Congress To Consider Domestic Terrorism Bill

Rep. Adam Schiff (D-Calif.) introduced legislation that would make it possible to prosecute white supremacist attacks, such as the shooting in El Paso, as acts of terrorism.

House Intelligence Committee Chairman Adam Schiff (D-Calif.) on Friday introduced a bill that would criminalize domestic terrorism attacks.

The bill would create a federal domestic terrorism crime and could be applied to attacks like mass shootings in El Paso, Texas; Pittsburgh, Pennsylvania; and Charleston, South Carolina, Schiff said in a statement.

“Even though Americans today are more likely to be killed by white-supremacists than international terrorism organizations while on American soil, treating these terrorist acts, including racist or anti-Semitic shootings, differently than other acts of terrorism makes the public take it less seriously,” he said.

Domestic terrorism is defined under federal law, but there are currently no criminal penalties associated with the definition. Federal law defines domestic terrorism as actions dangerous to human life that:

  • violate federal or state criminal law

  • appear intended to intimidate or coerce civilians; to influence government policy by intimidation or coercion; or to impact government conduct by mass destruction, assassination, or kidnapping, and

  • occur within the U.S.

That means that, with the exception of about 50 hyperspecific situations — such as destroying an airplane, taking a hostage, or attacking a mass transportation system — most acts of domestic extremism are not prosecuted as terrorism.

In order to bring domestic terrorism charges under Schiff’s bill, the attorney general or their deputy would have to provide a written certification that the offender intended to “intimidate or coerce a civilian population or to influence government policy through intimidation,” the congressman said. The Privacy and Civil Liberties Oversight Board would be required to create a public report on the “civil liberties implications of the statute” — but not until four years after the bill’s passage.

Unlike the international terrorism regime, Schiff’s domestic terrorism bill would not establish a list of domestic terrorism organizations — a provision that has made it easy for the feds to prosecute individuals with even minimal ties to groups like al-Qaeda and ISIS. Creating a similar list for domestic groups would almost certainly be challenged in court as a violation of the First Amendment.

As HuffPost first reported after the violence in Charlottesville, Virginia, two years ago, Justice Department officials have long discussed whether to push Congress to pass new domestic terrorism legislation. The FBI Agents Association has lobbied Congress to pass such a bill, and most Americans ― once informed that there’s no criminal federal statute that broadly outlaws domestic terrorism ― say that should change.

House Intelligence Committee Chairman Adam Schiff (D-Calif.) has introduced a bill that would criminalize domestic terrorism attacks.
House Intelligence Committee Chairman Adam Schiff (D-Calif.) has introduced a bill that would criminalize domestic terrorism attacks.
Joshua Roberts / Reuters

The argument in favor of creating a domestic terrorism bill is two-fold: The lack of a broad domestic terrorism statute has historically made federal officials hesitant to call domestic terrorists what they are, and it has also meant that federal authorities have often relied on a piecemeal strategy of gun and drug charges to prosecute domestic extremists.

That has sometimes led to relatively short sentences: A South Carolina man who wanted to commit a “fucking big-scale” attack “in the spirit of Dylann Roofand bought a gun from an undercover FBI agent was sentenced to less than three years in prison. A white supremacist arrested for lying to the FBI about his gun after he discussed a plot to kill Muslims with his fellow white supremacist cousin after the terrorist attack in New Zealand earlier this year was released from custody on time served after spending just three months behind bars. A D.C.-based neo-Nazi named Jeffrey Clark who praised the racist acts of violence in Pittsburgh and Charleston and had attended several neo-Nazi rallies was hit with an obscure charge that prohibits possessing a firearm while using or addicted to a controlled substance and took a plea deal and will likely be released next month. Other attempts by the feds to prosecute white supremacists through creative interpretations of existing federal statutes have been tossed out of court.

Civil liberties advocates say it’s a good thing that prosecutors don’t have an easy way of going after people who are thinking about committing a crime. It is already against the law to conspire to commit violence. And prosecutors do have the ability to charge people with making racist threats online.

The current problem, according to former FBI agent Michael German, is a matter of priorities versus statutory authority. The FBI and Justice Department view eco-terrorists, anti-Trump protesters and so-called “Black Identity Extremists” as more of a threat than white nationalists, German said.

Empowering the attorney general to decide what constitutes terrorism is a “worsening of the situation we have now — where excessive resources are used to target people like anti-Trump protesters with the J-20 case while providing no additional resources to go after white supremacists,” German said.

Some of the clearest cases of domestic terrorism ― like the slaughter of black churchgoers in Charleston in 2015 and the massacre of Jewish worships in Pittsburgh last year ― have resulted in heavy sentences and federal hate crime charges that are meant to differentiate attacks motivated by hate. But supporters of a domestic terrorism law, like former top DOJ national security official Mary McCord, insist that these attacks should be treated under the law with the same “moral equivalence” as acts of international terrorism.

It is true that the federal government has responded more aggressively to acts of terror associated with groups like al-Qaeda or ISIS than to violence from white supremacists — which are responsible for more deaths in the U.S. But replicating the flawed international terrorism statute, which has resulted in the targeting and entrapment of young Muslim men, is exactly what worries civil liberties advocates.

“We shouldn’t be using tools that law enforcement has long used to suppress and oppress minorities to address the scourge of white supremacy,” Hina Shamsi, the director of the ACLU’s national security project, told HuffPost earlier this year.

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