How the KKK Produced the Department of Justice

Among the most controversial proposals to address the threat of domestic terrorism in the United States is the proposal for new laws that would specifically address acts of politically-motivated violence, much as current hate crimes statutes express society’s particular opprobrium of those crimes. Conviction of a hate crime can increase a sentence by up to three times, sending a powerful message that these acts are intolerable and unacceptable. However, critics of this legislation—including the RAND Corporation’s longstanding terrorism expert, Brian M. Jenkins, and former FBI agent and now Brennan Center analyst, Michael German—argue that domestic terrorism legislation, and specifically the designation of domestic violent extremist groups as terrorist organizations, would inevitably become dangerously politicized and partisan. They fear that, using such a law, a future authoritarian president could simply designate any group or movement that protested, demonstrated against, or otherwise disagreed with that leader’s policies as terrorists.

We believe that these concerns can be overcome. Congress should consider enacting a high-threshold domestic terrorism law to formally criminalize violence and conspiring to commit violence targeted against individuals based on race, ethnicity, religion, national identity, sexuality, gender, political affiliation, and other protected categories. A domestic terrorism law of course needs to be established and applied with great care. It needs guardrails and high standards, to prevent it from being politically weaponized. A law that would enable the Justice Department to charge only the perpetrators of lethal violence—or plots to commit lethal violence—could help to ensure that it cannot be used against peaceful protestors or political extremists who nonetheless eschew or abjure from violence.

Given the depth of American division and dysfunction, this solution might appear excessively idealistic. But, at a time when fear of civil war has again surfaced, it bears remembering that this country has faced profound internal strife and division before—and emerged intact. The fabric of the nation was stitched back together despite hundreds of thousands of deaths during the Civil War, with many on the losing side putting aside their loss and resentment to build a more promising future by working to re-unite the country.

Indeed, the very history of federal law enforcement and justice in the United States should inspire optimism. Both are firmly rooted in counterterrorism—initially against antebellum violent white supremacist groups. In 1870 President Ulysses S. Grant created the Department of Justice specifically to counter-far-right terrorism from the Ku Klux Klan and other violent groups active in post-Civil War southern states. In a letter to the Speaker of the House, Grant wrote,

“there is a deplorable state of affairs existing in some portions of the south demanding the immediate attention of Congress. If the attention of Congress can be confined to the single subject of providing means for the protection of life and property in those sections of the Country where the present civil authority fails to secure that end, I feel that we should have such legislation.”

Congress enacted new laws, including the Ku Klux Klan acts, and empowered the newly created Department of Justice to suspend habeas corpus and arrest suspected terrorists en masse. Despite the failed efforts during Reconstruction to guarantee the rights of Black Americans in the South, the Ku Klux Klan as an organization was nonetheless effectively “smashed.” And it would not be until nearly half-a-century later that it re-emerged. A new domestic terrorism law today seems a small step in comparison—but one that would send a resounding societal message that there is no place for political violence in a democracy.

The Status Quo Creates Inequity and Recidivism Problems

The status quo is clearly insufficient. First, the absence of domestic terrorism laws has led to an inequity of sentencing depending on whether the crimes were committed on behalf of designated foreign terrorist organizations or a domestic violent extremist group. There is a substantial sentencing gap today b