The Washington PostDemocracy Dies in Darkness

Opinion No, we do not need a new law against domestic terrorism

Riot fencing and razor wire reinforcing the security zone around the Capitol on Jan. 19. (J. Scott Applewhite/AP)

Cynthia M. Deitle is the Matthew Shepard Foundation’s director of civil rights reform and a former special agent with the FBI. Wade Henderson serves as interim president of the Leadership Conference on Civil and Human Rights.

The worst way to respond to the Jan. 6 assault on the Capitol would be to further undermine the democratic ideals that were under attack that day. The civil and human rights community is united in opposition to federal legislation that would create a new domestic terrorism charge, as some members of Congress and the Biden administration are considering. Such a change could be turned unfairly against communities of color, religious minorities and political dissenters. We must hold the violent insurrectionists accountable now using the federal criminal statutes that have long been available to address white-nationalist violence and give no cover for the failure to use these tools in the past.

There must be a strategic response to the attempt to disrupt our democracy. The failure to prepare for violence that had been telegraphed weeks in advance makes it clear that we need a more effective plan for dealing with white-supremacist bigotry and white-nationalist ideology.

But as civil rights advocates with decades of experience, both within the FBI and the civil rights movement, we know all too well that our country has a long history of law enforcement powers being used to expand racial profiling, surveillance and discrimination against communities of color.

In the wake of the terrorist attacks of Sept. 11, 2001, the USA Patriot Act and related policy changes often targeted Arab and Muslim Americans, creating a climate that fostered suspicion, discrimination and hate crimes. In the years since, we have witnessed a long erosion of due process in the immigration enforcement system. We have seen federal law enforcement investigate Black activists organizing for racial justice as “Black identity extremists.” And we know the systemic racism that fueled Cointelpro, the FBI’s unlawful domestic surveillance operation that was used to try to discredit the Rev. Martin Luther King Jr. and other civil rights leaders, continues to shape our criminal legal system. We should not repeat these mistakes.

So how should we think about the white-nationalist threat, and how should we respond to it?

First, we should recognize that white-supremacist violence is a grave threat to national security, as the FBI, the Department of Homeland Security and independent researchers have documented. Any doubt about the nature and intensity of that threat should have been put to rest by the murderous mob that paraded Confederate flags through the overrun Capitol and raised a lynching gallows on the Capitol lawn.

We must give this threat the priority it deserves. That would include a plan to document and deal with the extent of white-supremacist infiltration in law enforcement and the military.

Second, we should use the tools we have in hand. There are more than 50 federal criminal laws on the books that deal with terrorism as well as others relating to hate crimes, organized crime and violent crimes. FBI policy has historically instructed agents to open a parallel domestic terrorism investigation when a suspect in a hate crimes investigation “has a nexus to any type of white supremacist extremist group,” especially where it is unclear whether the defendant acted alone and to gather more evidence about motive.

We do not need new laws; we need the resources and will to enforce the laws we have.

Third, we should resist the urge to “do something” if that something will cause further harm to communities that already suffer disproportionately from interactions with the criminal justice system.

A recent letter signed by more than 150 civil and human rights organizations urged members of Congress to oppose legislation creating a new domestic terrorism charge or a list of designated domestic terrorist organizations. The letter acknowledged “our nation’s long and disturbing history of targeting Black activists, Muslims, Arabs, and movements for social and racial justice.”

We are grateful that members of Congress have an intense interest in addressing the threat of white-nationalist violence that was directed squarely at them. We know that people of color, including lawmakers, have long experienced the violence that was on display that day.

Like law enforcement, members of Congress have powerful tools at their disposal. They can use their constitutional appropriations and oversight responsibilities to provide resources, conduct investigations and hold hearings that model transparency and bring accountability to the federal response.

The Biden administration has signaled its intention to address the existence and effects of systemic racism in government agencies. That must include a willingness to ensure that racism and other forms of bias do not corrupt the way that criminal investigations are selected and conducted. They must use the tools already at their disposal to hold violent white nationalists accountable.

The administration must not undermine these important efforts by supporting unnecessary legislation that undermines our national ideals.

Read more:

The Post’s View: We must recognize the sacrifice of the officers who took their lives after Jan. 6

Greg Sargent: The post-Trump fumigation takes an important new turn

Edward B. Foley: Prosecuting Trump for the Capitol riot will be difficult — but not impossible

Karen Attiah: The media had a role to play in the rise of Trump. It’s time to hold ourselves accountable.

Cori Bush: This is the America that Black people know

The Jan. 6 insurrection

The report: The Jan. 6 committee released its final report, marking the culmination of an 18-month investigation into the violent insurrection. Read The Post’s analysis about the committee’s new findings and conclusions.

The final hearing: The House committee investigating the attack on the U.S. Capitol held its final public meeting where members referred four criminal charges against former president Donald Trump and others to the Justice Department. Here’s what the criminal referrals mean.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6. Here’s what we know about what Trump did on Jan. 6.