After ignoring an entire summer of rampant political violence—where more than 30 people were killed, and America’s urban areas reportedly have suffered upwards of $2 billion in damages—we are now suddenly inundated with experts who wish to offer solutions to the problem of “domestic terrorism.”
Or, rather, some domestic terrorism. It is only after the disreputable and ugly events of January 6 that we are being treated to solutions, which look more like the smashing and insulting of political enemies than serious proposals for ensuring domestic tranquility.
Consider Kevin Carroll, who served as senior counsel to the secretary of homeland security (2017-2018), even more formerly of the CIA, but much more recently part of Republicans and Independents for the Biden Coalition (an affiliate of the now much-embattled Lincoln Project).
Carroll proposes in the pages of the Washington Examiner a five-step program for taking on “the fascist thugs who attacked our democracy” in the same way “we defeated al-Qaeda.” Leaving aside the dubious efficacy of our program to defeat al-Qaeda, what does Carroll propose?
Carroll leans heavily into the notion that the rioting on the U.S. Capitol grounds constituted an “attempted coup d’etat.” Never mind that of the five deaths that occurred that day, three were from medical emergencies among the supposed “putschists.” Only two homicides were alleged, one being the result of the police shooting of an unarmed woman. This is not to minimize the criminality of the violence that did occur. But surely in Rangoon they watched with curiosity the extreme tameness of a supposed “coup” that consisted more of selfie-sticks than of tanks.
Loose Language, Dumb Conclusions
Carroll’s lack of precision with the word “coup” is important, as it sheds light on what he means by “terrorism.”
Step one, Carroll tells us, is to aggressively prosecute as many participants in the “insurrection” as possible in the same way we hunted down foreign terrorists after 9/11. Carroll does not explain what this means, but presumably he does not actually intend to support drone strikes against U.S. citizens within the boundaries of the United States. Then again, he doesn’t explicitly rule that option out, nor does he identify any limiting factors for a terror war against American citizens.
Secondly, Carroll proposes forcing all local and state law enforcement agencies and fire departments to swear loyalty oaths, committing them to not overthrow the U.S. government. Of course, many—if not most—American law enforcement agencies and fire departments already require members to swear oaths echoing the words offered by members of the U.S. military, government, and elected federal officials—namely, to protect and defend the Constitution of the United States as well as their state constitutions and local laws.
Carroll’s inclusion of this point thus serves little purpose except to echo the ongoing media gaslighting campaign to portray members of the armed forces and law enforcement communities as secret enemies. This talking point has been explicitly enshrined in the Senate’s proposed domestic terrorism bill, which accuses America’s police and military of being “infiltrated” by right-wing terrorists and white supremacists.
Maliciously and unnecessarily insulting the honor of every law enforcement and emergency responder in the country is the sort of quality counterterrorism and counterinsurgency thinking we have come to expect from someone with Carroll’s prodigious résumé. His claim echoes calls by members of the media for “de-Ba’athification” of Trump supporters. Never mind that the actual “de-Ba’athification” effort in Iraq is widely regarded as having played a role in destabilizing the country.
For his third point, Carroll comes to the defense of Big Tech, opposing calls to alter Section 230 in order to combat internet censorship. It’s unclear why he feels the need to mention Section 230, given that he supports keeping so-called extremists online so that they can be “honey-potted” by U.S. federal agents.
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.