Published by The Lawfare Institute
in Cooperation With
By their very nature, congressionally mandated reports can be dull check-the-box exercises. By the time the reports come out, the members of Congress (or, more likely, their staff) who requested them have usually moved on to their next hot policy topic, and the executive branch is stuck writing annual reports that no one ever reads. However, every once and a while, there is a topic of such importance that the reporting requirement produces an informative piece of work that should influence public policy. The recently released intelligence assessment of domestic terrorism is such a document.
This is the second iteration of the Strategic Intelligence Assessment and Data on Domestic Terrorism. The first one, while interesting, fell short in a number of ways and felt, in a sense, like an attempt to placate eager congressional overseers. This iteration, which was released with little fanfare or a typical departmental press release, is a significant improvement. From additional granularity in the size and scope of the threat of domestic terrorism to a more forthcoming acknowledgement of its complexity, it should provide a road map for U.S. domestic counterterrorism efforts.
More Numbers, More Problems
The 44-page report, written jointly by the FBI and the Department of Homeland Security, is required, under 2020 law:
[T]o the fullest extent feasible and for purposes of internal recordkeeping and tracking, uniform and standardized definitions of the terms “domestic terrorism,” “act of domestic terrorism,” “domestic terrorism groups,” and any other commonly used terms with respect to DT; methodologies for tracking incidents of DT; and descriptions of categories and subcategories of DT and ideologies relating to DT[.]
By measures of law enforcement investigations, domestic terrorism is increasing. The FBI notched roughly 1,400 domestic terrorism investigations by the end of fiscal year 2020, up considerably from the 1,000 average during previous years. By the end of 2021, however, the number of investigations had nearly doubled to 2,700. The agency attributed “a significant portion” of the investigations to crimes related to Jan. 6, but even accounting for this anomaly, the numbers have risen significantly.
Most of the investigations were related to racially or ethnically driven violent extremism, anti-government or anti-authority violent extremism, and civil unrest. If those labels feel like catchalls, it is because they are. That is the nature of domestic terrorism investigations in America. Domestic terrorism, as defined by 18 U.S.C. § 2331(5), is best described as anything but al-Qaeda and the Islamic State. As a result, ideologies categorized as domestic terrorism can range from the garden variety white supremacist to a hardened anarchist and everything in between. The broad buckets of ideologies are understandable, but at some point they become less valuable to congressional appropriators wondering how to allocate money.
As in last year’s assessment, the FBI did not distinguish between the types of investigations, which can range from assessments and preliminary inquiries to full-scale examinations. To an outsider, that lack of specificity may seem acceptable, but there are vast differences in the distinctions. An assessment is the lowest form of an investigation. It is typically not labor intensive and has less investigative tools at its disposal. By contrast, a full-field investigation can involve dozens of agents and analysts to get it to fruition. Quite simply, 2,700 full-field investigations would be overwhelming within the scope of the number of FBI employees. On the other hand, 2,700 open assessments, while unprecedented, would still be manageable.
While the data included is informative, lack of data in other areas only raises more questions. Although the FBI employs around 4,400 investigators, it’s not clear how many are assigned to domestic extremism matters—or how resource intensive those domestic matters are. For the second year in a row, the FBI refused to give a hard count of the number of employees focused on domestic violent extremism, but the agency did expand its 474-word non-answer answer from last year to a 525-word note about how it’s difficult to do a count because countering domestic extremism involves a lot of employees.
On the purely intelligence side, the report notes that, despite the increased threat, the National Counterterrorism Center (NCTC) does not employ a single analyst focused exclusively on domestic terrorism. One could argue that the NCTC is hamstrung in some respects because its mandate, or at least a narrow reading of its statute, limits its ability to focus on terrorism not related to the international variety of groups like the Islamic State and al-Qaeda. At the same time, the assessment states Homeland Security employs only ten analysts for domestic extremism threats. However, that number represents a meteoric increase from five years earlier, when there was not a dedicated domestic terrorism analyst squad.
The Jan. 6 arrests also drove the more than fourfold increase in domestic terrorism-related arrests between fiscal years 2020 and 2021. The FBI and its partner agencies arrested roughly 800 domestic terrorism subjects in 2021 alone, up from around 180 the previous year. By contrast, the agency arrested approximately 850 domestic terrorism subjects between fiscal years 2015 and 2019 combined.
