Calls for Domestic Terrorism Law: Necessary Security or Threat to Liberty?

In light of the January 6th Capitol Hill Riot, many Democratic party leaders and national security officials have been calling for new laws that put US federal agencies in a better position to combat domestic terrorism. There was also a call by House majority leaders to form a “9/11-style” investigative commission on the 2021 Capitol Riot to address new domestic terror surveillance initiatives. The proposals for new laws are designed to give intelligence agencies increased powers to  monitor domestic social media and online communication platforms to observe chatter and issue warrants for arrest before an act of terror is potentially committed by a suspect. However, these calls have worried many about the potential for the expansion of federal powers and the continued growth of the “security state” in the US. Could this be another Patriot Act and a second War on Terror of the post-9/11 era? 

The answer is uncertain at this point. Duke alumn Brad Weigmann, who is Deputy Assistant Attorney General in the Department of Justice’s National Security Division, sees the implementation of new domestic terrorism laws as entirely necessary, especially when it comes to issuing warrants in order to prevent attacks. In an event hosted by the Duke AGS Program, he argued that the policies to prevent acts of domestic terrorism are inadequate due to the inability of federal agencies to arrest people for being involved in the plotting of domestic terror attacks or issue warrants to investigate individuals associated with the plot before the attack occurs. Wiegmann, as well as other national security officials, note the effectiveness of the US’s international terrorism laws and policies to investigate potential acts of terror that do not have these obstacles. However, are international terrorism policies really what Americans want being applied at home? If one considers the immense scope of the Patriot Act and mass-surveillance of US intelligence programs revealed by Edward Snowden, one might take a second look at these domestic policy proposals. 

Journalist Glenn Greenwald–who helped publish the Edward Snowden leaks when he was working for The Guardian–has cited the fact that the most common use of the Patriot Act is not in terrorism cases, but rather in drug crime cases. Greenwald warns that the domestic terrorism supplement provision to the Patriot Act gives the Attorney General the power to label any citizen as a “domestic terrorist” or potentially associated with domestic terror which hands the Department of Justice the power to arrest and investigate any American with very little oversight . Greenwald refers to this as a new War on Terror and claims that the government is “exploiting people’s fears in order to garner more power”. To Greenwald’s credit, the calls for a fight against domestic terrorism do have very clear parallels to America’s first War on Terror.

Another critical point of concern, according to Greenwald, is that America’s foreign terrorism laws have broad reach. Anyone who provides “material support for terrorism” is liable to be prosecuted under these foreign terrorism laws. Material support for terrorism encompasses a wide variety of perceived support, even if entirely unintentional. For example, uploading content to social media that could be interpreted to be sympathetic towards a group deemed as a terrorist organization or giving money to a charity that ends up giving some financial contribution to a terror group. To put this into the context, the US has used the vague clause to shut down criticism of US military involvement in Middle Eastern countries.  Greenwald warns that if current foreign terror laws are amended to include domestic terror, this could be a tremendous reduction of civil liberties in the United States that would allow the government to “criminalize protest, associational, and even speech activity”. One can imagine how eager President Trump would be to abuse such power to punish, for example, Black Lives Matter protestors by designating them domestic terrorists. 

The Biden administration is considering a new domestic terror law and has already ordered a comprehensive threat assessment on violent extremism in the United States. Passing legislation to fight against domestic violent extremism was a significant part of Biden’s inauguration speech and promised in his campaign for the presidency. A formal policy proposal from the administration has yet to come to light but it appears they must tread carefully when formulating this bill if they hope to pass it through Congress. 

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