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Congress Must Enact a Law against Domestic Terrorism

Congress Must Enact a Law against Domestic Terrorism

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By Dr. Brian Blodgett
Faculty Member, Homeland Security, American Military University

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With attacks mostly by “lone-wolf offenders” occurring nearly every week in the U.S., it might seem clear that the nation has a domestic terrorism problem. But is this the real problem or is it our nation’s response to these acts that is the problem?

What Is Domestic Terrorism?

In the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, the term “domestic terrorism” means activities that:

(A) Involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) Appear to be intended:

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) Occur primarily within the territorial jurisdiction of the United States.

Domestic terrorism, according to the FBI, are acts “perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature.”

In a speech in 2008, Jonathan Solomon, special agent in charge of the FBI’s Miami, Florida, office, said, “What makes domestic terrorism different is that domestic terrorists are based or operate solely in the U.S., and their acts target the U.S. government or U.S. citizens. They can be ‘right-wing’ or ‘left-wing’ extremists, such as white supremacists, anti-government militias, or anarchists. They can be ‘single-issue’ groups, such as animal rights or environmental rights extremists. And they can be ‘lone wolves’ with their own agendas. Think of Unabomber Ted Kaczynski.”

Why Isn’t Domestic Terrorism a Federal Crime?

Strangely, domestic terrorism in the United States is not a federal crime. The USA PATRIOT Act does not include as specific federal crimes acts of terrorism that occur within the nation that are not connected to designated international terrorist groups or their sympathizers.

Neither the 2015 San Bernardino, 2017 Las Vegas, the 2018 Pittsburgh shootings, nor the more recent attacks in El Paso or Dayton, are acts of domestic terrorism as defined by Section 2331 of Title 18, United States Code. The lack of a specific federal domestic terrorism law results in perpetrators facing charges such as gun law violations, obstruction of free exercise of religious beliefs resulting in death, hate crimes, use of a firearm to commit murder, or any other crime that applies. These crimes can be against the individual committing the act or those who aided and abetted.

Thomas Brzozowski, the Department of Justice’s counsel for domestic terrorism, framed the debate for NBC News by asking, “From a societal perspective, should we collectively have some means whereby the federal government acknowledges the qualitative nature of that violence, and elevates it above . . . murder that would be routinely handled by the state courts?”

Proponents of a statute specifically criminalizing domestic terrorism argue that prosecuting individuals who attack our nation would demonstrate that the threat of extremism is just as significant when based on domestic ideologies as it is when based on violent jihadism. Proponents further argue that a domestic terrorism statute would provide the FBI with more legal authority to increase its intelligence and investigative efforts.

Proponents like the FBI Agents Association believe it should be a federal criminal offense to:

  • Kill, kidnap or maim individuals
  • Destroy property in such a way that causes a significant risk of serious bodily injury
  • Intimidate or coerce a civilian population
  • Influence the policy of government by intimidation or coercion
  • Affect the conduct of a government

Who Are Our Domestic Terrorists?

The FBI currently lists 12 individuals as domestic terrorists. Of this dozen, 11 are related to incidents before 1985. Six are wanted for hijacking airplanes, and five for other actions or alleged involvement in a group advocating the overthrow of our government.

The FBI states, “It is important to note that it is legal to have hateful or extremist beliefs as long as you don’t commit crimes or violence based on those beliefs. The right to assemble (or gather) in groups is also protected by the U.S. Constitution.” The FBI lists six such groups:

      • Animal Rights Extremists and Environmental Extremists
      • Anarchist Extremists
      • Abortion Extremists
      • Militia Extremists
      • Sovereign Citizen Extremists
      • White Supremacy Extremists

Of note, it is essential to understand that the United States does not have a government agency to designate a domestic group as being a terrorist organization.

DHS’s Fight against Domestic Terrorism

In 2018, David Glawe, the Department of Homeland Security’s (DHS) chief of the Office of Intelligence and Analysis (I&A), reorganized the division by disbanding the unit of analysts who monitored domestic terrorism threats and shared information with state and local law enforcement.

After much media criticism that the reorganization would limit reporting on domestic terrorism, especially on white supremacy groups, the DHS’s public affairs office responded to the Daily Beast, which broke the story about the reorganization disbanding of the domestic terrorism unit, refuted the media claims.

