When a crisis hits the United States, the post-9/11 “war on terror” playbook is often pulled out for answers. Civil unrest resulting from police brutality and racism is met with calls to treat protesters as domestic terrorists. Combating the coronavirus is a “war.” Schools looking to stop shootings turn to FBI programs for finding potential terrorists.
These crises affect public safety in different ways, and the reasons for using counterterrorism responses range from the pretextual to the well-intentioned. But the tendency to reflexively turn to the 9/11 security infrastructure comes with serious drawbacks. Due process, transparency, and fundamental rights of speech, assembly, and privacy all suffer, hitting communities of color and dissidents especially hard. Counterterrorism tools are assumed to be effective, often with scant evidence. And the talk and tools of counterterrorism allow policymakers to appear tough (what could be more serious than terrorism?) while shying away from confronting difficult issues.
Our country faces great challenges that require responses other than defaulting to the counterterrorism framework and all its excesses.
Prosecuting protesters
As massive protests against police brutality and racism gripped the United States, President Trump refused to grapple with the harms that led people to take to the streets. Instead, he invoked the terrorism label and laws, tweeting that “The United States of America will be designating ANTIFA as a Terrorist Organization.” Blaming agitators and “terrorist” groups is a tried and true tactic for discrediting protests. During the civil rights movement, government officials used the trope of outside instigators to portray the concerns of protesters as inauthentic. Then, as now, these claims are used to justify excessively forceful responses to popular uprisings.
Trump allies quickly joined in. Attorney General William Barr issued an official statement “that violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly.” He activated FBI-led Joint Terrorism Task Forces (JTTFs) to “identify criminal organizers and instigators.” Sen. Tom Cotton (R-AR) called for the 101st Airborne Division to be deployed to combat “Antifa terrorists.” Rep. Matt Gaetz (R-FL) asked whether we could “hunt them down like we do those in the Middle East?”
As many have pointed out, federal law only allows foreign groups to be designated as a terrorist organization. In any event, Antifa — short for “anti-fascist” — is more a philosophy adopted by certain protesters rather than a recognized group. But even without a formal designation, attaching the terrorism label has serious consequences. Law enforcement agencies — which have once again shown themselves to be hostile to demonstrators — pay heed to the signals from the top echelons of government. In New York, protesters arrested for violating curfew were asked what they knew about antifa and anarchist groups and what social media accounts they followed. In Tennessee, JTTF officers questioned protest organizers about their ties to antifa. They have come up empty: none of the indictments so far even mention antifa or any other group.
Before the protests sparked by the killing of George Floyd, though, the impetus for using the international terrorism model to target domestic groups came from some of Trump’s fiercest opponents. In response to a spate of deadly white supremacist attacks, former Obama administration officials argued that we need new domestic terrorism laws to ensure that attacks against minority communities are treated with the same seriousness as international terrorism. Last year, Rep. Adam Schiff (D-CA), the powerful chair of the House Intelligence Committee, introduced a bill that would give the attorney general the power to charge any threat of violence or damage to property that creates a substantial risk of serious bodily injury as an act of domestic terrorism. If it had been enacted, Barr could be bringing federal terrorism charges carrying a 30-year prison term against anyone who broke a window during the Floyd protests.
Other groups, too, are at risk if we expand the notion of domestic terrorism — American Muslims, for one. They have been the main targets of the post-9/11 model of over-policing, over-surveillance, over-prosecution, and over-punishment. Environmental groups, such as the indigenous-led Standing Rock oil pipeline protest movement, are tagged by the FBI as terrorism threats as well. Most recently, the bureau lumped together disparate groups and individuals into a fictive movement which it called “black identity extremists,” a naked attempt to bolster its ability to target the Black Lives Matter activists who are leading today’s protests. These are the communities and individuals who would most likely be caught in the net of any domestic terrorism laws.
Combatting the coronavirus
As the coronavirus started its deadly sweep through the country, national security approaches were quickly trotted out, with their attendant hallmarks of secrecy and surveillance. These methods are fundamentally at odds with strategies for success in the public health context which require transparency and trust.
For starters, the administration sought to frame the pandemic as a foreign threat. When President Trump was not downplaying the danger to public health, he declared himself a “wartime president” and the virus a foreign enemy. He accused China of unleashing the disease on the United States and imposed a travel ban after the virus was already circulating freely on our shores. To emphasize the origin of the coronavirus, Trump insists on calling it the China Virus or the Wuhan Virus or Kung Flu. Sen. Tom Cotton (R-AR) made the unsubstantiated assertion that the coronavirus may have originated in a Chinese biochemical lab, a claim echoed by Secretary of State Mike Pompeo. The deputy attorney general issued guidance stating that the virus appeared to meet the legal definition of a “biological agent” and its intentional spread “could implicate the Nation’s terrorism statutes.”
