The Far-Right and Domestic Terrorism: Legislation’s Day in the Sun?

Propaganda image used by The Base. Photo Credit: Telegram.

The recent arrest of members from “The Base,” a neo-Nazi militant group, highlights the continued threat of domestic terrorism in the United States. Three individuals were arrested by the Federal Bureau of Investigation (FBI) on January 16, 2020 and are now facing federal firearms, conspiracy, and smuggling charges. The three men, Brian Lemley Jr., William Bilbrough IV, and Patrik Matthews, possessed a machine gun and allegedly planned to incite violence at the January 20th Gun Rights Rally in Richmond, Virginia.[1] Their group is ideologically-motivated and subscribes to an anti-Semitic, neo-Nazi belief system.[2] It is most active in the United States but claims to have chapters in Australia, Canada, and South Africa.[3] Although these individuals’ intended actions and political ideology could be approached as terrorism, they will not be prosecuted under any domestic terrorism statute.

The arrests illuminate the challenges concerning domestic terror legislation and policy within the United States. In the wake of the September 11 terrorist attacks, the Patriot Act providedlaw enforcement broad capabilities to disrupt foreign terrorist plots but provided less clarity on domestic terrorism.[4] Although law enforcement investigates domestic terrorism crimes, there is no specific federal offense for domestic terrorism that perpetrators can be charged under. Moreover, there are limits to the tactics the FBI can use to monitor domestic groups and limits on what federal prosecutors can charge, which results in many cases of domestic terrorism being delegated to local prosecutors.[5]

The Trump Administration named domestic terrorism as a key priority in its 2018 National Strategy for Counterterrorism, stating that “the United States has long faced a persistent security threat from domestic terrorists who are not motivated by a radical Islamist ideology.”[6] The document sets the priority to “investigate and integrate threat information relating to domestic terrorists and their overseas counterparts” and specifically delineates terrorists not motivated by Islamist ideology.[7] Similarly, Congress is beginning to pay more attention to the domestic terror threat. In the past year, several pieces of legislation have been introduced in both the House and the Senate, including the Domestic Terrorism Prevention Act of 2019, the Increasing Efficiency of All United States-Based Terrorism Information Sharing Act of 2019, and the Domestic Terrorism Penalties Act of 2019.[8] When considered together, these pieces of legislation and the White House strategy present three potential paths toward an increased focus on domestic terrorism, leveraging existing authorities, creating a dedicated office, or creating a domestic terrorism statute that mirrors the international terrorism statute.

Investigate Foreign Terrorist Connections

Within existing authorities, the 2018 National Strategy for Counterterrorism specifically discusses investigations of the foreign connections of domestic terror groups to better monitor their potential mobilization to violence. This strategy takes into account the effects of globalization on the spread of racially-motivated violent extremism. Currently, the authority to designate an organization an official Foreign Terrorist Organization (FTO) is held by the State Department, but the current list of FTOs does not include any racially-motivated extremist groups that operate outside the United States.[9] Investigating the foreign ties of domestic terror groups operating within the United States could add branches of those organizations to the FTO list, expanding the tools available to law enforcement to investigate and disrupt their activities.

Create Dedicated Domestic Terrorism Offices

Proposing a more involved organizational solution, the Domestic Terrorism Prevention Act of 2019 would create a dedicated domestic terrorism office within the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the FBI to analyze and monitor domestic terrorist activity and to take steps to prevent domestic terrorism.[10] Both DHS and the FBI have taken steps to focus their attention on domestic terror groups, with the FBI indicating that it has over 1,000 active investigations and DHS publishing an assessment on domestic terrorism and a strategic framework that would increase information sharing.[11] Establishing a dedicated domestic terrorism office in DHS, DOJ and the FBI would be a concrete step in formalizing resources and focus on the domestic terrorism threat. Furthermore, the Increasing Efficiency of All United States-Based Terrorism Information Sharing Act would increase information-sharing within the intelligence community on all domestic terror threats regardless of their ideological motivation.[12] This legislation would complement the establishment of domestic terror offices by codifying intelligence sharing on the domestic terror threat.

Develop a Domestic Terrorism Statute

Most ambitiously, the Domestic Terrorism Penalties Act would establish federal penalties for domestic terrorism that mirror those used to prosecute international terrorism, and it would expand the tools available to law enforcement when investigating domestic terrorism. Currently, the FBI must know that an individual perpetrating a violent or criminal action is doing so to support an ideology in order to investigate that individual.[13] Just being associated with a group or movement is not grounds for an individual to be investigated, even if that group has a dangerous ideology.[14] Creating a domestic terrorism statute would give law enforcement leverage as they take on domestic terror organizations and the proper authorities to use a wider set of tools to investigate an organization.

Counterarguments to Legislation

Increasing national security capabilities and expanding the investigative power of law enforcement does not come without a risk of diminished civil liberties. Criticisms against the creation of a domestic terrorism statute center on a concern for first and second amendment rights and possible federal abuse or prosecutorial overreach. Critics fear that an expanded domestic terrorism statute would allow law enforcement to target individuals based on public comments or protected first amendment right to free speech.[15] In the 1950s and 1960s, the United States did have a domestic terrorism watch list, and the federal government abused the powers it was awarded to monitor those groups, such as civil rights movements.[16] Michael German and Sara Robinson of the Brennan Center for Justice argue that the FBI already has all the authorities it needs to address domestic terrorism, and that expanding those authorities would risk abuse of power by targeting protesters and political dissidents.[17] Any legislation will have to balance these criticisms with law enforcement’s requests for expanded capabilities.

Conclusion

The threat of domestic terrorism is real and growing. Attacks by right wing extremists have killed more people in 2018 than in any other year since the Oklahoma City bombing.[18] The Trump administration’s 2018 counterterrorism strategy specifically identified domestic terrorism as a priority for the United States and Congress is taking tentative steps to address the issue with legislation, which sets the stage for a much-needed discussion surrounding potential pathways forward for policy. As we continue to evaluate the type and scope of domestic terrorism legislation necessary to properly address the threat, the government will have to walk a fine line between civil liberty and security.