The Department of Homeland Security (DHS), including its Office of Intelligence and Analysis (I&A), has found itself again in the crosshairs of criticism over its counterterrorism work. Oversight bodies, including the department’s general counsel, its Office of Inspector General, and congressional investigators, have panned DHS and I&A for targeting racial justice demonstrators as terrorists and treating journalists as threats, and yet somehow failing to anticipate the Jan. 6, 2021, attack on the U.S. Capitol that was planned in plain sight. A recent report from the DHS Office of Inspector General adds to this chorus, taking aim at the department’s failure to establish a system for tracking and coordinating its counterterrorism efforts. While not the topic of this post, as detailed in this excellent Just Security entry, Inspector General Joseph Cuffari has hardly shown himself able or willing to carry out his duties, as demonstrated most recently in his mishandling of the Secret Service’s deletion of emails around the January 6th attack on the Capitol.
DHS’s counterterrorism governance is a shambles, as detailed in this report by NYU Law’s Brennan Center for Justice, where we both work. But the remedy – contrary to the Inspector General’s suggestion – is not just more of the same, particularly as DHS’s intensified focus on domestic terrorism means it will touch even more Americans. As the Biden administration’s 2021 domestic terrorism strategy recognizes, combating white supremacist violence is an obvious priority, but there are risks in giving I&A too much leeway on domestic terrorism. Even before the Trump administration, I&A has interpreted this category broadly, and there is plenty of recent evidence that it has treated anti-fascists, environmental activists, and even people expressing pro-choice views as potential terrorists. While the unit has new political leadership, its lax rules and many of its senior operational personnel remain unchanged.
Americans are due a thorough reassessment of DHS’s counterterrorism work. For sure, it needs a new oversight and coordination structure to address the above-noted problems. But it also must meaningfully address the long-sidelined civil rights and civil liberties implications of the department’s efforts.
Coordination and Oversight
The Inspector General highlighted the department’s lack of counterterrorism governance, which has resulted in poor, uncoordinated implementation of programs. While we don’t necessarily agree with DHS’s 2019 counterterrorism strategy, it is striking that the Inspector General found that the department has completed less than 30 percent of the milestone actions required by the plan. And with no formal delineation of roles, responsibilities, and oversight and feedback mechanisms, the impact of DHS’s efforts remains mostly unmeasured, with little opportunity for review and recalibration. Indeed, failure to measure efficacy is an enduring theme of Inspector General reviews of a range of DHS programs, stretching back years.
Unfortunately, the Inspector General fails even to mention the critical oversight role that the Privacy Office and the Office for Civil Rights and Civil Liberties (CRCL) are supposed to play in ensuring that DHS programs and policies comply with constitutional norms.
These offices must have an explicit and weighty role in any new oversight and coordination body. In the meantime, Secretary Alejandro Mayorkas should support CRCL’s efforts to obtain access to records, embed personnel in operational offices to give the office visibility into operations, and take a stand to protect Americans’ rights. Congress, too, can strengthen CRCL, for example by passing H.R. 4349, the DHS Office for Civil Rights and Civil Liberties Authorization Act. This bill seeks to prevent CRCL from being stonewalled in its access to information from DHS components, further integrate civil rights and civil liberties protections into DHS programs, and increase transparency in reporting of complaints and investigations.
Impact and Efficacy
Any oversight and coordination efforts must go beyond tinkering at the edges, and rather conduct a serious evaluation of the efficacy of DHS counterterrorism programs. For too long, the department has run programs of questionable value. Since 2014, DHS’s countering violent extremism (CVE) initiative, for example, has provided millions of dollars in grants and training to law enforcement, educators, public-health officials, and citizens to police their communities for vague warning signs of “radicalization,” such as mistrust of police, merely paying debts (presumably in order to clear the way to heaven upon martyrdom), and seeking a sense of belonging. It could be ended tomorrow with no harm to national security.
The CVE work, which the Trump administration had branded euphemistically as a “Targeted Violence and Terrorism Prevention Program,” almost exclusively targeted Muslims, leading presidential candidate Joe Biden to promise an end to the program. Instead, his administration rebranded CVE as Prevention Programs and Partnerships (CP3) and widened its mandate to cover white supremacist violence. But anti-Muslim bias was only part of the problem with CVE: Despite operating these programs for years, DHS has never demonstrated that they actually reduce violence. Instead, it has claimed success using busywork proxies such as the number of trainings or establishment of hotlines never actually used to report violent extremism.
Another program that could easily be cut with no impact on national security is DHS’s National Terrorism Advisory System (NTAS). Its advisories are meant to “inform homeland security partners or the public quickly” so they can “implement necessary protective measures.” But as the Inspector General found, they are often untimely. For a particularly absurd example, DHS issued an NTAS bulletin about domestic terrorism threats and the 2021 presidential inauguration three weeks after the January 6th attack, its first bulletin in a year. Nor are the bulletins insightful, mostly amounting to little more than a restatement of recent news events, followed by conjecture that those events might spur someone into unlawful violence.
But programs like CVE and NTAS aren’t just pointless; they can be actively harmful. They shape perceptions. The relentless focus of CVE on Muslims demonstrates that the federal government considers these Americans especially susceptible to becoming terrorists. Recent NTAS dispatches have focused on what DHS calls false or harmful “narratives” and “conspiracy theories” that it believes will lead to violence. But half of the American public believes in one or more conspiracy theories, with nearly one in five subscribing to the QAnon notion that an anonymous hero from within the deep state will rescue the country from a global cabal of satanic pedophile elites.
Of course, the internet allows wild ideas to reach a wide audience. Yet, it is obvious that the overwhelming majority of people discussing these theories will never act in violence, and DHS has not explained how it intends to distinguish between those who are posturing online and those who intend to carry out an attack.
DHS’s Role in Tracking Terrorism
The Office of Inspector General’s report notes that I&A is tracking “domestic terrorism incidents,” but is hampered by a lack of access to raw case information. The Brennan Center has repeatedly urged the government to do better in tracking domestic terrorism. But the DHS Inspector General’s proposed solution – that the FBI share case files with I&A – actually raises the question of whether I&A should undertake this tracking at all. The Bureau, as lead agency for domestic terrorism investigations, already has the information to carry out this tally. Unfortunately, the FBI has failed to do so meaningfully, flouting many of the reporting requirements of the 2020 National Defense Authorization Act. But the remedy should be to push the Bureau and the Department of Justice to take seriously their statutory obligations, not to task another office with poorer access to information to engage in duplicative work, further muddling the issue and confusing the public.
And regardless of whether DHS or the FBI does the work, the public should know what criteria are used to call an incident domestic terrorism, and there must be mechanisms to test the accuracy of these classifications. Both the FBI and I&A take an overly elastic view of terrorism and threats to homeland security. They shouldn’t be spending resources pursuing animal welfare activists, civil rights protestors, people who deface confederate monuments, or critics of immigration policy. Instead they should focus primarily on individuals and groups that pose a risk to Americans’ lives.
Twenty years after DHS was cobbled together, after the al-Qaeda attacks on Sept. 11, 2001, to protect us from terrorism at home, it’s time to seriously examine which of its programs actually do so, sunset those that do not, and strengthen accountability to rebuild public trust in the department.