Homeland Security Watch

News and analysis of critical issues in homeland security

June 29, 2010

Does the US Have Any Domestic Terrorist Groups?

Filed under: Terrorist Threats & Attacks — by Christopher Bellavita on June 29, 2010

On June 21, 2010, the U.S. Supreme Court “upheld a federal law that makes it a crime to provide “material support” to foreign terrorist organizations, even if the support takes the form of training for peacefully resolving conflicts.

This decision triggered a discussion about its impact on free speech and free association rights.

One person contributing to the discussion wrote:

“If an American (a Congressman, former President, diplomat, or any other citizen) sat down at a table and met with members, or suspected members, of a foreign terrorist group [my emphasis] for the purpose of ending violence, or taking steps to move towards resolution of conflict, or to provide humanitarian aid they could face fifteen years in prison under this law.

This law could effectively prevent giving aid to terrorists, but it could also hamper putting an end to terrorism.

What about domestic terrorism? [my emphasis]

Is there an easily accessible list of all such organizations and suspected members that ordinary citizens can consult to guide and protect themselves? Would it be acceptable for American citizens and local governments to refuse to offer any assistance to someone who might be a member of a terrorist group (racial profiling) on the grounds that they might [be] “aiding” terror, even when that assistance is otherwise legal or even mandated by law?

Not only does this law potentially destroy free speech, it is so broad that it places many Americans at risk.”

———

The 2007 National Strategy for Homeland Security pointed out:

“The terrorist threat to the Homeland is not restricted to violent Islamic extremist groups. We also confront an ongoing threat posed by domestic terrorists based and operating strictly within the United States. [my emphasis] Often referred to as “single issue” groups, they include white supremacist groups, animal rights extremists, and eco-terrorist groups, among others.”

How does the U.S. government identify domestic terrorist organizations?

“It doesn’t,” I am told by a colleague who is in a position to know.

“The United States does not have a universally accepted process for defining and designating domestic terrorist individuals or groups which [is] shared throughout the law enforcement and homeland security communities.”

Here is a brief portion (edited for this post) of what David E. Heller, Assistant Special Agent in Charge, Anchorage Division, Federal Bureau of Investigation wrote on this subject for a thesis he is  completing at the Naval Postgraduate School.  Full citations from Heller’s work have been removed for this post, but will be available in the thesis when it is published.  I should also note that the views are the product of Heller’s academic work and do not necessarily represent the position of any government agency.

————————————————————————————————

Designating Foreign Terrorist Organizations

There are policies and procedures for defining and designating Foreign Terrorist Organizations (FTOs), but not domestic groups.

The legal criteria for designating FTOs and the process to do that are defined within section 219 of the Immigration and Nationality Act (INA), Title 8 U.S.C. 1189 and further amended by the USA Patriot Act of 2001.

The Secretary of State is responsible for designating FTOs on behalf of the United States Government. The State Department is not alone in this process. They have to consult with the intelligence community and the Attorney General before completing the designation process.

There are currently 45 Foreign Terrorist Organizations designated by the State Department.

In 2003, the Congressional Research Service issued a report examining the FTO list and the sanctioning of designated FTOs. The report also set out to examine other terrorist lists emphasizing that the FTO was not the only U.S. terrorist list.  The other lists included State-Sponsors of Terrorism, Specially Designated Terrorists, Specially Designated Global Terrorists, Specially Designated Nationals and Blocked Persons and Terrorist Exclusion list.

None of these lists include the identities of domestic terrorist individuals or groups.

What About Domestic Terrorists?

In September of 2003, Homeland Security Presidential Directive (HSPD) 6 was signed by President Bush.  HSPD 6 directed the Attorney General of the United States to establish a process to consolidate the Government’s approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Information in a screening process.

The consolidated list is known as the Terrorist Screening Data Base, more often referred to as the “Watch List.” The so called Watch List is primarily used for alerting users to the possible encounters of suspected terrorists and for affecting domestic and international travel of suspected terrorists.

A second list, which is a subset of the Watch List, is the Violent Gang/Terrorist Organization File (VGTOF). It was previously used to identify and track members of criminal gangs, but is now also being used to track foreign and domestic terrorists under investigation by the FBI and other designating agencies.

Two additional lists of note are the publically available FBI’s Most Wanted Terrorist and Domestic Terrorism lists. These lists are the only repositories for the FBI to externally publish or identify a domestic terror subject (after that person has been indicted) to law enforcement, selected communities of interest or the public. Both lists provide information concerning fugitives who have been criminally charged and are associated with terrorism or Domestic Terrorism, respectively. For example, FBI fugitive and animal rights extremist Daniel Andreas San Diego was recently added to the FBI’s Most Wanted Terrorist list.

