More than three months after the insurrection and attack on the Capitol, lawmakers are grappling with how best to respond to the rising threat of violent white supremacy nationally.
Divisions have emerged between those who take the threat of domestic right-wing terrorism seriously and those who don’t. But even among those lawmakers who take the threat seriously, there is disagreement over whether creating a new domestic terrorism criminal statute would do more harm than good.
More generally, questions also have arisen over whether additional domestic terrorism-related offices and programs should be established by Congress or if it would be better to refocus and add resources to existing offices within federal departments and agencies.
Virtually all Democrats are in agreement that right-wing violence, particularly rising rates of violent hate crimes, has become an alarming problem. However, Republicans are much more divided about the issue, with many GOP members still aligned with former President Donald Trump.
For example, Sen. Ron Johnson, Republican of Wisconsin, argues that the destruction of government and private property, as happened occasionally during last summer’s racial justice protests, is the more serious national security issue.
“It’s important that we get on the same page,” said Rep. Elissa Slotkin, D-Mich., at a March hearing of the Homeland Security Intelligence and Counterterrorism Subcommittee, of which she is the chairperson. Slotkin, a former CIA officer who focused on extremist groups in Iraq, noted the U.S. intelligence community’s “foremost concern is racially or ethnically motivated violent extremists” as well as “militia-violent extremists.”
“Racially motivated extremists are the most likely to conduct mass casualty attacks against civilians, and militias are likely to target law enforcement, government personnel and facilities,” Slotkin said. “It’s our extremists here at home, seeking to exploit internal divisions, that pose the greatest threat.”
In recent years, more Americans have been killed “by domestic terrorists than international terrorists,” according to the FBI.
The agency’s 2019 annual report on hate crimes found it to be the deadliest year on record for hate crimes, with racially motivated crimes constituting the bulk of the documented incidents. While anti-Black hate crimes represented nearly half of the hate crimes, the report also found increases in hate crimes targeting Latinos. Roughly three-fifths of religiously motivated hate crimes targeted Jews that year.
But at last week’s annual Senate Intelligence Committee hearing on worldwide threats, no Republican senator brought up violent white supremacy or right-wing extremism. In fact, two senators appeared to go out of their way to avoid mentioning domestic extremist threats while highlighting the threat of international terrorism.
“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” said Sen. Marco Rubio, R-Fla., the panel’s ranking member.
Chiming in to support Rubio’s comments, Sen. Ben Sasse, R-Neb., said “those five things are the five big threats we face. There aren’t two and there aren’t really 20 that need to be on that top tier list. There are five.”
Still, there are other GOP lawmakers willing to publicly speak out about the threat of right-wing terrorism. They include former federal prosecutors like House Homeland Security ranking member John Katko, R-N.Y., and House Foreign Affairs ranking member Michael McCaul, R-Texas.
In 2019, McCaul introduced legislation that would criminalize domestic terrorism. House Intelligence Chairman Adam B. Schiff, D-Calif., another former prosecutor, had a similar bill that year.
In an interview, Schiff said while he still believes “we need to elevate our response to domestic terrorism, to put it on a plane with our response to international terrorism,” the experience of the last few years of the Trump administration has shown that civil liberty concerns really need to be addressed in crafting any new statute.
The Intelligence Committee chairman said he has had brief discussions with the Biden administration on the matter and wants to get more input from the administration before beginning to draft any possible legislation.
Time to criminalize domestic terrorism?
Just as there are Republican and Democratic voices calling for a new domestic terrorism statute, there are voices from both parties arguing against. That camp includes libertarians and liberals.
“I’ve heard folks from the conservative world say it’s going to infringe on their First Amendment rights, and I hear people from civil rights organizations saying it’s just a hop, skip, and a jump until a federal domestic terrorism law is going to be targeted at Black and Brown people, at activists,” Slotkin said.
Black lawmakers such as Rep. Sheila Jackson Lee, D-Texas, have cautioned that a new law might be abused by a future autocratic administration to crack down on legitimate First Amendment dissent. Indeed, even without a domestic terrorism statute, former President Donald Trump and his attorney general, William Barr, went to extraordinary lengths last summer to deploy federal law enforcement officers to target and arrest antifa and racial justice protesters from the left side of the spectrum.
“How do we balance having a terrorism initiative on the federal level, and making sure that the protection of those who are lawfully protesting, such as the contrast between the treatment of the insurrectionists on Jan. 6 versus the over-arresting of those in Washington D.C. that were Black Lives Matter [protesters] during the summer of 202?” Jackson Lee said at the House Homeland Security subcommittee hearing in March.
