USA TODAY International Edition

Our View: Let’s pause, and ask the attorney general nominee

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The fight against domestic terrorism creates awful choices for a free society.

The sacking of the U. S. Capitol by insurrecti­onal rioters demonstrat­es beyond question that violent extremism is America’s reality now. Then President- elect Joe Biden wasted no time labeling them domestic terrorists.

There’s also little doubt that targeting perceived ideologica­l threats contribute­d to our nation’s most shameful episodes of civil rights abuse and government­al spying on citizens: The FBI wiretapped and recorded the private moments of Martin Luther King Jr. in a bid to humiliate him. And after 9/ 11, the government secretly collected phone “metadata” from virtually every American under the reactionar­y USA Patriot Act.

Now the Biden administra­tion is considerin­g a domestic terrorism law to crack down on homegrown extremism, something Biden promised during his campaign, well before the Jan. 6 storming of the Capitol.

There might easily be consensus today that someone smashing into the Capitol to stop an electoral count is a domestic terrorist, but what if tomorrow that label is applied to a Black Lives Matter, an environmen­tal or a guns rights activist?

Just as important, what green light would the creation of a domestic terrorism law offer federal investigat­ors to begin monitoring such conduct if, say, windows were smashed during a street demonstrat­ion?

And would it even pass constituti­onal muster?

The definition of a terrorist under federal law is anyone who commits violence ranging from murder to destructio­n of property with the intent of intimidati­ng or coercing a civilian population, influencing government policy through intimidati­on or coercion, or to affect the conduct of the government. The law applies only against internatio­nal terrorism. It allows the federal government to declare groups such as al- Qaida or the Islamic State a terrorist organizati­on and prosecute anyone who offers them any kind of assistance, from explosives to a gift card.

The Supreme Court has already indicated that though the government can declare an organizati­on based abroad a terror group, the same declaratio­n of an organizati­on inside the USA would risk violating speech and assembly protection­s. While the Sept. 11 attacks occurred inside America, the attackers were based outside.

Strip that declaratio­n of a group as a terrorist organizati­on out of a domestic terrorism law, and what’s left is a statute that outlaws conduct like murder, kidnapping or property destructio­n, crimes for which there are already state laws — and federal law where hate crimes are a factor.

Neverthele­ss, there has been a ringing, bipartisan clamor in Congress for a domestic terrorism law.

“We have to do something,” House Homeland Security Committee Chairman Bennie Thompson, D- Miss., said during a hearing this month on the Capitol riot.

What Washington needs to do is take a deep breath.

A good first step was Biden’s decision last month ordering a comprehens­ive assessment: Just what is the threat of domestic violent extremism? It’s hard to tell the dimensions from federal data because there isn’t any.

FBI Director Christophe­r Wray testified last year that racially motivated violent extremism accounted for most of a growing number of domestic terrorism incidents. But he had no numbers. A Homeland Security report in October warned that “racially and ethnically motivated violent extremists — specifically white supremacis­ts extremists — will remain the most persistent and lethal threat in the Homeland.” But it had no 2020 data.

What’s worse, even as far- right extremism was growing, law enforcemen­t shifted resources — at then- President Donald Trump’s urging — to disproport­ionately target the radical left.

The public deserves to know precisely what the threat is. Legislatio­n proposed by Sen. Dick Durbin, D- Ill., would call for regular, detailed assessment­s of domestic terrorism and provide oversight to ensure resources go where they’re needed.

Congress should hear expert testimony on what or whether new laws are necessary, and how best to avoid violating civil rights and liberties in any crackdown on violent extremism.

And it would be vital during his confirmation hearing this week to ask Biden’s nominee for attorney general, Merrick Garland, what he thinks about a new domestic terrorism law. As a top Justice Department official, he supervised a successful prosecutio­n in the nation’s worst case of domestic terrorism — the Oklahoma City bombing in 1995 that killed 168 Americans.

And he did it without a federal domestic terrorism law.

 ?? AP ?? Merrick Garland
AP Merrick Garland

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