thesis on domestic terrorism

The Journal of the NPS Center for Homeland Defense and Security

Defeating and Deterring Domestic Terrorists Through Evidence-Based Policymaking

By Eric M. Cooper

Eric M. Cooper's thesis

– Executive Summary –

Both the executive and legislative branches of government have mandated that evidence-based policymaking be implemented in federal governmental decisional processes. [1] Evidence-based policymaking is the theory that governments should develop “public policies, programs, and practices that are grounded in empirical evidence.” [2] In alignment with this direction, the 2021 National Strategy for Countering Domestic Terrorism cites that it “will ensure that its counter–domestic terrorism prevention efforts are driven by data [and will fund] evidence-based programs ” [3] in support of those efforts.

Although evidence-based policymaking has been in use since the 1990s, it has primarily been used in healthcare and scientific research [4] and the use of evaluation and evidence in counterterrorism has neither been researched nor implemented extensively. [5] The bipartisan passage of the Foundations for Evidence-Based Policymaking Act of 2018 (Evidence Act) recognized that there was not enough data or evaluation being used in the government’s decisions and the effectiveness of policies and programs. [6] Following the Evidence Act, the Office of Management and Budget (OMB) released several memorandums [7] to provide guidance to Departments in its implementation. The Department of Homeland Security released Directives 069-03 and 069-03-001 stating that “DHS is committed to ensuring a strong culture of evaluation, evidence building and organization learning” [8] but they did not provide specific guidance on the steps needed to conduct an effective evaluation. Moreover, neither the Department of Homeland Security nor the Department of Justice has identified countering domestic terrorism as a priority in its Learning Agenda despite the direction provided in the White House strategy. Currently, there is no federal guidance that specifies how to use evidence and data to combat domestic terrorism.

Despite the lack of specific guidance, using evidence in support of domestic counterterrorism is challenging due to several factors. There is a lack of literature that demonstrates repeatable and effective programs combating any type of terrorism. [9] Also, data collection is exacerbated by the relative rarity of domestic terrorism cases within western-based societies and that “domestic [terrorism] incident datasets have been virtually unavailable.” [10] Additionally, policymaking “is an inherently political process” [11] with many variables that impact the final decision. Moreover, “political leaders often insist that measurable results be available in a short time-frame, leading to greater focus on visible activities rather building the foundations for sustainable benefits” [12] – resulting in reduced effectiveness of the evidence-based process. This can lead to ‘policy-based evidence’ when “governments tend to use and promote those research findings which fit policies already decided upon [and] the role of research is more often one of legitimizing policy rather than ‘driving’ it.” [13] Finally, if evaluation methods are not conducted properly and/or bias is not accounted for, researchers can inadvertently include data that can potentially lead to discriminatory policy decisions.

This thesis first investigates the challenges of using evidence in value-based decisions and the social sciences. The second part of this thesis conducts three case study analyses of domestic and foreign policy initiatives—other than counterterrorism—with respect to the foundations of evidence-based policymaking. This analysis identifies common themes that guide recommendations on how to implement evaluation as one part of an integrated approach in the implementation of the National Strategy for Countering Domestic Terrorism in the United States.

This thesis supplements OMB’s guidance that “depicts and describes four interdependent components of evidence: foundational fact-finding, policy analysis, program evaluation, and performance measurement.” [14] OMB recommended that agencies consider these types of evidence in their activities but did not explicitly define or provide guidance on how to incorporate these four components of evidence-based policy. This thesis reviews different approaches by several organizations committed to incorporating evaluation in the use of decision-making and identifies more explicit steps to support OMB’s guidance. A synopsis of the recommendations from the case studies is organized under OMB’s four components and summarized in Table 1.

Table 1. Recommendations Developed from the Case Studies

[1] Foundations for Evidence-Based Policymaking Act of 2018, Public Law 115-435 (2019): 5529-5557, https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf; Russell T. Vought, “Phase 1 Implementation of the Foundations for Evidence-Based Policymaking Act of 2018: Leaming Agendas, Personnel, and Planning Guidance (M-19-23)” (official memorandum, Washington, DC: Office of Management and Budget, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf.

[2] Dvora Yanow, “Evidence-Based Policy,” Britannica , social sciences, accessed January 17, 2022, https://www.britannica.com/topic/evidence-based-policy.

[3] White House, National Strategy for Countering Domestic Terrorism (Washington, DC: White House, 2021), 20, https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf.

[4] Dvora Yanow, “Evidence-Based Policy,” Britannica , social sciences, accessed January 17, 2022, https://www.britannica.com/topic/evidence-based-policy.

[5] Cynthia Lum and Leslie W. Kennedy, Evidence-Based Counterterrorism Policy , Springer Series on Evidence-Based Crime Policy (New York: Springer, 2012).

[6] “Foundations for Evidence-Based Policymaking Act of 2018,” 5 U.S.C. § 101 (2019), https://www.congress.gov/bill/115th-congress/house-bill/4174.

[7] Russell T. Vought, Phase 1 Implementation of the Foundations for Evidence-Based Policymaking Act of 2018: Learning Agendas, Personnel, and Planning Guidance (M-19-23) (Washington, DC: Office of Management and Budget, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-23.pdf.

[8] Randolph D. Alles, Program, Policy, and Organizational Evaluations , DHS Directive 069-03 (Washington, DC: Department of Homeland Security, 2021), 1.

[9] Cynthia Lum and Leslie W. Kennedy, Evidence-Based Counterterrorism Policy , Springer Series on Evidence-Based Crime Policy (New York: Springer, 2012), 4.

[10] Berkebile, 1.

[11] Sophie Sutcliffe et al., A Toolkit for Progressive Policymakers in Developing Countries , 2006, 3.

[12] Brian W. Head, “Reconsidering Evidence-Based Policy: Key Issues and Challenges,” Policy and Society 29, no. 2 (May 1, 2010): 84, https://doi.org/10.1016/j.polsoc.2010.03.001.

[13] Mike Maguire, “The Crime Reduction Programme in England and Wales: Reflections on the Vision and the Reality,” Criminal Justice 4, no. 3 (August 1, 2004): 227, https://doi.org/10.1177/1466802504048463.

[14] Vought, M-19-23 , 13.

[15] Great Britain and Treasury, Prudential Standards in the Financial Services Bill: Policy Statement. , 2020, https://www.webarchive.org.uk/access/resolve/20200311151411/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/871680/Final_Budget_policy_statement_-_Basel_and_prudential_measures.pdf.

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Responding to Domestic Terrorism: A Crisis of Legitimacy

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On January 6, 2021, thousands of rioters breached the U.S. Capitol. 1 With the express purpose of preventing the lawful Electoral College vote count, they broke through barriers, windows, and law enforcement lines, 2 threatening violence against various politicians. 3 They assaulted over 140 police officers and caused an estimated $2.73 million in property damage. 4 Since then, the President, 5 the Director of the Federal Bureau of Investigation (FBI), 6 Democratic and Republican congresspersons, 7 high-ranking Department of Justice (DOJ) officials, 8 and numerous commentators have characterized the breach as domestic terrorism. 9 Yet, as many have pointed out, none of the insurrectionists have been charged with domestic terrorism. 10

This absence is not limited to the January 6 insurrection. Though the person responsible for the murder of eleven people at a Pittsburgh synagogue shouted “All Jews must die,” 11 his indictment included no terrorism charge. 12 The same is true for the man who murdered nine Black churchgoers at Emanuel African Methodist Episcopal Church, seeking to increase racial tensions. 13 So too for those responsible for the murder of Heather Heyer and for other violence committed at a white supremacist rally in Charlottesville, “despite then–Attorney General Jeff Sessions having initially described the . . . attack as meeting ‘the definition of domestic terrorism.’” 14

This raises the question: why no terrorism charges? The answer is straightforward: there is no federal charge of domestic terrorism. 15 “Domestic terrorism” itself evades easy definition. Terrorism is politically or ideologically motivated violence. 16 But domestic terrorism is defined by its distinction from international terrorism. Its application focuses on whether the ideology or conduct at issue is international or domestic in nature. Though the USA PATRIOT Act 17 defines domestic terrorism, it attaches no sanctions to such conduct. 18 Some argue that the laws governing international terrorism sufficiently cover domestic terrorist conduct. 19 Others argue that significant reform and expanded authority are necessary in order to respond adequately to this growing threat. 20

The current legal regime creates a quandary for law enforcement and prosecutors: either stretch the current regime to cover domestic terrorist conduct and risk pushback from judges, juries, and the public or do not pursue terrorism charges and lose credibility in the efforts to combat domestic terrorism. In a political climate marked by extreme polarization, decreasing trust in institutions, and increasing acceptance of political violence as legitimate, the former is a perilous choice while the latter prevents the government from credibly calling out and labeling domestic terrorism as such — something the public demands. The legitimacy concerns arising from this context are an underexplored piece of the current debate but are crucial to consider when thinking about the Executive’s ability to respond adequately to domestic terrorism. Congressional authorization of existing tools to be used in the domestic terrorism context is therefore necessary to ensure the Executive maintains legitimacy in addressing this pressing threat.

This Note proceeds as follows: Part I describes the legal framework governing terrorism, the distinction between international and domestic terrorism, and current alternatives to the lack of a domestic terrorism statute. Part II explains why the current debate over whether and how to reform the statutory approach to domestic terrorism misses the core problem with the current system. Part III argues that this core problem is a matter of legitimacy. Part IV details why recent calls to use the sentencing enhancement to fill the statutory gap are misguided but highlights several legitimizing features of the sentencing enhancement. Part V analyzes the value of a congressional mandate and requirement that the factfinder pass on a legal-standard-of-intent element of terrorism like those inherent in the amended sentencing enhancement. This Part also briefly provides concrete examples of the reforms this Note advocates.

I. History of Terrorism Legislation

There is no federal crime of domestic terrorism. Before 2001, domestic terrorism was understood only by reference to international terrorism. 21 The distinction likely arose in response to a 1972 Supreme Court case distinguishing between the government’s power to surveil in response to domestic versus international threats. 22 This distinction by implication became common in counterterrorism legislation as (1) the initial focus of counterterrorism efforts was primarily on transnational threats, 23 (2) the historical context involved a string of governmental abuses and overreach in response to domestic threats from the 1960s through the 1970s, 24 and (3) the modern terrorism frame was designed in response to 9/11. 25

Yet the law is not completely silent on domestic terrorism. First, the USA PATRIOT Act includes a statutory definition of domestic terrorism, codified at 18 U.S.C. § 2331(5). 26 However, this statutory definition does not provide for civil or criminal sanctions; instead, it is incorporated by reference in other statutory and regulatory provisions. 27 Second, the U.S. Sentencing Guidelines, as amended, provide for a terrorism enhancement to apply to cases of domestic terrorism. Before the modern terrorism enhancement, the guidelines provided for an upward departure for “[t]errorism” where “the defendant committed the offense in furtherance of a terroristic action.” 28 Then, in 1994, Congress directed the Sentencing Commission “to amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime.” 29 The Sentencing Commission did just that in creating the modern sentencing enhancement.

However, in its original form, the sentencing enhancement applied only to international terrorism. 30 In response to the Oklahoma City bombing, Congress again directed the Sentencing Commission to amend the guidelines. 31 This new amendment provided for the enhancement in cases of “[f]ederal crimes of terrorism,” as defined by 18 U.S.C. § 2332b(g), rather than international terrorism. 32 Section 2332b(g)(5) incorporates a list of crimes and defines them as “[f]ederal crime[s] of terrorism” if they are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” without making any distinction between international and domestic terrorism. 33 Then, in 2002, the Commission further amended the guidelines to provide for an upward departure in cases that do not fit the exact requirements of section 3A1.4 of the U.S. Sentencing Guidelines Manual . 34 This change provides for upward departure in cases excluded under the enhancement itself: (1) where the government can prove terroristic intent in the commission of a crime not included as a “federal crime of terrorism,” or (2) where the terrorist intent involves intimidation or coercion of a civilian population rather than the government. 35

The current iteration of the sentencing enhancement may apply to domestic terrorism in several ways. 36 The most straightforward way requires the government to prove, by a preponderance of the evidence, 37 (1) a conviction under one of the enumerated crimes of terrorism listed in § 2332b(g)(5)(B), and (2) terroristic intent — meaning the crime was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 38 However, the enhancement also applies when the underlying offense or relevant conduct “was [committed] to promote” a federal crime of terrorism. 39 The commentary to the guidelines provides that “harboring or concealing a terrorist” or “obstructing an investigation of a federal crime of terrorism” is sufficient to show that the enhancement applies. 40 Finally, as mentioned above, the enhancement also provides for an upward departure in a broader set of cases. 41 Under this application of the enhancement, a judge has the discretion to upwardly depart, but any “departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied.” 42

While no standalone federal crime of domestic terrorism exists, other alternative approaches are available. Acts of domestic terrorism often double as federal hate crimes. 43 For example, the defendant charged with the murder of Heather Heyer pleaded guilty to twenty-nine counts of violating provisions of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. 44 Similarly, the perpetrator of the 2015 shooting at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, was charged under hate crime and firearms laws rather than terrorism laws. 45 Other cases are prosecuted under state laws criminalizing domestic terrorism 46 or under other state criminal statutes. Georgia, New York, and Vermont for instance, have laws expressly outlawing domestic terrorism, 47 while Michigan has a law broad enough to encompass cases of domestic terrorism that was recently used to prosecute the Oxford school shooter. 48

II. Contemporary Debate over Reform

The lack of a comprehensive federal statutory approach to domestic terrorism has spurred a push for (and a responsive pushback against) reform. 49 This debate has been renewed in the aftermath of the Capitol breach on January 6, 2021. 50 Indeed, commentators and legislators alike have proposed language for such a statute. 51 Modern reform debate is split into two camps: one that champions reform as the means to equip the Executive with the necessary tools to fight domestic terrorism (the “Wholesale Reform” camp) and another that suggests that prosecutors need no extra tools and instead lack political will to combat the issue (the “Status Quo” camp).

