Two months after the Jan. 6 attack on the Capitol, FBI director Christopher Wray testified before the Senate Judiciary Committee, warning against the rising and critical threat of domestic violent extremism: “It is like cancer. The problem of domestic terrorism has been metastasizing across the country for a long time now and it is not going away any time soon,” Wray said in his opening statement.
As Wray delivered his statements, the Office of the Director of National Intelligence released an unclassified threat assessment stating that violent extremists motivated by political or racial bias have posed an “elevated threat” to the United States this past year. Two weeks later, a gunman opened fire on three Atlanta-area spas, killing eight people, including six women of Asian descent. Labeled by lawmakers and the public as a hate crime and act of terrorism, this tragedy further underlined demands for new domestic terrorism legislation.
On May 28, the Senate failed to pass bipartisan legislation that would have established an independent inquiry into the Jan. 6 Capitol riot. The proposed bill required 60 votes to proceed; the final vote was 54-35 with six Republican Senators joining Senate Democrats in supporting the ultimately unsuccessful proposal. Partisan disputes have flared over the controversial vote and reignited contestations of how best to respond to the ever-growing threat of domestic terrorism.
Debates over what legally constitutes domestic terorrism—and the barriers to prosecuting these incidents—stretch back decades. Most legislative definitions of “domestic terrorism” assert that there must be a political or ideological motive to classify an incident as an act of domestic terrorism. However, definitions differ from state to state, and even vary at the federal level. Furthermore, although the U.S. has designated approximately 60 foreign terrorist groups, there is no federal list of domestic terrorist organizations, which further impedes expedited investigations of potential domestic terrorism events.
Laws governing crimes of mass violence entail significant punishment, but how these crimes are initially labeled affects whether their investigations are prioritized. For instance, crimes labeled as terrorism by the Justice Department are classified as the FBI’s top priority; investigations are well-funded and well-resourced. Contrastingly, hate crimes and gang crimes, which the Justice Department frequently classifies white supremacist attacks as, are ranked fifth and sixth respectively out of eight priorities. As a result, the Justice Department frequently defers possible domestic terrorism investigations to local and state law enforcement, who are often ill-equipped to appropriately and thoroughly respond to these crimes.
In addition to its legal importance, these labels hold a powerful symbolic meaning to the general public, as explained by Manjusha P. Kulkarni, Executive Director of the Asian Pacific Policy and Planning Council.
“By adding that [domestic terrorism] label, we recognize that these crimes are not only perpetrated against an individual but actually intended to terrorize, intimidate and signal to entire communities that they are not welcome based on their identity,” Kulkarni said.
For Kulkarni, the aftermath of the March 2021 Atlanta spa shootings, which left six Asian-American women and two other individuals dead, underscored the need for more consistent recognition of domestic terrorist and hate crime violence.
“The failure to track these incidents more consistently and accurately means that at-risk communities may not receive the resources they need. Incidents will continue to go under-reported,” Kulkarni said.
New York City Mayor Bill de Blasio described the Atlanta spa shootings as an act of “domestic terrorism” and announced the deployment of counterterrorism forces “in some of the most prominent Asian communities” of the city. Other lawmakers, such as Rep. Judy Chu (D-California) who chairs the Congressional Asian Pacific American Caucus, have similarly demanded more action to address hate crimes and domestic terrorism.
On April 14, the U.S. Senate voted 92-6 to move forward with a bill aimed at combating hate crimes against Asian-Americans amid a wave of anti-Asian attacks throughout the COVID-19 pandemic. Additionally, in the wake of the Jan. 6 attack on the Capitol, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and Rep. Brad Schneider of Illinois re-introduced Durbin’s 2017 bill targeting domestic terrorism. The Domestic Terrorism Prevention Act of 2021 would authorize three offices, one each within the Department of Homeland Security, the Department of Justice, and the Federal Bureau of Investigation, to monitor, investigate, and prosecute cases of domestic terrorism.