The 2001 Patriot Act, passed in the wake of the attacks of Sept. 11, includes a definition of domestic terrorism, which the Jan. 6 attack clearly falls under. However, the U.S. legal code does not include any criminal charges for acts of domestic terrorism.
That has left prosecutors at the federal, state and local level to rely on a patchwork of other federal and state statutes such as conspiracy, unlawful entry, and assault to name a few. Some states like Michigan have their own domestic terrorism statutes. But others do not.
“While the prosecutors and the FBI are doing the best that they can with the tools that they have — and they will tell you, ‘Hey, I can usually deal with this’ — you also see them having to go the extra mile in a way they really shouldn’t have to," said Elizabeth Neumann, a former assistant secretary of Homeland Security for counterterrorism and threat prevention during the Trump administration, at a February House hearing.
Dana Nessel, the attorney general of Michigan and a Democrat, said her state, which has had decades of experience with violent militia groups, including last year’s foiling of a plot to kidnap Gov. Gretchen Whitmer, uses its own anti-terrorism law to charge most domestic extremism cases.
“A big part of that, of course, is because quite honestly, we did not have the federal laws available in order to, I think, properly charge these individuals with the conduct of which they were accused,” said Nessel, noting that many other states lacked similarly robust laws.
“To fully combat domestic terrorism across the country, changes to federal criminal laws must be made,” Nessel testified before Slotkin’s subcommittee last month. “Labels matter. Prosecuting hate-motivated attackers as terrorists sends the clear message that the threat of extremism is just as significant when it is based on domestic political, religious or social ideologies as it is when it’s based on violent jihadism.”
After the Capitol attack, nearly 160 civil rights organizations sent a letter to Congress urging against the creation of a domestic terrorism statute. The letter notes there are more than 50 terrorism-related statutes that can be used by the FBI and Justice Department to investigate and charge white supremacist violence plus dozens of other federal statutes related to hate crimes and organized crime that can also be used by prosecutors.
“The failure to confront and hold accountable white nationalist violence is not a question of not having appropriate tools to employ, but a failure to use those on hand,” reads the letter, organized by The Leadership Conference on Civil and Human Rights, which played a key role in pushing for major civil rights laws in the 1950s and 1960s.
“We know the problem. There has just been a failure to apply their laws to violent white nationalists,” Becky Monroe, director of the Fighting Hate and Bias program at the Leadership Conference told CQ Roll Call. “There should be no cover given for the failure to use these statutes or to use other statutes. There are hate crime statutes, there are conspiracy statutes. The tools have been available. The will to use them against violent white nationalists is what has been missing.”
Senate Judiciary Committee member Mazie K. Hirono in an interview this week said she is supportive of having a federal domestic terrorism law, particularly to better deal with violent white supremacists, but she, too, would want to see it carefully tailored to avoid abuse.
“I share the concern that people who are engaging in protests, peaceful protests, could be swept up, and that’s why any law that we pass, I think, needs to be very well-defined, so that we are not infringing on people’s legitimate First Amendment rights,” said Hirono, D-Hawaii, who has a separate bill being debated on the Senate floor that seeks to combat a rise in hate crimes against Asian-Americans and Pacific Islanders.
Areas of possible agreement
Even as there are significant differences of opinion on Capitol Hill on the need for and appropriateness of a domestic terrorism statute, there is much greater agreement on other things that can be done to better direct the attentions and resources of the Justice and Homeland Security departments to combat violent right-wing extremists.
Slotkin said she is hopeful she can get Republican buy-in for a bill she is developing that would improve the Homeland Security Department’s data collection of domestic extremism-related threats.
“One of the things we know is we just don’t do a ton of data collection,” she said. “We just don’t understand the magnitude of the threat.”
Indeed, getting timely access to data on hate crimes in the country has been a years-long effort for Congress.
Earlier this month, bipartisan, bicameral legislation was introduced to better incentivize and train law enforcement agencies around the country to improve their collection and reporting of data around hate crimes, which supporters of the bill say is necessary to better inform timely policy responses and adequate resource distribution.
In 2019, the most recent year that data is available for, more than 80 percent of agencies that participate in reporting hate crimes to the FBI reported zero hate crimes, which experts say is baffling and suggests that police departments are significantly undercounting hate crimes.
“Hate crimes have no place in our society and this bill to improve reporting on the incidences in which they do occur is a step forward in better understanding how to address them,” said Sen. Jerry Moran, R-Kan., a principal co-sponsor of the Senate bill. “This legislation also provides support and training to law enforcement and, as the lead Republican on the Appropriations subcommittee with jurisdiction over the Department of Justice, I want to make certain our law enforcement have the tools they need to keep our communities safe for all Americans.”