PERSPECTIVE: Prosecuting domestic terrorismHow the Federal Government Investigates and Prosecutes Domestic Terrorism

Published 19 February 2021

In the aftermath of the 6 January riot at the U.S. Capitol, many politicians, including President Biden, and public commentators called for renewed efforts by the federal government to combat domestic terrorism. Eric Halliday and Rachael Hanna write that that reaction followed a pattern over recent years in which mass shootings and other violent attacks have spurred demands for an increased federal focus on domestic terrorism. “[I]t is important to understand exactly what powers the federal government can and cannot use when pursuing domestic terrorists. This is particularly relevant because domestic terrorism occupies a gray area in federal criminal law between international terrorism and nonterrorism criminal offenses,” they write.

In the aftermath of the 6 January riot at the U.S. Capitol, manypoliticians, including President Biden, and publiccommentators called for renewed efforts by the federal government to combat domestic terrorism. Eric Halliday and Rachael Hanna write in Lawfare that that reaction followed a pattern over recent years in which mass shootings and other violent attacks—like those in El Paso, Texas;Gilroy, California; and Pittsburgh, Pennsylvania—have spurred demands for an increased federal focus on domestic terrorism. “Some lawmakers and experts have urged Congress to pass a domestic terrorism statute, while others have argued that the government already has sufficient power to pursue such cases but, rather, that it lacks the coordination and political impetus to properly do so,” they write, adding:

In evaluating these arguments, it is important to understand exactly what powers the federal government can and cannot use when pursuing domestic terrorists. This is particularly relevant because domestic terrorism occupies a gray area in federal criminal law between international terrorism and nonterrorism criminal offenses. There is no specific crime of domestic terrorism. Rather, domestic terrorism could be any offense that meets the statutory definition laid out in 18 U.S.C.§ 2331(5): acts within the U.S. that are dangerous to human life, violate the laws of the U.S. or a state, and “appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or cercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping[.]” In contrast, international terrorism is defined as covering essentially the same conduct with the requirement that the specific acts must “transcend national boundaries in terms of the means by which they are accomplished.”

In practice, the FBI operates under the distinction that international terrorism is any act of terror ordered by a foreign group or inspired by an ideology that originated overseas, while domestic terrorism is any act of terror inspired by political motivations rooted in the United States. That distinction is more than semantic—it has a real impact on how the federal government pursues suspected domestic terrorists, in terms of both what it is allowed to do during an investigation and which statutes it may use in a prosecution.

Halliday and Hanna offer a comprehensive overview of the authorities available to the federal government when fighting domestic terrorism, as well as brief descriptions of how the government has used them (and which available authorities the government has not yet applied in the domestic terrorism context). “This overview is a building block for further debates about the necessity of a domestic terrorism statute and the policy choices facing the Biden administration,” they write.