There Is A Real Risk To Criminalizing Domestic Terrorism

(Full disclosure: In 2002 I was paid for my participation – preparing a scholarly paper with Ron Akers who supervised the criminological side of my doctorate and dissertation – in the National Institute of Justice’s, which is the research arm of the Department of Justice, special conference on Violence and Terrorism. The proceedings of that conference were published in this edited volume. The definition and empirical theoretical explanation of terrorism that we presented, which were directly from my doctoral dissertation, were voted by the other participants in the conference as the best definition and empirical theoretical explanation of terrorism presented at the conference. That definition is closely mirrored in the definition used in the Federal statute that defines both international and domestic terrorism. I have had no funding from the NIJ/DOJ since 2002.)

After the white supremacist terrorist attack in El Paso on Saturday, which followed on one in Gilroy, CA the week before, and was then followed by a mass shooting in Dayton, OH that night and which is still under investigation for motive, there have been calls to revamp the US criminal code to criminalize domestic terrorism. The FBI Agents Association has now formally called on Congress to do this.

Many others have also called for this change because, as we’ve discussed here before, while domestic terrorism is defined in the Federal code, there is no criminalization of the behavior as there is for international terrorism. Many are arguing, and, perhaps, not incorrectly so, that it is time to bring the Federal code up to date and criminalize domestic terrorism so we have better tools to fight the surge in domestic white supremacist terrorism that has been spiking across the US over the past three years. And that, by doing so, Congress would be sending a message and ultimately be creating a deterrent. As a professionally educated and trained criminologist, I am highly skeptical of the deterrent power of law, especially Federal law, on most people’s behavior.

That said, I have a different concern here. Specifically that a Federal criminalization of domestic terrorism will actually be used and directed against those who are ethnically, racially, and religiously non-conforming to the white, Christian majority that still exists in the US. The same goes for LGBTQ Americans, as well as members of immigrant communities who have not completed or have chosen not to become naturalized citizens. The US’s history of applying law, is the history of law being directed by those with more cultural (ethnic, racial, religious, political/ideological, socio-economic, gender, sexuality) homogeneity to the majority against those with less. And I think it is highly likely that if domestic terrorism is criminalized at this moment in America, where the questions of who are and can be American and just what Americanness is are actually being fought over, including in the violent domestic terrorist attacks we saw in El Paso and Gilroy and Paloma and Pittsburgh and Charleston and other places in the US, then an actual criminalization of domestic terrorism will not be directed at white supremacists. Rather, it would be directed against Black Lives Matter; anti-Trump protesters in general, as well as the more specific antifa, which is often conflated with the Black Bloc anarchists; RAICES, the Jewish Never Again Action movement, and other groups protesting the President’s immigration policies and practices; as well as a variety of other groups that regularly and routinely engage in peaceful assembly and protest and digital and social media activists protesting Federal, state, and local government leaders and action.

And this is before we even get to what the states will do to mirror a Federal criminalization of domestic terrorism. As it is, every state created some variant or version of homeland security, anti-extremism, and/or terrorism statutes in the wake of 9-11. Some were well thought out. Some not so much. Several years ago I was briefly asked to consult on a defense appeal in New Jersey* for someone who, when 15, got drunk and spray painted some swastikas and anti-Semitic graffiti on a synagogue. Unfortunately for this guy, when New Jersey decided to create a terrorism statute in the wake of 9-11, they just built out their hate crime statute. So stupid, drunken teenage behavior, no matter how much it is offensive, got this guy a long prison sentence as a terrorist under New Jersey state law instead of just a hate crime prosecution.

Last week Ken White, the former Federal prosecutor turned defense attorney who tweets as Popehat, and Above the Law’s Elie Mystal had a very interesting and thoughtful discussion that, while tangential to criminalizing domestic terrorism, provides a loudly sounding klaxon of warning against doing so. Their conversation was about creating a 1st Amendment carve out to criminalize hate speech. While I highly recommend that you click across and read the whole thing, for the purposes of criminalizing domestic terrorism, this is the relevant section (emphasis mine):

Elie: JUSTICE MYSTAL, CONCURRING. The majority has well explained the law as it is, and explained well what the law is not. But I now write separately to argue not what the law is, but what it should be…

When applied to people of color, the incitement principle does not take into account the lived experience of colored people. It does not take into account how lynchings happen, how assassinations happen, and how run-of-the-mill “I’m just going to beat you half to death” hate crimes happen.

