President-elect Joe Biden referred to the Trump supporters who assaulted and ransacked the Capitol as “domestic terrorists,” but his incoming administration has yet to decide what new laws, if any, it needs to address domestic terrorism.
The Biden-Harris campaign website states that a Biden administration will “work for a domestic terrorism law that respects free speech and civil liberties, while making the same commitment to root out domestic terrorism as we have to stopping international terrorism.” But free-speech and civil rights groups such as the American Civil Liberties Union have strongly opposed the idea of a domestic terrorism law out of concern that future administrations, or law enforcement, might abuse such a statute.
“Decades of experience have shown how law enforcement uses broad terrorism-related authorities to target and surveil Black and brown people, including those engaged in protest,” said Hugh Handeyside, a senior attorney for the ACLU. “A new domestic terrorism statute, even if intended to protect communities of color, would inevitably be used to harm them.”
A person familiar with the Biden team’s thinking denied that the pledge on the campaign website amounted to a promise to seek a specific new law. “It was intended to be a commitment to explore how legislation can help on this issue, but it wasn’t a commitment to a particular type of law,” the person said.
But four other people with direct knowledge of the incoming administration’s behind-the-scenes discussions with the ACLU and other groups over the last few months said Biden’s team has backed off its plans to pursue a potential statute. “The real concern is that it won’t withstand constitutional challenges because of the First Amendment,” said another person working with the Biden team.
Some from Biden’s team who initially pushed for a new law now say other counterterrorism strategies may better accomplish the same goals but receive less pushback and face fewer civil liberties challenges.
There are at least two types of possible domestic terrorism statutes. One would mirror the current definition for international terrorism and involve designating groups as domestic terrorist organizations, thus criminalizing association with them. Such an approach would run up against challenges based on the First Amendment, which guarantees freedom of speech and association.
For that reason, this sort of statute is not under serious consideration, according to the person familiar with the Biden team’s thinking. “The designation idea, it’s not something getting a lot of focus right now — it’s so fraught,” the person said.
Another option, advocated by Mary McCord, former acting assistant attorney general for national security, is a statute that categorizes politically motivated violence as domestic terrorism, with potentially stiffer penalties than similar offenses that are not politically motivated, in much the same way that hate crime legislation encompasses violent crimes motivated by racial or other hatred. “Essentially, you have to have an underlying crime, but it would be punished as domestic terrorism if it was with this intent to intimidate or coerce” a government or civilian population, she told Yahoo News.
Such a statute would fill a gap, according to McCord. “None of our terrorism acts apply to mass shootings or vehicle rammings unless they’re tied to a foreign terrorist organization,” she said. “And yet mass shootings are the most common type of terrorist attack [in the United States], and car rammings are really kind of climbing up there as well.”
The Biden team has not decided against this sort of law but would prefer to wait until it can see how things look once it is in power, according to the person familiar with the team’s thinking. There are worries that even a narrowly written law might be abused by a future administration.
“Attaching criminal sanctions specifically to acts of domestic terrorism is something that … deserves the full visibility of being in government, seeing the threat, seeing the response, thinking through how it could be mishandled by some future administration,” the person said, noting the inherent tension in trying to combat a largely white supremacist threat without creating legal tools that might be used in discriminatory ways against minority populations under future administrations.
Despite her support for a law that focuses on terrorist acts, McCord said she did not view the storming of the Capitol by Trump supporters on Jan. 6 as a “major rallying cry” for a domestic terrorism statute, because there are already very serious offenses on the books that accurately depict the crimes committed.
The problem with prosecuting a terrorist murder in the same way as any other murder is that the word “murder” alone “doesn’t condemn it the way it needs to be condemned as ‘terrorism,’” McCord said. “But what happened last week was insurrection, and [the offenses of] insurrection and seditious conspiracy do reflect that it’s an attempt to overthrow the government or to prevent the government from functioning the way it should function.”
Michael Sherwin, the acting U.S. attorney in the District of Columbia, struck a similar tone during a Tuesday press conference. After commenting that he didn’t like “the tyranny of labels” when asked whether some of the Jan. 6 crimes amounted to domestic terrorism, Sherwin said there were already “plenty of federal charges to address all of this conduct, from felony murder related to the possession and use of destructive devices to seditious conspiracy.”
The Justice Department formed a task force of senior prosecutors Monday whose “only marching orders” are to build sedition and conspiracy charges “related to the most heinous acts that occurred in the Capitol,” Sherwin said. Convictions on such significant charges come “with prison terms of up to 20 years,” he added.
This was a point echoed by Jamil Jaffer, a former chief counsel of the Senate Foreign Relations Committee. “There are enough charges that I bet you if you ran consecutive sentences, some of these guys could be in jail for a really long time,” he said.
Jaffer cautioned against rushing to create a new domestic terrorism law. “The answer isn’t always to create a new crime,” he said. “It’s not like anybody who did what they did at the Capitol … would have been shamed out of doing it if they thought domestic terrorism was a crime.”
Like Handeyside, the ACLU lawyer, Jaffer said any discussion over whether to create a domestic terrorism statute must be informed by U.S. history. “The reason we are very cautious about domestic activities and what we call them and how we investigate them is because we want to avoid the abuses of the 1960s, where we investigated Joan Baez and Martin Luther King and the like,” he said. “We want to be cautious about that. We don’t want to use these tools for purely political purposes.”
Biden’s advisers are aware of and considering these arguments, according to the person familiar with the Biden team’s thinking. “Those concerns are being heard,” the person said, adding that the president-elect is bringing “some of the voices who’ve been critical to this whole conversation,” such as Vanita Gupta and Kristen Clarke, into senior positions in his Justice Department.
As an alternative to drafting a new domestic terrorism law, the Biden team is discussing a proposal to deploy prosecutorial teams from the Justice Department to states to assist prosecutors in building cases, said lawyers involved in the conversation. Several states have their own domestic terrorism statutes, and federal support could be given to leverage those laws, they said.
Even if it decides to pursue a domestic terrorism statute in the long run, the Biden team that takes charge Jan. 20 knows it has to meet the immediate domestic terrorism challenge by using the laws and other resources at hand now.
“It’s a day one problem,” said the person familiar with the Biden team’s thinking, “and the new administration is going to begin tackling it with day one tools.”
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