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Author: kovens

Washington and Lee Law Review - kovens

Note

by Samuel D. Romano

In 2021, Secretary of Homeland Security Alejandro Mayorkas asserted that “[d]omestic violent extremism is the greatest terrorist-related threat” facing the United States. Although domestic extremism is often characterized as a lone wolf threat, it is frequently spurred on by white supremacist and neo-Nazi organizations that use the internet to radicalize their members and then avoid accountability by hiding behind constitutional protections—a strategy called “leaderless resistance.” This strategy results in devastating consequences. While the number of hate groups and hate crimes in the United States have risen to record highs, constitutional protections prevent domestic extremist organizations from being treated the same as foreign terrorist organizations. In turn, those who support domestic extremist organizations are also largely precluded from prosecution for providing material support.

Enter the Racketeer Influenced and Corrupt Organizations Act (RICO). Despite its roots in countering the mafia and other organized crime groups, RICO has become a catch-all statute to prosecute criminal organizations of all types. The statute allows the government to encapsulate and address decentralized organizations whose members commit criminal offenses without explicit agreement or instruction. In essence, RICO allows the government to constitutionally criminalize organizational membership and involvement.

The organizations that lead the “leaderless” resistance must be held accountable. This Note asserts that Congress can use RICO’s model of organizational accountability to create a domestic extremism statute that enables the government to undermine these organizations by: (1) designating domestic extremist organizations; and (2) prosecuting their support networks. This statute would provide the government with an effective and constitutional method to deter the greatest current extremist threat to the United States.

Note

by Brian T. Warren

From the American Revolution to the War in Afghanistan, the United States has hired private contractors to perform a myriad of tasks, from feeding the troops to researching hypersonic missile defense systems. Following the collapse of the Soviet Union, however, the nature of work performed by these contractors began to shift. No longer were contractors relegated solely to unarmed tasks. From the jungles of Colombia to the deserts of Iraq, armed contractors—known as Private Security Contractors (PSCs)—have guarded American military bases, protected heads of state, assaulted enemy compounds, and more.

Using PSCs is not without risk. Incidents like the Nisour Square massacre highlight the devastation that PSCs can cause. While advocates point to a seemingly robust web of legal restraints that constrain the worst excesses of PSC abuse, this Note argues that these checks are ultimately inadequate. Moreover, PSCs escape one of the strongest protections that would limit their use: the War Powers Resolution. The War Powers Resolution is a pioneering piece of legislation meant to constrain the unfettered zeal of executive authority. However, because the Resolution applies only to the “U.S. Armed Forces,” and not PSCs, the President may deploy PSCs for long periods of time without meaningful congressional oversight.

This Note proposes that Congress should expand the War Powers Resolution to incorporate PSCs by explicitly adding the phrase “Private Security Contractors” to the statute. By including PSCs, Congress will have more legislative tools to monitor and potentially restrict the President’s use of PSCs. Requiring the President to consult, report, and notify Congress when deploying PSCs allows Congress to exert pressure on the President to avoid any unwarranted use and prevent potential future catastrophe.

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