The following contains editorial content written by a retired Chief of Police and current staff writer for Law Enforcement Today.
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Ever since the US Capitol incident on January 6, which has been spun by partisan Democrats as an “insurrection,” calls have increased for a “9/11-style commission” to investigate the “root causes” behind the incident and to impose a new “domestic terrorism” law.
In a blog post in The Hill by Brian Michael Jenkins, he outlines five reasons why Americans should be concerned about such a law.
Clearly, what happened on Jan. 6 should have never happened.
Likewise, the nightly violence experienced in American cities throughout the course of several months last year should likewise never have happened.
Why then is a single incident at the US Capitol, which lasted mere hours and directly resulted in the death of only one person, Ashli Babbitt the impetus for a “domestic terrorism” law?
Can you say politics?
Jenkins notes that he researched terrorism, both international and domestic for decades, and expressed concern over such an approach, such a knee-jerk reaction.
Following are five reasons why he believes Americans need to be wary of the Democrat’s proposal, none having anything to do with politics.
First, he addresses the speed with which Democrats are likely to approach such a law. Clearly lawmakers are concerned about the fact that the violence, usually blocks away if not thousands of miles had come to their front door.
Yet, last August, when Sen. Rand Paul was accosted on the streets of Washington, DC by a mob of Black Lives Matter and Antifa thugs, were similar concerns expressed by Congressional Democrats?
It was only when they felt they were directly threatened that they felt the need to act.
In the 1960’s Jenkins wrote, the so-called RICO statutes (Racketeer Influenced and Corrupt Organization Act) was passed, ostensibly to go after those who were behind attacks on government buildings and officials back then.
However back then, who would have known that such a statute would be used against anti-abortion protesters or considered against members of Antifa or Black Lives Matter last year.
After September 11, 2001, the over 300-page USA PATRIOT Act was passed by Congress in only three days, a statute which widely expanded electronic surveillance of American citizens, and which the bill’s sponsors never imagined.
Secondly, such a law would flirt with violating the First Amendment. Even the PATRIOT Act and other legislation introduced and implemented after 9/11 were intended to address specific circumstances.
Jenkins argues that those laws are not a template to deal with domestic political violence, which he rightly notes has an entirely different context.
The difference of course is that protest and civil disobedience, within reason of course, are part and parcel of our American history.
Indeed our country was founded through civil disobedience going back to the Boston Tea Party.
The right of peaceful assembly (or protest) and the right to free speech is a God-given right guaranteed to Americans under the First Amendment.
The PATRIOT Act, which Democrats want to use as a basis for a domestic terrorism law, “criminalizes providing material support” to certain designated foreign terrorist organizations.
How do prosecutors define “material support?”
Participation in propaganda activities, fundraising, group membership—with no requirement to show any connection to furthering terrorism, which courts have embraced.
So, what have we seen especially over the past year? Social media companies designating opposing viewpoints that don’t meet a certain narrative as “misinformation,” which could be interpreted to mean “propaganda.”
There are those in Congress who are in fact trying to have certain television networks taken off satellite or cable, networks such as OANN, Newsmax and Fox News.
Who is to say that such a law couldn’t be used as part of a “domestic terrorist” statute? Member of the Tea Party? NRA? Member of a police department? Voted for President Trump?
You could be considered a domestic terrorist by definition of some on the left. That brings us to the third concern.
Who gets labeled a terrorist? As addressed above, who gets to decide who is a terrorist and who is not? In fact in some quarters, police officers have been referred to as terrorists, as have some members of the military.
As Jenkins says, there is currently little agreement in Congress as to who is a terrorist and who is not.
For example, some on the right want to define those who committed violence last summer protesting “systemic racism” as terrorists, while those on the left want to define those who participated even tacitly in the Jan. 6 Capitol protests and subsequent breach as terrorists.
Clearly, there is little chance for agreement on any of this, especially in today’s divisive atmosphere.
The fourth concern raised by Jenkins is such a scheme could backfire. He detailed that while using a terrorist label to go after one’s foes has political advantage, it can also turn around.
For example President Trump wanted to designate antifa as a terrorist organization.
The left meanwhile wanted to go after the Proud Boys.
There are literally hundreds of extremist groups on either side of the political landscape.
There are also a number of extremist issues-oriented groups such as Code Pink, PETA and others, which could under loose requirements be labeled as terrorist organizations.
Jenkins also rightly notes that some organizations are clearly defined groups, while others are merely mindsets.
Under research conducted by the University of Chicago of those who engaged in the breach at the US Capitol, using social media statements, only about 10 percent of those who did so were members of what could be defined as known extremist groups.
They were there strictly for political reasons and were there to engage.
The other 90 percent were just ordinary people who were there because they believed they were taking patriotic action, upset about what they believed to be a stolen election.
One can debate all day whether they were right or wrong, but there were enough signals between November 3 and January 6 to plant significant seeds of doubt in people who were looking to get their questions answered and concerns addressed.
There are some who want to group everyone in Washington, DC who showed up to show support to President Trump firstly, and secondly to express their concerns and disgust with a corrupt election process with those who breached the Capitol and engaged in illegal behavior.
So far around 200 arrests have been made, and estimates are there were well over 100,000 mostly patriotic Americans in the Capitol area on Jan. 6. Lumping everyone in with those 200 is disingenuous.
Finally, the last and final reason why such an act would be futile is the fact that such cases are extremely hard to prosecute. Merely adding a domestic equivalent of a material support for terrorism provision is not likely to make crimes easier to prosecute.
Jenkins notes that under any such act, prosecutors would have the arduous task of proving each defendant’s participation, as well as motive, which would be a difficult hill to climb.
He said that homegrown jihadist terrorists typically acted as “lone wolves,” who were often brought before post-9/11 juries with the possibility of dealing with anti-Muslim sentiment.
Due to that fact, such defendants often negotiated a plea deal. He also noted that nearly half of jihadists who conducted attacks within the United States after 9/11 were prosecuted under normal criminal statutes, not for providing material assistance.
On the other hand, anyone who would be arrested as a “domestic violent extremist” would likely want their day in court, Jenkins says. Trying them as ordinary criminal offenders would be easier, less controversial and remove politics from the equation.
There are obviously copious criminal statutes already in place in order to deal with any incidents such as what happened in Washington on Jan 6.
As addressed earlier, political protest goes back to the founding of our nation.
As Americans, we have long tolerated, as Jenkins says, “a wide range of behavior in political protest, even as participants crossed the line from lawful to unlawful and peaceful to violent.”
There are abundant laws already in place to deal with such incidents.
Congress has the ability, if it chooses to enhance current law without adding the word “terrorism.”
In other words, Congress is looking to throw the baby out with the bathwater, when all that needs to be done is to enhance current law.
Current laws are more than adequate to deal with what happened at our nation’s capital on Jan 6.
Yes we are currently facing a country divided as we likely have not seen since the Civil War.
Despite promising to “heal” the country and “create unity,” everything Joe Biden has done since January 20 has done nothing but further divide our country along ideological lines.
Why the push for domestic terror legislation now? Where was the push when the US Capitol was bombed in the 1970’s and again in the 1980’s? Where was the push for such legislation when groups such as the KKK and the Black Panthers were running rampant?
They were dealt with through criminal statutes already on the books.
In closing Jenkins says, and we agree 100%:
“Instead of a new domestic terrorism law, this moment calls for rigorous and equal enforcement of existing law, treating offenders as ordinary criminals, and avoiding legislation that may undermine Americans’ rights and create labels that deepen the current political divide.”
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