However, these lists do not identify known or suspected domestic terror subjects or groups, regardless of their criminal history or current threat, unless or until they have been charged with a federal crime, unlike the criteria used to place groups on the FTO list.

A State’s Effort to Designate Terrorist Groups

The development of a list to openly recognize domestic terrorists has been attempted in the past.

In 2004, the Forty-Sixth Legislature for the State of Arizona introduced SB 1081: Animal and Ecological Terrorism. The legislation made it unlawful for groups or individuals to engage in Animal or Ecological Terrorism. The legislation also made it mandatory for an individual who was convicted of the crimes enumerated within the bill to be subject to a Terrorist Registration. The list would subsequently be available for public view via an internet web site.

Although the legislation was passed in the Arizona Senate, in May of 2004, the bill was vetoed by then Governor Napolitano.

Defining Terrorism

When it comes to civil liberties, defining the differences between domestic terrorists and individuals or groups exercising First Amendment protected activities is a fundamental challenge. The FBI has partially defined Domestic Terrorism as, “the unlawful use, or threatened use, of violence by a group or individual based and operating entirely within the United States (or its territories) without foreign direction, committed against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

In 2008, United States Attorney General Michael Mukasey published “The Attorney General’s Guidelines for Domestic FBI Operations.” The guidelines defined Domestic Terrorism for the purpose of Enterprise Investigations as, “domestic terrorism as defined in 18 U.S.C. 2331 (5) involving a violation of federal criminal law.” As Nathaniel Stewart pointed out in his review of the State of Ohio’s common law history of terrorism, referencing research by Nicholas J. Perry, there are at least nineteen definitions or descriptions of terrorism within federal law. During a 2008 audit of the U.S. Department of Justice watch listing process it was noted that, “ATF officials suggested that there was a lack of clarity, consistency, and understanding of the definitions of terrorism and terrorist acts among law enforcement agencies.” The context in which the term terrorism is refered to may be found in hundreds of other government and federal agency documentation as well.

Who Decides?

Another challenge in establishing a process to validate and designate domestic terrorists is to determine what agency should be responsible for the development of protocols and for defining a process.

The FBI currently has lead agency responsibility for investigating terrorism within the statutory jurisdiction of the United States (28 C.F.R. 0.85). The FBI’s role in investigating terrorism has been defined within Presidential Directives and federal legislation. The National Security Presidential Directive (NSPD) 46, Homeland Security Presidential Directive (HSPD) 15 and the USA Patriot Act of 2001 are three of the most recent government documents defining the FBI’s responsibilities with respect to investigating terrorism. Individual states have also developed laws and legislation which provide for local law enforcement to take action against terrorism adherents within their area of responsibility.

Unlike the FTO list which addresses international terrorism, we know of only one validation and designation process, with established protocols, by any Federal Government agency for identifying individuals engaged in Domestic Terrorism for inclusion on a government list. That list is the Consolidated Terrorist Watch List housed within the Terrorism Screening Center (TSC), which is managed by the FBI.

The TSC has identified criteria for nominating individuals suspected of being domestic terrorists as part of the Watch Listing process. These criteria do not apply to the nomination of domestic terrorist groups.

Should the US Have a Way to Designate a Group as a Domestic Terrorist Organization?

We have been unable to find any validation, designation processes, or protocols to nominate domestic terrorist groups to any government list.

The Attorney General’s Guidelines for Domestic FBI Operations issued by Attorney General Mukasey in September of 2008 outlined the criteria for initiating FBI investigations with reference to Terrorism Enterprise Investigations, i.e. investigating groups believed to be involved in Domestic Terrorism. These guidelines do not however provide direction about how to validate and designate or establish and publish domestic terrorist groups onto any law enforcement or homeland security terrorism list.

There is a long history of terrorist activity within the United States perpetrated by domestic groups and individuals seeking political and social change, most recently including such organizations as the Black Panther Party, Weather Underground, Covenant Sword and the Arm of the Lord, Ku Klux Klan, Earth Liberation Front, Animal Liberation Front, and the horrific attack by Oklahoma City truck bomber Timothy McVeigh.  Despite this history, none of these groups or individuals are identified on any government list as domestic terrorists.

By properly defining and implementing processes for designating Domestic Terrorism individuals or groups, law enforcement and homeland security agencies will be able to take pre-emptive action and share information thereby avoiding a “Hobson’s choice” between impinging upon First Amendment Rights and defending the nation against another Oklahoma City style attack.

