As the federal government continues to grapple with the fallout of the deadly attack on the U.S. Capitol Building by pro-Trump rioters on Jan. 6, the Biden Administration has remained close-lipped about how it plans to confront the rising threat of domestic terrorism. This week, Americans got a first look into how that effort may unfold with the testimony of Merrick Garland, the nominee to be the next attorney general.
In his testimony before the Senate Judiciary Committee on Monday and Tuesday, Garland declared that investigating the Capitol insurrection was his “first priority” and promised to “do everything in the power of the Justice Department” to stop domestic terrorism. He also warned that the events of Jan. 6 were not a “one-off,” and that the U.S. is facing “a more dangerous period” than any in recent memory.
Garland would know. More than 25 years ago, he led the Justice Department’s prosecution of the perpetrators of the 1995 Oklahoma City bombing, the deadliest act of homegrown terrorism in U.S. history, which killed 168 people, including 19 children. In preparation for the case, Garland experienced the horror first-hand, watching as bodies were recovered from smoldering rubble days after a 4,800-pound homemade bomb concealed in a rental truck detonated.
Garland told lawmakers that he believes the Capitol attack portends a movement that poses an existential threat to U.S. national security and Americans’ way of life. “I think this was the most heinous attack on the democratic process that I’ve ever seen, and one that I never expected to see in my lifetime,” he said, adding one of his first actions would be to receive a briefing on the status of the investigation.
“I intend to give the career prosecutors who are working on this matter 24/7 all of the resources they could possibly require to do this,” he said. “And at the same time, I intend to make sure that we look more broadly to look at where this is coming from, what other groups there might be that could raise the same problem in the future.”
This long-awaited U.S. self-reflection would be one of the first steps toward confronting the far-right threat, which has escalated in recent years. Last September, FBI Director Christopher Wray said the bureau recorded about 120 arrests on domestic terrorism suspicions in 2020. He identified white supremacists and far-right groups as primary threats, and pointed to “perceptions of government or law enforcement overreach” as one of the drivers of domestic violent extremism in the country. In 2019, domestic violent extremists killed 39 people in five separate attacks, according to the FBI, making it the deadliest year for domestic violent extremism since the Oklahoma City bombing in 1995.
But Garland also indicated he was reluctant to back a bipartisan Congressional push to write new domestic terrorism laws. In the aftermath of the Capitol assault, members of Congress quickly moved to expand the federal legal framework to better pursue and punish citizens who are involved in homegrown terror attacks. It isn’t a new idea; for years, former Department of Justice officials, along with the FBI Agents Association, have maintained that current law doesn’t suffice to punish perpetrators and thus deter future attacks.
Countering those calls for new legislation, Garland referenced his own past success in prosecuting Oklahoma City bomber Timothy McVeigh and co-conspirator Terry Nichols under the existing laws. (McVeigh was convicted on murder and conspiracy charges and executed in 2001. Nichols is currently serving a life sentence without parole for murder and first-degree arson.) Garland also supervised investigations of the Atlanta Olympics bombing in 1996 and “Unabomber” Theodore Kaczynski.
“The first thing we have to do before we look for new tools is figure out whether the tools we have are sufficient,” he said. “The laws are quite capable and we were capable of bringing charges against McVeigh, Nichols and other terrorists.”
Garland, who is 68 and currently a federal appeals court judge, laid out his approach to pursuing the Jan. 6 rioters, saying he intends to meticulously gather evidence and build cases that may lead to the organizers of the attack. “We begin with the people on the ground and we work our way up to those who are involved and further involved,” Garland said.
Although short on details, the legal strategy sounds reminiscent of how the U.S. Justice Department pursued mafia bosses under the Racketeer Influenced and Corrupt Organizations (RICO) Act, which is being considered to charge members of far-right groups involved in the insurrection, according to a Reuters report.
Meanwhile, Republican lawmakers pressed Garland on whether he would also prosecute protestors who were involved in the destruction of government property outside D.C., referring to last summer’s racial justice protests.
“Do you regard assaults on federal courthouses or other federal properties as acts of domestic extremism, domestic terrorism?” Missouri Republican Sen. Josh Hawley asked, referring to the attacks on the courthouse in downtown Portland during protests last year in the aftermath of George Floyd’s murder.
In his response, Garland sought to distinguish between the Jan. 6 attacks and other demonstrations, saying he would define domestic terrorism as “the use of violence or threats of violence in an attempt to disrupt democratic processes,” and noted that if an attack on the courthouse was meant to prevent judges from deciding cases it would fall under domestic terrorism.
Despite pointed questioning from GOP Senators, Garland has bipartisan support and is expected to gain Senate confirmation, which comes five years after Republicans blocked his nomination by President Barack Obama to fill the seat on the Supreme Court left vacant after the death of Justice Antonin Scalia.
If he is confirmed, Garland will take charge of the department amid growing calls for law enforcement agencies to overhaul their longtime focus on foreign terrorism and provide better data on hate crimes and domestic extremist groups.
The Justice Department defers most investigations to local officials without evaluating whether the perpetrators are part of a larger far-right group, but state and local law enforcement are often ill-equipped or unwilling to respond to these crimes. Last fall, the Department of Homeland Security warned that “racially and ethnically motivated violent extremists — specifically white supremacists extremists — will remain the most persistent and lethal threat in the Homeland.”