to legal experts and the state chapter of the American Civil Liberties Union, and it is being watched closely by state and city governments, legal scholars and protest groups across the country.
The application of this law to this particular group was appropriate, especially given the nature of the attacks and the growing focus on training for law enforcement:
Speaking to the Atlanta Journal-Constitution at the site of one of three youth centers set up to prevent gang recruitment of minors, [Attorney General Chris]Carr reportedly said, ‘The state of Georgia has passed a law that defines what domestic terrorism is. I’m confident we’ll have the ability to go to court and prove those charges.’
Carr said it was ‘critically important’ that construction of the public safety training center, which activists who dubbed themselves ‘forest defenders’ call ‘Cop City,’ continue, citing last month’s fatal beating of Tyre Nichols by five Black police officers in Memphis, Tennessee.
Georgia appears to be proactive on the domestic terrorism front, which should be encouraging, right? For a review of the Georgia statute, you can go here.
On his first day in office, President Biden called for a review of terrorist threats to the United States. The nature of that review took on the quality of defining domestic terrorism in this country. The definition of the law was disquieting to me, as I reflected on the federal government’s focus on groups they labeled extreme on the political right, but ignored groups on the political left:
Under Federal law, ‘domestic terrorism’ is defined as ‘activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.’
Remember the riots of the summer of 2020 and all the domestic terrorists who were arrested?
The federal government has also mandated that the states spend funds to combat domestic extremism:
These grant recipients will be required to spend at least 7.5% of their grant awards on combating domestic violent extremism, which will amount to $77 million in grant funding across the US, according to DHS.
‘Today the most significant terrorist threat facing the nation comes from lone offenders and small groups of individuals who commit acts of violence motivated by domestic extremist ideological beliefs,’ Homeland Security Secretary Alejandro Mayorkas said in a statement.
I wonder who he has in mind when he identifies “small groups of individuals”?
Due to violent incidents increasingly occurring in the states, 34 states have also created laws addressing domestic terrorism. It’s no surprise that it’s a hodgepodge of legislation. This site provides a brief description of anti-terrorism laws in all 50 states and the District of Columbia.
Regarding the January 6 protestors, it’s noteworthy that no one was charged as a domestic terrorist (from the Congressional Research Service) :
‘While the participants’ actions on January 6 may be consistent with the definition of domestic terrorism, it is important to note that domestic terrorism is not a chargeable offense on its own,’ the report states.
‘There is no federal criminal statute that establishes criminal penalties solely for ‘domestic terrorism,’ although it may be an element of other federal crimes or provide an enhanced sentence. In other words, an individual may commit criminal acts that are widely considered domestic terrorism and be prosecuted for the criminal acts themselves, but an individual cannot be charged with committing an act of domestic terrorism under current federal law.’
At least, not yet.
* * * *
Clearly, definitions of domestic terrorism are not as obvious as they may seem:
There is no universally agreed upon definition of domestic terrorism. Variations in terminology – such as the interchanging use of domestic extremism and violent extremism with domestic terrorism – inhibit cooperation among federal, state and local levels of law enforcement. Authorities conflate ideology with action, obscuring the nature of threats. This lack of cohesive communication restricts the flow of intelligence between federal authorities and local counterparts, damaging the accuracy of threat assessments.
Then there is the issue of constitutionality:
Some advocate for modeling the government’s response to domestic terrorism after its response to foreign terrorist threats; however, the US citizenship of many domestic bad actors restricts this course of action. Tactics used against foreign nationals are often not permissible against US citizens. US officials are confronted with a goldilocks conundrum, not knowing if they are doing too much or too little when monitoring US citizens. . .
Too much surveillance or premature action by government officials threatens private citizen’s civil rights, yet the failure to halt a domestic terror incident despite an abundance of online discourse has devastating implications.
The article cited here sums up very well my greatest concerns:
Domestic terrorism lives here. It most often rears its ugly head in times of high political polarity, permeating the public discourse. It is distinct from domestic extremism, yet closely interlinked – domestic extremism is not inherently violent or illegal, yet extremism can lead to terrorism. This presents unique challenges to US authorities seeking to protect the homeland from domestic terrorism. Identifying these (and additional) challenges is the crucial first step to combatting domestic terrorism.
Given the politically polarized nature of the times, I am no longer reassured that laws addressing domestic terrorism are helpful to this country. There are too many opportunities for abuse or misuse of the definition. The application of the term “domestic terrorism” appears dependent on the eye of the beholder. And although there is no federal law regarding domestic terrorism, that could change at any time.
Who will be identified as the next domestic terrorist?
