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The deadly attack at the U.S. Capitol last week has revived an ongoing debate over whether federal law enforcement should be given more authority to fight homegrown terrorism at the same level the U.S. combats terrorism abroad.
President-elect Joe Biden was one of many lawmakers to refer to the mob of Trump supporters who stormed the Capitol building as “domestic terrorists.” The rioters’ attempt to forcibly stop Congress from certifying Biden’s election victory appears to meet the legal standard for domestic terrorism, which is defined under U.S. law as violent acts intended to “influence the policy of a government by intimidation or coercion.”
But while a number of people involved in the assault have been arrested, none of them will face domestic terrorism charges. That’s because domestic terrorism itself is not a crime in the United States. International terrorism laws give federal law enforcement broad authorities to monitor people suspected of terrorist activity and charge them for being members of a designated terrorist group or providing “material support,” even if their actions aren’t illegal under normal circumstances. However, when it comes to terrorism birthed within U.S. borders, law enforcement powers are much narrower.
Some lawmakers and national security experts have pushed in recent years for a new law that would designate domestic terrorism as a crime and expand law enforcement’s ability to combat extremism at home. While the term would apply to all ideologies, the proposals are specifically aimed at right-wing radicalism — which has inspired the majority of terrorist attacks in the U.S. over the past few decades.
Why there’s debate
Supporters of a new domestic terror law say the Capitol assault is just the latest example of how current laws hold back the effort to stomp out homegrown extremism. Other attacks — including recent mass shootings in El Paso, Texas, and Pittsburgh — show how misguided it is to treat terrorism differently simply because of where it originates, they argue. A new law could give authorities more power to disrupt plots before they’re carried out and establish more severe punishments for perpetrators.
Opponents say any new powers given to law enforcement would inevitably be used to violate the constitutional rights of innocent Americans. Whether it’s the warrantless surveillance of Muslim Americans after the 9/11 attack or covert operations in the 1960s against Martin Luther King Jr., the government has a troubling history of abusing anti-terror laws — with the victims often being people of color. The solution to white supremacist extremism, they argue, is for authorities to finally focus the considerable powers they already have on the true threat.
Some argue that there’s space for a targeted law that creates a narrow definition of domestic terrorism while still protecting the rights of vulnerable groups. Others have pushed for bills that would force federal law enforcement to prioritize far-right extremism using its existing authority.
According to his campaign website, Biden intends to “work for a domestic terrorism law” when he takes office. But concerns from civil rights groups may lead the president-elect to reconsider that pledge, according to a new report from Yahoo News.
Existing laws make it hard to track domestic extremists
“Federal authorities have had more success combating international terrorists than those with a domestic focus, reflecting legal limits on investigations of American political groups, the opaque and elusive nature of the threat, and President Donald Trump’s embrace of far-right groups, experts say.” — Sebastian Rotella, ProPublica
A domestic terrorism law would prevent future attacks
“[Congress] should enact laws that make the domestic terrorism definition in U.S. code a chargeable offense — not only to provide penalties that might deter future threats, but also to provide law enforcement with the tools needed to conduct strategic analysis and organized investigations of such threats and the crimes that result from them.” — Adam Maruyama, The Hill
Treating domestic and international terrorism differently is a mistake
“When someone like [Tree of Life synagogue shooter] Robert Bowers kills 18 people in a Pittsburgh synagogue, and he’s not considered a domestic terrorist because he used a handgun and not a weapon of mass destruction, it really points to the absurdity of the law as it exists today. If that were an individual inspired by ISIS, they’d be charged with an act of terrorism.” — Counterterrorism expert Jason Blazakis to Intercept
It’s possible to create a domestic terror law that protects civil rights
“Domestic terror threats with the intent of subverting democracy are real, and great constitutional care is always needed when crafting laws that expand police powers. We face a real threat. Let’s come together and make some good law.” — Bill Scher, Washington Monthly
Better surveillance will help identify potential attackers
“Murder is a crime in all 50 states, and white-supremacist killings often violate federal hate-crime laws. But from a prevention standpoint, those crimes don’t give the FBI the tools it needs to treat potential white-nationalist killers like the Islamist terrorists whom investigators have spent their careers studying.” — Former federal prosecutor Mary McCord, Washington Post
A domestic terrorism law would inevitably be abused
“Decades of experience have shown how law enforcement uses broad terrorism-related authorities to target and surveil Black and Brown people, including those engaged in protest. A new domestic terrorism statute, even if intended to protect communities of color, would inevitably be used to harm them.” — ACLU senior attorney Hugh Handeyside to Yahoo News
The government has plenty of freedom to combat far-right violence, it just chooses not to
“The real scandal here is not the lack of a domestic terrorism statute. The real scandal is the free pass white supremacy has had from law enforcement for all these years.” — Moustafa Bayoumi, The Nation
Human rights should not be abandoned in the name of fighting terror, wherever it occurs
“The solution to this American hypocrisy cannot be to fight domestic terror with the same fervor and disregard for human rights with which we fight it internationally.” — Alex Pareene, New Republic
Everything the Capitol rioters did is already illegal
“It’s also abundantly clear that a new domestic terrorism law is not needed. Killing a police officer, violently storming the U.S. Congress, and destroying federal property are all already illegal.”— Chip Gibbons, Jacobin
Overaggressive enforcement will only create more extremists
“To categorize all Trump supporters — or even all attendees of pro-Trump events in Washington, D.C., on Wednesday — as domestic extremists would be counterproductive too. Such actions will push some Americans deeper into webs of conspiratorial fantasy. Pulling them back from the brink will become even harder.” — Emerson T. Brooking, Atlantic
The focus should be on fixing societal causes of domestic terrorism
“Invoking ‘terrorism’ only stokes fear and clouds our ability to talk about root causes. It is a conversation stopper, not a conversation starter.” — Diala Shamas and Tarek Z. Ismail, Washington Post
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Photo illustration: Yahoo News; photos: Getty Images