Capitol attack
Credit: Tyler Merbler/Flickr

The insurrection isn’t over. Congressional Democrats have been briefed on a possible armed attempt to surround the Capitol and, according to HuffPost’s Matt Fuller, “perhaps even killing [Democratic members of Congress] so that Republicans could take control of the government.” The head of the Anti-Defamation League, Jonathan Greenblatt, told The Washington Post’s Greg Sargent that Wednesday’s riot was a “watershed moment for the far-right extremist movement” and that the groups involved “are certainly not going anywhere.”

We are dealing with terrorists. We need a counterterrorism strategy. And that will require a new domestic terrorism law.

Joe Biden’s transition team was already working on a domestic terrorism law before the insurrection. Its work is drawing new attention and criticism. Jacobin’s Luke Savage argues that such a law is unnecessary and will lead to oppressive overreach. Civil libertarian writer Glenn Greenwald mockingly declared the Capitol insurrection as the “Liberals’ 9/11,” likening it to the jingoistic security panic that fueled George W. Bush’s conservative presidency.

But knee-jerk reactions, removed from any specific, detailed proposals, reflexive denunciations are no more helpful than mindless cheerleading for new laws. We should have a clear-eyed understanding of the Constitution, the current law, and the growing terror threat and proceed accordingly.

White supremacists have committed most of the lethal domestic terrorist attacks over the last two decades and calls for a new law that preceded this month’s Capitol insurrection. Before last week, we saw the foiled Gretchen Whitmer kidnapping plot and the MAGA mail bomber. During the Obama presidency, we suffered the Charleston church massacre, the Wisconsin Sikh temple massacre, and the Colorado Springs Planned Parenthood massacre. In the year following 9/11, anti-Muslim terrorists launched a wave of violent attacks, including three murders and 22 physical attacks on mosques (a 2002 plot to bomb 50 mosques was thwarted). The 1990s were marked by the deadliest domestic terrorist attack in American history, the Oklahoma City bombing, as well as a spate of Southern anti-abortion, anti-gay bombings, which included the bomb detonated at the 1996 Atlanta Olympics.

Of course, there have been extremist left-wing domestic terrorism in the pages of American history. The 2017 congressional baseball game shooting. The Unabomber (sort of). The Symbionese Liberation Army. The Weather Underground. The Puerto Rican nationalist bombings of the 1970s and 1980 and its 1954 shooting in the U.S. House. The 1920 Wall Street bombing. Plus, some Islamic fundamentalist terrorism has been domestic in origin, such as the 2016 Orlando gay nightclub shooting. Any domestic terrorism law will have application beyond the existing threat from pro-Trump insurrectionists because the potential for domestic terrorism will always be with us.

Yet pursuing domestic terrorism has been much more politically and legally fraught than pursuing foreign terrorism. According to the director of the National Consortium for the Study of Terrorism and Responses to Terrorism, 61% of attempted domestic terror plots succeed versus 22% of foreign plots.

One challenge is we have in addressing domestic terrorism is bureaucratic: we have not had the broad political will to maintain and fund government agencies dedicated to the task.

Recall that in 2009, the Obama administration’s Department of Homeland Security produced a threat assessment of “Rightwing Extremism,” and then Republicans blasted it as an outrageous political attempt to target conservative opponents of Barack Obama. DHS Secretary Janet Napolitano apologized for the report, and the department’s “Extremism and Radicalization Branch” was dismantled.

A 2019 attempt by the Trump administration acting DHS Secretary Kevin McAleenan to prioritize white nationalist terrorism was slowed down by his successor Chad Wolf, though last October, following a whistleblower complaint, Wolf announced $10 million in grants to fund efforts to fight far-right extremism.

Whether or not our government prioritizes domestic terror threats should not depend on whether the terrorist’s ideology is left, right, or certifiably insane like the QAnon madness. That’s why Congress should, at minimum, pass a law establishing a permanent, sufficiently funded domestic counterterror program, either as part of a larger domestic terrorism bill or while other legal changes are debated.

