Prosecuting Domestic Terrorism Is Notoriously Difficult. This New Team of Lawyers Is Trying Anyway

One year ago, thousands of pro Trump rioters stormed the U.S. Capitol using brute force. The Biden administration now has a tool to combat the increasing problem of violent extremism within America. ​​A new unit is taking shape within the Justice Department: a team of attorneys exclusively dedicated to investigating domestic terrorism, tightening the focus of the U.S. national security apparatus on extremism coming from within the country’s borders, rather than overseas.

“The threat posed by domestic terrorism is on the rise,” Matthew Olsen, the head of the Department’s National Security Division, warned a Senate panel on Jan. 11, describing an escalating danger from “individuals in the United States who seek to commit violent criminal acts in furtherance of domestic social or political goals.” The group of “dedicated attorneys” will be part of the National Security Division and will focus on ensuring “that these cases are properly handled and effectively coordinated,” Olsen said.
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Although the Biden administration has not provided much information about the unit, ex-Justice and FBI officers and lawyers said that it will likely run into similar issues as those that have plagued such efforts over the years. Under federal law, domestic terrorism itself is not a crime, political speech—no matter how hateful—is protected, and any attempt to expand federal investigative tools into Americans’ lives is likely to be met with political backlash from the right and left alike. Though Biden promised to “work for a domestic terrorism law” during his 2020 campaign, his Administration has so far proven reluctant to back several bipartisan efforts to write such new legislation.

It will instead likely rely upon existing laws in order to prosecute domestic terrorists for other crimes, including hate crime and firearms offenses. “A statute that applies generally to all terrorism occurring in the territorial United States, regardless of the ideology motivating it, could be useful to fill the gap that currently exists in U.S. terrorism laws,” says Mary McCord, a former U.S. Attorney and director of Georgetown University’s Institute for Constitutional Advocacy and Protection.

After spending decades on terror groups abroad, the Justice Department struggled to provide law enforcement resources in order to cope with an increasing number federal investigations into domestic extremists. This homegrown threat has quickly spread, as evidenced by the Jan. 6th 2021 rebellion. According to FBI officials, their domestic terror investigation caseload increased by more than two-fold from 1,000 to 2700 in the past 18 months. This forced the FBI to double its staffing.

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Today Americans are more likely to be killed by domestic extremists than foreign-born terrorists, Jill Sanborn, the executive assistant director for the FBI’s National Security Branch, told lawmakers on Jan. 11. Domestic extremists who are motivated by racial or ethnic hatred are the “most likely to conduct mass casualty attacks against civilians,” she said, while anti-government militias like the Oath Keepers and the Three Percenters, whose members participated in the Jan. 6 attack, are more likely to target politicians and government property.

In his confirmation hearing, Attorney General Merrick Garland vowed that he would “do everything in the power of the Justice Department” to combat domestic extremism. During his tenure, the Justice Department has charged more than 720 people involved in the Jan. 6 attack in the largest federal investigation in the country’s history. Last May’s budget proposal included an additional $101million to deal with domestic terrorist. These funds include $45million for FBI and 179 additional domestic threats positions, which includes 80 agents. $40 million is for federal prosecutors, who will add 100 more domestic terror case-handling positions to their national network.

While the FBI regularly opens “domestic terrorism” probes into attacks by alleged extremists, prosecutors have to use existing criminal statutes to charge them for offenses such as murder, assault, illegally purchasing firearms or conspiring to mail threatening communications. This crime tends to have weaker penalties than links to terrorist organizations. In order to prove their case, sometimes prosecutors find ways around the law. For example, in 2020 the FBI connected two far-right members. extremist group Boogaloo Bois to Palestinian group Hamas in order to charge them with “material support” to a foreign terrorist organization.

Officials claim that the Justice Department currently employs at least 35 counterterrorism attorneys who work on domestic as well international cases. A new DOJ unit will formally commit some to domestic cases. (A Justice spokesperson refused to give exact numbers. Those dedicated resources “should enhance the Department’s understanding of domestic extremism, which is important for countering it,” says McCord.

