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Interviewed on @MorningEdition this AM about Domestic Terrorism. Listen if you get a chance. But I will repeat the salient points here, Along with additional points that were covered in the short 4 and 1/2 minute interview.
1. IMO, the issue that has everyone upset is why can’t law enforcement investigate and prevent Domestic Terrorism (DT) where pre-event behavior is so clearly potentially violent.
2. In the case of the F.B.I., there are long-standing prohibitions on the investigation of 1st Amendment protected speech in DT cases. To phrase it differently, the F.B.I. cannot open or predicate a case solely based on something someone said no matter how disturbing.
3. So if a person says or writes that they want to kill a particular group, without some follow-up action on the part of the offender, there is very little the F.B.I. can do from a Federal perspective to investigate that speech alone.
4. This contrasts with international terrorism (IT) investigations of designated terrorist groups like al Qa’ida or ISIS. Congress wrote a material support law (18 USC 2339(b)) that specifically allowed the investigation of pre-event support activities both domestically & abroad
5. So I can the F.B.I. overcome these proscriptions in DT cases? New legislation is one way. But IMO the creation of a DT specific law is problematic. That’s because DT, by definition is a politically-motivated. And who will get to say what politics is ok and what is not?
6. Back to the designated terrorist group issue. The State Department is currently the entity that designates international terrorist groups. If the U.S. creates a domestic terrorism group list, who will be responsible for deciding who makes the list and who doesn’t.
7. That is inherently a political question, and may depend on who is in political power at the time a DT group makes the list.
8. One way to overcome at least some of these issues is to create new, neutral criminal legislation that allows the F.B.I. to preemptively investigate a politically-motivated mass-event crime as a potential conspiracy in order to prevent its completion.
9. Which is why earlier on Twitter I suggested that politically motivated mass murder and conspiracy to commit it is a law that should be considered. But I specifically avoided suggestion the motivation should include words defining type of ideology.
10. Just like the word Islamic terrorism should not exist under the law, so should the term white supremacy or white nationalism exist in or be part of the law. Divisive words make investigation more difficult. The objective is to prevent crime, not make a political statement.
11. The end.
