Last week, the Biden administration proudly released its promised “National Strategy for Countering Domestic Terrorism.” At the same time, the White House issued a four-page “FACT SHEET” summarizing the 30-page strategy report. Presenting a “Fact Sheet” in this context is ironic, considering there is not a single fact or piece of hard evidence within the report; it is all opinion, wishful thinking and annoyingly repetitive verbiage.
Still, a fair reading of the document reveals a host of legal and constitutional problems that its implementation would present, and it therefore must be considered seriously and not brushed aside as simply another exercise in federal government bloviation.
At the outset, it should surprise no one that the overarching threat necessitating this entire strategy is “white supremacy” spawned by the “racism and bigotry” this administration clearly considers unshakably imbedded in our culture.
Whether it is expanded government watchlists, additional federal criminal laws (including that of “domestic terrorism”), more gun control, a cozier relationship between social media platforms and the federal government or simply delivering more “financial relief to millions of Americans” (yes, more deficit spending is a specified priority), this “National Strategy” plants the seeds for more to come over the course of the next three-and-one-half years.
Scooped up in its wide net as a threat to be addressed by the implementation of this program are pretty much any “ideologies” or grievances that might serve to motivate any person or group to violence. Indeed, at one point the report discards any notion that its broad sweep might be in some manner limited, by declaring that “domestic terrorists” could include “individuals [who] may develop their own idiosyncratic justification for violence that defy ready categorization.”
Therein lies perhaps the most serious defect in the extremely broad scope of what Biden appears planning to do, which is to make it a federal crime to express “extremist” views that are hateful against other individuals, groups or the government itself. As noted in an analysis by Patrick Eddington published the same day as Biden’s report (June 15) on the Cato at Liberty Blog, such a move would raise immediate and serious First Amendment issues. More specifically, in appearing to advocate for new laws and federal powers that could be deployed against “extremist views” without being linked directly to inciting violence and likely to result in violence or unlawful acts, the administration would be proposing something at odds with long-standing Supreme Court precedent.
Of significant concern also in this strategic offering are tricks to blur the bright line that since the late 1970s has served to prevent federal law enforcement from lumping together investigations of domestic criminal acts with international ones. This sleight-of-hand would make it much easier to gather evidence against domestic terrorism (meaning, for Biden, “extremist” views or actions), by claiming there are “international” or “foreign” connections. This concern is reinforced by the report’s noting that the U.S. Department of State would be an important player in implementing the administration’s domestic extremism strategy.
Buttressing the report’s emphasis on the State Department’s role in fighting domestic extremism, is the fact that Biden recently announced the United States was joining the “Christchurch Call to Action to Eliminate Terrorist and Violent Extremist Content Online.” In endorsing this approach, Biden has thrown in with a number of other countries, led by New Zealand and France following the 2019 attack on a mosque in Christchurch. The signatory governments commit to partnering with social media to restrict use of those platforms in furthering or broadcasting “violent extremist content.” The Trump administration wisely had declined to sign onto this plan because of its First Amendment defects; concerns Biden obviously does not share.
Biden’s plan descends to the absurd when it asserts that studying the “iconography, symbology, and phraseology” used by domestic terrorists is an essential component of a national strategy to counter domestic terrorism. Studying hieroglyphics supposedly used by 21st Century domestic extremists illustrates the shallowness of the administration’s approach, but the many legal and constitutional dangers lurking within it are deadly serious.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.