Published in Law
This and a lot of the Patriot Act needs to be repealed. Trading freedom for security never ends well. I, too, after 9/11 was open to more internal national security measures, but the abuse over the last 20 years has opened my eyes. And hate crimes (as a separate crime) needs to be repealed. Crime is crime, violence is violence. If you want to enhance sentencing if you can prove motivation (something that is not the required element of proof in criminal law generally) I am open to that. But cheap virtue signaling charging is not where we should be.
I agree with you regarding hate crimes. I don’t see the point in the label; as you say, a crime is a crime. Where there is so much confusion about defining and applying domestic terrorism, law, what is the point? I’m very concerned that it will be used politically, and the Right will be the ones to suffer.
Hate is a motivation, not a crime in itself. If I kill someone without hate, does that deserve any less of a sentence? Hate can be an aggravating circumstance, and maybe that’s where the focus should be. Then again, lame prosecutors try to make every crime a hate crime. It’s no longer “Show me the man and I’ll show you the crime.” It’s “Show me the hate and that is the crime.”
You’ve got that right! A prosecutor or judge knows the minimum and maximum penalty. If they think the crime warrants it (forget hate crimes), throw the book at ’em. That’s it.
The problem is if there is a racial difference between the victim and the accused, they can go for a hate crime without having to prove hate. At least, that’s my take on it. Am I wrong? Any lawyers out there care to comment?
I’m no lawyer, but I think you can’t prove it. I mean, you can’t prove how someone feels. I think it probably has to fall into a “hate” category of crimes. @rodin might know.
I’ve been against them since 9/11/2001. My greatest fear on that day is that this was where it would lead. Actually, I was against such things long before that, but I don’t remember the term “terrorism” being bandied about so much before that.
I’m also against the use of the term “extremism” or “extremists” to label the things we need to oppose.
I agree. It makes anything, well, extreme, without any specific definition.
I think that rioting thugs need to have the book thrown at them. My state is doing exactly what we all called for in 2020.
How do you feel about “domestic terrorism” as law?
Well, I think there can be such a thing a domestic terrorism. Terrorism is the use of violent acts to get political change. If that is not what BLM and Antifa have done, used violent acts to get political change, I don’t know what to call it.
We must have order. We have to have the tools to put these people away. The chaos has to stop.
As long as the people arrested are afforded the same protections as anyone else, I don’t much care what they call the law.
One could easily argue that the RICO laws are out of bounds and can be misused. I think they have been of great use against organized crime. But maybe I am all wrong.
What I know is that MY state is no like OR, WA, or CA. And I am happy about it. Heck, even Atlanta, controlled by Democrats for its whole life, is better off than the socialist paradises of Portland.
I said in my post that I like what Georgia is doing. But I doubt BLM or Antifa will be charged elsewhere. But watch what happens to the Right.
So that second sentence is contrary to the political theory of John Locke, about the “social contract,” upon which our government was reportedly founded.
It is contrary to the second sentence of Federalist No. 2 (which is the first substantive Federalist paper, as the first was an introduction and outline).
I keep criticizing libertarian types for thinking like children, because they, well, think like children. Except that this is probably unfair . . . to the children.
There is a necessary trade-off between liberty and security. Even a child can see this. Yet in libertarian thinking — or at least libertarian rhetoric — this continuum is viewed as a binary choice.
This type of bumper-sticker argument is another form of cheap virtue signaling.
After delivering another of my anti-libertarian tirades, I want to point out that I actually agree with most of your conclusions here, Rodin. It looks to me as if domestic terrorism laws are overly broad, and some of the Patriot Act provisions are not worth keeping, and that hate crime laws should be repealed. Most of these are balancing arguments, though.
Starting with Susan’s comment: You can “prove” how someone feels, in the legal sense of the word “prove,” which is to demonstrate a factual conclusion through the use of evidence. Sometimes the evidence is strong, and sometimes it’s weak. At the extreme, you can actually have a confession of motive, either verbally or in writing. You can also infer motive from the circumstances. This is quite common in the law, in many different areas.
Turning to Stad’s comment: So-called “hate crime” laws can vary, but I don’t think that they usually require proof of actual “hate.” They require proof of a particular motive, such as racism.
I’m not an expert on criminal “hate crime” laws. My impression is that there’s something like a presumption of racist motive when the perpetrator is white, and no such presumption otherwise, but I do not mean this as a legal presumption. It’s just a rhetorical presumption, I think. My impression is that we rarely see blacks prosecuted for crimes against whites under “hate crime” laws. However, I have not studied this empirically.
