U.S. Assistant Attorney General Matthew G. Olsen spoke in Norway on Tuesday about the importance of fighting domestic terrorism, but a new report issued the same day says federal efforts are potentially hindered by lack of coordination and consistency — problems auditors say could be solved through an overarching strategy.
The U.S. Department of Justice Office of the Inspector General (OIG) released an audit addressing DOJ’s work to track, prosecute, and disrupt domestic violent extremism. The audit provides examples of divisions within the department not being on the same page, as well as recommendations for how the department could build a unified strategy to fight the rising threat of domestic terrorism.
The report and recommendations come two years after the White House National Security Council released the National Strategy for Countering Domestic Terrorism. Also, in 2022, DOJ created a Domestic Terrorism Unit and updated the Justice Manual to provide guidance around domestic terrorism cases.
In his remarks earlier this week, Assistant Attorney General and head of the department’s National Security Division Matthew Olsen emphasized the complexity of the domestic violent extremism threat, saying, “In the United States, the most significant domestic terrorism threat is posed by lone actors or small cells, who are often motivated by a mix of socio-political, ideological, and personal grievances.”
Below are four takeaways from the OIG audit report, which you can read in full here.
DOJ struggles to track domestic violent extremism cases in a coordinated way
The OIG report notes DOJ has identified domestic terrorism “as one of the most significant threats facing the country,” but that efforts to track the scale of the problem are piecemeal across the department.
By the audit’s count, three groups within DOJ are tracking domestic terrorism cases: the Counterterrorism Section, U.S. Attorneys Offices (USAOs), and the FBI. The Counterterrorism Section reportedly receives data from the USAOs and the FBI, as well as on an “ad hoc” basis from other parts of DOJ.
The USAOs record the number of domestic violent extremism cases referred to them by the FBI or other law enforcement, as well as how many cases lead to action in court, the report says. In theory, the USAOs’ determination of whether or not a case is domestic terrorism related is separate from the FBI’s.
The FBI categorizes domestic terrorism cases under the code “266,” but the audit found that some investigations under other codes were treated as domestic terrorism as well.
While the Counterterrorism Section is working to collect data from all DOJ sources, the report expresses concern about the process. At the time of the audit, the section was apparently using a manual spreadsheet to track cases, and had failed to cross-check their data with that of the USAOs.
Auditors noted that the National Security Division and its Domestic Terrorism Unit are working on a new process to track these cases, but the report warns that significant changes need to be made.
“Without a more comprehensive evaluation of component DVE-related data sets,” the audit said, “DOJ will find itself in a position with redundant tracking processes that cannot be reconciled.”
While all the data collected by DOJ is not currently available to the public, data that has been provided shows the number of domestic violent extremism incidents rose each year from 2017 to 2021.
Despite new guidance, there are still inconsistencies in how DOJ identifies domestic terrorism cases
Countering domestic violent extremism is potentially made more complicated by the lack of a federal domestic terrorism statute. Of course, making it easier by passing such legislation may also raise concerns by civil libertarian groups and others. That said, currently cases must generally be prosecuted based on actions, rather than ideology (or terroristic purpose), and can fall under a variety of charges including firearms, drugs, and violent crimes.
The 2021 White House strategy document offered guidance on defining domestic terrorism, stating that domestic violent extremism “should be interpreted broadly and include all violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias and antigovernment sentiment.”
The DOJ’s definition of domestic violent extremists is similarly broad: “United States-based actors who, without direction or inspiration from a foreign terrorist group or foreign power, seek to further political or social goals through unlawful acts of violence.”
Despite these definitions, the audit found instances where there was disagreement within DOJ about what types of cases might rise to the level of domestic extremism. The report presents the example of drug trafficking by members of white supremacist prison gangs. One official told auditors they would identify these cases as related to domestic violent extremism, while another said they would not, as the particular action was not ideologically motivated.
The audit also found that divisions of DOJ that might come into contact with domestic violent extremists, including the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Agency, and the U.S. Marshall’s Service, had not received guidance on identifying domestic terrorism cases.
Auditors emphasized the importance of consistency and coordination due to the sensitive political nature of cases where crimes were motivated by political ideology. The report says that consistent and equitable treatment of domestic terrorism cases “could promote public confidence in the Department’s approach to these cases, which raise political and other sensitivities.”
In his remarks at the second annual Counterterrorism Law Enforcement Forum, Olsen laid out the intersection of politics and civil rights in the domestic extremism space, saying DOJ, “investigates violent extremists for their criminal acts and not for their beliefs or based on their associations, and regardless of ideology. In the United States, upholding our core values means respecting First Amendment rights and safeguarding the exercise of protected speech, peaceful protests, and political activity.”
The FBI tracks domestic violent extremism cases across ideologies, but has seen particular increases in recent years in the categories of racial or ethnically motivated violence and “anti-government/anti-authority” based crimes. Many cases have also been categorized as “other” in the wake of the attack on the U.S. Capitol.
In an appearance before the Senate Judiciary Committee last year, FBI Director Christopher Wray told lawmakers that racially motivated extremists were the top domestic terror threat in the United States, “including those who advocate for the superiority of the white race, who were the primary source of lethal attacks perpetrated by DVEs in recent years.”
That’s backed up by data from the Armed Conflict Location & Event Data Project, which found “a significant uptick in white nationalist, white supremacist, and anti-LGBT+ organizing around the country.”
DOJ needs a plan for protecting civil liberties while preventing domestic terrorism
In addition to expressing concerns about the political perception of programs to combat domestic violent extremism, the OIG report examines DOJ’s ability to evaluate programs’ impact on civil liberties, particularly First Amendment protected speech.
The Office of Privacy and Civil Liberties told auditors that while they have authority to evaluate DOJ’s efforts concerning domestic terrorism, they have not done so yet. They have, however, been asked to consult on the National Security Division’s new case management system, but in a privacy capacity rather than civil liberties more broadly.
The report advocates that DOJ should have a process in place to routinely evaluate how its domestic terrorism prevention efforts impact civil liberties, including in sentencing and incarceration.
White House guidance could be supplemented by a DOJ specific strategic framework
The 2021 national strategy guidance sought to broaden and strengthen the federal response to domestic violent extremism, but the audit points to areas within DOJ where additional guidance is needed and disparate parts of the department could be stronger working together.
Auditors say they spoke with DOJ officials who downplayed the role of the national strategy in their work, which came from the White House and they say “does not guide DOJ enforcement efforts and does not affect how DOJ investigates and prosecutes DVE threats.” In conversation with auditors, FBI officials apparently also de-emphasized the role of the 2021 guidance, saying that it was directed at prosecutors, not at the reporting role of the FBI.
The audit advises that DOJ come up with a department-wide strategy, which would also bring together separate efforts from across all sections of the department.
Different divisions may come into contact with domestic violent extremists, even if countering domestic terrorism is not an explicit duty of the division. This also includes offices across the country which may not be aware of the training and resources available to them.
In some instances, the audit found that a program had been sunsetted or members of the department weren’t sure if an initiative still existed.
These problems, in theory, would be less likely with one unified strategy. Auditors at the OIG expressed hope that such a strategy would strengthen the United States’ response to the rising threat of domestic terrorism.