WASHINGTON - Dear Member of Congress:

On behalf of The Leadership Conference on Civil and Human Rights (The Leadership Conference), a coalition charged by its diverse membership of more than 220 national organizations to promote and protect civil and human rights in the United States, and the undersigned 134 organizations, we write to express our deep concern regarding proposed expansion of terrorism-related legal authority. We must meet the challenge of addressing white nationalist and far-right militia violence without causing further harm to communities already disproportionately impacted by the criminal-legal system. The Justice Department (DOJ), including the Federal Bureau of Investigation (FBI), has over 50 terrorism-related statutes it can use to investigate and prosecute criminal conduct, including white supremacist violence, as well as dozens of other federal statutes relating to hate crimes, organized crime, and violent crimes. The failure to confront and hold accountable white nationalist violence is not a question of not having appropriate tools to employ, but a failure to use those on hand. To date, DOJ has simply decided as a matter of policy and practice not to prioritize white nationalist crimes.^[1] Congress should use its oversight and appropriations authorities to ensure that law enforcement appropriately focuses investigative and prosecutorial resources on white nationalist crimes.

We urge you to oppose any new domestic terrorism charge, the creation of a list of designated domestic terrorist organizations, or other expansion of existing terrorism-related authorities. 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.  As the Acting US Attorney for the District of Columbia stated on January 12, 2021 regarding the January 6 insurrection attack on the Capitol, federal prosecutors have many existing laws at their disposal to hold violent white supremacists accountable.^[2]

The magnitude of last week’s attack demands that Congress focus on ensuring that our government addresses white nationalist violence as effectively as possible. Members of Congress should not reinforce counterterrorism policies, programs, and frameworks that are rooted in bias, discrimination, and denial or diminution of fundamental rights like due process. Rather, as highlighted below, Congress should focus on its oversight and appropriations authority to ensure that the federal government redirect resources towards the ever-growing white nationalist violence plaguing our country, and hold law enforcement accountable in doing so.

Law Enforcement Has the Tools to Hold White Nationalist Insurrectionists Accountable

White supremacist violence goes back to our nation’s founding, and has never been appropriately addressed—and it manifested last week in an unprecedented way. On January 6, 2021, thousands of pro-Trump supporters, many of them radical, right-wing, white supremacists, unlawfully and violently broke into the nation’s Capitol. The rioters, some with “Camp Auschwitz” shirts, others carrying confederate flags, and some who hung a noose on the Capitol grounds, were intent on blocking the ratification of President-elect Biden’s electoral win. Some carried weapons and zip ties, reportedly to kidnap or kill members of Congress and the Vice President. Because of the violent mayhem that ensued, at least five people lost their lives and countless others were wounded. As this historic event on the nation’s legislative branch by violent white nationalist insurrectionists is being investigated thoroughly, we know that our federal law enforcement officials have more than enough tools at their disposal to address the attack on the Capitol.

According to the federal government’s own research and reports, white nationalist violence has been on the rise for years with the FBI reporting that more murders motivated by hate were recorded in 2019 than any year before.^[3] This 2019 data included the El Paso massacre, when a white supremacist targeted the Latino community and shot and killed 23 people after publishing a manifesto in which he embraced white nationalist and anti-immigrant hatred.^[4] The Department of Homeland Security (DHS) and the FBI have repeatedly testified before Congress, stating that the greatest threat to US national security emanates from white supremacist violence.^[5]

Yet, despite overwhelming evidence making clear the source of the threat ^[6], the federal response has failed to prioritize an effective policy to combat white nationalist violence. Instead, the federal government has disproportionately targeted and surveilled Black and Brown people, including increasingly targeting Arabs and Muslims since 9/11, treating them as threats to US national and homeland security. This has led to the over-policing of these communities, including intrusions into community centers, mosques, and almost every aspect of their lives.^[7] US counter-terrorism policy has devastated communities of color and religious minorities, and by failing to rein in white nationalist violence in a serious way, those same communities suffer twice over: first by being over-criminalized and securitized and second, by having the state not respond to white nationalists who target them.

What Should Congress Do?

Congress should not enact any laws creating a new crime of domestic terrorism, including the Confronting the Threats of Domestic Terrorism Act (H.R. 4192 in the 116th Congress) or any other new charges or sentencing enhancements expected to be introduced in the 117th Congress “to penalize acts of domestic terrorism.”  These bills and others with similar provisions are the wrong approach because, as we have seen, they will continue to be used as vehicles to target Black and Brown communities as they have done since their inception.^[8] The federal government has no shortage of counterterrorism powers, and these powers have been and will be again used to unjustly target Black and Brown communities, including Muslim, Arab, Middle Eastern, and South Asian communities, as well as those engaged in First Amendment-protected activities.^[9] The creation of a new federal domestic terrorism crime ignores this reality and would not address the scourge of white nationalism in this country.

Instead, Congress should use its oversight and appropriations powers to demand that federal agencies make public how they have and are now using resources to fight white supremacist violence. Moreover, Congress should support other efforts to address the white supremacy at the core of these violent attacks. At the outset, Congress should identify ways to address the white supremacist infiltration of law enforcement that was documented by the FBI. This, a clear and present danger, which was highlighted at an Oversight Committee hearing last year, puts lives at risk and undermines the criminal legal system.^[10] Hate crimes data should be mandated and made publicly available so federal leaders, as well as those at the state and local level, can address the threat in a manner best suited to their community. Finally, the Leadership Conference encourages Congress to regularly, hold hearings featuring communities that are experiencing white nationalist violence in an effort to encourage accountability and transparency. This would allow Congress to provide communities impacted by white supremacist violence support to develop and lead their own programs to meet the needs that they identify.

Please contact Becky Monroe at monroe@civilrights.org and Iman Boukadoum at boukadoum@civilrights.org to further discuss this matter or if there are questions or concerns.

Sincerely,

The Leadership Conference on Civil and Human Rights
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