The mob is encouraged, riled up, and given a black or brown scapegoat for their problems. Eventually, some members of the mob are going to *act.* The people riling up the mob know that there is a chance one of their idiot flock will act. We have to be able to bring legal consequences to these people, *before* there are additional dead or beaten people of color in the streets. Prosecuting merely the act after the fact might make white people feel better, but it does nothing for the victims who are either dead, bloodied, or live in fear of being dead and bloodied.

To put that in the form of a question, what *good* do incitement standards, as we currently have them, do for the people most likely to be the victims of the kind of racial violence black people have known in this country for 400 years?

White: It’s a perfectly fair question. The legal system disfavors the powerless — particularly racial and religious minorities. Rules devised by the system tend to do the same. The way the system works tends to do the same.

But — here’s the key — exceptions to constitutional rights absolutely follow the pattern. Put another way, any exception to free speech will be disproportionately applied against the powerless, and especially people of color.

The history of free speech law bears this out. Very little of it is about trying to put limits on racists. Most of it is about trying to put limits on the powerless — about the system finding excuses to jail poor people, people of color, unpopular people.

So, consider the cases involving a broad reading of incitement, the ones that might support prosecuting someone for a billboard like this. Consider Schenck v. U.S., in which Justice Holmes gave us the fatuous “fire in a crowded theater” trope. Schenck’s about prosecuting a socialist for distributing handbills suggesting that poor people resist the WWI draft. THAT’S what got the Supreme Court to articulate a very broad and unprincipled incitement standard, the type you’d need to reach a billboard like this.

Elie: Right. It’s used to put people like me in jail for saying “we need to take a sledgehammer to the Wall” if one idiot sledgehammers the Wall and catches a border security guard in the face… “by accident.”

White: Exactly. Or consider “fighting words,” a doctrine almost never applied by courts but often raised by people wanting broader bans on speech like this.

Chaplinksy — the poor bastard whose case led to the “fighting words” doctrine — was a Jehova’s Witness, a sect that was revoltingly prosecuted in the 30s and 40s. It’s an ugly bit of history most people don’t know about. Chaplinksy was streetcorner preaching and a crowd assembled and was threatening him, and a dude tried to RUN HIM THROUGH WITH A FLAGPOLE WITH THE AMERICAN FLAG. But the cops were wanted HIM to stop preaching, so he swore at a COP, and they arrested HIM, and the Supreme Court says that HE’S the one uttering the fighting words.

That’s the way these cases go. True threats doctrine? Developed on the backs of Vietnam War protesters.

Elie: I had forgotten where we get fighting words from.

But, if I may respond as if you were Joe Biden… THAT WAS THEN, OLD MAN. The argument that we can’t stop racists from inciting violence against us because the racists will use those laws against us is, at best, unsatisfying.

White: Elie, it may be unsatisfying, but sorry, it’s true. Consider:

Right now, Ted Cruz wants to have ANTIFA investigated and prosecuted under RICO. Now, that’s stupid for a number of reasons. But it illustrates that doctrines allowing broad attacks on speech are NOT going to be used against dudebros who run racist gun stores.

Who is going to get hit with broad definitions of incitement? It’s not gun store dudes. It’s Black Lives Matter marchers.

Consider all the efforts to pass new laws criminalizing unlawful assembly a couple of years ago after some particularly well-publicized Black Lives Matter marches.

Consider New York, right now, wanting to make it a FELONY to splash a cop. Now, that’s not speech, but that’s how the system works.

This isn’t speculation. It’s history. There is no rational reason to think that broad free speech exceptions will be used for the benefit of the powerless.

You are wickedly well-educated on the law, Elie. So remind our readers: in the first hate speech/hate crimes case to reach the Supreme Court, who was the aggressor and who was the victim?

Elie: [Furiously Googling] It’s the Mississippi Burning case, yeah?

