A Slippery Slope: Concerns About a Domestic Terrorist Designation
Overt Operator
March 08, 2023
Photo: TapTheForwardAssist | Wikimedia Commons
What do the Proud Boys, the Oath Keepers, Antifa, the Ku Klux Klan, and Black Lives Matter all have in common?
At one point or another, there were calls to federally designate these groups as domestic terrorist organizations. At no time was this desire more apparent than during the months-long national protests following the murder of George Floyd, where President Trump tweeted that the U.S. would designate Antifa as a domestic terrorist organization.
Just this week, Rep. Marjorie Taylor Greene (R-GA) announced a bill that would declare Antifa as a 'Domestic Terrorist Group', following the violent and seemingly coordinated attack on Atlanta police officers on March 7th.
However, this type of thinking is not only becoming increasingly common from the political right, but also from the Democratic Party and Executive Office itself.
President Biden has been outspoken about who he believes to be the true domestic terrorist threat to our country - those who stormed the Capitol on January 6th.
So why should we care if our fellow Americans are called terrorists? Surely they are acting in a way that fits the definition, right?
This type of logic is reasonable - why worry if I'm not involved in such activity? On paper, the label makes sense - these domestic groups are seeking to influence the government or population through the use of violence or force. However, the answer lies in the details of the legal designation itself and the authoritative options that are opened as a result.
Currently, there is no federal law in the United States that specifically criminalizes domestic terrorism, which presents a challenge in prosecuting individuals or groups under that designation.
States, such as Georgia, have passed a law that defines the term and have charged individuals under this statute. However, these charges are not on equal footing with federal terrorist charges.
Even if the rhetoric from President Trump and Biden rang hollow, there was still a political benefit to this messaging - it served the purpose of stirring their respective bases, identified a threat to focus national attention on, and drew a clear line of civil acceptability.
The labeling of a group as terrorists has acted as a way to make available new means of combat, and also serves as a clear symbol of how the government plans to handle non-state actors.
In this context, this extremely damning language was used as a tool to condemn parties loyal to the political opposition, identify individuals as persona-non-grata, and expand and consolidate centralized power. Politicians and government officials may attempt to shift public opinion, and socially alienate entire groups by simply calling them “terrorists".
In reality, an official government designation as a terrorist organization is a legally complex process, with multiple departmental considerations. This is especially true when talking about "Domestic Terrorism", which implies the necessity for the protections endowed to all U.S. citizens under the Constitution.
While there are differences in how the government handles foreign versus domestic terrorism, it is essential to understand that applying the “terrorist” label to any one group can come with unforeseen consequences.
Shifting Focus Back Home
Photo: Chad Davis | Wikimedia Commons
International terrorism has been the predominant national security concern since the attacks on September 11th, 2001, when the true devastation of ardent extremism was made manifest. The entire military and intelligence apparatus turned on its heels as the crosshairs of the most powerful country in the world locked on al-Qaeda and its leader, Osama Bin Laden.
This led to generations of Americans fighting overseas against a variety of Islamic extremist organizations. Al-Qaeda, the Taliban, the Islamic State, and a host of other splinter groups squared off with U.S. troops, and the intelligence and defense industrial base grew to match the threat. Budgets increased, new employees were hired to fill seats, and all of the disparate agencies within the DC beltway came together under one unified mission.
Fast forward to today - the nation has waged an all-out war in the Middle East for decades with a debatable amount of long-term success. Now, the vast majority of mass casualty attacks that occur on U.S. soil are committed not by foreigners, but by its own citizens.
New ideologically-driven affinity groups have emerged in recent years, such as the Proud Boys, Oath Keepers, III%ers, Black Lives Matter, and Antifa, as violence has taken to the streets across America.
According to the Center for Strategic and International Studies (CSIS), the number of domestic terrorism incidents in the U.S. in 2020 was higher than any other year since 1994, with far-right and white supremacist groups being responsible for the majority of attacks.
But what exactly is domestic terrorism, and how does it differ from foreign terrorism?
Legal Precedence & Civil Rights Considerations
Despite popular opinion, the official list of foreign terrorist organizations (FTOs) is held and managed by the State Department, not the FBI. The U.S. Department of State designates foreign terrorist organizations (FTOs) in accordance with Section 219 of the Immigration and Nationality Act (INA).
Under this section of the law, the Secretary of State is authorized to designate a group or organization as an FTO if it meets the following criteria:
The organization is foreign.
The organization engages in terrorist activity or terrorism, which is defined in the INA as premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents.
The terrorist activity of the organization threatens the security of U.S. nationals or the national security of the United States.
Once the State Department determines that an organization meets these criteria, it can designate it as an FTO.
This designation has several legal implications, including criminalizing certain forms of support for the designated organization, such as providing material support or resources.
