The violent insurrection of January 6th, 2021, when supporters of Donald Trump unlawfully occupied the US Capitol building, threatened members of Congress, and temporarily derailed certification of the presidential election, has prompted a new wave of federal anti-terrorism statues targeting domestic terrorism. As Alex Emmons of the Intercept and independent news commentators reported, the proposed legislation—including the Domestic Terrorism Prevention Act of 2021—is unnecessary, because existing laws already cover domestic terrorism, and dangerous, because new laws could be used to repress legitimate political protest and to target activists and religious or ethnic minorities.
The Intercept’s Alex Emmons reported that the siege of the Capitol on January 6th was “the culmination of years of warnings” about the increasing threat of far-right extremism, including an October 2020 assessment by the Department of Homeland Security which identified “white supremacist extremists” as “the most persistent and lethal threat in the Homeland.”
Proponents of new domestic terrorism legislation include a group of former Justice Department officials, the Federal Bureau of Investigation Agents Association, and President Biden, but civil liberties groups are opposed, Emmons wrote, because “federal law enforcement already has powerful tools to investigate and prosecute acts of domestic terrorism without any new laws.”
As Chip Gibbons noted in a report for Jacobin, the “vast security apparatus” established “in the name of ‘national security’” after the September 11, 2001 terrorist attacks “completely failed to thwart a plot carried out in plain sight.” The problem now, much the same as it was twenty years ago, is not a lack of effective terrorism laws, but how they tend to be interpreted and applied.
A 2019 review by the Intercept found that Justice Department prosecutors “routinely declined to bring terrorism charges against right-wing extremists even when their alleged crimes meet the legal definition of domestic terrorism.” Out of 268 right-wing extremists prosecuted in federal courts since the 9/11 attacks for crimes that appear to meet the legal definition of domestic terrorism, the Intercept study found that Justice Department officials applied anti-terrorism laws against only 34 of them.
Noting that the label “terrorist” is “vulnerable to political exploitation,” Faiza Patel, the co-director of the Brennan Center’s Liberty and National Security Program, told the Intercept that, since 9/11, the Federal Bureau of Investigation (FBI) has “gained extraordinary authorities to investigate.” For example, to open an “assessment”—the FBI’s lowest level of investigation—requires no factual evidence, only an “authorized purpose” for law enforcement.
“Given the fact that there are at least 50 statutes that count as domestic terrorism,” Patel stated, “I feel confident [the FBI] could find an authorized purpose” to open an “assessment” on any group or individual. The socialist news website Left Voice noted that federal agencies such as the FBI have historically used their law enforcement powers to infiltrate and break up the Communist Party in the 1950s and the Black Panther Party and the New Left in the 1960s and 1970s. Any new domestic terrorism measure, reporter Sou Mi wrote, would “give more power, funding, and resources to agencies like the FBI” and the National Security Agency, which have a long record of using their authority to “hunt down and neutralize the Left.”
Establishment news coverage of proposed domestic terrorism legislation (including, e.g., reports in the Wall Street Journal and Washington Post) has been limited, and mostly uncritical—framing the issue simply in terms of regular partisan dispute between Democrats and Republicans, or as a matter of forecasting the policy agenda of the newly inaugurated president, Joe Biden, and his administration. When corporate news outlets have included more critical analyses, these perspectives have been categorized as opinion rather than as news (e.g., an opinion article by two representatives of the American Civil Liberties Union, Hina Shamsi and Manar Waheed, “After Capitol Riot, Biden Backs Domestic Terror Law. It’s a Predictably Misguided Response,” NBC News, January 15, 2021).
Alex Emmons, “Capitol Hill Assault Revives Calls for Domestic Terrorism Law, but Civil Liberties Groups are Wary,” The Intercept, January 10, 2021.
Student Researcher: Samuel Berry (Saint Michael’s College)
Faculty Evaluator: Rob Williams (Saint Michael’s College)
Illustration by Anson Stevens-Bollen.