Civil Libertarian Opposition To New Domestic-Terrorism Bill Weakens

SO ON MONDAY I wrote that the likelihood of President Biden and the Democratic Congress creating a domestic equivalent of authorities law enforcement possesses to go after "material support" for terrorism "seems to have abated." That still seems to be true, but a different domestic-terrorism bill has gotten a second wind after the Buffalo terrorist attack.

This week, the Democratic-controlled House of Representatives moved for a floor vote on a long-stalled and seemingly dead measure called the Domestic Terrorism Prevention Act. The bill would create or codify (depending on the agency) new and new-ish offices within the Department of Justice, the FBI, and the Department of Homeland Security. Those offices would "monitor and analyze" (DHS), "investigate" (FBI) and "prosecut[e]" (DOJ) "domestic terrorism activity." A new Justice Department-led "Domestic Terrorism Executive Committee" would be entrusted with "information sharing" about domestic terrorism between federal prosecutors "and other key public safety officials across the country."

The bill would also require these new Domestic Terrorism Offices/Units/Sections to compile semiannual reports quantifying incidents of "domestic terrorism" with a specific emphasis placed on white supremacist attacks. That reporting provision has been a longtime goal of civil libertarians frustrated by security agencies' obfuscation of white supremacist terror.

Civil liberties groups have objected to versions of this bill for years, recognizing that the broad language of "domestic terrorism" provides a pretext to expand post-9/11 counterterrorism authorities that security agencies disproportionately use against nonwhite and left-wing organizations.

"These agencies have long used the domestic terrorism framework to monitor and investigate people of color and other marginalized communities, rights activists who dissent against government policies, and those with views agencies deem controversial," the ACLU objected in 2019. That was, of course, even before the Trump administration proved the point by siccing Joint Terrorism Task Forces—the Justice Department, FBI and local cops—and the Department of Homeland Security on Black Lives Matter protests and antifascists.

BUT ON MONDAY, Jerry Nadler, the New York Democrat who chairs the House Judiciary Committee, introduced an amendment to the bill prohibiting the new offices from "the infringement or violation of any right protected under the First Amendment to the Constitution of the United States or an applicable provision of Federal law." Based on Nadler's amendment and other changes since Congress last voted on the bill, sources tell FOREVER WARS that the ACLU and some other civil-libertarian groups are no longer opposing it.

"The Domestic Terrorism Prevention Act, which sits before us today, is the least we can do to signal our opposition to white nationalism and this rising menace of organized intolerance," Nadler said on the House floor Wednesday. A vote is expected on the bill, which has 204 Democratic co-sponsors and three Republican ones, as soon as Wednesday evening. As Sam and I were finalizing this piece, the White House emailed reporters its endorsement of the Domestic Terrorism Prevention Act.

But his amendment has done nothing to assuage the worries that other civil-liberties groups have about the institutionalization of domestic counterterrorism. Not least of these is the structural racism of the "national security" agencies that amplify and scale white supremacy in practice, if not in explicit creed.

"It's ludicrous to think the same offices that have been responsible for whipping Haitian migrants at the border, harassing Muslims anytime they're at an airport and suppressing the black civil rights movement will be the agencies we'll look to to fight white supremacy, rather than acknowledging their role in it," said Fatema Ahmad, the executive director of the Muslim Justice League. "That's the greater trend right now: people looking to individualize and pathologize the issue, rather than looking systemically."

In other words, the bill's approach is to treat white supremacist violence as a problem of racist crazies committing mass shootings, to be combatted through institutionalized domestic-counterterrorism remits—rather than a systemic problem exacerbated by the very agencies called upon to confront it.

Once empowered, opponents fear that, Nadler's language notwithstanding, DHS, DOJ and the FBI will use those authorities as they typically do. See, for instance, the FBI's equivalence between a nonviolent pro-abortion movement and an anti-abortion movement that killed at least 11 people. There is known white-supremacist infiltration of law enforcement—a problem egregious enough that the bill even has a provision mandating the agencies to report on its extent. The bill also creates a cabinet-level task force to come up with a plan to "analyze and combat" infiltration within law enforcement and the military.

"Domestic terrorism legislation would merely strengthen policing institutions that historically have criminalized and harmed communities of color, while allowing elected officials to claim that they are responsive to the problem of white supremacist violence," write Nicole Nguyen and Yazan Zahzah in a monograph called "Why Treating White Supremacy as Domestic Terrorism Won’t Work and How to Not Fall for It."

Several civil libertarians whose organizations are dropping opposition to the bill declined, frustratingly, to speak with me on the record. So I'll sum up their various perspectives generically.

They think this is a least-bad option from a Democratic Congress that's frustrated at the security agencies' institutional reluctance to investigate white supremacy. The bill doesn't establish new statutory authorities—which some see as a defeat for the Justice Department, because a domestic-terrorism criminal statute "is really what DOJ wants," according to one source close to the bill. The increased reporting requirements on white-supremacist terror are a longstanding goal that the bill delivers, and the task force on confronting infiltration is a good start. In short, the groups won't support the bill, but they'll no longer publicly oppose it.

No one had a satisfactory answer for me when I asked them why not simply call for the reporting provisions and reject the new domestic-terrorism offices. In the last few weeks, we've learned that the FBI used the backdoor-search provision—warrantlessly rifling through NSA troves of bulk communications data for Americans' information—a staggering 3.4 million times in 2021 alone. That's likely an indicator of how the FBI's new Domestic Terrorism Section within the Counterterrorism Branch will investigate domestic terrorism activity. And just wait for Future DHS Undersecretary for Intelligence and Analysis Madison Cawthorn to define the "domestic terrorism activity" that his office will be responsible for "monitoring and analyzing."

The bill also has the effect, so familiar from Washington during 20 years of counterterrorism, of assigning a security-based approach to a systemic, material and political problem. "Instead of addressing racial disparities in Buffalo, people are more comfortable expanding terrorism bills," said Margari Hill, the executive director of the Muslim Anti-Racism Collaborative. "The punitive approach has not done anything to make me safer as someone who has been targeted because I'm Black, Muslim and a woman."

Hill, a historian by training, pointed to the blowback on Muslim communities from the 1995 Oklahoma City bombing by white supremacist Timothy McVeigh (the subject of the prologue of my book REIGN OF TERROR). "The idea of crime prevention and thought policing also has blowbacks on communities of color," she continued. "Just because people have repugnant views, is entrapping them truly preventing crimes? … My concern is that there are people who have been radicalized by law enforcement."