White: It’s Wisconsin v. Mitchell, where the defendant was black and the victim was white. It was a case where a bunch of kids got riled up after watching “Mississippi Burning” and attacked a white guy. It is, by no stretch of the imagination a coincidence that the first hate crimes case involves black-on-white crime.

Elie: I mean, the reality that any speech law made to protect black people will be used against black people is one of the things that makes me hate this “land of the free” crap. But it also pushes me to my actually least favorite position. … Let’s make hate speech unconstitutional. Or, to put that more legally, let’s make hate speech unprotected speech.

Yes, that has the same problem that “PoC ‘hate’ speech” will be more prohibited than white hate speech, but it ALSO means that at least some white hate speech can be controlled. It’s a murder-suicide pact, but it will stop some white people from encouraging violence.

White: And let’s not confuse it with other popular proposed amendments to the First Amendment, like the deathless “no flag burning” amendment, or the right to pray in schools amendment.

So: I like specifics about law over generalities. So, Elie, how would you propose to word an anti-hate-speech amendment?

Elie: See, that’s the problem right there. Wording it. I’d go with something like this:

“Speech intended to threaten, harm, or harass other Americans based on the race, gender, religion, country of origin, sexual orientation, gender at birth or [insert whatever ism I’m forgetting because I’m not woke enough] shall not be considered protected speech. Congress shall have the power to enforce this provision.”

And yes, I’ve just written a Constitutional Amendment that still somehow doesn’t take down the fucking billboard and I hate myself.

But I am getting at “harassment” which means I can basically shut down white supremacist Twitter. To say nothing of the fact that my Amendment has a chilling effect on Donald J. Trump.

White: Okay. Not to be the guy who asks what does that mean — but what does that mean?

Elie: Threaten = trying to nudge the true threat analysis away from “imminent” and towards “reasonable. Harm = trying acknowledge that there are speech harms that are more than mere physical danger. Harass = “get out of my mentions, you asshole.” Threaten is enhanced, harm is new, harass is the one that will ruin free speech.

White: Since I’m having trouble analyzing this, can I ask how it would apply to an example? [we got through a couple of examples until]

OK, the Amy Wax example. Wax says, falsely, that no black students graduated with honors, right? So, reverse it, A prof who says that white kids at her school are privileged, racist, and indifferent to injustice, and ought to be ashamed. Protected or not?

Elie: Well, this gets to an important issue: TRUTH is always protected. At some point we need to stop white supremacists from spreading their trash. Wax was surfacing a lie. Not an opinion. Not research. Just lies. I’m just floored by how we can continue living in a society where freaking lying is protected speech, when we know how dangerous lies are to the very structure of our polity.

White: Do you want American courts adjudicating whether whites are racist? Would you like, say, a Trump appointee in the District of Mississippi ruling on that one?

Elie: Ugh. NO. No I do not want a Trump judge in Mississippi ruling on whether I have a right to a Slurpee. Much less on whether I can say what I want.

For those playing along at home, this is where Ken always gets me. I’M FREAKING RIGHT… but Ken knows this guy named Donald Trump and his mere EXISTENCE means that we can’t have nice things.

White: Okay. Let’s say public statements by professors, activists, political figures can be the basis for prosecution if they are factually false. Who is prosecuted first in America: Steve King, or AOC?

As White correctly points out, and Mystal recognizes in the legal and lived history that he and White are describing, is that law is all too often created by the powerful in response to something done by or to the powerless and is then directed against those with less power by those with more. And, as the sociology of law research tells us, this direction flows from the culturally (ethnically, racially, religiously, politically, socio-economically, sexuality, and gendered) more homogenous against those who are less culturally homogenous. And this is what I think will happen if domestic terrorism is criminalized. It won’t do anything to deter the white supremacist or neo-NAZI terrorists we’re concerned with, nor will it really change their potential prosecutions, which will focus on murder and assault and battery as defined either Federally or in the state jurisdictions they are tried in. What it will do, however, is provide another tool for those already in power who play footsie with the white supremacists, neo-NAZIs, neo-fascists, neo-nationalists, and/or nationalist-conservatives for political reasons to direct law against those appalled by the behavior of the members of these groups and the politicians that play wink-wink, nudge-nudge with them. And that means that Black Lives Matter activists, anti-Trump activists at the Federal level, anti-insert state governor’s name here activists at the state level, those who might protest specific Federal or state legislators, RAICES, the Never Again Movement, and others protesting against the President’s immigration policies and actions will be even more at risk. We need to be clear eyed that criminalizing domestic terrorism comes with a price. That price is that the criminalization of domestic terrorism will make members of all these protest groups, many directly tied to ethnic, racial, and/or religious minorities, will no longer just be potential targets of white supremacist terrorism, but also of the domestic terrorism law put in to place to deter and counter it.