A. Wholesale Reform Camp

The Wholesale Reform camp, as this Note defines it, advocates for a standalone statute establishing a criminal charge of domestic terrorism. Generally, this camp argues that such reform would have expressive value; 52 address the disparities that result from differential treatment of international and domestic terrorism that often fall on ideological, racial, and ethnic lines; 53 and guide, clarify, and restrain executive discretion. 54 For Wholesale Reformers, the core problem with the current regime is that it does not provide the government with the right tools to address domestic terrorism. In particular, they highlight the current tools’ failure to deliver on the need for a clear expressive effect and the marked disparities between the tools available in the domestic terrorism context and in the international terrorism context.

The core motivating concern driving support for this position is grounded in the expressive value of the law — meaning “the function of law in ‘making statements’ as opposed to controlling behavior directly.” 55 Wholesale Reformers argue that expressive value is lost when an alleged domestic terrorist is criminally charged without being expressly labeled as a terrorist. Many advocates also note the differing approaches to international and domestic terrorism, arguing such disparities undermine the United States’ moral authority both on the international stage 56 and domestically. Domestic criticism often highlights the disparate racial and ethnic impact of international counterterrorism efforts primarily targeting Muslim and Arab communities 57 versus the arguably less-than-robust domestic counterterrorism efforts involving white supremacists. 58

Another concern underlying support for a standalone charge is ambiguity as to what qualifies as domestic terrorism and how it should be charged. 59 Without a standalone charge, the federal government is left to use other tools to address this particular threat. While the Status Quo proponents argue that the tools the government currently has are sufficient, 60 some reports indicate that “the F.B.I. often turns to local prosecutors to charge people they are concerned might be planning domestic attacks.” 61 A domestic terrorism statute would provide greater certainty to investigators and prosecutors who otherwise must get “creative.” 62 According to Wholesale Reformers, a criminal charge designed to address domestic terrorism would avoid these problems, provide express guidance as to the exercise of executive discretion, and address the threat directly rather than require prosecutors to use potentially overinclusive statutes not designed to address the threat of domestic terrorism.

B. Status Quo Camp

On the other side of the debate is the Status Quo camp. Proponents of this approach argue that the government should make better use of the tools that already exist. Those in this camp do not contest government failures to respond adequately to the threat of domestic terrorism but argue the government has all of the necessary tools, lacking only political will to utilize them. 63 Many of the tools that were designed for — and have been most often used in 64 — the international terrorism context are not strictly textually limited to international terrorism. 65 For instance, 18 U.S.C. § 2339A does not expressly textually limit the statute to international terrorism but rather broadly proscribes “[p]roviding material support to terrorists.” 66 While many of these tools were created in response to international terrorism 67 and have been used almost exclusively in that context, the government conceivably has enough room to stretch them to fit domestic terror. 68 This approach would require broad, somewhat novel, and sometimes creative readings of criminal statutes, but it would not significantly expand the government’s power.

The core motivating concern of this camp is the risk of abuse they find to be inherent in expanding the government’s power. 69 Status Quo advocates also maintain skepticism of the Wholesale Reform camp’s position that additional tools would result in the government’s effectively communicating a coherent and legitimate expressive “statement” about domestic terrorism. The Status Quo position emphasizes the fact that expanding the government’s power would not guarantee that the government would engage in a “symbolically significant” deployment of those tools. 70 Moreover, the Status Quo camp highlights the challenges to, and perhaps impossibility of, meaningfully limiting politically motivated use of any such tools. 71 This position leads many to be skeptical of claims that a new statute would have any real practical effect other than to increase the risk of abuse given that the conduct that would be criminalized under a domestic terrorism statute is already criminalized in other ways. 72 Indeed, it is definitionally true that if sanctions were added to § 2331(5), it would not involve criminalization of any conduct not otherwise proscribed by criminal law.

III. The Lurking Problem of Legitimacy

This Note takes the position that both the Wholesale Reform and Status Quo camps raise valid concerns, such as the need to resolve ambiguity in the current regime, the considerations surrounding the expressive value of criminal law in labeling terrorism as such, and the potential for abuse if the government’s power were expanded. However, while each side identifies compelling considerations in the reform debate, each fails to grapple with limitations identified by their counterparts. Most concerningly, they misidentify the core problem underlying the current regime. While the Wholesale Reform camp identifies the problem as a lack of tools to address the problem and the Status Quo camp identifies the problem as a lack of political will, this Note argues that the core problem is the lurking problem of legitimacy. The reform debate as currently framed fails to grapple adequately with heightened legitimacy concerns within the United States’ increasingly polarized and fragmented political environment.

Contrary to arguments of those in the Status Quo camp, the current political climate — the inherently political nature of questions of terrorism, extreme polarization, lack of trust in institutions — makes success under the current regime unlikely. The criminal justice system and the ability of the executive branch to wield authority in this area depends on the buy-in of a variety of actors — the public, juries, and judges. Currently, the executive branch may technically have tools to prosecute domestic terrorists. However, Congress did not expressly authorize these tools to be used against domestic terrorism. 73 This undermines the Executive’s ability to assert credibly that domestic terror conduct is properly governed by the current statutory scheme and that the Executive has the authority to use this scheme to address domestic terrorism. It may sometimes be legally appropriate to stretch the criminal law to address new and novel threats — especially given the declining health of the legislative branch. Yet there are objective and subjective legitimacy concerns that make such an approach in the context of domestic terrorism normatively concerning and functionally challenging.

A. Concerning Legitimacy Inversion

Terrorism is definitionally political. 74 The difference between regular violence and terrorism is terroristic intent — motivation by a political aim or an ideology. 75 Moreover, apart from the objective definition, terrorism also involves a subjective component: was the violence and/or the underlying ideology legitimate? One recent study found that “politics constrain the American public’s understanding of terrorism,” as public perception of who is a terrorist is shaped by one’s own political persuasion. 76 Indeed, many of the American Revolutionaries committed conduct that could be understood as terrorism, but few Americans would characterize it as such because the modern view is that the conduct was legitimate. 77

As defining terrorism involves a question of legitimacy — specifically the legitimacy of violence — the governmental response to terrorism likewise involves a question of legitimacy. In order for the government to respond to terrorism effectively, it needs buy-in as to its authority. Because terrorism is political in nature, its invocation is subject to greater political scrutiny 78 and — especially in the domestic terrorism context — accusations of illegitimate targeting of political opponents. 79 Indeed, while there is certainly active debate over the legitimacy of the accusations, it is notable that Republicans in the House of Representatives have established what they are referring to as a “new ‘Church Committee’” to investigate allegations of political targeting in the Executive’s response to domestic terrorism. 80

Thus, in order to prosecute terrorism effectively, the violence must be viewed as illegitimate, and the government’s response must be viewed as legitimate. The current political environment involves an inversion of this necessary dynamic. The increase in political polarization 81 and decreasing trust in institutions 82 undermine governmental legitimacy, while there is a simultaneous increase in the perception of political violence as legitimate. 83 Democratic erosion undermines governmental legitimacy, which in turn undermines political authority. 84

It is against this backdrop that the current legislative scheme operates. Every move the government makes is under intense scrutiny from the “other side,” which stands ready to accuse those in power of illegitimacy and overreach. And sometimes those accusations bear out. But, given the trends of democratic erosion, the objective question of whether the government has overstepped is often immaterial to those making accusations of illegitimacy and overreach. And where there is actual government overreach, the political fallout will be outsized.

B. The Problem of Ambiguity

The legitimacy inversion discussed above breeds skepticism and mistrust, heightens risks, and amplifies the problems of ambiguity inherent to the current regime. Any ambiguity in whether the Executive is authorized to act in response to real and growing domestic terror threats will be weaponized — presenting perceived legitimacy problems. Ambiguity also heightens the risk of actual, rather than perceived, abuse — presenting actual legitimacy problems.

1. Perceived Legitimacy Problems. — Public perception of the executive branch’s approach to domestic terrorism is not just a public relations problem. 85 Prosecutors generally do not bring cases they cannot win. Public perception has implications for whether cases are “winnable” in several ways. First, criminal juries are guided in part by their perceptions of the legitimacy of the pertinent laws and legal authorities. 86 Even when cases are resolved through plea agreements before making it to a jury, which is the case in ninety-seven percent of federal convictions, 87 “prosecutors’ decisions — which cases to charge, what charges to bring, and what charges to dismiss — reflect the realities of how juries or judges decide tried cases, and what sentences judges will impose.” 88 A prosecutor’s assessment of her case, the risks of going to trial, and the value of a plea deal connect to her assessment of how other actors in the system will respond — “all of these phenomena are expressive.” 89 And these phenomena are tied, “at least in part, [to] a disagreement between the community and the criminal justice authority over how the criminal law should be written, how it should be enforced, or both.” 90 With this disconnect, prosecutors’, juries’, and judges’ expressive decisions “are [then] symptoms of the criminal justice system’s illegitimacy.” 91 This illegitimacy hinders the Executive’s ability to pursue effectively its policy goals through the use of the criminal justice system.

While the current terrorism framework has occasionally been used to target domestic terror conduct, there is ample reason to think that authority to bring those charges is not clear. In a 2020 press release, the FBI suggested that a recent prosecution was “the first time a material support charge . . . [was] used in a domestic terrorism case.” 92 This was untrue. 93 In response, commentators argued that “[the] erroneous statement by the FBI may suggest that FBI field offices around the country are not aware that § 2339A charges can be and are brought against suspected domestic terrorists.” 94 If the subject-matter experts are unclear as to the scope of their authority, it is reasonable that laypeople may see such an approach as illegitimate. This, in turn, affects the prosecutorial calculus and calls into question whether cases are winnable.

2. Actual Legitimacy Problems. — In addition to legitimacy concerns inherent to the public perception of an approach that requires creative prosecutions, objective concerns also persist. First, consider the risk of abuse. 95 A recent study conducted by the Center for Strategic and International Studies found that despite ninety-three percent of protests across the United States being peaceful, there is a developing security dilemma in which “escalating violence in some metropolitan areas of the United States . . . pits such groups and loose networks as anti-fascists and anarchists against white supremacists, anti-government militias, and a host of others, such as the Three Percenters, Proud Boys, Patriot Prayer, and Oath Keepers.” 96 In this context, the government may not be able to differentiate adequately between peaceful, First Amendment–protected conduct and genuine threats of domestic terrorism. Moreover, those who are concerned about the civil liberties risks associated with aggrandizing the federal government’s power in this context argue that the risk of selective political targeting of groups is higher due to political polarization. 97 Recently, evidence has come to light of abuse and overreach targeting domestic groups, such as progressive activists 98 and “Black Separatists,” 99 with no congressional oversight over FBI actions relating to domestic terrorism. 100 Even with the FBI’s history of targeting left-of-center groups, the risk of overreach and abuse of right-wing groups exists as well. 101

The second objective legitimacy concern is one of separation of powers and political legitimacy. “[T]he criminal law should be exact. It should say what it means and mean what it says.” 102 And the policy choices of what conduct should be criminalized and how it should be criminalized are choices that are properly decided by the legislative branch. 103 Yet Congress has seemingly abdicated its role in making these policy choices. Indeed, “[t]he consequence of this legislative failure has been to transfer effective criminal lawmaking power to politically unaccountable prosecutors and, on occasion, to judges willing to set some constitutional or statutory limits on prosecutorial discretion.” 104 This is especially concerning given that the DOJ maintains independence from the President 105 and “Congress cannot use many of the tools for monitoring and managing delegated criminal enforcement authority that it can draw on to constrain bureaucratic discretion in other areas.” 106 Moreover, specifically in the national security space, “Congress and the courts have notoriously failed to check executive power that often undermines individual rights.” 107 From this perspective, these kinds of significant and widely contentious policy questions, like whether federal law should criminalize domestic terrorism as such and how concerns about risks to civil liberties should be balanced against any threat, should be decided by Congress rather than gap-filled in the context of relatively independent executive branch discretion. 108

IV. The Problem with the Terrorism Sentencing Enhancement

In response to this political reality, many have pointed to a more robust use of the sentencing enhancement as a viable middle ground solution — at least with respect to the problem of prosecuting domestic terrorism. 109 Using the enhancement provides expressive value because it requires a judge to make a legal determination as to whether the defendant’s conduct constituted terrorism. 110 Indeed, this tool was highlighted in Assistant Attorney General Matt Olsen’s testimony before the Senate Judiciary Committee 111 and noted in the FBI and the Department of Homeland Security’s Strategic Intelligence Assessment and Data on Domestic Terrorism . 112

While the sentencing enhancement is currently the primary tool federal prosecutors have to label a domestic terrorist as a domestic terrorist — and the only tool that involves a congressional mandate to do so — its use to address the lack of a clear statutory approach to domestic terrorism presents more problems than it solves. For several reasons stemming from the unique context of federal sentencing, the enhancement cannot bear the weight of being the primary tool the executive branch uses to respond to domestic terrorism. Yet the specific legitimizing features of the sentencing enhancement — (1) express congressional authorization for use in the domestic terrorism context, and (2) a requirement that the government prove terroristic intent — could and should appear in other parts of the terrorism statutory scheme.

