MSNBC's Joe Scarborough Doesn't Understand Why Trump Activists Aren't Under Surveillance

The January 6 Capitol riot left many Americans wondering what the national security agencies missed when it came to securing the congressional building, especially on the day that had been forewarned as dangerous by many.

The increasing number of domestic terrorism cases, including the bombing in Nashville on Christmas Day, has raised anxieties that such fatal events could be avoided if intelligence agents heightened and broadened their surveillance.

The Quote

On Friday, MSNBC host Joe Scarborough asked his colleague, correspondent Ken Dilanian, why individuals who pose domestic terrorism threats, like the ones at the storming of the Capitol, are not policed by intelligence agencies the same way foreign terrorists have been post-9/11.

"I never understood why we don't go as aggressively after domestic terrorists as we do Islamic terrorists. It's not as if we didn't have a domestic terrorist blow up a federal building in Oklahoma City in 1996," Scarborough said. "It's not as if we haven't seen the rise of domestic terrorism, especially through the Trump era. Why in the world would there not be stronger domestic terrorism laws?"

Dilanian, who covers intelligence and national security, said he's heard two different answers. On one hand, some law enforcement officials have argued that the legal tools don't exist.

"There are barriers to surveilling people engaged in what the FBI calls First Amendment activity. Until they actually commit violence, we surveil them," Dilanian said. "Whereas anybody who sort of expresses any kind of affiliation with Al-Qaeda or ISIS, the FBI is on them."

On the other hand, he said other domestic terrorism officials have attributed it to a question of political will and resources.

"[The FBI and Justice Department] need to get more serious... about applying them and have the will to conduct surveillance and to infiltrate these chat rooms and run informants they way they do against Al-Qaeda and ISIS against these patriot and militia groups," Dilanian added.

Trump supporter
A person holding a Trump-Pence sign marches through a crosswalk near the Capitol Building on January 6, 2021 in Washington, DC. In the aftermath of the Captiol riot, questions have emerged as to whether domestic terrorists should be more heavily surveilled by federal agencies. Jon Cherry/Stringer

Why It Matters

Investigations in the aftermath of the violent insurrection have shown that some threatened to storm the Capitol in social media posts pre-dating the riot. These new details have raised questions about whether federal agencies took these online activities seriously enough or monitored them at all.

Others have warned that if law enforcement officials had been surveilling those in the mob ahead of the violence, the government could potentially infringe on Constitutional rights.

Fact Check

Could the government legally surveil these domestic terrorists before the riot? Yes, with certain limits. But when comparing the rioters at the Capitol to ISIS, it is important to note that domestic terrorists and foreign terrorists are governed by different laws.

The key difference is that domestic terrorists, because they are U.S. citizens, are protected by the Fourth Amendment while foreign terrorists are not. Although federal agencies can monitor the public, online activity of domestic terrorists, they would still need to seek a warrant in order to search or seize their property.

Dennis Hirsch, law professor at both The Ohio State University Moritz College of Law and at Capital University Law School, told Newsweek that this was decided by the Supreme Court in the 1972 Keith case that said the Fourth Amendment does apply to national security investigations of Americans.

"It's particularly important that it do apply, because national security investigations are often very vague and broad ranging," Hirsch said. "If the Fourth Amendment didn't apply to them, we'd create a huge loophole, which the court said could deter vigorous citizen dissent and discussion of government action."

Hirsch noted that post 9/11, the Bush administration pushed the limits of the Foreign Intelligence Surveillance Act to give officials more leeway. Whether the Biden administration would take a similar approach towards domestic terrorists, however, seems unlikely.

"There's no reason to believe that the Biden administration or the courts will not treat the constitutional rights of Americans seriously," Hirsch said.

"These Fourth Amendment protections are well established. Courts enforce them. Law enforcement agencies generally abide by them and there's no indications as yet, that there's going to be any attempt to change that," he added.