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12 Comments »

Comment by William R. Cumming

June 29, 2010 @ 1:11 am

Well an excellent post by Chris and difficult topic to even bound much less dissect. What the post really shows is how little has been done even since 9/11/01 to develop protocol’s and processes with respect to identification of domestic terrorist units or individuals. Not only is the subject of “domestic terrorism” wrought with civil liberties and privacy issues but it will be a test bed for how our democracy (Republic) survives over the next decades. The great wall between INTEL and Law Enforcement still stands IMO. That wall requires outstanding effort and talent to break down.
In the meantime, I always follow with interest the activity of the Southern Poverty Law Center and their efforts to bring to the attention of the public groups that threaten our democracy.

Comment by Seerov

June 29, 2010 @ 7:20 am

This issue of domestic terrorism will almost certainly be used to push Canadian or European style “hate speech” laws in the US(probably in the near future). The SPLC will most likely be on the forefront of such efforts.

The biggest threat that the transnational elite in America face is the rise of the “alternative right” or what could be called the “radical right” or even the “uncontrolled right” (uncontrolled in that the ideas, frames, assumptions, narratives are not supported/controlled by corporate media such as Fox, Talk radio, or the print media like the Weekly Standard or National Review).

To suppress the rise of the alternative right the first amendment will be infringed upon and Internet censorship will be implemented. The main argument of course being that “hate speech” leads to “violence against minority children” (its more effective if children are mentioned), and both leftists and neoconservatives will agree that “its 1930′s Germany all over again!”

Comment by William R. Cumming

June 29, 2010 @ 11:07 am

Well I would argue we don’t have to look to NAZI Germany but closer to home.

Try Michael J. Ybarra’s 2004 book “Washington Gone Crazy” subtitled “Pat McCarran and the Great American Communist Hunt”!

Comment by John Comiskey

June 29, 2010 @ 7:28 pm

Domestic terrorism -dissent by another name or just terrorism?

I understand our system of government to be a celebration of the dialectic wherein loyal opposition is accepted or at least tolerated.

Thomas Paine said “government in its best form is a necessary evil, in its worst form an intolerable one.” Much the same might be said of Supreme Court decisions.

While it is hard to accept the broadness and slippery-slope potential of the Court’s decision, I begrudgingly accept its necessity. Homeland security engenders so much cognitive-dissonance!

So ….when is dissent dangerous? When is it terrorism? When should we revoke/suspend/redefine the rights and privileges of citizens in the name of homeland security?

Early in our nation’s history, the Alien and Sedition Acts raised the same questions. The Civil War saw a suspension of Habeas Corpus and World War I’s Espionage act forbade the use of “disloyal, profane, scurrilous, or abusive language.” The de-facto McCarthy regime made dissent tantamount to treason.

Might Edward R. Murrow’s support to those attacked by Senator Eugene McCarthy’s be equated to providing “material support” to FTOs?

McCarthy operated in a Cold War milieu that allowed him to confound dissension with disloyalty, subversion, and treason. While McCarthy’s behavior was abhorrent, the greater tragedy was that he was lauded by a large segment of the population and was not censured by the Senate earlier.

Just the same ….shouldn’t we consider McCarthy’s battle space:

World War II had ended and the Cold War had begun. The U.S.S.R. occupied Eastern Europe and Communists had seized power in China. The Fuchs, Hiss, and Rosenberg espionage cases alerted America to threats from within. In 1949, one of America’s greatest fears was realized; the Soviets had acquired the atomic bomb garnered in large part from information plundered from America with the aid of American communists.

Fast-forward to September 11, 2001 ….terrorism seemingly everywhere and near every day.

Richard A. Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency (Inalienable Rights) argues that we face an “unprecedented emergency” and that we must balance, albeit narrowly, our constitutional rights with national security interests. Posner recognizes the current security situation to be unique and has supported governmental interception of all communications, secret and military trials, and the use of coercive interrogation techniques in unique circumstances.

Is Posner simply living in the real world where governments dutifully attend to the needs of their citizenry in consonance with prevailing conditions?

Inevitably, other crises will arise and the government will take what it deems to be “appropriate action.” Perhaps now would be good time to decide what “appropriate action” is.

I return to my cognitive dissonance and a dialogue that must continue.