A. Problem with Discretion

Prosecutorial discretion is a necessary component of the American legal system. 113 However, not all criminal statutory schemes provide prosecutors with the same amount of discretion. In the case of domestic terrorism and the use of the terrorism enhancement, prosecutors have significant discretion — to choose whether to charge a crime that would implicate the terrorism enhancement, whether to seek the enhancement, whether to seek the upward departure in cases where the standard enhancement is not applicable, and whether to advocate any other enhancements, departures, or variances. And while this discretion requires prosecutors to make a factual showing as to why an enhancement or departure applies, they need do so based only on a preponderance of the evidence — a far lesser burden of proof than is required for a conviction. 114 Moreover, they do not need to make this showing to a jury and they can use evidence that would be otherwise inadmissible at trial. 115 Therefore, in many domestic terrorism cases under the current regime, the only way a prosecutor can obtain a legal label of domestic terrorism involves a significant amount of discretion paired with notably reduced burdens of proof and persuasion.

These concerns as to the sentencing enhancement echo many of the issues the Status Quo camp identifies in considering additional reforms. First, the risk of abuse is especially present in the context of the politically charged crime of terrorism. 116 And because the executive branch is politically accountable, there is a concern the Executive will be overly responsive to public demand for accountability in high-profile cases involving terrorism. 117 Second, there is the ever-present risk of implicit (and explicit) bias and prejudice in the exercise of prosecutorial discretion 118 — especially in the context of a broadly applicable, completely discretionary sentencing enhancement. Third, due to the politically charged nature of labeling domestic terrorists as such, even when not abused, political criticism is likely unavoidable. 119 There will always be examples of cases involving “the other side” that could be characterized as proof that prosecutors are not requesting the enhancement equitably. Fourth, some have raised the concern that the broad applicability of the terrorism enhancement stacks the deck against defendants in the context of plea bargaining. 120

B. The Nature of Sentencing

While prosecutors have a significant amount of discretion, they do not have the ultimate authority to apply the enhancement. Judicial discretion further restricts executive discretion, presenting several additional problems stemming from the uniqueness of sentencing. While judges are required to make findings as to the applicability of enhancements, the inquiry does not stop there. Sentencing judges also consider policy factors external to the case at hand — including how prosecutors in other cases exercised their discretion.

A judge could find the sentencing enhancement unequivocally applicable in applying the law to the facts. However, at this stage, the judge must engage in an inquiry into policy factors set forth in 18 U.S.C. § 3553(a), posing the risk that the judge will make decisions based on intuition or bias. 121 In this context, intuition as to whether someone is a terrorist 122 or deserves the “draconian” 123 punishment that results from the application of the terrorism enhancement 124 is especially concerning given that “the prototypical perpetrator is Muslim, Middle Eastern, or both.” 125 The flexibility of the sentencing factors has led to critiques from all sides that the enhancement is being used aggressively, inconsistently, 126 or not aggressively enough. 127

A recent case illustrates the challenge inherent in trying to use the sentencing enhancement for its expressive value. As of October 2022, the DOJ has charged over one thousand defendants in connection with the January 6 attack on the Capitol. 128 Yet, in only one case, against Guy Reffitt, has the DOJ sought the terrorism enhancement. 129 The sentencing judge rejected the attempt. Judge Friedrich refused to apply the enhancement not because she found it was inapplicable , but rather because, pursuant to § 3553(a), the enhancement had not been applied in other cases involving January 6 defendants and would therefore result in an “unwarranted sentencing disparity” with those cases. 130

On one hand, one could view the layering of judicial discretion on executive discretion as a necessary check. However, judges are not politically accountable by design, which raises a question as to whether they should be the ultimate arbiters of labeling terrorists when there has been a finding that they meet the relevant statutory requirements. Moreover, this case demonstrates the difficulty of actually achieving uniformity through sentencing. While Judge Friedrich used other January 6 defendants as the comparator for the purpose of evaluating the § 3553(a) factors, she need not have looked so narrowly. Instead, Judge Friedrich might have examined the cases of Ruby Montoya and Jessica Reznicek, climate activists who were charged with conspiring to damage the Dakota Access Pipeline and against whom judges applied the terrorism sentencing enhancement. 131 Under this framing, she might have found that not applying the enhancement would create an unwarranted sentencing disparity between Reffitt — who was armed with a pistol while actively participating in an insurrection 132 and “threatened to ‘physically attack, remove, and replace’ lawmakers” 133 — and Montoya and Reznicek, who burned equipment and damaged a pipeline. 134 Montoya and Reznicek are serving seventy-two months and ninety-six months under the enhancement, respectively, while Reffitt is serving eighty-seven months for his conduct without the enhancement. 135 It is at least arguable that the sentencing enhancement was just as, if not more, appropriately applicable to Reffitt’s conduct as it was to either Montoya’s or Reznicek’s.

And beyond the question of uniformity, the inquiry into “unwarranted sentencing disparities” creates incentives for the government to be more aggressive in its use of the sentencing enhancement — because if it is not, then it might forfeit its ability to seek the enhancement in subsequent cases successfully.

C. A Blunt Tool for a Nuanced Problem

A final problem with a more aggressive use of the terrorism enhancement is that it is a particularly blunt tool. Mechanically, the enhancement increases a defendant’s offense level to not less than thirty-two and increases the defendant’s criminal history to Category VI — the highest criminal history category. 136 Critics have described the enhancement as “draconian” 137 and judges have refused to apply it because of its severity. For instance, Judge O’Toole refused to apply the enhancement over concerns about fairness, later stating that “the automatic assignment of the defendant to a Criminal History Category VI . . . is not only too blunt an instrument to have genuine analytical value, it is fundamentally at odds with the design of the Guidelines. It can, as it does in this case, import a fiction into the calculus.” 138 Similarly, Judge Land found that the terrorism enhancement’s requirement of automatic enhancement “ignores the individual ‘history and characteristics’ of the Defendant, and instead places too much weight on a questionable interpretation of what constitutes a federal crime of terrorism under the Guidelines.” 139 He too declined to apply the enhancement because it was “excessive.” 140

Not only do these examples again highlight judicial discretion, 141 but they also demonstrate the bluntness of the tool. The fact that the sentencing enhancement “treat[s] a wide range of crimes alike” makes it an inappropriate choice to serve as the primary mechanism to address domestic terror prosecutions as such. 142 Indeed, the DOJ seems to have recognized this bluntness, as it has exercised restraint in its requests to use the enhancement in a variety of domestic terrorism contexts. 143

Although the sentencing enhancement should not be the exclusive or primary tool wielded to respond to domestic terrorism as such, it should be a part of a broader set of tools authorized by Congress to be used to respond to the threat of domestic terrorism. Further, at least two aspects providing legitimacy to the sentencing enhancement should be applied more widely to the current statutory framework.

Congress should legislatively authorize a broader set of tools for the domestic terrorism context, subject them to a legal determination that any conduct charged constitutes terrorism, and make any minor adjustments to the statute as necessary to ensure it is adequately designed to address both international and domestic terrorism. While this would constitute a reform, it is distinct from the Wholesale Reform approach in that the goal is not to add tools for prosecutors, but rather to authorize tools that those taking the Status Quo approach argue already exist. This reform would also solve the expressive value and ambiguity concerns raised by the Wholesale Reform camp. Many tools that are currently available in the international terrorism context would form a more robust and democratically legitimate response to the current domestic threat that would neither upset the current balance between security and civil liberties nor leave the executive branch with overbroad discretion to designate defendants as terrorists.

While specific comprehensive legislative proposals are beyond the scope of this Note, a couple of concrete examples of reform are worth discussing. As previously mentioned, this Note advocates an approach, patterned off the 1996 sentencing enhancement reform, of amending the current legal regime to clearly apply to domestic terrorism and to require a factfinder to find terroristic intent. One example concerns the material-support statute — specifically, § 2239A. Many have proposed reforming the material-support statute, such as by eliminating the list of predicate offenses from § 2339A, 144 providing for designations of domestic terrorist organizations, 145 adding crimes to the list of federal crimes of terrorism, 146 or requiring the government to prove “specific intent to support an organization’s unlawful activities.” 147 This Note’s proposed reform does not chart uncharted territory in this regard. However, its motivation for reform differs from that of existing proposals, which affects the precise contours of what these broad categories of reforms might look like in practice.

In taking cues from the sentencing enhancement and focusing on the legitimacy concerns that have been identified, Congress should amend the material-support statute to apply clearly to domestic terrorism. It might do this by adding an express provision to § 2339A authorizing its use in cases where conduct occurs outside or within the territorial jurisdiction of the United States. In addition, hewing closer to its approach in response to the Oklahoma City bombing, 148 Congress might reexamine the list of predicate offenses in § 2339A and add any offense it identifies as being typical in the context of domestic terrorism that is not currently included. This is more in line with the sentencing enhancement’s approach whereby the Sentencing Commission expanded “international terrorism” 149 to “federal crime[s] of terrorism,” without expressly applying the enhancement to domestic terrorism. 150 If Congress, in response to January 6, expanded the list of predicate offenses to include crimes typical to the domestic terrorism context, that would clearly indicate that Congress had intended to authorize this statutory tool to be used to respond to domestic terrorism.

Additionally, the same avenue providing for a broader understanding of terroristic intent under the upward-departure provision of the sentencing enhancement could also be applied to the material-support statute. This is slightly complicated by the fact that the terroristic intent component of § 2339A is contained within the federal-crime-of-terrorism prong, which is cross-referenced in a variety of other contexts. Assuming Congress was unwilling to more broadly standardize the different intent standards and definitions of terrorism — international, domestic, transcending national boundaries, and so on — it might graft a broader intent prong within § 2339A itself. This might look like adding a provision specifying that where conduct does not fit the definition as set forth in § 2332b(g)(5), the material-support charge nonetheless applies if the government can prove the kind of intent set forth in § 2331(5)(b). 151

Briefly, another example of reform would be to amend § 2332b — terrorism transcending national boundaries — to include domestic terrorism. Though there is little case law, this provision has been interpreted to require only a minimal international nexus. Indeed, the First Circuit assumed without deciding that conduct transcending national boundaries needed to be “substantial,” but that a mere exchange of information with someone overseas was sufficient to constitute conduct transcending national boundaries. 152 This criminal charge could thus apply to domestic terrorists who were in contact with a sympathetic party in another country. Given the sparse case law, it is not clear whether this minimal nexus requirement would hold if this provision was used more robustly to target primarily domestic conduct. So this too might be a statute that could be amended to address domestic terrorism more clearly. Congress might also consider attaching a terroristic intent requirement to this charge to further legitimize its use and counterbalance any incidental expansion of authority.

The types of reform this Note proposes certainly will not change the minds of all those who view the current system as illegitimate. But a congressional mandate authorizing extant prosecutorial tools would insulate the DOJ from accusations of overreach while ensuring effective prosecution of domestic terrorism.

Domestic terrorism is not going away. Nor does it seem that the trends contributing to democratic erosion will recede. Yet the current approach is insufficient to respond to this threat. The current debate over reform does not adequately engage with the legitimacy challenges that are exacerbated in the context of the politically charged problem of domestic terrorism. While calls for increased use of the sentencing enhancement are misguided, the instinct to reach for that particular tool is understandable given several legitimizing features. These features need not be unique to the sentencing enhancement. Congress should (1) amend the current regime, not to expand executive power but instead to clarify and clearly authorize it in the domestic terrorism context, and (2) require a finding of terroristic intent. These reforms would strike a balance between the Wholesale Reform and Status Quo positions, address their core motivations, and account for the realities that shape the executive branch’s political authority to address domestic terrorism.

^ Olivia Rubin et al., 7 Hours, 700 Arrests, 1 Year Later: The Jan. 6 Capitol Attack, By the Numbers , ABC News (Jan. 6, 2022), https://abc7.com/jan-6-insurrection-us-capitol-riot/11428976 .

^ David A. Graham, January 6 Never Ended , The Atlantic (Oct. 28, 2022), https://www.theatlantic.com/ideas/archive/2022/10/paul-pelosi-attack-nancy-pelosi-husband-january-6/671918 (collecting quotes such as “Hang Mike Pence” and “We were looking for Nancy [Pelosi] to shoot her in the frickin’ brain”).

^ See Zachary Snowdon Smith, Capitol Riot Costs Go Up: Government Estimates $2.73 Million in Property Damage , Forbes (Apr. 8, 2022, 5:07 PM), https://www.forbes.com/sites/zacharysmith/2022/04/08/capitol-riot-costs-go-up-government-estimates-273-million-in-property-damage .

^ See Ken Thomas & Sabrina Siddiqui, Biden Says Rioters Who Stormed Capitol Were Domestic Terrorists , Wall St. J. (Jan. 7, 2021, 8:40 PM), https://www.wsj.com/articles/biden-says-mob-that-stormed-capitol-were-domestic-terrorists-11610046962 .

^ See Eric Tucker & Mary Clare Jalonick, Watch: FBI Chief Chris Wray Calls Jan. 6 “Domestic Terrorism,” Defends Intel , PBS (Mar. 2, 2021, 3:12 PM), https://www.pbs.org/newshour/politics/watch-live-fbi-chief-chris-wray-to-face-questions-about-extremism-capitol-riot .

^ See Charlie Savage, Was the Jan. 6 Attack on the Capitol an Act of “Terrorism”? , N.Y. Times (Jan. 7, 2022), https://www.nytimes.com/2022/01/07/us/politics/jan-6-terrorism-explainer.html .

^ See Merrick B. Garland, Att’y Gen., U.S. Dep’t of Just., Remarks: Domestic Terrorism Policy Address (June 15, 2021), https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-remarks-domestic-terrorism-policy-address .

^ See, e.g. , Brian Stelter, How the News Media Covered Domestic Terrorism on Capitol Hill , CNN (Jan. 7, 2021, 1:33 AM), https://www.cnn.com/2021/01/07/media/domestic-terrorism-capitol-hill-reliable-sources-january-6/index.html .

