President Joe Biden, in his Inaugural Address, made a vow of a kind that few Presidents have in American history. He warned of “a rise of political extremism, white supremacy, domestic terrorism,” which, he pledged, “we must confront and we will defeat.” On Friday, his third day in office, Biden ordered U.S. intelligence officials, the F.B.I., and the Department of Homeland Security to assess the threat posed by violent domestic extremists and to develop ways to counter them. “The rise of domestic violent extremism is a serious and growing national threat,” Jen Psaki, the White House press secretary, said. “The Biden Administration will confront this threat with the necessary resources and resolve.”
That mission is likely to be one of the most vital, complex, and fraught in the history of American law enforcement. As the second impeachment trial of Donald Trump approaches, federal officials are monitoring online chatter about assassinating members of Congress or attacking them outside the Capitol. Intelligence officials are concerned about online coördination between white supremacists in this country and in Germany. Over all, terrorist attacks and plots have risen sharply in the United States since 2013, and the majority of them were carried out by homegrown right-wing extremists. Democrats blame Trump for legitimizing, emboldening, and failing to crack down on far-right groups such as the Proud Boys throughout his Presidency. They maintain that his monthslong disinformation campaign about the election results incited the January 6th insurrection at the U.S. Capitol. Democrats in Congress who experienced the attack are demanding that Biden act.
Some members of Biden’s team have investigated domestic terrorism in the past, notably Merrick Garland, his nominee for Attorney General, who led the prosecution of Timothy McVeigh, an anti-government militia member who killed more than a hundred and fifty people in the 1995 Oklahoma City bombing. The new Secretary of Defense, Lloyd Austin, vowed in his confirmation hearing to “rid our ranks of racists and extremists.” And military and law-enforcement officials are investigating the role of active and former military members and police officers in the Capitol attack. An NPR analysis of court records found that one out of every five people criminally charged so far in the assault had served or is currently serving in the military, yet veterans make up just seven per cent of the population. (Last year, a Military Times poll found that a third of active-duty members had seen “signs of white supremacist or racist ideology in the ranks.”)
Trump supporters immediately dismissed the Biden Administration’s effort as an attempt to smear and silence them. Adopting the same narrative of grievance and conspiracy that Trump rode to power, Senator Rand Paul, a likely 2024 Presidential candidate, said that Biden had slandered conservatives in his Inaugural Address: “If you read his speech and listen to it carefully, much of it is thinly veiled innuendo, calling us white supremacists, calling us racists, calling us every name in the book.” The Fox News host Tucker Carlson declared that Biden, intelligence officials, and Big Tech companies were unleashing a “new war on terror,” that is “focussed inward on the people of this country.”
On Sunday, Biden’s homeland-security adviser, Dr. Liz Sherwood-Randall, told me that the Administration’s policy would be measured and nonpartisan, and would respect citizens’ constitutional rights. “We’ve built a team that has deep experience in balancing the need to address national security threats with the need to protect civil rights and civil liberties, and our work will be informed by both the lessons of history and the challenges we face today.” Previous F.B.I. campaigns to counter domestic threats have resulted, on a number of occasions, in civil-rights abuses. In the nineteen-sixties, the bureau’s director, J. Edgar Hoover, driven by bigotry and by a false claim that Dr. Martin Luther King, Jr., was a Communist, ordered agents to illegally surveil, smear, and harass him. Separately, the C.I.A. spied on anti-Vietnam War activists. In the nineteen-nineties, a botched F.B.I. raid on a religious cult in Waco, Texas, which killed dozens of members of the group, vastly expanded the ranks of far-right militias in the United States. After the 9/11 attacks, agents profiled Muslim Americans, conducted illegal surveillance of mosques, and, according to defense lawyers, used paid informants to entrap defendants and exaggerate the threat that they represented.
Current and former federal law-enforcement officials say that it is possible for the Justice Department and the F.B.I. to aggressively enforce the law and deter further violence while avoiding the abuses of the past. They say that First Amendment free-speech protections that bar law-enforcement officials from investigating or surveilling Americans on the basis of their statements or their political beliefs must be honored, even when those statements or beliefs are blatantly racist or include talk of insurrection. “The key guidance is that investigations are only to be undertaken of groups advocating or engaging in violence—not simply for their speech or beliefs,” Tom Baker, a former F.B.I. official, told me. “It may be tempting to ‘take the gloves off,’ but investigative attention has properly focussed on their actions, not on their speech.”
Yet experts on online radicalization say that law-enforcement approaches to domestic extremism are growing antiquated. American politics, laws, and technology firms have failed to recognize the power of instant communication in the digital age. Joan Donovan, an expert on disinformation at Harvard University’s Kennedy School of Government, says that the Trump era has shown that online disinformation can contribute to radicalization, and confronting that challenge is a core part of countering extremism. “The fact of the matter is that Trump can shape reality when he has access instantly to a hundred and fifty million people,” Donovan said. “These are not toys. The more we misunderstand the coördinating power of social media, the more we’re going to mistakenly frame it as simply a free-speech issue.” The insurrection, she noted, “was a command-and-control situation, where people thought they were part of an army going to save the Commander-in-Chief.”
The F.B.I. Agents Association, which represents fourteen thousand current and former agents, supports updating federal law to create tough penalties for acts of domestic terrorism. Some former agents have also called for new laws that would allow the federal government to declare certain groups domestic terrorist organizations. But civil-liberties organizations, including the A.C.L.U., oppose stronger laws, claiming that the F.B.I. has the powers it needs to pursue far-right groups but has, instead, gone easy on them. Michael German, a former F.B.I. agent and a fellow at the Brennan Center for Justice, opposes additional domestic-terrorism statutes, in part, he told me, because “the problem is not as complicated as the F.B.I. pretends.” He added, “Law enforcement deprioritizes the investigation and prosecution of white supremacist and far-right violence through policy and practice, not a lack of authority.”
One point on which the experts I spoke to agreed was that the practices, rules, and norms currently used in criminal investigations and trials must be applied to cases of violent domestic extremism. Any hint of leniency, excess, secrecy, or political bias could play into conspiracy theories and fuel further extremism. David Laufman, a former senior official at the Justice Department who helped coördinate its responses to the 9/11 attacks, said that law-enforcement officials should “maximize the level of detail in the evidence that they have gathered showing that criminal acts occurred and that nothing about this is political.” He added that prosecutors should be “making it clear that these cases are about holding Americans to account who resorted to violent acts in subversion of our government and in violation of law.”
A current senior law-enforcement official told me that a mandate from Biden and Congress to crack down on domestic extremist violence is welcome. But the official, who asked not to be named, cautioned that federal and state law-enforcement officials have no legal authority—and little desire—to be drawn into targeting specific ideologies or types of speech. “Our concern is the violence. Our concern is the conduct. Remember, hate speech is protected speech,” the official said. “You don’t want law-enforcement overreach. We’ve learned the lesson.” The official added that elected leaders could play a central role in combatting domestic extremism: “A lot of this depends on our political leadership, if there’s an effort to bring down some of the temperature.”
Trump showed how easy it is to exploit First Amendment protections and the power of social media in order to mount politically effective disinformation campaigns. The question is what lesson American political leaders will take away from the Trump era. One path involves a prolonged, enormously complex, and politically sensitive effort to enact reforms that protect free speech but set guardrails for the digital age. The other involves the continued embrace of trafficking in disinformation and conspiracy theories for short-term political gain. The danger of the latter could not be clearer.