Be careful what you wish for, you might just get it. Good and hard.

Open thread!

* The appeal didn’t go forward as the new defense attorney brought in to handle the appeal, and who I was recommended to as someone with documented credentials as both a one time scholar of terrorism (pre 2007) and then counter-insurgency and counter-terrorism practitioner (post 2007), was unable to actually challenge the statute on appeal for technical reasons resulting from the original trial. So I didn’t do much of anything but read a summary of the problem and say, I’m happy to consult, here’s my rates, which turned into $0 billable hours.

The 2020 Elections Present A Simple Choice: Pick A Torch

Do you stand with this torchbearer?

Related image

Or this one?

Image result for charlottesville protests

And that should be the ad the Democrats should already be running on every station, across America, to set the conditions for a successful 2020 presidential campaign, as well as campaigns for the House, Senate, and gubernatorial and state legislative elections. Once nominees are in place, you can then superimpose the Democratic nominees for these positions and relevant portions of their platforms, tailored to the specific races, on the image of the Statue of Liberty and of the President on the image of the Charlottesville white supremacists and neo-NAZIs.

Back in January I wrote about the context in which the 2020 US election was going to take place. I specifically wrote that the US was currently experiencing a very specific type of resource war:

The 21st Century American Resource War: An Ideological and Partisan Dispute Over Who Gets to be an American

The most divisive political dispute, for lack of a better or less incendiary term, that is going on in the US right now and will continue into and through the 2020 election is one over resources. This is not a dispute over physical resources; and it is not really over even political and economic power in the sense that we’re used to understanding those types of disputes in the post WW II United States. Rather, the actual resource in dispute is Americanness itself. As in who actually is, or may make a claim to be, an American. This is not a new fight within and between Americans. It goes back to the origins of the country. And it, as it is doing right now, usually flares back up immediately after there has been an extension of civil liberties and rights to groups that were not previously considered, whether for political, social, religious, and/or ethnic/racial reasons, to be entitled to the full rights, protections, and liberties of other Americans. We are, unfortunately, currently in one of these periods. And the fight is over two very different visions of what it means to be an American and who gets to be an American.

The President, his senior policy advisor Stephen Miller, fellow travelers like Congressman Steve King, many of his outside advisors like Anne Coulter and Ginni Thomas, and his base are committed to a very narrow, crimped, and small minded vision of what it means to be American and who gets to be an American. Those in opposition to this have a far broader, expansive, open minded, and welcoming understanding of Americanness. This is the real core political, social, and religious dispute in the US today. It is an ideational, ideological, and in some cases theological and dogmatic war over the resource of Americanness. And, for the time being, it is fortunately and largely non-violent. Though the acts of domestic terrorism that are being driven by the most extreme adherents of the narrow, crimped, small minded understanding of Americanness and who is an American are accelerating as we saw in Pittsburgh.

Unfortunately, the frequency of the domestic terrorism from within this long simmering American insurgency is escalating. The violence, or the attempts at violence, are increasing and, often, as we saw yesterday in El Paso, increasing in lethality. We know what side the President, his senior advisors, his surrogates, his supporters, the Republican Party, and the conservative movement have chosen. The rest of us need to get focused and realize that a political war is upon us. And that that political war is over who is and gets to be an American. And those seeking to narrow it are more than happy and willing to both promote violence to achieve their ends and to undertake it themselves. The separation of migrant children from their asylum seeking parents, their abysmal treatment in the concentration camps they’re being detained in, and the violent rhetoric the President, his surrogates, his enablers, and his supporters use are all types of this violence. These often state directed actions are acts of symbolic and rhetorical violence intended to influence the President’s most extreme followers and their fellow travelers to actual physical violence.

