President Biden’s administration will be challenged to deter domestic extremists — and investigate and prosecute them when their rhetoric spills over into violence. Law enforcement and security officials, experts say, will face significant legal, political and cultural hurdles to battle a disease that seems to have taken hold in the nation’s nervous system.
In his inaugural address Wednesday, Biden invoked fresh memories of the riot that saw a pro-Trump mob overrun the very spot where he took the oath of office and pointed to “a rise in political extremism, white supremacy, domestic terrorism that we must confront and we will defeat.”
“There’s no place in America right now that can say, ‘that’s not my problem,’ ” said Mary McCord, a former Justice Department national security official who serves as legal director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
White House press secretary Jen Psaki said Friday that Biden had tasked the director of national intelligence, in coordination with the FBI and the Department of Homeland Security, with compiling a comprehensive threat assessment on violent domestic extremism. The White House will also have its National Security Council review policy to determine whether the government can better share information or take other steps to mitigate the threat. She said the review would be overseen by Joshua Geltzer, a former senior director for counterterrorism, along with current officials. “Clearly, more needs to be done,” Psaki said.
Long before the abortive insurrection of Jan. 6, the FBI had warned that domestic extremism and white supremacy represented a rising and troubling threat, and vowed to take aggressive steps in response.
In September, FBI Director Christopher A. Wray told Congress that the bureau had elevated “racially motivated” extremism as a threat on par with “jihadist-inspired people here.”
“We’re treating it as a commensurate priority in terms of warranting our intention and resources,” Wray said, adding that the FBI had made about 120 arrests in all domestic terrorism cases that year.
Last year, the FBI made high-profile busts of members of two white supremacist groups — Atomwaffen Division and the Base — and foiled a plot by a group of alleged extremists to kidnap Michigan Gov. Gretchen Whitmer (D). Federal prosecutors also charged members of an organized hate group with rioting in connection with the infamous 2017 white supremacist rally in Charlottesville.
But, some critics say, ever since the 9/11 terrorist attacks two decades ago, the FBI has been far more primed culturally to investigate terrorism that is directed or inspired overseas. Generally, agents and other law enforcement officials who work on counterterrorism have risen through the ranks more quickly than their counterparts who do more bread-and-butter criminal cases. And critics say the events of Jan. 6 demonstrate that when White Trump supporters make threats, law enforcement treats them less seriously than when Black or far-left activists are involved in demonstrations.
“We have overlooked, not just over the last four years, but much longer than that some of the extremists within this country,” said Sean Joyce, a former FBI special agent who served as deputy director from 2011 to 2013. Now, he said, different strains, including anti-government groups, white supremacists and militant separatists have “coalesced and become a much greater force than they were.”
A day before the Capitol was stormed, the FBI’s field office in Norfolk prepared an internal report that warned of discussions online indicating extremists were planning to travel to Washington to commit violence and “war.”
That document was shared with agents in the Washington field office, who within 40 minutes briefed officials at a command post set up to respond to possible problems from a pro-Trump rally held in Washington immediately preceding the riot, FBI Assistant Director in Charge Steven M. D’Antuono has said. It was also shared through a Joint Terrorism Task Force that includes representatives of Capitol Police and other law enforcement agencies, D’Antuono said, though precisely who saw the warning remains unclear.
Officials have said FBI agents visited extremists ahead of the event to discourage them from traveling to Washington. But the bureau did not take other steps — such as issuing a formal threat assessment to law enforcement — that might have raised the level of alarm more broadly. Capitol Police, the agency responsible for securing Capitol Hill, also prepared an internal intelligence report warning of a violent scenario in which “Congress itself” could be the target of angry Trump supporters on Jan. 6. But the complex was overrun by rioters nonetheless, as law enforcement was slow to respond aggressively.
In a statement, the FBI said its “No. 1 priority is fighting terrorism — both international and domestic,” and noted that its first Joint Terrorism Task Force was formed in the 1980s in response to domestic terrorists responsible for bombings in New York City, Chicago and Washington.
“Regardless of how the threat has evolved, our commitment remains the same,” the FBI said.