Blaming China allows the president to detract from his administration’s abject failure to manage the pandemic. It also emboldens others who hold xenophobic views to express themselves, as evidenced by skyrocketing reports of harassment and hate crimes against Asian Americans.
Invasive surveillance — a cornerstone of the nation’s counterterrorism model — has been floated as a response to the pandemic. The president’s son-in-law and advisor Jared Kushner reportedly reached out to tech companies “with the goal of creating a national coronavirus surveillance system.”
Any such system would hand the government an enormous database of sensitive health information. Cellphone location information, the primary technology contemplated for digital contact tracing, is itself highly sensitive. As the Supreme Court explained, it “provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious and sexual associations.’” This information would not be confined to public health databases; post-9/11 data sharing arrangements ensure that it will easily be shared with law enforcement and intelligence agencies. The risks are sufficiently severe that three bills have already been introduced in Congress attempting to limit the sharing of information collected for public health purposes.
The rush towards a tech solution can be traced to the easy availability of location data gathered by private companies. But the idea that vast data sets should be collected and mined for information useful to the government also sits at the heart of many counterterrorism programs. The National Security Agency’s (now defunct) program to collect all Americans’ phone records on the theory that a handful may be relevant to terrorism investigations is an example of this approach. More recently, the Departments of State and Homeland Security have started demanding social media handles from the millions of people who seek visas to travel to the United States each year, arguing that they can be used to identify security threats. The utility of these efforts is questionable at best, and there is ample evidence that they are targeted at Muslims, other minority groups, and people who express views that are considered radical by the U.S. government.
This time, the turn to surveillance has been slow going, with many states instead opting for teams of human contact tracers. This could be because public health experts in the U.S. have been skeptical that contact tracing apps would work. The contacts of an infected person cannot easily be forced to quarantine, so compliance depends on the ability of the person notifying them of exposure to build trust and reassure often anxious people. There’s no app for that. Americans have also been resistant to tech-enabled public health surveillance. According to surveys, the prospect that the government would monitor their activities and potentially constrain their movements doesn’t sit well with about half the country. And minority communities are rightly worried about how these tools might be used to target them. Already, there have been reports that New York police are enforcing social distancing rules in Black neighborhoods while allowing similar violations to go unchecked in other parts of the city.
Surveillance and school shootings
Counterterrorism tools also normalize suspicion and surveillance in settings where they simply don’t belong. School shootings have long been a uniquely American scourge. The 2018 high school shooting in Parkland, Florida was a tragic reminder of the need for controlling access to guns. Instead, federal and state officials have pushed to securitize schools, turning them into places that are policed and surveilled.
Shortly after the Parkland shooting, the Department of Homeland Security issued a “Guide for Preventing and Protecting Against Gun Violence” in K–12 schools that said little about guns. Instead, it encouraged schools to ask teachers and students to report suspicious behavior using a model developed to respond to terrorist threats.
That model, the National Suspicious Activity Reporting Initiative, aimed to get local police to funnel bits of information to the FBI and DHS that did not meet the normal standard for criminal investigations. Florida adopted a version of this system to identify potential school shooters, creating a statewide database of highly sensitive information, such as children’s mental health records and social media posts, accessible to state employees, schools, and law enforcement agencies.
Data scientists told state officials that it was impossible to reliably predict school shootings because there are (fortunately) very few such events and thus too little data to create a model. Education, disability, privacy, and civil rights groups warned that the program could be used to label students as threats based on information that has no documented link to violent behavior, such those seeking mental health care. They also warned that it would cast suspicion on children of color, because they already disproportionately bear the brunt of school discipline. All to no avail.
Similar criticisms were levied against suspicious activity reporting when it was rolled out for counterterrorism. As a Senate report documented, broad definitions of suspicious activity meant that the system flagged a huge amount of innocuous behavior, often targeting American Muslims. Since 9/11, Muslims have suffered the burden of being considered potential terrorists because of attacks carried out by people with whom they — and a billion others — share a religion. It seems equally wrong to treat all schoolchildren as potential shooters because a few committed horrific acts of violence.
For too long, taking on terrorism has been our nation’s number one priority, crowding out other important investments, from healthcare to infrastructure to social and economic justice for example. Americans have accepted the costs of intrusive surveillance and extreme punishments, which have been borne mostly by people who we view as suspect on account of their faith.
But in confronting grave threats by reaching for the tools we developed to prevent terrorist attacks, we normalize these extraordinary and often damaging paradigms. Instead of threatening to treat protesters as terrorists, the administration should take steps to protect their First Amendment rights. Instead of deflecting in response to a pandemic, it could provide federal leadership. And gun control rather than surveillance should be at the forefront of efforts to combat school shootings.
Overall, we need to find new ways of conceptualizing the challenges we face and their causes, design fitting responses, and avoid the steep costs of treating these challenges as terrorist threats when they’re clearly not.