I’m not aware of a piece of legislation that has ever actually prevented an attack of any kind, but that’s not stopping Rep. Brad Schneider (D‑IL), who earlier this Congressional session reintroduced his Domestic Terrorism Prevention Act (H.R. 350). And contrary to a Bloomberg Government story out today suggesting that “lawmakers aren’t likely to pursue expanded powers to fight the domestic threat any time soon”, Schneider’s bill has gained tremendous momentum in the House in the nearly three months since the Capitol Insurrection on January 6.

Just last week, the bill picked up 22 new cosponsors, bringing the total supporting it to 166, including Republicans Fred Upton (MI‑6), Don Bacon (NE‑2), and Brian Fitzpatrick (PA‑1). Of particular note is the number of House Democratic committee chairs on the bill: DeLauro (Appropriations), Pallone (E & C), Meeks (Foreign Affairs), Nadler (Judiciary), Maloney (Oversight & Government Reform), Thompson (Homeland Security), DeFazio (T & I), and McGovern (Rules).

To be fair, Schneider’s legislation is not–at least in its current form–quite the Constitutionally invasive monster the PATRIOT Act has been over the last two decades. Even so, it has the potential to spawn expanded domestic surveillance activities by law enforcement and intelligence elements of the Departments of Justice and Homeland Security.

The core of Schneider’s proposal involves expanding bureaucracies inside of DoJ and DHS through the creation of new “Domestic Terrorism Offices” within each. Yet both organizations already focus on potential domestic terrorism threats within their existing organizational structures. Indeed, as the extract below from the FBI’s Investigation Classification list shows (obtained last year by Cato via the Freedom of Information Act), the FBI already has discrete categories of investigations for white supremacists, militias, and “sovereign citizen” extremists:

If anything, were Schneider’s bill to become law it would likely make detecting and thwarting domestic terrorist plots harder; the more layers of bureaucracy, the slower government works. The other issue it would likely exacerbate is the question of which department–Justice or Homeland Security–should be the lead on dealing with homegrown threats.

The entire rationale for DHS’s existence–according to its supporters–was to help prevent another 9/11-style (i.e., foreign terrorist-originated) attack on the country. There is, of course, no empirical evidence to suggest the creation of DHS actually accomplished that goal–something that should make House and Senate members loathe to give it an expanded role in an area traditionally within the FBI’s purview.

Both the 9/11 Congressional Joint Inquiry and the subsequent 9/11 Commission Report found that it was a failure of federal law enforcement and intelligence agencies to share data, not a lack of data itself, that was the prime reason Al Qaeda’s attacks succeeded. Creating new, competing organizational “domestic terrorism” stovepipes will increase, not reduce, the likelihood of another domestic terrorism intelligence failure.

And there is another reason why the Schneider bill is problematic: it appears to reflect zero lessons learned from the post‑9/​11 experience vis a vis “countering violent extremism” (CVE) programs.

The other major component of Schneider’s bill is a requirement for “anti-terrorism” training for federal, state, tribal, and local law enforcement agencies for the purpose of “understanding, detecting, deterring, and investigating acts of domestic terrorism and White supremacist and neo‐​Nazi infiltration of law enforcement and corrections agencies.” 

As I noted earlier this year in The Hill, the Schneider bill contains no reference to the huge problems with the FBI’s CVE programs targeting Arab and Muslim Americans during the previous decade. Simply stated, those CVE programs were little more than racial or religious profiling dressed up as “counterterrorism” measures. Often billed as “community outreach” activities, they were, in fact, intelligence gathering operations. 

Schneider’s approach shares the same underlying flaw with prior CVE programs: the assumption that membership in a particular group–be it racial, religious, or political–is indicative of an intent to commit a violent act. Existing published, peer-reviewed literature on the topic tells us exactly the opposite; there is no way to predict, on the basis of mass surveillance of a given group, who within that group will make the leap from fiery speech-making to pipe bomb throwing.

Congress should avoid a repetition of the PATRIOT Act debacle and not legislate in this area until existing investigations into the Capitol Insurrection have run their course and we have the full facts about how it happened, who was involved, and why the response to the insurrection was so slow and fragmented. A quick, fear-driven legislative response will only make things worse.