Constitutional Issues in Federal Management of Domestic Terrorism Incidents


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Nothing prevents the Department from adopting more effective methods to assess the scope of far-right violence, it has simply chosen not to do so. The Justice Department could have reversed these policies and practices anytime over the last several years when McCord and her DOJ colleagues were instead pushing for a new domestic terrorism law.

It could have instructed its investigators and prosecutors to label all hate crimes meeting the federal definition of domestic terrorism as such, and to prioritize these cases appropriately. It could have collected accurate data about the number of violent hate crimes that occur around the country, particularly in states that do not have hate crimes laws, as instructed by Congress more than two decades ago.


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This data could be used to embarrass those state and local jurisdictions that do not address these crimes appropriately, or to increase federal prosecutions, as the law allows. More simply, the FBI could treat hate crimes that meet the definition of domestic terrorism as a top priority.

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That the Justice Department took none of these steps, despite the mandates of Congress, suggests it may use any new domestic terrorism authorities against a different set of targets. This seems a questionable use of resources, particularly when thousands of violent hate crimes against human beings are going unaddressed. In another instance of taking its eye off the ball, weeks before the deadly white nationalist riot at Charlottesville, the FBI issued an assessment warning police that black activists protesting police violence posed a threat to them.

Its first attempted prosecution of a prominent member of the Huey P. While Justice Department officials have used notorious incidents of white supremacist violence to push for a new domestic terrorism statute, the Department itself continues to de-prioritize far-right violence and focus its most aggressive tactics instead against environmentalists, political protesters, and communities of color.

Should we treat domestic terrorists the way we treat ISIS?: What works—and what doesn’t

Legislation was introduced in Congress in March that calls for the establishment of domestic terrorism units in the Justice and Homeland Security departments and the FBI as well as the creation of a Domestic Terrorism Executive Committee. But some have called for more sweeping legislation to ensure that the FBI could investigate domestic terrorism as aggressively as it does terrorism with international connections. Congress needs to proceed cautiously on any such proposals. Domestic terrorism motivated by racial or religious hatred is undoubtedly a pressing problem.

Michael C.

This week the FBI Agents Association , representing more than 14, active and former agents, reiterated its call for such a statute. But Congress could run into constitutional problems if it seeks to combat suspected domestic terrorism using the same legal tools employed against foreign terrorist groups. Justice Department in prosecuting them.

Should we treat domestic terrorists the way we treat ISIS?: What works—and what doesn’t

For example, acts of domestic terrorism motivated by racial or religious hatred can be prosecuted under the federal hate-crime statute and other laws. Although federal law lacks a catchall criminal offense of domestic terrorism, Robert Chesney of the University of Texas Law School points out that several federal terrorism-related statutes, including one dealing with the use of explosives, apply in cases of home-grown violent extremism. Timothy McVeigh, who perpetrated the bombing of the Oklahoma City federal building that killed people and injured several hundred more, was convicted of federal charges including use of a weapon of mass destruction and murdering federal agents.

Those who are calling for a new domestic terrorism statute argue that there are still gaps in federal law, including the inability of the Justice Department to prosecute some acts of domestic terrorism committed with some categories of firearms. The government is, in particular, finding itself short on two types of resources to fight this scourge. And, as a matter of priorities, key U. This must change.

ISBN 13: 9780595316281

Yet there seems stubborn resistance from some in the Trump administration to engaging in the necessary reorientation of its view of counterterrorism. The federal government is not alone is showing wariness of giving domestic terrorism its due. Tech companies also have been slow to address its spread online.


  1. NPR Choice page?
  2. Passar bra ihop.
  3. GDPR Policy.
  4. Peters Twittclass.
  5. Editorial: Domestic terrorists can be prosecuted without a new federal law;
  6. No one—in government or the private sector—should be uncomfortable denouncing racial hatred or augmenting efforts against violent extremism of all forms. He cited as ideological inspiration the Norwegian Anders Breivik, who killed 77 in , as well as the American Dylann Roof, who killed 9 in He was inspired by a global movement of racially motivated violence. His online posting praised both Tarrant and Crusius.

    And, in each new manifestation, the attacker increasingly situates his actions in that transnational context.


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    What does this mean for counterterrorism? For the government, it means law enforcement and the rest of the national security apparatus must bring to bear in this fight tools proven to help against international counterterrorism, including foreign terrorist organization designations, sting operations, and intelligence sharing with foreign partners.

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    And, for tech companies, it means policing their platforms to remove not just incitement to violence but also the ideological foundations that ultimately spawn such violence. That recognizes the white nationalist threat we actually face, just as we recognized the threat of jihadism 18 years ago. William Leonard. Gen, Ret.

    David R. Irvine , Christian Meissner and Scott Roehm.

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