Category: Op-Ed

“Terrorism” Is The Wrong Lens For The Capitol Attacks

Congressional leaders have devised a legislative response to the Capitol insurrection. What’s wrong with it?

The bill now before Congress, H. R. 350, aims to “authorize dedicated domestic terrorism offices within the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation to analyze and monitor domestic terrorist activity and require the Federal Government to take steps to prevent domestic terrorism.”

Let’s state up front that the insurrection involved violent crimes that ought to be prosecuted. One person defending the Capitol was killed, and no concept of protesters’ rights should include a right to kidnap, beat or intimidate elected officials into doing your will.

There Are Crimes Enough Already

However, the insurrection didn’t happen because of a lack of current legal authority to address political protests that turn violent. There are plenty of such authorities, up to and including an existing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA defines a “Federal crime of terrorism” that doesn’t require any nexus to foreign organizations or causes, and that covers 57 varieties of criminal activities, some violent (like bombing airports) and some not (like violating the Computer Fraud and Abuse Act). This statute is already being deployed in at least one Capitol insurrection case.

Terrorism Is Too Broad A Concept To Be Helpful

H. R. 350 doesn’t narrow the current set of crimes falling under the “Federal crime of terrorism” created in AEDPA; we think it should. As a civil liberties group, we’re suspicious of already-existing laws that give too much discretion to law enforcement to define non-violent activities as “terrorism.” We don’t think, for example, that non-violent direct action is “terrorism,” even if it results in non-violent crimes under federal or state law. The existing definition is capacious enough to include merely resisting arrest, trespassing on federal property, or being a member of a crowd where some other person commits violence.

Insofar as “terrorism” should exist at all as a concept in federal or state law, it should be narrowly defined, to extend only to the subset of acts of violence in which people are injured or killed, where the purpose of those acts is to influence government policy. The US government has made so much use of the overbroad concept of “material support for terrorism” to prosecute Muslims making charitable donations, translating documents, or allegedly making dumb boasts around a campfire, that using the term “terrorism” now obscures more than it illuminates. Using “terrorism” to describe an act stifles rational discussion about the accuracy and usefulness of the definition, and makes many people doubt whether the suspect deserves the rights endowed to all people under the Constitution.

Better Reporting on White Supremacist Violence Is A Good Thing

H. R. 350 would improve reporting to Congress by the FBI of its assessments, investigations, prosecutions and convictions relating to “domestic terrorism”, including specific reporting for the subset of those proceedings that relate to “White supremacism.” On the whole, this section is good. The FBI has a sorry track record of failing to adequately investigate white supremacist violence, and of ginning up investigations of Black people concerned about police brutality and civil rights under the general banner of “racially motivated violent extremism.” FBI agents should, as Mike German of the Brennan Center puts it, “evaluate threats based on objective evaluations of potential harm,” not based on whether a person’s politics differ from theirs, and should allocate their existing internal resources accordingly.

DHS I&A Cannot Be Trusted To Focus On White Supremacist Violence

More seriously, H. R. 350 gives a coordinating role on “domestic terrorism” to the Department of Homeland Security’s “Office of Intelligence and Analysis”, and directs DHS, FBI and DOJ to assign new units to work together around the issue. This is the very same office that, a mere few months ago, was compiling intelligence reports on journalists who reported on leaked documents relating to the protests in Portland. It has had poor leadership and, according to one of its former leaders, lacks a strong “organizational culture” that would prevent abuses. These weaknesses are not limited to the Trump administration; before Trump, I&A assisted other DHS units in conducting surveillance of the Standing Rock protests, among others. DHS’s internal oversight systems also seem broken. Therefore, we oppose any attempts to give DHS more power to coordinate more surveillance of Americans.

We Don’t Need To Use China As A Model

In August of 2020, the Congressional Research Service produced a review of Hong Kong’s infamous new “National Security Law”, which sternly denounced the People’s Republic of China for “mak[ing] vandalizing public property an act of terrorism” and “mak[ing] a broad range of political activities potentially vulnerable to a charge of terrorism.”

They were right; but they didn’t observe that the United States is already more or less there. We need to dial back our own security state, rein in the misguided “War on Terror,” and refocus our federal law enforcement’s counterterrorism activities on those who plan and commit acts of violence.

However, in honor of the fact that their National Security Law explicitly makes it an offense to “advocat(e) terrorism or incit(e) the commission of a terrorist activity,” we feel we should advocate that, through appropriate Congressional action, DHS must be destroyed.

