An Old Debate Renewed: Does The U.S. Now Need A Domestic Terrorism Law?

Mar 16, 2021
Originally published on March 16, 2021 8:39 am

More than 300 suspects from the Jan. 6 riot at the Capitol face a variety of charges — illegal weapons, assault, property damage and conspiracy. In the latest development, two men have been arrested and charged with spraying a chemical at policeman Brian Sicknick, who died the following day.

President Biden, speaking just days before he was sworn into office, described the mob as "domestic terrorists." Yet no one will face a charge of domestic terrorism — because it doesn't exist in U.S. law.

Bruce Hoffman at the Council on Foreign Relations has studied terrorism, in the U.S. and abroad, for decades. He believes it's time for a domestic terrorism law — with caveats.

"Much as after 9/11, we recognized that we were in a new world, in a new era, and had to make signal adjustments. I think we're in the same position now," said Hoffman.

However, Hina Shamsi, head of the ACLU's national security project, says it would be a mistake to enact such a measure.

"There's no need for new law to deal with white-supremacist violence or other forms of what people think about as terrorism," she said. "The problem is not 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."

After the al-Qaida attacks in 2001, Congress passed the Patriot Act, which created broad powers to deal with extremists.

Shamsi argues those powers were too expansive and disproportionately targeted Muslims and other minority groups. She fears a domestic terrorism law would produce the same result.

"We can't address white-supremacist violence effectively by doubling down or building up systems that already harm communities of color," she said.

A debate revived

Some in Congress, mostly Democrats, are raising the possibility of a domestic terrorism law in the wake of the Jan. 6 assault on the Capitol and the overall increase in far-right extremism in recent years.

The debate resurfaces most every time the U.S. has a major terrorist attack, but a number of reasons are cited for not enacting legislation.

Civil rights groups say a domestic terrorism law would likely raise First Amendment questions over free speech, and possibly Second Amendment issues regarding weapons. In short, the Constitution permits Americans to own guns and fiercely criticize the government.

The FBI and other law enforcement agencies often say they have plenty of existing tools when it comes to prosecution. In addition, they say they don't want to get involved in the business of deciding who is, and isn't, a terrorist.

In the most notorious case of domestic terrorism, Timothy McVeigh's 1995 truck bomb killed 168 people at a federal building in Oklahoma City. He was charged with, convicted of and executed for killing federal agents and other crimes — but not terrorism.

Still, Hoffman believes a new law would be a useful tool in defining and prosecuting politically motivated violence that is distinct from ordinary crime.

He also believes such a law could address the much lighter prison sentences that many far-right extremists receive compared to Muslim Americans for politically motivated offenses.

"I think that we have to bring greater equity to sentencing," he said.

Foreign terrorism list

Current U.S. law does recognize foreign-based terrorism.

The U.S. has designated about 60 foreign terrorist organizations. A few are well-known, like al-Qaida and ISIS. Most are obscure. Many, though not all, are Islamist.

To make this legal distinction clear, someone acting on behalf of al-Qaida, whether a U.S. citizen or a foreigner, could be charged with a terrorism-related offense because al-Qaida is a designated terrorist group.

Yet someone carrying out a similar or identical act, but with no connection to a foreign terrorist group, would not be charged with domestic terrorism.

Hoffman stresses that he doesn't think a domestic law should create a list of U.S. terrorist organizations.

"I don't think we should get into the business of designating terrorist groups as we do with overseas groups. That opens up a Pandora's box," he said.

Over the past two decades, the battle lines in the debate over domestic terrorism have shifted.

After the Sept. 11 terrorist attacks, Republicans tended to push hardest for the most expansive security measures, while Democrats were the ones most often raising concerns about civil liberties. Today, Democrats often lead the call for a domestic terrorism law, while Republicans are questioning law enforcement tactics.

At a Senate Homeland Security Committee on March 3, several Democrats criticized Jill Sanborn of the FBI's Counterterrorism Division, saying the bureau failed to identify the threat in advance of the Jan. 6 riot.

