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.
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.
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.