The Jan. 6 incident has drawn comparisons to 9/11, though officials say it is unlikely to bring the kind of fundamental changes to federal law enforcement as did the carnage of that day. In the aftermath of those attacks, the United States deployed troops to multiple wars overseas, and the way people fly and access government facilities evolved considerably. The FBI developed controversial surveillance programs, tore down internal government barriers so intelligence information could be shared more freely, and Congress passed legislation to enhance the government’s surveillance power.
The Capitol riot is unlikely to be as pivotal an event. Despite what happened, 139 House Republicans and eight Senate Republicans supported at least one objection to counting electoral votes that showed Biden had won, though the events caused a handful to reverse prior plans to do so. Trump deceived tens of millions of people into believing the election was stolen from him and his supporters, and some portion of them probably felt — and still believe — that an uprising is warranted, analysts say. Law enforcement cannot fix that problem with more arrests.
“It’s more a consequence of disinformation than your traditional, domestic terrorist viewpoints,” said Elizabeth Neumann, who served as the assistant secretary for threat prevention and security policy at DHS during the Trump administration and now works with the Republican Accountability Project, which is seeking Trump’s conviction after his impeachment for inciting insurrection.
John Brennan, who served as CIA director and White House homeland security adviser in the Obama administration, said domestic extremists have become radicalized in much the same way as members of al-Qaeda and other foreign terrorists, fed a steady diet of disinformation and taught that violence is justified to achieve political ends.
“There’s an ideological fervor that is driving a lot of them,” Brennan said. But while U.S. law enforcement and intelligence agencies reoriented themselves after 9/11 to prevent foreign terrorists from striking inside the country, security agencies face greater legal and constitutional hurdles in countering domestic threats.
“How do you uncover these types of incubating threats while at the same time not violating or infringing upon those principles that we’re trying to protect?” Brennan asked. “It was a problem after 9/11. It is even more so now, because you’re talking about U.S. citizens and persons.”
The First Amendment prevents law enforcement from surveilling or investigating Americans based solely on their political views, even if the views are racist or anti-government. While the law makes it a crime to provide “material support” to specially designated foreign terrorist organizations, there is no parallel for domestic groups that harbor extreme positions. There is not even a particular criminal charge for domestic terrorism, though the concept is defined in federal law.
Some analysts have suggested that the United States could try to pass a law that criminalizes support of certain domestic organizations. Doing so, though, would probably draw legal challenges. And many far-right organizations that have demonstrated a propensity for violence are so loosely organized that they might not meet the criteria for an official designation.
“We really do want to be very careful about criminalizing ideologies, no matter how poisonous and awful,” said David Kris, a former senior Justice Department official and the founder of Culper Partners, a consulting firm. “You’re entitled to have an opinion and entitled to express that opinion no matter how noxious. But when you cross the line from having or expressing an ideology to acting on it in ways that are violent, you’ve crossed the line.”
Neumann said the government should formally study the issue, and focus on public education to help dispel debunked claims — like those promulgated by QAnon, an extremist ideology that the FBI has deemed a domestic terrorism threat — that have enthralled Trump supporters. Charging and publicly describing the evidence against those who participated in the riot will help, Neumann said, but she asserted that Republicans must take responsibility for their role in stoking the attack.
“We can’t even agree to what happened on Jan. 6, and you have people sitting in the Senate, sitting in the House, who helped it happen,” Neumann said. “I would hope if they take the right step, and acknowledge the wrong done, apologize to their constituents for being complicit in the lie, then that creates space for unity. But if you skip the step of accountability, if you skip the step of being introspective and acknowledging your role in the deception, your role in not standing up to Trump before now, then I don’t know that the people in the center and on the left are that interested in fake unity.”
McCord, the former Justice Department official, said she favors passing a law that specifically makes domestic terrorism a crime, which could allow the FBI to open more investigations and prosecutors to push for more significant sentences.
But, McCord noted, the FBI already can initiate investigations of suspected domestic terrorists — including using wiretaps and other strong surveillance measures — whenever they threaten violence or another crime. And many domestic extremists, she said, are doing so in public and online.
