Congressional report highlights gaps in U.S. domestic terrorism policy

While this national security strategy was justified in the years immediately following such a horrific, mass-casualty producing attack against America, it now appears narrow-minded and limited given the resurgence of other violent forms of domestic terrorism perpetrated by violent antigovernment and hate-oriented extremists.

A new Congressional report distributed in August highlights the growing threat from domestic terrorists, described as “people who commit crimes within the homeland and draw inspiration from U.S.-based extremist ideologies and movements.” The report, published by the Congressional Research Service (CRS), highlights several gaps in U.S. policy related to identifying, analyzing and assessing domestic terrorist threats. It notes that domestic terrorists “have not received as much attention from federal law enforcement as their violent jihadist counterparts,” which has not always been the case. For example, in 1999, the Federal Bureau of Investigation (FBI), the lead federal agency responsible for investigating acts of domestic terrorism, stated that “during the past 30 years, the vast majority — but not all — of the deadly terrorist attacks occurring in the United States have been perpetrated by domestic extremists.”

According to the CRS report, it’s clear that domestic terrorism is not a top federal counterterrorism priority. Nevertheless, domestic terrorist threats feature prominently among state and local law enforcement concerns. Furthermore, several recent studies have shown that domestic terrorism is often overlooked and rivals that of Al Qaeda-inspired terrorism.

According to studies from New American Foundation, Combatting Terrorism Center at West Point, the SPLC and others, domestic terrorists have been responsible for orchestrating many deadly terrorist incidents in the U.S. since 9/11. Some have concluded that domestic non-Islamic terrorism poses a greater threat in the U.S. than Al Qaeda-inspired terrorism based on the number of attacks since 9/11.

A 2016 Center for Investigative Reporting study concluded there were nearly twice as many domestic terrorist attacks and plots as Al Qaeda-inspired incidents between 2008 and 2016. According to CIR investigative reporters, nearly half (48 percent) of the Al Qaeda-inspired incidents were FBI sting operations (which inflated the number of incidents). This was more than four times the rate for domestic non-Islamic extremists. This disparity, according to counterterror experts, is indicative of the lopsided nature of U.S. government counterterrorism and investigative resources. Statistics provided in the CIR study indicates that far fewer resources (e.g. analysts, agents, informants, operatives, etc.) are allocated to analyze, assess, investigate, and prosecute domestic non-Islamic terrorists. A similar allegation was also made during a Congressional hearing on hate crimes held in the immediate aftermath of the Sikh Temple shooting in August 2012.

Likewise, a 2014 University of Maryland national survey of state and local law enforcement officers found that sovereign citizens was the “top concern” for terrorist threats in the homeland. Al Qaeda-inspired terrorism ranked second, but was also closely followed by militia/antigovernment and white supremacist threats. A second survey conducted by Duke University’s Triangle Center on Terrorism and Homeland Security in 2015 produced similar results with antigovernment extremism being the top law enforcement concern.

The CRS report raises several key issues related to improving U.S. domestic terrorism policy. They include: (1) federal agencies employ varying terminology and definitions to describe domestic terrorist threats;  (2) the Department of Justice (DOJ) and the FBI do not officially designate domestic terrorist organizations; (3) few, if any, domestic terrorists are charged or prosecuted under federal or state terrorism statutes; (4) domestic terrorists, for the most part, do not use traditional terrorist tactics such as bombings, large-scale attacks, airplane hijackings, or political assassinations; (5) foreign-inspired homegrown violence gets more media attention than acts of domestic terrorism; and, (6) domestic extremist ideology often uses the cover of constitutionally protected activity. These constitutional rights pose unique challenges to law enforcement when monitoring extremist groups and individuals, assessing potential threats and interdicting violent acts.

Existing official definitions of “domestic terrorism” (e.g. those used by federal agencies or codified into law) are too broad and confusing. These definitions need to be consolidated, more clearly worded, and narrowly focused on what constitutes domestic terrorism. Ambiguity in the investigative process regarding when criminal activity becomes domestic terrorism may also need clarification. Furthermore, federal agencies appear to use the terms “terrorist” and “extremist” interchangeably when referring to domestic terrorism. This practice confuses the issue and blurs the line between peaceful, law-abiding activity and illegal acts and violence.

