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Justice Department Must Reveal the Real Scope of Domestic Terrorism

The DOJ has failed in its legal duty to report complete and accurate data on its domestic terrorism investigations to Congress.

The Department of Justice has been publishing incomplete and conflicting data on domestic terrorism, thwarting effective policymaking and accountability on an issue it claims to prioritize. In December, the Brennan Center sent a letter to the department urging it to augment its data collection methods to ensure more accurate reporting in the future.

In testimony before the Senate Judiciary Committee that month, FBI Director Christopher Wray repeated what has become a Justice Department mantra since the al-Qaeda terror attacks on September 11, 2001: “Protecting the American people from terrorism remains the FBI’s number one priority.” Certainly, international terrorism remains a danger. But Congress and the American public have increasingly raised concerns about a seemingly deficient response to white supremacist and far-right militant violence, pointing to a series of white supremacist mass killings in Charleston, South Carolina; El Paso, Texas; Pittsburgh, Pennsylvania; and Buffalo, New York, as well as white supremacist riots in Charlottesville, Virginia, and the January 6, 2021, attack on the U.S. Capitol.

Though the Biden administration in 2021 described domestic terrorism as “the most urgent terrorism threat the United States faces today,” the DOJ and the FBI have failed to provide accurate data regarding their use of counterterrorism resources to ensure they are targeting the greatest threats. In his testimony, for instance, Wray indicated that though the bureau has doubled the number of domestic terrorism investigations since 2020, primarily against groups the FBI categorizes as “racially motivated violent extremists” and “anti-government or anti-authority violent extremists,” it still considers “homegrown violent extremists” — typically Muslim Americans it treats as foreign terrorists — as the greater threat.

In a report submitted to Congress last June, the FBI said it did not know how many domestic terrorism incidents occur in the United States each year, nor the total number of fatalities resulting from these attacks. The FBI further indicated it could not detail the number or type of successful domestic terrorism prosecutions that result from its investigations, producing instead a selective list of examples.

One might think that keeping complete and accurate data about domestic terrorism incidents, particularly ones resulting in fatalities, would be essential to assessing threats and ensuring that resources are distributed properly to address the most serious and deadly perpetrators. Tracking domestic terrorism prosecutions would ensure that investigative resources are properly targeted at genuine threats. But it has proven surprisingly difficult to detail the scope of racist violence in the United States and the Justice Department’s use of domestic terrorism resources.

Part of the problem is that the DOJ investigates white supremacist violence and other racist violence under several different programs. When a white supremacist murders someone, the DOJ might consider it an act of domestic terrorism that would be investigated by the FBI. If the victim is a member of a protected group, the department could treat it as a hate crime and assign it to the civil rights division. Or it could be considered a gang crime, which would be investigated by a federal violent crime task force or other federal law enforcement agencies. And in most cases, the DOJ defers the investigation of hate crimes and violent crimes to state and local law enforcement agencies, many of which don’t report hate crime data to the federal government.

In December 2019, Congress passed the 2020 National Defense Authorization Act, which requires the FBI and the Department of Homeland Security to provide annual reports detailing the number of completed or attempted domestic terrorism incidents, the number of investigations in each of the FBI’s domestic terrorism categories, and the number of federal criminal charges connected to domestic terrorism. The June 2023 report mentioned above was the third annual report submitted to Congress. In 2022, Sen. Gary Peters (D-MI), chair of the Senate Homeland Security and Governmental Affairs Committee, issued a report finding that the FBI had “fail[ed] to provide the majority of the required data on domestic terrorism.” This data is necessary for Congress to ensure resources provided to the FBI to address domestic terrorism are focused on investigating deadly acts of domestic terrorism rather than tracking nonviolent protesters or finding rescued piglets.

Terrorism prosecution statistics produced by the DOJ have been equally inaccurate, as documented in Justice Department Office of Inspector General audits going back to 2007 and 2013. The department has attempted to address these discrepancies. A March 2021 memorandum from then-Acting Deputy Attorney General John Carlin to all federal prosecutors established a protocol to ensure “appropriate coordination and consistency” in identifying and tracking domestic terrorism incidents. The memorandum required federal prosecutors to designate criminal investigations or cases that involve any suspected domestic violent extremism or bear a material nexus to it as “DVE related” and to report such cases to the Justice Department’s National Security Division. The Carlin memorandum’s process for identifying and reporting matters related to domestic violent extremism was subsequently adopted and clarified in the Justice Manual, DOJ’s rulebook for federal prosecutors, which provided detailed instructions for identifying these cases and reporting them to the National Security Division’s Counterterrorism Center.

The Justice Department has not yet published data regarding these “DVE-related” cases, nor does it appear to have used this data to better inform the FBI’s mandated reporting. Additionally, a June 2023 audit conducted by the DOJ inspector general criticized the department’s implementation of the Justice Manual updates. The audit report stated that not all of the department’s law enforcement components have the “same understanding as the FBI and National Security Division of what constitutes a DVE nexus” and identified an ongoing need for consistent reporting. The Brennan Center concurs.

We recognize that it may not always be easy to determine whether an incident is an act of domestic terrorism, a hate crime, or a hate crime with a nexus to domestic terrorism until an investigation has been conducted. But these are determinations that FBI field offices and U.S. attorneys’ offices are required to make on a regular basis when deciding when and how to deploy their domestic terrorism, civil rights, and violent crime resources. The DOJ should have a clear and transparent process that guides these decisions so there is uniformity across the country and accountability in how the resources are categorized and utilized.

For instance, the FBI has a process for receiving complaints and processing source reports that document whether and when they result in opening assessments, preliminary investigations, and full investigations, or are declined for prosecution or referred to another agency. FBI agents track their work on these investigations by case caption, detailing the classification and category, and documenting statistical accomplishments pertaining to those investigations as they proceed to prosecution or declination. As such, the bureau should be able to easily produce the domestic terrorism incident and investigation data Congress required in the National Defense Authorization Act of 2020. Likewise, U.S. attorneys’ offices maintain records of the complaints, referrals, declination decisions, indictments, and convictions obtained by their prosecutors. While obviously not every case opened as a domestic terrorism investigation will result in a domestic terrorism prosecution, the DOJ should be able to track what happens in each of these cases, whether they are deferred or declined, and how many domestic terrorism, civil rights, or violent crime resources are devoted in each investigative case and category.

Congress needs the data it required in the 2020 defense act to ensure the DOJ is using its domestic terrorism resources appropriately and effectively. The department should not just ignore this legal requirement or produce inaccurate data in response. We urge the DOJ to leverage all its available data sources to ensure the domestic terrorism information the FBI and U.S. attorneys’ offices report to Congress is as complete and accurate as possible and, if necessary, to create additional tracking mechanisms to allow the department to fulfill its legal obligations. In the interim, we request that the DOJ publicly release data regarding the number and type of investigations it has labeled “DVE related” as required by the March 2021 Carlin memo and the Justice Manual.