PATRICK G. EDDINGTON, CATO INSTITUTE
Today, the Biden administration released its National Strategy for Countering Domestic Terrorism. It’s loaded with proposals based (so it seems) on premises that have been discredited or attacked when applied to various ethnic or religious minorities during the “War on Terror” era, such as the FBI’s infamous “Don’t Be A Puppet” website with its anti‐Muslim stereotypes and tropes.
It’s hard to imagine how the FBI and DHS could possibly provide more information to their state, local and tribal law enforcement counterparts, but that is one of the major areas of emphasis in the administration’s new approach:
Additionally, a comprehensive understanding of the domestic terrorism threat landscape requires facilitating a systematic provision of information and data to the appropriate parts of the Federal Government from state, local, tribal, and territorial partners who often identify and disrupt manifestations of the domestic terrorism threat, even if they do not always use the same labels to describe it. (pp. 15–16)(emphasis added).
That last line should trouble everyone.
Exactly who in the government (at any level) will decide who constitutes an “extremist” or what constitutes an “extremist view”? If terminology–and thus standards–vary between levels of government, crafting anything approaching a coherent, legally sustainable policy in this area becomes problematic at best.
Clearly, hateful speech attacking people of color or others on the basis of their religion, gender status, and the like is repugnant and should be condemned by all people of good will. But the Supreme Court long ago ruled that even the most vile speech is protected speech unless it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” Biden’s approach seems potentially ripe for First Amendment challenges if implemented in ways that clearly contravene the Brandenburg standard.
The Biden approach also calls for “making appropriate use of the analysis performed by entities outside the government” by introducing “a new systematic approach for utilizing pertinent external, non–governmental analysis and information that will provide enhanced situational awareness of today’s domestic terrorism threat.” (p. 16)
Concrete, specific threat information is what’s required to stop any violent criminal conspiracy. The FBI had that in the ongoing Wolverine Watchmen case in Michigan, which is why the plot to kidnap (and possibly kill) Governor Gretchen Whitmer was foiled. So did the Nashville Police prior to the 2020 Christmas Day bombing, but they failed to act aggressively on the credible tip from the bomber’s girlfriend. Sending taxpayers a bill for reams of information aggregated and sold to law enforcement organizations will only add to the data overload problem, not help find actual violent actors.
The President’s domestic terrorism strategy has other proposals that appear to represent a clear threat to First Amendment‐protected online speech:
…it is equally important that the Federal Government engage in efforts to prevent individuals from being drawn into the grip of domestic terrorism in the first instance. That means reducing both supply and demand of recruitment materials by limiting widespread availability online and bolstering resilience to it by those who nonetheless encounter it, among other measures. (p. 19)
Does “limiting widespread availability online” mean gutting Section 230 of the Communications Decency Act? And given the distributed nature of the internet, exactly how would federal, state, and local authorities limit “widespread availability online”?
The strategy also places gun control back in the spotlight:
It also means reducing access to assault weapons and high–capacity magazines and enforcing legal prohibitions that keep firearms out of dangerous hands. (p. 19)
The most radical incident of domestic terrorism in U.S. history involved a truck bomb used against the Murrah federal building in Oklahoma City on April 19, 1995. Al Qaeda used hijacked aircraft as flying bombs to destroy the World Trade Center and severely damage the Pentagon on September 11, 2001. One far‐right extremist simply used his car to run over counter‐protestors in Charlottesville, Virginia in 2017, killing one and injuring many more.
There’s no question that preventing known criminals from getting guns is an appropriate focus for public safety professionals. But given the multitude of ways of engaging in acts of violence, we should be cautious about proposals that elevate one type of threat above even more lethal, truly mass‐casualty causing technologies, old or new.
We should also be skeptical of government claims that its agents and officials can tell themselves, much less us, that they have a magic formula for predicting who will become the next Timothy McVeigh:
Additionally, the National Counterterrorism Center, Federal Bureau of Investigation, and Department of Homeland Security will release publicly a new edition of the Federal Government’s Mobilization Indicators booklet that will include for the first time potential indicators of domestic terrorism–related mobilization. (p. 21)
As the Brennan Center has noted, there is no, published, peer‐reviewed data demonstrating “a discernible process of radicalization that results in terrorist violence.” Simply stated, the Biden administration is re‐imagining a counterterrorism approach that has long since been discredited.
In the aftermath of a violent national trauma, there is a predictable political impulse by House and Senate members to “do something” in response. That’s understandable. But the point should be to “do something that makes sense”. The Biden approach does not, particularly when compared to the declassified domestic terrorism assessment it cites as justification for its massive new program:
The IC assesses that lone offenders or small cells of DVEs adhering to a diverse set of violent extremist ideologies are more likely to carry out violent attacks in the Homeland than organizations that allegedly advocate a DVE ideology. DVE attackers often radicalize independently by consuming violent extremist material online and mobilize without direction from a violent extremist organization, making detection and disruption difficult. (p. 10)
This particular paragraph speaks to the very real challenge law enforcement faces in trying to prevent any kind of terrorist act. And as history clearly shows, membership in a given domestic group may, or may not, necessarily be indicative of someone representing a confirmed threat.
Expecting police to prevent every possible violent incident on American soil is a form of magical thinking. Expecting them to act on specific, credible information on particular known or suspected violent individuals should be the standard by which we shape our approach to preventing another Oklahoma City bombing or an attempted insurrection.
Patrick G. Eddington is a senior fellow in homeland security and civil liberties at the Cato Institute. From 2004 to 2014, he served as communications director and later as senior policy adviser to Rep. Rush Holt (D-NJ). Media Contact: 202-789-5200