Anti-Terrorism Legislation

A Road Map for Congress to Address Domestic Terrorism

By Mary B. McCord, Jason M. Blazakis
Wednesday, February 27, 2019, 8:00 AM

On Feb. 15, federal law enforcement arrested U.S. Coast Guard Lieutenant Christopher Paul Hasson, whom the government alleged had stockpiled an arsenal of weapons and equipment while writing about his intent “to kill almost every last person on the earth” in order to create a “white homeland.” Most recently, according to court filings submitted by the government, he allegedly began researching potential targets, including congressional leaders, activists and journalists, and conducting internet searches such as “where do most senators live in dc” and “are supreme court justices protected.” Hasson has been charged with firearms and drug possession, and federal prosecutors have told a U.S. district court judge they are considering additional offenses. But prosecutors won’t be able to charge him with “domestic terrorism”—because there is no such federal crime.

Similarly, federal prosecutors were not able to include a domestic terrorism offense in the indictment of Robert Bowers, who viciously murdered 11 people and injured many more in a shooting spree at the Tree of Life Synagogue in Pittsburgh when he opened fire with an AR-15 and multiple handguns. Although Bowers was charged with 44 counts, including federal hate crimes, the indictment does not label him the domestic terrorist that he is.

We have each called for the enactment of some form of domestic terrorism statute in the past. In 2019, it remains clear to both of us that the U.S. government needs to do more to counter the domestic terror threat. With new attacks or threatened attacks occurring with alarming frequency, it is time for Congress to explore what policy approaches should be taken to deter future hatemongers like Hasson and Bowers.

Congressional Hearings

First, Congress needs an accurate assessment of the threat. By most indicators, acts of domestic terrorism by far-right extremists are increasing at a rate  higher than acts motivated by Islamist extremism in the U.S. homeland. Meanwhile, federal law enforcement agencies have been criticized for their lax and uneven commitment to investigating and disseminating information about the rising far-right threat.

Congress should begin by convening hearings at which government and nongovernment researchers and analysts can provide information and conclusions drawn from their efforts to collect and analyze data related to domestic terrorism incidents and hate crimes. What do the statistics show? What are the trends? Are particular political, geographic, demographic or socioeconomic factors involved? What parallels, if any, are there to the Islamist extremist threat in this country? What are the push and pull factors that lead a person to advance along the path of radicalization from extremist ideology to violence? How are domestic terrorists propagating their messages and recruiting new members?

Second, with a comprehensive assessment of the current threat picture, Congress should consider whether the federal government has properly prioritized and resourced efforts to counter the domestic terrorist threat.

What federal departments and agencies are collecting data related to domestic terrorism? Do they have the tools they need? Although the FBI’s Uniform Crime Reporting (UCR) Program collects data about bias-motivated crimes from state and local law enforcement agencies, the reporting is voluntary and significantly undercounts actual incidents of hate crimes. And even if the reporting were mandatory, leading to greater accuracy, hate crimes—defined by the UCR Program as motivated by biases based on race, ethnicity, religion, sexual orientation, disability, gender and gender identity—do not necessarily include all acts or attempted acts of domestic terrorism, which may be motivated by political, economic and social extremist ideologies.

Nonprofits such as the Anti-Defamation League and the Southern Poverty Law Center collect and analyze data related to extremist incidents and extremist groups. The National Consortium for the Study of Terrorism and Responses to Terrorism at the University of Maryland collects and analyzes terrorism and extremism statistics worldwide. But does any federal department or agency produce a comprehensive analysis of domestic terrorism trends? If not, why not? When the Department of Homeland Security’s Extremism and Radicalization Branch released a report calling attention to the resurgence of right-wing extremism in 2009, it faced such pronounced political backlash that the department rescinded the report.

Finally, what are the mechanisms for disseminating information about the threat to state and local law enforcement and the American public? The FBI operates Joint Terrorism Task Forces (JTTFs) in 104 cities across the country, combining over 4,000 federal, state, and local law enforcement and intelligence specialists to investigate terrorism. But do the JTTFs properly prioritize (or have the mandate or resources to prioritize) the domestic terrorism threat? Given their voluntary nature, is there some other structure that would better address the threat? Can and should the private sector be a part of these efforts?

