Tanzina Vega: You're listening to the Takeaway, I'm Tanzina Vega. This week, the confirmation hearing for Merrick Garland as US attorney general is underway and though he'll have countless legal challenges on his plate, the long-time judge already has made one priority clear.

Merrick Garland: If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6th. A heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.

Tanzina: The Capitol insurrection won't be the first time Garland has had to confront domestic terrorism in his career. In 1995, as an official with the justice department, Garland supervised the criminal investigation into the Oklahoma city bombings that killed 168 people, the deadliest domestic terror attack in US history. To discuss that and more, I'm joined by Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. Faiza, Welcome back.

Faiza Patel: Thanks for having me.

Tanzina: Merrick Garland. Many people may remember him when he was former President Barack Obama's nominee for the Supreme Court back in 2016. Remind us of a brief timeline of his experience of his judicial experience.

Faiza: When Merrick Garland was nominated to be a Justice on the Supreme court, we were a few months away from the election, and at that time, Republicans control the Senate and they had decided that they would not move forward with Judge Garland's nomination, thereby blocking President Obama from appointing someone to the Supreme Court. That seat was held over until President Trump was elected and at that time, Judge Neil Gorsuch was elevated to the Supreme Court instead.

Tanzina: Let's talk a little bit about exactly what Merrick Garland's role was in the Oklahoma City bombing, in prosecuting that and how that experience will inform his approach as Attorney General if confirmed.

Faiza: Merrick Garland was deeply involved in prosecuting both Timothy McVeigh for the Oklahoma City bombing, and Ted Kaczynski, who's the Unabomber sending letter bombs through the mail, as well as the attack on the Atlanta Olympics. He has deep long experience in prosecuting domestic terrorism, and he has experienced doing it under the set of laws that were in place back in the 1990s, which I think is great because he knows that our current legal framework is more than sufficient to actually prosecute domestic terrorism.

When we talk about the attack on the Capitol, in addition to regular criminal laws, there are many particular laws relating to insurrection and sedition, which the justice department has indicated that it could well rely on. He knows he has all the legal tools he needs, and he doesn't need a new domestic terrorism law, which is an idea that's been floated quite recently both from the Hill and it's been reported that the new administration is also considering whether such a law is needed.

Tanzina: Faiza, tell us how much the Oklahoma City bombing laid the groundwork for the type of domestic extremism and terrorism we're seeing today.

Faiza: White supremacist violence has a long history in this country, right? The Ku Klux Klan, moving on from there, it's a persistent threat. The thing that really happened during the Trump administration was that these violent movements were given a free pass as it were. You had an administration that was not only unwilling to crack down on them but actually refused to disassociate itself from them.

It really gave an opening and we saw this coming into Charlottesville, coming into the attack on the synagogue, there was just a series of these attacks. You have this long history, which then burst into the open during the Trump administration, and that, combined with all of the lies around the election, brings us basically to the capital attack of 1/6. It's a persistent problem and it's a problem that we really have to double down and deal with it.

One of the things that we've been saying for some time from the civil rights community is, look, we need a serious strategy for how we're going to deal with white supremacist violence and we need data. The justice department doesn't even collect data on white supremacist violence. We get periodic updates, often through Freedom of Information Act, but from the justice department, about what it calls international terrorism. There's no such information available about domestic terrorism so it's very difficult to judge exactly what the department has been doing.

Tanzina: Let's talk a little bit about, broadly, how should the justice department be thinking about domestic terrorism?

Faiza: There is a domestic terrorism bill which was introduced by Representative Adam Schiff in the last Congress, which would basically, classifies a number of acts as domestic terrorism and gives the attorney general the authority to decide that they constitute domestic terrorism. Now, when you're looking at a nominee like Merrick Garland, you might feel comfortable with a bill like that, but I would draw your attention to the fact that just last year under Attorney General Barr, groups like Antifa, which isn't even a group, were being called domestic terrorists. If a law like that had been in place, then the attorney general at the time could have decided to prosecute essentially property damage as domestic terrorism, so it's a very broad law.

Another approach that's been proposed has been to copy the international terrorism framework and make it illegal to provide what they call material support to a designated organization. Until now, the US has only designated foreign groups as terrorist organizations, never a domestic group. If it were to designate a domestic group, I think we would run into some serious first amendment issues, but even beyond that, the designation of a domestic group, like the international designation, is a very political decision, right? It's something that the executive branch gets to do pretty much on its own. You could certainly imagine an administration designating groups that it doesn't like. You could imagine them designating environmental groups, for example. We've seen a lot of attacks on environmental groups through a number of state laws already.

You could see them designating a group like Black Lives Matter, which in the previous administration were very focused on finding ways to suppress. There's a lot of mischief that can be done with either of these domestic terrorism models that have been proposed. It would really [unintelligible 00:07:22] to the detriment of communities of color and protesters and really anybody who opposes the government in power.

Tanzina: Also curious how Garland, if confirmed, would reshape the justice department, but also some of the work he would have to do to revamp the department, given the intense politicization of the justice department under former attorney general Bill Barr and the Trump administration. How much work would Garland have ahead of him in restoring trust in the department and getting the staff that he wants into the department?

Faiza: I think he faces a few challenges. One obviously is relating to these politically sensitive investigations that are ongoing, including the [unintelligible 00:08:12] investigation, which is into the investigation of the Russian election interference, as well as the investigation into President Joe Biden's son, Hunter, tax situations with that. He'll have to be very sensitive about how he handles that. During his testimony, I think he suggested that he would be taking a pretty hands-off approach and allowing the line prosecutors to make- or career professionals to make the decisions over there.

I think the second challenge that the attorney general would face is reassuring minority communities that the justice department is on their side, which during the Trump administration, it clearly wasn't. I think over here, he's fortunate that the team that hopefully will be in place alongside with him includes prominent civil rights attorneys.

He's not in this alone. He will have Vanita Gupta who was formerly the head of the Leadership Conference in the number three slot at the justice department. She was formerly the head of the civil rights division under the Obama administration, and Kristen Clarke, another civil rights leader heading up the civil rights division. These are powerful allies for the attorney general in his effort to get the justice department on track.

I guess the third thing that really he will have to deal with is the morale in the justice department. I think he came across during the confirmation hearing as someone with great integrity and poise, and I'm hopeful that his leadership will be able to assure people working in the justice department that the politicization of the Trump era is over.

Tanzina: Faiza Patel is the co-director of the Liberty and National Security Program at the Brennan Center for Justice. Faiza, thanks for joining us.

Faiza: My pleasure.

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