Introduction

How the federal government defines and conceptualizes domestic terrorism (DT)¹ shapes the nation's understanding of it as a federal crime and policy issue. Domestic terrorists (and the crimes they commit) are labeled as such because their criminal actions are directed against the civilian population and/or government and intended to influence the conduct of government within the boundaries of the United States. Like foreign terrorism, DT involves ideologically driven criminal acts aimed at influencing the government or coercing the population. But unlike with foreign terrorism, the federal government currently cannot formally charge individuals with DT, which sometimes makes it difficult (and occasionally controversial) for the federal government to formally characterize any individual as a domestic terrorist. Further, domestic terrorists may adhere to certain extremist ideologies or belong to hate or extremist groups, but unlike the formal process involved in designating foreign terrorist organizations, the federal government does not have a formal process to label domestic terrorist movements or groups, thereby making it difficult to categorize the threat presented by groups or movements as a DT threat. Some observers may look to terrorism-related incidents, investigations, and arrests to help them understand the scope of the DT threat, but these data are limited (see the "Domestic Terrorism Data" section).

Over the past several years, Congress has addressed DT through hearings, appropriations, and legislation. Further, Congress experienced an act of DT at the U.S. Capitol while Members were in session on January 6, 2021.² This report examines DT as a federal policy issue, analyzes DT threats and incidents, and discusses issues Congress may consider as it deliberates the federal government's approach to defining and confronting DT.

Defining Domestic Terrorism and Extremism

In addition to statutory definitions of DT, the federal government has further defined and conceptualized DT through policy. The Federal Bureau of Investigation (FBI) has defined DT as ideologically driven crimes committed by individuals in the United States that lack foreign direction or influence.³ This conceptualization excludes individuals directed or motivated by foreign groups such as Al Qaeda or the Islamic State.⁴ Further, the U.S. government does not provide a precise, comprehensive, and public explanation of any particular groups it might consider to be domestic terrorist organizations. Listing groups in this way may infringe on First Amendment-protected free speech—or the act of belonging to an ideological group, which in and of itself is not a crime in the United States. Instead, the FBI and Department of Homeland Security (DHS) have identified a number of general DT threats, and they categorize the threats according to specific extremist beliefs. The ideological concepts underlying such threats may inspire criminal activity, such as hate crimes, that does not rise to the level of terrorism—but occasionally they do. The threshold for when a hate crime incident rises to the level of DT and the government decision to label it as such are not always clear (see "Hate Crimes as Domestic Terrorism Incidents").

In the National Defense Authorization Act for Fiscal Year 2020 (NDAA FY2020; P.L. 116-92), Congress directed the FBI Director and DHS Secretary, in consultation with the Director of National Intelligence, to develop uniform definitions of DT and other related terms for the purpose of recordkeeping and tracking related data. The NDAA FY2020 also required that the FBI and DHS issue an annual strategic intelligence assessment and report on DT. These definitions and assessments are referenced throughout this CRS report.

Federal Definitions of Domestic Terrorism

In general statutory terms, a domestic terrorist engages in terrorist activity that occurs in the United States. The FBI and DHS rely on statutory and regulatory definitions to identify incidents as DT or individuals as domestic terrorists. The FBI generally relies on two fundamental sources to define DT. First, the Code of Federal Regulations characterizes terrorism as including "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives."⁸ Second, 18 U.S.C. §2331(5) more narrowly defines domestic terrorism and differentiates it from international terrorism and other criminal activity. This definition comes from Section 802 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (P.L. 107-56). According to 18 U.S.C. §2331(5), DT occurs primarily within U.S. territorial jurisdiction and involves

(A) ... acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping....

In their 2022 report to Congress containing strategic intelligence assessment and DT data (in describing its methodology for classifying acts of DT), the FBI described DT as "an ideologically-driven criminal act, including threats made to or acts of violence against specific victims, in furtherance of a domestic political and/or social goal."⁹ In their 2023 report, the FBI removed "ideologically-driven" from this definition among other changes: "[t]he FBI defines a 'DT incident' as a criminal act, including threats or acts of violence to specific victims, made in furtherance of a domestic political and/or social goal, which has occurred and can be confirmed."¹⁰

Aside from the statutory and regulatory definitions of DT, the FBI has historically emphasized particular qualities inherent to the actors who engage in it. According to the FBI, domestic terrorists are Americans who commit violence to achieve their goals that stem from domestic, extremist ideological influences.¹¹ The FBI identifies and categorizes certain extremist ideological influences to define and describe the DT threat.

For its use of the term domestic terrorism, DHS relies on the definition of terrorism from the Homeland Security Act (HSA; 6 U.S.C. §101(18)), which is substantially similar, but not identical, to 18 U.S.C. §2331(5). It states that terrorism is any activity that

(A) involves an act that—

(i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and

(ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and

(B) appears to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.

