Biden Administration and US Congress failing on Domestic Terrorism
Ambassador Curtis A. Ward
(05 January 2022) –A year after the violent attack on the US Capitol by white violent extremists – domestic terrorists, no change has been made in the U.S. Criminal Code to provide the investigative and prosecutorial legal framework needed to deal with the domestic terrorism scourge in America. Prosecuting individuals who participated in the violent attack under the Criminal Code without the opportunity to charge them as terrorists reduces significantly the punishment which under current law is not commensurate with the egregious nature of the crime. It limits prosecution of anyone for ‘providing material support’ to terrorism which in the context of international terrorism attracts a much heavier penalty than conviction for the charge of aiding-and-abetting under similar circumstances applied to charges in domestic terrorism cases. The use of certain surveillance methods and the scope of prosecution of groups to which some of these violent extremists belongs are also limited.
There is no process to designate domestic terrorists similar to the designating of foreign terrorist individuals and groups to which the offense of ‘providing material support’ could be applied. There is no equivalent punishment of domestic terrorists to the punishment of international terrorists for similar offenses. Moreover, designation of a terrorist or group triggers automatic assets freezes and holding accountable those who provide financial and other support to designated terrorists, including in the planning and execution of terrorist acts.
I commend President Joe Biden for issuing the first ever US “National Strategy for Countering Domestic Terrorism” on June 15, 2021. The approaches enunciated in the Strategy represent major steps to deal with the threats posed by domestic terrorism. But executive action and reordering and expanding the scope of responsibilities of the FBI and the Department of Homeland Security (DHS), as well as increase in available resources to these agencies must be matched by appropriate legislation to legally empower them in investigations and prosecution. Lack of appropriate legislation will limit their capacities to deal with domestic terrorism.
I understand the constraints of a divided US Congress, particularly the US Senate where the split is 50-50 with the Vice President a tiebreaker. The Republicans will not support any legislation to curb the activities of white extremists which form a significant part of their base. The anachronistic rules under which the Senate operates makes it virtually impossible to advance legislation in this toxic environment.
I also understand the Biden Administration’s agenda priorities in response to the coronavirus pandemic, the economy, climate change, and threatening geopolitical and security issues. While I believe the House January 6 (1/6) Committee’s investigations will expose the enablers and those who provided material support to the planners and participants in the attack on the US Capitol, I am not optimistic about the level of accountability and punishment that will result from the Committee’s work.
Thus, I am of the view the Biden Administration and the Congress are failing, not merely to advance legislation but also because there is no public discussion on the need for a legislative framework to give law enforcement the intelligence capacity they need for surveillance and prosecution of domestic terrorists at a level commensurate with the FBI’s surveillance of international terrorists. Protection of the rights of US citizens under the First, Second, and Fourth Amendments of the US Constitution are often raised by opponents of similar measures applicable to international terrorism to be made applicable to American citizens engaged in domestic terrorism. This discussion needs to be had and constitutional exceptions carved out to give the authorities needed by the Justice Department to investigate and prosecute domestic terrorism effectively. There are excellent definitions of domestic terrorism in US law, including definitions used by the FBI and the DHS to categorize certain criminal offences as domestic terrorism. Yet domestic terrorism is not a prosecutable offense in the Criminal Code.
Most importantly, the Criminal Code provides for prosecution of anyone who provides “material support to designated terrorists and terrorist groups” but the law applies only to international terrorists and groups. The law does not provide for a similar designation of domestic terrorists or groups. Thus, providing material support to domestic terrorists is generally prosecuted as aiding and abetting. Conviction of an individual in the context of international terrorism is punishable by a maximum of up to 15 years, while individuals convicted of comparable similar offences of domestic terrorism generally receive a mere slap-on-the-wrist.
Two articles I wrote in The Ward Post, “Violent Extremism and the Reality of Domestic Terrorism in America” (30 January 2021), and “Defund, Defang, and Defeat Domestic Terrorist Groups” (26 February 2021, provided my perspectives on domestic terrorism and called for legislative action to deal with the scourge. In my second article I offered details of what needed to be done to prevent and suppress domestic terrorism, and to hold accountable those engaged in domestic terrorism and those who provide material support to them. I was concerned then, as I am now, that investigative and prosecutorial authorities lacked the appropriate tools to be effective.
It would be a game changer if investigators and prosecutors were able to apply existing laws applicable to investigations and prosecutions of international terrorists to domestic terrorism. I refer specifically to the provisions of 18 U.S. Code Section 2339A, as amended and expanded by the Anti-Terrorism and Effective Death Penalty Act (1996) (AEDPA) and the USA PATRIOT Act (2001), ‘Providing material support to terrorists.’ The prosecution as domestic terrorists those who, in response to Donald Trump’s big lie, attacked the US Capitol to overthrow the legitimate election of Joe Biden is not possible under the current law.
The vast number of individuals associated with the planning, and otherwise aiding and abetting this insurrection, including the former president of the United States and his close supporters, who could be prosecuted and made to account for their role in the events of January 6, 2021, is reduced significantly. Many of those individuals who provided material support for the terrorists will escape prosecution for their roles in the attack on the US Capitol. Many of those who aided and abetted the attempted coup will go unpunished.
The bar to prosecute individuals who provide material support to terrorists, unlike ‘aiding and abetting’, is quite low. The law on providing material support is aimed at prosecuting individuals who knowingly support individuals engaged in a proscribed activity but need not know the specific act to be committed at any given time. It does not require the supplier of material support to have the intent to commit the specific act intended by the perpetrator. The AEDPA also eliminated restrictions which inhibited investigations, including restrictions on surveillance of individuals with suspected links to terrorists or terrorist groups. Thus, the law prohibiting material support is not available to investigators and prosecutors of those who provided support to perpetrators of the January 6 attacks on the US Capitol, and prosecution of aiding and abetting requires a much higher burden of proof.
I am disappointed in the lack of leadership by the White House, the Justice Department, and the Democrats in the US Congress for failing to advance this narrative and pursuing legislation to close the existing gaps in investigative and prosecutorial authority, Holding those responsible and accountable for the acts of domestic terrorism which threatened to topple American democracy on January 6, 2021 is an imperative.
© Curtis A. Ward/The Ward Post