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 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.