The Leadership Conference on Civil and Human Rights sent the letter on Tuesday, which warned that if members of Congress increase law enforcement’s role in combatting white nationalist terrorism, this will only cause increased negative effects for minority communities that are “disproportionally impacted” by the legal system.
“We are concerned that a new federal domestic terrorism statute or list would adversely impact civil rights and — as our nation’s long and disturbing history of targeting Black Activists, Muslims, Arabs, and movements for social and racial justice has shown —this new authority could be used to expand racial profiling or be wielded to surveil and investigate communities of color and political opponents in the name of national security,” the letter reads.
In response to attacks on the U.S. Capitol Building on Jan. 6., Congress is considering a number of legislative measures that would expand law enforcement’s potential to bring justice to domestic terrorists. But civil rights organizations are arguing that additional legal mechanisms designed to bring justice to domestic terrorists would be severely dangerous for non-white people in the U.S..
“It’s a predictably misguided part of a decadeslong pattern. When white supremacist violence escalates, politicians often look to give law enforcement agencies more authority,” wrote Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, and Manar Waheed, ACLU senior legislative and advocacy counsel in an essay for NBC News.
According to the letter, one of the laws on the table is the Confronting the Threat of Domestic Terrorism Act introduced in 2019 by Rep. Adam Schiff (D-CA).
The act requires a public report from the Privacy and Civil Liberties Oversight Board detailing the civil liberties impact within four years of the law’s passage and prohibits the creation of a list of domestic terrorism organizations.
“In general, as we think about giving agencies new powers, it’s only prudent to consider not just the intended use, but the full range of possible uses, including unintended or undesirable ones that may seem improbable now. That’s especially important when dealing powers that would be applied inside the United States,” Adam Klein, chairman of the Privacy and Civil Liberties Oversight Board wrote in an email to Newsweek.
Line item precautions like these aren’t enough, according to the letter’s authors, because they don’t combat a decades-long history of white supremacy in the U.S. “These bills and others with similar provisions…will continue to be used as vehicles to target Black and Brown communities as they have done since their inception,” the letter says.
“There’s a history behind how broad laws are used and the civil rights community doesn’t want another broad law brought onto the backs of white nationalist violence that will be used to go after Black and Brown communities,” Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice said to Newsweek.
Some Trump administration policies accelerated the fact that domestic terrorism laws can inadvertently hurt communities of color, according to a report by the Brennan Center for Justice. Former President Donald Trump tripled the amount of federal spending for Countering Violent Extremism (CVE) programs, which are designed to proactively curb the growth of terrorism movements, during his term. These programs disproportionately targeted communities of color, including the Black Lives Matter movement, LGBTQ community members, immigrants and refugees. Muslims and other minorities are targeted in 85 percent of CVE programs funded by the Department of Homeland Security.
“The Justice Department’s failure to confront and hold white nationalists accountable for their violence isn’t a question of not having appropriate tools to employ, but rather a failure to use those on hand,” Becky Monroe, director of the Fighting Hate and Bias program at The Leadership Conference on Civil and Human Rights wrote in an email to Newsweek. “Over the last four years, the Justice Department has tragically decided as a matter of policy and practice not to prioritize white nationalist crimes. The answer is not to pass new domestic terrorism charges, but to appropriately use the laws already on the books.”
The letter also argues lawmakers have a plethora of accessible options to employ against white nationalist violence, but have chosen not to use them. Monroe confirmed that the Federal Bureau of Investigation and the Justice Department have over 50 statutes that can be used against terrorism, according to the letter.
“There are many laws that are available for prosecutors to use,” Patel said. “There’s no single charge in the U.S. code that says this is domestic terrorism but there are a number of laws that Congress says can be used as a domestic terrorism charge…there hasn’t been until now a will to really prosecute white nationalist violence.”
The Hate Crimes Prevention Act of 2009 is a key example of laws already available to prosecutors. It was passed with the sole intent to protect minorities against crimes “committed because of the actual or perceived race, color, religion, national original of any person.”
As a solution, the letter calls for lawmakers to hold federal agencies accountable and demand they make clear the statutes that already exist to combat white supremacist violence. In addition, the signatories ask Congress to make hate crime data public and meet with the most impacted minority communities.
Monroe confirmed The Leadership Conference does favor one piece of legislation, the Domestic Terrorism Prevention Act, which does not create a new domestic terrorism statute, but rather supports existing goals.
“Lawmakers don’t need to make anything from scratch,” Patel said. “The requirement that security agencies develop a coherent strategy for dealing with white nationalist violence is already in the law.”
Patel is referring to the National Defense Authorization Act, which charged the FBI to provide Congress with a report on the Bureau’s approach to white nationalist violence: “That report was due a few months ago and never came out. This is something pending from the last administration and is really vital for both Congress and the public to understand exactly how the FBI is tackling this threat.”