“Plotting acts of violence is not First Amendment protected, and once any criminal activity — even if it’s not violence — is discussed, that’s a predicate for investigation,” McCord said.
Wray has indicated previously that he is open to new laws to pursue domestic terrorism. “I would never be one to turn down the offer of new weapons in the fight,” he said in 2019. The FBI said in a statement that it would defer to lawmakers to work with Justice Department leaders on any such legislation.
“The FBI’s mission is to protect the American people and uphold the Constitution. That mission is both dual and simultaneous — it is not contradictory,” the bureau said. “The FBI investigates and responds to incidents only when an individual’s activity crosses the line from ideas and constitutionally protected activity to violence.”
Dozens of civil rights groups have publicly opposed a new law, fearing that it could be used to unfairly target people of color and Muslims, and called on the FBI and the Justice Department to use existing laws and authorities to combat white supremacists and other extremists.
What happens after the Jan. 6 riot will depend in some measure on what investigations into law enforcement’s apparent failings that day find, analysts said. Internal investigators for the departments of Justice, Defense, Interior and Homeland Security already have announced that they will explore their agencies’ response to the events — though reports from them probably won’t come for months or even years. Their findings will be critical, as they will press each agency for particular changes to address problems.
“Whether any structural changes are necessary within U.S. law enforcement in general, or the FBI in particular, will depend on informed determinations of what went wrong, and why,” said David Laufman, a former Justice Department national security official now in private practice. “Do the FBI or other federal law enforcement agencies institutionally assign priority and resources to monitoring and countering violent domestic extremism commensurate with the threat? Did the FBI and other federal law enforcement agencies possess sufficient authority under existing law and policy to obtain and act upon domestic threat information in the days prior to the attack on the Capitol? Are there any impediments to timely information-sharing or operational coordination among law enforcement agencies?”
The FBI said in a statement: “We look forward to cooperating with the IG in its investigation and working with the Department of Justice to both examine and implement any appropriate changes that are suggested in its final report.”
Violent extremism has long been a feature of American politics, sometimes with fatal consequences. Timothy McVeigh, whose 1995 bombing of a federal building in Oklahoma City killed 168 people, had anti-government views. Unabomber Ted Kaczynski, whose mail-bomb attacks killed three and injured 24, hated modern society.
But Trump and his rhetoric, analysts say, has posed particular problems for law enforcement. After the white supremacist rally in Charlottesville descended into violence and a woman was killed, the president said there were “very fine people on both sides” — seeming to lend support to the racists who had marched on the city. Pressed to condemn white supremacy at a debate last year, Trump instead told the Proud Boys, a far-right group with a history of violence, to “stand back and stand by,” emboldening extremists online who viewed his words as indication that they had the president’s support.
“I think there can be no question that going back even before Charlottesville, his views and statements have had an inhibiting effect on our recognition and coming to grips with this phenomenon,” said Kris, the former Justice Department official.
The Trump administration drew criticism early for not funding a DHS program created to counter violent extremism, and for not focusing on white supremacy — though officials later sought more money from Congress for such efforts.
Analysts say Biden will probably recommit to that program — and probably do more. His attorney general nominee, Merrick Garland, oversaw the prosecutions of McVeigh and Kaczynski. His deputy attorney general nominee, Lisa Monaco, has called for a war on domestic terrorism, enlisting the White House to lead the effort and reorganizing counterterrorism operations. Biden himself said he was drawn to enter the presidential race by the events in Charlottesville.
Fully addressing the problem, though, will probably require powers that Biden does not have, McCord said.
State prosecutors might have to crack down on illegal, self-styled local militias. Local law enforcement will have to purge possible extremists from their ranks. Social media companies in recent weeks already have sought to purge extremists from their platforms, and they will have to do even more, McCord said.
Political divisions have long hampered such a thorough response, analysts said, but the events of Jan. 6 could also be galvanizing.
“If I can think of a silver lining, it may be that you will potentially have more buy-in across the political spectrum for a greater emphasis on domestic extremism,” McCord said.