Since 2017, Sen. Dick Durbin and Rep. Brad Schneider, both Illinois Democrats, have been trying to pass the Domestic Terrorism Prevention Act. It would, in Schneider’s words, “authorize three offices, one each within the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Federal Bureau of Investigation (FBI), to monitor, investigate, and prosecute cases of domestic terrorism.” The bill passed the House in September on a voice vote but was blocked in the Senate by Republicans. Hopefully, in a Democrat-controlled Senate, it or something like it will get a quick floor vote.

Another challenge is legal: powerful laws criminalizing “material support” are much harder to apply to abettors of domestic terrorism. As explained by a 2019 analysis of Obama administration domestic counterterror efforts by the Triangle Center on Terrorism and Homeland Security at Duke University, “there is no law outlawing providing material support to domestic terrorist organizations or any list of domestic terrorist organizations equivalent to the foreign terrorist organization list … So, whereas law enforcement might be able to obtain a search warrant or wiretap order based on evidence that a suspect might be planning to provide material support to al Qaeda or ISIS, this productive tool is not available during investigations of white-supremacists or anti-government extremists.”

There is a big and proper, constitutional reason for that gap in the material support law: the First Amendment protects the freedom to assemble. We can’t outlaw a group for existing, even if the ideology of that group is hateful or even seditious. We prosecute acts, not beliefs.

However, as explained by The Intercept’s Trevor Aaronson, another part of the material support law does apply to domestic plots, “so long as the crime involves one of about 50 proscribed offenses, including bombing government buildings, murdering government employees, using weapons of mass destruction, and hostage taking.”

Aaronson argues this “more limited provision” cuts down on prosecutorial abuse. However, he acknowledges, “mass shootings not involving the death of government employees are notably absent from the list of offenses eligible for material support charges.” To some, this is a grievous omission. Former federal prosecutor Mary McCord has noted that mass shootings are “the most common method of committing a terrorist attack … where there is no tie to a foreign terrorist organization.” According to the Wall Street Journal, some Biden advisers want a new law that expands the material support list to at least include mass shootings.

Rep. Adam Schiff, the California Democrat and chair of the Intelligence Committee, has a bill that goes further. The Confronting the Threat of Domestic Terrorism Act creates a definition of domestic terrorism broadly encompassing plots that carry a “substantial risk of serious bodily injury” along with an “intent to intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion.” The legislation then links that newly defined crime to the material support law.

What’s the argument against that? Montclair State University Justice Studies Prof. Francesca Laguardia, referring to Schiff’s bill and two others, rhetorically asked, “would these statutes call it terrorism to throw a brick through a window, provided there was a swastika on it? The low level of damage required for a charge of terrorism renders the three proposed statutes frighteningly extreme…”

My own counterargument would be, don’t throw a brick through a window with a swastika on it. Nevertheless, there’s good faith debate to be had over how broad these definitions should be and what sorts of unintended, undesired consequences should be avoided.

The always suspicious Greenwald asserts that, during this so-called Liberals’ 9/11, “if you question all the new powers they want, it means you love the Terrorists.” Well, it doesn’t mean that at all. People can hold sincere civil libertarian views and detest terrorism. The flip side is also true: people can support a new domestic terrorism law and still revere our Constitution and the freedoms it protects. If all camps accept both premises while recognizing that the domestic terror threat is real and not overhyped propaganda from an Orwellian one-party duopoly, we can have a constructive debate.

Demagoguery and hysteria are not necessary. American democracy is not at imminent risk of disintegration, nor is America on the verge of becoming a police state. At the same time, 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.

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Bill Scher

Bill Scher is political writer at the Washington Monthly. He is the host of the history podcast When America Worked and the cohost of the bipartisan online show and podcast The DMZ. Follow Bill on Twitter @BillScher.