American Terrorists: Why Current Laws Are Inadequate for Violent Extremists at Home

Editor’s Note: For the U.S. government, terrorism is a foreign-linked danger, not a domestic one. Groups that foment violence at home are criminal and investigated as such, but a terrorism label is not used. Jason Blazakis, a professor at the Middlebury Institute of International Studies at Monterey who for many years ran the office at the State Department in charge of terrorist designations, argues that we need to change. He proposes a structure for designating domestic terrorist groups and otherwise putting them on par with their foreign counterparts.

Daniel Byman

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For more than 10 years, I led an office at the State Department responsible for sanctioning Foreign Terrorist Organizations (FTOs) and individuals we deemed “Specially Designated Global Terrorists” pursuant to Executive Order 13224. With very few exceptions, we spent our time sanctioning Islamic groups and Muslims. In contrast, we never spent any time evaluating whether far-right extremist groups met the legal criteria to be identified by this label. Of course, many far-right groups are domestically based, and thus, not designatable by the State Department. The Immigration and Nationality Act outlines the legal criteria for FTO designations and it is explicit in prohibiting the Department of State from sanctioning groups with a significant domestic presence. Despite that limitation, the list of foreign-based right-wing groups is, like the list of their U.S. counterparts, long and growing. Yet no senior policymaker ever asked us to examine groups like the United Kingdom-based National Action, an organization proscribed as a terrorist entity by the British government.

Recent, terrible events—Cesar Sayoc’s pipe bombs and Robert Bowers’ mass shooting at the Tree of Life Synagogue—have solidified my view that the United States urgently needs a domestic terrorism law that allows a federal agency to officially label an individual or group as a Specially Designated American Terrorist (SDAT) or Domestic Terrorist Organization (DTO). According to the University of Maryland’s Global Terrorist Database, Americans living in the United States are more likely to be killed or injured in a terrorist attack carried out by a U.S. citizen than a foreign terrorist.

Americans like Sayoc and Bowers adhere to a hateful ideology that dehumanizes groups of people or anyone who looks or thinks differently from them—not unlike the Islamic State’s tendency to call anybody that opposes it “takfir,” or an apostate. It is not enough to label acts committed by people like Sayoc and Bowers as hate crimes. These acts were hateful, but they also were designed to push a political objective—a key attribute of terrorism. Hate and terrorism are not mutually exclusive. This false distinction has festered for too long and it has shielded people like Sayoc and Bowers from the terrorist stigma we’ve long reserved for foreign jihadist groups.

Domestic terrorism is not a new feature in the U.S. landscape. What’s so disturbing today is that the vitriol spewed by today’s American terrorists is being fueled by implicit encouragement from political leaders and public figures, including the president. The president’s speech on October 22 in Houston, Texas, in which he declared himself a “nationalist,” has motivated and energized right-wing extremists. If that rhetoric continues unchecked it will tear the nation asunder.

What would the contours of a domestic terrorism law look like? Who should lead the effort in creating it and which agencies should implement it?

Any domestic terrorism statute must preserve legitimate free speech while providing an opportunity for a federal agency to sanction U.S. citizens. Sanctioning U.S. citizens would not be new. Anwar al-Aulaki, a U.S. citizen and high-level member of al-Qaeda in the Arabian Peninsula, was sanctioned during the Obama administration. Sanctioning an American without links to a foreign organization, though, would be novel. First, the criteria and processes for determining how the U.S. government sanctions and officially labels an American as a terrorist must be developed. What could this look like? First, the organization or individual must be primarily based in the United States. Second, the group must engage in terrorism or terrorist activity, or have the capability and intent to do so. Third, the organization’s terrorist activity must have a political objective, so as to distinguish it from criminally motivated groups, such as drug cartels. For example, the final criteria could be met if the motive of a group’s violence is to create an Aryan nation by killing Jews and Muslims.

The FBI has an uncodified definition of domestic terrorism that could provide a starting point for a legal definition. The Bureau describes domestic terrorism as being perpetrated by individuals and/or groups inspired by or associated with primarily U.S.-based movements that espouse extremist ideologies of political, religious, social, racial, or environmental nature.

The FBI should also take the lead in identifying domestic terrorists, but it is understaffed and over-missioned. Thus, any new law should create a division of the FBI that can’t be deleted by executive order and grant it a new line of dedicated funding. Given the sensitivities involved in sanctioning Americans as terrorists, an interagency process led by the FBI must include other federal departments and agencies. Furthermore, the FBI’s domestic terrorist determinations must receive the approval from both the attorney general and the secretary of homeland security.

Any new law, in addition to stigmatizing acts previously not formally identified by the U.S. government as terrorism, should provide at least three other concrete benefits. First, the SDAT or DTO would be blocked from the formal financial system. There were some indications that the Timothy McVeigh, the primary perpetrator of the Oklahoma City bombing, may have had external organizational contacts that provided support to him in the lead-up to that attack. According to the U.S. Department of the Treasury’s 2017 Terrorist Assets Report, more than $43 million of FTO-linked assets are blocked or frozen in the formal financial system. An inward-focused capability that freezes or blocks an individual’s ability to provide funds to a domestic terrorist outfit may produce similar results.

Second, a new law that penalizes the provision of material support to domestic terrorists will make it harder for domestic terrorists to find safe haven. Following his 1996 Centennial Olympic Park bombing in Atlanta, Eric Rudolph lived off the land and backs of supporters throughout the Appalachian foothills; supporters glorified him by printing up t-shirts and signs that said “Run, Rudolph, Run.” People may be less willing to help the next Rudolph on the run if it means getting caught up in a terrorism case.

Third, far-right groups in particular have been adept at using an array of technology and social-media tools to incite violence, recruit new followers, and raise funds. A domestic terrorism law that labels individuals and groups as domestic terrorists would provide Silicon Valley the legal hook it needs to take down content associated with these actors. If these groups lose their virtual forums, their influence will wane. Facebook, Google, Twitter, and other tech companies are removing content associated with designated FTOs because the U.S. government has labeled them as terrorists. Today, that same leverage doesn’t exist for Silicon Valley for American terrorists. It’s high time to give the private sector the legal coverage it needs to remove non-protected free speech content from its platforms. Are any of these possible consequences relevant to Bowers and Sayoc? While it is too early to know whether either received any direct support from outside groups or individuals, we know that their perspectives were reinforced by engagement in social media. And, we now know that an online associate of Bowers was recently arrested in Washington, DC.

A new law would make Americans safer. A properly implemented, well-crafted law will provide more prosecutorial flexibility and new authorities to investigate and sanction terrorists, and will prohibit material support to American terrorists. As important, the law and the sanctions that come later will send an important political message: Terrorism directed at vulnerable populations and people of different races, religions, gender identities, sexual orientations, and political preferences will no longer be treated solely as a hate crime. Finally, the new law must also be directed at all forms of domestic terrorists, not just groups animated by right-wing violent extremist views.

I acknowledge that there are great risks involved in taking this step The U.S. Congress must ensure that any new law is unambiguous in preserving protected free speech and incorporates appropriate checks and balances so that the new domestic terrorism tool isn’t misapplied against peaceful political opposition. Critics will argue that taking the step of labeling Americans as terrorists will lead us down a slippery slope. As very recent events illustrate, America is already slipping down this slope.