Lawmakers divided over need for new domestic terrorism law
Disagreement on right-wing threat
WASHINGTON — More than three months after the insurrection and attack on the Capitol, lawmakers are grappling with how best to respond to the rising threat of violent white supremacy nationally.
Divisions have emerged between those who take the threat of domestic right-wing terrorism seriously and those who don’t. But even among those lawmakers who take the threat seriously, there is disagreement over whether creating a new domestic terrorism criminal statute would do more harm than good.
More generally, questions also have arisen over whether additional domestic terrorism-related offices and programs should be established by Congress or if it would be better to refocus and add resources to existing offices within federal departments and agencies.
Virtually all Democrats are in agreement that rightwing violence, particularly rising rates of violent hate crimes, has become an alarming problem. However, Republicans are much more divided about the issue, with many GOP members still aligned with former President Donald Trump.
For example, Sen. Ron Johnson, R-Wis., argues that the destruction of government and private property, as happened occasionally during last summer’s racial justice protests, is the more serious national security issue. “It’s important that we get on the same page,” said Rep. Elissa Slotkin, D-Mich., at a March hearing of the Homeland Security Intelligence and Counterterrorism Subcommittee, of which she is the chairperson. Slotkin, a former CIA officer who focused on extremist groups in Iraq, noted the U.S. intelligence community’s “foremost concern is racially or ethnically motivated violent extremists” as well as “militia-violent extremists.”
“Racially motivated extremists are the most likely to conduct mass casualty attacks against civilians, and militias are likely to target law enforcement, government personnel and facilities,” Slotkin said. “It’s our extremists here at home, seeking to exploit internal divisions, that pose the greatest threat.”
In recent years, more Americans have been killed “by domestic terrorists than international terrorists,” according to the FBI.
The agency’s 2019 annual report on hate crimes found it to be the deadliest year on record for hate crimes, with racially motivated crimes constituting the bulk of the documented incidents. While anti-Black hate crimes represented nearly one-half of the hate crimes, the report also found increases in hate crimes targeting Latinos. Roughly three-fifths of religiously motivated hate crimes targeted Jews that year.
But at last week’s annual Senate Intelligence Committee hearing on worldwide threats, no Republican senator brought up violent white supremacy or rightwing extremism. In fact, two senators appeared to go out of their way to avoid mentioning domestic extremist threats while highlighting the threat of international terrorism.
“Not to be overly simplistic, but I would venture to guess that 90-something percent, if not more, of our threats can be tracked to one of five things: China, Russia, Iran, North Korea or global terrorism,” said Sen. Marco Rubio, R-Fla., the panel’s ranking member.
Chiming in to support Rubio’s comments, Sen. Ben Sasse, R-Neb., said “those five things are the five big threats we face. There aren’t two and there aren’t really 20 that need to be on that top tier list. There are five.”
Still, there are other GOP lawmakers willing to publicly speak out about the threat of right-wing terrorism. They include former federal prosecutors like House Homeland Security ranking member John Katko of New York and House Foreign Affairs ranking member Michael McCaul of Texas.
In 2019, McCaul introduced legislation that would criminalize domestic terrorism. House Intelligence Chairman Adam B. Schiff, D-Calif., another former prosecutor, also had a similar bill that year.
In an interview, Schiff said while he still believes “we need to elevate our response to domestic terrorism, to put it on a plane with our response to international terrorism,” the experience of the last few years of the Trump administration has shown that civil liberty concerns really need to be addressed in crafting any new statute.
The Intelligence Committee chairman said he has had brief discussions with the Biden administration on the matter and wants to get more input from the administration before beginning to draft any possible legislation.
Time to criminalize domestic terrorism?
Just as there are Republican and Democratic voices calling for a new domestic terrorism statute, there are voices from both parties arguing against. That camp includes libertarians and liberals.
“I’ve heard folks from the conservative world say it’s going to infringe on their First Amendment rights, and I hear people from civil rights organizations saying it’s just a hop, skip, and a jump until a federal domestic terrorism law is going to be targeted at Black and Brown people, at activists,” Slotkin said.
Black lawmakers such as Rep. Sheila Jackson Lee, D-Texas, have cautioned that a new law might be abused by a future autocratic administration to crack down on legitimate First Amendment dissent. Indeed, even without a domestic terrorism statute, former President Donald Trump and his attorney general, William Barr, went to extraordinary lengths last summer to deploy federal law enforcement officers to target and arrest antifa and racial justice protesters from the left side of the spectrum.
“How do we balance having a terrorism initiative on the federal level, and making sure that the protection of those who are lawfully protesting, such as the contrast between the treatment of the insurrectionists on Jan. 6 versus the over-arresting of those in Washington D.C. that were Black Lives Matter [protesters] during the summer of 2020,” Jackson Lee said at the same hearing.
The 2001 Patriot Act, passed in the wake of the attacks of Sept. 11, includes a definition of domestic terrorism, which the Jan. 6 attack clearly falls under. However, the U.S. legal code does not include any criminal charges for acts of domestic terrorism.
That has left prosecutors at the federal, state and local level to rely on a patchwork of other federal and state statutes such as conspiracy, unlawful entry, and assault to name a few. Some states like Michigan have their own state domestic terrorism statutes. But others do not.