By Masood Farivar
The January 6 attack on the U.S. Capitol has pumped new life into a long-running discussion among government policy makers over whether the U.S. needs a new domestic terrorism law.
The debate stems from what many see as a yawning gap in the existing law: the absence of a standalone statute that criminalizes domestic terrorism.
While U.S. law makes it a crime to provide “material support” to a foreign terrorist organization, there is no comparable law that makes domestic terrorism a federal crime, even though individual acts committed by domestic terrorists may be illegal.
Now, in the wake of the January 6 insurrection blamed in part on members of far-right groups involved in violence, proponents of a new domestic terrorism law say it is now time to act.
“I think if anything, what happened on January 6 just cries out” for passage of a domestic terrorism law, Rep. Michael McCaul, a Republican member of the House Committee on Homeland Security, said during a hearing on domestic terrorism last week.
Yet the push for a new domestic terrorism law faces stiff opposition from civil rights groups as well as many members of Congress who are concerned about civil liberties. These critics say there are already plenty of laws on the books with which to charge domestic terrorism cases.
Among the fiercest opponents of it in Congress is Alexandria Ocasio-Cortez, the progressive Democrat who as vice chairwoman of a House panel has investigated domestic terror laws.
“Our problems on Wednesday [January 6] weren’t that there weren’t enough laws, resources, or intelligence. We had them, & they were not used,” Ocasio-Cortez tweeted January 9 in response to calls for enactment of a domestic terrorism law.
Current federal law defines domestic terrorism as criminal acts in the United States “dangerous to human life” that appear intended “to intimidate or coerce a civilian population,” to influence government policy “by intimidation or coercion,” or to “affect the conduct of a government” by mass destruction, assassination or kidnapping.
However, there are no criminal penalties attached to the statute. As a result, while the FBI routinely opens “domestic terrorism” investigations into attacks by far-right extremists, the bureau relies on other criminal statutes such as those dealing with murder and assault to charge defendants. Of the more than 200 supporters of then-President Donald Trump arrested to date in connection with the storming of the Capitol, none has been charged with domestic terrorism; the allegations against them range from illegally entering the Capitol to assaulting police officers and threatening lawmakers.
The lack of a law criminalizing domestic terrorism forces prosecutors to “go the extra mile,” Elizabeth Neumann, a former DHS official in the Trump administration, said during the House hearing. For example, she noted that last year the FBI linked two members of the far-right Boogaloo Bois to the Palestinian Hamas in order to charge them with conspiracy to provide “material support” to a foreign terrorist organization.
“It just shows you … that if we get them tied to a foreign ideology or group, it is easier for us to prosecute,” she said. “Let’s make their jobs easier.”
It is also unjust to treat domestic and foreign terrorism unequally, Neumann said.
“It doesn’t make sense why, if you commit a crime in the name of white supremacy of if you commit a crime in the name of [Islamic State] ideology, that you get more jail time ISIS versus a violent white supremacy act,” she said.
The charge of material support for a foreign terrorist organization carries a prison sentence of up to 20 years.
During the 2020 presidential campaign, Democrat Joe Biden pledged to “work for a domestic terrorism law.” After the January 6 attack on the Capitol, Biden characterized the rioters as “insurrectionists” and “domestic terrorists.” Later, during his inaugural address, Biden vowed to defeat what he described as a “rise in political extremism, white supremacy, domestic terrorism.”
But now that he is president, Biden faces the challenge of defining who qualifies as a domestic terrorist and what new authorities — if any — should be provided to law enforcement officials to crack down.
The White House says that the issue of domestic terrorism is under review within the administration and that no decisions have been made.
The post-January 6 response to the statutory gap has ranged widely, with some satisfied with the status quo while others propose to ban certain groups as domestic terrorist organizations, according to terrorism expert Colin Clarke of the Soufan Group, a global intelligence and security consultancy.
The latter approach is seen by some as a long shot given concerns that it would be unconstitutional.
“If you’re talking about effectively banning the existence of groups that are purely domestic groups, I hope everyone can see that that’s a potentially terribly dangerous power for the government to have in the American political system,” said Bobby Chesney, a University of Texas law professor who has testified on the topic before Congress.
To avoid this concern, a middle-ground proposal by Mary McCord, a former top Justice Department official, would make domestic terrorism “an offense that people and organizations are prohibited from materially supporting.”
Like other proponents of a new domestic terrorism law, McCord argues that it’s important to put domestic terrorism on the same “moral plane” as international terrorism.
“It would help educate the public that “terrorism” does not refer only to “Islamist extremist terrorism,” McCord testified before a House panel last year.
In Congress, recent proposals to address domestic terrorism have ranged from a 2019 bill proposed by Democrat Adam Schiff, chairman of the House Intelligence Committee, that would extend the death penalty to domestic terrorism cases to a bipartisan piece of legislation that would require the FBI, the Justice Department and the Department of Homeland Security to create dedicated domestic terrorism offices without criminalizing the act.
The latter was reintroduced in the Senate and the House on January 19.
“After the attack on our Capitol, I hope that Congress can finally come together and do something to address domestic terrorism in America as quickly as possible,” Democratic Senator Dick Durbin, one of the bill’s co-sponsors, said in a statement at the time.
Outside Congress, the renewed push for a new domestic terrorism law has pitted FBI agents against civil rights advocates.
The FBI Agents Association, which represents more than 14,000 agents, has long urged Congress to make domestic terrorism a federal offense.
“Passage of domestic terrorism legislation is a necessary action that would help make it clear that political violence — no matter the ideology or the person behind it — is unacceptable,” Brian O’Hare, President of FBIAA, said in a statement.
But civil rights groups remain adamantly opposed to criminalizing domestic terrorism because of its potential abuse by law enforcement agencies.
“The ACLU opposes any legislation that would enhance existing domestic terrorism powers … as well the creation of additional domestic terrorism related crimes,” said Manar Waheed, senior legislative counsel with the group.
She noted that there are more than 50 federal offenses on the books that prosecutors can use to charge domestic terrorism cases.
“There is absolutely no need for a new law,” Waheed said.
The FBI said it would leave it to Congress to work with the Justice Department on any domestic terrorism legislation.
“As we always have, the FBI will continue to use every legally authorized tool and statute afforded to us to both meet and combat the threats we face,” the bureau said in a statement to VOA.
Asked whether the Department of Justice would support legislation that would make domestic terrorism a federal crime, DOJ spokesman Marc Raimondi said via email, “We are not going to get ahead of the Domestic Violent Extremist review currently underway by ODNI, DHS and DOJ (FBI).”