^ See, e.g. , Savage, supra note 7.

^ Daniel Byman, When to Call a Terrorist a Terrorist , Foreign Pol’y (Oct. 27, 2018, 11:35 PM), https://foreignpolicy.com/2018/10/27/when-to-call-a-terrorist-a-terrorist .

^ Mary B. McCord, It’s Time for Congress to Make Domestic Terrorism a Federal Crime , Lawfare (Dec. 5, 2018, 9:13 AM), https://www.lawfareblog.com/its-time-congress-make-domestic-terrorism-federal-crime .

^ Press Release, Loretta Lynch, Att’y Gen., U.S. Dep’t of Just., Attorney General Lynch Statement Following the Federal Grand Jury Indictment Against Dylann Storm Roof (July 22, 2015), https://www.justice.gov/opa/pr/attorney-general-lynch-statement-following-federal-grand-jury-indictment-against-dylann-storm .

^ Trevor Aaronson, Terrorism’s Double Standard , The Intercept (Mar. 23, 2019, 8:34 AM), https://theintercept.com/2019/03/23/domestic-terrorism-fbi-prosecutions .

^ See McCord, supra note 12.

^ See Samuel Scheffler, Is Terrorism Morally Distinctive? , 14 J. Pol. Phil. 1, 2 (2006).

^ Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S. Code).

^ See id. ; Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified as amended in scattered sections of the U.S. Code); Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (codified as amended in scattered sections of the U.S. Code).

^ See infra section II.B, pp. 1921–22.

^ See infra section II.A, pp. 1919–21.

^ See Shirin Sinnar, Hate Crimes, Terrorism, and the Framing of White Supremacist Violence , 110 Calif. L. Rev. 489, 520 (2022).

^ See United States v. U.S. Dist. Ct. ( Keith ), 407 U.S. 297, 308–09, 321–22, 324 (1972); see also Sinnar, supra note 21, at 520.

^ See Shirin Sinnar, Separate and Unequal: The Law of “Domestic” and “International” Terrorism , 117 Mich. L. Rev. 1333, 1361 (2019).

^ See id. at 1362.

^ See statutes cited supra note 18.

^ USA PATRIOT Act § 802, 18 U.S.C. § 2331(5).

^ See, e.g. , 6 U.S.C. §§ 124h-1(f)(3)(A), 1137a(d)(4)(A); see also 6 C.F.R. § 27.105 (incorporating the definition in regulations governing counterterrorism efforts at chemical facilities). The definition is also incorporated into the Federal Rules of Criminal Procedure that empower judges to issue nationwide search warrants, see Fed. R. Crim. P. 41(a)(2)(D), 41(b)(3); see also Spencer S. Hsu, U.S. Cited “Domestic Terrorism” in Search Tied to Oath Keepers’ Lawyer , Wash. Post (Sept. 7, 2022, 5:17 PM), https://www.washingtonpost.com/dc-md-va/2022/09/07/domestic-terrorism-sorelle-oathkeepers , and that give government attorneys additional authority to share any grand jury matter, see Fed. R. Crim. P. 6(e)(3)(D).

^ U.S. Sent’g Guidelines Manual § 5K2.15 ( U.S. Sent’g Comm’n 1994).

^ Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120004, 108 Stat. 1796, 2022 (codified as amended in scattered sections of the U.S. Code).

^ U.S. Sent’g Guidelines Manual § 3A1.4 ( U.S. Sent’g Comm’n 1995).

^ See Josh Gerstein, Why DOJ Is Avoiding Domestic Terrorism Sentences for Jan. 6 Defendants , Politico (Jan. 4, 2022, 4:30 AM), https://www.politico.com/news/2022/01/04/doj-domestic-terrorism-sentences-jan-6-526407 .

^ Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 730, 110 Stat. 1214, 1303 (codified as amended at 28 U.S.C. § 994 note). Compare U.S. Sent’g Guidelines Manual § 3A1.4 ( U.S. Sent’g Comm’n 1995), with U.S. Sent’g Guidelines Manual § 3A1.4 ( U.S. Sent’g Comm’n 1997), and id. app. C, amend. 539.

^ 18 U.S.C. § 2332b(g)(5).

^ See U.S. Sent’g Guidelines Manual supp. to app. C, amend. 637 ( U.S. Sent’g Comm’n 2002 ) .

^ Courts have consistently held that this enhancement does not require the offense to transcend national boundaries, see, e.g. , United States v. Salim, 549 F.3d 67, 77 (2d Cir. 2008), and the Eleventh Circuit has found the same for the upward departure provision, see United States v. Jordi, 418 F.3d 1212, 1216–17 (11th Cir. 2005).

^ Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives , 114 Nw. U. L. Rev. Online 212, 246 (2020).

^ 18 U.S.C. § 2332b(g)(5); see also U.S. Sent’g Guidelines Manual § 3A1.4 ( U.S. Sent’g Comm’n 2021).

^ U.S. Sent’g Guidelines Manual § 3A1.4(a) ( U.S. Sent’g Comm’n 2021); see also, e.g. , United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006).

^ U.S. Sent’g Guidelines Manual § 3A1.4, cmt. n.2 ( U.S. Sent’g Comm’n 2021).

^ See id. § 3A1.4, cmt. n.4.

^ Id. This limitation is likely included to comply with the Supreme Court’s ruling in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000).

^ For a comprehensive comparison of the terrorism frame and the hate crime frame, see generally Sinnar, supra note 21.

^ 18 U.S.C. § 249; Press Release, U.S. Dep’t of Just., Ohio Man Pleads Guilty to 29 Federal Hate Crimes for August 2017 Car Attack at Rally in Charlottesville (Mar. 27, 2019), https://www.justice.gov/opa/pr/ohio-man-pleads-guilty-29-federal-hate-crimes-august-2017-car-attack-rally-charlottesville .

^ See Gabe Gutierrez & Corky Siemaszko, Jury Finds Dylann Roof Guilty of Charleston Church Massacre , NBC News (Dec. 15, 2016, 5:59 PM), https://www.nbcnews.com/news/us-news/jury-finds-roof-guilty-charleston-church-massacre-n696406 .

^ Indeed, as of 2019, thirty-four states and the District of Columbia have their own terrorism laws. See Margot Williams & Trevor Aaronson, How Individual States Have Criminalized Terrorism, The Intercept (Mar. 23, 2019, 8:30 AM), https://theintercept.com/2019/03/23/state-domestic-terrorism-laws .

^ See Ga. Code Ann . § 16-11-221 (2022) ; N.Y. Penal Law §§ 490.25, 490.27–.28 (McKinney 2022); Vt. Stat. Ann. tit. 13, § 1703 (2021).

^ See Mich. Comp. Laws Ann. § 750.543b (West 2023); Lauren del Valle et al., Teen Pleads Guilty to Terrorism and Murder Charges After Michigan School Shooting that Killed 4 Students, CNN (Oct. 24, 2022, 6:10 PM), https://www.cnn.com/2022/10/24/us/ethan-crumbley-plea-oxford-michigan-shooting-monday/index.html .

^ See, e.g. , McCord, supra note 12; Adam Goldman, F.B.I., Pushing to Stop Domestic Terrorists, Grapples with Limits on Its Power , N.Y. Times (June 4, 2019), https://www.nytimes.com/2019/06/04/us/politics/fbi-domestic-terrorism.html .

^ See, e.g. , Chuck Rosenberg & Tom O’Connor, Opinion, We Need a Domestic Terrorism Law. Call These Crimes What They Are, For Victims and America , USA Today (Mar. 15, 2021, 8:59 AM), https://www.usatoday.com/story/opinion/2021/03/15/domestic-international-terrorism-deserve-same-legal-treatment-column/4684258001 .

^ See, e.g. , Amy C. Collins, Program on Extremism at George Washington Univ., The Need for a Specific Law Against Domestic Terrorism 23–26 (2020); Mary B. McCord & Jason M. Blazakis, A Road Map for Congress to Address Domestic Terrorism , Lawfare (Feb. 27, 2019, 8:00 AM), https://www.lawfareblog.com/road-map-congress-address-domestic-terrorism ; Laguardia, supra note 37, at 215.

^ See Mary B. McCord, Criminal Law Should Treat Domestic Terrorism as the Moral Equivalent of International Terrorism , Lawfare (Aug. 21, 2017, 1:59 PM), https://www.lawfareblog.com/criminal-law-should-treat-domestic-terrorism-moral-equivalent-international-terrorism .

^ See Deepa Kumar, Terrorcraft: Empire and the Making of the Racialised Terrorist Threat , 62 Race & Class 34, 43–48 (2020); Sinnar, supra note 21, at 556–57; Aaronson, supra note 14 (noting that the DOJ applied antiterrorism laws against only 34 of the 268 right-wing extremists prosecuted in federal court since 9/11 allegedly involved in domestic terrorism).

^ See James Cullum, No Domestic Terror Charge? Lack of Law Reflects “Considerable Ambiguity,” Says DOJ Official , Homeland Sec. Today (Dec. 9, 2018), https://www.hstoday.us/subject-matter-areas/counterterrorism/no-domestic-terror-charge-for-domestic-terrorism-lack-of-law-reflects-considerable-ambiguity-says-doj-official ; Goldman, supra note 49; Jason M. Blazakis, The Intangible Benefits of a Domestic Terrorism Statute , Geo. J. Int’l Affs. (June 24, 2021), https://gjia.georgetown.edu/2021/06/24/the-intangible-benefits-of-a-domestic-terrorism-statute .

^ See Cass R. Sunstein, On the Expressive Function of Law , 144 U. Pa. L. Rev. 2021, 2024 (1996).

^ See McCord, supra note 12 .

^ See Kumar, supra note 53, at 43–48; Sinnar, supra note 21, at 556–57.

^ See Sinnar, supra note 21, at 524.

^ Cullum, supra note 54.

^ See, e.g., Rachael Hanna & Eric Halliday, Discretion Without Oversight: The Federal Government’s Power to Investigate and Prosecute Domestic Terrorism, 55 Loy. L.A. L. Rev . 775 (2022) .

^ See Goldman, supra note 49.

^ Blazakis, supra note 54.

^ See, e.g. , Michael German, Why New Laws Aren’t Needed to Take Domestic Terrorism More Seriously , Brennan Ctr. for Just. (Dec. 14, 2018), https://www.brennancenter.org/our-work/analysis-opinion/why-new-laws-arent-needed-take-domestic-terrorism-more-seriously .

^ See, e.g. , Hanna & Halliday, supra note 60, at 821.

^ See Sinnar, supra note 23, at 1361–63.

^ Cf. 18 U.S.C. § 2339B (proscribing “[p]roviding material support or resources to designated foreign terrorist organizations,” textually limiting the statute to international terrorism).

^ See Hanna & Halliday, supra note 60, at 821–22.

^ See generally id. at 849–53; German, supra note 63; Letter from 157 Civil Rights Organizations to Congress (Jan. 19, 2021), http://civilrightsdocs.info/pdf/policy/letters/2020/No_Domestic_Terrorism_Charge_1_21_2021.pdf ; Sinnar, supra note 23. Cf. Melissa Powers, Comment, Drifting Away from Terrorism: Downward Departure from the Terrorism Enhancement in Cases of Mental Illness , 62 St. Louis U. L.J. 939, 939–40 (2018).

^ Hanna & Halliday, supra note 60, at 851.

^ See id. at 847–49.

^ See id. at 835–49, 852–53.

^ Cf. Michal Buchhandler-Raphael, What’s Terrorism Got to Do with It? The Perils of Prosecutorial Misuse of Terrorism Offenses , 39 Fla. St. U. L. Rev. 807, 819–21 (2012).

^ Daniel L. Byman, Who Is a Terrorist, Actually? , Brookings: Order from Chaos (Sept. 22, 2020), https://www.brookings.edu/blog/order-from-chaos/2020/09/22/who-is-a-terrorist-actually .

^ See Murat Haner et al., How Politics Constrain the Public’s Understanding of Terrorism , Soc. Forces (forthcoming) (manuscript at 15) (on file with the Harvard Law School Library).

^ See John J. Tierney, Jr., Terror at Home: The American Revolution and Irregular Warfare , 12 Stan. J. Int’l Studs. 1, 2–3 (1977).

^ See Laguardia, supra note 37, at 248.

^ See e.g. , Dean Obeidallah, Opinion, The Revolting Celebration of January 6 at CPAC , CNN (Aug. 7, 2022, 8:30 PM), https://www.cnn.com/2022/08/07/opinions/cpac-jail-cell-booth-january-6-obeidallah/index.html (quoting Representative Marjorie Taylor Greene as “call[ing] the jailed January 6 attackers ‘political prisoners’”).

^ Charlie Savage & Luke Broadwater, House Republicans Preparing Broad Inquiry into F.B.I. and Security Agencies , N.Y. Times (Jan. 8, 2023), https://www.nytimes.com/2023/01/08/us/politics/house-republicans-fbi-investigation.html . In 1975, the Church Committee conducted extensive hearings on the FBI and its counterintelligence program. Hanna & Halliday, supra note 60, at 842; S. Rep. No. 94-755, at 1–11 (1976). This investigation revealed that “the FBI illegally surveilled and employed covert operations against a wide array of left-wing organizations and actors, including Dr. Martin Luther King Jr., other leaders of the civil rights movement, the Black Panther Party, feminist activists, the American Indian Movement, anti–Vietnam War organizers, and environmental organizations,” Hanna & Halliday, supra note 60, at 842, with the aim of “counter[ing], combat[ing], disrupt[ing], and sometimes destroy[ing] those who” the FBI deemed threats to national security, S. Rep. No. 94-755, at 9.