The Antiterrorism and Effective Death Penalty Act of 1996
Conversely, the legal precedent for a domestic terrorism designation in the United States can be traced back to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.
This law defined "domestic terrorism" as activities that "involve acts dangerous to human life" that are a violation of the criminal laws of a state or the United States if the acts appear to be 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.
The PATRIOT Act
White House photo by Kimberlee Hewitt
Later, following the 9/11 attacks, the PATRIOT Act expanded this definition to include activities that involve acts dangerous to human life that are a violation of the criminal laws of a state or the United States if the acts appear to be 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, and occur primarily within the territorial jurisdiction of the United States.
The PATRIOT Act gave the U.S. government increased powers with limited oversight and legal authority to target, surveil, and use force on any group or suspected group deemed to be a terrorist or supporting terrorists so long as they were identified as an "agent of a foreign power".
This has specific consequences for U.S. persons who could have their Fourth Amendment rights violated under the Foreign Intelligence Surveillance Act (FISA) and the Foreign Intelligence Surveillance Court (FISC) via actions taken under the PATRIOT Act.
Specifically, the legislation authorizes the government to employ surveillance techniques, including wiretapping and monitoring of financial transactions, to gather evidence of criminal activity. The law expanded the government's surveillance powers, allowing for increased monitoring of electronic communications and the collection of personal data without a warrant.
Critics argue that the law violates Fourth Amendment protections against unreasonable searches and seizures and undermines privacy rights.
Additionally, the law has been criticized for its potential to be used for racial profiling and the targeting of religious and ethnic minorities.
Supporters argue that the law is necessary for national security and has helped prevent terrorist attacks.
The tension between civil liberties and national security remains a contentious issue, and the debate over the PATRIOT Act highlights the challenges of balancing these interests in the context of modern security threats.
The Patriot Act was initially set to expire in 2005, but it has been subsequently extended several times. As of 2023, the Act remains in effect, although some of its provisions have been amended or revised over time.
Material Support Statute
Despite lacking a specific federal law criminalizing domestic terrorism, the U.S. government has still designated several groups as domestic terrorist organizations. These designations have been made under other legal authorities, such as the material support statute.
This law makes it illegal to provide material support, such as money or weapons, to designated terrorist organizations. The material support statute primarily prosecutes individuals supporting domestic terrorist groups.
In 2020, the US government designated the far-right group, the Russian Imperial Movement as a foreign terrorist organization, making it the first time the US government had ever designated a white supremacist group as a terrorist organization. This represents an excellent real-world example of the term “agent of a foreign power.”
While legal designations can be valuable tools in combating domestic terrorism, they can also be controversial. Some civil liberties advocates have raised concerns that designating groups as domestic terrorists could infringe on free speech and other constitutional rights. Others argue that designations are too broad and could unfairly target individuals and groups who engage in peaceful protest.
Legal designations can be an effective tool in combating this threat. However, they must be used carefully and thoughtfully to avoid infringing on civil liberties and unfairly targeting individuals and groups. As the U.S. government grapples with domestic terrorism, it must balance the need for security with protecting individual rights and freedoms.
Federal Law Enforcement and Intelligence Community Definitions
Another way in which the U.S. government has attempted to combat domestic terrorism is through legal designations. A legal designation is a formal recognition of a particular group or individual as engaging in criminal activity, and it can have significant consequences for those involved.
In the case of domestic terrorism, a legal designation can be used to provide law enforcement agencies with additional tools and resources to investigate and prosecute those who engage in violent acts for ideological reasons.
Identifying a group or individual as domestic terrorism is a complex process that lacks a straightforward solution.
The government has relied on the definitions provided by the FBI and DHS to account for the attacks on the homeland that are generally considered to align with "Domestic Violent Extremism (DVE)". Again, this definition has been open to interpretation and allows for significant subjective assessment when qualifying attacks as being domestic terrorism.
Using data provided by the FBI and DHS, the Government Accountability Office determined that domestic terrorism-related cases have increased 357% from 2013 to 2021. Still, it is important to recognize that this figure is relying on the aforementioned interpretive definition used by federal law enforcement and intelligence community agencies.
Titles and Authorities
While we can acknowledge that there has been an increase in attacks carried out by American citizens, the U.S. government has yet to officially label any group primarily composed of U.S. citizens as a terrorist organization as it does with FTOs.
FTOs, by nature, consist almost exclusively of foreign nationals, who are not afforded the same privacy protections that U.S. persons are.
When the FTO designation is applied to a group, there are several key factors that change. Each factor provides the government with increased authority to target those that it has labeled as a terrorist organization.
These factors are:
Funding
Resources
Collection
Sanctions/Alternative Means of Action
U.S. agencies operate under authorities called "Titles" in the U.S. code. Each title dictates what that agency is responsible for, their duties for operation, reporting procedures, and dictates their official chain of command.