The report raises the lack of an official domestic terrorist group list as another problem. U.S. counterterrorism policy abroad is driven by such a list — the U.S. Department of State’s list of foreign designated terrorist organizations. The State Department list gives lawmakers a clear, succinct, and vetted catalog of terrorist groups. The lack of a similar domestic terrorist group list confuses policy makers and complicates their understanding of domestic terrorism. In turn, this negatively impacts their ability to develop domestic counterterrorism policies.

The group list issue is further problematic due to the fact that domestic terrorists don’t operate like foreign terrorist groups. In contrast, domestic terrorists have adopted the tactics of leadless resistance, lone wolves and small cells. For this reason, domestic terrorists may be better categorized according to the extremist ideological concepts that underpin their threats, inspire radicalization, and mobilize individuals toward violence or criminal activity. For example, the DOJ, the FBI, and the Department of Homeland Security (DHS) have already identified domestic terrorist threats in their public statements, Congressional testimony and official reports. According to these statements, domestic terrorist threats have included animal rights extremists, eco-terrorists, anarchists, anti-government extremists (such as ‘sovereign citizens’ and unauthorized militias), black nationalists, white supremacists and violent anti-abortion extremists.

The DOJ, FBI, and DHS, however, must balance their respective authorities while safeguarding extremists’ rights to freedom of expression, freedom of assembly, and other constitutionally protected activity. Unfortunately, domestic extremists are well aware of their civil and privacy rights and often exploit these rights to provide cover for illegal activity, further radicalization, and mobilization towards violence. The CRS report draws attention to this dilemma stating, “domestic terrorists operate in a decentralized fashion, terrorist lone actors (lone wolves) or isolated small groups (cells) generally operate autonomously and in secret, all the while drawing ideological sustenance — not direction — from propagandists operating in the free market of ideas.”

Another persistent issue relates to the disparity in federal and state prosecution and sentencing of Al Qaeda-inspired terrorists in the U.S. versus domestic terrorists. Outside of eco-terrorist cases, there have been virtually no violent domestic extremists charged or prosecuted under federal or state terrorism statutes which offer penalty enhancements for suspects engaging in domestic terrorist plotting or terrorist-related activity. Most domestic terrorists are charged under existing firearms, arson, and explosives laws, rather than a terrorism statute.

A 2016 Reuters analysis of more than 100 federal cases since 2014 further illustrated that domestic terrorist suspects collectively face less severe charges than those affiliated with the Islamic State who were arrested in the U.S. Between 2014 and 2016, 27 defendants were charged in the U.S. for plotting or inciting terrorist attacks. They carried a median prison sentence of 53 years. Over the same time period, 27 U.S.-based antigovernment or hate-motivated extremists were charged with similar activity. They carried a medium prison sentence of 20 years.

The Reuters study indicates that federal agents and U.S. Attorney’s Offices are encouraged to “open investigations into Americans who support groups on the State Department’s list of foreign designated terrorist organizations.” Reuters further reported that, “the maximum penalty for supporting a foreign terrorist organization has been raised from 10 years to 20 years in prison since 2001.”

Although most judges sentenced Al Qaeda-inspired terrorists below the maximum, domestic terrorists enjoy greater constitutional protections and have rarely been charged or prosecuted with terrorism statutes. Embracing domestic extremism, no matter how radical the rhetoric becomes, is not a crime. According to current and former federal prosecutors, it is also very difficult “to convince a jury that someone who is not affiliated with a foreign group can be guilty of terrorism.”

It is important that the U.S. government take the lead in developing new strategies and tools for law enforcement and the courts to better deal with problems associated with domestic terrorism. There is also a need for government officials, law enforcement, and the media to educate themselves and the public about domestic terrorism. There is a need for better methodology for determining what extremist ideologies, groups or movements support domestic terrorism and who, if any, deserves the label of “violent extremist” or “domestic terrorist.” If the U.S. government is unwilling to pursue the issues raised in the CRS report and the other aforementioned studies, then state governments should take the initiative to discuss and consult on these matters between state and local law enforcement officials, governors, and states attorneys’ offices in an effort to develop their own strategies and methodology for fighting domestic terrorism.