‘Tip of the iceberg’: Lawmakers mull domestic terrorism legislation after Capitol riot, other violence
WASHINGTON – The Capitol riot Jan. 6, along with a Michigan kidnapping plot and a mass shooting in Nevada, sparked a congressional debate over whether to plug a hole in federal criminal law by outlawing domestic terrorism like foreign terrorism.
Prosecutors say the advantage to approving such legislation would allow them to charge crimes with more serious penalties than assault or entering a restricted building, two common charges in the Capitol riot.
But civil libertarians have raised concerns about how such criminal law would be wielded. Lawmakers sought to avoid criminalizing peaceful political protests allowed under the First Amendment to the Constitution or gun ownership under the Second Amendment.
State prosecutors told a Homeland Security subcommittee hearing Wednesday their laws could serve as models for federal legislation.
Michigan Attorney General Dana Nessel said a 2002 anti-terrorism law that created a 20-year penalty for domestic terrorism allowed the state to charge eight leaders and associates in a plot to kidnap and kill Gov. Gretchen Whitmer while the FBI had no similar federal charges available. The U.S. Attorney’s Offices charged six suspects in the same investigation.
“While Michigan has a robust array of laws to address domestic terrorism, many states and federal prosecutors do not,” Nessel said.
The federal government has charged six people with conspiring to kidnap Michigan Gov. Gretchen Whitmer, per newly unsealed court records. (Photo: AP)
In Las Vegas, a gunman killed 60 people and injured nearly 1,000 on Oct. 1, 2017. Nevada Attorney General Aaron Ford said if the gunman had lived, he could have been charged under a state law that defined acts of terrorism including attempted sabotage, coercion or violence intended to “cause great bodily harm or death to the general population.”
FBI Director Christopher Wray told the Senate Judiciary Committee earlier this month that there was no federal law against domestic terrorism and no list of terrorist organizations, such as there is for foreign groups such as Al Qaeda or the Islamic State or countries labeled as sponsors of terrorism.
“That siege was criminal behavior, plain and simple,” Wray said of the Jan. 6 Capitol riot. “And it’s behavior that we, the FBI, view is domestic terrorism. It’s got no place in our democracy and tolerating it would make a mockery of our nation’s rule of law.”
The number of FBI investigations into domestic terrorism has doubled in the last three years, he said.
The Department of Homeland Security announced Wednesday it would distribute $20 million in grants to help local law enforcement prevent terrorism.
But Nessel said her office needs funding to investigate and prosecute terrorism cases that have grown “exponentially” in recent years. Her office filed charges in five cases of threats against public officials in the last six months.
“That is honestly just the tip of the iceberg,” Nessel said.
Rep. Elissa Slotkin, D-Mich., organized the hearing as head of the subcommittee on intelligence and counterterrorism because she is drafting legislation to help the Department of Homeland Security better understand the threats.
“The single greatest threat to our country right now is domestic terrorism,” said Slotkin, a former CIA analyst.
Rep. Adam Schiff, D-Calif., proposed legislation in 2019 to criminalize domestic terrorism after attacks at the Tree of Life Synagogue in Pittsburgh and the Emanuel African Methodist Episcopal Church in Charleston, S.C., but the bill went nowhere.
The Michigan anti-terrorism law criminalized acts of domestic terrorism, material support, hindering prosecution of terrorism, communicating true or false threats, disrupting telecommunications, or obtaining blueprints or security diagrams of targeted buildings such as schools, stadiums or houses of worship.
“To fully combat domestic terrorism across the country, changes to federal criminal laws must be made,” Nessel said. “If states are doing the heavy lifting, they must be adequately resourced.”
In this October 2017 photo take just days after the mass shooting in Las Vegas, a woman prays beside 58 white crosses laid out in honor of for the victims those killed when a gunman opened fire from the 32nd floor of the Mandalay Bay hotel. (Photo: ROBYN BECK, AFP/Getty Images)
But distinguishing between protected protests and terrorism raised concerns.
Rep. Jefferson Van Drew, R-N.J., quoted a voicemail his wife received at home threatening them with violence and asked whether the caller could be prosecuted as a terrorist.
Nessel said she would. People have a right to protest government policies, but not to threaten violence, she said.
“Whether you do that to your neighbor next door or an elected official, it’s illegal,” Nessel said. “We have been very aggressive in terms of making sure people understand the difference between what is acceptable First Amendment protected activity and what is a crime.”
Rep. Sheila Jackson Lee, D-Texas, asked whether Michigan’s law could be wielded against Black Lives Matter protesters last summer, in addition to rioters at the Capitol.
Ford, who is Black, said the question raised legitimate concerns about bias in how charges are pursued in law enforcement. He suggested that Oklahoma City bomber Timothy McVeigh might have faced terrorism charges had he not been white.
But Ford cautioned that changes in federal law should balance safety and security against individual rights to free speech and bear arms.
“There are no easy fixes in the fight against domestic terrorism,” Ford said.
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