“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.

Op-Ed: Supreme Court Rulings in Hernandez v. Mesa and Ziglar v. Abbasi

Rulings in Ziglar and Hernandez: The Supreme Court, the Fourth Amendment and the `Special Factor’ of `National Security’

In Hernandez v. Mesa and Ziglar v. Abbasi, two just-decided cases, the Supreme Court has now made it such that individuals wishing to obtain damages from agents of the federal government for violation of their Fourth Amendment rights have very limited avenues left to do so.

These claims are called “Bivens claims”, after the 1971 Supreme Court case Bivens v. Six Unknown Federal Agents, which was a suit for damages against agents who conducted an unreasonable, warrantless search of a private home, using excessive force. Under Ziglar, any new case not closely (or even, for Justice Thomas, “precisely”) resembling the situation in Bivens must be subjected to a broad-ranging `special factors’ test as to whether the courts should `hesitate’ to create a new ground for Bivens claims. New types of claims, Ziglar suggests, should be denied if Congress has not signaled support for such claims. Bivens claims are not “a proper vehicle for altering an entity’s policy” and are “not designed to hold officers responsible for acts of their subordinates.” If brought directly against executive officials for their own actions, a successful claim would “interfere with sensitive Executive Branch functions” of policy deliberation. If the claim would involve inquiry into “national-security policy, hesitation is warranted, because that “is the prerogative of Congress and the President.” The “proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.” This is a substantial extension from the “special factors” cited to in Bivens, which suggested hesitation only in cases involving “federal fiscal policy”, cases where the agent’s conduct was “contrary to no constitutional prohibition”, and cases where Congress had barred money damages in particular.

One issue here, among many, is that “national-security policy” now, relative to 1971, is used to cover a vast array of activities by the federal government. Infrastructure? Sure. Global warming? Absolutely. Border policy? Why not?

Beyond that, “national security” is the constant refrain of those in government who seek to conceal merely embarrassing or unpopular conduct. National security, as the Ninth Circuit has put it in this year’s `travel ban’ cases, is often used as a “talismanic incantation that, once invoked, can support any and all exercise of executive power[.]” Such talismanic uses deserve increased alertness from the courts, not increased deference. In truth, no Supreme Court decision, in our current hegemonic situation, is capable of rendering the executive unable to defend the country. Our military is well-founded and technologically advanced; there is no prospect of foreign invasion.

Since “national security” is such an interpretive inkblot, asking courts to accept or deny damages claims on the basis of it leads only to arbitrary decisions based on judges’ prior biases. One could as easily argue that detention of Muslims without charge (Ziglar) or a CBP agent shooting a Mexican teenager harms national security as hurts it. When dealing with such a protean concept, any argument is possible; Ziglar’s novel inclusion of “national security” as a “special factor counseling hesitation” is highly dangerous and overbroad.

In Hernandez¸ a 15-year-old Mexican national was shot in a culvert from across the invisible line separating the U. S. from Mexico, by a border agent, and his surviving family wished to bring a Bivens claim for damages under the Fourth Amendment. However, the Fourth Amendment is often conceived of as being primarily a collective right that pertains only to those who have acted to make themselves in some sense part of “the people” of the United States (see, for example, the plurality ruling in U. S. v. Verdugo-Urquidez [1990]). As such, it is hard to apply it on behalf of an individual who had never apparently been to the United States, nor taken any steps to render himself part of “the people.” A Guantanamo case, Boumediene v. Bush [2008], did permit non-citizens outside the US to bring a habeas corpus claim. So, when Hernandez was accepted for argument before the Supreme Court, at least four Justices wished to see the following three questions answered:

May qualified immunity be granted or denied based on facts—such as the victim’s legal status— unknown to the officer at the time of the incident?

Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)?

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

The Court was able to agree only on the first of these, that the government was mistaken in arguing that Agent Mesa should enjoy “qualified immunity” for his actions, because that immunity could only be based on facts known at the time. They remanded to the lower court the question of whether the claim could be asserted under Bivens in light of Ziglar, heavily hinting that “special factors” would apply.

It is hard to see how even under the new “special factors” envisioned in Ziglar, the situation in Hernandez would require denial of the Bivens claim. The aim of the suit in Hernandez is not to alter policy at the border – indeed, the Customs and Border Police, in light of this case and an analogous Ninth Circuit case, have already revised their policy. The aim of the suit is not to hold Agent Mesa’s superior officers responsible for his own actions. Congress has not barred such suits for damages. Perhaps, the Supreme Court could be viewing border control as an aspect of “national-security policy” to which the Courts should be deferential. However, in this case Agent Mesa is conceded by both sides to have acted contrary to CBP policy in shooting Sergio Hernandez, even if there are arguments about how intentionally he did so. If the Fifth Circuit finds accordingly, it would be possible, even under Ziglar, for them to conclude that a Bivens claim could proceed.

The last and largest of these three questions, on whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment, was the main topic of our brief, which argued that the history of claims by non-US persons against US government agents shows that the Constitution does not give power to its agents to arbitrarily deprive non-US persons of life. This question was only really addressed in a dissent authored by Justice Breyer and joined by Justice Ginsburg, who tried to construct a basis for allowing a claim by Hernandez’ surviving family because of the “special border-related features” and “limitroph[ic]” nature of the border in the El Paso-Ciudad Juarez area, but their arguments did not secure a majority.

To our disappointment, these rulings, rather than confronting and correcting the adverse consequences of current agency practices, defer their resolution to another day. Eventually, however, even if not explicitly in this case, the Court will have to rule on the third question above, and when they do, it will be fascinating.