Posted on January 15, 2021

Capitol Hill Assault Revives Calls for Domestic Terrorism Law

Alex Emmons, The Intercept, January 10, 2021


The events of January 6 may be the defining moment of Donald Trump’s presidency. But the siege was also the culmination of years of warnings about the the growing threat posed by far-right extremists. {snip}

“Can we just accept that the post-9/11 era is over?” Michigan Democrat Elissa Slotkin, a former Defense Department official who touted her experience as a CIA analyst in Iraq and her expertise on terrorism and insurgencies when she ran for Congress in 2018, told MSNBC. “We are in a new era.” While noting that external threats like Russia and China remained, Slotkin continued that “the single greatest national security threat right now is our internal division. It’s the threat of domestic terrorism. It’s that polarization that threatens our democracy.”

However Trump leaves office, a new Congress appears poised to revive a years-old debate on whether the U.S. should expand the legal framework for going after “domestic terrorism.” A group of former Justice Department officials, along with the FBI Agents Association, has long argued that current law makes it easier to prosecute ideologically motivated acts of violence as terrorism if they appear to be inspired by a foreign terror organization like the Islamic State, and that a domestic terror statute would allow them to prosecute white supremacist terror — like Dylann Roof’s mass shooting in a Black church in Charleston, South Carolina — on equal footing.

But civil liberties advocates are wary of such a move, noting that federal law enforcement already has powerful tools to investigate and prosecute acts of domestic terrorism without any new laws, and that importing the anti-terrorism framework risks creating broad and vague powers that could be used to go after activists or religious minorities.

“Anyone familiar with the scope of surveillance and targeting of Black political dissent, or Muslim communities, knows that law enforcement has all the tools it needs to aggressively disrupt and hold accountable those who planned and participated in the storming of the Capitol,” said Diala Shamas, a staff attorney with the Center for Constitutional Rights. “Why they didn’t raises serious questions, but it was not because their hands were tied. We don’t need new terrorism designations.”

It’s also unclear exactly what a new domestic terrorism law might look like or whether President-elect Joe Biden would support it.

In November, the Wall Street Journal reported that an informal group of advisers had suggested that Biden step up efforts to counter extremism, including by creating a White House post and an interagency task force to oversee efforts to counter domestic extremism. {snip}


IN U.S. TERRORISM PROSECUTIONS, the defendant isn’t charged with “domestic terrorism” or “international terrorism” directly. In fact, U.S. law didn’t have a definition of “domestic terrorism” until October 2001. Most terrorism prosecutions rely on broadly construed charges of “material support” for international terror groups, even if the defendants have few direct ties to those networks.

Sayfullo Saipov, for example, an Uzbek immigrant who drove a truck down a bike lane in downtown Manhattan, killing eight people, was charged with providing “material support” to ISIS after claiming its cause as his own, despite having no other ties to the group.

But the “material support” provisions work differently for domestic terror acts, because the U.S. government doesn’t designate domestic organizations, even those like the neo-Nazi Atomwaffen Division, as terrorist groups. Instead, terrorism law can be used to charge someone for providing material support for certain offenses, more than 50 of which can be domestic. They include killing a federal officer, using weapons of mass destruction, and setting off explosives, but not many mass shootings.


Jason Blazakis, a former State Department Official and professor at the Middlebury Institute of International Studies who has written in support of a domestic terrorism statute, told The Intercept that existing law is a difficult and arbitrary patchwork that makes it hard to prosecute certain acts, like politically motivated mass shootings, under terrorism laws.


But critics say the expansion of federal law enforcement power since 9/11 makes additional terrorism laws unnecessary and potentially dangerous. “The FBI has, since 9/11, gained extraordinary authorities to investigate. In order to open an assessment — the lowest level of investigation — the only thing that the FBI needs to have is an ‘authorized purpose,’” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. {snip}

The “terrorist” label is also “vulnerable to political exploitation,” Patel noted, pointing to Republicans’ use of terrorism language to describe antifa last summer.


There have already been attempts in Congress to introduce a domestic terror statute, but they haven’t made it out of committee. In 2019, Rep. Adam Schiff, D-Calif., introduced legislation that would allow certain crimes to be prosecuted as domestic terrorism if they were aimed at intimidating civilians, influencing government policy by intimidation or coercion, or violently disrupt government business. {snip}