^ See Drew DeSilver, The Polarization in Today’s Congress Has Roots that Go Back Decades , Pew Rsch. Ctr. (Mar. 10, 2022), https://www.pewresearch.org/fact-tank/2022/03/10/the-polarization-in-todays-congress-has-roots-that-go-back-decades .

^ Americans’ confidence in institutions is at the lowest point since Gallup polls started surveying on this question in 1979. Madeline Halpert, Trust in U.S. Institutions Hits Record Low, Poll Finds , Forbes (July 5, 2022, 2:57 PM), https://www.forbes.com/sites/madelinehalpert/2022/07/05/trust-in-us-institutions-hits-record-low-poll-finds .

^ See Julie M. Norman, Other People’s Terrorism: Ideology and the Perceived Legitimacy of Political Violence , Persps. on Pol . (forthcoming) (manuscript at 1) (on file with the Harvard Law School Library).

^ See Caroline Draughton, Polarization and Its Threat to American Democracy , Democratic Erosion (Mar. 28, 2022), https://www.democratic-erosion.com/2022/03/28/polarization-and-its-threat-to-american-democracy (“As the public’s faith in government institutions dwindles, democracies are more vulnerable to democratic backsliding. Polarized perceptions of the government result in undemocratic practices by both government supporters and opposition parties. Under the ‘Us versus Them’ rhetoric of polarization, government supporters are more likely to tolerate illiberal practices within government institutions, while opposition groups are encouraged to use undemocratic means to express opposition.”).

^ See Richard H. Fallon, Jr., Legitimacy and the Constitution , 118 Harv. L. Rev. 1787, 1848 (2005) (“[L]egal legitimacy depends fundamentally on sociological legitimacy.”); Lauren M. Ouziel, Legitimacy and Federal Criminal Enforcement Power , 123 Yale L.J. 2236, 2242 (2014).

^ See Ouziel, supra note 85, at 2242.

^ See Clark Neily, Opinion, Prisons Are Packed Because Prosecutors Are Coercing Plea Deals. And, Yes, It’s Totally Legal. , Cato Inst. (Aug. 8, 2019), https://www.cato.org/commentary/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-its-totally-legal .

^ Ouziel, supra note 85, at 2276.

^ See Would-Be Mass Shooters Sentenced , FBI (Jan. 31, 2020), https://www.fbi.gov/news/stories/couple-sentenced-for-planning-mass-shooting-013120 .

^ See Hanna & Halliday, supra note 60, at 822.

^ Id. ; see also Ryan J. Reilly et al., Americans Are Surprised Domestic Terrorism Isn’t a Federal Crime. Most Think It Should Be. , HuffPost (Apr. 12, 2018, 4:54 PM), https://www.huffingtonpost.com/entry/domestic-terrorism-federal-law-poll-dojfbi_us_5acd1c78e4b09212968c8907 .

^ See Buchhandler-Raphael, supra note 73, at 812.

^ Catrina Doxsee et al., Ctr. for Strategic & Int’l Stud., Pushed to Extremes: Domestic Terrorism amid Polarization and Protest 3 (2022).

^ See Letter from Ronald Newman, Nat’l Pol. Dir., ACLU & Manar Waheed, Senior Legis. & Advoc. Couns., to Jerrold Nadler, Chairman, House Judiciary Comm. & Doug Collins, Ranking Member, House Judiciary Comm. (Sept. 3, 2019), https://www.aclu.org/sites/default/files/field_document/2019-09-03_aclu_oppose_h.r._4192_confronting_the_threat_of_domestic_terrorism_act.pdf ; see also Betsy Woodruff Swan, Trump Says He’s Naming Antifa a “Terrorist Organization.” Can He Do That? , Politico (May 31, 2020, 3:59 PM), https://www.politico.com/news/2020/05/31/trump-antifa-terrorist-organization-legal-292785 (noting that former President Trump lacked the power to designate a domestic group as a terrorist organization).

^ See Off. of the Inspector Gen., U.S. Dep’t of Just., A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups 1–2, 190 (2010), https://www.oversight.gov/sites/default/files/oig-reports/s1009r.pdf .

^ See Michael German, Manufacturing a “Black Separatist” Threat and Other Dubious Claims: Bias in Newly Released FBI Terrorism Training Materials , ACLU (May 29, 2012), https://www.aclu.org/news/national-security/manufacturing-black-separatist-threat-and-other .

^ See Hanna & Halliday, supra note 60, at 845.

^ Cf. Sinnar, supra note 21, at 554.

^ Richard Cohen, How Creative Should Criminal Law Be? , Wash. Post (Mar. 12, 1978), https://www.washingtonpost.com/archive/local/1978/03/12/how-creative-should-criminal-law-be/2ac9d47b-77ae-4a7e-b182-4212586cd587 .

^ See Rachel E. Barkow, Separation of Powers and the Criminal Law , 58 Stan. L. Rev. 989, 997, 1017 (2006); Buchhandler-Raphael, supra note 73, at 811–12 ; Neal Kumar Katyal, Essay, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within , 115 Yale L.J . 2314, 2319–22 (2006); Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion , 46 UCLA L. Rev. 757, 758 (1999).

^ Richman, supra note 103, at 758.

^ Jack Goldsmith, Independence and Accountability at the Department of Justice , Lawfare (Jan. 30, 2018, 2:16 PM), https://www.lawfareblog.com/independence-and-accountability-department-justice .

^ Richman, supra note 103, at 767.

^ Maryam Jamshidi, The Discriminatory Executive and the Rule of Law , 92 U. Colo. L. Rev. 77, 79 (2021) (footnote omitted).

^ See Buchhandler-Raphael, supra note 73, at 836–37.

^ See Hanna & Halliday, supra note 60, at 851, 853; Jesse J. Norris, Why Dylann Roof Is a Terrorist Under Federal Law, And Why It Matters , 54 Harv. J. on Legis. 259, 264 (2017); Eric Halliday & Rachael Hanna, How the Federal Government Investigates and Prosecutes Domestic Terrorism , Lawfare (Feb. 16, 2021, 11:17 AM), https://www.lawfareblog.com/how-federal-government-investigates-and-prosecutes-domestic-terrorism ; Michel Paradis, Treat the Attack on the Capitol as Terrorism , The Atlantic (Apr. 23, 2021, 11:57 AM), https://www.theatlantic.com/ideas/archive/2021/01/treat-attack-capitol-terrorism/617714 .

^ Wadie E. Said, Sentencing Terrorist Crimes , 75 Ohio St. L.J . 477, 480 (2014) (noting the terrorism enhancement “also affords prosecutors and courts a vehicle of an expressive nature, to comment on their deep disapproval and condemnation of terrorism in a general sense”); see also Norris, supra note 109, at 293.

^ Matthew G. Olsen, Assistant Att’y Gen., U.S. Dep’t of Just., Opening Remarks Before U.S. Senate Committee on the Judiciary (Jan. 11, 2022), https://www.justice.gov/opa/speech/assistant-attorney-general-matthew-g-olsen-delivers-opening-remarks-us-senate-committee .

^ Fed. Bureau of Investigation & Dep’t of Homeland Sec., Strategic Intelligence Assessment and Data on Domestic Terrorism 22 (2022).

^ See generally Stephanos Bibas, The Need for Prosecutorial Discretion , 19 Temp. Pol. & C.R. L. Rev. 369 (2010).

^ See Laguardia, supra note 37, at 246.

^ See Fed. R. Evid. 1101(b), (d).

^ See Gerstein, supra note 31 (quoting Michael German, a former FBI agent and a fellow at the Brennan Center for Justice at New York University, as saying that “[i]t’s very arbitrary in how and when the government wants to apply this enhancement”).

^ See Buchhandler-Raphael, supra note 73, at 845–48.

^ See Gerstein, supra note 31 (quoting Attorney General Merrick Garland as saying, “I am quite aware that there are people who are criticizing us for not prosecuting sufficiently and others who are complaining that we are prosecuting too harshly”).

^ See id. (quoting Karen Greenberg, Director of the Center on National Security at Fordham University School of Law, as saying that the sentencing enhancement is “just lying there as a cudgel if [prosecutors] want it, . . . [and it] can be used in so many different ways”).

^ Cf. Matthew Van Meter, One Judge Makes the Case for Judgment , The Atlantic (Feb. 25, 2016), https://www.theatlantic.com/politics/archive/2016/02/one-judge-makes-the-case-for-judgment/463380 .

^ Stephen Floyd, Note, Irredeemably Violent and Undeterrable: How Flawed Assumptions Justify a Broad Application of the Terrorism Enhancement, Contradict Sentencing Policy, and Diminish U.S. National Security , 109 Geo. L.J. Online 142, 144 (2021) (quoting George D. Brown, Notes on a Terrorism Trial — Preventive Prosecution, “Material Support” and the Role of the Judge After United States v. Mehanna, 4 Harv. Nat’l Sec. J. 1, 48 (2012)).

^ See Van Meter, supra note 122.

^ Sinnar, supra note 21, at 532; see Nathan Carpenter, Note, The Ad Hoc Federal Crime of Terrorism: Why Congress Needs to Amend the Statute to Adequately Address Domestic Extremism , 92 St. John’s L. Rev. 393, 414 (2018); see also Michael Molstad, Note, Our Inner Demons: Prosecuting Domestic Terrorism , 61 B.C. L. Rev. 339, 373 (2020).

^ See generally Floyd, supra note 123.

^ See Norris, supra note 109, at 280–81; Paradis, supra note 109.

^ See Madison Hall et al., At Least 1,003 People Have Been Charged in the Capitol Insurrection So Far. This Searchable Table Shows Them All. , Insider (Feb. 16, 2023, 11:53 AM), https://www.insider.com/all-the-us-capitol-pro-trump-riot-arrests-charges-names-2021-1 .

^ See Lucien Bruggeman, Who Should Be Labeled a Terrorist? Jan. 6 Sentencing Fuels the Debate , ABC News (Aug. 1, 2022, 9:28 PM), https://abcnews.go.com/US/labeled-terrorist-jan-sentencing-fuels-debate/story?id=87769985 .

^ See Josh Gerstein, Texas Militia Member Gets Most Serious Jan. 6 Sentence Yet: Just Over 7 Years , Politico (Aug. 1, 2022, 5:14 PM), https://www.politico.com/news/2022/08/01/jan-6-terrorism-sentencing-penalty-00048922 . The judge also seemed compelled by the defense’s argument that the government was seeking the enhancement as a “trial tax.” See Bruggeman, supra note 129.

^ See Lucien Bruggeman, Climate Activist Who Targeted Dakota Access Pipeline Sentenced to 6 Years After Terrorism Enhancement , ABC News (Sept. 26, 2022, 8:18 PM), https://abcnews.go.com/US/climate-activist-targeted-dakota-access-pipeline-sentenced-years/story?id=90546657 .

^ Gerstein, supra note 130.

^ Bruggeman, supra note 129.

^ Bruggeman, supra note 131.

^ Id. ; see also Gerstein, supra note 130.

^ George D. Brown, Punishing Terrorists: Congress, The Sentencing Commission, The Guidelines, and the Courts , 23 Cornell J.L. & Pub. Pol’y 517, 520 (2014); see also Pinky Wassenberg, U.S. Circuit Courts & the Application of the Terrorism Enhancement Provision , 42 S. Ill. U. L.J. 85, 87 (2017). For a comprehensive explanation of the mechanics of the sentencing regime and the terrorism enhancement, see Powers, supra note 69, at 941–51.

^ See Floyd, supra note 123, at 144 (citing Brown, supra note 123, at 48).

^ Powers, supra note 69, at 953 (quoting Joanna Baltes et al., Convicted Terrorists: Sentencing Considerations and Their Policy Implications , 8 J. Nat’l Sec. L. & Pol’y 347, 356 (2016) (emphasis added)).

^ United States v. Garey, 383 F. Supp. 2d 1374, 1379 (M.D. Ga. 2005).

^ Id. at 1380.

^ See Powers, supra note 69, at 953 (“[S]ome judges recognize the propensity for the automatic criminal history to create overly harsh sentences and take measures to avoid such a result . . . .”).

^ Brown, supra note 123, at 48 (citing James P. McLoughlin, Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations , 28 Law & Ineq. 51, 54 (2010)).

^ See Gerstein, supra note 31.

^ See, e.g., Laguardia, supra note 37, at 234–35.

^ See, e.g., Jimmy Gurulé, Criminalizing Material Support to Domestic Terrorist Organizations: A National Security Imperative , 47 J. Legis. , no. 2, 2021, at 8, 25–28.

^ See, e.g. , Laguardia, supra note 37, at 241–45; Jon Lewis & Seamus Hughes, Opinion, Our Laws Have a Problem Calling Domestic Terrorism What It Is , The Hill (Feb. 6, 2020, 9:30 AM), https://thehill.com/opinion/national-security/481166-our-laws-have-a-problem-calling-domestic-terrorism-what-it-is .

^ Sinnar, supra note 23, at 1403.

^ See supra notes 30–33 and accompanying text.

^ U.S. Sent’g Guidelines Manual § 3A1.4(a) ( U.S. Sent’g Comm’n 1995).

^ See Laguardia, supra note 37, at 230–31.

^ United States v. Wright, 937 F.3d 8, 32–33 (1st Cir. 2019).

Domestic Terrorism
Legal Legitimacy
National Security Law
Separation of Powers
War on Terror

May 9, 2023

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FACT SHEET: National Strategy for Countering Domestic Terrorism

On his first full day in office, President Biden directed his national security team to lead a 100-day comprehensive review of U.S. Government efforts to address domestic terrorism, which has evolved into the most urgent terrorism threat the United States faces today. As a result of that review, the Biden Administration is releasing the first-ever National Strategy for Countering Domestic Terrorism to address this challenge to America’s national security and improve the federal government’s response.

