Kent Roach is a professor of law at the University of Toronto and the author of The 9/11 Effect: Comparative Counter-Terrorism.
Just before the summer break, both houses of the U.S. Congress introduced the Domestic Terrorism Prevention Act of 2019. Tragically, it will already need updating.
The bill’s preamble outlines 11 fatal acts of domestic terrorism since 2012, including the Charlottesville, Va., car attack and the slaughter of 11 people at the Tree of Life synagogue in Pittsburgh. Last week’s massacre of 22 back-to-school shoppers in El Paso, Tex., must now be added to this terrible list.
The proposed American act is quite mild. It would provide for better training and official record keeping of domestic terrorism and its nexus with hate crimes. Even this sensible act is unlikely to be enacted given the polarization and partisan rancour in Washington in the run-up to the 2020 presidential election.
But the bill stops short of enacting a new crime of domestic terrorism or material support of such terrorism. Such a designation would give the FBI more powers to combat far-right terrorism including increased electronic surveillance; it would give such organizations a better chance to intervene well before acts of violence occur; and it would give prosecutors enhanced abilities to radically increase punishment in sentencing. A new crime might also go some way to addressing the alarming lack of prosecutions of far-right extremists before they commit horrendous acts of violence.
But it is doubtful that any country in the West can legislate our way out of terrorism in all its stripes and complexions.
The United States, unlike Canada, places many constitutional restrictions on federal powers around criminal law. A new federal crime of domestic terrorism would be challenged as going beyond Congress’s powers with respect to interstate commerce, an argument that has worked in the U.S. Supreme Court to strike down some federal gun-control laws. New domestic crimes may also be challenged under the First Amendment, as would the repeal of the exemptions that internet providers enjoy in the U.S. under defamation laws.
More fundamentally, however, enacting a new domestic terrorism offence or regime will not change attitudes, including the instances of implicit racism that have led to much more policing and legal resources being devoted to combatting Islamic terrorism than terrorism from the far right. One needs only think about the millions of dollars spent on cases like the one in which the RCMP was eventually proven in court to have entrapped John Nuttall and Amanda Korody; similar entrapment occurs in the U.S., but juries there seem to refuse to acquit Muslims targeted by such stings.
The need for equality in responding to all forms of terrorism is urgent and compelling. But equality in extending ineffective and overbroad laws would be a false victory. Rather, the U.S. should rethink the elaborate counterterrorism measures that have been in place since 9/11.
Canadians, though, should not be smug. A recent study by University of Calgary law professor Michael Nesbitt reveals that no terrorism prosecutions in Canada have been brought against those on the far right.
Canada’s prosecutors missed an opportunity when it came to the trial of Alexandre Bissonnette, found guilty in the slaying of six worshippers in a Quebec City mosque, but who was not charged with murder that also constituted a terrorist activity. New Zealand did not make the same mistake when it came time to prosecute Brenton Tarrant, who killed 51 people in Christchurch.
Canada has recently listed two far-right groups, but listing has played a marginal and problematic role in counterterrorism. Symbols are important, to be sure – but they do not necessarily make us safer. And Donald Trump’s administration would surely be eager to list the many groups on the left it perceives as its enemies.
We need to invest in crime prevention, including strategies to counter violent extremism in all its hateful shades. We need to prevent harm by limiting access to deadly material, from scissors on planes to explosive material or automatic weapons.
The front lines in controlling speech that inspires and guides terrorists have shifted to the internet. We need to rethink our approach without relying on offences that would attract freedom-of-speech challenges and chill legitimate dissent. We need to denounce both white supremacy and religious perversion that attempts to justify the killing of apostates, while not acting like the terrorists by targeting the innocent.
Most of all, we need to be smarter in countering terrorism than we have been in the past.
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