A New Approach to Domestic Terrorism

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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.

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