This is a political war that must be fought. And it must be won. It isn’t going to be won by arguing over who is or is not the most progressive or whose policy proposals are more centrist or more socialist, when even the most centrist of them are far to the left of the leftmost proposals from a decade ago. It will only be won by recognizing that we are actually in a political war and that this reality changes the dynamic of our politics in general and the politics and politicking of the 2020 election. This is not political and campaigning business as usual. This is not an attempt to somehow reset everything to dawn on November 8, 2016. This is not about things going back to normal. This is a fight to preserve as much as can still be preserved, to clear American politics of those who promote this bigoted, racist, xenophobic, small minded, and narrow vision of who is and can be an American, and then build something stronger on what has been preserved.

Pick a torch!

It’s that simple. You’re either on the side of the Statue of Liberty or the side of the tiki torch neo-NAZIs and white supremacists. There is no both siding this. There is no “if my favorite candidate isn’t the nominee, I’m not voting because I won’t compromise my ideals and ideological purity”. Refusing to pick a torch, is refusing to take a stand. It is putting yourself and whatever your pet issue or issues are over promoting the general welfare and providing for the common defense. None of your high minded, ideologically pure agenda is going to ever get enacted if you don’t stand with those standing with Lady Liberty against the nationalist conservatives, the white supremacists, neo-nationalists, neo-fascists, and neo-NAZIs. Failing to pick a torch moves us one step closer to a white Christian herrenvolk democracy in the US where everyone who isn’t white and Christian has their rights challenged, limited, and/or taken away.

Pick a torch!

Updated at 2:57 PM EDT

Redshift in the comments asked for a side by side, easy to use on social media version of the images. So here you go:


Open thread!

Breaking News: Jeffrey Epstein Found Injured In His Cell

Authorities at the Metropolitan Correction Center in New York are reporting that Jeffrey Epstein was found semi-conscious in his cell with marks on his neck earlier tonight.

NBC 4 New York has the details:

Accused pedophile and wealthy Manhattan financier Jeffrey Epstein was found injured and in a fetal position inside his cell at a New York City jail, according to sources close to the investigation.

Epstein, who is being held in Metropolitan Correctional Center during his trial for conspiracy and sex trafficking, was found semi-conscious with marks on his neck, two sources told News 4. Investigators are trying to piece together exactly what happened.

Two sources tell News 4 that Epstein may have tried to hang himself, while a third source cautioned that the injuries were not serious and questioned if Epstein might be using it as a way to get a transfer.

A fourth source said an assault has not been ruled out, and that another inmate was questioned. The inmate who investigators have talked to in Lower Manhattan facility has been identified as Nicholas Tartaglione, according to a source. Tartaglione is a former Orange County police officer who was arrested in December 2016 and accused of killing four men in an alleged cocaine distribution conspiracy, then burying their bodies in his yard in Otisville, according to court records.

Sources told News 4 investigators questioned Tartaglione, and the former cop claimed not to have seen anything and didn’t touch Epstein, sources said.

The attorney for Tartaglione denied all the claims that his client attacked the financier, saying his client and Epstein get along well. The attorney added Epstein was seen today and appears to be fine.

“They are in the same unit and doing well,”said Bruce Barket, an attorney for Tartaglione. He said any claim that Tartaglione might have assaulted Epstein “is absolutely not true.”

Epstein is now on suicide watch inside MCC, according to two sources. Attorneys for Epstein did not immediately return calls for comment.

A spokesperson for the Bureau of Prisons did not return calls and spokesmen for the U.S. Marshals and U.S. Attorney’s office declined to comment.

More at the link.
Open thread!

Epstein Denied Bail

At least one piece of good news today.  Here’s the story.  It took a week to decide whether he would be held without bail – I wonder how long his trial will take.

Watching the Disinformation Being Made and Transmitted: Jeffrey Epstein Edition

Shortly after it was announced on Saturday that Jeffrey Epstein had been arrested and was facing indictment for the sex trafficking of minors, the disinformation machine kicked into gear in order to protect the President. I want to make it very clear right now that there is no evidence that the President is implicated in Epstein’s crimes. The DOJ is not alleging that in its indictment of Epstein, and neither am I. All we know at this time is that the President had a long standing personal relationship with Epstein and, at one point, commented that Epstein likes women who are on the younger side

That stipulated to, here’s what was quickly put up by a poster with ID: NKrYzbHL at 10:35 PM on 4Chan’s /pol/ board:


Can Anons add smth & help backing up with sauce, please?

