The persistent belief in the possibility of creating “good guys‐only” crypto “backdoors” evinced by FBI Director James Comey and other federal officials is a form of magical thinking. It’s an intellectual dodge that helps them ignore the government’s own failures to penetrate ISIS in the Middle East and Europe — the single best way to take down the organization’s members.
And questionable anti‐ISIS legislative proposals are not confined to the technological arena.
Another Texas House delegation member who is usually quite good on First Amendment issues, Rep. Ted Poe, has strayed from the path of wisdom by joining those who believe that Twitter and Facebook can somehow magically banish ISIS and its supporters from social media platforms.
In December 2015, the House passed Poe’s Combat Terrorist Use of Social Media Act (HR 3654) on a voice vote. The bill would mandate a report from the administration on how it will combat ISIS’s use of social media, including (in the words of the bill summary) the development of a “policy that enhances the exchange of information and dialogue between the federal government and social media companies as it relates to the use of social media platforms by terrorists.”
As the long list of DOJ indictments against ISIS supporters and would‐be recruits over the last two years shows, the Patriot Act and related statutes have provided the FBI with ample authorities to get the data they need from social media companies to make cases against alleged terrorist plotters. What Poe’s bill has done is provide ammunition for a civil lawsuit against Twitter for allegedly indirectly playing a role in the death of an American killed in a salafist‐inspired attack in Jordan in November 2015.
By the logic of the plaintiffs in that case, the manufacturers of the guns used in the San Bernardino attack could also be held civilly liable, as could the manufacturers of the pressure cookers used to make the improvised explosive devices employed in the Boston Marathon bombing, and so on. If the suit succeeds, it won’t just be social media companies that are put at financial risk from future terrorism‐related lawsuits. Any company whose products or services contributed even indirectly to a terrorist act against an American could face civil liability for the misuse of their products or services.
Just as with the government’s misdirected focus on encryption apps and services, the civil liability focus of such suits takes the spotlight off of the real criminals — ISIS — and the federal government’s own role in creating and furthering the expansion of salafist groups like al Qaeda and ISIS by invading Iraq and Libya.
Congressional calls for banning certain forms of speech or censoring publications are nothing new. They began within a decade of the ratification of the Constitution and have, unfortunately, continued into the modern era. After the post‐WWI Red Scare in 1919–20, a Senate committee called for a ban on foreign language publications that allegedly carried “un‐American” ideas on their pages. The Overman Committee helped fuel an anti‐foreigner and anti‐communist hysteria that would ultimately give rise to the House Unamerican Activities Committee, Senator Joseph McCarthy, and a poisonous domestic political climate that would lead to the surveillance and persecution of hundreds of thousands of Americans in the 20th century. Current federal counterterrorism policies have the nation on the path to repeating the same mistakes in the 21st century.
The government’s current “countering violent extremism” (CVE) policies already have undercurrents that mimic the Red Scare era. These include the creation of a “domestic counter terrorism counsel” within DOJ, the establishment in DHS of the euphemistically named “Office of Community Partnerships” (which is exclusively focused on extremism in Arab‐ and Muslim‐American communities), the FBI’s development of a school‐based CVE program that would effectively pit teachers against their Arab‐ and Muslim‐American students and propagate false and misleading information about Islam, and legislation to make at least some of these programs permanent fixtures of the federal government.
Each of these actions puts the focus — and by extension, the blame — for domestic terrorist acts committed by individual Muslims on Arab‐ and Muslim‐American communities as a whole. No such federal efforts were initiated among the white, Protestant community as a whole after episodes involving the Covenant, Sword and Arm of the Lord, the siege at Ruby Ridge, the storming of the Branch Davidian compound, the Oklahoma City Federal Building bombing, or the recent racially and politically motivated murder of nine African‐Americans at a Charleston, South Carolina church. The contrast is as stark as it is hypocritical.
Indeed, the government’s CVE programs are echoes of failed efforts to ferret out “disloyal” Americans during both World War II and the Cold War — from the use of dubious “loyalty oaths” to the Smith Act to the internment of Japanese‐Americans to the McCarran Internal Security Act and the Attorney General’s List of Subversive Organizations. But we continue to forget the lessons we learned from those failed policies and programs.
Indeed, the history of the List of Subversive Organizations should be a reminder and a warning about how easily federal agencies can go down the road of grouping domestic organizations into “loyal” or “subversive” categories. The recent IRS scandal involving the targeting of right‐of‐center anti‐federal government groups only underscores the fact that the threat of such discriminatory treatment is real. It’s rather easy to imagine something similar happening to Arab‐ or Muslim‐American groups based on their level of cooperation with or resistance to these CVE programs.
The current GOP presidential front‐runner has called for the creation of federal databases to track not only Arab/Muslim refugees from the Middle East, but also potentially Arab‐ and Muslim‐American citizens as well, in addition to an outright ban on Arab/Muslim immigration to the United States. If he were elected and ordered federal agencies to take such actions, would career civil servants at DHS and DOJ have the courage to defy Mr. Trump and refuse to implement such proposals? If the recent history of America’s political, legal, and moral devolution into the use of torture is any guide, the more likely outcome would be agency compliance with the wishes and direction provided by the President.
And these CVE‐related actions have something else in common: They shift the blame away from the federal government for its role in helping create and sustain ISIS — first by invading and destabilizing Iraq and Libya, and second by doubling‐down on a failed security‐centric approach to counterterrorism in the Arab and Muslim world. That disastrously overly‐militarized approach to militant salafism, combined with federal support for de facto anti‐Arab and anti‐Muslim CVE programs at home, only help groups like ISIS make the case that America is, contrary to all public statements to the contrary, at war with Islam.
Our self‐imposed counterterrorism schizophrenia comes at a high cost for all of us, just as our anti‐communist hysteria led us into the quagmire that was the Vietnam War. In his veto message on the original Internal Security Act, President Truman spoke words of wisdom that we would do well to heed today: