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In early November, a former Army reservist pleaded guilty to a plot, along with a Jan. 6 defendant, to murder Federal Bureau of Investigation (FBI) employees working on the Jan. 6 cases. That same week, a former member of the New Jersey National Guard surrendered to local police after a manhunt in connection with federal Jan. 6 charges. These are the most recent developments in Jan. 6-related cases involving defendants affiliated with the military or law enforcement professions. According to data maintained by NPR, approximately 15 percent of the Jan. 6 cases involve defendants with military or law enforcement ties.
The Jan. 6 cases—and their connection to military, law enforcement, and veteran personnel—echo trends that have existed throughout the 1970s, 1980s, and 1990s. These most recent trends once again raise the question of whether the United States has a problem with domestic violent extremism (DVE) in the military, veteran, and law enforcement ranks. After almost two years of looking at this question, our current assessment is: Yes, but it’s hard to assess the extent of the problem for at least three reasons.
First, it’s hard to make the case that DVE is a challenge in these professional communities because, although there are both obvious as well as infamous specific examples, the raw numbers of military or law enforcement personnel who have engaged in acts of DVE are quite small compared to the number of service members overall. As such, current statistics do not garner the same level of attention as either the notable, concrete modern historical examples such as the 1995 Oklahoma City bombing—the deadliest incident of domestic terrorism in U.S. history, perpetrated by Army veteran Timothy McVeigh—nor the anecdotal observations that experts provide. In short, statistics—to the extent they exist—do not tell the whole story.
Second, it’s hard to determine whether these communities have a DVE problem because, notwithstanding the existence of concrete examples of the events of the past few years, there is very little data available about the number of active-duty service members or law enforcement professionals who affiliate with or engage in activities of extremist organizations, short of committing actual crimes. Such affiliations are protected by First Amendment rights, and engagement in criminal activity is already against the law. Researchers at the RAND Corporation released new survey data indicating that a surprising percentage of veterans agree with extremist ideologies espousing political violence (approximately 17 percent). While the percentage is lower than among civilians surveyed (approximately 19 percent), the findings are surprising given the oath of office that service members take to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Yet as useful as this new dataset is, it is limited in scope to veterans only and does not account for those in active-duty military and law enforcement ranks. In other analysis from the Center for Strategic and International Studies, veterans account for “10% of all domestic terrorist attacks and plots since 2015.” Comprehensive survey data, however, regarding the extent of violent extremist ideology across the ranks of service members, law enforcement professionals, and veterans of those communities does not exist, as far as we have been able to determine. In part, such survey data is difficult to collect given the potential risks to an individual’s employment should their identity be revealed.
Third, it’s hard to say because, simply, for those who work in the national security and law enforcement communities, simply acknowledging the presence of any sympathy for DVE among those in uniform (regardless of its prevalence) carries reputational risk and the potential for political blowback and accusations of “wokeness.”
As a result, it is challenging to develop policies to address a problem that is both difficult to quantify and dismissed as irrelevant politically, to say the least. Our December 2022 report, “Protecting the Protectors: Preventing and Mitigating Domestic Violent Extremism in the Military, Veteran, and Law Enforcement Communities,” sought, in part, to answer the question of whether DVE is a problem within the military, veteran, and law enforcement communities. We included in that report information on the challenges we faced in our own research in obtaining survey data from the law enforcement community. We, along with Center for a New American Security (CNAS) co-author Arona Baigal, summarized that report in a February Lawfare post.
This piece seeks to focus more narrowly on what appear to be obstacles to implementing one set of the recommendations contained in that December 2022 CNAS report regarding the onboarding stage of recruitment and hiring into the military and law enforcement ranks. Our report recommended that the Department of Defense “should consider adapting criteria for social media screening” when onboarding new service members. With respect to law enforcement, our recommendation was that “the best methods for integrating counter-DVE objectives into recruiting and screening are to maintain existing standards of recruitment, apply consistent practices for background investigations and social media screening, and widen the pipeline” for entry into the law enforcement profession.
Since then, we have identified at least three barriers to the development of policies at the federal, state, and local levels to more proactively screen for DVE in the recruitment and hiring stages to prevent DVE in the ranks. These obstacles include (a) overall recruitment and retention challenges in the military and law enforcement professions; (b) unanticipated complications arising from the July 2023 district court opinion and ongoing litigation in Biden v. Missouri; and (c) a political environment that makes it difficult for nonpartisan professionals to develop policies and practices to better protect their profession from the influence and infiltration of DVE groups.
