Is the government collecting data on acts meeting the definition of “domestic terrorism”? This question came up during two different congressional hearings this month. The short answer to the question is: Yes, but clearly more can be done.
On May 9, members of the House Committee on Homeland Security questioned officials from the FBI, the National Security Division, and Department of Homeland Security regarding the Trump administration’s perceived inattention to the domestic terror threat, particularly that of white supremacist violence, and the relative lack of federal data to demonstrate the nature and extent of that threat.
On May 15, former officials, issue area experts, and hate crime victims testified before the Subcommittee on Civil Rights and Civil Liberties of the House Committee on Oversight and Reform, where, among other things, they discussed federal efforts to collect data on “white supremacist hate crimes and domestic terror.”
There are at least three potential sources of federal data on acts meeting the definition of domestic terrorism: incident-level data submitted to the FBI under the Hate Crime Statistics Act; statistics on public or unsealed domestic terrorism or terrorism-related federal convictions; and federal investigative records relating to domestic terrorism incidents, suspected incidents, and prevented incidents. Prior to discussing these sources, it might be helpful to clarify the term “domestic terrorism.”
Defining Domestic Terrorism
Domestic terrorism is defined in federal criminal code as “activities that involve acts that are dangerous to human life that are a violation of the criminal laws of the United States or any state,” that “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.”
This definition is nearly identical to the definition of international terrorism, also in federal criminal code, but for the jurisdictional element, as international terrorism is defined to include acts that occur primarily outside the United States or “transcend national boundaries.” In other words, domestic terrorism involves politically or socially motivated crimes that occur on U.S. soil without an articulable link to a foreign terrorist organization.
Incident-level Hate Crime Data
Incident-level data submitted from state and local law enforcement agencies to the FBI under the Hate Crime Statistics Act of 1990 (HCSA) represent one potential source of information on the nature and extent of domestic terrorism in American communities. The HCSA requires the attorney general to collect data on “crimes that manifest evidence of prejudice based on race, gender and gender identity, religion, disability, sexual orientation, or ethnicity.” The FBI carries out this requirement through its administration of the Uniform Crime Reporting (UCR) Program, which publishes annual statistics based on crime data submitted from federal, state, and local law enforcement.
Some, but not all, conduct meeting the definition of domestic terrorism would be captured in the HCSA data collections. For example, the mass shooting at Emanuel African Methodist Episcopal Church in 2015 in Charleston, S.C., was reported as a hate crime by the Charleston Police Department and published in the FBI’s annual Hate Crime Statistics report. But not all acts of domestic terrorism are hate crimes. Moreover, not all hate crimes meet the definition of domestic terrorism. In this respect, the HCSA data collections are perhaps too expansive and too limited a dataset for capturing acts meeting the definition of domestic terrorism.
The other concern is the issue of underreporting in the HCSA data collections. Participation in the UCR system is voluntary, and while some agencies are required under state law to report hate crimes, mandatory reporting is not synonymous with accurate reporting. Numerous high-profile hate crime murders, including acts of white supremacist violence meeting the definition of domestic terrorism, have been omitted from the FBI’s annual Hate Crime Statistics report. These acts of violence, which include the 2017 Portland train stabbings and Charlottesville vehicular attack, occurred in states with mandatory hate crime reporting laws.
These omissions should give us pause. Regardless of whether federal hate crime data are utilized to assess the nature and extent of domestic terrorism in American communities, the federal government must address the issue of underreporting in the HCSA data collections. Legislation pending introduction in Congress, named after two victims of violent acts that were prosecuted as hate crimes but not reflected in hate crime statistics—Khalid Jabara and Heather Heyer—would do just that.
Statistics on Federal Domestic Terrorism Convictions
Another potential method of data collection on acts meeting the definition of domestic terrorism would draw inspiration from existing federal efforts to collect data on terrorism. The National Security Division maintains a chart of public or unsealed international terrorism and terrorism-related convictions. A domestic equivalent would not only provide data on the nature and extent of domestic terrorism, but also elucidate the federal government’s approach to investigating and prosecuting domestic terrorism and terrorism-related offenses.
The National Security Division’s chart of public or unsealed international terrorism and terrorism-related convictions provides a window into the federal government’s efforts to prevent and prosecute acts or attempted acts relating to international terrorism as defined in federal criminal code. As expressed in the introduction of the most recent known edition, which reflects the period between Sept. 11, 2001, and Dec. 31, 2016, the chart demonstrates “the use of a variety of [f]ederal criminal statutes available to prevent, disrupt, and punish international terrorism and related criminal activity.”
