This article first appeared at Just Security.
Since the 9/11 attacks, counterterrorism has been the top priority of the Department of Justice (DOJ). Its initial single-minded focus on international terrorism has shifted in recent years to encompass domestic terrorism. Over the last decade, the department has asked Congress for more than $500 million to pay for terrorism-related prosecutions. These funds support more than 300 positions in the U.S. Attorneys Offices around the country, which claim to have won more than 2,000 domestic terrorism-related convictions in this time. Unfortunately, data released by DOJ in litigation that we brought some five years ago shows that these numbers are wildly inflated. As the United States struggles to come to grips with white supremacist violence, it is critical that policymakers and the public understand the actual extent, nature, and efficacy of these prosecutions.
For years DOJ has withheld the information necessary to see behind the domestic terrorism convictions it claims. Data on prosecutions from U.S. Attorneys is compiled in a government database, which includes several categories relevant to domestic terrorism, but identifying information (e.g., docket numbers) about the cases is redacted. Seeking to understand which political leanings were targeted in domestic terrorism cases and the type of conduct that rose to the level of terrorism in the eyes of prosecutors, we filed a Freedom of Information Act request for this data. When our request was denied, we sued the department to obtain identifying information about the roughly 4,000 cases that were tagged as relating to terrorism for the period from January 2006 to September 2020.
Initially, we won the right to see this information for cases that had resulted in convictions. District court Judge Randolph Moss found that information about “how and when the Department categorizes cases as terrorism cases and following trends relating to these prosecutions” would inform policy debates on immigration, national security, and prosecutorial priorities. This benefit, the judge ruled, overrode defendants’ interest in keeping their criminal convictions private. DOJ re-opened the matter, arguing that while an individual’s criminal conviction was no secret, the fact that they were suspected of engaging in terrorist activity was not necessarily public, and the stigma associated with such an allegation raised privacy stakes.
Judge Moss agreed. He ordered the department to review case files tagged as terrorism and release identifying information on those that had been publicly linked to terrorism or met the statutory definition of domestic terrorism. The department has thus far reviewed some 1,140 dockets. According to its monthly releases of docket numbers, in only 71 (roughly 6 percent) did the DOJ make a clear connection to domestic terrorism (e.g., in charging documents, sentencing memoranda, requests for sentence enhancement, and press releases). Information on the vast number withheld is sparse. It appears that over a quarter of the cases were included in the National Security Division’s list of international terrorism cases. Of the remaining cases, around 70 percent began as terrorism investigations but may have turned into something else, although the DOJ continued classifying them as terrorism related. The DOJ claimed there was insufficient information about 100 or so outstanding cases to come to any conclusion.
Surprised by the low number of cases that met the criteria for disclosure, we asked Judge Moss to conduct an in-camera review of documents relating to a sample tranche of 20 cases withheld by the DOJ. He found that 19 out of 20 cases he reviewed did not involve terrorism but were mostly personal disputes, concluding that the government’s representation of its counterterrorism efforts is “vastly overstated.”
While some inaccuracies and changes in direction are to be expected, this level of error is striking, especially since the DOJ claims the full number as terrorism-related in its annual statistical reports. Unfortunately, it is a problem of long standing. The need to update the government’s terrorism databases to reflect changes was first flagged in 2003 by the Government Accountability Office and by the DOJ inspector general in 2007 and again in 2012 and 2013. The last report recommended that the department implement a system for promptly re-coding any case that “began as a terrorism or national security investigation” but turned out to be a different type of case. But extreme inaccuracies in the government’s data persist.
Congress has repeatedly sought information from DOJ and the Department of Homeland Security on their domestic terrorism efforts, most recently by adding an extensive reporting requirement in the 2020 National Defense Authorization Act (NDAA). But recent reports from the GAO and from the Senate Committee on Homeland Security and Governmental Affairs found that the agencies have failed to fulfill this mandate. Instead of providing reliable and comprehensive information, the agencies’ NDAA report offered information on handpicked cases. For example, while the FBI’s open domestic terrorism investigations have more than quadrupled to 9,049 since 2013, the list of “FBI-Designated Significant Domestic Terrorism Incidents” appended to the 2021 report contains only 85 examples of cases in the period 2015–2019, of which almost 90 percent involve militias, sovereign citizens and other anti-government groups, and attacks motivated by racial animus. Only seven are tagged as “Animal Rights/Environmental Extremism.”
This contrasts with the historical record exposed in our litigation. Out of the 71 domestic terrorism cases for which the department has released information, under 40 percent involve the types of actors and ideologies that make up the bulk of the FBI’s list, while most of the remaining cases involve environmental activism. While differences between different data sets prevent an apples-to-apples comparison, these discrepancies show how easily incomplete information can create an impression that may not be supported by more fulsome reporting.
This level of obfuscation and confusion undermines confidence in the Justice Department’s domestic terrorism efforts. As Judge Moss put it, “many millions of dollars…are being appropriated to fight this thing, whatever it might be. It would really be good to know what the Government thinks it is.” We agree.
Faiza Patel is senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.
Charles Kurzman is a professor of sociology and co-director of the Center for Middle East and Islamic Studies at the University of North Carolina at Chapel Hill.