A Domestic Terrorism Law Is Debated Anew after Capitol Riot

S E E D E D   C O N T E N T

As a candidate, President Biden promised to make tackling domestic violent extremism—a long-simmering issue in the U.S.—a priority.

The threat has taken on fresh urgency after the Jan. 6 attack on the U.S. Capitol, which involved several far-right groups like the Oath Keepers and Proud Boys.

The matter is fraught: Addressing terrorism involving U.S. citizens is complicated by constitutional, political and cultural concerns, homeland-security officials and other experts say.

One long-debated issue is whether the U.S. needs a generic federal domestic terrorism offense with which to charge violent extremists. Mr. Biden's campaign website said he would make a priority of passing a law against domestic terrorism "that respects free speech and civil liberties," though it is unclear if that would entail creating a broad statute. The Biden administration has yet to make any recommendations and is considering civil-rights concerns, a senior administration official said earlier in February.

What is the argument for a domestic terrorism law?

The Federal Bureau of Investigation can robustly monitor international terrorists with the goal of disrupting plots before they occur. But there are legal constraints on what the bureau can do at home.

Its ability to open an investigation solely based on hateful speech or affiliation with known domestic extremists  is severely curtailed  by the First Amendment and other constitutional provisions, which protect Americans’ rights to speak, organize in groups and even stockpile firearms. The law-enforcement response to domestic terrorism has been largely reactive—investigating and helping prosecute attacks after they occur.

“Domestic terrorism within law enforcement has historically not been given the importance” of its foreign counterpart, said Tom O’Connor, a former FBI special agent who worked on domestic terrorism cases for 23 years.

By law, U.S. officials have limited ability to monitor communications between people on American soil who may be intent on violence, lacking the sweeping surveillance powers against U.S. citizens that they can use overseas.

The U.S. also has no federal terrorism laws “that apply to the most common method of committing a terrorist attack—a mass shooting—where there is no tie to a foreign terrorist organization,” Mary McCord, a former federal prosecutor,  has said .

In recent years, most  ideologically motivated killings  in the U.S. have been tied to far-right extremists such as white supremacists, according to researchers, the FBI and the Department of Homeland Security.

Some federal prosecutors, FBI officials and experts tracking American extremism have called for a new law for years, particularly after a string of deadly attacks committed by white supremacists. For example, the man responsible for  killing 11 people in 2018’s Tree of Life synagogue shooting  in Pittsburgh was hit with 44 charges, including federal hate crimes, but faced no terrorism offenses.

“Enacting a federal crime of domestic terrorism would place it on the same moral plane as international terrorism,” Ms. McCord and Jason Blazakis, a professor at Middlebury Institute of International Studies, argued in a 2019 article in Lawfare.

Mr. Blazakis said in a Feb. 11 interview that a statute could result in additional jail time for violent offenders, though such a law would require government oversight to ensure that U.S. authorities don’t infringe on civil rights.

The FBI Agents Association has said it supports creating a law.

Are there any bills in Congress that would address domestic terrorism?

Various bills have been floated in Congress in recent years. Among them, the Domestic Terrorism Penalties Act of 2019, introduced in the House after El Paso, Texas, and Dayton, Ohio, shootings that year, is expected to be reintroduced in the House.

Under the bill, domestic terrorists convicted of homicide could face the death penalty. The bill also provides penalties for kidnapping, assaults and destroying property. A bipartisan trio of Texas congressmen who backed the bill said they wanted to replicate penalties that exist for international terrorism.

The act  garnered support from the FBI Agents Association , which said at the time that the bill would help “ensure that FBI agents and prosecutors have the best tools to fight domestic terrorism.” The organization’s position hasn’t changed, a spokesman said.

Several House lawmakers also recently reintroduced  the bipartisan Domestic Terrorism Prevention Act . That proposal would direct DHS, the Justice Department and the FBI to devote more resources to addressing the threat, including by reporting to Congress twice a year, according to Rep. Brad Schneider (D., Ill.), the bill’s sponsor.

Who is against creating a law?

Civil-liberties groups have voiced concerns, arguing that the government already has the necessary laws.

“Decades of experience have shown how law enforcement uses broad terrorism-related authorities to target and surveil Black and brown people, including those engaged in protest,” said the American Civil Liberties Union’s senior legislative and advocacy counsel, Manar Waheed.

Some experts on domestic terrorism prefer tweaking existing policies and statutes instead.

“The FBI ultimately cracked the Ku Klux Klan without a domestic-terrorism statute,” Brian Jenkins, a senior official at the Rand Corp., said in recent written congressional testimony.

“We need a tune up, not a new, untested vehicle,” said Brian Levin, director of the Center for the Study of Hate & Extremism at California State University, San Bernardino. Reforms would “pose less of a threat to civil liberties.”

How does the Biden White House plan to tackle domestic terrorism?

The White House has commissioned a threat assessment on the scope of domestic violent extremism from the Office of the Director of National Intelligence, the senior administration official said. That assessment, expected in roughly three months, will shape the Biden administration’s policy making, the official said. Meanwhile, the White House’s National Security Council is focusing on the issue, signaling a shift from the administration of former President  Donald Trump . The White House is also reviewing whether the FBI’s field offices need more resources and whether the agency’s joint terrorism task forces are properly structured, the official said.

One concern is that any approach taken by Democrats has the potential of alienating or radicalizing supporters of Mr. Trump, according to some experts on extremism and others involved in shaping Mr. Biden’s strategy. Already, some conservative news outlets have told viewers that Democrats view Mr. Trump’s backers as terrorists.

The Biden official said the White House plans to target violence regardless of ideology, “whether the far right, the far left, or from a growing number of individuals who do not fall neatly along the ideological spectrum.”

What about designating U.S. extremist groups as terrorists?

Canada recently  designated the far-right Proud Boys as a terrorist organization.  But the issue is debated in the U.S.

Rep. Elissa Slotkin, (D., Mich.), who chairs the Intelligence and Counterterrorism panel of the House Committee on Homeland Security, urged caution before following Canada’s lead. Civil-rights groups are generally against doing so.

And Mr. Jenkins, the official at Rand, has urged the U.S. to tap the brakes, citing the complexities of defining which groups would qualify.

“There are hundreds of extremist groups on both ends of the political spectrum,” Mr. Jenkins  said in written congressional testimony . “Organization in the domestic context is a slippery term. Some organizations are definable groups. Others are mind-sets.”

This week, Rep. Adriano Espaillat (D., N.Y.) introduced a resolution declaring that “the Proud Boys have engaged in acts of domestic terrorism” after members took part in the U.S. Capitol riot. The resolution doesn’t carry legal weight, he said, though the resolution encourages the Justice Department and state and local law enforcement to intensify efforts against the Proud Boys. Proud Boys leader Enrique Tarrio didn’t respond to a request for comment.