The IC discusses Title authorities and responsibilities ad nauseam, because the difference between who can 'collect' what, and how can it be 'collected', has oftentimes led to complications.
Indeed, this problem has been so prevalent that each agency has entire teams dedicated to this type of deconfliction.
This bureaucratic dilemma is often realized in the context of targeting a terrorist organization, as the identified group could fall under the legal purview of several government agencies. Each agency has its own specific duties, authorities, and budgets, each of which is dictated by the Title that they fall under.
For example, the National Security Agency (NSA) primarily falls under Title 50 and can perform intelligence collection, analysis, and reporting; and under Title 50, the NSA is not authorized to engage in acts of war or aggression.
Acts of war can only be carried out by the United States Armed Forces, which fall under Title 10. Thus, when the NSA has to conduct offensive operations against a nation-state or terrorist target, they must employ members of the U.S. Armed Forces.
Government agencies are also expected to abide by laws and policies that govern when, how, and against who they are allowed to target for collection.
The IRGC Case Study
U.S. NAVY/MASS COMMUNICATION SPECIALIST SEAMAN ELISHA SMITH
An example of these factors is the naming of the Iranian Revolutionary Guard Corps (IRGC) as a terrorist organization.
This opened up additional funding, capabilities, and resources to include law enforcement and military. Many would argue the killing of General Soleimani under the Trump administration was accomplished due to the official naming of the IRGC as a terrorist organization.
Once the IRGC was designated (April 2019) a terrorist organization the U.S. government was able to allocate more military and intelligence resources to deter and degrade the IRGC’s ability to operate in the region and sponsor/support other terrorist organizations.
In November 2022, an IRGC naval ship operating under a nonlegitimate manifest was seized by the U.S. Navy and Coast Guard. The container ship was carrying a large number of small arms and ammunition, as well as chemicals and materials used to make explosives. The vessel was on its way to Yemen to supply the Houthis in their civil war.
This operation was likely successful and timely due to the resources of military and intelligence assets applied under U.S. Code authorities to deny and degrade terrorist organizations.
The government used resources and capabilities derived from Titles 6, 10, 18, and 50 to accomplish this mission. In addition to many other operations like this against the IRGC. These authorities allowed different federal government entities to use their authorities in a ‘whole of government’ approach. If the IRGC was not designated a terrorist organization then it is very likely this operation would not have been legally successful and funded.
Walking the Tightrope
Protecting civil liberties while combating domestic terrorism is a delicate balance that requires careful consideration between the potential risks and benefits of labeling a group as such.
Advocates of a domestic terrorist designation point to increased public awareness about the threat landscape, the legal authorities that permit law enforcement agencies the power to surveil members, freeze assets, and disrupt future activities, and the opportunities for international cooperation to combat the threat.
On the other hand, detractors are concerned about how a government could encroach on individuals' civil liberties and could use the label to justify the surveillance, monitoring, and arrests of individuals who have not committed any crimes.
Labeling a domestic group as terrorists can also raise free speech concerns, especially if the group's activities are nonviolent and protected under the First Amendment. Some argue that designating such groups as terrorists is a way to suppress political dissent.
Additionally, labeling a domestic group as terrorists can also lead to the alienation of certain communities, particularly those who may feel unfairly targeted by the designation. This can make it more difficult for law enforcement agencies to gather information and prevent potential attacks.
While it is important to take strong action against those who engage in violent and extremist activities, it is also essential to ensure that such actions do not infringe upon the fundamental rights of law-abiding citizens.
Only by striking the right balance can we effectively address the threat of domestic terrorism while upholding the principles of democracy and the rule of law.
It would be foolish to simply try and mirror how the Department of State handles FTOs with how our own federal intelligence and law enforcement apparatus deals with instances of "domestic terrorism".
The slide into authoritarian government overreach is far too easy, and the desire for the bureaucratic establishment to consolidate power is far too appealing.
Ultimately, as a society, we must choose to what degree we are willing to forfeit our own liberties in return for collective security. We must also take into consideration the government's historical willingness to not only violate, but actively undermine civil liberties under the auspices of national security (i.e. COINTELPRO, Project SHAMROCK, Project MINARET, HTLINGUAL, etc.).
Perhaps we are asking the wrong question entirely. Should we even debate such a designation if we already have laws in place to charge these groups? Are separate domestic terrorism laws even necessary to convict individuals involved in such activities, or should we err on the side of caution and temper our reactionary impulses?
Additional Sources:
Foreign Intelligence Surveillance Act of 1978 - Section 702 S.139
10 USC 361: Prohibition on providing financial assistance to terrorist countries
Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996
Only Congress can declare War: US Constitution Article I Section VIII
USC Title 6 - Domestic Security
USC Title 10 - Armed Forces
USC Title 18 - Crimes and Criminal Procedure
DoJ authority used by FBI. Can be used to support a FISA warrant via the FISC
USC Title 50 - War & National Defense