Unlike the USA PATRIOT Act, this definition from the HSA specifically includes acts that are potentially destructive to critical infrastructure and does not specifically refer to domestic terrorism.

In describing its methodology for classifying acts of DT, the DHS Office of Intelligence and Analysis (I&A) defines a DT attack as "an incident motivated by a DVE [domestic violent extremist] ideology in which a weapon or tactic is purposefully deployed against a target for the purpose of causing injury, death, or property destruction."¹² In distinguishing DHS's methodology from the FBI's, both the FBI and DHS explain

these ideologically driven criminal acts must be dangerous to human life or potentially destructive to critical infrastructure or key resources to meet the definition of DT. A single incident may be part of a spree of criminal or violent activity conducted by the same perpetrator(s) using the same tactic(s), which are carried out against multiple locations in short succession.¹³

DHS's inclusion of physical threats to "critical infrastructure or key resources" sets it apart from the FBI's definition of DT.

Federal Definitions of Domestic Violent Extremism

In recent years, both the FBI and DHS have categorized the DT threat by types of extremism, and more specifically, domestic violent extremism. In Domestic Terrorism: Definitions, Terminology, and Methodology, released in 2020, they list and describe the DT threat categories as follows:

Racially or Ethnically Motivated Violent Extremism: This threat encompasses the potentially unlawful use or threat of force or violence in furtherance of ideological agendas derived from bias, often related to race or ethnicity, held by the actor against others or a given population group. Racially or Ethnically Motivated Violent Extremists purport to use both political and religious justifications to support their racially- or ethnically-based ideological objectives and criminal activities.

Anti-Government or Anti-Authority Violent Extremism: This threat encompasses the potentially unlawful use or threat of force or violence in furtherance of ideological agendas, derived from anti-government or anti-authority sentiment, including opposition to perceived economic, social, or racial hierarchies, or perceived government overreach, negligence, or illegitimacy.

Animal Rights/Environmental Violent Extremism: This threat encompasses the potentially unlawful use or threat of force or violence in furtherance of ideological agendas by those seeking to end or mitigate perceived cruelty, harm, or exploitation of animals and/or the perceived exploitation or destruction of natural resources and the environment.

Abortion-Related Violent Extremism: This threat encompasses the potentially unlawful use or threat of force or violence in furtherance of ideological agendas relating to abortion, including individuals who advocate for violence in support of either pro-life or pro-choice beliefs.

All Other Domestic Terrorism Threats: This category encompasses threats involving the potentially unlawful use or threat of force or violence in furtherance of ideological agendas which are not otherwise defined under or primarily motivated by one of the other Domestic Terrorism threat categories. Such agendas could flow from, but are not limited to, a combination of personal grievances and beliefs, including those described in the other Domestic Terrorism threat categories. Some actors in this category may also carry bias related to religion, gender, or sexual orientation.¹⁴

In their 2023 annual report, Strategic Intelligence Assessment and Data on Terrorism (hereinafter referred to as Strategic Intelligence Assessment, with the respective year of the report), the FBI and DHS rely on and amend/update the language in these categories to describe the DT threat, and also define the term domestic violent extremist (DVE). The report defines a DVE as follows:

an individual based and operating primarily within the United States or its territories without direction or inspiration from a foreign terrorist group or other foreign power who seeks to further political or social goals, wholly or in part, through unlawful acts of force or violence dangerous to human life.¹⁵

One apparent difference between the definitions of a DVE and domestic terrorist is that a DVE seeks to further political or social goals through unlawful violence while a domestic terrorist goes so far as to plan or commit acts of violence. In the aforementioned report, the FBI and DHS stress that "mere advocacy of political or social positions, political activism, use of strong rhetoric, or generalized philosophic embrace of violent tactics does not constitute extremism, and is constitutionally protected."¹⁶ The FBI and DHS acknowledge that the I&A uses the term domestic terrorist interchangeably with domestic violent extremist.¹⁷

In the Strategic Intelligence Assessment, 2021, the FBI and DHS further break down the anti-government/anti-authority violent extremism (-ist) category as follows:

Militia Violent Extremists: DVEs who take overt steps to violently resist or facilitate the overthrow of the US Government in support of their belief that the US Government is purposely exceeding its Constitutional authority and is trying to establish a totalitarian regime; oppose many federal and state laws and regulations, particularly those related to firearms ownership.

Anarchist Violent Extremists: DVEs who oppose all forms of capitalism, corporate globalization, and governing institutions, which are perceived as harmful to society.