Recruitment and Retention Challenges
The quality of service members is related to the adherence to oath and professionalism over time. There are long-standing challenges in military recruitment, and today’s environment is particularly challenging. As one of us (Kuzminski) and Tom Spoehr wrote for Defense360 last spring:
The U.S. military is facing the worst recruiting crisis since the creation of the All-Volunteer Force (AVF) nearly fifty years ago in July 1973. In FY 2022, the Army missed its recruiting goals by nearly 20 thousand soldiers—nearly 25 percent of the service’s recruiting goal. While the other services were able to meet their FY 2022 recruiting targets, they did so by drawing on delayed entry recruits—those recruits with signed contracts who were not expected to enter service until FY 2023—indicating that the challenges experienced in FY 2022 may only increase in the coming year. Early indications are that FY 2023 is as bad or worse.
Similarly, law enforcement leaders routinely sound alarms that recruitment is in a crisis, and the situation has been worsening over the past several years. In 2019, the International Association of Chiefs of Police, a nonprofit, nonpartisan professional association of police leaders, conducted a survey that found that the difficulties in law enforcement recruiting resulted in the necessity to adapt standards of recruitment downwards, as “[h]alf of the responding agencies (50%) reported having to change agency policies in order to increase the chances of gaining qualified applicants,” reflecting the need to potentially decrease hiring standards in order to fill positions. Patrick Yoes, national president of the Fraternal Order of Police, has routinely spoken publicly about the recruiting and retention crisis in law enforcement. In remarks last year, he said, “We see law enforcement officers leave our profession at a rate we’ve never seen before. Our profession is dependent on the best and brightest stepping up and taking this job.”A CNN report in 2022 found a confluence of factors, “including Covid-19, the great resignation, the climate for law enforcement and local reform efforts that are making recruitment and retention difficult.” What’s more, recruitment difficulties include risks to personal safety. The risk of death or serious injury is a persistent recruiting challenge. While line-of-duty deaths trended downward over the past two years, the impact of risks to personal safety persists in recruiting data.
Accordingly, while increased screening of social media and heightened standards for applicants could mitigate against inadvertent hiring of personnel with activities or views aligned with DVE groups, such a practice would be in tension with hiring flexibilities to meet current workforce demands. We assess that factors contributing to lower recruitment or hiring standards may increase the likelihood that vetting is not as thorough as it would be if there were sufficient highly qualified applicants. Both military and law enforcement organizations will need to navigate the objective of recruiting qualified applicants without lowering standards or departing from vetting best practices.
Downstream Effects of Biden v. Missouri
While military and law enforcement recruiting challenges are not new, this year an unanticipated new challenge to the ability of agencies and organizations to screen social media and online presence of applicants has emerged: the practical impacts of the ongoing Biden v. Missouri case. Over the past six months, in private research expert convenings and consultations, we were advised that the July district court order and the unclear environment resulting from the ongoing litigation has had and will continue to have a tangible effect on the productive working relationships between technology companies and platforms and federal law enforcement and national security entities. This conclusion appears to be confirmed, in part, by a November Washington Post report, which stated,
The U.S. government has stopped warning some social networks about foreign disinformation campaigns on their platforms, reversing a years-long approach to preventing Russia and other actors from interfering in American politics less than a year before the U.S. presidential elections[.] … [T]he shift in communications about foreign meddling signals how ongoing litigation and Republican probes in Congress are unwinding efforts once viewed as critical to protecting U.S. national security interests.
To recap briefly, the July district court order by Judge Terry A. Doughty ordered major restrictions on interactions between specific federal government agencies and officials, and social media companies. The suit alleged that, through personal, direct appeals of White House staff and other government officials to social media companies to remove objectionable content, the Biden administration infringed on First Amendment rights. The alleged conduct pertained mainly to information posted online about COVID-19 and vaccine hesitancy. Some of the alleged conduct also concerned government efforts to curb foreign malign influence on elections. However, the district court judge’s order was broad, severely limiting interactions between the executive branch (including the FBI and the Cybersecurity and Infrastructure Security Agency, or CISA) and social media companies. More specifically, the judge ruled that “the Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign.” But the restriction ordered went far beyond coronavirus-related information and White House contacts with the companies, and covered a variety of federal agencies, including those with legitimate national and homeland security reasons to engage with the communications and social media companies and platforms. Based on our consultations with government officials and other experts, the order likely had a chilling effect on communications between government entities with legitimate national security and law enforcement reasons to engage with those companies.