Significant political opposition to anti-domestic terrorism statutes are already being observed among lawmakers. Several senators, including Republican Sens. Marco Rubio and Ben Sasse , have highlighted international terrorism as a more pertinent and substantial threat.
“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,” Rubio said in a recent Senate Intelligence Committee hearing.
Individual lawmakers, however, are not the only opponents to the new bill.In a memo sent on the final day of the Trump administration, officials from the Department of Justice addressed ongoing anti-domestic terrorism legislation, arguing that the proposed changes would bring “bureaucratic headaches, jeopardize ongoing investigations, and endanger witnesses.”
In addition to the Domestic Terrorism Prevention Act, advocates are calling for the Biden administration to add a distinct federal “domestic terrorism” criminal charge to the U.S. Code, a compilation of the general and permanent federal statutes of the U.S. This new legislation would mirror the current “material support” statute, which punishes individuals who provide support to designated foreign terrorist organizations with up to 20 years in federal prison.
Yet insight from national security experts suggests that the significant restructuring of national security infrastructure needed to address domestic terrorism is highly unlikely to be solved by new legislation. Hina Shamsi, head of the ACLU’s national security project, argues that enacting a new domestic terrorism measure would be a mistake for reasons beyond the legislative and political hurdles.
“There’s no need for new law to deal with white-supremacist violence or other forms of what people think about as terrorism,” Shamsi said in an interview with NPR. “The problem is not the lack of laws. It is a lack of will that the law enforcement agencies have exhibited throughout our history to focus on actual white-supremacist violence.”
Michael German, a Fellow for the Brennan Center for Justice who is working within the Liberty and National Security Program echoes Shamsi’s concerns. German, who served 16 years as an FBI agent and operated undercover in far-right militias, adds that newly proposed legislation would only exacerbate underlying issues within the Justice Department’s allocation of resources to fight domestic terrorism.
“The Justice Department already has substantial power that they aggressively use to target less violent or non-violent groups, like environmental activists, racial justice activists, and civil rights protesters,” German said. “Expanding the FBI’s domestic terrorism power won’t necessarily make it change its priorities to more aggressively fight white supremacist violence. It will probably enable them to more aggressively persecute the groups that they are already disproportionately investigating.”
Still, new intelligence reports warning of the rising threat of militias and white supremacists add urgency to calls for more resources to fight the growing issue of homegrown extremism. As a foundational measure to improve policy responses to domestic terrorism, national security experts recommend Congress require annual, publicly available FBI and DOJ reports that detail the number of investigations and assessments related to domestic terrorism cases, broken down by specific domestic violent extremist subcategories. German also asserts that systemic changes to the DOJ’s policies are necessary to ensure investigations re-prioritize violent domestic terrorist groups.
“Historically, the FBI has deprioritized investigations of white supremacists and far-right militants within their domestic terrorism program, although they acknowledge that white supremacists and far-right militants kill far more people than other category of domestic terrorism,” German said. “There is this disconnect where [the Justice Department] sees political agitation as more threatening than actual violence against communities that the existing system suppresses. Transparency and accountability need to be better integrated into current practices to ultimately combat the disproportionate targeting of non-violent groups.”
Although it has been more than three months since the Jan. 6 siege of the Capitol, the debate and discourse surrounding anti-domestic terrorism laws is not diminishing. At a ceremony on April 19 commemorating the 26th anniversary of the deadliest domestic terrorist attack in American history, Attorney General Merrick Garland stated that the type of terror perpetrated by those responsible for the 1995 Oklahoma City bombing “is still with us.” In his speech, Garland reiterated the importance of cracking down domestic terrorism and hate crime violence.
“The Department of Justice is pouring its resources into stopping domestic violent extremists before they can attack, prosecuting those who do, and battling the spread of the kind of hate that leads to tragedies like the one we mark today,” Garland said. “We must all stand together against them — for the safety of our communities, and for the good of our country.”
Image by Colin Lloyd is licensed under the Unsplash License.