Sovereign Citizen Violent Extremists: DVEs who believe they are immune from government authority and laws.¹⁸

The FBI and DHS have added further details about these extremists, but did not again define them in subsequent Strategic Intelligence Assessment reports. For example, in the Strategic Intelligence Assessment, 2023, the FBI and DHS add the following details for abortion-related violent extremists: "[a]bortion-related violent extremists (AbRVEs) – both pro-life and pro-choice – have threatened, vandalized, and impeded access to facilities that provide reproductive health services or counseling, which can violate the Freedom of Access to Clinic Entrances Act."¹⁹

Law enforcement officials often use the term domestic violent extremists to describe the actors (or the alleged actors) while using domestic terrorism to describe the acts. For example, FBI Director Christopher Wray, in describing the January 6, 2021, attack on the U.S. Capitol, has referred to the individuals who engaged in violent criminal activity as violent extremists and has described the incident as DT:

Certainly the Capitol attack involved violent extremist[s]. As I said we the FBI consider this a form of domestic terrorism. It included a variety of backgrounds, certainly there were quite a number—we are seeing quite a number as we are building out the cases on the individuals we have arrested for the violence quite a number who what we would call sort of militia violent extremists so we've got a number who self-identify with you know the Proud Boys or the Oath Keepers, things like that. And we also have a couple of instances where we have already identified individuals involved in the criminal behavior who we would put in the racially motivated violent extremists who advocate for what you would call CERT of white supremacy so there have been some of those individuals as well.²⁰

Federal Domestic Terrorism Laws

DT is not a chargeable federal offense. While an individual may commit crimes that are widely considered to be acts of DT, they cannot be charged at the federal level with committing an act of DT because there is no federal criminal provision expressly prohibiting domestic terrorism. For example, Timothy McVeigh, widely considered a domestic terrorist in the United States,²³ was never charged with or convicted of DT. Instead, he was convicted of murder, conspiracy, and using a weapon of mass destruction in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people.²⁴ Some states have DT laws,²⁵ and individuals who commit certain offenses in those states may face prosecution for DT under state law.²⁶ For example, in 2019 James Jackson was convicted of DT as well as other crimes in New York for the "white supremacist murder" of Timothy Caughman.²⁷

While there is no federal criminal offense that expressly prohibits DT, several federal statutes and the U.S. Sentencing Guidelines provide for increased penalties if DT is involved in a chargeable offense. For example, Section 111 of Title 18 of the U.S. Code authorizes various prison terms²⁸ for forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with certain federal officers or employees.²⁹ If an individual commits such an offense, and it involves acts of international or domestic terrorism as defined in 18 U.S.C. §2331(5), federal law authorizes imprisonment for up to an additional eight years.³⁰ For a discussion of how the courts have applied this and other DT-related sentence enhancements, see CRS Report R46829, Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues.

Despite the absence of a specific federal DT charging statute, the FBI describes some acts as DT, some investigations as DT investigations, and some individuals as "DT subjects" arrested for applicable criminal violations or "subjects included within the domestic terrorism program."³¹ As mentioned previously, FBI Director Wray is quoted as saying that the attack on the U.S. Capitol on January 6 was DT: "That attack—that siege, was criminal behavior, plain and simple, and it was behavior that we, the FBI, view [as] domestic terrorism."³² To date, most federal charges³³ against accused participants in the attack range from vandalism of government property³⁴ to seditious conspiracy,³⁵ and most do not include DT nor any sentencing enhancement related to DT.³⁶ In some cases, judges have rejected prosecutors' requests for a DT sentencing enhancement.³⁷ However, in May 2023 Stewart Rhodes (founder of the Oath Keepers, a militant group as described by Director Wray)³⁸ was sentenced for crimes committed on January 6, and his sentence was enhanced for involving acts of DT; Judge Amit Mehta noted that Rhodes' actions met the legal definition of terrorism.³⁹ Since Rhodes' sentencing, the DT sentence enhancement has been applied several times more for crimes related to January 6.⁴⁰

Domestic Terrorism Threats

The FBI and DHS do not officially designate domestic terrorist organizations,⁴¹ but they openly delineate domestic terrorist threats. As discussed previously, the U.S. Department of Justice (DOJ) identifies DT threats to include potentially unlawful use or threat of force or violence in furtherance of ideological agendas from racially or ethnically motivated violent extremists, anti-government or anti-authority violent extremists (further broken down to include militia violent extremists, anarchist violent extremists, and sovereign citizen violent extremists), animal rights/environmental violent extremists, and abortion-related violent extremists.⁴²

In explaining to the public how they investigate terrorism, the FBI describes the DT threat as persistent, with actors "crossing the line from exercising First Amendment-protected rights to committing crimes in furtherance of violent agendas."⁴³ Crossing the line from First Amendment-protected activity, such as a peaceful protest, to DT-related violence can happen quickly. In 2020, for example, violence and rioting broke out at protests across the country (many occurring in Portland, OR) that had previously been peaceful.⁴⁴ Then-Attorney General William P. Barr said at the time, "The violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly."⁴⁵ DOJ responded by engaging its JTTFs and charging many of those who engaged in violence with violations of federal law.⁴⁶

Former Methods of Describing Threats

The FBI's descriptions of DT have evolved. In previous descriptions of the DT threat, the FBI has used the terms ecoterrorists, black separatists, white supremacists, and abortion extremists.⁴⁷ Also in past descriptions of the DT threat, the FBI distinguished between special interest terrorism and traditional right-wing and left-wing terrorism. For instance, in congressional testimony in 2002, James Jarboe, former Domestic Terrorism Section Chief of the FBI's Counterterrorism Division, described special interest terrorism as follows:

Special interest terrorism differs from traditional right-wing and left-wing terrorism in that extremist special interest groups seek to resolve specific issues, rather than effect widespread political change. Special interest extremists continue to conduct acts of politically motivated violence to force segments of society, including the general public, to change attitudes about issues considered important to their causes. These groups occupy the extreme fringes of animal rights, pro-life, environmental, anti-nuclear, and other movements.⁴⁸

It is unclear whether any FBI materials currently use the categories of special interest, left-wing, and right-wing terrorism, but they have not appeared in recent FBI reports or testimony. Labeling terrorism in such a manner is discussed further in the "Utility of Using the Domestic Terrorism Term" section.

Current Threats—Extremists and Lone Actors

According to the FBI, the DT threat "expanded significantly" in 2021 and 2022.⁴⁹ As it had in previous years, the FBI concluded that the increase is largely attributable to an escalating threat from DVEs and an increase in anti-government or anti-authority violent extremism. DHS has echoed this conclusion and states that DVEs present the "most persistent and lethal threat" to the homeland, and it has designated domestic violent extremism as a "national priority area" for its Homeland Security Grant Program (HSGP).⁵⁰ FBI Director Wray stated that "[t]rends may shift, but the underlying drivers for domestic violent extremism—such as perceptions of government or law enforcement overreach, sociopolitical conditions, racism, anti-Semitism, Islamophobia, misogyny, and reactions to legislative actions—remain constant."⁵¹

In the Strategic Intelligence Assessment and Data on Domestic Terrorism, budget documents, and FBI testimony regarding the DT threat over the last several years, the FBI has stated that it is most concerned about lone actors and small groups of individuals, primarily using firearms and easily accessible weapons.⁵² According to the FBI, these individuals "act without a clear group affiliation or guidance, making them challenging to identify, investigate, and disrupt" and they often radicalize online.⁵³ The decentralized and fluid nature of the threat from lone actors who may quickly mobilize to action presents a significant challenge to law enforcement in seeking to prevent terrorist incidents.⁵⁴

Domestic Terrorism Incidents

As compared to other violent crimes, DT incidents occur less frequently,⁵⁵ but when they do occur they often have high impact. Federal law enforcement officials and researchers generally agree that the number of DT incidents has risen in recent years, but government statistics on these incidents are limited (see the "Domestic Terrorism Data" section).⁵⁶ In 2021 and 2022, the FBI published data on DT-related charges from 2015-2021 as required by the National Defense Authorization Act for Fiscal Year 2020 (NDAA FY2020; P.L. 116-92). While these data show the number of referrals to the FBI for possible DT incidents pending FBI DT investigations, and the number of subjects arrested for DT-related charges (see Table 1), they do not provide a comprehensive understanding of DT in the United States. Additional details, such as which underlying offenses precisely qualify as DT-related charges,⁵⁷ the location of incidents, and the relevant category of extremism would help provide a more comprehensive understanding of the nature and extent of DT-related crimes in the United States.

As shown in Table 1, the total number of subjects with DT-related charges decreased each year from FY2016 to FY2019, before increasing by more than four times from 180 in FY2020 to 800 in FY2021 and then decreasing to 400 in FY2022.The increase in DT-related charges filed from FY2020 to FY2021 is largely attributable to the DOJ investigation of the January 6, 2021, attack on the U.S. Capitol. As of December 6, 2023, more than 1,237 defendants have been charged with crimes related to the Capitol breach. While the FBI considers the incident itself to be DT, it is unclear how many of these charges are considered to be DT-related.⁵⁸

In recent years, the FBI and DHS have elaborated on DT-related arrests and incidents in congressional testimony and other public statements. In 2019, FBI Director Wray informed Congress that a majority of the DT cases that the FBI had investigated by that point in FY2019 were motivated by white supremacist violence.⁵⁹ The FBI reportedly later clarified that Director Wray meant that a majority of the DT cases involving a racial motive were thought to be motivated by white supremacy.⁶⁰ More recently, in the 2022 Strategic Intelligence Assessment and Data on Domestic Terrorism, the FBI stated that the primary investigative classification for DT investigations had shifted from racially or ethnically motivated violent extremism at the end of FY2020 to anti-government or anti-authority violent extremism by the end of FY2021 (see Table 2).

Another trend highlighted by the FBI has been online radicalization of domestic extremists and terrorist incidents related to their radicalization. Former Assistant FBI Director McGarrity noted in testimony to Congress that radicalization to violence is increasingly taking place online where "social media is used for the distribution of propaganda, recruitment, target selection, and incitement to violence."⁶¹

Former Assistant FBI Director McGarrity further explained that the global nature of the threat has enabled extremists to engage with other like-minded individuals without having to join organized groups. For example, a 2019 incident (highlighted by FBI Director Wray in congressional testimony)

involved the online radicalization of a U.S. Coast Guard officer who has been accused of plotting a domestic terrorist attack. Christopher Hasson is said to have researched online information on Hitler, Nazis, and the number of Jewish people living in the United States, and he allegedly plotted a large-scale terrorist attack to assassinate Democratic Members of Congress, journalists, and others.⁶²

Hate Crimes as Domestic Terrorism Incidents

Recent mass violence events in the United States and the federal response have illustrated the conceptual overlap between DT and hate crimes. When characterizing ideologically inspired criminal actors for investigative purposes, the FBI occasionally confronts suspects who can be viewed either as domestic terrorists or as perpetrators of hate crimes, or both. As noted previously, DT is not a chargeable federal offense, but hate crimes are,⁶⁷ and these two categories are not mutually exclusive.

Among other things, federal law defines hate crimes to include conduct involving bodily injury in which certain jurisdictional prerequisites are met and the offender intentionally selects a victim because of their actual or perceived race, color, religion, national origin, gender, gender identity, disability, or sexual orientation.⁶⁸ Hate crimes may appear to involve ideological issues; however, as described by one former FBI official, a hate crime "generally involve[s] acts of personal malice directed at individuals" and is missing the broader motivations driving acts of DT.⁶⁹ The line may sometimes be blurry, and some cases may be investigated as both a hate crime and DT.

Government officials' statements regarding certain violent incidents illustrate the challenges officials face in characterizing acts as hate crimes or DT, or distinguishing between them. On May 14, 2022, Payton Gendron shot 13 individuals (who were predominantly Black; 10 were killed) in a supermarket in Buffalo, NY.⁷⁰ Prior to this incident, Gendron reportedly wrote a document and made various online statements outlining his plans to murder Black people and supporting a racist theory. The DOJ description of the incident, FBI Director Wray's statement, and President Biden's remarks at the crime site may illustrate the challenges officials face in characterizing acts as hate crimes, violent extremism, or DT, and distinguishing between them. In describing the investigation, DOJ and FBI Director Wray stated they are treating the incident as a "hate crime and an act of racially-motivated violent extremism," while President Biden described the incident as DT.⁷¹

While the data are not directly comparable,⁷² reported hate crime incidents and related federal investigations appear to occur more frequently than reported DT incidents and their associated investigations. As required by the Hate Crime Statistics Act (HCSA; P.L. 101-275), the FBI collects data on hate crimes reported to the police, which are voluntarily reported by law enforcement agencies across the country. As required by the NDAA FY2020, the FBI reports data for "each completed or attempted incident of domestic terrorism" that has occurred in the United States and is reported to a law enforcement agency.⁷³ According to the FBI, reported hate crime incidents increased 6.5%—from 10,891 in 2021 to 11,643 in 2022.⁷⁴ In FY2022, the FBI reported receiving 5,772 referrals of possible DT incidents—31.0% less than the number of referrals (8,375) in FY2021 (see Table 1). While the NDAA FY2020 requires the FBI to report the number of FBI investigations with a nexus to DT initiated as a result of a referral or investigation by a federal, state, local, tribal, territorial, or foreign government of a hate crime, the FBI states that it is unable to do this because "there is no mandatory reporting requirement to identify hate crime incidents that are also considered criminal activity that appears motivated by a political and/or social goal consistent with the DT threat categories."⁷⁵

Going Forward in Understanding Domestic Terrorism: Issues Facing Congress

Congress may consider any number of legislative and oversight options in considering the federal government's approach in defining and confronting DT, including (1) enactment of a DT charging statute; (2) the utility and consequences of applying the DT label in federal policy; (3) allocation of additional, less, or equivalent appropriations to address DT; and (4) adjustments to DT data collection requirements for federal agencies.

Considering a Federal Domestic Terrorism Charging Statute

Some observers argue in support of creating a federal criminal statute that would make DT a chargeable federal offense under Title 18 of the U.S. Code, the main criminal code of the federal government. Others argue against this idea.⁷⁸ Overall, some believe a specific criminal statute could help deter future terrorist attacks,⁷⁹ while others believe it could alienate those who may be sympathetic to domestic extremist causes and possibly lead to an increase in DT incidents.⁸⁰

Arguments in Support of a Domestic Terrorism Law

Arguments in support of making DT a chargeable federal offense include that (1) it would elevate the seriousness of the crime to reflect its threat to national security, (2) it would lead to an increase in the tools available to law enforcement to address the threat of DT and prevent future incidents, and (3) it would lead to a more accurate understanding of the nature and scope of DT incidents, among other arguments.⁸¹

Reflecting the Threat of Domestic Terrorism to National Security

Some argue that a chargeable DT statute would allow for DOJ to appropriately charge an individual who has committed a DT offense with a crime to reflect an issue of national security.⁸² While some who commit DT-related offenses are charged with crimes that reflect national security concerns, such as seditious conspiracy, other DT incidents do not necessarily include charges that clearly reflect issues of national security. The FBI Agents Association⁸³ advocates for the creation of a DT law for this reason. In a public statement, the association argues that "domestic terrorism is a threat to the American people and our democracy. Acts of violence intended to intimidate civilian populations or to influence or affect government policy should be prosecuted as domestic terrorism regardless of the ideology behind them."⁸⁴

Effect on the Tools Available to Federal Law Enforcement

Some argue that a chargeable DT statute would expand the tools available to federal law enforcement in enforcing DT-related crimes. Proponents of a DT law have said that it would appropriately integrate the crime into U.S. counterterrorism operations for both prevention and response purposes. Mary McCord, former Acting Assistant Attorney General for National Security and former Principal Deputy Assistant Attorney General for the National Security Division, supports this argument

It … would integrate the investigation and prosecution of all terrorism, not just "international" terrorism, more fully into the national counterterrorism program—a program designed to prevent terrorist attacks by aggressive use of law-enforcement tools like online undercover personas and sting operations, and more coordinated sharing of information between the U.S government and foreign allies and between the U.S. government and state and local law enforcement.⁸⁵

McCord points to the case of Christopher Hasson as an example of why federal prosecutors could use more tools such as a DT law. In 2019, Hasson was arrested and accused of gathering an arsenal and plotting to murder lawmakers and journalists in hope of inciting a race war. In 2020, Hasson was sentenced to over 13 years in prison for various federal firearms and drug offenses.⁸⁶ McCord described the federal charges as "weak" compared to what she feels would have been a more commensurate response—a federal charge of domestic terrorism.⁸⁷

Effect on Data Collection

Some argue that a new DT law would lead to improvements in the public and lawmakers' understanding of the nature and extent of DT through expanded data collection.⁸⁸ Much of what Congress and the public know about the DT threat stems from the FBI's congressional testimony and the annual Strategic Intelligence Assessment reports issued by the FBI and DHS. Research and public understanding of DT trends and the nature of current threats may be improved by knowing how many people have been arrested for, charged with, and convicted of DT—a determination made in court with due process of law. (For further discussion, see the "Domestic Terrorism Data" section.)

Arguments Against a Domestic Terrorism Law

Arguments against a DT law include that (1) it is unnecessary due to existence of other federal laws used to target DT-related offenses, (2) it may violate the First Amendment of the Constitution in practice, and (3) it might be used by law enforcement to unjustly target certain groups, among other arguments.⁸⁹

It Is Unnecessary As There Are Other Available Statutes

Some argue that a DT law is unnecessary because law enforcement already has the tools it needs to arrest, prosecute, and punish those who commit or attempt to commit DT-related offenses. For example, Christopher Hasson was prosecuted under existing federal laws and was sentenced to more than 13 years in prison.⁹⁰ Some argue that additional DT charges would be unnecessary to further punish individuals like Hasson. One scholar argues that "[n]o 'terrorist' has gone unpunished for want of a law."⁹¹

Further, some states have DT laws, and individuals who commit DT-related offenses in those states may face prosecution under state law. The ability of some states to prosecute individuals as domestic terrorists, some argue, further makes the case that a federal DT statute may not be necessary. For example, in 2023 five individuals were arrested and charged with domestic terrorism as well as other crimes in Georgia for violent crimes committed at the site of the future Atlanta Public Safety Training Center.⁹²

It May Violate the First Amendment of the U.S. Constitution

Some argue that a new DT law may encroach on free speech protected by the First Amendment of the Constitution.⁹³ There is concern that law enforcement would unlawfully investigate the activity of individuals and groups that adhere to certain ideologies. The FBI has repeatedly expressed that it is careful not to encroach on First Amendment protected activity, but it has been clear that it does "not tolerate violent agitators and extremists who use the guise of First Amendment-protected activity to incite violence and wreak havoc."⁹⁴ It is a delicate balance for the FBI even without a chargeable DT statute. For example, the FBI field office in Norfolk, VA, issued a situational information report that warned of violence at the U.S. Capitol on January 6, 2021; the FBI discovered the threat through statements made on an online message board. Even with the threat of violence, the FBI expressed concern over First Amendment protected speech in its report (as obtained by and quoted in the Washington Post)

"Individuals/Organizations named in this [situational information report] have been identified as participating in activities that are protected by the First Amendment to the U.S. Constitution," the document says. "Their inclusion here is not intended to associate the protected activity with criminality or a threat to national security, or to infer that such protected activity itself violates federal law.… However," it continues, "based on known intelligence and/or specific historical observations, it is possible the protected activity could invite a violent reaction towards the subject individual or others in retaliation or with the goal of stopping the protected activity from occurring in the first instance. In the event no violent reaction occurs, FBI policy and federal law dictates that no further record be made of the protected activity."⁹⁵

Regardless of support for a DT law, some have expressed further the First Amendment-related concern that enforcement of a DT law would lead to the unlawful targeting of the protected activity of certain groups depending on the balance of political power at the time.⁹⁶

Enforcement Might Unjustly Target Certain Groups

Some individuals who oppose a DT law have looked to the past to point out how enforcement of such a law might be used to unjustly target certain groups based on any number of factors including race, ethnicity, and political beliefs. Examples provided include the federal government's use of the Alien Registration Act of 1940 (also known as the Smith Act) to allegedly target communists during the so-called Red Scare⁹⁷ and currently existing terrorism authorities to allegedly target Black civil rights activists, individuals from Muslim, Arab, Middle Eastern, and South Asian communities, animal rights and environmental rights activists, and members of other groups viewed as having controversial beliefs.⁹⁸ In another example, a former FBI agent and Brennan Center fellow claimed the FBI wrongly identified eco-terrorism as the top terrorist threat in the United States from 2004-2008.⁹⁹ Some who argue against a DT law claim that a new authority would be used in similar discriminatory ways.

Utility of Using the Domestic Terrorism Term

If individuals who commit DT-related offenses cannot be charged with DT, some observers may question the utility of federal law enforcement labeling threats, incidents, and investigations as DT and referring to individuals as domestic terrorists. Congress may consider how the DT label is applied and how the term domestic terrorism is used in federal law enforcement activities (and the consequences of applying the term) and data collection.

Understanding the Threat and the Data

Labeling individuals who have committed an act of DT according to the category of extremism they adhere to helps lawmakers, law enforcement agencies, and researchers understand the nature and extent of the DT threat and how to address it. Congress may consider whether to direct the FBI and DHS regarding the manner in which they categorize and label DT threats. There remains some confusion as to how the FBI and DHS establish DT threat categories and how or why some categories may be added or removed.

The labeling and recognition of extremist beliefs as a way to describe and categorize the DT threat as well as the labeling of certain crimes as DT or groups as domestic terrorist groups have caused controversy among the public and lawmakers.¹⁰⁰ Even when an incident precisely fits the definitions of DT provided in statute, the use of DT as a label for the incident and the perpetrators can be controversial. Congress may consider whether revising DT statutes should include further detail as to what qualifies as DT and whether the responsibility of labeling incidents as DT and individuals as domestic terrorists belongs with government agencies or with judges and juries.

Consequences of Being Labeled a Domestic Terrorist

If the FBI or other federal agency conclude that an individual's actions (or suspected actions) qualify as DT, then that individual could be added to the FBI's Threat Screening System (formerly known as the Terrorist Screening Database and commonly known as the Terrorist Watchlist.) The Terrorist Watchlist is the U.S. government's consolidated database containing sensitive (but unclassified) law enforcement and national security information regarding those who are known to be or are reasonably suspected of being involved in terrorist activities (both domestic and international). Portions of the Watchlist are exported to data systems in federal agencies that perform screening activities. These data systems¹⁰¹ include the No Fly, Selectee, and Expanded Selectee lists for airline passenger screening.¹⁰² Watchlist information is also used by select foreign governments for screening purposes and to assist in coordination of terrorist threat awareness, assessment, analysis, or response. Watchlist data are also shared with certain private entities (both domestic and foreign) for the same purposes.¹⁰³

Congress may wish to review the federal government's existing authorities that allow the FBI to include known or suspected domestic terrorists on the Watchlist.¹⁰⁴

Addressing the Threat

Understanding the nature and extent of the DT threat may help Congress and federal agencies effectively allocate resources to secure the homeland. For example, in congressional testimony, FBI Director Wray has highlighted the evolving DT threat and said the FBI was dealing with "lone domestic violent extremists radicalized by personalized grievances ranging from racial and ethnic bias to anti-government, anti-authority sentiment to conspiracy theories."¹⁰⁵ Wray went on to explain this was why the FBI was dedicating more resources to DT investigations.