But without more explicit federal laws or expanded investigative authorities, the Justice Department’s new efforts could just end up being “administrative window dressing,” says Frank Figliuzzi, the FBI’s former counterintelligence director. “Are they going to be allowing the FBI more license to do what they can lawfully do? Do they intend to establish new guidelines? They will they ever support? [domestic terrorism] statute and say, ‘It’s time?’” Figliuzzi asks. “If you wait until the violence occurs, you’re simply cleaning up the wreckage.”

FBI, has had a subsectionAn organization that has been fighting domestic terror for many years, it has raised concerns about this growing threat. But, subsequent administrations since 9/11 have been more interested in jihadist organizations. As a result, agency leadership hasn’t prioritized cracking down on domestic extremists. Following the Oklahoma City Bombing in 1995, which resulted in the deaths of 168 Americans, Congress added language to existing federal laws in order to combat domestic terrorism. It is defined as criminal acts that are “dangerous to human life,” which appear intended “to intimidate or coerce a civilian population,” to “influence the policy of a government by intimidation or coercion,” or to “affect the conduct of a government by mass destruction, assassination, or kidnapping.”

Former Department of Justice officials, along with the FBI Agents Association, have long maintained that the current law doesn’t suffice to punish perpetrators and deter future attacks. Domestic terrorism sentences aren’t often used against suspects—only a fraction of the Jan. 6 defendants have been charged with “crimes of terrorism,” for example—and law enforcement haven’t been granted the same sweeping authorities to surveil and monitor domestic terror suspects as in overseas-linked cases.

These advocates argue that the federal Government already has the right tools to fight domestic terrorists. They also warn of new laws that could be used by the Federal government to clamp down on Constitutionally protected free speech, disproportionally target minority groups, like the Patriot Act in the aftermath of 9/11. A Jan. 19, 2009 letter to Congress, the American Civil Liberties Union and more than 150 other groups warned a domestic-counterterrorism law could undermine Americans’ First Amendment rights and be used to target people of color and other marginalized communities.

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The FBI Agents Association represents over 14,000 agents and reacted to the criticism by voicing their support for a domestic terrorist statute. This would enable them to stop violence coming from these groups.

“Making domestic terrorism a federal crime would not result in the targeting of specific ideas or groups, rather it would target acts of violence that have no place in the political discourse secured by our Constitution and Bill of Rights,” they said in a June statement, following the White House’s release of the first-ever National Strategy to Counter Domestic Terorrism. “Domestic terrorism is not a federal crime with a penalty. Penalties are required for the definition to be an effective deterrent for would-be perpetrators and an effective tool for law enforcement.”

Some officials from the states have also advocated for domestic terrorist legislation. “To fully combat domestic terrorism across the country, changes to federal criminal laws must be made,” Dana Nessel, the Democratic attorney general of Michigan, testified last year. Michigan has wrestled with violent extremist militias for decades, including a recent foiled plot to kidnap the state’s governor. “Labels matter. Prosecuting hate-motivated attackers as terrorists sends the clear message that the threat of extremism is just as significant when it is based on domestic political, religious or social ideologies as it is when it’s based on violent jihadism.”

But even some within the federal law enforcement ranks argue that the DOJ and FBI aren’t using The tools they have at their disposal point to decades of deprioritization for far-right violence and white supremacists. “The FBI doesn’t even tally all the murders that white supremacists and far-right militants commit, much less the attacks that don’t result in fatalities,” says Michael German, a former FBI agent who spent much of his career undercover, including infiltrating far-right groups. “It categorizes much of this violence as civil rights violations, like hate crimes, or as gang crimes, which are further down the priority list.”

At the moment, any attempt to pass a law creating a new domestic terror legislation is unlikely. The Biden Administration’s focus on domestic extremism using existing laws after Jan. 6 has been blasted by critics who claim the President and Democrats are using the Capitol riot to hunt political foes. German asserts that it is possible for the U.S. to use the classified tactics and tools intended to target foreign terrorists in the near future. He says that the new DOJ unit should not use these tactics if possible because they could lead to more mistakes and abuses.

“Turning these secret investigative tools against Americans and keeping information about their use hidden from the public will undermine public confidence that domestic terrorism investigations conducted by this unit are properly predicated, use only lawful techniques, and are not influenced by racial, ethnic, religious, and political bias,” German says.