Libertarian, Green Nominees Weigh In on Surveillance and Privacy

Restore The Fourth interviewed Libertarian Party nominee Jo Jorgensen and Green Party nominee Howie Hawkins on privacy and surveillance topics. We asked the Biden and Trump campaigns to respond, but they had not done so by press time. In lieu of their responses, here’s our summary of Biden’s positions from October 2019, and here’s our summary of Trump’s from September 2020.

The first presidential debate will likely not include substantive discussion of the surveillance state and its casualties, so this seems like a good time to release the responses of the candidates currently running third and fourth in nationwide polling. The responses of Dr. Jorgensen were provided over email in September 2020; the responses of Mr. Hawkins are paraphrased from his verbal responses, provided in May 2020. Both candidates’ responses merit a rating of A+ on surveillance and privacy issues.

Additionally, we also had the opportunity to interview the Libertarian Party’s candidate for Vice President for 2020, Spike Cohen. You can listen to the audio of that interview here.

Question 1. Restore The Fourth was founded in 2013 in response to the Snowden revelations of mass NSA surveillance. What do you think is the appropriate role for the NSA in conducting surveillance? Do you think that the measures taken so far to increase transparency have been adequate to protect the rights of those surveilled?

HH: The measures taken so far have not been enough. There should be no mass surveillance; what there is should be tailored and limited by statute, and there should be Congressional oversight.

JJ: Whistleblowers and members of the press have revealed that federal agencies were collecting “bulk data” on American citizens in direct violation of their constitutional rights to privacy and due process. Collecting and cataloguing vast amounts of data on individuals not suspected of any crime is a systemic violation of millions of Americans’ civil liberties by the NSA, the CIA, and the FBI. Now the U.S. Ninth Circuit Court of Appeals has made it official: The warrantless telephone dragnet that Edward Snowden brought to light was illegal. Neither the NSA nor any of the other 16 federal intelligence agencies should get a pass on following the Constitution. While conducting intelligence operations on potential adversaries is necessary, American citizens should not be considered potential enemies without probable cause and no searches should be conducted without a warrant from a criminal court.

Question 2. Restore The Fourth is also likely under FBI surveillance, and is lobbying Congress to tighten the rules for FBI surveillance on domestic advocacy organizations. Do you think the FBI is too keen to surveil such groups, and, if elected, how would you change the guidelines they currently operate under, to protect activists and advocates?

JJ: FBI tactics to surveil, infiltrate, and disrupt lawful activities by individuals and advocacy groups must be stopped. The scope of the FBI’s power and tactics is too broad and undermines Constitutional protections. Americans have largely forgotten that the FBI tried to destroy the Rev. Dr. Martin Luther King, Jr. and threatened him with ruin. They’ve sold illegal weapons, wiretapped members of Congress, and put informants in places of worship. Such infringements of the Bill of Rights will not be tolerated under a Jorgensen administration.

HH: There should be no FBI surveillance without probable cause. Their category of “Black Identity Extremists” is not the same as Black Lives Matter; the FBI’s tendency to criminalize protest has got to be watched.

Question 3. DHS has been found to be conducting surveillance on advocates for immigrants’ rights, and ICE has been using cellphone metadata to track immigrants for deportation. What is your opinion of these actions?

HH: This is completely unacceptable.

JJ: With rare exception, immigrants are not potential foreign adversaries. Unless the DHS has material evidence that they are, they should not be surveilled. 

Question 4. Police often acquire new surveillance technologies without informing, much less obtaining the consent of, local elected officials. They also stop, search and shoot members of ethnic and racial minorities at much higher rates than those minorities represent in the US population. What measures would you support as President to resolve these issues?

JJ: The blame should be directed to the local government officials who are not paying attention to what their police departments are doing regarding surveillance. I would call on Congress to pass LP Rep. Justin Amash’s tri-partisan bill to end qualified immunity. This would allow citizens to sue public employees for damages, whether caused by unconstitutional surveillance or police abuse. I would immediately end any transfer of military style weapons from the U.S. military to local police departments, and end no-knock raids. I would also call on Congress to repeal all victimless crime laws, particularly drug laws, which give rise to so many of the instances where cops and minority citizens come into conflict. 

