New Laws Against Domestic Terrorism Are Unnecessary and Dangerous

Violent acts are already illegal, and new tools will inevitably be used against those who annoy the powerful.


There is no crisis, real or imagined, that government officials don't see as an opportunity to expand their authority and hurt their enemies. America's ongoing political tensions, which erupted on January 6 into the Capitol riot, have become an excuse for spurring the latest campaign against "domestic terrorism." But violent acts, it should be noted, are already illegal under existing law. New "anti-terrorism" tools will inevitably be deployed against those who annoy whoever is currently in office.

"I never expected that … when I returned to the Justice Department to be sworn in on my first day as Acting Deputy Attorney General, that to get to the building, I would have to pass through numerous checkpoints under escort of armed agents in a city under lockdown.  I never expected to have to walk through the Department of Justice hallways filled with hundreds of soldiers positioned to protect the Department from terrorists," Acting Deputy Attorney General John Carlin huffed during a February 26 briefing. "[W]e must make it known that the Department of Justice is prioritizing the detection, the disruption, and deterrence of the threat of domestic terrorism and violent extremism in all its forms."

That Carlin's statement came just days after Brian O'Hare, president of the FBI Agents Association, called for formally "making domestic terrorism a federal crime" provides ample evidence that those work in government see an opportunity to extend their reach and build in some job security. What could improve the prospects for such a law than the aftermath of a lethal outburst that frightened lawmakers? 

Sure enough, a proposed bill—the Domestic Terrorism Prevention Act of 2021—would do the job.

"Following the terrifying attack on the Capitol this month, which left five dead and many injured, the entire nation has been seized by the potential threat of more terrorist attacks in Washington and around the country," says sponsor Rep. Brad Schneider (D-Ill.). "Unlike after 9/11, the threat that reared its ugly head on January 6th is from domestic terror groups and extremists, often racially-motivated violent individuals. America must be vigilant to combat those radicalized to violence, and the Domestic Terrorism Prevention Act gives our government the tools to identify, monitor and thwart their illegal activities."

But there's little evidence that new legislation targeting domestic terrorism is needed at all.

"The FBI already has all the authority it needs to investigate and prosecute perpetrators of white nationalist violence," Faiza Patel of the Brennan Center for Justice pointed out during a 2019 push for such legislation. "Congress has enacted 51 federal crimes of terrorism that apply to entirely domestic acts and further prohibited material support toward the commission of these violent crimes."

Even advocates of domestic terrorism laws admit the point.

"To be clear, it is not that there are inadequate criminal statutes on the books," concedes former Acting Assistant Attorney General for national security Mary B. McCord. With regard to the Capitol riot, she admits that "even though there is not a crime called terrorism that applies to this, this would certainly fit within the definition of crimes intended to intimidate or coerce and influence a policy through intimidation or coercion."

But McCord complains that existing laws against ideologically fueled violence "fail to equate it under federal law, as it deserves to be equated, with the actions of ISIS-inspired terrorists who engage in violence in pursuit of their equally insidious goals."

So, the point of a new law is apparently to send a message. But it's a message that comes at a high cost.

"Throughout its history, the FBI has used its authorities to investigate and monitor political protesters and civil rights activists," Brenn Center's Patel added.

"The overwhelming tendency in domestic antiterrorism has been to use invasive and unconstitutional surveillance techniques to criminalize legitimate dissent," agrees former Sen. Russ Feingold (D-Wis.), who was the only member of the upper chamber to vote against the subsequently much-abused Patriot Act in 2001. "This history was a basis for the recent statement by 135 civil-rights and civil-liberties organizations, including the American Civil Liberties Union, Amnesty International and the NAACP, in opposition to any new domestic terrorism laws. I am proud to echo their call."

The potential for weaponizing efforts against domestic terrorism was illustrated when then-Attorney General Bill Barr insisted during last summer's riots that "the violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism" and promised federal intervention—often over the objections of state and local officials.

Since then, of course, political fortunes have reversed, and the White House is now held by Democrat President Joe Biden. Instead of the left-wing radicals who troubled Barr, Schneider's bill calls out "White supremacists and neo-Nazis." In their statements, Schneider and his allies troublingly broaden their concerns, warning of vaguely defined "extremists."

"[T]his is an issue that all Democrats, Republicans, independents, Libertarians should be extremely concerned about, especially because we don't have to guess about where this goes or how this ends," cautions former Rep. Tulsi Gabbard (D-Hawaii). She calls the proposed domestic terrorism bill "a very dangerous undermining of our civil liberties, our freedoms in our Constitution, and a targeting of almost half of the country."

Which half of the country is targeted will depend on who wields the authority to battle "domestic terrorism." Elections come and go, but laws remain to be turned by those in office against whoever is out of favor. And, if terrorists can't be found to justify expanded powers, perhaps they'll be made.

"Indeed, in some cases the Federal Bureau of Investigation may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target's willingness to act," Human Rights Watch reported in 2014 of existing laws against terrorism.

All of this to target acts that even advocates of new laws admit are already illegal under existing legislation. The United States doesn't need more laws against "domestic terrorism," it needs to prosecute those who violently attacks others, to respect the free speech rights of people who anger the powerful, and to reject government officials' self-serving calls for job security.