After last week’s storming of the US Capitol by a right-wing mob resembling an adult Halloween party gone awry (bring your own fur and anti-Semitism), talk is again resurfacing about expanding the War on Terror. On Thursday, The Wall Street Journal reported that President-elect Joe Biden will “make a priority of passing a law against domestic terrorism,” noting that “he has been urged to create a White House post overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them.”
Emphasizing domestic terrorism isn’t new for Biden, who has said he decided to run for president this time around after a neo-Nazi killed counterprotester Heather Heyer during the infamous 2017 Unite the Right rally in Charlottesville, Va. With deadly right-wing violence looming ever larger, and with a Democratic Congress and Executive Branch about to be seated, new domestic terrorism statutes are quite likely just around the corner.
But this is a terrible idea.
To understand why, we must first contend with the reasons this issue exists in the first place. It may come as a surprise, especially considering that we’re approaching the 20th anniversary of 9/11, that there is no generic federal law punishing domestic terrorism. While the USA Patriot Act did redefine terrorism to include its domestic variety, it did not create a specific set of penalties for such acts. Instead, prosecutors can use many of the broad terrorism laws that are on the books to prosecute acts of domestic terror (the majority of which have been committed by far-right actors). The problem is, they simply don’t. As the Brennan Center’s Mike German writes, “The Justice Department’s inattention to far-right violence is a matter of longstanding policy and practice, not a lack of authority.” As a result, the term “domestic terrorism” has been rendered “practically inconsequential” from a legal perspective according to the legal website JustSecurity.org.
The situation is vastly different when talking about foreign terrorism. As soon as the government establishes a person’s connection, no matter how tenuous, to one of the 69 US-designated foreign terrorist organizations, that person can be subjected to all kinds of dubious law enforcement practices, often leading to more severe criminal charges, and triggering enhanced penalties upon conviction. Since most of the organizations on this list operate in Muslim-majority countries, the connection between Muslims and terrorism has become cemented in our legal thinking, to say nothing about our larger political and social imaginations. Even in cases when there is no direct connection to a foreign terrorist organization, American Muslims are still characterized as international terrorists by the Justice Department.
In other words, a terrorism double standard exists. And the double standard is deeply entrenched both in our laws and in our broader culture. Left unexamined, this same double standard feeds off of its own bigoted limitations and assumptions and grows like yeast in a warm oven. One result of this is the discourse we’re now all familiar with: White guy shooters get labeled as angry or desperate or losers, while Muslim shooters are defined as terrorists. The former are examined as troubled individuals. The latter no longer belong to humanity.
It would seem, then, that a domestic terrorism statute could perhaps operate as a great equalizer, forcing lawmakers to confront their own bigotry, and jolting us from any racist assumption we may carry that “Muslim” is really just an adjective to the noun “terrorism.” There’s certainly something satisfying in calling a monster like Dylann Roof a terrorist.
But, as Center for Constitutional Rights attorney Diala Shamas pointed out recently on Twitter, this is a seduction that ought to be resisted. “It’s a trap,” Shamas writes. “What work does the Terrorism word do?” she asks. “It just stokes fear and clouds our ability to talk about root causes, understand different forms of violence & protest, and different relationships w[ith] the state.”
Muslim Americans know better than most the damage that is done with the terrorism label. Over the past 20 years, Muslim American communities have been dealing with wave after wave of state repression, including sweep arrests after the 9/11 attacks, mass deportation programs aimed specifically at people from specific Muslim-majority countries (NSEERS), and the vast spread of spies and informants within our midst. Law enforcement has deemed it suspicious if you’re a Muslim man who has grown a beard, stopped smoking, or become involved in activism (that is to say, is living a normal life). Muslim charities have been shuttered, their leaders thrown in prison in gross miscarriages of justice. The government rolled out its Countering Violent Extremism programs, which, among other things, asked teachers to keep tabs on their Muslim students and report students who criticize the government or the West as possible terrorist recruits.
One part of the program was a website called “Don’t Be a Puppet,” purportedly an online game to teach children how to avoid violent extremism. The American Federation of Teachers objected, describing the program as “ideological profiling and surveillance” that will have a “chilling effect on our schools and immigrant communities, jeopardizing children’s sense of safety and well-being and threatening the security and sense of trust of entire communities.”
All of this is but a fraction of what’s happened. I haven’t even mentioned the no-fly lists, the Muslim bans, the law enforcement pressure to spy on your own communities, or the massive amount of resources spent on entrapping poor and often intellectually challenged Muslims in fake terrorism plots.
In one case, known as the Newburgh Four, the judge herself stated that “only the government could have made a terrorist out of Mr. Cromitie,” one of the defendants. The judge described James Cromitie, who was recently unemployed and had a history of serious drug use, as “a man whose buffoonery is positively Shakespearean in its scope.” The FBI informant in this case had offered Cromitie the incredible sum of $250,000, a new BMW, a holiday in Puerto Rico, and his own barber shop if he went along with the FBI’s manufactured plot. At sentencing, the judge stated, “I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition.” Nevertheless, sentencing guidelines prevailed. Cromitie is currently serving a 25-year sentence.
In a Boston Review essay opposed to expanding the War on Terror, Atiya Husain writes: “To be called a terrorist is, by definition, to have one’s political ideas exist outside the scope of acceptable discourse and licit protest. In this way the terrorist can not only be disappeared as a person, but their politics can be disappeared, too.” She’s right, of course. Politics, even of the most objectionable kind, should be a place for debate and argument and not left to law enforcement.
Arun Kundnani and Jeanne Theoharis have argued something similar: “Part of what the use of the term ‘terrorism’ does is grant law enforcement greater leverage, deeper reach into the realm of political ideas and association, and dramatically expanded funds,” they write.
Of course, far-right violence is deeply troubling. Right-wing extremists have been responsible for the majority of US terrorist attacks since 1994, according to the Center for Strategic and International Studies. They are without a doubt a grave and serious menace.
But there is already plenty of prosecutorial power on the books to deal with far-right violence. The problem is not that we need to expand our laws. Rather, the problem is making sure we use our laws, and that we use them fairly, consistently, and to the full extent possible. The real scandal here is not the lack of a domestic terrorism statute. The real scandal is the free pass white supremacy has had from law enforcement for all these years.
Reacting to this recent spate of politically motivated violence by granting more powers to policing, however well intentioned, won’t solve anything. Instead, such a move will endow the state—the same state that has gone easy on right-wing, racist violence in the past—with even greater authority, thereby threatening others, including and perhaps especially left-wing, dissenting, immigrant, Black, and Indigenous groups and individuals, if American history is any guide. We don’t need to enlarge the reach of the War on Terror until we all, one way or another, fall under its umbrella. Rather, we should be aiming to end it.
It’s not that I’m naive about the perils ahead. I know how much the extreme right wing hates me and people like me. But expanding—rather than questioning—both the definition of terrorism and the War on Terror? I wouldn’t wish that on my worst enemy.