Listen to this article

In the wake of the horrific anti-Latinx mass murder in El Paso, Texas, a loud cry for a domestic terrorism law reverberated across the country. Like gun control, the call for a domestic terrorism law harbors potential danger for African-Americans.

Two very different domestic terrorism bills are before the U.S. Senate. One, S. 894, was co-authored by Illinois Democrats, Sen. Richard Durbin and District 10 Rep. Brad Schneider. Arizona Republican Sen. Martha McSally wrote the other, which as yet doesn’t have a number. The Durbin bill explicitly targets white supremacist violence.

S. 894 is the third iteration of Durbin and Schneider’s proposed legislation. They first introduced a domestic terrorism bill in 2012, in response to white supremacist Wade Michael Page’s murder of six and the injury of four Sikh practitioners in Oak Creek, Wis.

Durbin and Schneider’s bills target white supremacist violence. It declares, “Congress finds ... white supremacists and other far-right-wing extremists are the most significant domestic terrorism threat facing the United States.” It calls for a joint report by the secretary of Homeland Security, the attorney general and the director of the FBI. The report “shall” provide an annual assessment of the threat white supremacists and neo-Nazis pose, including an evaluation of their infiltration of the military, law enforcement and the uniformed services.

Additionally, S. 894 mandates the departments charged with combatting domestic terrorism evaluate each hate crime and determine whether it’s also a domestic terrorist incident. In contrast, McSally’s draft legislation is generic. Nor does it address the growing threat of neo-Nazis and white supremacist violence.

Durbin and Schneider’s bill harkens back to the three force acts of the Reconstruction era. They outlawed the use of coercion or bribery to prevent African-American men from voting. S. 894 is most similar to the third force act, popularly known as the Ku Klux Klan Act of 1871. It made many of the KKK’s tactics federal crimes and authorized President Ulysses S. Grant to declare martial law, impose fines and penalties, and use military force to suppress white supremacist terrorist organizations.

Yet, the present moment is not the same as Reconstruction. The contemporary period is characterized by a conservative neoliberal agenda and virulent anti-black politics. Conversely, Reconstruction represented a time in which the U.S. strongly gestured toward excising racial oppression and worked toward creating a more genuine democracy. Unlike Reconstruction, the current moment is more like the period in which the Force Acts were overturned. That is to say, it resembles the nadir of 1877-1925. During that nadir, African-American men trapped in sharecropping on Louisiana sugar plantations made .65 cents a day, while “1st class women” earned .50 cents a day. From 1890 to 1900, a black man, woman or child was lynched every 60 hours.

In such a reactionary moment as today, it is more likely that McSally’s bill would pass than Durbin and Schneider’s. In a time like this, a domestic terrorism bill would probably be weaponized against black folk. By not specifying white supremacists and neo-Nazis, McSally’s bill can easily be turned on black folk.

The FBI has demonstrated a proclivity toward targeting activists who challenge U.S. racial oppression and capitalist exploitation. COINTELPRO, the FBI’s program to “expose, disrupt, misdirect, discredit or otherwise neutralize the activities of the black nationalists,” represents the most prominent example of illegal governmental actions to destroy the black liberation movement.

Not surprisingly, the FBI’s assault on the black liberation movement begins with mischaracterizing the movement and its activists. In the 1960s, they labeled movement activists, including Martin Luther King Jr., members of “black nationalist hate groups.” Based on a robust sample of six incidents between 2014 and 2017 in which African-Americans killed eight law enforcement officers and injured another 15, the FBI created the terrorist classification “Black Identity Extremists” (BIE). Interestingly, from 2008 to 2017, 71 percent or 274 of the 387 U.S. residents killed by domestic terrorists were murdered by white supremacists and neo-Nazis.

Given the above data, it’s ironic that on the cusp of the white nationalist and neo-Nazi incursion on Charlottesville, the Trump administration cut funding for departments to investigate white supremacists and neo-Nazis. Simultaneously, the FBI issued the report in which it invented the BIE category.

The most frightening thing is the FBI’s description of a BIE. The FBI defines a BIE as someone who responds “to perceived acts of racism and injustice” by using “unlawful acts of force or violence ... in furtherance of establishing a separate black homeland, autonomous black social institutions, communities or governing organizations within the United States.” This suggests that African-American social institutions — churches and cultural centers, planned black communities such as Soul City, or efforts to create governing apparatuses within African-American communities — are undesirable and perhaps illegal.

Because both bills incorporate U.S. Code 2231’s definitions of domestic terrorism, they can easily facilitate repression. Code 2231 defines acts dangerous to life and in violation of U.S. criminal law as well as attempts to influence government policy through coercion or intimidation as terrorism. Under such broad definitions, St. Louis activists who blocked traffic on Interstate 70 in response to Mike Brown’s killing could be charged with terrorism.

We should be wary of every effort to develop a new domestic terrorism law.

Sundiata Cha-Jua is a professor of African-American studies and history at the University of Illinois and is a member of the North End Breakfast Club. His email is schajua@gmail.com.