Although the opinion and order has come under criticism, it is worth noting that the examples of interactions Judge Doughty laid out in his written opinion do not reflect well on some federal government personnel. Doughty’s opinion paints particularly unflattering pictures of certain political appointees, including senior officials who were assigned to the White House working on the coronavirus response. The behaviors included in his opinion point to, at the very least, an uncoordinated and inappropriate level of direct communications from White House officials to private companies, apart from established government professional channels established for coordinating with companies. About the most benign reading one can have of the interactions, as described in the written court opinion, is that the number and nature of the direct communications from White House officials to company executives reflected senior government officials exerting the influence of their office. The Knight First Amendment Institute at Columbia University has hosted a commentary forum on the concept of jawboning, or “informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies.”
Unfortunately, the officials appear to have engaged individually with company representatives with apparent disregard for how their activities could impact the legitimate operational work of the federal agencies, which had long established lines of nonpartisan, professional-level communication and engagement. This was an error for which legitimate national security equities appear to be drawing the penalty.
To that point, Judge Doughty’s order went overly far in its reach across federal agencies to include the FBI and CISA, which are tasked with the responsibility of screening for legitimate and necessary election security breaches, foreign malign influence, and related national and homeland security threats. The U.S. Court of Appeals for the Fifth Circuit found in its Oct. 3 opinion that officials assigned to the White House, the Office of the Surgeon General, and the FBI were coercive. The Fifth Circuit found that the Centers for Disease Control and Prevention encouraged content moderation but was not coercive. The court slightly modulated its assessment of CISA, finding that it “likely violated the First Amendment” and “likely significantly encouraged” content moderation. The Fifth Circuit disagreed with the lower court as to the State Department and National Institute of Allergy and Infectious Diseases, finding that there was not sufficient evidence to establish that those agencies improperly coerced or encouraged the companies to take down content. It also found that the lower court’s injunction was “both vague and broader than necessary.” Although not as harshly criticized as the district court opinion, even the Fifth Circuit opinion has been faulted by at least one former technology security leader—Yoel Roth—as being based on faulty facts. The plaintiffs have appealed the decision to the Supreme Court and the Court will take up the matter this term.
Both the district court and Fifth Circuit Biden v. Missouri opinions focus on inappropriate government pressure on technology companies to restrict or remove content. They do not adequately reflect the important and lawful work that goes on between government agencies and technology companies to protect the country against national security threats, which include international and domestic terrorism. Response to lawful government requests and orders by technology and communications companies is absolutely essential for combating certain national security threats. These threats include malign foreign influence—the subject matter referenced in the litigation and opinions—but are by no means limited to that issue. Moreover, the Fifth Circuit’s statement that “the FBI’s activities were not limited to purely foreign threats” seems to imply that FBI interaction with technology companies about non-foreign threats would be somehow unlawful or inappropriate. To be clear, it would not. Interaction with technology companies about violations of laws regarding domestic terrorism, including but not limited to threats to election infrastructure and to election officials, are all legitimate domestic security issues. It is not only appropriate for the FBI to investigate these issues, but it is the agency’s responsibility to do so. In the modern era, investigations involve the use of digital technologies. Lawful interaction with the technology sector, including social media platforms, is essential to effectively address national security threats, foreign and domestic.
The orders and surrounding debate regarding the additional layer of government interactions with the companies have likely caused substantial damage to operations as a practical matter, and to trust as an ephemeral one, between government entities and technology companies whose cooperation is integral to identifying and disrupting incidents of terrorism and other DVE-related threats. To ensure that national security responsibilities are met, government actors, while adhering to the existing court orders, need to find a way to not over-correct in “an abundance of caution,” which is the approach that FBI Director Christopher Wray testified to Congress the FBI (and presumably other components of the federal government) is currently taking.
