Dissent Is Being Criminalized Right Under Our Noses

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Above Photo: Michael Nigro / Truthdig

Many of us are deeply concerned about the recent wave of mass shootings and hate crimes that have taken place across the United States. As the Department of Justice reported, in 2018 alone there were 25 race-based terrorist attacks on U.S. soil, each committed by an alleged white supremacist. Immediate action is needed to address this crisis and tragedies like the Aug. 3 shooting in El Paso, Texas.

So I read with interest a recent press release of Rep. Michael McCaul—the Republican incumbent in the Texas 10th Congressional District and my opponent in the 2018 election—in which he announced a new bill to respond to domestic terrorism.

My hopes for reasonable legislation were quickly dashed, however, and replaced by deep concern.

The proposed bill would create a broad definition of “domestic terrorism” to include any attempt to “affect” or “influence” government policy or actions. And it would include property damage—even attempted property damage—as a terrorist act subject to a 25-year prison sentence.

In other words, if you opposed the Dakota Access pipeline at Standing Rock and wanted the government to revoke the pipeline permit, you might be considered a terrorist.

If you painted “Black Lives Matter” on a wall to advocate against police violence, that could be terrorism, too.

And if you threw a rock at a bank window to take a stand against the 1% —even if you missed—you could spend half your life in a federal prison.

So far as I can tell, McCaul and his co-sponsors are taking advantage of a moment of profound insecurity to advance a bill that will criminalize dissent.

A Close Reading

The full bill is less than four pages, and would accomplish three main things: 1) define the “intent” necessary to commit a crime of domestic terrorism; 2) identify five sets of qualifying offenses; and 3) punish unsuccessful “attempts” and “conspiracies” to commit these offenses.

The definition of “intent” shows the bill’s sweeping impact, far beyond responding to recent mass shootings.

In regard to five criminal offenses, an act is “domestic terrorism” if is performed “with the intent to intimidate or coerce a civilian population or influence, affect, or retaliate against the policy or conduct of a government.”

As a civil rights lawyer, I’m trained to look for vague language, because that is often the gravest threat to constitutional rights. Here, federal prosecutors could charge terrorism if actions might “affect” or “influence” a government policy. This is an extremely broad definition of terroristic intent.

Five crimes are included in the bill’s broad definition of domestic terrorism: murder, kidnapping, aggravated assault, simple assault and property damage. With respect to the crimes against people, these are already punishable under existing state and federal law, although the bill would impose longer sentences, such as 30 years for assault. Property damage would result in a 25-year sentence, far beyond the bounds of any state vandalism law.

The final key aspect of the bill has to do with how it treats unsuccessful attempts and conspiracies: “Attempts or conspiracies to commit an offense … shall be punished in the same manner as a completed act of such offense.” In other words, don’t even find yourself in the same room as someone contemplating political property damage—or you can be deemed a terrorist, too.

Context: Standing Rock and “Antifa”

The bill includes the word “conveyance” in its definition of property damage, which is a signal that the Standing Rock protests were likely a consideration.

On the same day as McCaul’s press release, The Intercept reported that American Fuel & Petrochemical Manufacturers is lobbying to enact legislation that will enhance criminal penalties for any pipeline damage. With the support of the American Legislative Exchange Council, it has enacted laws in nine states. Oklahoma, for example, created a crime punishable by up to 10 years in jail for damage to a pipeline—again, far beyond existing federal penalties.

The McCaul bill mirrors this approach, and creates major federal crimes for property damage connected to a political cause.

For all of the crimes in question, from murder to vandalism, existing penal codes give prosecutors ample room to bring cases. Nothing is stopping federal authorities from charging mass shooters with hate crimes or crimes of violence and seeking sentences up to and including life in prison and the death penalty.

But there is currently no law that would empower federal prosecutors to charge protesters with major federal crimes for property damage caused during a protest.

While this bill is rolled out, President Trump is ranting daily against “antifa” (i.e., anti-fascists). Recent news footage showed clashes in Portland, Ore., between white supremacist groups and anti-fascist demonstrators. Were those confrontations tantamount to domestic terrorism? The McCaul bill would give federal prosecutors near blanket authority to charge either group with terrorist charges. And Trump has already made clear which group he would focus on.

There are countless examples of protest activity that McCaul would open to terrorism charges. As for Bree Newsome Bass, who scaled a flagpole in Charleston, S.C., to remove a Confederate flag? She’d be considered a terrorist. Students at Duke University who toppled a Confederate monument? Also terrorists.

Under this definition, the Boston Tea Party itself was a terrorist act: “Property damage, with the intent to influence a government policy.”

This is not the way we reduce mass shootings in America. This is not a tool to confront white supremacist attacks. Rather, this is an open invitation to trample the Constitution and give free reign to a dictatorial regime.

  • Steven Berge

    How does that old saying go? Never let a crisis go unexploited? Seems like this was planned with the militarization of police departments, the mass spying on the citizens, the loss of habeas corpus. This bill will greatly deepen authoritarianism. The new world order grip is tightening again.

  • Thank you Mike Siegel for this article – many legislative developments both recent and past have worked to erode the First Amendment right to freedom of expression; a critical component of a democratic governing system. FISA, USA Patriot Act, and USA Freedom Act are three pieces of legislation currently in effect that enable the government to surveil and investigate communications of U.S. citizens.

    New bills HR1931 and S894 (identical) Domestic Terrorism Prevention Act of 2019 have been introduced and referred to various committees and subcommittees. These two are in addition to the bill HR4187 Domestic Terrorism Penalties Act of 2019 that Mr. Siegel refers to in his article. These bills will not curtail gun violence – that violence is caused by dismal social conditions.

    The government has known for quite some time that mass civil unrest was likely to emerge. With excessive incarceration of its citizens, expanding poverty, and extreme wealth inequality, in addition to declining life conditions through pollution and climate change, how could they not expect some form of uprising? So, with this knowledge, they have been preparing. The police have been militarized and new legislation is being introduced at the federal, state, and local levels to restrict protester rights and make it easier to detain and prosecute those that commit rebellious acts.

    Democracy in the USA has been eroded bit by bit over the past few decades; today it is on the verge of disappearing altogether. The ruling class is coming very close to declaring outright war against ordinary citizens. The White House Administration has found an effective dictatorial tool in issuing Executive Orders and Congress has demonstrated its lack of will or ineptness to quell this dictatorial trend. The National Emergencies Act provides the President with sweeping and dramatic powers.

    This is not the time to act like an ostrich and stick your head in the sand; our American way of life is in jeopardy.

  • mwildfire

    Yes, and a key point here is that all this anti-democratic and likely unconstitutional action is happening now because there has been an uptick in rebellion and it’s clear it’s only the beginning. It may well be that the ruling cabal has plans that would unite the Right and Left in opposition if they knew, so the cabal is arranging the laws so they quickly round up, and perhaps execute, the first opposition to show its head. This does rely on cops, who universally come from the working and middle classes that will suffer, but they know the cops are no more likely to rebel against their masters than are the attack dogs they use.

  • History301

    Appears as if Mike McCall is a shareholder in the prison building industry on the one hand, while on the other, he and too many like him in the ruling class will use any tragic event to increase control over us varmints, lowlifes, etc, sometimes referred to as working people.

  • DonRice

    This is how Joe Biden and Bil Clinton pushed through the 1994 crime bill, too, by playing on people’s fears and enhancing the corporate agenda.