Constitutional Law

Hysteria Does Not Generate Good Policy

The suggestion that we should make domestic terrorism a federal crime is not only unnecessary but given the abuses of the past and present, it represents a significant danger to civil liberties.

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Last week, Brian O’Hare, the president of the FBI Agents Association, released a statement calling on Congress to make domestic terrorism a federal crime. The first thing that should be pointed out when discussing this statement is that it is highly misleading. As discussed in Lawfare, there are already several “federal terrorism statutes that apply in the purely domestic context.” Of course, federal law is not all encompassing (it was never intended to be), and in narrow circumstances such as when domestic terroristic acts are committed with a firearm below a certain size, federal law may not be applicable.

Such narrow so-called “gaps” in federal law however does not mean that domestic terrorists get away with their crimes. Crimes such as murder exist in every state, and states are really, really good at incarcerating and/or executing people. Accordingly, some advocates have been forced to admit their desire for a new federal law is purely symbolic. The problems I mean to raise with this proposed new federal law however is that it will assuredly not be symbolic at all and will present serious civil liberty concerns.

There is a long and unsavory history of the FBI becoming out of control in its pursuit of domestic groups those in charge view as a threat. While one may not to lose sleep when such tactics are used against disgusting and bigoted organizations like the KKK, the abuse does not end there. In fact, the FBI targeted most if not all major figures and organizations within the civil rights movement.

In more modern times, federal agencies have continued to demonstrate poor judgment in labeling groups or individuals as domestic terrorists. In 2017, the ACLU revealed that peaceful political protestors were being labeled “domestic terrorists” by federal agencies. Given the abuses both in the past and present, contributing editor J.D. Tuccille at Reason is right to ask why we should take one “hell of a leap of faith” in federal law enforcement agencies that have not “earned reputations for restraint and good judgement.”

To be absolutely clear, none of this is to say that we throw our hands up at domestic terrorism. It is about time we admit there are better, proven ways to combat the problem that do not require us to create new federal laws that are largely symbolic at best, and presenting a very serious danger to our civil liberties at worst. I also understand that many might scoff at the criticisms of federal law enforcement agencies being made in this piece. It is simply undeniable however, that in the 21st Century laws passed to combat domestic terror threats end up being overwhelmingly used in cases that have nothing to do at all with terrorism.

There is also a larger issue at play here and that is the authoritarian mindset that is currently plaguing law enforcement leadership, where the view towards the public is “[c]omply first, and if warranted, complain later.” In other words, the message of law enforcement leadership to the rank and file is to view the public as threats first, and then citizens with rights and privileges after. This mindset is absurd and dangerous for a couple of obvious reasons. First, this is not how our system of due process is supposed to operate — you know, the whole innocent until proven guilty thing the president only invokes when he or his friends are under investigation? Second, such a mindset is demonstrably not conducive to a “civilized and tranquil society we all yearn for.” The argument that anyone can effectively “complain later” is ludicrous. With judicially created doctrines such as qualified immunity, it is virtually impossible to hold law enforcement accountable, even for clear wrongs and deadly actions. Statutes such as AEDPA have also made it nearly impossible to challenge clear wrongful convictions. Many within law enforcement will of course argue that operating with less accountability is necessary to maintain order. However, we know by now that the exact opposite is true, where a lack of accountability causes deadly distrust of the system at large.

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I understand that when tragedy occurs the impulse to demand we do something is strong. I also understand that it is easy for me to sit on my high horse when I am not a victim of gun violence. Entirely independent of my personal views however is the simple fact that new laws that give already virtually unaccountable law enforcement entities more discretion and power is also leading to immense tragedy and loss of life. If the system were effective at holding abuses by law enforcement accountable then there would be much less cause for concern. When discussing this issue, I find myself most astounded at liberals. You know, the ones who rant and protest against police abuse one week only to then propose that we create all these new laws granting the same law enforcement all new powers and discretion the next?

I know it will sound cliché, but what’s desperately needed here is some consistency and level headedness. If viewing all members of law enforcement as evil and a threat based on the actions of a few “bad apples” is wrong (I agree that it is), then by the same token, viewing all members of the public as threats first based on the actions of a few is also wrong. Most importantly, we have to recognize the obvious truth that this country is already planted thick with laws. There currently exists a myriad of ways that we can lock people up for life. Is it not obvious by now that our society has gotten quite good at this? What is more urgently needed to create a more just and tranquil society is some accountability on the abuses of these laws, not new ones.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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