“many in law enforcement are opposed to designations, but not because they don’t think there’s a problem. Former FBI agent Tom O’Connor, who worked domestic terrorism cases for 20 years before retiring in 2019, said he is opposed for First Amendment reasons, but he believes it is vital for the U.S. to implement its own domestic terrorism statute. Without a statute, O’Connor said, it is much harder for law enforcement to track domestic terrorism and assign resources to fight it.
“You can’t tell me how many incidents of domestic terrorism have taken place in United States, because you would have to review every act of violence, to tell me if there was a political agenda behind that violence,” O’Connor said. “Because people have been charged with gun charges, other violent actions, but they’re not charged as domestic terrorists, it is almost impossible to correlate that information into a system that can tell you what the problem actually is.””
“the FBI already has unbelievably sweeping authority to surveil individual Americans or domestic groups without ever having to go before a judge to get a warrant.
Under an investigative category known as an assessment, FBI agents can search commercial and government databases (including databases containing classified information), run confidential informants, and conduct physical surveillance, all without a court order.”
“There are existing federal laws that criminalize domestic terrorism. The Patriot Act, which was enacted in the wake of 9/11, defined domestic terrorism as criminal acts that are “dangerous to human life” and are “intended to intimidate or coerce a civilian population or to influence the policy of a government by intimidation or coercion” or “to affect the conduct of a government by mass destruction, assassination or kidnapping.” Experts say that the storming of the Capitol fits that definition.
But no existing laws make domestic terrorism a “chargeable offense on its own” with attached criminal penalties, as the Congressional Research Service recently noted. It can, however, be an element of other federal crimes, such as assault and firearms offenses, and result in an enhanced sentence.
Some have argued that’s not enough to effectively prosecute domestic terrorism. Richard Zabel, a former deputy US attorney overseeing terrorism prosecutions in New York, wrote in the Washington Post that current law “limits our societal condemnation of the defendants and their dangerous ideologies.” The threat of domestic terrorism — which was not prioritized by former President Donald Trump, who repeatedly refused to denounce white nationalists and told those who stormed the Capitol, “We love you” — would be taken more seriously if it were easier for prosecutors to charge people as domestic terrorists, Zabel and others have argued.
But civil rights groups, including the Center for American Progress, a progressive think tank, are raising concerns that the harms of enacting those legal authorities outweigh the benefits: They argue it would enable law enforcement to target political dissidents, and those in marginalized communities who are frequently the victims of domestic terrorism, in violation of their constitutional rights.
“Such a law is not needed given the broad reach of existing criminal statutes,” Mara Rudman, executive vice president for policy at the Center for American Progress, said in a statement. “It will not solve the problem of domestic extremism and is likely to lead to unintended harms. … As lawmakers explore options for cracking down on these lawless and hateful acts, they should take care to ensure that the solutions do not create new risks for the communities they are trying to protect.””