The Threat At Home: How The U.S. Will Confront Domestic Terrorism

Read a report from the Congressional Research Service on domestic terrorism here.

October 2020. Investigators say more than a dozen men spent months training to kidnap Michigan Governor Gretchen Whitmer. It was, legal experts agree, an act of domestic terrorism. So was the deadly insurrection at the U.S. Capitol on January 6 this year.

After decades fighting an international war on terrorism, the U.S. turns its attention home. What will a battle against domestic terrorism look like?

Rep. Abigail Spanberger, representative for Virginia’s 7th district. Former case officer for the CIA. (@RepSpanberger)

Elizabeth Neumann, director of the Republican Accountability Project. (@NeuSummits)

Hina Shamsi, director of the ACLU National Security Project. (@HinaShamsi)

Adam Tamburin, investigative reporter for the Tennessean. (@tamburintweets)

How are people on Capitol Hill talking about the threat of domestic terrorism?

Rep. Abigail Spanberger: “The conversation on Capitol Hill is an interesting one, because, of course, we saw up close and personal a terrorist attack on the United States Capitol. We were in the process of finalizing the results of the election, a constitutional duty that we, as members of Congress, have when that attack occurred. And it's broadly known that that attack occurred by those who wanted to disrupt that day and that duty. And so on Capitol Hill, the conversations are starting at various points.

"Some of it is still trying to understand the attacks of January 6th and what actually occurred. Some people are talking about, legislatively speaking, what is it we need to do next? Some people are talking about how do we understand this threat? How did it come to be? How did it grow so deep that we would see this attack on January 6th? And frankly, I think all of those conversations are very, very important because it is a process.

"We have to understand the scope of this threat, where it comes from, where the ideology has taken root, how it has taken root, before we can begin to see a process by which we can fully thwart it. ... So the conversations are ongoing. And I think we should expect to see that for unfortunately years into the future as we contend with the threat of domestic terrorism.”

Do we even understand the scope of the threat right now?

Elizabeth Neumann: “I think the lack of preparation on January 6th tells us that we don't. There have been people raising the alarm over the last 10 years, in particular over the last three or four years, about this growth of violent white supremacy, a growth of violent anti-government extremism, primarily in the form of militias, private militias, which are illegal in all 50 states. But a lot of misinformation out there about what they are.

"And for some reason — and when I was in government, I would often get briefed that while these groups do pose a threat, they are very disorganized. They tend to attract adherents that don't get along with one another and therefore can't seem to get their act together to ever do something of a coordinated nature the way that al-Qaida could with 9/11. And it almost created this complacency that what you're dealing with are largely just disaffected individuals that love to have their grievances.

"They shout a bunch of rhetoric online. Occasionally it spills over into something that might be considered a local or a state law enforcement concern. But there wasn't quite the attention to it that it really deserved until you saw around 2018, 2019. DHS and then FBI followed suit to say, Hey, the threat from violent white supremacist is on par with what we're seeing out of ISIS. But even then, that didn't seem to change the posture of how to interpret all of the warning signs we were seeing leading up to January 6th."

Do we have tools to investigate the threat of domestic terrorism? 

Rep. Abigail Spanberger: “I think the tools for investigating criminal offenses are there, absolutely. It depends on if someone wants to make the argument of how it is that we're following in linking these foreign terrorist networks. So I have heard recently a lot of people saying, Well we do it with al-Qaida. We do it with ISIS. Why aren't we doing it with these domestic terrorist organizations, or domestic ... extremist organizations?

"And part of the challenge here is because there are criminal statutes that allow for federal investigators to do that link analysis. To charge someone with material support to terrorism, which is just not something with even just being a member of al-Qaida or ISIS. And that doesn't exist in the domestic space. And there's a variety of legislative proposals that we have before Congress right now. My colleague, Representative Schneider, has one that would just authorize domestic terrorism organizations within DHS and the Department of Justice and FBI to analyze and monitor domestic terrorist activity and require the federal government take steps to prevent domestic terrorist activity.

"And so this is an issue of provision of resources and training, establishment of interagency task force and directing DOJ to offer support to communities where there may be nexuses to domestic terrorism. And so there are proposals out there that would pivot attention to the threat of domestic terrorism without necessarily applying the same sort of legal standard or without creating the same sort of permissible tools to investigate them as [exists] with foreign terrorism."

On the constitutional challenges of investigating domestic terrorism 

Elizabeth Neumann: “Going back to those constitutional challenges, and I don't mean that in a bad way, I love our Constitution. But we cannot investigate what is happening inside our homeland quite the same way we can run intelligence operations and collection overseas. So there's already kind of a capabilities gap that's most likely always going to be there. I can't ever see us making significant changes. It would require constitutional amendments. So what you're left with is knowledge that's obtained through investigations, those are FBI led.

"And one of the most important things to realize is, domestically speaking, when we talk about understanding threats and adversaries, the intelligence community is made up of 17 different agencies. And then the national security community also includes, you know, beyond the intelligence community, the DOD and the State Department there, all this, all these large organizations, they're very outward focused. They're looking at what's going on around the world. And that creates this collective knowledge about our friends and our adversaries overseas.

