A New Approach to Domestic Terrorism

Javed Ali, Policymaker in Residence, University of Michigan

Javed Ali is a Towsley Policymaker in Residence at the University of Michigan’s Gerald R. Ford School of Public Policy and had over 20 years professional experience in Washington, DC on national security issues, to include senior roles at the Federal Bureau of Investigation, Office of the Director of National Intelligence, and National Security Council.

Thomas S. Warrick, Nonresident Sr. Fellow, The Atlantic Council

Thomas S. Warrick is a nonresident senior fellow with the Middle East programs group at the Atlantic Council and the Director of the Future of DHS Project. From August 2008 to June 2019, Mr. Warrick was the Deputy Assistant Secretary for Counterterrorism Policy at the US Department of Homeland Security (DHS) and a career member of the Senior Executive Service.

OPINION — In the aftermath of the January 6 mob attack on the US Capitol, President Biden said during his inaugural speech “we must confront and we will defeat” domestic terrorism and white supremacy.

His administration is already moving forward, with counterterrorism veterans like Russ Travers, Josh Geltzer, and Clare Linkins—respected experts we worked closely with in our government careers—to key roles in the White House as part of this new effort.  What is not yet clear, however, are the specific elements of any new approach, how long they will take to implement, and whether they have to await new legislation or a national commission.

Given the shortfalls in the existing US approach to domestic terrorism, the Biden administration’s focus should include everything: changes on the legal, intelligence policy, resources, and bureaucratic fronts. However, some changes are more urgent than others, and the prioritization needs to be bureaucratically ruthless in ways that may surprise some people.

Even before January 6, there was ample evidence that the domestic terrorism threat had grown across the United States.  After January 6, there are clear signs that groups involved in the violence are preparing for more attacks and are targeting both federal and state officials and buildings.

On the legal front, one of the more hotly debated aspects is whether we need a new statute that explicitly criminalizes domestic terrorism.  The existing definition of domestic terrorism has no criminal penalties attached to it, so federal prosecutors bring charges under criminal laws relating to murder, explosives, assault, destruction of federal property, and trespass charges. An effort to put teeth into existing law will require Congressional support and will need to be drafted carefully to respect the Constitution. Future administrations should not be able to abuse the statute by using it against peaceful protesters exercising their rights. This will take time.

Second, we need to consider changes in intelligence policy. The United States does not have a domestic intelligence organization like the British Security Service, known as MI-5.  US citizens enjoy Constitutional protections, and law enforcement agencies like the FBI, DHS, and the US Intelligence Community are limited in what they can do to collect “upstream” information about potential threats before violence occurs.

Publicly shared posts on social media about possible violent threats most times, will not automatically be acted on by the  FBI; unless tipped by platform owners or concerned citizens; even then, there are limits to what FBI and DHS can do with such information. The White House has already the Office of the Director of National Intelligence to lead and coordinate a new   intelligence assessment on domestic terrorism, reinforcing statements that Avril Haines, already confirmed as the Director of National Intelligence (DNI), made about an increased focus from her organization.

Third, examining how the government is currently structured to tackle domestic terrorism should also be part of this new plan.  Currently, the FBI is the lead federal agency for investigating and analyzing domestic terrorism. No one is suggesting this should change, even though domestic terrorism is only one of the FBI’s many priorities.

As the FBI further stretches out its own resources on domestic terrorism, other departments and agencies like DHS, DOJ, and the National Counterterrorism Center (NCTC) will need to do more. Similar to statements made by DNI Haines, Alexander Mayorkas, whom the Senate should confirm quickly as DHS Secretary, has pledged his department will increase its focus on domestic terrorism. State and local governments also need to play a vital role, especially against private militias.

While the administration looks to develop an action plan encompassing these elements and more, we strongly urge that this plan cannot wait until the administration releases a formal strategy. Previous national counterterrorism strategies took more than a year—the threat is far too urgent.

The administration must also immediately start the emergency supplemental appropriations process to get additional resources this year to the FBI, DHS (to pass on to state and local governments) and DOJ. Waiting for the next annual appropriations cycle will cost a year that the nation cannot afford.

The events of 6 January suggest now is the time for the Biden Administration to put forth a new, more fully resourced approach to tackle domestic terrorism that respects the Constitution but prevents violent extremists from undermining or overthrowing it. The American people may be politically divided, but there needs to be bipartisan support, and action, for the proposition that for everyone who says they support the Constitution, violent extremism is not the way.

Read more expert-driven national security insights, perspective and analysis in The Cipher Brief

3 Responses

  1. David Percelay says:

    I think it’s well past time for the US to enact a domestic, federal counterterrorism law or laws legislated in a Constitutional manner that, of necessity, would need companion intelligence and enforcement to provide real teeth.

    As well, I believe — whatever 9/11-type Commission is empaneled to consider policy options going forward — that one among others should be the pros and cons of an American version of the UK’s MI5…carefully constrained by a tight charter (not unlike CIA’s); Congressional oversight; strict prohibitions preventing the Chief Executive from exploiting the Agency for his/her own political agenda; and an emboldened Office of the Inspector General.

    This Agency could report into the ODNI, though I anticipate such as step would meet with immediate resistance from the FBI and its alumni of Special Agents and past Directors. Nevertheless, the Commission would need to assess whether The Bureau, which is geared toward making prosecutable cases and solving crimes and/or mitigating their human toll after the fact, is the best way to preempt domestic terrorism, including the attendant challenges of Countering Violent Extremism (CVE).

    These roles should arguably fall under one authority, with the role, responsibility and authority for CVE programs; for intelligence programs; periodic reports not only to Congress, but to the American People as well; enforcement; liaison with a to-be-establish “DISA” court; and for providing protective services to members of Congress (and their immediate families) threatened by extremists in connection with their work at and related to their elected positions at our nation’s Capitol.

    Again–this should be only one of a number of policy options such a Commission should examine.

  2. Frank Jamdrowitz says:

    The article raises interesting points but also raises trouble some issues. How far do you go without violating constitutional rights. Also concerning is the danger of selective focus. All terrorist groups must have focus. Not just those who assaulted the Capitol. Federal buildings and state capitols have been under seige. Political allegiance shouldn’t be a criteria

  3. Charles Tilby says:

    I have personally been involved in the investigtion and prosecution of domestic terrorism cases as a local police official in partnership with federal law enforcement agencies. I disagree that we need new laws to define and combat domestic terrorism. The major difference between domestic and international terrorism is that domestic actors are protected by the constitution. This is absolutely sacred and is not a significant impediment to countering domestic terrorism. Rather than passing new laws which will stretch or bend constitutional protections, it is quite simple to charge violations of existing criminal laws. What we could use, however, is a classification/sentencing enhancement for those crimes that are committed with terroristic intent (the definition of which is contained in almost every definition of terrorism I have seen). By adding these relatively simple enhancements we would not have to define new crimes.

    Intelligence operations already are allowed when there is a “reasonable suspicion” that an individual or a group are commiting, or are about to commit, a crime. This is a an effective bar, and one that has already been litigated successfully in the United States and determined that it is consistent with constitutional protections.

    We need not waste time and energy passing new, and arguably politically motivated, laws but effectively use existing laws which ensure constitutional protection.

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