The finger-pointing started even before the violent rioters could be cleared from the U.S. Capitol on Jan. 6. The Capitol Police, the FBI and the departments of Defense and Homeland Security have been cited separately and collectively as potentially culpable for failing either to see the intelligence pointing to the assault on democracy and/or to act on what they should have known was coming.
Let's not allow selective recall by our elected officials to conveniently distract us from the reality that they, too, should have acted upon.
More recent reporting raises the specter of an inside job, in which sitting members of Congress may have facilitated or enabled leaders of the traitorous mob. Yet while Congress orders reviews and contemplates hearings, perhaps its investigations should also consider why its members never acted upon the warnings it has been getting for years.
Any awareness hasn't prompted Congress to close gaps in the law that would make investigative techniques, group designations and stricter sentences, which currently apply to international groups, available to root out and prosecute those who deserve to be labeled "domestic terrorists." Let's not allow selective recall by our elected officials to conveniently distract us from the reality that they, too, should have acted upon the alarms rung within their own chambers.
On May 8, 2019, the House Homeland Security Committee held a hearing about the domestic terrorist threat. During an exchange with Michael McGarrity, then the FBI's assistant director for counterterrorism, Rep. Yvette Clarke, D-N.Y., seemed surprised to learn that — unlike with international terrorist groups — our government still has no mechanism to designate a domestic group as a terrorist organization.
The transcript of the back-and-forth shows Clarke clearly indicating her concern that the FBI hadn't "dedicated sufficient personnel and resources" to address the threat and saying, "We don't even label our organizations as domestic terrorists."
During the same hearing, Brad Wiegmann, then the deputy assistant attorney general for national security, suggested that current hate crime statutes, which allow for harsher sentences when crimes are committed out of bias and discrimination, could be a model for a domestic terrorism law. But Congress didn't pass such a law or even debate one, depriving law enforcement of the same tools they use to successfully prevent attacks from international terrorist groups.
After an exchange with witnesses about the rising violent rhetoric on social media platforms and the need to do something about technology companies that permit such harmful posts, Rep. Kathleen Rice, D-N.Y., presciently noted, "We are getting a big red flag waving, and we are not able to act on that information in a timely fashion." And yet, Congress offered up no new regulations for the technology platforms that serve as extremist echo chambers amplifying hate speech, violent rhetoric and incendiary conspiracy theories; in other words, the kind of dangerous dialogue that fueled the Capitol riots.
It again reflects the glaring lack of understanding, even among our lawmakers, that there is still no law that allows anyone to be charged with "domestic terrorism."
The next month, the House Oversight Subcommittee on Civil Liberties and Civil Rights questioned law enforcement officials about what subcommittee members worried were disparate approaches to hate crimes compared to terrorism. That hearing didn't go too well.
One exchange, between McGarrity and Rep. Alexandria Ocasio-Cortez, D-N.Y., went viral. Ocasio-Cortez pressed McGarrity, the FBI's top counterterrorism official, about what she called "discrepancies" between the FBI's handling of violent white supremacists and its handling of violent Muslim extremists.
"There are holes, and there are gaps here," she said as she pointed out that Muslim perpetrators have been charged as "domestic terrorists," while white supremacists have avoided such charges. As their back-and-forth escalated, McGarrity tried to caution her that "some of the definitions we're using, I think we're talking past each other."
Because, while Ocasio-Cortez's statement is technically true, it again reflects the glaring lack of understanding, even among our lawmakers, that there is still no law that allows anyone to be charged with "domestic terrorism." The truth is that any "discrepancies" in prosecution are largely rooted in the laws as passed by Congress, not policy decisions made inside the FBI, a fact Ocasio-Cortez did acknowledge. In recent high-profile mass shootings and attacks that met the definition of terrorism by any standard, federal prosecutors were left to file charges like use of a firearm, possession of explosives and assault.
Likewise, after the recent riots at the Capitol, prosecutors are charging trespass, assault and destruction of federal property. If these people and the groups they are affiliated with were Muslim and motivated by religious fanaticism, they would face terrorism charges and potential life sentences. Moreover, if those hypothetical "terrorists" were affiliated in any way with a designated terrorist group, like Al Qaeda or the Islamic State, the FBI's use of proactive techniques might have been able to prevent the riots. "It could be our fault as Congress," Ocasio-Cortez said. Yes, it is. And no, nothing has been done about it.
After mass shootings in El Paso, Texas; Gilroy, California; and Dayton, Ohio, there were renewed calls to pass a domestic terrorism law that would provide the FBI with similar investigative techniques used to prevent acts of international terrorism following 9/11. Sen. Martha McSally, R-Ariz., and Rep. Adam Schiff, D-Calif., both proposed bills that would have addressed this threat while protecting civil liberties and free speech. Yet we still don't have such a law.
The Senate, like the House, cannot plead ignorance to the growing dangers of domestic terrorism and specifically of the threat posed by anti-government violent actors. In September, FBI Director Christopher Wray told senators: "The top threat we face from domestic violent extremists stems from those we identify as racially/ethnically motivated violent extremists (RMVE). RMVEs were the primary source of ideologically motivated lethal incidents and violence in 2018 and 2019 and have been considered the most lethal of all domestic extremists since 2001. Of note, the last three DVE attacks, however, were perpetrated by anti-government violent extremists."
Congress has come close to meeting the needs of law enforcement. Last fall, the House passed the Domestic Terrorism Prevention Act by a bipartisan voice vote. But Sen. Ron Johnson, R-Wis., blocked the bill from moving forward in the Senate.
I won't pretend that there aren't civil liberty and privacy concerns at stake. The possibility that a corrupt or overzealous president could designate his enemies as a terrorist group and order law enforcement to spy on them looms large in the imagination. But we can, and must, get this right.
A rigorous designation protocol requiring concurrence from multiple branches of government, along with oversight and reporting of investigative techniques, would be possible early steps to mitigate potential abuses. The Biden administration has already expressed uncertainty about the wisdom of a domestic terrorism law. But our nation, led by our Congress, needs to give law enforcement the tools it needs to protect our democracy — while we still have one.