How Not to Address Our Domestic Terrorism Problem

Perhaps this explains Twitter’s decision to ban Donald Trump but not Ayatollah Khamenei, whose presence on the platform is in contravention of U.S. sanctions and in direct violation of U.S. material support for terrorism laws. I look forward to hearing how this “honey-potting” of the Iranian dictator has worked out.

Constitutional Contradictions

Having demanded a loyalty oath from firefighters and police who have already sworn to uphold the U.S. Constitution, Carroll himself makes a rhetorical attack upon the very same Constitution in his fourth point, calling for the use of “federal supremacy” to ban militias, except for the recently much-maligned National Guard, which those on Carroll’s side of the argument seem to presuppose is littered with right-wing extremists.

The U.S. Constitution makes direct reference to the militia, which as James Madison heavily implies in Federalist 46, is understood to be the whole of the people. Many other contemporaneous writings support this view as nearly universal at the time of the American Founding. Is Carroll unaware of how militia is defined, or is he proposing some kind of Brecht-inspired solution to “dissolve the people” and elect another?

As for “federal supremacy,” Carroll might not know that this view of the militia is largely codified in federal law, which defines the militia as all able-bodied male U.S. citizens between 17 and 45 years of age.

In any case, it is unclear exactly how specifically banning “militias” would impact the right of citizens to bear arms and to assemble, both of which are guaranteed under the Constitution. Perhaps Carroll means to suggest that rights can be exercised only one at a time?

This isn’t to say that there may not be groups whose members self-identify as a militia but may engage in some criminal or terrorist activity and need to be addressed by law enforcement. But this can be done without some grandstanding legislative action that is at best meaningless posturing and at worst a deliberate attempt to undermine the Constitution.

Lastly, Carroll proposes adding “domestic terrorism” as a predicate crime for prosecuting material support for terrorism. Carroll here is piggybacking on those such as Lawfare’s Mary McCord, who likewise proposed including domestic terrorism as a specific predicate crime.

But there is no crime defined as “domestic terrorism.” McCord laments this in her article and calls for passing such a law, while Carroll does not even mention the need to pass such a law before applying it as a predicate crime to material support for terrorism.

Under the law, domestic terrorism is defined as “acts dangerous to human life that are in violation of the criminal laws of the United States, or of any state,” conducted with the deliberate intention of intimidating the populace or influencing government policy or conduct by mass destruction or certain individual crimes (such as assassination and kidnapping). From a legal perspective, this is a deliberate distinction, as it requires domestic terrorists to have committed—or at least conspired to commit—some illegal act of violence. The purpose of the domestic terrorism definition is to highlight the especially heinous reality of criminal violence committed for political reasons.

In any case, the law already permits charges for providing material support to any of a host of potentially terror-linked criminal acts, ranging from the use of firearms against public officials to nuclear and biological weapons stockpiling to bomb-making to kidnapping.

Notably, this includes federal felony arson, a crime with which multiple Antifa members have been charged during the nearly four-month-long assault on federal facilities in the Pacific Northwest. Yet in no case that I am aware of have federal domestic terrorism or material support charges been pursued following any of these attacks.

Blurring Distinctions

In essence, what Carroll and others are trying to do is tear down the divide between domestic and international terrorism, but the distinction between the two is vital.

The United States addresses international terrorism, which involves foreign nationals and often foreign state sponsors, primarily as a national security threat. It is less about the enforcement of specific criminal laws, or even the safeguarding of individual citizens, and more about preserving U.S. national security. The first terrorist designations were conducted by presidential executive order for groups interfering with the Arab-Israeli peace process. It is because of the national security implications that we permit banning transactions or material support for designated foreign groups preemptively.

In contrast, the U.S. Constitution protects Americans engaging in a wide swath of activity—provided no actual crime is committed.

There is always a desire by some to use a moral panic to achieve broad powers they could not otherwise rationally convince the people of the United States to countenance. This current maelstrom is only the latest such example. We should reject calls by elites who have conducted a largely inept campaign of international counterterrorism to now use those tools on their domestic opponents.