American Conservative, March 7, 2021
The Bush administration’s post-9/11 domestic crusade is a cautionary tale for post-1/6 America.
President Biden, congressional Democrats, and much of the media are clamoring for a new law against domestic terrorism. Before enacting a new law, Americans should recognize how “terrorism” has spurred deluges of political and prosecutorial malarkey for almost 20 years. Any new crackdown on terrorism will turn into a numbers game in which justice and fair play don’t have a snowball’s chance in hell.
In the six weeks after the Sept. 11, 2001, attacks, the feds rounded up 1,200 people as suspected terrorists or terrorist supporters in the United States. All that was necessary for an Arab illegal immigrant to be considered a suspected terrorist was to encounter FBI agents in New York or New Jersey. Some FBI agents were instructed to look in phone books to find names of Arabs or Muslims who could be targeted. Federal judges repeatedly condemned the secret arrests and none of the detainees proved to have links to the attacks. But even after the Justice Department released or deported most of those detainees, President Bush continued to describe all of them as “terrorists” and “murderers.”
President Biden has often claimed that, during his time on the Senate Judiciary Committee, he wrote the draft bill that later became the Patriot Act. That law, passed immediately after the 9/11 attacks, expanded the definition of terrorism to include activities involving “acts dangerous to human life” that, among other things, may “appear to be intended to influence the policy of a government by intimidation or coercion.” It can take only a few scuffles at a rally to transform a protest group into a terrorist entity. Even if the violence at a rally is initiated by a government agent provocateur, the feds can treat all of a group’s members as terrorists.
The Patriot Act set off a publicity gold rush for federal prosecutors. The feds arrested more than a thousand airport workers and portrayed them as would-be terrorists. Sixty nine airport workers in Salt Lake City were indicted on December 11, 2001, for false statements on employment applications or bogus Social Security numbers. Though U.S. Attorney Paul Warner declared that “there is no evidence that anyone indicted…has attempted any kind of terrorist activity at the airport,” he still characterized the crackdown as a “joint anti-terrorism effort.” The Salt Lake Tribune later reported that “nearly two-thirds of the original 69 indicted workers either had their cases dismissed or were sentenced to probation, for terms that ranged from 36 months down to a single day.”
In March 2002, 66 people who worked at Charlotte Douglas International Airport were arrested on terrorism charges. Previously, almost all of the Hispanic airport workers would have simply been charged with abusing Social Security numbers or immigration violations. U.S. Attorney Bob Conrad declared, “In the wake of 9/11, our efforts now include terrorism—rooting it out and preventing it—especially at the airport.” Everyone arrested was given a choice of going to trial—and getting a sentence of up to 20 years if he lost—or pleading guilty to a misdemeanor and getting out of jail after only a few weeks. Thanks to the Patriot Act, deporting a busload of janitors became the moral equivalent of vanquishing Al Qaeda.
On April 23, 2002, Operation Fly Trap arrested 94 workers employed at Dulles International Airport and Reagan Washington National Airport. U.S. Attorney Paul McNulty characterized the crackdown as an “anti-terrorism initiative” but admitted there was “no evidence at this point of any connection of these individuals to any terrorist organizations.” Attorney General John Ashcroft boasted about the bust: “Our response has been to weave a web of terrorism prevention that brings together all agencies of justice and every level of law enforcement.” But as the Chicago Tribune noted, “Among those swept up were two nursing mothers, a 54-year-old Bolivian grandmother with rheumatoid arthritis, a National Guardsman, and a man who operates a shoe shine business” in a congressional office building. The Tribune concluded, “Rather than striking a major blow against terrorism, the arrests ended up turning people’s lives inside out, causing tremendous embarrassment, anger and despair.”
The Patriot Act empowered the Customs Service to confiscate the cash of travelers who leave the U.S. without notifying the feds that they are taking more than $10,000 in cash or checks with them. The Supreme Court ruled in 1998 that such seizures based on mere paperwork violations were unconstitutional but that did not stop Congress from enacting a criminal provision almost identical to the one previously struck down. In the first two years after 9/11, more than 600 travelers were stripped of their cash as a result of the Patriot Act. Treasury Department officials portrayed such confiscations as victories over terrorism despite the lack of any evidence of terrorist links in the vast majority of victims. Since then, thousands of hapless travelers have been fleeced by that provision. Dan Alban, a savvy Institute for Justice attorney who has thwarted many outrageous federal cash seizures, noted in an email to TAC that “victims are often recent-generation immigrants who are traveling back to their country of origin with remittances for their families. They frequently prefer to travel with cash for cultural reasons or because the banking system in the country they’re traveling to is unreliable, technologically unsophisticated, and/or corrupt.”
