Opinion: To confront the reality of domestic terrorism, we need a federal law

A House committee to investigate the events of Jan. 6 held its first hearing this week, aiming to unravel the details of the Capitol riot that left five dead. The riot was an attack on our democracy, a startling insurrection that many have called an act of domestic terrorism, including FBI Director Christopher A. Wray.

Over 500 participants in the violent mob have been charged with crimes, but not one of them will be prosecuted for terrorism. Unlike our stringent laws against foreign terrorists and sympathizers, the U.S. doesn’t have a federal statute criminalizing domestic terrorism despite the fact that it’s now the larger threat.

The Biden administration’s new strategy to counter domestic terrorism is a direly needed step to combat extremism within our borders. But without a federal statute, it’s difficult to perceive and confront the severity of the threat.

Jan. 6 rioters will likely be convicted of other crimes, such as unlawful entry into a restricted building and obstruction of an official proceeding. These charges should be enough to send guilty parties to prison, some of them for a long time. But they still don’t accurately label the offenders for who they really are: violent domestic extremists who carried out an act of terrorism on U.S. soil.

The debate over a domestic terrorism statute is extremely complex. In most cases, law enforcement already has the tools to prosecute violent extremists for other crimes, and civil rights advocates worry that increased authority is bound to be abused.

But we need this statute because we need to set the record straight. There can be no double standard when it comes to acts of terrorism. Whether the perpetrator is Christian or Muslim, American or foreign, violence committed on behalf of an ideology needs to be called out by its proper name.

“We’ve had far more mischief caused by right-wing extremists than we have by Islamists,� said Gary LaFree, a professor of criminology at the University of Maryland. “I think part of the reason we are getting more domestic right-wing terrorism is because we have been so tepid in our response.�

A federal statute would provide impetus to take a more proactive and direct approach to domestic extremism. We have the resources we need, Chapman University professor Peter Simi argues; we’re just not using them.

“We didn’t ignore this problem because we didn’t have the right tools,� Simi said. “Most of the failure to address this problem has been that we just haven’t perceived it as a problem.�

What we really need is a fundamental shift in the way we view domestic actors.

Admittedly, implementing a domestic terrorism law is no straightforward task, and many experts don’t believe it’s a necessary or wise step to take. One reason is that a law like this could work both ways. Right-wing extremists and white supremacists currently pose the most significant threat of violence, experts say, but a domestic terrorism law could also be used against left-wing organizations like Black Lives Matter, which many conservatives blame for destructive riots during last year’s George Floyd protests.

“Terrorism has long been a label abused,� said Heather Williams, a senior policy researcher at the Rand Corp. “It’s a label used when it serves the interest of those applying it.�

“When you give law enforcement more authority, you’re really just turbocharging an already racist system,� said Kathleen Ruane, senior legislative counsel for the American Civil Liberties Union. “Our concern is that a domestic terrorism statue will actually be used more often to target communities of color.�

The roots of domestic extremism go too deep to be mitigated by law enforcement alone, Ruane said.

Our government has a discouraging track record of targeting political groups that are out of the mainstream or considered too radical by those in power. Extremism is in the eye of the beholder, and therefore it’s essential that we preserve our 1st Amendment rights. But whether you’re far right or far left, violence warrants accountability, and we shouldn’t shy away from that.

The Office of the Director of National Intelligence released a report in March assessing the dangers posed by domestic actors, which noted that, compared to other categories of extremists, racially or ethnically motivated extremists are most likely to commit acts of mass violence. We’ve seen this before, as when Patrick Crusius targeted Latinos in El Paso in 2019, or when Robert Bowers opened fire in a synagogue in Pittsburgh one year before that.

We need a federal law to criminalize domestic terrorism, which LaFree called the most serious challenge to our democracy since the Civil War. Yes, a statute like this would be subject to abuse, but that’s a worthwhile risk that we can be prepared for. Civil rights organizations such as the ACLU and the Brennan Center for Justice are well aware of law enforcement’s tendency to target minorities and will be able to respond quickly to overreaches of power.

Ultimately, the concern that a federal domestic terrorism statute could be misused by authorities doesn’t compare to the imminent threat of violence posed by right-wing extremists. The FBI released an unclassified document in June warning that domestic extremists who adhere to the QAnon conspiracy theory could become more violent in the immediate future.

Lives have already been lost, and the alarm bells continue to ring. We don’t know if or when the next domestic extremist attack will come, but if we establish a federal law against domestic terrorism now, we can face the threat head-on.