Prosecuting Domestic Terrorism Is Notoriously Difficult. This New Team of Lawyers Has A Mounting Caseload

A year after thousands of pro-Trump rioters invaded the U.S. Capitol by brute force, the Biden Administration has a new tool to battle the growing problem of violent extremism inside 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.

But while the Biden Administration has been scant on details on the new unit, former Justice and FBI officials and lawyers say it is likely to run into the same issues that have hamstrung such efforts for 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.

Instead, the unit will presumably rely on existing laws to charge domestic terrorists with other offenses, such as hate crimes 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 decades focused on foreign terrorist groups, the Justice Department has struggled in recent years to allocate law enforcement resources to keep up with the rapidly growing number of federal investigations into violent domestic extremists. The Jan. 6, 2021 insurrection was the most public example of that homegrown threat, which has rapidly metastasized. FBI officials say their domestic terrorism investigation caseload has more than doubled from 1,000 to 2,700 over the last 18 months alone, forcing the agency to increase personnel by 260%.

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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. In its budget proposal last May, the department also requested an additional $101 million to address domestic terrorism. This includes $45 million for the FBI, with 179 additional positions dedicated to the domestic threat, including 80 agents, and $40 million for federal prosecutors to add 100 extra positions across the country to handle the growing number of domestic terror cases.

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. These crimes tend to carry weaker penalties, whereas links to a foreign terrorist group alone carries a sentence of at least 20 years in prison. As a result, prosecutors sometimes find work-arounds in order to build a case against them. In 2020, for example, the FBI linked two members of the far-right extremist group Boogaloo Bois to Palestinian group Hamas in order to charge them with “material support” to a foreign terrorist organization.

The Justice Department currently has at least 35 counter-terrorism attorneys working on both international and domestic cases, according to officials. The new DOJ unit would formally commit some of them to domestic cases. (A Justice spokesman declined to say how many). 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? And are they going to set new guidelines? Will they ever come out and support a [domestic terrorism] statute and say, ‘It’s time?’” Figliuzzi asks. “If you wait until the violence occurs, you’re simply cleaning up the wreckage.”

The FBI, which has had a section dedicated to domestic terrorism for years, has warned about the growing threat, but successive administrations in the post 9/11 era have been more focused on jihadist groups. As a result, agency leadership hasn’t prioritized cracking down on domestic extremists. After the 1995 Oklahoma City bombing, in which 168 people were killed in the deadliest act of homegrown terrorism in U.S. history, Congress included new language in existing federal law to address terrorism driven by domestic causes. 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.

This has pitted them against civil rights advocates who argue that the federal government already has the necessary tools to go after domestic terrorists, and who warn that new laws could be used to crack down on constitutionally protected free speech and disproportionally target minority communities, as the Patriot Act did in the wake of 9/11. In a Jan. 19 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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In the wake of Jan. 6, the FBI Agents Association, which represents more than 14,000 agents, pushed back on this criticism, voicing support for a new domestic terrorism statute that they say would allow them to stem violence 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 state officials have also pushed for a domestic terrorism statute. “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 already at their disposal, pointing to the decades-long deprioritization of far-right and white supremacist violence. “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.”

For now, it seems unlikely any legislative effort to create a new domestic terror law will succeed. 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. This narrative is reinforced by the implication that the U.S. government could soon use these classified tools and tactics intended to target foreign terrorists on people suspected of being domestic extremists, German says. The new DOJ unit should avoid these methods wherever possible, he adds, because it opens up the possibility of more errors 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.