The FBI received more than 14,000 referrals of potential domestic violence incidents in the report’s two-year span: nearly 5,700 in fiscal year 2020, and 8,400 in fiscal year 2021. It passed off around 2,700 incidents to partner agencies.
During the same two years, the agency released roughly 6,000 domestic terrorism intelligence products, which can include everything from raw data to finished reports. That figure is also up, from 4,000 products in the five-year period covered in last year’s report. This represents a significant rise in intelligence analysis by the FBI, Homeland Security, and the NCTC. It speaks to both the increased focus on the topic of domestic terrorism and a hunger by state and local officials for more information. Indeed, by any good measure, the counterterrorism apparatus has experienced a “sea change” since Jan. 6.
There is a downside to this deluge of information: If everyone is yelling, the most important items sometimes get lost in the noise. This signal-versus-noise phenomenon was thrown into sharp relief in the run-up to Jan. 6, during which time the field office reporting appears not to have risen to a level of concern at headquarters.
There may be more clarity in the numbers in coming reports, as the Justice Department now requires U.S. attorney’s offices to flag and tag domestic violent extremism cases they’re prosecuting—even if the charges are not expressly linked to terrorism
The Easter Eggs
Law enforcement and intelligence reports tend to bury the most interesting items in seemingly throwaway lines of a much bigger report. This sometimes reflects the reality that reports are often authored by apolitical analysts who are blissfully oblivious to the political winds and thus do not appreciate the possible ramifications in reporting ground truths. But most of the time, certain Easter eggs can be found in the final report because analysts want to hint at issues they’re worried about without upsetting the policy folks who have final say on bringing these documents to light.
First and foremost, departments tend to dodge formal questions about whether they need more legal authorities. However, a specific example of potential legislative initiatives mentioned in the report is adjusting legislation to expand federal law enforcement capabilities to respond to threats from juveniles. Indeed, in recent public remarks, senior FBI officials have raised alarms about the rising number of cases involving minors and the lack of useful legal tools available. In conversations with prosecutors and law enforcement around the country by the authors, officials increasingly raise concerns that they are stuck between a rock and hard place. They have minors as young as 11 who are steeped in white supremacy but have little moral appetite or legal ability to arrest them. Quietly, they have quickly put together haphazard intervention and diversion programs to try to dissuade these young—and usually male—individuals from their extremist beliefs. The status quo for law enforcement on this issue is not tenable in the long run.
Although extremism motivated by abortion-rights beliefs has not been a significant threat in the past, especially compared to anti-abortion-related extremism, the report notes that following the Dobbs decision, there is an increased threat to anti-abortion organizations and individuals. Indeed, there have been a rising number of acts of vandalism toward religiously affiliated pregnancy centers in recent months. In August, FBI Director Christopher Wray told the Senate Judiciary Committee the agency had opened “a number” of investigations into abortion-related violence.
The end of the report includes a list of what the agency has identified as “significant domestic terrorism incidents.” Among the six pages of incidents is the Jan. 6 attack, which the report describes, modestly, as criminal actors “disrupting a joint session of the U.S. Congress in the process of affirming the presidential election results.” The significant incidents section also lists several instances where violent extremists were motivated by “personalized ideology.” One of the more prominent events involving such ideology occurred when an extremist carried out a mass shooting at spas near Atlanta, Georgia, killing eight and injuring many more.
Members of law enforcement still face challenges combating the threat from individuals who seek to commit acts of violence merely to watch the world burn. The law enforcement community colloquially calls this problem the “Joker effect.” These attacks are difficult to disrupt because the usual intelligence processes and tactics that can be used to counter other terrorist attacks, like analysts specializing in ideological nuances and catchphrases or talking to known or suspected terrorists, are not applicable.
One thing of final note, which may be our own way of burying the lede in this piece, the report has a subtle difference in the section listing how domestic and international investigations are handled. In the 2021 report, the FBI stated a supervisory special agent could close a terrorism investigation with the approval of the special agent in charge. This week’s report added 12 important words to that section. Investigations could be closed but “notice to the responsible HQ unit must be provided prior to closing.” Meaning: The buck for investigations that go south may stop at the Hoover Building. It’s unclear if this is a formal change or just a reflection of a practice that was already in place in the past but not expressly noted in 2021. If it was a policy change, it’s significant.
For all its shortcomings, this year’s assessment provided a window into the rising domestic terrorism threat in America and represented an important improvement from the previous iteration. This is all to say, sometimes congressionally mandated reports are actually worth reading.