Domestic terrorism is not a new threat in the United States, yet it is a threat Americans have endured too often in recent years. The comprehensive strategy provides a nationwide framework for the U.S. Government and partners to understand and share domestic terrorism related information; prevent domestic terrorism recruitment and mobilization to violence; disrupt and deter domestic terrorism activity; and confront long term contributors to domestic terrorism. Our approach will protect both the nation and the civil liberties of its citizens.

Under Federal law, “ domestic terrorism ” is defined as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; 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 review was rooted in an expert assessment of the domestic terrorism threat provided by the intelligence and law enforcement communities. An unclassified summary of that assessment was released in March so the public could see the key findings. It found that the two most lethal elements of today’s domestic terrorism threat are (1) racially or ethnically motivated violent extremists who advocate for the superiority of the white race and (2) anti-government or anti-authority violent extremists, such as militia violent extremists.

To develop a government-wide strategy to counter domestic terrorists, the Biden Administration consulted extensively with a wide array of experts across the U.S. Government as well as with leaders in Congress, state and local governments, academia, civil society, religious communities, and foreign governments. Throughout the process, we embraced the protection of civil rights and civil liberties as a national security imperative . The strategy we are releasing today is carefully tailored to address violence and reduce the factors that lead to violence, threaten public safety, and infringe on the free expression of ideas. It is organized around four pillars – the core elements of how the Biden Administration will improve the U.S. Government’s response to this persistent, evolving, and lethal threat to our people, our democracy, and our national security:

PILLAR 1: UNDERSTAND AND SHARE DOMESTIC TERRORISM-RELATED INFORMATION

The U.S. Government will enhance domestic terrorism analysis and improve information sharing throughout law enforcement at the federal, state, local, tribal, and territorial levels, and, where appropriate, private sector partners. The Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) have implemented a robust system to methodically track domestic terrorism cases nationwide. The Department of State as well as the intelligence and law enforcement communities are learning more from foreign partners about the international dimensions of this threat.

The Department of State will continue to assess whether additional foreign entities linked to domestic terrorism can be designated as Foreign Terrorist Organizations or Specially Designated Global Terrorists under relevant statutory criteria. The Department of the Treasury, in coordination with law enforcement, is exploring ways to enhance the identification and analysis of financial activity of domestic terrorists. The Department of Homeland Security (DHS) is enhancing its analysis of open-source information to identify threats earlier and will create a structured mechanism for receiving and sharing within government credible non-governmental analysis.

PILLAR 2: PREVENT DOMESTIC TERRORISM RECRUITMENT AND MOBILIZATION TO VIOLENCE

Drawing on the expertise of a variety of departments and agencies, the U.S. Government has revamped support to community partners who can help to prevent individuals from ever reaching the point of committing terrorist violence . The U.S. Government will strengthen domestic terrorism prevention resources and services . For the first time, the Department of Homeland Security (DHS) has designated “Domestic Violent Extremism” as a National Priority Area within the Department’s Homeland Security Grant Program, which means that over $77 million will be allocated to state, local, tribal, and territorial partners to prevent, protect against, and respond to domestic violent extremism. DHS and FBI are working to strengthen local prevention, threat assessment, and threat management frameworks. The Department of Defense (DOD) is incorporating training for servicemembers separating or retiring from the military on potential targeting of those with military training by violent extremist actors. The U.S. Government will improve public awareness of federal resources to address concerning or threatening behavior before violence occurs.

The U.S. Government will augment its efforts to address online terrorist recruitment and mobilization to violence by domestic terrorists through increased information sharing with the technology sector and the creation of innovative ways to foster digital literacy and build resilience to recruitment and mobilization. The United States also recently joined the Christchurch Call to Action to Eliminate Terrorist and Violent Extremist Content Online , an international partnership between governments and technology companies that works to develop new multilateral solutions to eliminating terrorist content online while safeguarding the freedom of online expression.

PILLAR 3: DISRUPT AND DETER DOMESTIC TERRORISM ACTIVITY

The work of Federal law enforcement as well as our state, local, tribal, and territorial law enforcement partners is critical to countering domestic terrorism. The U.S. Government will increase support to Federal, state, and local law enforcement in addressing domestic terrorism nationwide . U.S. Attorney’s Offices and FBI field offices across the country have formally made domestic terrorism a top priority and are tracking comprehensively domestic terrorism-related cases, reallocating or requesting appropriate funding and resources as needed to target the threat. That includes over $100 million in additional resources for DOJ, FBI, and DHS included in the President’s Fiscal Year 2022 Budget to ensure that the Federal Government has the analysts, investigators, prosecutors, and other personnel and resources it needs to thwart domestic terrorism and do justice when the law has been broken. State, local, tribal, and territorial law enforcement will have access to increased intelligence sharing and training on domestic terrorism and associated threats. DOJ is closely examining whether new legislative authorities that balance safety and the protection of civil liberties are necessary and appropriate. The U.S. Government is improving employee screening to enhance methods for identifying domestic terrorists who might pose insider threats . The Office of Personnel Management will consider updates to the forms used to apply for sensitive roles in the Federal Government that could assist investigators in identifying potential domestic terrorism threats. DOD, DOJ, and DHS are similarly pursuing efforts to ensure domestic terrorists are not employed within our military or law enforcement ranks and improve screening and vetting processes. Training and resources will be developed for state, local, tribal, and territorial law enforcement partners as well as sensitive private sector partners to enable them to enhance their own employee screening programs and prevent individuals who pose domestic terrorism threats from being placed in positions of trust.

PILLAR 4: CONFRONT LONG-TERM CONTRIBUTORS TO DOMESTIC TERRORISM

Every component of the government has a role to play in rooting out racism and bigotry and advancing equity for all Americans. The U.S. Government, in close partnership with civil society, will address the long-term contributors that are responsible for much of today’s domestic terrorism. This includes reducing and protecting Americans from racial, ethnic, and religious hatred, and stemming the flow of firearms to individuals intending to commit acts of domestic terrorism. We will work to ensure that law enforcement operates without bias in countering domestic terrorism and provides for the public safety of all Americans. In a true democracy, violence cannot be an acceptable mode of seeking political or social change .

The U.S. Government is committed to strengthening trust in American democracy and its ability to deliver for the American people, including through relief and opportunity provided by the American Rescue Plan, the American Jobs Plan and the American Families Plan. The U.S. Government will also work to find ways to counter the polarization often fueled by disinformation, misinformation, and dangerous conspiracy theories online , supporting an information environment that fosters healthy democratic discourse.

In implementing this strategy, and at the direction of President Biden, we will remain focused on addressing violence and reducing the threat of violence while vigilantly safeguarding peaceful expression of a wide range of views and freedom of political association.

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U.S. Government Accountability Office

The Rising Threat of Domestic Terrorism in the U.S. and Federal Efforts to Combat It

Domestic terrorism is on the rise. Several attacks have been widely reported in the last few years. For example, in May 2022, a racially-motivated individual shot and killed 10 people in Buffalo, New York. A 2018 attack on a Pittsburgh synagogue left 11 people dead. All but eight states across the U.S. experienced at least one incident of domestic terrorism between 2010 and 2021. And over the last 10 years, domestic terrorism-related investigations have grown by 357%.

Today’s WatchBlog post looks at our new report on the rising threat of domestic terrorism and federal efforts to combat it.

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What do we know about domestic terrorism incidents?

Domestic terrorism is generally defined by law as involving criminal acts dangerous to human life on U.S. soil that appear intended to coerce a civilian population or influence or affect the conduct of government.

There were 231 incidents (meaning attacks or plots) that met the definition of domestic terrorism between 2010 and 2021, according to DHS. They occurred across the United States, but the greatest number of incidents occurred in states with major metropolitan areas—such as California (Los Angeles, San Diego, and San Francisco), New York (New York City), and Washington, D.C.

Domestic Terrorism Incidents by State, 2010 through 2021

Map of U.S. showing where domestic terrorism incidents occurred, 2010-2021

Why are these attacks happening?

According to DHS, there were 231 domestic terrorism incidents between 2010 and 2021. Of these, about 35% (the largest category) were classified as racially- or ethnically-motivated. These attacks were also the most lethal. For example, in July 2016, a racially-motivated individual killed five police officers in Dallas. More recently, in May 2022, a racially-motivated individual shot and killed 10 people in Buffalo, New York.

Anti-government or anti-authority motivated violent extremism was the second largest category of incidents, and resulted in 15 deaths over the same time period.

There were also domestic terrorism incidents linked to animal rights extremists and abortion-related violent extremists, among other motivations. Animal rights-related incidents did not result in any deaths during this time period; incidents related to abortion-related violent extremists led to 3 deaths.

Domestic Terrorism-Related Incidents by Category, from 2010 through 2021

Pie chart showing categories of domestic terrorism-related incidents (2010-2021). The largest category shown is racially- or ethnically-motivated violent extremists.

What is being done to combat domestic terrorism threats?

The FBI is responsible for leading domestic terrorism-related investigations and intelligence efforts involving terrorist activities or plots. The Department of Homeland Security (DHS) tracks terrorism-related incidents, and is responsible for gathering and sharing intelligence on emerging terrorist threats with federal, state, and local governments and private entities.

The federal government has been actively investigating and prosecuting acts of domestic terrorism. The number of FBI domestic terrorism investigations has more than doubled since 2020, and the number of open FBI investigations specifically has more than quadrupled from 1,981 in FY 2013 to 9,049 in FY 2021.

The annual number of federal district court prosecutions and charges has also increased, including a sharp increase in FY 2021 (see chart below). We found that prosecutors charged 1,584 defendants in 1,255 cases in federal district court with crimes that were related to domestic terrorism from October 2010 through July 2021.

Number of Federal Defendants Charged in Domestic Terrorism-Related Cases, October 2010 through July 2021

Line graph showing a sharp increase in domestic terrorism-related cases (Oct 2010 to July 2021)

Domestic terrorism and other threats are rapidly evolving, and combatting these threats requires close collaboration between FBI, DHS, and other federal, state, and local agencies.

In our new report , we found that the FBI and DHS generally followed leading collaboration practices—sharing information with each other and their federal, state and local partners. However, they haven’t assessed whether their collaboration agreements fully reflect their needs or how they should work together. Additionally, they did not submit comprehensive data to Congress in required reports. For example, FBI officials told us they did not use the data DHS collects on domestic terrorism incidents because they weren’t aware DHS was collecting it. DHS officials in turn told us they didn’t share their incident data with their FBI counterparts because they weren’t asked for it.

We recommended in our report that FBI and DHS assess their existing collaboration agreements to see if they have a fully integrated way to share information and stop threats. We also recommended that they periodically evaluate the effectiveness of their collaborative practices. Having up-to-date, relevant formal agreements would address some of the concerns officials shared with us, and would make the FBI and DHS better partners to combat domestic terrorism.

Learn more about federal efforts to combat domestic terrorism in our new report .

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Fact sheet: national strategy for countering domestic terrorism strategic implementation update.

Two years ago this month, the Biden-Harris Administration released the first-ever National Strategy for Countering Domestic Terrorism . Since the strategy's launch in June 2021, we have sharpened our understanding of the domestic terrorism threat, increased information sharing with state, local, Tribal, and territorial law enforcement and foreign partners, doubled our investigations into domestic extremism and terrorism, prioritized funding for research into the factors that influence domestic terrorism and extremism, strengthened local efforts to prevent acts of domestic terrorism, and expanded our capabilities to disrupt and prosecute such acts, all while safeguarding privacy, civil rights and civil liberties.

Domestic terrorism strikes at the very foundations of democracy and is a direct threat to the civil rights and civil liberties guaranteed to all Americans. Those who engage in domestic terrorism and hate-fueled violence attempt to intimidate Americans and deny them their most basic rights, including their lives and liberty. The Biden-Harris Administration is determined to ensure that domestic terrorist activity or hate-filled violence interferes with Americans' ability to speak freely, to practice their faiths as they wish, to live safely, or to exercise their other constitutional rights, including to assemble and protest peacefully.

Developing a Shared Understanding of Domestic Terrorism

The U.S. government is increasing its understanding of the nature of the threats posed by domestic terrorism and sharing this information with a wide range of stakeholders inside and outside of government by:

Improving information-sharing on domestic terrorism threats across the federal government and with our state, local, tribal, and territorial law enforcement partners. Department of Homeland Security (DHS), the Federal Bureau of Investigation (FBI), and the National Counterterrorism Center (NCTC) updated the US Violent Extremist Mobilization Indicators booklet , which details observable behaviors that could signal whether individuals – including domestic violent extremists – are pursuing ideologically-motivated violent extremist activities. More than 40,000 copies of this booklet have been disseminated to partner organizations, including state, local, tribal, and territorial law enforcement partners to date, and it is also available online. The FBI also published a Spanish language version of the booklet and a summary for the tech sector. In addition, the FBI has distributed threat information reference guides to all law enforcement partners that explain the variety of threats that comprise the domestic terrorism landscape in the United States.
Increasing the rigor and value of intelligence production on domestic terrorism issues. The FBI and DHS have vastly increased production of analysis on domestic terrorism threats, highlighting the diversity of those threats in the United States.
Expanding our cooperation with international partners to better target global extremism. Many of these threats may start at home, but we know that what may inspire bad actors does not stop at our borders. The Departments of State (State) and Justice (DOJ) launched the Counterterrorism Law Enforcement Forum in 2022, which for the first time gathered international law enforcement, prosecutors and other criminal justice personnel to focus on transnational racially or ethnically motivated violent extremism. The Administration, in partnership with the International Institute for Justice and the Rule of Law, released a guide for criminal justice practitioners to identify, investigate, disrupt and prosecute domestic violent extremists. We also work bilaterally and multilaterally with many countries experiencing similar trends; for example, DHS also continues to coordinate with countries including Canada, the United Kingdom, Australia and New Zealand through the Five Country Ministerial and its working groups.
Engaging the private sector to enlist their help in our response to the threat posed by domestic terrorists. Departments and Agencies have developed new information sharing and technical assistance mechanisms that respond to requests from technology, financial, and other private sector actors to better understand the threat posed by domestic terrorists and stop such terrorists from accessing goods and services in furtherance of their violent acts. The Treasury Department included a domestic terrorism section in the 2022 National Terrorist Financing Risk Assessment to provide the financial sector better information on the domestic terrorism threat. In April 2023, Treasury launched a domestic terrorism resource website for private and public sector entities seeking a better understanding of domestic violent extremists, their foreign peers, and associated financial activity. Financial institutions are using these resources to inform their own anti-money laundering programs. In addition, the DHS Office of Intelligence and Analysis (I&A) has developed two new trainings within the past year, available to the private sector on the I&A National Threat Evaluation and Reporting Office public-facing website that assists partners with identifying and reporting suspicious activity related to terrorism and targeted violence.

