Congress has not enacted a new domestic terrorism law under President Joe Biden, in part bcause his administration has taken a different approach to fighting home-grown terrorism.

In making his campaign promise, Biden was responding to pressure for a new law by some Democratic constituencies who thought that there were clearer laws on the books against international terrorism than there were against domestic terrorism, such as acts by violent, white-supremacist groups.

However, national security experts say that such calls were based on a misunderstanding of the law. Domestic terrorism is already illegal under existing law, including provisions that have been used in prosecutions of participants in the storming of the Capitol on Jan. 6, 2021 (though within limits).

"There is an entire chapter of the federal code called 'terrorism,' and it includes 57 statutes, 51 of which apply to domestic terrorism," said Michael German, a fellow with New York University Law School's Brennan Center for Justice. "To say there is no law called 'domestic terrorism' misconstrues the statute. There is also no specific offense called 'international terrorism.'"

In other words, German said, "no new law is needed for the Justice Department and the FBI to address white-supremacist and far-right militant violence more effectively."

Moreover, by the time Biden took office, human rights groups had come out against passing new terrorism-related legislation, most notably in a letter organized by the Leadership Conference on Civil and Human Rights and signed by more than 150 other advocacy groups, including the American Civil Liberties Union, Amnesty International USA, Human Rights Watch, and the NAACP. 

"These organizations rightly pointed out that there are already enough means to investigate and prosecute domestic terrorism, and that the creation of a broad, new crime could affect marginalized communities," said Shirin Sinnar, a Stanford University law professor. 

Instead, the White House in June 2021 released a national strategy for countering domestic terrorism, a move that effectively stands in for action on his campaign promise, German said. 

Karen J. Greenberg, director of the Center on National Security at Fordham University's law school, has written that Biden's strategy document "breaks new ground in its deep appreciation of the 'complex, multifaceted and evolving' challenge that domestic terrorism poses." 

Greenberg said it's important that Biden's strategy defines a wider array of domestic terrorists, including "racially or ethnically motivated violent extremists and networks whose racial, ethnic, or religious hatred leads them toward violence, as well that those whom they encourage to take violent action." She added that it lists potentially violent extremists across the ideological spectrum, "from anti-abortion to animal rights, the environment, and even involuntary celibacy."

"The strategy does not actively promote new legislation but instead takes a reflective, wait-and-see approach to whether such legislation is required," Greenberg wrote.

Experts see a tangible heightening of domestic terrorism concerns under Biden.

In addition to the prosecutions of participants in the events of Jan. 6, German said, "the FBI director has elevated domestic terrorism as a priority and created a domestic terrorism and hate crime fusion cell, to ensure that agents working similar types of violent crime cases are collaborating and sharing intelligence."

German said these steps are "positive," though he added that transparency has sometimes been lacking, and his colleagues at the Brennan Center have expressed concerns about certain parts of the strategy.

"As much as domestic political actors want to move quickly to address the white supremacist threat, a cautious approach is critical to avoiding the missteps of previous terrorism laws," Sinnar said. "The challenge is that an investigative focus on white supremacist violence is necessary, but that some of the preventative approaches identified in the administration's new National Strategy on Domestic Terrorism — such as terrorist watchlists — threaten rights and liberties."

Biden hasn't enacted a new domestic terrorism law, as he'd promised in the campaign, but he's detailed a new strategy, with evidence of a higher priority for domestic terroism within key agencies. We rate this a Compromise.