Part Iv -domestic Terror and the Fight to Sustain Democracy Counterterrorism 2.0

PART IV - DOMESTIC TERROR AND THE FIGHT TO

SUSTAIN DEMOCRACY

Counterterrorism 2.0

Deborah Pearlstein*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

I. THE GOAL ISN’T JUST SECURITY IN TIMES OF EMERGENCY, IT’S SECURE

AND SUSTAINABLE DEMOCRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

II. DON’T SUBSTITUTE LEGAL POWER FOR LONG-TERM POLICY . . . . . . . . . . . 157

III. RULES CAN BE CHANGED BY PEN, THEY CAN ONLY BE APPLIED BY

PEOPLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

INTRODUCTION

Few things focus the mind on lessons learned from past experience more than

the urgent need to address the same problem again. The threat that white

supremacist terrorists pose to the United States today is of course different in

some respects from the threat Al Qaeda terrorists posed in 2001. Most (but not

all) Al Qaeda terrorists who threatened the United States were foreign nationals.

Most (but not all) white supremacists who threaten us now were born here in the

United States. The Al Qaeda of 2001 enjoyed the availability of an effective juris-

dictional haven in Afghanistan from which to plan and launch its operations.

White supremacist terrorists operating in the United States, even as they enjoyed

a degree of off‌icial government celebration during the Trump presidency, do not

have the same unchecked autonomy here. The U.S. President and much of the

foreign policy establishment in 2001 saw Al Qaeda’s 9/11 attacks principally as

Al Qaeda itself saw them: “an act of war,” demanding a U.S. military response.

1

Notwithstanding the rhetoric of some among far-right extremist groups who

believe themselves engaged in the opening volleys of a second civil war, the

overwhelming focus of the U.S. government response to date has been through

domestic law enforcement.

Yet the parallels are also unmistakable. Consider just a few. Soon after the

September 11 attacks, U.S. government law enforcement and intelligence agen-

cies began describing Al Qaeda as the most urgent security threat facing the

* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, and Co-Director,

Floersheimer Center for Constitutional Democracy. © 2021, Deborah Pearlstein.

1. President George W. Bush, Address Before a Joint Session of the Congress on the U.S. Response

to the Terrorist Attacks of September 11, 37 WEEKLY COMP. PRES. DOC. 1347-1348 (Sept. 20, 2001).

153