Beware of New ‘60 Minutes Laws’ After the Capitol Riot

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The best safeguard against domestic terrorism is a reasonably contented citizenry.

Fencing that surrounds the United States Capitol is seen on Thursday February 25, 2021 in Washington, DC. (Photo by Matt McClain/The Washington Post via Getty Images)

The Capitol riot was the result of the un-coordinated action of two politicians, each of whom thought that he or she could exploit political violence for personal purposes. Washington’s Mayor Muriel Bowser, tolerant of BLM disorders, fostered a culture discouraging even the most justified deployment of force for fear of ‘optics,’ while President Trump valued the antics of his supporters more than his obligation to faithfully execute the laws.

The investigations that are to ensue will hopefully rid us of the two of them, but there are already signs that their fecklessness will produce more malign results. There will be what one state legislator described as ‘60 Minutes legislation’ after the once-popular television program that did so much to enlarge the intellectual horizons of our dimmer solons.

The Democratic reaction to 9/11, the last sensational event, gave rise to two large and superfluous civilian bureaucracies, the Directorate of National Intelligence and the Department of Homeland Security. The first of these was regarded as an unnecessary addition even by one of its first directors, John Negroponte. The new agency did little to reduce the power of the CIA and its mission could as well have been accomplished through inter-agency meetings. The Department of Homeland Security, a nascent Ministry of the Interior in the European sense, proved its lack of worth during Hurricane Katrina. The principal impact of its existence was to introduce a new level of bureaucratic review and to downgrade the importance of the once-competent Office of Emergency Management, whose directorship was bestowed as an insignificant political throwaway.

The Secret Service, once kept purposefully apart in the Treasury Department from other federal law enforcement to guard against a possible coup, was melded with other policing agencies, some, like the DEA and BATF with bad reputations. Mr. Justice Jackson as Attorney General persistently warned against the unification and expansion of federal law enforcement agencies, a conviction later re-inforced by his studies at Nuremberg, which led him to describe over-expansion of federal criminal jurisdiction as the greatest danger to the survival of American democracy.

The Democrats were not alone in politically exploiting 9/11. The younger President Bush told a group of his ‘pioneer’ fundraisers that terrorism was his political meal ticket. A new Northern Command was established at the Pentagon, its contemplated field of operations being the Continental United States. Its chilling potentialities are celebrated in the memoirs of former Secretary of Defense Rumsfeld and an internet supplement to his volume.

Having created a nascent Ministry of the Interior, some politicians of both parties, including the Senate Democratic whip, Dick Durbin, now seem to want at least one, and perhaps three, domestic intelligence agencies like the British MI5, some of whose personnel were once said to have connived at the overthrow of the Wilson government in the U.K. A proposed Domestic Intelligence Act would create three new domestic intelligence collection agencies, one each within the FBI, the Department of Justice, and the Department of Homeland Security, the better to insure regulatory capture by political factions of at least one of them.

But it seems to be conceded that the FBI had adequate advance intelligence of the January 6 demonstration; it was the will of its political masters to act on that intelligence that was lacking. The FBI has the advantage of being an established agency with rooted procedures and broader responsibilities. Its culture, though not spotless, has been chastened by the Church Committee and other investigations and reforms instituted by Attorney General Levi during the Ford administration.

The new proposed agencies will no doubt compile watch lists and ferret out acquaintances of the Proud Boys and others. Already efforts are being made to find a grand conspiracy among the motley assemblage responding to the ravings of a disorganized president.

What is being seen somewhat resembles the hysteria on the left previously ignited in the 1930s by a Communist writer, John Roy Carlson, whose two books, Under Cover and The Plotters, helped give rise to the Smith Act, an umbrella sedition prosecution during World War II that proved to be an embarrassment and fiasco, the Attorney General’s List of subversive organizations including left-wing as well as right-wing organizations after World War II, an elaborate name index published by the House Committee on Un-American Activities, parallel private blacklists such as those in the publications Red Channels and Counterattack, and the creation of numerous martyrs, real and synthetic.

Special legislation against ‘hate crimes’ and other political offenses is almost always counter-productive. Ensuing criminal prosecutions are not aided by the universal abhorrence attaching to murder, arson, robbery or assault, or even by the public alarm caused by the inappropriate possession of explosives and military firearms, since defendants are seen as being targeted for their speeches and opinions, not their violent acts. Too many members of the American left have short memories. The McCarthy era prosecutions jailed few, but gave rise to successful anti-American propaganda on American campuses and in Western Europe and the Third World.

If Senator Durbin and his cohorts present President Biden with new legislation, he would do well to read and exercise plagiarism upon President Truman’s brave and prophetic, but unfortunately abortive, veto of the Internal Security Act of 1950.

The new proposed agencies, however seemingly innocuous their purposes, will have proliferating intelligence functions. Their recruiting, like that of policing agencies on the one hand and civil rights agencies on the other is likely to disproportionately attract political zealots. The framers of our Declaration of Independence, Constitution and Bill of Rights dreaded more than anything else the creation of a centralized policing system like the ‘thorough’ system of the Earl of Stafford based on a standing army. Our founding documents are honeycombed with safeguards against such a system.

In the long run, the best safeguard against domestic terrorism is a reasonably contented citizenry, which is inconsistent with juristocracy, the imperial presidency, and the federalization of practically everything. Another safeguard is respect for that forgotten value, government by consent of the governed.

George Liebmann, President of the Library Company of the Baltimore Bar, is the author of numerous works on law and history, most recently Vox Clamantis In Deserto: An Iconoclast Looks at Four Failed Administrations (2021).

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