– Trump kicked Jeffrey Epstein out of his Golf Club and banned him for life, when he found out, Epstein was hooking up with the 14 Year old daughter of an employer

-Trump is NOT in the flight log to Lolita Island, not even once. He “hitched a ride” back from Daytona Beach TO NYC with Epstein’s son one time…and I have little doubt they tried like holy hell to get Trump to Lolita Island. Epstein assaulted a young girl at Mara Largo and Trump had him banned for life.

-At Epstein’s first arrest Trump went voluntarily to the police to give a statement and at the time the Police commented “He could not have been MORE forthcoming”.

-Trump knew what Epstein was up to “he’s a fun guy, likes his girls young, really really young”. People held that against him as if it were some form of agreement when in fact, in typical Trump fashion he slapped Epstein publicly..iron fist in velvet glove. He was NOT a politician and he had to do business with these people and he still managed to say something about what he knew was going on.

You will not be surprised to find out that the link to the Page Six article does not mention Epstein, the President’s relationship to Epstein, the President kicking Epstein out of and rescinding his membership to Mar-a-Lago! It is solely about the book written by Studio 54’s former owner and the only references to the President in it outside of his name in the title of the write up and listing in the categories and tags are:

The former owner of infamous Manhattan club Studio 54 is releasing a tell-all book dishing on the wild cocaine parties and the antics of stars including John Belushi, Robin Williams — and even a “boring” Donald Trump.

Trump was another club regular, but “he never touched drink or drugs. He liked looking at beautiful women, even though he was married to Ivana.

Trump wasn’t a lot of fun — when you’re in a crowd drinking and drugging and one person isn’t, that person seems boring.”

In fact I have been unable to find any references to the President kicking Epstein out of and rescinding his membership to Mar-a-Lago, nor that he gave evidence to the Palm Beach Police. There is a December 2018 YouTube video interview of one of the victim’s attorneys where he states that in 2009, the President was helpful when he was trying to serve subpoenas in his civil suit. Not that he went down and gave testimony to the Palm Beach Police, not that he assisted prosecutors in Florida in their case, but that he was helpful in regard to getting subpoenas served. That’s it. We can all agree that was important help the President provided, but it is not giving testimony or assisting prosecutors, which is what is being alleged.

It is unclear if this was the first or even original post as screengrabs have been tweeted with a 1900 hours time stamp from what appears to be a different board, most likely either 8Chan or one of the subreddits. These are in response to other’s tweets about Epstein and, in some cases, his relationship with the President.

Here’s one from a Twitter thread by Ellen Barkin:

It was also posted, as an explainer about centralized talking points being organized for pushback, in this Brian Stelter thread.

And here is another 4Channer, ID OBJzFf63, posting a copy of the screenshot at /pol/ with the statement that “THEY’RE CATCHING ON TO US”.

These responses are now being tweeted, with no reference to the original point at 4Chan, to push back on allegations being made about the President’s involvement and relationship with Epstein. The tweets below are responses to a tweet responding to Maggie Haberman’s tweet about some of the incriminating information in the Epstein indictment, specifically that he maintained a safe full of incriminating pictures and CDs and he labeled both.

From here it will continue to be pushed through the alt-right, QAnnon, Pizzagate conspiracy theory portions of social media, then get picked up by Russian trolls and bots and amplified. From there it will move into the fringe right/conservative digital news platforms, where it will once again be amplified by the Russian trolls and bots, and from there it will get picked up by first conservative news like Fox and conservative talk radio and then more mainstream news outlets like CNN because its news, so it should be reported. This is the usual trajectory for these disinformation influence operations. One of the Tyler Durdens has been pushing variants of some of this stuff since early this morning at Zero Hedge, including barbering a quote from the video interview posted above and presenting it out of context from the question that was asked and suggesting that the President aided prosecutors, which, again, is not substantiated by the interview.

And that is how the disinformation is made and transmitted.

Open thread!