Enacting Legislation

With the groundwork set, if Congress determines—as we believe—that there is no central repository in the federal government for systematically collecting, analyzing and disseminating data on acts of domestic terrorism and hate crimes, it should consider legislation that establishes a mechanism and requirement to keep track of these incidents. One possible analogue could be the State Department’s congressionally required Country Reports on Terrorism. Those reports, among other things, include a statistical annex of worldwide incidents of terrorism. The Department of Homeland Security and the FBI seem like the logical entities to produce a comprehensive annual domestic terrorism report.

But more than just accurate reporting is needed. Congress should also introduce and pass legislation creating a domestic terrorism offense. Draft legislation could be the catalyst for the hearings recommended above. Based roughly on current 18 U.S.C. § 2332b, the statute could make it a federal criminal offense to kill, kidnap, maim, commit an assault resulting in serious bodily injury or an assault with a dangerous weapon, or destroy property causing significant risk of serious bodily injury, when done with one of the intents included in the current federal definition of domestic terrorism: (1) to intimidate or coerce a civilian population, (2) to influence the policy of government by intimidation or coercion, or (3) to affect the conduct of a government. The statute should apply to attempts and conspiracies too.

Enacting a federal crime of domestic terrorism would place it on the same moral plane as international terrorism, as one of us has written before. It would also bring with it more resources (the FBI would, after all, be responsible for investigating domestic terrorism and enforcing the statute) and better data (especially if paired with mandatory reporting requirements).

But it could do more than that, as the case of Hasson demonstrates. If domestic terrorism were made a federal crime, it could be one of the predicate crimes listed in 18 U.S.C. § 2339A: “Providing material support to terrorists.” That statute criminalizes providing material support or resources “or conceal[ing] or disguis[ing] the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for or in carrying out” any one of a list of terrorism offenses. With domestic terrorism added to this list, Hasson’s stockpiling of weapons and other equipment with intent to use them to commit the crime of domestic terrorism would fall within the scope of this statute, and would itself constitute providing material support to terrorists.

Making domestic terrorism an offense that people and organizations are prohibited from materially supporting avoids constitutional and other concerns that would be raised if the government were to designate domestic organizations as terrorist organizations, the way it does for foreign terrorist organizations (FTOs). Under a separate statute, the designation of an organization as an FTO means that providing material support or resources (defined to include tangible or intangible property or services) to an FTO is itself a federal crime. This is a strong deterrent, not only for people thinking of joining an FTO like the Islamic State or al-Qaeda, but for private companies whose products or services might be used by FTOs and their members. But designation of a domestic organization as a terrorist organization would raise serious concerns about infringing on First Amendment rights and cause legitimate fears that the designation tool could be used wrongly to target unpopular ideologies.

By contrast, including domestic terrorism among the list of crimes that one is prohibited from materially supporting (such as through the stockpiling of weapons) does not raise the same concerns. To the extent that fear about possible abuses remains, any domestic terrorism statute should come with appropriate oversight requirements. Annual reporting on the number of domestic terrorism investigations opened, which individuals or groups were targeted, the predication for opening the investigations and the results of those investigations is one way to ensure that additional resources put toward the domestic terrorist threat are not misused.

Additional Considerations

Enacting a domestic terrorism criminal offense is a first step that should be considered now, in conjunction with convening the hearings we recommend at the outset of this road map. The sitting U.S. attorney for the Western District of Virginia recently called for such legislation. But Congress should also, as part of this effort, consider how to counter domestic groups that seem to have as their primary purpose a philosophy of political change via violent means.

There are inherently violent domestic groups already operating in the United States. Groups like the Rise Above Movement (RAM) and the Atomwaffen Division (AWD) are examples. If designating these groups as domestic terrorist organizations risks running afoul of the First Amendment, are there other steps that can be taken short of proscription? Are there links between these groups and foreign-based groups that could provide additional policy and legal options? The recent arrest of Robert Rundo, RAM’s leader, after returning from an overseas trip, underscores the group’s cultivation of like-minded foreign-based extremists. Are those foreign-based groups sanctioned by the Departments of State or Treasury pursuant to those departments’ legal authorities? Should they be? These questions deserve the attention of elected leaders as well as the public they serve.

Congress has the opportunity now to chart a course, using hearings, legislation and oversight, to begin to counter the domestic terrorist threat. Victims of terror and hate deserve more than political bickering. They need action.