The Jan. 6 riot at the Capitol has renewed calls for federal domestic terrorism statutes akin to existing laws targeting foreign terrorist groups such as ISIS and al Qaeda.
Similar demands were made in the aftermath of Robert Bowers’s anti-Semitic attack at the Tree of Life Synagogue in 2018. At the time, some legal experts argued that it was a moral imperative to label domestic violent extremists as terrorists equal to Islamist extremists. Following the 2019 mass shooting perpetrated by Patrick Crusius at an El Paso Walmart, several law enforcement officers also sought a federal domestic terrorism rule.
Such calls for enhanced legal authority may seem understandable when viewed in the context of the aftermath of senseless, tragic attacks. However, U.S. laws treat foreign perpetrators of violent extremism and domestic perpetrators differently for good reason — namely, protections granted to U.S. citizens under the Constitution make aspects of foreign terrorism laws unworkable for activities conducted solely within the United States. And the growing impassioned push for new sweeping domestic terrorism statutes should give U.S. citizens pause.
A domestic terrorism statute undoubtedly would impact civil liberties and create a chilling effect on freedom of speech and assembly. It also would open up the opportunity for law enforcement to unreasonably surveil and monitor the movements and activities of Americans with impunity.
After the 9/11 attacks, most Americans understandably rallied behind the country’s leadership. The USA PATRIOT Act — which was passed just less than a month after al Qaeda operatives killed nearly 3,000 people — passed with overwhelming support. However, over time, it became clear that the law empowered the U.S. government to carry out roving wiretaps, unfettered surveillance of individuals, and indefinite detention of suspects — all in the name of protecting national security. Creating equivalency between domestic and foreign terrorists in the law could open the opportunity for similar types of government overreach.
Even the most basic attempt to extend the foreign terrorist legal framework to the domestic arena would be unworkable and dangerous. For example, there is no equivalent under domestic law to “material support” provisions, which criminalize actions supporting the general ideology of a foreign terrorist organization and can be prosecuted even if the perpetrator never had contact with the organization. The breadth of this law, if applied in the domestic context, would clearly have serious implications on civil liberties.
There is also a real danger for abuse by corrupt politicians, who could use domestic terrorism designations against political opponents. During the social justice protests of summer 2020, President Trump declared that he would designate anti-fascist group antifa — which has engaged in violent behavior — as a domestic terrorist organization. It has become commonplace for grandstanding politicians to accuse each other of committing acts of “trauma” and “murder,” and for former government officials to go on TV to compare the former U.S. president to Osama Bin Laden or Anwar al-Awlaki. In our hyperpartisan political climate, it is not difficult to see how politicians could use new domestic terrorism designations to target their opponents and quell dissent in the country. The American public would be better served if U.S. authorities rely on existing statues to go after domestic terrorists. In fact, the United States has a successful history doing so.
For example, Dylann Roof, the white supremacist who killed nine African Americans at the Emmanuel African Methodist Episcopal Church in Charleston, S.C., was sentenced to death. Neo-Nazi James Fields Jr., who drove into a crowd counter-protesting white supremacists in Charlottesville, Va., was sentenced to life in prison for murder and hit-and-run offenses. Even before the Jan. 6 riots at the Capitol, the FBI had arrested a slew of white supremacists.
Looking even further back in U.S. history, Oklahoma City bomber Timothy McVeigh, whose attack killed 168 people, was executed by lethal injection for his mass murder. Ted Kaczynski, better known as the Unabomber, is serving life in a supermax prison in Colorado without potential for parole.
Federal agencies do not need new laws to combat the threat of domestic terrorism. There are plenty of existing statutes that help put the most dangerous people behind bars. Through a combination of charges such as disorderly conduct, unlawful or violent entry, and theft of government property, federal authorities were able to arrest and charge more than 200 individuals involved in the Capitol Hill riot. In fall of 2020, the FBI, with some creativity, charged several members of the Boogaloo Bois with conspiring and attempting to provide material support to the terrorist group Hamas.
Prosecuting domestic terrorists under laws such as hate crimes and illegal weapons possession helps ensure that criminals are brought to justice and punished, while safeguarding Americans civil rights.
Instead of relying on reactive solutions, we should pursue a more measured approach to addressing the complex problem of domestic terrorism. Investigators and government agencies should make sure that these dangerous individuals are prosecuted to the fullest extent under the law. We can also mandate better hate crime and domestic terrorism reporting. Additionally, the U.S. government and civil society can engage with communities to help identify vulnerable groups and build resilience to radicalization.
Like all things related to the phenomenon of extremism and radicalization, there is no silver bullet. Luckily, we have plenty of tools and resources at our disposal. With renewed interest in the issue, now is the time to ensure that U.S. law enforcement and government agencies have the will to deploy them.
David Ibsen is the executive director and Lara Pham is the deputy director of the Counter Extremism Project (CEP), a nonprofit, nonpartisan international organization led by former world leaders and diplomats. Follow on Twitter @FightExtremism.