On the civil side of the Black Privilege laws — the so-called “civil rights” laws — the law is usually explicitly racist, in favor of blacks (or other favored groups). At least, this is my recollection, though I haven’t handled many such civil cases. As I recall, if you’re black and get fired, you have a prima facie case of employment discrimination — but if you’re white, you don’t, and have to allege a specific discriminatory motive.
Don’t insult people on my posts, Jerry. Just knock it off. Also, I don’t think Rodin’s comment is close to libertarian.
In WA, the Democrat controlled House just held a committee first hearing on a bill proposing to establish an official government commission on “violent domestic extremism,” which of course will be administered by leftists with representatives of all the BIPOC groups, to police and pursue with the help of our far left attorney general, those with misinformation, disinformation, etc. and develop “public health type responses”, a chilling phrase in itself.
It’s only three pages: at this link scroll down to Available Documents and click on Substitute Bill: https://app.leg.wa.gov/billsummary?BillNumber=1333&Year=2023&Initiative=false
What a lot of potential evil is contained therein. My own rep. is one of the prime sponsors. I just hope the bill dies in committee, because our AG and governor Inslee would lick their chops if it passes.
Here’s a recent report:
https://pjmedia.com/news-and-politics/victoria-taft/2023/02/26/washington-state-dems-want-minority-report-commission-to-destroy-conservative-wrong-think-n1673905
This comment in PJ Media was especially chilling: Whistleblowers have described how FBI leadership is pressuring line agents to reclassify cases as domestic violent extremism even if the matter does not meet the criteria.” The report also stated that FBI agents were “misrepresenting the scale of domestic violent extremism nationwide by categorizing January 6th-related investigations as organic cases stemming from local field offices, instead of all related to one single incident. In both ways, the FBI is fueling the Biden Administration’s narrative that domestic violent extremism is the biggest threat to our nation.
It is beyond irony that the same people who want to downplay, to defund, and/or to hamstring police from prosecuting actual crimes, want to set up instead these activist-based ideological “security” organs. Reminds me of the neighborhood spy networks established in Mao’s revolutionary China to uncover and denounce those who did not follow the Party line with sufficient fervor.
It’s not ironical at all. It’s all part of the same trend, or plan, if you will. Defund the local police in order to turn policing over to central organs that will carry out these witchhunts.
And that’s part of the problem. If the law doesn’t require proof of hate, then every crime where the perp is one race and the victim the other is a de facto hate crime to the prosecution. It also allows for one-way prosecution of hate crimes: white against black, hate crime. Black against white, not a hate crime.
My understanding of the theory of “hate crime” enhancements to criminal violations (and presumably to “domestic terrorism” enhancements to criminal violations) is that in some cases the crime is more than the physical crime itself. The KuKluxKlan burning crosses at the homes of black people is about more than just the vandalism of burning something on someone else’s property. The perpetrators’ objective is to cause additional psychological harm to the victim, and also to create fear in the hearts and minds of people related to or similar to the direct victim. So there are also more victims. The KuKluxKlan burning a cross at a black person’s home is (according to the theory) a different crime from a random person burning some trash at the home of another random person, because of the intent of the perpetrator.
Someone placing a bomb for terroristic purposes intends victims and damage beyond the owner of the structure being bombed. The bomber intends to create fear in the hearts and minds of others that he might do the same to them. The bomber for terroristic purposes intends harm beyond that intended by (for example) a bomber who places a bomb on a particular property as an act of revenge against that particular property owner. So the theory is that the terrorist is committing a different crime than is the standard bomber.
I understand the theory. The problem brought up in this discussion is defining the “hate crime” or the “domestic terrorism” so that the enhancement charge does not become a tool of tyranny used to abuse politically disfavored people or groups.
I think experience has shown that the balance between liberty and security that was sought to be struck by the Patriot Act, RICO laws, the Department of Homeland Security, hate crime legislation, the FBI, anti-money laundering regulations, the TSA, and most laws ‘combating’ tax evasion/avoidance/reduction etc etc has not improved the security of the citizens of the Republic but has severely compromised their liberty. Therefore, as an empirical and pragmatic matter, they should be abolished.
The proof they use is your skin color.
I’m not a libertarian, but if our side doesn’t do a better job of stopping the left’s abuse of power, then I will become one if it is the last tool left in the tool box. So will many others.
The supporters of the “Great Reset” expose themselves more each day.
Someone on talk radio yesterday said she left the FBI because of the politicalization and that other agents are leaving, too. Also, I gather than retention and recruitment are issues because standards have been lowered. However, standards could also be lower to accept more with the correct ideology.
Should come as no surprise. Some writers have written about current events claiming we are experiencing a Maoist cultural revolution.… and we feared for over half a century that Russia would be the commie country that destroyed us. Surprise, surprise, as Gomer always said.
As we are seeing today.