COUNTERTERRORISM OPINION ARTICLE by James F. Polk.
Counterterrorism is empowered by legislation with federal legislation leading the way. This paper is not about constitutional arguments for or against certain different elements of the U.S. Patriot Act of 2001 nor the constitutional arguments for or against the different elements of the U.S.A. Freedom Act of 2015. This paper is not about constitutional issues surrounding the NSA collection of data. The sole focus of this paper is the practical fight against terrorism as empowered by legislation. Once the United States had a stark example of a terrorist attack on its own soil from a foreign actor the collective national security mind was expanded. The United States now has a consciousness of a framework within which to build anti-terrorism legislation, and the legislative branch is the most important part of the system. The executive branch cannot fight terrorism without the weapons of legislation. The judicial system has nothing to do until law enforcement drags people into court because of having violated the law.
There are many different frameworks through which to view the historical global growth of terrorism. We have European and American issues which share many similarities but contain significant and profound differences. One main issue with the United States is that it is protected on both sides by large oceans. Europe has people who go fight in different terrorist frontline situations and then come back a few years later. There are even de-radicalization nonprofit organizations which view their returning fighters much the same way that many groups view former gang members in this country. We would never in a million years not prosecute a person whom we knew had aided a foreign belligerent with whom we are in conflict. The neutrality laws of the United States of America would never allow such a thing. Some European countries like Norway are choosing to not prosecute motorcycle groups who go and fight against ISIS and then come back. This situation is not the same as a returning terrorist, but this also violates our country’s neutrality laws.
In the United States of America, there is a basic legal principle of “No Punishment, No Crime without Law”. The United States had to define terrorism and it has not been one simple definition. The basic definition of terrorism as any concerted effort to use violence and intimidation to advance political aims. What does this look like? It looks like a completed act of mass murder is what it looks like. Nobody wants to wait until an attack occurs to then go find the perpetrators. It is necessary to prosecute pretextual crimes and to intercept communications from internet sites that are monitored. It is necessary to map out the deep and the dark web and to ferret out evildoers who use government created tor server technology to bounce their signals around so many times that it is very difficult to determine origin. An example of this is the Silk Road. Yes it was a drug website, but it shows that these tor servers can be searched out using DDoS attacks to determine what regional websites go down during the attack which gives law enforcement a clue as to which websites are repeater websites. There are also informants.
When it comes to terrorism, there are a few reasons why patriots of the United States can rest more easily than some doomsday writers claim. Terrorists goal is to intimidate legitimate political entities into conceding to political demands. Terrorists do not have the capability to topple a large nation like the United States of America. The United States of America can absorb attack after attack after attack after attack. This is not the goal of law enforcement, but it is one thing that Americans can bank on, the ultimate juggernaut status of the United States of America. The United States of America produces 20% of the world economy. The United States far outweighs world competitors in conventional and nuclear military power. It would take 20 years of recombining resources and governments of Europe, Asia and the Middle East to actually create another threat the way Nazi Germany and the Axis or the USSR in the Cold War.
What does this mean though? What this means is that though terrorists cannot topple the United States, they are a very real and present threat. They murder people throughout the world and they are of utmost importance to stop before they strike in the United States again. The aptly named Al Capone method of indicting suspected terrorists on pretextual charges like tax evasion, forging documents, lying to federal agents is a way to break up terrorist groups. Because of the U.S. Patriot Act and the U.S.A. Freedom Act, it is not necessary to prove the full terrorist conspiracy, attempt or solicitation to join a group, it is only necessary to prove the pretextual and other preparatory crimes.
Another issue is the fact that 4th wave terrorism has become a largely self-radicalization movement. People who are disgruntled with the United States of America read inspiring literature online from groups like ISIS and Al Qaeda and they answer the call to radicalize and commit an act of violence in the name of ISIS or Al Qaeda and to do it without communicating with anybody. These are the lone wolves and they do not inflict as much damage as larger coordinated groups can, but they are virtually impossible for law enforcement to detect and practically impossible to prosecute because there are no thought crimes in the United States of America. There have been people who have talked of changing the definitions of attempt, conspiracy and solicitation, but this would too radically alter the United States as a society for it to be anything anybody would want. That and there is no real way to detect a lone silent attacker.
This is where civil rights law becomes important. The United States has a separation of church and state and the establishment clause does not allow the government to establish a religion. The Civil Rights Act of 1964 protects religious beliefs and practices of adherents creating a protected class. Islam is a viable world religion and not the enemy. There has been much violence throughout the history of Islam, but that is as much a function of the fact that there is nothing in the desert except to bully around different groups and to shake them down for money for passage to holy cites. The first Saud Kind before they discovered their oil made all of his money (and it was a meager penny compared to oil money) by extorting money from pilgrims. Fundamentalist radicals are not the majority of Islamic believers in the world nor especially in the United States of America. Islamic communities can and do inform on individuals within their communities whom they perceive as becoming more radical in their speech and showing signs of preparing for an attack (sometimes in the form of burns on hands and arms from preparing explosives). This is almost the only way to stop lone wolf attackers within the country from attacking. It becomes necessary for this country to take a step of faith in the Constitution and in Civil Rights Law and in the basic premise that most Muslims are not terrorists and will inform.
Without the tools created by legislators to combat terrorism, law enforcement would not be able to fight. Intelligence would not be collected and prosecutions would not happen. Without the Civil Rights Act of 1964 it is imaginable that an anti-Muslim backlash could happen in a bigger way than it has in the media, in a more tangible way and this would do away with the intel our law enforcement has from within the domestic Muslim community at large. No punishment, no crime without law. More and better and more specific laws need to be crafted, but when there are hotly contested elements to anti-terrorist legislation, there is no Orwellian Big Brother conspiracy afoot, it is simply necessary and proper to craft a legislation which in some instances gives government the right to traverse where it was previously restrained by the 4th Amendment.