The convictions listed in the chart include violations of “federal statutes that are directly related to international terrorism” and “a variety of other statutes where the investigation involved an identified link to international terrorism.” The National Security Division refers to these separate classifications as “Category I Offenses,” and “Category II Offenses,” respectively. Some cases, for example, were prosecuted under federal statutes involving fraud, firearms, drugs, and other offenses not inherently related to international terrorism. According to the National Security Division, “this approach underscores the wide variety of tools available in the U.S. criminal justice system for disrupting terror activity.” For something to be classified as an international terrorism or terrorism-related conviction does not require violations of terrorism-related statutes. Instead, the federal government relies on various statutes to prosecute international terrorism and terrorism-related offenses, and this approach is reflected in the data.
When it comes to prosecuting acts or attempted acts meeting the definition of domestic terrorism, the federal government utilizes a similar array of terrorism-related statutes, as well as those not directly related to terrorism. According to Congress, violations of more than 50 different federal statutes constitute “federal crimes of terrorism” when the underlying offense is “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Analysis from the Brennan Center for Justice suggests nearly all of these statutes apply to conduct meeting the definition of domestic terrorism.
Violations of these statutes would be considered Category I Offenses. In addition, statutes not directly related to terrorism have been used to prosecute what the federal government has labeled acts of domestic terrorism. These include acts of mass violence prosecuted under federal hate crime statutes and various kinds of criminal activity perpetrated by members of militant neo-Nazi groups prosecuted under federal rioting and conspiracy statutes.
During the May 9 hearing before the House Committee on Homeland Security, the deputy assistant attorney general for the National Security Division, Brad Weigmann, detailed 10 different federal “domestic terrorism cases,” some of which the division coordinated with other components of the Justice Department, like the Civil Rights Division. That the division can procure this information on short notice for a public hearing suggests the division is also capable of maintaining a domestic equivalent to its chart of public or unsealed international terrorism and terrorism-related convictions.
Federal Records on Domestic Terrorism Investigations
A third method of data collection on acts meeting the definition of domestic terrorism is one formerly in effect but now defunct. From the mid-1980s until 2005, the FBI published reports on Terrorism in the United States. Based on investigative records relating to both international and domestic terrorism, the reports featured data classified into three categories. Those categories were “terrorist incidents,” “suspected terrorist incidents,” and “terrorism preventions,” the latter two referring to acts for which responsibility could not be attributed to a known or suspected group, and acts that were prevented through investigative activity, respectively.
Beginning with the 2000-01 edition of the Terrorism report, the FBI broadened the scope of the data to include investigations overseas, but ceased publication after 2005. This abandonment of federal reporting on domestic terrorism dovetails with the general sense that federal counterterrorism efforts over the last two decades have focused on one threat at the expense of others.
Aside from federal data, convictions under state terrorism charges could also provide a sense of the nature and extent of domestic terrorism in American communities, not to mention the approach of state and local authorities to the threat. According to recent analysis from the Intercept, 34 states and the District of Columbia have terrorism-related criminal statutes, most of which were passed in response to the 9/11 terrorist attacks. Some of these statutes are applicable to a greater range of conduct than others, and in general, state terrorism prosecutions are rare. However, this potential source of data is still worth considering.
Incident-level hate crime data, statistics on domestic terrorism and terrorism-related convictions, and federal investigative records relating to domestic terrorist activity all represent potential sources of federal data on acts meeting the definition of domestic terrorism. Currently, the federal government does not publish such data. That does not mean the federal government is incapable of doing so, nor does it suggest more resources or authorities are required.
That last point is critical. Especially in the post-9/11 context, many communities are concerned over potential enhancements to the federal counterterrorism apparatus, even if those enhancements are intended to address the threat of white supremacist violence. Historically, authorities and resources dedicated to preventing both domestic and international terrorism have been used to target racial, ethnic, and religious minorities, activists, and nonviolent political protestors engaged in First Amendment-protected activities. As members of Congress seek to address the threat of white supremacist violence and other acts meeting the definition of domestic terrorism, these concerns should inform their approach. If not, Congress risks doing harm to the same communities it is trying to protect.