This fall, a national conversation about a domestic terrorism statute is brewing. But we should recognize that it is not just about terrorism — it is about the character of the country.
In the wake of the violence and death at Charlottesville, and with the motives of the Las Vegas attack still unknown, and the memory of the massacre in Charleston still vivid, debate has raged over when and how to use the word terrorism.
"With a different set of circumstances," former Attorney General Eric Holder said after the white supremacist Dylann Roof killed eight parishioners in a black church in Charleston, "if you had dialed in religion there, Islam, that would be called an act of terror."
There has been an all-too-ready impulse to equate terrorism with Muslims, rather than seeing other ideologically-driven crimes of mass murder as also being terrorism. A recent Will McPhail cartoon of two wolves summed it up. They looked exactly alike except that one was dark and one was light. The white one was labeled "lone wolf," the dark one "terrorist."
There is no question that attacks on soft targets — be they unarmed, peaceful protestors in the path of a car attack, school children, or black congregants — terrorize the victims as well as the general public. In many instances the motive has been attributed to "hate crimes" involving racism or religious discrimination.
In "colloquial" but not legal terms, as former FBI Director Jim Comey has acknowledged, they can be considered acts of terrorism. Yet there is in fact no federal statute against domestic terrorism, something many officials and lawmakers want to change.
Behind this debate over the use of term "terrorism" lies a larger debate: Over whether or not Congress should pass a domestic terrorism statute. When Attorney General Jeff Sessions, echoed by National Security Adviser H.R. McMaster, declared the Charlottesville attack an "an act of terrorism," he was consciously promoting an agenda that has been simmering at the Justice Department since the Obama administration — the call for passage of a federal domestic terrorism statute.
Both Obama and Trump policymakers and lawyers argue that such a statute will provide several improvements. It will put crimes by right-wing nationalists and other hate-crime perpetrators, according to former Justice Department lawyer Mary McCord, "on the same moral plane" as their equivalents — Muslim terrorists — in Europe. Others say, as terrorism and Middle East expert Dan Byman has, that "the legal toolkit would grow dramatically." Borrowing from the strategy against international terrorists, Byman and others have called for more proactive, preventive matters for extremist violence of any kind.
On an emotional level, such a statute could, in fact, be satisfying as an antidote to the persistent tendency since the 9/11 attacks of equating terrorism only with Muslims. Since then, terrorism laws have been used to target entire communities, to surveil Muslims in a manner that was ultimately declared illegal, and to create an atmosphere in which discrimination against Muslims consistently violated abuses of the First, Fourth and Fifth Amendments.
But would extending an unfair policy to others really be a step in the right direction?
The linchpin of most international terrorism prosecutions is the involvement of a group on the State Department's Foreign Terrorist Organization list. There are now 61 groups on that list, including Al Qaeda, ISIS and their many affiliates. In the name of prosecuting individuals suspected of ties to these organizations, the federal government has been granted powers that are forbidden at home — including the reliance on a secret court to decide on and direct investigations, the ability to surveil suspects without a warrant, and the option of detention in military prisons without access to charge or trial.
Is this really the road we want to go down for an undefined — and potentially unlimited — category of domestic terrorists?
Imagine the challenge of making a parallel list of "Domestic Terrorist Organizations." As Rand terrorism expert Brian Jenkins and former New York Police Department Counterterrorism Commissioner Richard Daddario have recently wondered, "The Southern Poverty Law Center has identified 917 'hate groups' operating in the United States. Should they be labeled terrorist organizations on grounds that they incite hatred and violence?"
The Trump administration would more likely use the statute to prosecute African-American groups. In fact, a recent FBI report on what the government is calling "Black Identity Extremists" suggests this may be in the works.
Currently, 33 states have terrorism statutes, and have used them to prosecute cases. A wide array of federal statutes are also available for prosecuting aspects of these crimes. As Jon Carlin, Obama's last head of the Justice Department's National Security Division noted in 2015, "[W]e have the whole criminal code at our disposal. Over the years, we have charged violent extremists with a variety of crimes, ranging from firearms or explosives offenses, to arson, threats or fraud, tax violations or hate crimes and murder."
As the cases of Timothy McVeigh in Oklahoma City and Roof in Charleston demonstrate, the country has the statutes it needs for the most heinous of crimes of hate or murder, or both.
Since its inception, the United States has periodically descended into untoward moments in which the law has become a cudgel for political agendas. The Palmer Raids in 1919, the McCarthy era hearings in the 1950's, the Cointelpro program of the 1960's aimed at civil rights advocates and opponents of the Vietnam War — all were enacted despite the constitutional protections that are supposed to guarantee freedom of speech, political opinion and religious diversity.
Perhaps there is no better sign of the reality of the political danger of such a statute than the words of Andy McCarthy, a noted conservative voice and former prosecutor who opposes the domestic terrorism statute. "Someday, maybe sooner than we'd like to think," McCarthy wrote this summer, "Democrats are going to be in power again. Do we really want to give them enhanced federal powers to harass ideological opponents under the guise of 'designating' domestic terrorist threats?"
The road from 9/11 has been fraught with a willingness to exploit fear to weaken laws that protect Americans from government abuses of power. Extending post-9/11 legal authorities to the domestic arena would further erode the precious protections of the U.S. Constitution, this time in a much wider, deeper and unpredictable fashion — and, as we've witnessed in the past 16 years, once launched, difficult, and often impossible to reign in.
The creation of a domestic terrorism statute, unleashed at home, would be the final feather in Osama bin Laden's cap.
Karen J. Greenberg is the director of the Center on National Security at Fordham Law School and the author, most recently, of "Rogue Justice: The Making of the Security State."