Podcast: “Protecting Constitutional Rights in Domestic Terrorism Cases”

Today we continue with our series from our 29th Annual National Security Law Conference with podcast of the presentation by Major Melissa Ken, USAF, on “Protecting Constitutional Rights in Domestic Terrorism Cases”.

Maj Ken gives us a great overview of the law related to domestic terrorism in the U.S.  She points out that it is “one of the most important threats…facing our nation, according to the Department of Homeland Security. ” Importantly, she emphasizes the definition of terrorism, a word she believes can be “an inflammatory word and a word that can be weaponized and used to attack certain people with certain positions and certain beliefs.”  She also outlines the statutes that are used to address terrorism, and discusses issues associated with the First Amendment that often arise in these situations.  She explains why it would be extremely difficult to designate domestic organizations in the same way foreign terrorist organizations are designated.  She also presents (and critiques!) ideas and proposals to better address domestic terrorism.

What makes this presentation so useful is the clarity with which Melissa presents a lot of information.  Perfect for someone new to this area, or someone who wants a quick refresher. 

BTW, Maj Ken mentions an article she wrote for the Rutgers Law Review,  It’s entitled “Combating Domestic Terrorism: Constitutional and Domestic Issues” and can be found here.

Fischer v. United States

Melissa made her presentation much before the Supreme Court issued its opinion in Fischer v. United States. but it is worth mentioning here.  In that case (as the Wall Street Journal explained) “[p]rosecutors charged a Jan. 6 rioter with violating the 2002 Sarbanes-Oxley Act, of all unlikely statutes.”  It added:

The financial securities law makes it a crime to “corruptly” shred or conceal documents “with the intent to impair the object’s integrity or availability for use in an official proceeding.” This provision is followed by another one punishing anyone who “otherwise obstructs, influences, or impedes” such a proceeding.

The government argued this catchall applied to the rioter’s obstruction. Six Justices disagreed. The catchall “was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability,” the Chief writes. He was joined by Justices Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson.

WSJ also notes this from the Chief Justice’s opinion;

It would be “peculiar to conclude that in closing the Enron gap, Congress created a catch-all provision that reaches beyond the scenarios that prompted the legislation,” the Chief adds. The government’s “novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.”

All of this highlights that this very important area of the law can be more complicated than many might think.  Maj Ken’s expert presentation helps us understand these complications, and how the Constitution sets limits.

Again, you can listen/watch this presentation here.

Don’t miss these other podcasts from LENS’ 29th Annual Conference :

My fireside chat with CIA General Counsel Kate Heinzelman can found here.

Brig. Gen. Linell Letendre’s presentation “Guardians of Code and Conscience: Exploring Legal and Ethical Frontiers of Generative AI” is found here.

Col (Ret.) Dawn Zoldi’s presentation “Domestic Drones and National Security,” is found here.

Dean Cheng’s presentation “Update on China: Lawfare, Technology and More” is found here.

Gary Corn on “Attacking Big Data: Strategic Competition, the Race for AI, and Cyber Sabotage” is found here.

BG David Mendelson on “LOAC in 21st Century Battlespaces” found here.

Prof. Bobby Bishop’s ‘fireside chat,’ “Business and American National Security: A Conversation with SEC Commissioner Caroline Crenshaw” is found here. 

Our panel discussion of “Maritime Law and Global Security” is found here.

Our panel discussion on “Emerging Challenges of Space Law” is found here.

As more podcasts from the Conference become available, they’ll be posted on Lawfire^® so stay tuned! 

Unless otherwise indicated, Conference speakers are expressing their personal opinions, and not necessarily those of their employer (to include the U.S. government), the Center of Law, Ethics and National Security, Duke University, or any other person or entity (see also here)

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!