What in the world is Adam Schiff thinking with his domestic terrorism bill?
Representative Adam Schiff (D-Calif.), the Chairman of the House Intelligence Committee, doesn’t trust Attorney General William Barr. Schiff recently called Barr “the second-most dangerous man in the country,” for his expansive view of executive power and his apparent willingness to serve President Donald Trump’s personal interests rather than the nation’s. So why has Rep. Schiff introduced a bill that would give Attorney General Barr arbitrary discretion to lay domestic terrorism charges against political opponents of President Donald Trump for conduct as inconsequential as mere threats and vandalism?
The “Confronting the Threat of Domestic Terrorism Act,” which Schiff introduced last week, would dangerously expand the types of crimes that the federal prosecutors could charge as domestic terrorism if the Attorney General certified they were intended to intimidate a civilian population or influence government policy. Protesters, by their nature, attempt to influence government policies. Given the Justice Department’s history and President Trump’s recent rhetoric, such groups will be the most likely target of this law if it passes.
Schiff cited three white supremacist attacks — the 2015 murder of nine African Americans at the Mother Emanuel Church in Charleston, the 2018 murder of eleven Jewish worshipers at the Tree of Life Synagogue in Pittsburgh, and last month’s slaying of 22 mostly Latinx shoppers at an El Paso Walmart — as incidents that justified this legislation. But federal prosecutors don’t need a new law to prosecute these cases or other deadly white supremacist crimes, as I explained in a report published last year.
The Justice Department won hate crimes convictions against Dylann Roof for the Mother Emanuel slayings, for which he was sentenced to death. Robert Bowers is likewise charged with capital crimes for the Pittsburgh shooting. John F. Bash, the U.S. Attorney for the Western District of Texas, made clear that the El Paso mass shooting fit the definition of domestic terrorism that Congress established in law with the USA Patriot Act, and that the investigation would be classified and prioritized as such.
Since the El Paso attack, the FBI has peremptorily arrested a half-dozen alleged white supremacists for planning attacks, demonstrating that sufficient legal authority already exists.
The fact is that Schiff’s bill would do nothing to increase the possible penalties for these crimes or the aggressiveness with which prosecutors could pursue them.
Where the Schiff bill does expand the law is in giving the Attorney General the power to charge any threat of violence or damage to property that creates a substantial risk of serious bodily injury as an act of domestic terrorism. So using heated political rhetoric during a planning meeting or breaking a window during a protest could result in charges carrying a 30-year prison sentence.
If you think this possibility is absurd, keep in mind that in 2012 the Justice Department put two political activists in jail for months for refusing to testify before a grand jury about colleagues who may have participated in a Seattle May Day protest in which a federal courthouse window was broken.
In 2017, the Justice Department charged more than 200 protesters at an anti-Trump rally with felony charges for allegedly conspiring to riot because someone broke windows and lit a limousine on fire while they were in the general vicinity.
Prosecutors used selectively edited undercover recordings of protest planning meetings in which a speaker threatened to turn the inauguration into a “giant clusterf—” as evidence of a broad conspiracy.
The prosecutions failed in these cases, which may partly explain why the Justice Department and FBI have been seeking to expand their domestic terrorism powers. If they were intent on using these new powers to target far-right militants, they could have simply amended current Justice Department policies that de-prioritize the investigation and prosecution of hate crimes.
We don’t have to guess how the Trump administration would use the new powers provided in Schiff’s bill. The president has shown an eagerness to use the tools of state to punish his political enemies. His administration previously pressed Congress to make it easier to prosecute oil and gas pipeline protesters who engage in civil disobedience. Trump has stated that he does not see white supremacist violence as a serious problem, and instead tweeted that he is considering naming the anti-fascist resistance as a domestic terrorist organization.
Two Republican-sponsored bills in the Senate and House would expand domestic terrorism laws in essentially the same manner as Schiff’s bill. But Republicans who might trust Attorney General Barr with such a broad power might pause to consider how the FBI or a future Attorney General might treat their own supporters. A recently leaked FBI intelligence assessment named pro-Trump conspiracy groups like QAnon as a domestic terrorism threat, along with others who may hold views “at odds with official or prevailing explanations of events.”
It is easy for Congress to over-react in the aftermath of a tragedy, as it did in passing the Patriot Act after 9/11. It took more than a decade to learn that the Justice Department was interpreting a provision of the law so broadly that the government routinely collected the calling data of essentially every American, even though this dragnet was all but useless in uncovering terrorist plotting. Yet it remains on the books. Assuming that some future Congress will curb the abuses that will surely follow an expansion of our domestic terrorism laws under Schiff’s and other pending bills is not a strategy that will protect against racist violence.
Congress should instead focus on finding out why the Justice Department chooses not to prioritize these cases.
Michael German, a former Special Agent with the FBI specializing in domestic terrorism and covert operations, is a fellow with the Brennan Center for Justice’s Liberty and National Security Program. He is the author of Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent andDisrupt, Discredit, and Divide: How the New FBI Damages Democracy.