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The U.S. government can do more to fight domestic terror without any new laws

How the Biden administration could act now to prevent the next Jan. 6

Trump supporters try to break through a police barrier at the Capitol on Jan. 6. (John Minchillo/AP)
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In the weeks since the Jan. 6 siege of the Capitol that left five dead and over 100 injured, the debate about domestic counter-extremism policies has reignited, using a narrative that may seem familiar to many of its longtime observers.

Some commentators have called for a counterinsurgency strategy in the United States, harking back to America’s efforts in Iraq and perhaps ignoring many of the lessons learned from such approaches. Others toyed with the idea of a new domestic intelligence agency similar to those proposed, but ultimately rejected, in the immediate aftermath of the tragic events of Sept. 11, 2001.

But after we examined every Capitol Hill arrest, it looks like preventing the next Jan. 6 may not require such sweeping changes. Using existing structures, resources and programs at its disposal, the Biden administration can authorize several steps today that would dramatically improve the efficiency of the federal response to domestic extremism without new laws or authorities.

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The Program on Extremism at George Washington University has reviewed more than 250 cases of individuals charged in federal court for their role in the storming of the Capitol. We have examined hundreds of pages of legal filings, scoured social media postings, and interviewed law enforcement officials around the country and policymakers in Washington, D.C. Our new report released Tuesday identifies a decidedly mixed bag of domestic violent extremists, representing a variety of ideological, demographic and operational backgrounds.

The report finds that several strains of domestic violent extremist movements converged on the Capitol, creating an intensely heterogeneous group of alleged participants from over 40 states and 180 U.S. counties. Of the individuals federally charged, at least 13 percent were part of organized militant networks that reportedly planned well in advance of the siege to breach the Capitol using force, 32 percent traveled alongside groups of families and friends in organized clusters, and the remaining 55 percent are not known to have connections with other participants. Prosecutors have brought an array of charges against these individuals, from unlawful entry and disorderly conduct to conspiracy and violent assault. The amalgam of domestic violent extremist groups present at the Capitol — including militant groups, Proud Boys, QAnon-inspired radicalized followers and racially or ethnically motivated violent extremists — represented in many ways a snapshot of the broader domestic violent extremist threat facing the United States.

As the FBI and Justice Department continue their roundup of people across the country who are alleged to have unlawfully participated in the events at the Capitol, the central question remains the same as it has for the better part of the past two decades: Does the U.S. government need more legal authorities to combat domestic extremism?

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Some national security experts have called for the Biden administration to introduce new legislation adding a distinct federal “domestic terrorism” criminal charge to the U.S. Code. The new offense would mirror 18 U.S.C. § 2339B — more commonly known as the “material support” statute — which punishes those who provide support to designated foreign terrorist organizations with up to 20 years in federal prison. Others, in proposed legislation, have called for the creation of new sub-agencies within the Justice Department, FBI or Department of Homeland Security specifically tasked with domestic terrorism.

However, the creation of new statutory authorities for domestic counterterrorism or agency-level changes through legislation is fraught with political hurdles, and a significant restructuring of national security infrastructure to address domestic terrorism is therefore highly unlikely in the near-term. Even if it was politically feasible to pass new laws in response to the failed insurrection, it is likely that augmenting legal authorities would first require a long-term, data-driven effort to determine whether the U.S. government needs those additional measures to counter existing threats.

Our report’s findings point to several recommendations for the agencies tasked with countering domestic violent extremism to improve response, measurement and coordination.

While the arrests highlight the diversity of the domestic violent extremism threat, law enforcement, researchers, lawmakers and the public alike still lack a clear picture of its scope. FBI senior leadership frequently testifies that they maintain “850 active investigations” into domestic extremism-related cases. Yet the FBI does not disaggregate this statistic by the category of domestic extremist group involved or the level of investigative resources that it dedicates to each case. Without these data, the public can’t properly evaluate, monitor and oversee how law enforcement is devoting resources to each category — we’re limited to broad-brushstroke judgments on overall success or failure without nuance or specificity. As a baseline to improve the policy response to the disparate threats facing the United States, Congress should mandate an annual, publicly available report by the FBI, including statistics on the number of full-field investigations, preliminary investigations, and assessments related to domestic terrorism cases, broken down by the specific domestic violent extremist subcategories that it uses to label different types of violent extremist groups and movements.

The Biden administration can use existing structures for counterterrorism collaboration within the U.S. government to improve information-sharing between federal agencies on domestic violent extremism. It could continue the expansion of the mandate for the National Counterterrorism Center (NCTC) on domestic terrorism and immediately nominate a candidate for its director position. NCTC, created in the post-9/11 restructuring of the U.S. intelligence community, has served as a coordinating forum for law enforcement and intelligence agencies on counterterrorism. It has a tested system in place for reviewing data related to U.S. citizens — a contentious issue for domestic terrorism — that is constantly reviewed by lawyers inside and outside the U.S. government. The center can improve capacity for information sharing without any changes to the law.

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That would also assist the FBI in its investigative capabilities. Our research on Capitol Hill siege participants found that 13 percent of those arrested had a military background; Defense Secretary Lloyd Austin has promised to devote additional resources to probing the scope of domestic violent extremism within the military. The FBI and Defense Department are already sharing information about terrorism investigations, and they could expand that cooperation to include domestic extremism cases. Last year alone, the Pentagon received over 60 warnings from the FBI that its domestic extremism-related investigations involved members of the military. The agencies should share information not only about active-duty military under investigation for domestic extremism, but also former military, other Defense Department personnel, contractors, or anyone with access to military facilities. Only by fully understanding the scope of the extremism problem within its ranks can the Defense Department begin to confront it.

Finally, Congress and the U.S. intelligence community will have to conduct a review of law enforcement responses to intelligence on domestic terrorism before Jan. 6 to assess the failures that led to the breach. Testimony in recent congressional hearings corroborates that the U.S. Capitol Police and FBI field offices warned about the potential of mass violence, but the intelligence was either not made available to decision-makers — or in some cases went unheeded. The increased frequency of intelligence reports of potential domestic terrorist activities between November 2020 and January 2021 may have contributed to a situation where actionable intelligence was “drowned out” by a massive number of warnings, leading to the failure to respond. As the Office for the Director of National Intelligence conducts a review of intelligence reporting and response, Congress should also institute a systematic review of U.S. domestic counterterrorism policy through a nonpartisan Domestic Extremism Commission. Assigned subpoena power and congressional commitment, the commission would be tasked with identifying the longer-term drivers of policy failure that led to the breach of the Capitol.

Taken together, these incremental policy moves could substantially improve the federal response to domestic violent extremism — without the need for politically contentious legislation, new statutory authorities or the creation of new agencies. The current political dynamics and a general lack of bipartisan consensus about the events on Jan. 6 create an environment that is immensely hostile to the types of law enforcement and intelligence restructuring that took place after 9/11. But the Biden administration can still focus on greasing the wheel of the U.S. government’s domestic counter-extremism approach rather than trying to reinvent it.

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