Preventing Domestic Terrorism Recruitment and Mobilization

The Administration is adopting an evidence-based, stakeholder-informed, public health-focused violence prevention approach. The strategy draws on the expertise, experience and efforts of the entire government to establish and enhance community-level and individual-level violence prevention and resilience by:

Increasing financial, technical and educational resources for the whole of society. In March, the Administration launched the Prevention Resource Finder , the first ever website with a comprehensive list of Federal resources available to help state and local governments, community organizations, houses of worship, schools, and others prevent acts of targeted violence and terrorism. The new website offers nearly 100 resources from 17 Federal partners all in one place. With this single stream resource, stakeholders no longer have to navigate multiple websites to find the critical resources and training materials they need to keep their communities safe. In its first month, the website had more than 24,000 page views and more than 10,000 return users.
Expanding community-based diversion of individuals at risk of committing targeted violence or terrorism. The FBI has expanded its partnerships with local law enforcement, social service providers, mental health providers, and community leaders to try to prevent violence before it occurs. The DHS Center for Prevention Programs and Partnerships (CP3) Targeted Violence and Terrorism Prevention Grant program doubled its annual funding to $20 million in 2021 to help nonprofits, state, local, tribal, and territorial governments and institutions of higher education establish or enhance targeted violence and terrorism prevention. CP3 has invested $40 million across the United States to increase awareness, establish local prevention networks and provide training to community members.
Boosting training opportunities to support local prevention efforts . Since 2021, CP3 has delivered nearly 250 briefings to communities and stakeholder groups on the threat of violence and creating local prevention efforts. The DHS I&A National Threat Evaluation and Reporting (NTER) Program Office has trained over 200 Master Trainers who assist state and local partners working to establish multidisciplinary behavioral threat assessment and management (BTAM) programs. The National Threat Assessment Center (NTAC) at the U.S. Secret Service continues to publish cutting edge research that supports these efforts. The launch of their most recent analysis of 173 attacks between 2016 and 2020 garnered 21,000 participants from all 50 states and 81 countries.
Addressing the role of the Internet in influencing individuals to commit acts of domestic terrorism. The Administration has continued to participate in nongovernmental and multilateral efforts to understand and respond to terrorist content and activities online. A number of agencies are participating in the Global Internet Forum to Counter Terrorism, and the Administration joined the Christchurch Call to Action in 2021. DOJ's National Institute of Justice has prioritized funding of research focused on the role of social media platforms in promoting and countering violent extremist content and information. DHS has also funded more than two dozen grants supporting these programs.

Disrupting and Deterring Domestic Terrorism

We know that strengthening prevention efforts at the state and local level are not the silver bullet to stopping domestic terrorism. The Administration has therefore also stressed the importance of deterring domestic terrorism by consistently investigating and prosecuting bad actors:

Prioritizing domestic terrorism-related investigations and prosecutions at both the national and local level. The number of FBI domestic violent extremism and domestic terrorism investigations has more than doubled since the spring of 2020 – to approximately 2,700 investigations at the end of fiscal year 2022. Additionally, DOJ has formed a domestic terrorism unit within the National Security Division's Counterterrorism Section to better coordinate with U.S. Attorney's Offices, the FBI, and others to charge and prosecute domestic violent extremism and terrorism subjects as appropriate. In addition, the DOJ has also updated its Justice Manual to add new notification and approval requirements regarding domestic extremism and terrorism matters to better track and consolidate the agency's reporting.
Enhancing support for state, local, tribal and territorial partners investigating and prosecuting domestic terrorists. Supporting these agencies goes beyond the information-sharing discussed earlier; partners need to receive actionable information in a timely and coordinated manner. To that end, in 2022 DHS deployed a mobile application, the DHS Intel mobile application, to support the rapid dissemination of DHS and partner-authored finished intelligence.

Confronting Long-Term Contributors to Domestic Terrorism

The Biden-Harris Administration has launched a series of efforts focused on the prevention and reduction of hate crimes.

The United We Stand Summit. Last September, the President hosted the Summit, which put forward a shared vision for a more united America, demonstrating that the vast majority of Americans agree that there is no place for hate-fueled violence in our country. We know that when Americans stand united to heal divides, we can help prevent acts of hate and violence. The Summit mobilized communities across the country to make commitments towards advancing an inclusive and bipartisan vision for a more united America. See this Fact Sheet for more information.

Presidential Initiatives to Address Antisemitism, Islamophobia and Related Forms of Bias and Discrimination. In December 2022, the President established an interagency policy committee (IPC) to counter bias and discrimination. In response to the alarming increase in antisemitic incidents among other acts of hate, the President directed the interagency group as its first order of business to develop a national strategy to counter antisemitism. In May 2023, the Administration released the first-ever U.S. National Strategy to Counter Antisemitism , which includes over 100 meaningful actions that more than two dozen government agencies will take in the next year to counter antisemitism, as well as over 100 calls to action for Congress, state and local governments, companies, technology platforms, students, teachers and academics, civil society and faith leaders, and others to counter antisemitism. See this Fact Sheet for more information on the key strategy actions.

Joseph R. Biden, FACT SHEET: National Strategy for Countering Domestic Terrorism Strategic Implementation Update Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/363693

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Public Policy Issue: Domestic Terrorism Essay

The 9/11 terrorist attacks triggered the dramatic escalation of severe and destructive attacks in the country. Although America has intensified its defense, the rise of domestic terrorism is proving to be an urgent public policy issue. Hate and extremist groups are the leading perpetrators of numerous domestic attacks experienced in America within the last decade. America has seen the occurrence of multiple mass shootings such as the Pulse Night Club in Florida, Sandy Hook Elementary School in Connecticut, and the Route 91 Festival in Nevada that revived the debate about gun control.

However, the recent attacks experienced during and after the presidential elections renewed the debate about domestic terrorism (Jones et al., 2020). The worst part was the attack experienced at the U.S Capitol by groups of far-right militia waving Confederacy flags and wearing clothes with Neo-Nazi symbols. The hate and extremist groups issue threat is increasingly becoming one of the leading security menaces to America. Dealing with internal terror requires measures instigated by the change in public policy measures. The institutional theory influences the process towards the enactment of a policy to prevent domestic terror.

The Constitution guarantees security for all citizens, and American law enforcement agencies and personnel have been at the forefront dealing with terror groups. The Federal Bureau of Investigations (FBI), which is dedicated to fighting and ending terrorism in America, warned the citizens about the rise of domestic terrorism, especially the white supremacy groups (Jones et al., 2020). Such information indicates that America is experiencing a new and lethal threat owing to the fact that the perpetrators are among the citizens and even the most trusted individuals with security clearance.

Lately, Congress has been under pressure from the intense public outcry, compulsion from interest groups, and the worrying figures from FBI and Homeland Security to enact laws against the rising internal terror. Interest groups purport that the FBI has numerous terrorism-related statutes to investigate and prosecute criminal behavior, including hate crimes and white supremacist violence. At the same time, proponents of the policy argue that the rise of domestic terrorism is due to the failure of holding accountable and confronting the perpetrators by the responsible authorities and not a case of lack of appropriate tools.

Ideally, the institutional theory proves effective in the development phase of the policy as it explains how the organizational structures, practices, values, and norms are linked to the broad social and cultural environment. Here, institutional theory shows that the institutional constituents are vital in influencing the enactment of public policies. For instance, interest groups, professions, departments, or public opinion can compel the responsible bodies to change or adopt certain laws. In the case of domestic terrorism, various factors contributed to the force that propagated the idea to prominence.

Agencies in charge of making policies act only when they have evidence or utter conviction that the policy issue is of significant public importance. Unlike other policy theories, such as the elite theory, the institutional theory is effective on the development stage. It explains the roles of various aspects of society, such as political, social, and cultural, in influencing change (Mohamed, 2017). On the contrary, the elite theory only explains how the political class, a minority group in the society, impacts laws.

Specifically, the most preferred theory during the development phase is institutional theory. First, the body in charge of policymaking is the parliament, which is an institution. Such an agency has well-defined roles, practices, and procedures to follow while formulating laws. At the development stage, the main idea is to identify the problem and ascertain if it is a salient issue and deserves attention. Usually, challenges facing a significant population get more attention than problems facing a few individuals in society. For example, domestic terrorism threatens the country’s security, which qualifies it for consideration as a public policy issue.

The various institutional structures, norms, values, and relationship patterns are considered in the initial phase of policymaking. Institutionalism guides policy making since the various elements of agencies understands the tasks or responsibilities within their jurisdictions. Each nation, state, or an acted develop programs to pursue specific functions related to laws of a nation or a specified body, organization, or agency, which fulfils the provisions of institutional theory. Thus, there is no doubt that institutional theory informs by a significant margin the processes of the development phase, making it the most preferred approach.

In short, many problems exist in the country, with domestic terrorism among the current leading public policy issues. The recent insurgence shows that the issue is more severe than perceived. Terror groups such as the white supremacists and other far-right militia are wreaking havoc and threatening security. Concerned individuals perceive that the complacency among the responsible law enforcement agencies is giving terror groups the much-needed opportunity to cause violence. However, due to public opinion and pressure from interest groups, the responsible bodies are working on policies against domestic terrorism. The institutional theory, which focuses on the roles of economic, political, and social systems in public policy, plays a central role in the development phase of the policymaking process.

Jones, S. G., Doxsee, C., & Harrington, N. (2020). The escalating terrorism problem in the United States . Center for Strategic and International Studies, 1-7. Web.

Mohamed, I. A. (2017). Some issues in the institutional theory: A critical analysis. International Journal of Scientific and Technology Research , 6 (09), 150-156.

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Tragic News – The Passing of Chris Edley, Visionary and Beloved Dean

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Message from Dean Erwin Chemerinsky, May 10, 2024:

Dear Berkeley Law Community,

It is with a very heavy heart that I am writing to inform you that our beloved colleague and former dean Chris Edley died on Friday morning.

Chris had an amazing life and career, including being a transformative dean for Berkeley Law.

Chris graduated from Swarthmore College and the Harvard School of Public Policy and Harvard Law School. He then had an exemplary career in academia and in public service.

Chris spent 23 years as a professor at Harvard Law School, including co-founding the Harvard Civil Rights Project, before coming to Berkeley Law as dean in 2004. He served as dean until 2013. As dean, he made an enormous positive difference in every aspect of the law school, from the hiring of many terrific faculty, to his initiative to build the south addition (with the library and classrooms and Café Zeb), to dramatically increasing support for public interest grants for students, to the creation of many centers.

Chris served in White House policy and budget positions under Presidents Jimmy Carter and Bill Clinton. Chris also held senior positions in five presidential campaigns: policy director for Michael Dukakis (1988); and senior policy adviser for Al Gore (2000), Howard Dean (2004), Barack Obama (2008), and Hillary Clinton (2016). In 1993, he was a senior economic adviser in the Clinton Presidential Transition, responsible for housing and regulation of financial institutions. In 2008, he was a board member for the Obama presidential transition, with general responsibility for healthcare, education, and immigration. In 1993, he was a senior economic adviser in the Clinton Presidential Transition, responsible for housing and regulation of financial institutions. In 2008, he was a board member for the Obama presidential transition, with general responsibility for healthcare, education, and immigration. From 2011-2013, he co-chaired the congressionally chartered National Commission on Education Equity and Excellence.

Chris was a fellow or member of the American Academy of Arts & Sciences; the National Academy of Public Administration; the Council on Foreign Relations; the American Law Institute; the Advisory Board of the Hamilton Project, the Brookings Institution; and the board of Inequality Media. He is a National Associate of the National Research Council, the operating arm of the National Academies of Science, for which he chaired a committee to evaluate NAEP performance standards, and a committee to design a national system of education equity indicators.

Since completing his deanship, he has served the Law School and the campus in countless ways, including recently serving for two years as the Interim Dean of the School of Education. Chris and Maria Echaveste directed the Opportunity Institute.

Chris and I were law school classmates. He has been a dear friend and has provided me invaluable wisdom and support in my years as a dean. I know I speak for all of us in saying how terribly much we will miss him.

I will keep you posted of plans for memorials.

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Protesters Disrupt Israeli Memorial Day Events Over War Raging in Gaza

A day of national mourning was interrupted by hecklers who blamed government officials for failing to secure the release of hostages still being held by Hamas.

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By Patrick Kingsley , Myra Noveck , Matthew Mpoke Bigg and Thomas Fuller

Patrick Kingsley and Myra Noveck reported from Jerusalem, Matthew Mpoke Bigg from London and Thomas Fuller from San Francisco.

