“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.

New “USA Liberty Act” Doesn’t Fix Problem of Mass Surveillance on Americans

October 5, 2017USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue

On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.

The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.

“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1

An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2

The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.

Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4

This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.

1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.


Alex Marthews
National Chair, Restore the Fourth

Jonathan Capra
Communications Chair,
Restore the Fourth