The expected release of the strategy comes after the White House said Tuesday that it has completed a sweeping assessment of the threat posed by domestic violent extremism, an issue that took on new urgency after the January 6 assault on the Capitol by supporters of Trump who were trying to overturn President Joe Biden’s election victory.
But there is one key question that the strategy document will not answer: where the Biden administration stands on the prospect of creating new laws specifically tailored around domestic terrorism issues, said a source familiar with the strategy.
Biden has emphasized that tackling domestic extremism is a top priority for his administration and has gone out of his way to acknowledge something his predecessor would not — that White supremacists are the greatest domestic terror threat facing America.
But the question of whether new laws should be passed to address the issue is also a politically thorny topic for the Biden administration, as any recommendations or policy steps aimed at detecting and disrupting homegrown plots will be heavily scrutinized by civil liberties groups and privacy hawks, who are generally resistant to increasing government monitoring of US citizens.
The debate over domestic terrorism legislation has intensified in the aftermath of the January 6 assault on the Capitol, especially since many of the rioters who breached the complex that day are unlikely to serve jail time. While some members of militia groups like the Oath Keepers and the Proud Boys are facing conspiracy charges related to the attack, to date most of the rioters have been charged with lesser penalties like assault or trespassing.
The Department of Homeland Security has also repeatedly warned that the kinds of right-wing extremists who stormed the Capitol continue to pose a significant threat and could carry out more violence in the coming months. The intelligence community has also assessed that domestic violent extremists “motivated by a range of ideologies and galvanized by recent political and societal events in the United States pose an elevated threat to the Homeland in 2021.”
The January 6 attacks revived a debate within Congress over whether to make domestic terrorism a federal crime, which would allow prosecutors to bring more serious charges against homegrown extremists. And Biden had promised on his campaign website that his administration would “work for a domestic terrorism law that respects free speech and civil liberties.”
But lawmakers on both sides of the aisle are hesitant to address this threat through new laws. There is a bipartisan concern that underscores the political sensitives around perceived government overreach.
Given those complexities, and the fact that the Justice Department’s political leadership — particularly Deputy Attorney General Lisa Monaco and Associate Attorney General Vanita Gupta — have only just been confirmed and have not had a chance to extensively review the issue, the strategy document will not make a recommendation on legislation. It will instead be a broader state of play about the current legal environment and the steps that need to be taken within the current framework to better address domestic extremism, the source familiar with the matter said.
Katrina Mulligan, the managing director for national security and international policy at the Center for American Progress, said she does not view that as a shortcoming of the strategy.
“There is nothing that would divide progressives more right now than a recommendation for new legislative authorities,” she said, pointing to progressives’ wariness of giving police more expansive surveillance and enforcement powers. “Especially at a moment when trust in law enforcement is at an all-time low in many communities, there is a lot of reason to question the usefulness and long-term viability of a statute like that.”
The strategy will, however, recommend “a range of things that promote public safety without infringing on political expression or freedom of association,” said a White House official, who noted that the interagency working group has been examining how to increase resources and training for law enforcement, stymie online recruitment and radicalization, and protect against insider threats within federal agencies.
“We have covered the issue, I would say, as an interagency expert group. And we have a sense of where we can do better,” the official said.
Some lawmakers, like Democratic Reps. Adam Schiff of California and Elissa Slotkin of Michigan, have made it a top priority to determine what legal and regulatory tools are available to tackle the growing threat. There is no federal law, for example, that would allow the government to designate a particular group as a domestic terrorist organization like it can with foreign terrorist organizations, and thereby charge someone with providing material support to that group.
Schiff, the chairman of the House Intelligence Committee, told CNN on Tuesday that the panel “look[s] forward to reviewing the Administration’s report, and receiving input on what our broader response to domestic terrorism should be from the Administration, outside experts, and civil liberties groups.”
“The Intelligence Committee remains focused on the threat of domestic terrorism, an issue that has taken on even greater concern in the wake of January 6,” he said in a statement. “As part of studying that issue, we are continuing to evaluate whether current statutes and authorities are sufficient to handle the threat, or how any new authority might address potential misuse against political opponents or minority communities.”
The White House official told CNN that a wide range of outside groups had been consulted as part of the domestic terrorism review. A new report on combating White supremacy that was produced by the McCain Institute and the Center for American Progress was briefed to the White House as part of the review, for example, according to another person familiar with the matter.
Throughout the review, different groups have had different opinions on the idea of creating a statute that would criminalize domestic terrorism — the American Civil Liberties Union and Leadership Conference, for example, have cautioned against developing new domestic terrorism laws that could give the government overly broad surveillance authorities.
But Brett Steele, who serves as the senior director for preventing targeted violence at the McCain Institute, said in congressional testimony in 2019 that lawmakers have “the ability to empower law enforcement to tackle this problem head-on and call this scourge by its proper name by creating a federal domestic terrorism charge.”
“Passions are strong in this area, even on the legislative question,” the White House official said.