"Domestically speaking, there really are only two agencies that have the statutory authority to be doing work inside the homeland. That's DOJ and DHS. And then, of course, as I just mentioned, they're kind of restrained in how they do that. So you already are narrowing the scope of the number of institutions that can look at things. And then largely the way that we do counterterrorism here in the United States is with and through our state and local partners, as well as private sector partners. So everything that we do to secure the homeland is done through that partnership structure.

"It is not DHS is the first preventer or DHS is the first responder. It's always equipping, empowering, informing our partners to the best of our ability so that they can go and do the necessary work to secure. And then the last piece is certain types of threats do justify bringing in the FBI and their authorities to be able to investigate. And there are a number of law enforcement agencies that DHS has that contribute to those counterterrorism investigations. But the reason I lay all that out is to say the information that we can collect domestically is largely in the form of investigations.

"And one of the things that I found as we started to notice a rise in attacks, anti-Semitic attacks in particular, and you started hearing from experts, not in the government, but outside experts like the ADL, you started to hear ... we're seeing an uptick in hate crimes. We're seeing an uptick in these attacks. Something is happening. And so you would turn to the intelligence analysts and say what is happening? And they couldn't tell you because they were looking at this through the traditional strategic intelligence lens of trends and tell us about certain types of groups and movements.

"They were looking at it through an investigation lens. And this has been a common challenge historically over the last 20 years. The FBI's job is to investigate and disrupt. It is not necessarily to produce strategic intelligence. DHS was supposed to fill that gap. But in order for DHS to do that, or we also have the National Counterterrorism Center and their authorities allow for limited support in the domestic space. But in order for them to produce that strategic intelligence, they need access to data, which is FBI case file data. So it created this challenge.

"And it wasn't until I would say in the last year that analysts were able to start stitching together something of a strategic picture which led to that homeland threat assessment, that if you look underneath the hood, they still lack data, which is why you've seen movements on the Hill to try to increase the collection of data on these collecting hate crime statistics, for example. It would be extremely helpful if you could somehow force our state and local partners to collect that data and share it with us.

"But the other thing that the Biden administration did I want to say was second or third day in office, he signed an order to the DNI to do this assessment and he told them to go talk to outside experts. That's hugely important because I found in leaving government I had more time to go talk to those experts. I learned so much more from the people that are outside of government than the people that are inside government."

On other limits to investigations of domestic terrorism

Rep. Abigail Spanberger: "I think the last point that Elizabeth made was a very, very good one in laying the groundwork to answer this question. She mentioned that you've got 17 different intelligence community agencies, but you've got only DOJ and DHS who work what would be domestic terrorism. And so as a former CIA officer, I was an operational person, but our intel analysts would spend day and night tracking out these networks, tracking out what's driving people, tracking out the talking points, tracking out the links between who's talking to who and where and why.

"Not only to get at where there might be an attack and who might lead that attack, but what's motivating it, how they're recruiting people, how they're bringing people into the fold. And so when we're talking about what's happening, if we're talking about al-Qaida or ISIS, if this had been that type of scenario, talking about the Tennessee bombing. If this man had been perhaps an adherent of those ideologies, or had been trying to fall in ... made contact with al-Qaida, you know, as a young man overseas trying to fall in with a terrorist organization, that's something that through a gathering of intelligence separate from and apart from an actual criminal act, people would have insight into that.

"They would see those networks, what brought him in? What was the effort to bring him into the fold? And to get at your question, that's the real challenge. And to Elizabeth's comment, looking at what's happening actually in think tanks and in research around domestic violent extremist groups and domestic terror groups is a real source of information because that's not happening within the Intelligence Committee. And arguably it should or it shouldn't.

"That's not the point. But how do you then get at what are the lies, what are the conspiracies? What are the motivations and ... the calls to action? ...  And to bring it to January 6th, what is this lie that happened for months and months that made people, gave them their call to arms to attack the Capitol? That has to be part of the larger investigation."

Washington Post: "DHS announces $77 million in grant funding to combat domestic terror and extremism" — "The Department of Homeland Security said Thursday it would provide $77 million in grant funding for state and local governments to combat domestic violent extremism, announcing one of the Biden administration’s first concrete measures aimed at preventing attacks by homegrown terrorists."

USA Today: "As Joe Biden weighs domestic terrorism law, let's ask Merrick Garland" — "The fight against domestic terrorism creates awful choices for a free society. The sacking of the U.S. Capitol by insurrectional rioters demonstrates beyond question that violent extremism is America's reality now. Then President-elect Joe Biden wasted no time labeling them domestic terrorists."

The Tennessean: "Retracing the key moments after the Christmas morning bombing in Nashville" — "In the dark, early morning of Dec. 25, the sound of gunshots broke the silence on Second Avenue. It was the opening salvo of a Christmas like no other, and a horrific finish to a hard year of disaster and disease."

Chicago Tribune: "Column: We have a ‘domestic terrorism’ double-standard problem" — "To paraphrase the great sage Samuel Johnson, nothing concentrates the mind of a member of Congress like the prospect of being hanged in a mass assault on the U.S. Capitol."

USA Today: "Lack of domestic terrorism law creates an imbalance" — "A domestic terrorism law, one that is narrowly tailored and fused with accountability and oversight safeguards that ensure civil liberties are preserved, is necessary."