The Editorial Board | USA TODAY
You’re reading Our View, one of two perspectives in Today’s Debate.
For an Opposing View, read “Make domestic terrorism a federal crime.”
The fight 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.
Nonetheless, 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 new domestic terrorism law to crack down on homegrown violent extremism, something Biden promised during his campaign, well before the Jan. 6 storming of the Capitol.
Defining a terrorist
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 offer federal investigators to begin monitoring such conduct if, say, windows were smashed during a street demonstration?
And would it even pass constitutional muster?
The definition 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, influencing government policy through intimidation or coercion, or to affect 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 offers 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 outside the USA a terror group, the same declaration of an organization inside the USA would risk violating First Amendment speech and assembly protections. While the attacks on Sept. 11, 2001, occurred inside America, the attackers were based outside.
Comprehensive threat assessment
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 on the Capitol riot this month.
What Washington needs to do is take a deep breath.
A good first step was Biden’s decision last month ordering a comprehensive assessment: Just what is the threat of domestic violent extremism?
Racially motivated terrorism
It’s hard to tell the dimensions from federal data because there isn’t any. FBI Director Christopher Wray testified 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 — specifically white supremacists extremists — will remain the most persistent and lethal threat in the Homeland.” But it had no 2020 data. The FBI makes the same case, but declines to reveal statistics.
Making matters worse, even as far-right extremism was growing, law enforcement shifted resources — at then-President Donald Trump’s urging — to disproportionately target the radical far l left, such as anti-fascist groups that fall under the umbrella term “antifa.”
The public deserves to know precisely what the threat is and that it’s being addressed so, for example, law enforcement won’t be caught flat-footed, allowing the U.S. Capitol to be overrun.
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 confirmation 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 official, 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 domestic terrorism law.
USA TODAY’s editorial opinions are decided by its Editorial Board, separate from the news staff and the USA TODAY Network. Most editorials are coupled with an Opposing View, a unique USA TODAY feature.