A senior Justice Department official opened the door to seeking new legislative authorities to pursue domestic terrorism, a step the Biden administration has yet to entertain since the January 6 insurrection and something civil libertarians have warned against.
The prospect of expanded investigative and prosecutorial tools arose during a Friday briefing with reporters in which multiple Justice Department and FBI officials described an expansive array of authorities already available to them.
While there is no domestic terrorism statute, and U.S. officials can not designate a domestic group for sanction like they can a foreign one, one senior official acknowledged that statutory definitions of domestic terrorism “expand a lot of authorities we can use,” such nationwide search warrants, expanded law-enforcement access to tax and educational records, and harsher sentencing.
But on Friday, a senior Justice Department official suggested the administration would consider seeking a domestic-terrorism statute as well.
“Obviously that’s going to be a policy question for the folks that are coming in” to the administration, said the senior official. “I’m sure we’ll run a data-driven process to see whether we need additional legislative authorities in this area.”
That has been a step the new administration has yet to take. On Tuesday, Sen. Mark Warner, the Virginia Democrat who chairs the Senate intelligence committee, told The Daily Beast’s “New Abnormal” podcast that the FBI has not sought additional powers to confront white supremacist or far-right violence. The FBI did not challenge that characterization, telling The Daily Beast: “The FBI defers to the legislative branch to work with leadership at the Department of Justice on whether any additional legislation is required.”
The prospect of new counterterrorism powers has alarmed civil libertarians and others who fear that such authorities are both unnecessary and rife for abuse to criminalize extreme political views, rather than pursue people who have planned or committed acts of violence. Pointing to the excesses of the FBI during the 20-year War on Terror, they also fear that expanding those law enforcement, intelligence, and prosecutorial powers will permit future presidents to use them against marginalized groups. Former President Donald Trump, for instance, slandered Black Lives Matter activists as terrorists.
“We should not lose sight of our disgust at the double standards employed against white protesters and Black ones, or against Muslims and non-Muslims,” Rep. Ilhan Omar (D-MN) told The Daily Beast in the week after the Capitol insurrection. “But at the same time, we must resist the very human desire for revenge—to simply see the tools that have oppressed Black and Brown people expanded… The answer is not more laws expanding the surveillance and security state.”
On the call, Acting Deputy Attorney General John Carlin pledged that the Justice Department was “prioritizing the detection, disruption, and deterrence of domestic terrorism and violent extremism in all its forms.” Carlin repeatedly referenced continuities in such prioritization with the post-9/11 pursuit of jihadist terror at home, such as taking an “intelligence-led” approach, “as we have since 9/11.”
Across the government, and to include Director of National Intelligence Avril Haines’ forthcoming “comprehensive threat assessment” of domestic terrorism, Carlin said the administration was looking at expanding information sharing, to prevent radicalization and disrupt “extremist networks.” As many officials have since 9/11, Carlin promised the protection of civil liberties would remain a priority.
Carlin said the Justice Department would soon issue guidance ensuring its National Security Division “has insight into and can track all cases with a nexus to domestic terrorism” or violent extremism, in the hope of generating leads in cases across jurisdictions.
“This approach recognizes that success is not the prosecution of a violent extremist or terrorist after the fact when families have lost loved ones and are grieving,” Carlin said. “Success is a disruption before violence occurs and that always has to be the goal of our counterterrorism work.”