In late January, Rep. Brad Schneider, D-Ill., reintroduced a bill known as the Domestic Terrorism Prevention Act (DTPA) of 2021 in the House of Representatives. If passed, this proposed legislation threatens to destroy the civil liberties of any Americans who the empowered enforcers of such a law may wish to target, wiping away any remaining freedoms of religion and speech we may think we still have.
DTPA seeks to amend 18 U.S. Code § 2339b, which declares the criminalization of material support to foreign terrorist organizations, changing the scope of that law to include domestic “White Supremacist” and “Neo-Nazi” groups. Section 2339b currently makes it a crime to provide any “material support” to any group designated by the executive branch as a foreign terrorist organization. Material support as a legal term is any type of support, even if simply speaking and advocating in favor of a designated terrorist organization or perhaps even the same ideas touted by that organization.
It’s important to note that DTPA is not new. Sen. Dick Durbin, D-Ill., authored the original legislation and introduced it in November 2017, while both Durbin and Schneider re-introduced companion bills in January 2020. The House of Representatives passed its version of the bill this past September, while the Senate bill never made it out of committee.
While DTPA broadens the statute to cover any so-called “White Supremacist” and “Neo-Nazi” groups so designated, details regarding how that designation process will be carried out are simply missing. That’s right, the bill does not define said groups or set forth any standards for doing so, so law enforcement agencies like the FBI and the Department of Homeland Security will be left to their own devices to define so-called “White Supremacists” and “Neo-Nazis” as they see fit, and then make that designation piecemeal.
A normal criminal statute sets forth elements of a crime which must be proven in order to convict a person of that crime, and it requires the government to prove an actual criminal threshold of violation. Basic due process requires that a criminal statute be objective and clear before it is considered by Congress, the lawmaking body of government. DTPA does not set forth such normative criminal elements but rather allows the executive agencies to define “White Supremacist,” “Neo-Nazi,” or any other “domestic terror” groups as it wishes. Therefore, almost any association with or support for any designated group may then be considered a crime.
Allowing the executive branch to, in effect, decide the actual scope of the crimes is a clear violation of the separation of powers doctrine. Article 1 of the Constitution strictly limits lawmaking to Congress, not the executive branch. DTPA represents a violation of the basic due process and the Constitution’s ban on ex post facto law as executive branch agencies will be able to criminalize whole groups and prosecute individuals for association with that group even before the group has been declared a domestic terrorist organization.
DTPA would not require the government to prove that a defendant actually took part in any domestic terrorist act or any other defined crime of actual violence. The law is purposefully vague to allow the executive agencies and the Department of Justice to shape the law as they see fit while they apply it in cases they create. Therefore, religious and political activities of persons who are not favored by empowered government administrators who enforce DTPA could be subjected to spying, investigation, and prosecution by the federal government.
This process is itself a consequence to such organizations and individuals as they can be detained, coercively questioned, and forced to retain counsel and avoid certain actions of free association and advocacy while being monitored and investigated.
In the current political climate, Trump supporters are frequently called racist and other derogatory terms by members of Congress and other politically powerful foes. And in fact, without any evidence, they have been labeled as such for years. It is not hard to imagine how pro-Trump groups and their followers, merely by holding traditional and conservative views, could be conflated as “White Supremacists” — making it possible and even likely that anyone associated with a pro-Trump organization will be investigated, spied on, searched, and even prosecuted under DTPA. Likewise, pro-life and pro-traditional family groups could be targeted as soon as an empowered administrator decides that such beliefs are “Neo-Nazi” in scope or impact.
Robert Grenier, who served as the director of the CIA’s Counterterrorism Center during the Bush Administration, went on National Public Radio to promote DTPA and expressed in a New York Times op-ed his particular concern over the threat from “a large, religiously conservative segment of the population, disproportionately (though not entirely) rural and culturally marginalized.” Grenier called for “counterinsurgency” methods like those currently used to combat foreign terrorism.
Former CIA director John Brennan added to Grenier’s comments, telling MSNBC that the Biden intel community is “moving in laser-like fashion to try to uncover as much as they can about” the pro-Trump “insurgency” that harbors “religious extremists, authoritarians, fascists, bigots, racists, nativists, even libertarians.”
The intent is clearly to use DTPA to go after Americans who disagree with the status quo as if they are foreign terrorists — rather than American citizens who simply hold different opinions and adhere to closely held religious beliefs.
Political and religious beliefs are supposed to be protected by the Constitution, but DTPA would make political and religious beliefs the basis for criminal investigation and possible prosecution. The bill is facially unconstitutional, and the very fact that Democrat congressional leaders (and even a few Republicans) support such a bill is a grave warning of how highly toxic the nature of the current political climate in America has become.
Also, the Supreme Court has demonstrated itself feckless in its duty to uphold the Constitution as a matter of law, and instead tips its hand, and the law itself, in showing the desire that most of its members seem to hold about legislating from the bench. Therefore, they cannot be counted on to protect the American people.
The DTPA bill comes in the context of a American ruling elite that is growing ever more distant and contemptuous of the American people. It has instead become an oligarchy that is working for the benefit of its own increasingly tyrannical power and wealth and for the benefit of the nation’s real enemies like the Chinese Communist Party — and against the interests and safety of the American people.
In introducing the DTPA legislation, these lawmakers are effectively re-defining legitimate political dissent as somehow a threat to democracy and legal authority and, in the process, providing themselves with a way to proactively eliminate their political opposition and retain their own future power.
If this bill is passed, America as we know it — with all of its individual freedoms to think and speak and worship and question authority — could very well be gone forever.