Comment by William R. Cumming

June 30, 2010 @ 12:18 am

I find it interesting that despite the liklihood that SCOTUS will be dominated by federalism and national security issues the next two decades no questions get asked any recent candidates about either for all coming aboard or trying to come aboard since 9/11/01!
Given that lack of priority in questioning can we assume that the Judiciary Committee of the Senate, the full-Senate, the various administrations involved and the MSM really don’t have POSNER’s world view but instead are more concerned about other issues as threats to our democracy (Republic)?

Personally I see all the 5-4 votes in SCOTUS as a direct threat to our democracy. Why? If you cannot must more votes for your arguments perhaps it is time to leave the bench and let others try to do so. A graph of unanimous opinions by SCOTUS since inception might be revealing as to why the dialectic of our democracy has declined into trivial pursuit. Time will tell of course.

Comment by Joe Citizen

June 30, 2010 @ 6:06 am

Pls continue this discussion seeking others who are avid readers and supporters of this very informative blog and such indepth and truly excellent articles prompting such valued discussions – these shared perspectives are indeed very worthy – thank you.

Our beloved Republic in this 21st century faces complexities in domestic as well as international issues as well as internal and international threat, therefore it is my opinion that HLSwatch be distributed among our Congressional members for its value given so much depth in context and participant response is a must read for all “entrusted” and patriots!

Joe Citizen
Main Street USA
aka
chris.tingus@gmail.com

Comment by William R. Cumming

June 30, 2010 @ 6:06 am

I probably should have noted that the notorius “Palmer” raids named after AG Palmer in the Wilson Administration and targeting supposed anarchists and syndicalists but sweeping in with mass arrests of immigrants many innocents were ended largely through the efforts of a number of Harvard Law Professors and American lawyers. These included SCOTUS members later on Oliver Wendell Holmes and Justices Brandeis and others. What was not repaired was the almost 1/2 million files developed on Americans by J. Edgar Hoover who rose to fame in part based on these raids as the Director of Intelligence of the FBI. If there is a function clung to with not just bureacratic hands but fingernails it is the FBI role in screening new appointeees and nominees for many Executive Branch offices. Oddly new members of Congress whatever their background and of course files are kept on them also by the Bureau a Secret Level clearance.

The origins of classification of documents and personnel security are yet to be published by a comprehensive study by academics or disinterested outsiders. The bottom line is that Executive Order 10450 is signed onto by President after President despite its generation of security problems and in particular the the issues raised by domestic INTEL and terrorism. Remember the FBI still collects all information it can, good and derogatory in its files, but what is never explained publically is its adjudication. The National Security State has as its primary building block SECRECY [also the title of an excellent book written by deceased Senatory Daniel Patrick Moniyhan].

A single definition of “terrorism” should be applied throughout the US Criminal Code and made applicable to the STATES. That specifically is Title 18 of the US Code although oddly some criminal provisions exist in other Titles.

Comment by John Comiskey

June 30, 2010 @ 10:47 am

Why we Talk to terrorists.

http://www.nytimes.com/2010/06/30/opinion/30atran.html

Comment by Christopher Bellavita

June 30, 2010 @ 5:02 pm

From the article Comiskey cited:

Why We Talk to Terrorists
By SCOTT ATRAN and ROBERT AXELROD
Published: June 29, 2010

NOT all groups that the United States government classifies as terrorist organizations are equally bad or dangerous, and not all information conveyed to them that is based on political, academic or scientific expertise risks harming our national security. Unfortunately, the Supreme Court, which last week upheld a law banning the provision of “material support” to foreign terrorist groups, doesn’t seem to consider those facts relevant.

Many groups that were once widely considered terrorist organizations, including some that were on the State Department’s official list, have become our partners in pursuing peace and furthering democracy.

The African National Congress is now the democratically elected ruling party in South Africa, and of course Nelson Mandela is widely considered a great man of peace. The Provisional Irish Republican Army now preaches nonviolence and its longtime leader, Martin McGuinness, is Northern Ireland’s first deputy minister. Mahmoud Abbas and the Palestine Liberation Organization have become central players in Middle East peace negotiations….

Comment by Lois Shuck

March 30, 2012 @ 12:51 pm

In regards to the New Black Panthers. They are supposed to have placed a bounty on a man’s head. Is that being dealt with?
I actually have no idea who is culpable in the matter of Zimmerman and Martin, just these incite full statements are getting out of hand.
What if anything is being done about them?

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March 30, 2012 @ 12:52 pm

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August 5, 2012 @ 11:35 am

[...] is quite clear on what groups and individuals are officially considered terrorists internationally, this specificity is lost in the domestic context. The Foreign Terrorist Organizations (FTO) List, State-Sponsors of Terrorism list, Specially [...]

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