Allocation of Resources to Address Domestic Terrorism

Until recently, federal agencies, such as DHS and the FBI, did not specifically address the DT threat in their budgets. Instead, these agencies used existing funding streams to address the DT threat. For example, the FBI generally handled DT as part of its overall counterterrorism program and did not seem to dedicate specific resources to countering DT. Today, federal agencies describe the nature and extent of DT threats in their budget requests to Congress and allocate resources according to these threats, including the following examples:

• In 2021, DOJ began to summarize its budgetary requests specific to DT for the next fiscal year.¹⁰⁶ DOJ also emphasized the need for additional resources due to the increasing number of cases and defendants related to the January 6, 2021, attack on the U.S. Capitol.¹⁰⁷
• In a FY2022 congressional budget hearing, DHS Secretary Mayorkas stated that DT is "the most lethal and persistent terrorism-related threat to the United States today," and explained that this was the reason for DHS requesting "$131 million to support innovative methods to prevent domestic terrorism while respecting privacy, civil rights, and civil liberties."¹⁰⁸
• For FY2024, the FBI requested a budget increase "to counter the increasing acts of domestic terrorism across the United States."¹⁰⁹

Similarly, until recently Congress did not specifically address the DT threat in appropriations. Today, Congress specifically appropriates resources to address the DT threat, including the following examples:

• In FY2022, Congress appropriated additional resources for the FBI to counter DT and required the FBI to provide (in future expenditure plans) details on DT threats and the resources to address them.¹¹⁰ Further, Congress directed the FBI "to provide the Committees on Appropriations with terrorism threat category descriptions and assessments as part of the normal budget review process, as well as when requested or as new threat scenarios develop, to ensure the Committees have the necessary insight into the alignment of threats and resource allocation."¹¹¹
• In FY2022, Congress directed DHS to coordinate with DOJ and the FBI to promote information sharing and a collaborative effort to combat DT.¹¹²
• In FY2023, Congress made similar provisions for DOJ and DHS to address DT.¹¹³

Congress may consider various options when addressing the DT threat through allocation of resources. It may choose to rely on a broader strategy (such as that outlined in the National Strategy for Countering Domestic Terrorism) and appropriate funds according to the strategy, and possibly across a broader range of federal agencies. Alternatively, policymakers could choose to reduce the scope of DT resources allocated (e.g., request fewer resources be dedicated to the issue) and/or remove references to DT from appropriations language and other legislative direction. Through appropriations law, Congress may also request more data and transparency from agencies that address DT and collect additional data to more fully understand the DT threat.

Domestic Terrorism Data

Domestic terrorists have orchestrated numerous attacks over the last several decades, and collective knowledge of these incidents is more limited than knowledge of crime more generally. There are several reasons for this. First, unlike other federal crimes, the federal government does not publish annual data on DT-related prosecutions and sentencing.¹¹⁴ For example, the public can find the number of defendants prosecuted in federal court for drug offenses in recent years through the Bureau of Justice Statistics, Federal Justice Statistics Program,¹¹⁵ but the public cannot do the same for DT offenses. Part of the reason for this is the absence of a federal DT charging statute. However, as required by the NDAA 2020, the FBI now provides data on the "number of federal charges with a DT nexus" (see Table 1), but the data are still not as robust as those for other federal crime categories. For example, the U.S. Sentencing Commission does not identify sentencing outcomes for convictions related to DT but rather the specific federal statutes that were violated and the associated sentence. Congress could consider placing additional reporting requirements on other federal agencies such as the U.S. Sentencing Commission.

Another reason that knowledge of DT incidents and threats is limited is because federal agencies label some of these data as For Official Use Only. For example, in August 2022 I&A at DHS released data on DVE attacks and disrupted plots in the United States from 2010-2021, but released it as For Official Use Only. If broader disclosure is sought, Congress could require that additional DT data be released to the public, and consider conducting oversight of the internal processes of classifying data as For Official Use Only and other processes such as classifying information as Law Enforcement Sensitive.

While the NDAA FY2020 required the FBI and DHS to report DT data, there is no mandatory incident reporting requirement for DT incidents to be reported to the federal government. As the Strategic Intelligence Assessment, 2022, notes, "many DT incidents are rooted in state and local level criminal activity,"¹¹⁶ and a complete understanding of the prevalence of DT in the United States is not possible without state and local DT incident data. Congress could consider encouraging states and localities to report DT incident data by incentivizing states, if necessary, to report these data through vehicles such as grant conditions.

Finally, the NDAA FY2020 required the Strategic Intelligence Assessment reports to be updated annually for five years. Should Congress decide to continue to require the FBI and DHS to publish these reports, it could renew this requirement in subsequent legislation and ask for additional DT data and information from these agencies.