Israelis gathered across the country on Monday for the first national day of mourning since the Hamas-led Oct. 7 attacks, with protesters disrupting several ceremonies as they demanded that government ministers do more to secure the release of hostages.

Israel’s Memorial Day is normally one of the most somber on the country’s calendar, a date when Israelis put aside their differences to grieve fellow citizens killed in war or terrorist attacks. But the protests on Monday underscored how feelings of wartime unity have given way to deep disputes over the war in the Gaza Strip, the fate of hostages taken on Oct. 7 and domestic politics.

Critics heckled Prime Minister Benjamin Netanyahu as he attended a memorial at Mount Herzl in Jerusalem, the site of Israel’s national cemetery. One person was heard shouting, “Garbage.” Another said, “You took my children.”

At a ceremony in Ashdod, on the Mediterranean coast, bystanders shouted at the national security minister, Itamar Ben-Gvir, calling him a “criminal,” before his supporters tried to drown them out.

While the government has managed to secure the release of more than 100 hostages abducted by Hamas in the attacks, at least half of the roughly 240 people who were taken are either dead or still in captivity. Many of their loved ones want the government to agree to an immediate cease-fire with Hamas that would allow for the remaining captives to be released, even it means leaving Hamas in control of parts of Gaza.

Prime Minister Benjamin Netanyahu of Israel, looking to his right, sits in the front row of an audience, among other dignitaries and military officers.

The disruptions have precedent. Protesters taunted Mr. Ben-Gvir and other ministers last year , before the war began, when anger over the government’s efforts to overhaul the judicial system were the most prominent source of social division.

This year’s protests reflected growing anguish among parts of the population about the way Mr. Netanyahu’s right-wing coalition government has handled the war, causing enormous casualties and destruction.

Mr. Netanyahu has repeatedly pledged total victory over Hamas. But fighting across the Gaza Strip in recent days has underlined the notion that Hamas militants are still a force in the territory and might remain one for a long time to come. The pattern that has emerged in the war is that, after pitched battles, Israel’s military declares that it has taken control of an area and then moves on, only for Hamas fighters to return and reconstitute their forces.

On Monday, Israeli airstrikes shook the northern and southern ends of the territory, with the Israeli military saying it had struck more than 120 targets over the past 24 hours. Ground troops also engaged Hamas fighters in several locations, the Israeli military said. Amid the fighting, tens of thousands of fleeing civilians continued a desperate search for safety.

The fighting appeared to be heaviest in Gaza City, Beit Lahia and Jabaliya in northern Gaza, and in Rafah, the southern city where more than one million Palestinians had fled to try to escape Israel’s military offensive farther north. In recent days, hundreds of thousands have left Rafah, according to the United Nations.

Hamas said on Monday that it had launched mortars at Israeli soldiers near the Rafah crossing, which links Gaza and Egypt and has been closed since Israel seized it last week.

A spokesman for the United Nations said Monday that a U.N. staff member was killed Monday morning when a U.N. vehicle was struck on the way to a hospital in Rafah. Around 200 United Nations staff have been killed in the conflict.

Israeli society closed ranks behind the government and military immediately after the Hamas-led Oct. 7. But critics increasingly blame Mr. Netanyahu for failing to prevent the attacks , which the Israeli authorities say killed roughly 1,200 people, and for prolonging the war without winning the return of the hostages.

A poll conducted this month by the Israel Democracy Institute, a Jerusalem-based research group, suggests that a majority of Israelis see a hostage deal as a priority over a military operation in Rafah. Israeli officials call the city Hamas’s last major stronghold in Gaza , with battalions of fighters concealed there, but U.S. officials say that the group’s leaders in the territory are hiding in the city of Khan Younis, not Rafah.

Israel and Hamas have not agreed to a cease-fire and hostage release, despite months of mediation. And Mr. Netanyahu has insisted that Israeli forces will invade Rafah, with or without such a deal, amid threats by his far-right coalition partners to bring down the government if the war ends without the total defeat of Hamas.

On Monday at a Memorial Day ceremony in Holon, in central Israel, hecklers shouted at Miri Regev, the transportation minister, and called on her to resign. One asked: “What about the hostages?”

As Yoav Gallant, the defense minister, attended a ceremony in Tel Aviv, a protester held up a sign that said: “Their blood is on your hands.”

On Sunday night, Israeli peace activists broadcast their annual Joint Israeli-Palestinian Memorial Day Ceremony, with parallel events in London, New York and Los Angeles.

The ceremony is organized by Combatants for Peace and the Parents Circle-Families Forum, two peace-building organizations, and tries to recognize not only Israeli grief, but also the toll of Palestinian suffering over the decades.

The ceremony, held annually since 2006, was prerecorded this year to avoid the possibility of disruption by protesters. It featured speeches, songs, a poem about peace and a video that showed children in Israel and the Israeli-occupied West Bank talking about the effect of war.

Palestinians in the West Bank did not participate in person, given that Israel stopped allowing many Palestinians to work in Israel after the Oct. 7 attacks. There were also no direct contributions by speakers in Gaza.

More than 35,000 people have been killed in Gaza during Israeli’s military campaign to defeat Hamas, mostly children and women, health officials there say. Almost everyone in Gaza has been displaced from their homes amid a hunger crisis that aid workers say has been largely caused by Israeli restrictions on aid deliveries to the enclave.

The peace groups’ ceremony, which was screened at more than 200 venues in Israel, reflected the diversity and complexity of opinion within Israeli society about the war. Several speakers discussed their hope for an end to generations of bloodshed, and for peace.

Ghadir Hani read a contribution from a woman in Gaza, whose name was given only as Najla, describing how she had lost 20 family members in the war, including her brother, a father of two, who she said had been killed while going to look for food for his parents.

“They killed him while walking in the street though posing no threat whatsoever,” Ms. Hani read. “The death machine is still ready to kill,” she added. “But I know that on the other side there are many people who believe in peace.”

Liam Stack and Lauren Leatherby contributed reporting.

Patrick Kingsley is The Times’s Jerusalem bureau chief, leading coverage of Israel, Gaza and the West Bank. More about Patrick Kingsley

Myra Noveck is a reporter and researcher based in Jerusalem. She researches feature stories and reports breaking news. More about Myra Noveck

Matthew Mpoke Bigg is a London-based reporter on the Live team at The Times, which covers breaking and developing news. More about Matthew Mpoke Bigg

Thomas Fuller , a Page One Correspondent for The Times, writes and rewrites stories for the front page. More about Thomas Fuller

Our Coverage of the Israel-Hamas War

News and Analysis

The Biden administration has told Congress that it intends to move forward with a plan for the United States to sell more than $1 billion in new weapons to Israel .

Biden’s national security adviser said that Israel has still not provided the White House with a plan for moving nearly a million Gazans safely out of Rafah before any invasion of the city.

Israelis gathered across the country for the first national day of mourning since the Hamas-led Oct. 7 attacks, with protesters disrupting several ceremonies .

A Key Weapon: When President Biden threatened to pause some weapons shipments to Israel if it invaded Rafah, the devastating effects of the 2,000-pound Mark 84 bomb were of particular concern to him.

A Presidential Move: Ronald Reagan also used the power of American arms to influence Israeli war policy. The comparison underscores how much the politics of Israel have changed in the United States since the 1980s.

Netanyahu’s Concerns: Prime Minister Benjamin Netanyahu of Israel, under pressure from all sides, is trying to reassure his many domestic, military and diplomatic critics. Here’s a look at what he is confronting .

Al Jazeera Shutdown: The influential Arab news network says it will continue reporting from Gaza and the West Bank, but its departure from Israel is a new low in its long-strained history with the country .

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PDF DOMESTIC TERRORISM IN THE UNITED STATES by PHILLANDO A. K. PETERSON
This thesis contends that the domestic terrorism threat in the United States is equally as significant as international terrorism, if not more, and the current domestic terrorism law is inadequate and requires repair. Additionally, it outlines actions that could enhance domestic counterterrorism efforts. Finally, the thesis concludes with a ...
Individual Domestic Terrorism: An Analysis of the Motivations and
the focus of attention when discussing individual domestic terrorism. In this thesis, I explore the motivational factors between several individual terrorist attacks in the United States and build upon the topic of terrorism at the individual- analysis level. In the following sections, I provide a review of the literature on the topic of
Defeating and Deterring Domestic Terrorists Through Evidence-Based
This thesis first investigates the challenges of using evidence in value-based decisions and the social sciences. The second part of this thesis conducts three case study analyses of domestic and foreign policy initiatives—other than counterterrorism—with respect to the foundations of evidence-based policymaking. ... National Strategy for ...
60+ Full-Text Academic Theses (Ph.D. and M.A.) on Terrorism ...
60+ Full-Text Academic Theses (Ph.D. and M.A.) on Terrorism, Violent Extremism, and Nationalism written in English between 2000 and 2020, Perspectives on Terrorism, Vol. 14, No. 1 (February 2020), pp. 191-195
The War Comes Home: The Evolution of Domestic Terrorism in the ...
Introduction. There has been growing concern about the threat of domestic terrorism, with extremists motivated by political, racial, ethnic, economic, health, and other grievances. In October 2020, the FBI arrested Adam Fox, Barry Croft, and several other accomplices in a plot to kidnap and potentially execute Michigan Governor Gretchen Whitmer.
PDF domestic terrorism has no place in our society
Domestic Terrorism lays out a comprehensive approach to addressing the threat while safeguarding bedrock American civil rights and civil liberties - values that make us who we are as a nation.
Naval Postgraduate School
domestic terrorism, the United States may, once again, be failing to "connect the dots." ... This thesis synthesizes existing studies, reports, and expert testimony concerning domestic terrorism and the roles of domestic intelligence agencies, law enforcement, and the public, and proposes the development and implementation of a formal ...
Domestic Terrorism: A Review of the Literature
Offenders. We reviewed ten articles and found most social scientists agree that international terrorist groups, (e.g., al-Qaeda), are not the biggest threats to the U.S. Domestic terrorism groups outnumber international groups seven-to-one and are a far larger threat to our country (McGarrell et al., 2007, p.148).
PDF The FBI and Domestic Counterterrorism: A Comparative Analysis
This thesis is an attempt to analyze the effectiveness of the Federal Bureau of Investigation (FBI) in countering domestic terrorism in comparison to other demoracies. In the first chapter, there is an attempt to define terrorism by examining the historical development and early attempts at defining terrorism. The second chapter describes the
Responding to Domestic Terrorism: A Crisis of Legitimacy
In response to this political reality, many have pointed to a more robust use of the sentencing enhancement as a viable middle ground solution — at least with respect to the problem of prosecuting domestic terrorism. 109 Using the enhancement provides expressive value because it requires a judge to make a legal determination as to whether the ...
Homeland Security Digital Library
This thesis synthesizes existing studies, reports, and expert testimony concerning domestic terrorism and the roles of domestic intelligence agencies, law enforcement, and the public, and proposes the development and implementation of a formal, national counterterrorism (CT) doctrine. The CT doctrine, in conjunction with a counter ...
Domestic Terrorism: Overview of Federal Criminal Law and Constitutional
Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Congressional Research Service 2 crime, however, under numerous statutes prohibiting terrorism6 and other types of violent or destructive conduct.7 In addition, domestic terrorism may be relevant to the sentencing of those convicted of federal crimes.8 Any congressional consideration of additional legislation in the ...
FACT SHEET: National Strategy for Countering Domestic Terrorism
Under Federal law, " domestic terrorism " is defined as "activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State ...
Academic Theses (Ph.D. and MA) on Terrorism and Counter-Terrorism
Academic Theses (Ph.D. and MA) on Terrorism and Counter-Terrorism Related Issues, written in English between 2013 and 2017, Perspectives on Terrorism, Vol. 11, No. 4 (August 2017), pp. 176-192
The Rising Threat of Domestic Terrorism in the U.S. and Federal Efforts
Domestic terrorism is on the rise. Several attacks have been widely reported in the last few years. For example, in May 2022, a racially-motivated individual shot and killed 10 people in Buffalo, New York. A 2018 attack on a Pittsburgh synagogue left 11 people dead. All but eight states across the U.S. experienced at least one incident of domestic terrorism between 2010 and 2021.
Topics in terrorism research: reviewing trends and gaps, 2007-2016
The results presented in. Table 1. clearly show that al-Qaeda, jihadism more generally and Iraq were the most frequently researched topics overall in the 2007-2016 period. Several other topics, such as "United States", "Counterterrorism/War on Terror" and "Afghanistan" were also frequent top-5 contenders.
FACT SHEET: National Strategy for Countering Domestic Terrorism
Two years ago this month, the Biden-Harris Administration released the first-ever National Strategy for Countering Domestic Terrorism.Since the strategy's launch in June 2021, we have sharpened our understanding of the domestic terrorism threat, increased information sharing with state, local, Tribal, and territorial law enforcement and foreign partners, doubled our investigations into ...
Public Policy Issue: Domestic Terrorism
The 9/11 terrorist attacks triggered the dramatic escalation of severe and destructive attacks in the country. Although America has intensified its defense, the rise of domestic terrorism is proving to be an urgent public policy issue. Hate and extremist groups are the leading perpetrators of numerous domestic attacks experienced in America ...
Thesis: Domestic Terrorism
Related Thesis Papers: Domestic Terrorism: Difficult Research Proposal …. Domestic Terrorism: Difficult to Define Following such events as the Oklahoma City bombing and the September 11, 2001 attacks, the topic of domestic and international terrorism has been widely considered…
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Photo Essays A Guardian of Health in the Mountains of Kyrgyzstan ... the U.S., and many Western nations view as a terrorist organization. In October, ... In many ways, this is a domestic political ...