The Brennan Center submitted two sets of comments to the Privacy and Civil Liberties Oversight Board (PCLOB) in response to PCLOB’s April 2022 request for public comments and notice of public forum on domestic terrorism (Docket No. PCLOB-2022–001).
The Brennan Center’s initial comment, filed in May, underscored that while the need to combat far-right violence more effectively is urgent, many of these efforts could erode core constitutional protections and work to the detriment of the very communities that are most affected by it. The Brennan Center requested that PCLOB’s agenda for the forum include significant attention to the impacts of these efforts on First Amendment-protected activities and on racial, religious, and other minority groups. As the Brennan Center noted, these impacts are often attributable to a framework that emphasizes ideology over action and affords broad discretion to law enforcement to conduct investigations and surveillance without requiring individualized suspicion of violent criminal activity. The Brennan Center’s submission also examined the intersection of these issues with security agencies’ use of social media tracking.
The Brennan Center’s additional comment, filed in June, considered the disparate impact of existing domestic and international counterterrorism regimes on Americans. Under the government’s current counterterrorism policy, so-called “homegrown violent extremists” (HVEs) allegedly influenced by “foreign” ideologies are subject to a host of aggressive international terrorism investigations and prosecutions designed for foreign adversaries. This approach deprives these Americans of liberties enjoyed by “domestic violent extremists” (DVEs), defined by the government as terrorists operating inside the United States and influenced by supposedly “domestic” ideologies, such as white supremacy or anti-government views.
The division between HVEs and DVEs ignores the global nature of today’s communication via the internet, invites government agencies to target persons based on ideology, and abrogates the civil rights of American Muslims and other communities, stigmatizing these Americans as “foreign.” In its comment, the Brennan Center called for PCLOB to recommend the elimination of the HVE and DVE categories and the rejection of distinctions in law enforcement, intelligence, and counterterrorism activities among American actors based on the location of the person or organizations that may have influenced their behavior.
PCLOB hosted a virtual public forum on May 26, 2022, to discuss these issues. Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program, was invited to testify to PCLOB and highlighted the biases in the government’s counterterrorism activities. A recording of the event is available online.