Between 2001 and 2006, federal prosecutors charged 10 times as many people in terrorism investigations as they convicted on terrorism-related charges. President Bush declared in 2005 that “federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted.” But only 39 people were convicted on crimes tied to terrorism or national security, a Washington Post analysis found.
The Patriot Act set off an FBI stampede for scalps. FBI agents have been taught that subjects of FBI investigations “have forfeited their right to the truth,” which helps explain the vast increase in federal entrapment operations. Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, estimated that only about 1 percent of the 500 people charged with international terrorism offenses in the decade after 9/11 were bona fide threats. Thirty times as many were induced by the FBI to behave in ways that prompted their arrest. In 2006, the FBI fabricated a terror scheme by the Liberty City Seven, where an informant encouraged a bunch of dimwits in Florida to babble about blowing up government buildings. That group was so knuckle-headed that they asked the FBI informant for military uniforms and wanted to conduct a parade.
Federal law already defines “domestic terrorism” far more broadly than most people realize. Federal prosecutors filed a record 183 domestic terrorism charges last year. The federal prosecutor in Oregon led the way with 78 charges, mostly against people involved in the protests that erupted after the killing of George Floyd. But, as the Oregoniannoted, “Cases categorized as domestic terrorism include allegations of…knowingly entering or remaining in any restricted building or grounds…civil disorders and making threatening communications.”
But many politicians and government officials are already using a much broader definition of terrorism. Capitol Police acting chief Yogananda Pittman, testifying to Congress, described the January 6 clash at the Capitol as “a terrorist attack by tens of thousands of insurrectionists.” Apparently, anyone who tromped from Trump’s raging speech to the Capitol that day was a terrorist, or at least an “insurrectionist” (“terrorist” spelled with more letters?).
After January 6, the de facto definition of terrorism seems to be “anything that frightens politicians.” This is not the first time that a political stampede threatened to open a prosecutorial Pandora’s Box. Fourteen years ago, shortly after Nancy Pelosi first became Speaker, the House of Representatives passed the Violent Radicalization and Homegrown Terrorism Act by a vote of 405 to 6. That bill defined “violent radicalization” as “the process of adopting or promoting an extremist belief system” leading to “ideologically based violence.” Naturally, “extremist” was not defined. Instead, the legislation left it to the political hacks at the Justice Department to determine which ideas were signposts on the road to damnation. The bill sought to empower the feds to stomp out extremism before it starts—an utterly reckless delegation of power to federal agencies. The bill stalled in the Senate and never became law.
The new war against extremism is off and running. On Tuesday, FBI chief Christopher Wray told a Senate Committee that the FBI has 2,000 ongoing domestic terrorism investigations. Wray recognizes extremists as the ticket to a bigger budget: “We need more agents; we need more analysts.” Any new domestic terrorism law will be a winning lottery ticket for the FBI. But the Bureau still acts entitled to near-total secrecy. Wray refused to share with senators evidence on the death of Capitol Police officer Brian Sicknick: “We can’t yet disclose a cause of death at this stage.” Why would anyone expect the FBI to be more transparent on its terrorist crackdowns than it is on one of the hottest controversies from January 6?
Last fall, Wray told Congress that among the “underlying drivers for domestic violent extremism” are “perceptions of government or law enforcement overreach.” But on Tuesday, Wray saw no downside from dropping more federal hammers: “The more of the arrests that you see, well, that’s obviously good news for everybody that we’re arresting people who need to be arrested.” Unleashing the FBI for a covert war against extremism also scorns the lessons of the final 15 years of J. Edgar Hoover’s reign. A 1976 Senate report on the FBI COINTELPRO program demanded assurances that a federal agency would never again “be permitted to conduct a secret war against those citizens it considers threats to the established order.” But legal and administrative restrictions on the FBI evaporated in the post 9/11 panic, resulting in pervasive abuses of Americans’ rights. Have Republicans inclined to vest new power in the FBI forgotten how the Bureau’s deception of the FISA court and unauthorized media leaks helped cripple the Trump administration?
The Washington Post in January portrayed “domestic extremists” as “a disease that seems to have taken hold in the nation’s nervous system.” But the larger danger is the pervasive fear seemingly gripping many legislators and government officials. We cannot permit them to comfort themselves by poking new holes in the Bill of Rights. Will Americans wake up one morning to learn that the new definition of “domestic terrorist” is simply “individuals who distrust the feds and own two guns and more than 100 bullets”?