HH: I have authored an 8000-word paper on community control of the police. The federal government can provide policy guidance to local departments. I oppose militarization of the police. There are constant police killings; moderate reforms, like introducing citizen police review boards, isn’t doing the job. Local officials can sometimes be intimidated by police. Having elected police commissions may help. I knew Johnny Gammage, a motorist who was suffocated by police in Pittsburgh in 1995. In cases like this, federal investigations can be appropriate, but right now, the politicization of the Department of Justice is also a problem.

Question 5. The newly proposed EARN-IT Act would condition protection from liability for third-party publishers online on those publishers subjecting themselves to Attorney-General rules that could include weakening encryption and collecting more information on users. What is your opinion of this legislation? Do you believe in general that tech firms must collect user information in such a way that it is accessible to law enforcement?

HH: The EARN IT Act is a terrible idea and a threat to free speech. We already have laws to hold people responsible for crimes on the internet. We don’t need more.

JJ: Under the guise of protecting children from abuse, the EARN-IT Act threatens website operators if they don’t give government officials a backdoor to secure communications. This is an unconscionable invasion of the privacy and security we need for a functioning and secure internet. In addition, any backdoor available to the government is also a backdoor available to hackers and scammers. As president, I will lobby against and veto the EARN-IT Act.

Question 6. Please indicate your opinion on whether the following people should be pardoned and/or released:

  • Edward Snowden

JJ: Edward Snowden is a whistleblower and an American hero. He deserves every protection of the Constitution he has sacrificed so much to defend. As president, I will pardon Edward Snowden and authorize him to return to the U.S. if he so wishes.

HH: I would pardon Snowden and ask him to join my administration. I have read “Permanent Record”, and it was most compelling.

  • Julian Assange

HH: The charges against Julian Assange should be dropped, because a conviction would chill free speech worldwide. It doesn’t make sense to charge him with espionage as an Australian citizen, and it’s important to preserve the legality of reporting based on leaked documents.

JJ: Julian Assange set up Wikileaks to bring unprecedented and much-needed transparency to the workings of governments. His leaks have revealed atrocities and war crimes committed by the United States and its allies. U.S. charges and indictments against him should be dropped. As president, I will pardon him and invite him to become a citizen of the United States.

  • Reality Winner

JJ: Reality Winner leaked an NSA intelligence report to The Intercept, alerting the public to alleged Russian attempts to interfere with elections in the U.S. She has served nearly two years of the longest sentence ever imposed for leaking a classified document. Because she has co-morbidities for COVID-19, she is at high risk in prison. She is a whistleblower, and as president, I will commute her sentence.

HH: Reality Winner received an unfairly harsh sentence, and was made an example of. I would pardon her.

  • Ross Ulbricht

[Our interviewer omitted to ask Mr. Hawkins about Mr. Ulbricht’s case]

JJ: Ross Ulbricht never harmed anyone. Prosecutors didn’t even claim anyone had been harmed. His sentence of two life sentences plus 40 years condemns him to die in prison for creating an e-commerce website. This is an extreme miscarriage of justice. As president, I will pardon and free Ross Ulbricht immediately.

  • Terry Albury

JJ: Terry Albury, a decorated FBI agent, was jailed for reporting FBI surveillance tactics that systematically targeted minority communities, religious groups, and journalists, none of whom are enemies of the United States. As president, I will pardon and free Terry Albury.

HH: Terry Albury’s case showed that the FBI’s counterterrorism approach is counterproductive, and is racially and religiously biased. 

Question 7. Regarding the coronavirus pandemic:

  • Should police arrest and jail people who violate lockdown restrictions, and why/why not?

HH: There should be no arrests. It’s important to emphasize education, to tell people to wear masks, and to set a good example by wearing masks and practicing social distancing. The only context in which charges should be brought is if the person is violating other laws.

JJ: No. Most of the lockdown restrictions are edicts from governors and mayors who may not have the legal authority to issue them. They have issued these edicts with impunity while begging for, and securing, federal government bailouts to remedy the economic recession they have caused. Government officials who comfortably work from home should not criminalize those who make their livings in other ways, many of whom are destitute in the wake of shutdowns.

  • Should governments invest in coronavirus contact tracing apps, and why/why not?

JJ: No. Private sector tracing apps and programs are available, and anyone who wishes to use them certainly may do so. But such tracing imposed by government violates the First and Fourth Amendment rights of those tracked, and lacks due process protections.

HH: Apps might be useful if privacy is protected. Without those protections, coronavirus tracing apps could be used for mass surveillance. It’s especially important that they should not be mandatory.