Developing additional policies within the federal government, both military and civilian law enforcement, to more effectively screen social media for DVE purposes would require greater cooperation and coordination between government agencies and technology platforms. This cooperation and coordination would, notionally, take place either through new legislation or through informal coordination. Neither approach seems feasible while Biden v. Missouri is pending Supreme Court review.
An Unreceptive Political Environment
While current policy targets all DVE (regardless of ideological or political leanings), our research conversations indicate that there is a perception that these policies target individuals with right-leaning political views. This perception is likely a result of the fact that, historically, left-leaning extremist individuals (for example, those associated with animal rights or eco-terrorism groups) do not generally pursue military or law enforcement careers. Thus, while the policies and practices are intended to mitigate all DVE participation (whether far right or far left), the practical reality is that they are more likely to impact right-leaning extremists who participate in the military and law enforcement at higher rates than left-leaning extremists.
Moreover, the issue of preventing DVE within the military has become an increasingly contentious topic in Congress. In 2022, the Senate Armed Services Committee criticized Department of Defense initiatives to counter extremism in the ranks, writing:
The committee believes that the vast majority of servicemembers serve with honor and distinction, and that the narrative surrounding systemic extremism in the military besmirches the men and women in uniform. The committee believes that when extremist activity does in fact occur that it must be dealt with swiftly and appropriately; however, the case incident rate does not warrant a Department-wide effort on the issue. In light of the findings by Secretary Austin’s [Countering Extremist Activity Working Group], the committee believes that spending additional time and resources to combat exceptionally rare instances of extremism in the military is an inappropriate use of taxpayer funds, and should be discontinued by the Department of Defense immediately.
Based on our consultations with experts in and out of government, we assess that the impact of the Senate Committee on Armed Services report and political backlash against Defense Department efforts substantially curbed additional policy work on the issue of DVE both within the department and throughout agencies and departments across the federal government.
Developing policies and practices to root out DVE in the ranks is not a uniquely American challenge. But the hostility to working on the issue does appear to be presently an American issue. Earlier this year, one of us (Cordero) briefed a convening of law enforcement and security professionals and academic participants, hosted by the International Institute for Justice and the Rule of Law, in Malta. The U.S. government was represented by the U.S. State Department, which sponsored the event, and the U.S. Justice Department. International partners included security service and law enforcement personnel from across Europe, as well as from New Zealand and Australia. Representatives from the other countries did not report a similarly difficult political environment; instead, policies and practices appeared to be developed and implemented simply from a nonpolitical security professional perspective. The most forceful and persuasive presentation on the historical imperative of rooting out DVE from security service ranks was presented by the German government’s senior security service official, because the official conveyed the historical responsibility that the current generation of Germans in government leadership positions have assumed due to the Nazi era and the Holocaust.
The Outlook for Policy Development
In the modern information environment, effective development of DVE prevention policies and best practices depends, in part, on effectively screening the online behavior of potential applicants and recruits through social media vetting. Addressing the barriers outlined above, it is unlikely in the near term that the political appetite for active social media screening practices or legislation—or the requisite appropriations necessary to implement social media screening—will change. As a result, federal agencies will need to work within the confines of existing budgets and programs established for high-quality recruitment. Meanwhile, the impact of the Supreme Court’s consideration of the Biden v. Missouri case should not be underestimated. Since the Supreme Court’s decision will not be issued until the end of the current term, government agencies will be wary of expanding interactions with technology platforms while the case is pending.
In the meantime, the area where perhaps efforts can make the most progress is in the improvement of the environment for law enforcement and military recruitment. A new executive order creating a federal interagency security committee to ensure better protection of federal government buildings, released on Nov. 27, is a tangential but important and helpful development. This order is intended to improve security for federal facilities, which will thereby improve security for the federal law enforcement personnel who choose to serve. Notably, the origins of the new order date back to acknowledgment of the need for improved federal facility security in the wake of the 1995 Oklahoma City bombing. While tangential to standards and vetting for recruitment, accountability for federal facility security affects the physical safety and security of law enforcement officers all across the country. And while political disagreements may persist regarding the best policies and practices for new recruit screening, a bipartisan consensus does exist regarding the need for quality recruits in the military and law enforcement professions. An increase in the pool of desirable recruits for both military and law enforcement services can allow for a highly selective process and ensure that all candidates considered meet the highest standards.