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How to fight domestic terrorism

Another mass shooting has left 11 worshippers dead and four police officers injured, this time at a Jewish synagogue in Pittsburgh. In the days prior, more than a dozen pipe bombs were mailed to Democratic Party figures, thankfully intercepted before detonation. Despite the heroic efforts of the Federal Bureau of Investigation, the United States Secret Service, the Pittsburgh Bureau of Police, and our other law enforcement agencies this week, the violence that has rocked the nation may revive calls for more aggressive laws to detect and prevent domestic terrorism and other lone wolf attacks. But while such inclinations may be well intentioned, the answer to these horrendous acts should not be a slew of new laws that could potentially lead to government overreach and abuse.

Public outcry following the attacks of 9/11 led to the swift enactment of the Patriot Act and other new powers for law enforcement and the intelligence community to fight international terrorism. Congress amended the Foreign Intelligence Surveillance Act, which already provided a system for conducting counterintelligence surveillance of foreign agents, to enact Section 702. This made it easier to conduct warrantless surveillance of noncitizens located overseas. Meanwhile, groups such as Al Qaeda, Al Shabaab, and the Islamic State were designated as foreign terrorist organizations by the State Department, their assets were tracked and seized, and the federal material support laws were vigorously used to prosecute those found to be supplying the groups with cash, weapons, or even seeking to join their ranks.

{mosads}These efforts have been largely successful in preventing the next catastrophic terrorist attack while not trampling the privacy rights of law abiding citizens. However, much of this success would be difficult to replicate with respect to domestic groups and lone wolf attackers, and could potentially cause more harm than good. While federal law has a definition for “domestic terrorism” it is not itself a standalone charge, nor does it command the powers and resources that are available to fight international terrorism. Instead, authorities rely on an slew of federal and state criminal and civil rights laws to prosecute attacks within our borders. But the idea of designating domestic terrorist groups akin to foreign terrorist organizations raises a number of complications.

The First Amendment does not shield groups that commit violent acts, although it does protect free speech even if it is grotesque and extreme. Distinguishing between groups that actually advocate violence from those whose communications are hateful and offensive yet protected would make them difficult to clearly designate. Even if such designations were found to be constitutional, cutting off domestic groups from the internet and the financial system would drive them further underground, likely making them harder to keep an eye on in the effort to prevent attacks.

Meanwhile, would the public truly support the idea of an alternate system to conduct counterintelligence surveillance of purely domestic groups and individuals? Would that mean relaxing restrictions on the use of intelligence agencies to conduct domestic surveillance and operations? Currently, if investigators believe there is probable cause that a federal crime has been committed, then they will seek a Title III warrant from a federal magistrate. A process that would allow the tapping of phones and email accounts of purely domestic persons using a classified warrant application process, akin to the one under the Foreign Surveillance Intelligence Act, would be a massive deviation with far fewer of the checks and balances on authority applicable in our existing system.

The potential for overdesignation and abusive surveillance of political enemies would be significant, and the ability to oversee and challenge the process would be greatly reduced. Designation of domestic terrorist groups would do little to stop lone wolf attackers who may not be officially affiliated with a foreign terrorist organization or radical ideology. Instead, our objective should be to ensure that adequate funding and resources are committed to law enforcement agencies at all levels, particularly to support the highly effective Joint Terrorism Task Force program.

Identification and reporting of suspicious transactions by financial institutions to the Treasury Department under the Bank Secrecy Act can continue to be refined to better catch small scale attacks before they are launched. While constitutional protection of free speech is critical, there is no reason we cannot take a clear and principled stand against hateful groups and publicly marginalize them to the greatest extent possible. Most importantly, President Trump and our leaders in Congress, along with officials at every other level of government, should explicitly condemn violence as a means of settling our political disputes.

In the wake of human tragedy there is always a natural inclination to take drastic action. But passing laws to replicate our system of fighting foreign terrorism at home would be fraught with legal and practical difficulties and is far from guaranteed to work. America has the greatest law enforcement agencies in the world. This week those brave men and women proved that once again. Let us continue to support their mission of fighting terrorism wherever it occurs, while at the same time doing our part to unequivocally reject violence and extremism of any kind.

Joseph Moreno is a former federal prosecutor with the Department of Justice, a former staff member with the 9/11 Review Commission, and a United States Army combat veteran. He is now a litigation attorney with Cadwalader Wickersham & Taft. Follow him on Twitter @JosephMoreno.

Tags America Congress Constitution Donald Trump Government Law Terrorism

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