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The Legality Of Private Militias


We're going to turn now to this week's shocking news about an alleged plot to kidnap Michigan's governor, Gretchen Whitmer. On Thursday, the FBI announced that 13 men with ties to armed anti-government groups in the state are now facing charges related to that alleged conspiracy, which also included plans to attack the Michigan state capitol. And according to the FBI affidavit, much of the plot was foreshadowed or advanced via social media and other online platforms.

And these developments come at a time when armed individuals and groups have once again become a visible part of public demonstrations, so we wanted to answer some of the questions people might have about these kinds of groups, including whether or not they're legal in the first place and how exactly they're using the Internet to help spread their message and recruit. So we've called two people with deep knowledge about this.

Mary McCord is legal director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She's been researching legal tools to help jurisdictions deal with the resurgence of armed militia groups.

Mary McCord, welcome back to the program. Thanks for joining us.

MARY MCCORD: Thank you for having me, Michel.

MARTIN: And Cindy Otis is a former CIA analyst and the vice president of analysis for the Alethea Group. They track online threats and disinformation. And she is with us now.

Cindy Otis, welcome to you as well. Welcome back.

CINDY OTIS: Thanks, Michel.

MARTIN: Mary McCord, I wanted to start with you because one of the first questions that we wanted to ask is how can these groups even exist and whether or not they are actually permitted under the Constitution. This week, you wrote an op-ed for The New York Times in which you state that these kinds of militia groups have no constitutional right to exist. And I ask because I think some people might believe that these groups are legal under the Second Amendment, given its provision for a well-regulated militia. Can you explain that for us?

OTIS: Absolutely. That is the language that many of these groups point to. But well-regulated means well-regulated by the state, by the government. So even pre-independence in the colonies, when there was an antipathy towards standing armies - they didn't want to have a standing army - so what they did is they said, we will have a militia.

Militia means all able-bodied residents between certain ages who are available to be called forth by the government in defense of the state. And once called forth, they answer to the government. They're trained by the government. They're directed and regulated by the government. That was, of course, baked into the Second Amendment, and it's baked into the constitutions of the states as well. So there's no ability for groups of individuals to sort of call themselves forth.

MARTIN: So let's turn to Cindy Otis now. As we mentioned, the FBI affidavit lays out many of the ways that this plot was foreshadowed on various online platforms, including Facebook. I just wanted to ask, what is the role of social media in organizing these groups?

OTIS: So with the militia groups - or these groups that identify as militias - they have an extensive and have had an extensive presence on platforms like Facebook for quite some time. And that's because Facebook in particular has increasingly moved to in recent years the idea of building communities.

It talks about communities as, you know, very pleasant things. Like, if you're a travel enthusiast, for example, we'll help you connect with the other travel enthusiasts through our algorithm, which is based on - you know, based on what you click on. What content you're looking at, we will show you similar content. But that's also been the case for people who are - you know, respond to violent messages, messages that are racist, you know, harmful content.

So the technology, the platform of platforms like Facebook is set up to bring those individuals together, and that's essentially what it was doing for these individuals. You didn't have to go hunting or recruiting necessarily if you were operating or you were a member of one of these pages and groups. Facebook was actively recommending these pages and groups to other people who might end up potentially joining you.

MARTIN: So, Mary McCord, despite not being authorized by the Constitution, as you just explained, these groups have continued to form and show up at protests like we saw in Kenosha, Wis., just a few weeks ago and at the Michigan statehouse in May. How prevalent are these groups right now? Do we have any sense of that?

MCCORD: Well, they're very prevalent, unfortunately. I mean, more and more new ones are springing up, including, you know, we have nationwide organizations. And, frankly, I'm just not going to mention their names on air because I think it just helps them with recruitment, and it helps them to feel normalized. But we also have small, like, county groups that are self-organizing.

And many of them are doing this because they fancy themselves as patriots. They will refer to themselves as patriots and say it's their duty to defend and protect the Constitution. But, of course, they're the ones deciding how the Constitution should be interpreted, and they're doing so completely outside of government accountability and outside of, you know, any actual authorized authority.

MARTIN: And, finally, Cindy Otis, what about online? I mean, Facebook and other companies say their policy is to report credible threats and to remove harmful content. But it doesn't seem to be enough to stop these sorts of groups from having an online presence. Do you have thoughts about what - is there something more that needs to be done?

OTIS: Yes, certainly. Most of the social media platforms and mainstream is what I'm talking about. They've largely taken a reactionary stance. So when they sort of ask themselves at the end of the day, what kind of users do we want on our platform, the answer has mostly been anybody. And then if any of those users, you know, conduct activities that are against their terms of service and their policies, then they will remove content after the fact.

What that has allowed groups like these to do is to sort of play in what is a very large gray space that the platform allows of activity where they're able to, you know, use the platform to recruit, get new members, spread their message. And it's with content that just sort of straddles the line, really, of what is violative. And then when it does cross into territory that is in violation of platforms, often, it's just that specific content that's removed as opposed to the actual group.

And so I think social media platforms need to really decide, do they want groups that advocate violence, that are known to advocate violence, on their platforms? Are they really going to wait for the groups to take violent action before they actually crack down? These people, these accounts, these groups and pages should have been taken down earlier.

MARTIN: Cindy Otis is a former CIA analyst and the vice president of analysis for the Alethea Group. She's also the author of a book about how to spot fake news.

Cindy Otis, thanks for joining us.

OTIS: Thank you.

MARTIN: Also joining us, Mary McCord, who is the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. She was also acting U.S. assistant attorney general for national security from 2016 to 2017.

Mary McCord, thank you so much for your time as well.

MCCORD: Thank you, Michel. Transcript provided by NPR, Copyright NPR.