In contrast, Republicans questioned whether the FBI was acting too broadly in the aftermath by collecting information like cell phone data on those present that day.

"If you see John Smith on a video, I'm fine with looking at his records," said Rand Paul, the Kentucky Republican. "My question is, did you have a generalized collection of data about people who were on the Hill on January 6th?"

Sanborn responded: "Not that I'm aware of. I do know that we have used data and this is reflected in some of the charging documents that had geolocation data."

Paul expressed skepticism at her answer. "These are important questions. The Fourth Amendment's out there to protect against generalized searches," he said.

The Biden administration has not yet indicated how it might act. As a candidate, Biden said he would seek a domestic terrorism law. As president, his administration says only that the matter is under review.

Greg Myre in an NPR national security correspondent. Follow him @gregmyre1.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

A MARTINEZ, HOST:

Two men are now facing federal charges, accused of assaulting police officer Brian Sicknick during the U.S. Capitol riot. Sicknick later died of his injuries. The Capitol attack has raised the question, should the U.S. have a domestic terrorism law? Here's NPR national security correspondent Greg Myre.

GREG MYRE, BYLINE: More than 300 suspects from the January 6 riot at the Capitol face a variety of charges - illegal weapons, assault and conspiracy. President Biden described the mob as domestic terrorists, yet no one will face a charge of domestic terrorism because it doesn't exist. What's more, Hina Shamsi, head of the ACLU's National Security Project, says it would be a mistake to create one.

HINA SHAMSI: There's no need for new law. The problem is not a 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.

MYRE: After the al-Qaida attacks on 9/11, Congress passed the Patriot Act. It created broad powers to deal with extremists. Shamsi argues those powers were too expansive and disproportionately targeted Muslims and other minorities. She fears a domestic terrorism law would do the same.

SHAMSI: We can't address white supremacist violence effectively by doubling down on building up systems that already harm communities of color.

MYRE: Yet the Biden administration and some in Congress have raised the possibility of a domestic terrorism law in the face of growing far-right extremism. Bruce Hoffman at the Council on Foreign Relations believes it's time for such a law - with caveats.

BRUCE HOFFMAN: Much as after 9/11 we recognized that we were in a new world, in a new era and had to make signal adjustments, I think we're in the same position now.

MYRE: Hoffman says a new law should address the relatively light prison sentences far-right extremists receive compared to tougher sentences for Muslim Americans.

HOFFMAN: I think that we have to bring greater equity to sentencing.

MYRE: Current U.S. law does recognize foreign-based terrorism. The U.S. has designated about 60 foreign terrorist organizations. A few are well-known, like al-Qaida and the Islamic State. Most are obscure. Hoffman says a domestic law should not create a similar list that would designate U.S. terrorist organizations. He cites constitutional reasons.

HOFFMAN: I don't think we should get into the business of designating terrorist groups as we do with overseas groups. That opens up a Pandora's box.

MYRE: That would include First Amendment questions over free speech, as well as Fourth Amendment issues regarding lawful searches. At a recent Capitol Hill hearing, senators questioned Jill Sanborn of the FBI's Counterterrorism Division. Several Democrats were critical of the FBI, saying it failed to identify the threat in advance of the January 6 riot. In contrast, Republicans questioned whether the FBI was acting too broadly in the aftermath by collecting information like cellphone data on those who were present. Here's Sanborn and Kentucky Republican Rand Paul.

(SOUNDBITE OF ARCHIVED RECORDING)

RAND PAUL: My question's not towards individuals. Like, if you see John Smith on a video, I'm fine with looking at his records. My question is, did you have a generalized collection of data about people who were on the Hill on January 6?

JILL SANBORN: Not that I'm aware of. I do know that we have used data. This is reflected in some of the charging documents that had geolocation data.

MYRE: As a candidate, Biden said he'd seek a domestic terrorism law. As president, nothing has been decided yet. His administration says the matter is under review.

Greg Myre, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.