“The idea presented by some that we have cut our commitment to defeating all forms of radical ideology — including white supremacist and domestic terrorist — is patently false and the exact opposite of what we have done,” the DHS statement said. “The Office of Intelligence and Analysis has significantly increased tactical intelligence reporting on domestic terrorists and homegrown violent extremists since 2016. The intelligence shared is actionable and frequently used by partners to take immediate steps of intervention.”

DHS Office Restructured to Be More Responsive to Customers

The DHS spokesperson added that “the same people are working on the issues. . . . We just restructured things to be more responsive to the I&A customers within DHS and in local communities while reducing overlap with what the FBI does. We actually believe we are far more effective now.”

According to Nate Snyder, a former senior DHS advisor from 2009 to 2017, the previous I&A domestic terrorism office had roughly 40 staff members and an annual budget of $24 million. Snyder said the new office has fewer than 10 full-time employees, and its budget is less than $3 million. While DHS is receiving support from the National Counterterrorism Center in assisting the efforts to combat domestic terrorism, it is not enough.

This past April of 2019, Acting Homeland Security Secretary Kevin McAleenan formed the Office of Targeted Violence and Terrorism Protection. This office focuses on both domestic and international acts of terrorism “as well as preventing acts of targeted violence such as racially motivated violence.”

Speaking before a House Homeland Security Committee session on August 8, McAleenan stated that he would also like more funding for the office and more investment in thwarting domestic threats. He pointed out that the DHS Office for Targeted Violence and Terrorism Prevention has an eighth of the funding as a similar program under the last administration. “I’ve asked Congress for an out-of-cycle budget request to help bolster it and increase our reach and capability. But it doesn’t cover the level and scope of effort across the Department of Homeland Security enterprise.”

DHS Hamstrung by Budgetary Requirements and Legislation

The DHS is hamstrung by three things — budgetary requirements necessary to meet its needs to counter domestic terrorism, a clear definition of domestic terrorism and an accompanying domestic terrorism criminal code. Shifting money and personnel around to support the fight against domestic terrorism is not the solution because that can result in a shortage of analysts who are needed elsewhere.

In March, the Domestic Terrorism Prevention Act of 2019, was introduced into both the House and the Senate. Should the bill become law, it would authorize dedicated domestic terrorism offices within DHS, the Department of Justice, and the FBI to analyze and monitor domestic terrorist activity. It would also require the federal government to take steps to prevent domestic terrorism.

To date, however, little action has occurred on either the House version (H.R. 1931) or the Senate’s (S-894). It is unlikely that either version will advance any time soon. In addition, as written, it would not meet the needs of the fight against domestic terrorism.

Brad Wiegmann, a deputy assistant attorney general with the Justice Department’s national security division, testified at the U.S. House Homeland Security Committee hearing in May. Speaking about the pending bills, he told the legislators “We do have a number of statutes that we use in these domestic terrorism cases, so the question is what gap would [a new law] fill exactly?” Wiegmann noted that a law similar to what we have on the international side is “not what we want for good policy reasons.”

In response, Representative Michael McCaul (R-Texas) acknowledged that “designating groups as domestic terrorist organizations and picking out particular groups that you say disagree with their views and so forth will be highly problematic in a way that it is not with an international terrorist organization.” He said he could foresee other ways to use current hate crime statutes for domestic terrorism using the definition we have in the code. “So it certainly a discussion we’re open to having with the Congress,” McCaul added.

In the end, it is easy to see why the nation has a domestic terrorist problem and that a solution does not lie with any one agency or political party. Rather what we need is a bipartisan effort to examine the various issues related to our domestic terrorism policy with input from stakeholders at all levels of the government, private industry, educational systems and our citizens.

About the Author

Dr. Brian Blodgett is an alumnus of American Military University who graduated in 2000 with a master of arts in military studies and a concentration in land warfare. He retired from the U.S. Army in 2006 as a Chief Warrant Officer after serving over 20 years, first as an infantryman and then as an intelligence analyst. He is a 2003 graduate of the Joint Military Intelligence College where he earned a master of science in strategic intelligence with a concentration in South Asia. He graduated from Northcentral University in 2008, earning a doctorate in philosophy in business administration with a specialization in homeland security.

Dr. Blodgett has been a part-time faculty member, a full-time faculty member and a program director. He is currently a full-time faculty member in the School of Security and Global Studies and teaches homeland security and security management courses.

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