[House Report 117-292]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-292
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
DOMESTIC TERRORISM PREVENTION ACT OF 2022
_______
April 21, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 350]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 350) to authorize dedicated domestic terrorism
offices within the Department of Homeland Security, the
Department of Justice, and the Federal Bureau of Investigation
to analyze and monitor domestic terrorist activity and require
the Federal Government to take steps to prevent domestic
terrorism, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 6
Hearings......................................................... 17
Committee Consideration.......................................... 18
Committee Votes.................................................. 18
Committee Oversight Findings..................................... 30
Committee Estimate of Budgetary Effects.......................... 30
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 30
Duplication of Federal Programs.................................. 30
Performance Goals and Objectives................................. 30
Advisory on Earmarks............................................. 30
Section-by-Section Analysis...................................... 30
Changes in Existing Law Made by the Bill, as Reported............ 33
Committee Correspondence......................................... 37
Minority Views................................................... 39
The amendment is as follows:
Strike all that follows after the enacting clause and
insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Domestic Terrorism Prevention Act of
2022''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``Director'' means the Director of the Federal
Bureau of Investigation;
(2) the term ``domestic terrorism'' has the meaning given the
term in section 2331 of title 18, United States Code, except
that it does not include acts perpetrated by individuals
associated with or inspired by--
(A) a foreign person or organization designated as a
foreign terrorist organization under section 219 of the
Immigration and Nationality Act (8 U.S.C. 1189);
(B) an individual or organization designated under
Executive Order 13224 (50 U.S.C. 1701 note); or
(C) a state sponsor of terrorism as determined by the
Secretary of State under section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. 4605), section 40
of the Arms Export Control Act (22 U.S.C. 2780), or
section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371);
(3) the term ``Domestic Terrorism Executive Committee'' means
the committee within the Department of Justice tasked with
assessing and sharing information about ongoing domestic
terrorism threats;
(4) the term ``hate crime incident'' means an act described
in section 241, 245, 247, or 249 of title 18, United States
Code, or in section 901 of the Civil Rights Act of 1968 (42
U.S.C. 3631);
(5) the term ``Secretary'' means the Secretary of Homeland
Security; and
(6) the term ``uniformed services'' has the meaning given the
term in section 101(a) of title 10, United States Code.
SEC. 3. OFFICES TO COMBAT DOMESTIC TERRORISM.
(a) Authorization of Offices to Monitor, Analyze, Investigate, and
Prosecute Domestic Terrorism.--
(1) Domestic terrorism unit.--There is authorized a Domestic
Terrorism Unit in the Office of Intelligence and Analysis of
the Department of Homeland Security, which shall be responsible
for monitoring and analyzing domestic terrorism activity.
(2) Domestic terrorism office.--There is authorized a
Domestic Terrorism Office in the Counterterrorism Section of
the National Security Division of the Department of Justice--
(A) which shall be responsible for investigating and
prosecuting incidents of domestic terrorism;
(B) which shall be headed by the Domestic Terrorism
Counsel; and
(C) which shall coordinate with the Civil Rights
Division on domestic terrorism matters that may also be
hate crime incidents.
(3) Domestic terrorism section of the fbi.--There is
authorized a Domestic Terrorism Section within the
Counterterrorism Division of the Federal Bureau of
Investigation, which shall be responsible for investigating
domestic terrorism activity.
(4) Staffing.--The Secretary, the Attorney General, and the
Director shall each ensure that each office authorized under
this section in their respective agencies shall--
(A) have an adequate number of employees to perform
the required duties;
(B) have not less than one employee dedicated to
ensuring compliance with civil rights and civil
liberties laws and regulations; and
(C) require that all employees undergo annual anti-
bias training.
(5) Sunset.--The offices authorized under this subsection
shall terminate on the date that is 10 years after the date of
enactment of this Act.
(b) Joint Report on Domestic Terrorism.--
(1) Biannual report required.--Not later than 180 days after
the date of enactment of this Act, and each 6 months thereafter
for the 10-year period beginning on the date of enactment of
this Act, the Secretary of Homeland Security, the Attorney
General, and the Director of the Federal Bureau of
Investigation shall submit a joint report authored by the
domestic terrorism offices authorized under paragraphs (1),
(2), and (3) of subsection (a) to--
(A) the Committee on the Judiciary, the Committee on
Homeland Security and Governmental Affairs, and the
Select Committee on Intelligence of the Senate; and
(B) the Committee on the Judiciary, the Committee on
Homeland Security, and the Permanent Select Committee
on Intelligence of the House of Representatives.
(2) Contents.--Each report submitted under paragraph (1)
shall include--
(A) an assessment of the domestic terrorism threat
posed by White supremacists and neo-Nazis, including
White supremacist and neo-Nazi infiltration of Federal,
State, and local law enforcement agencies and the
uniformed services; and
(B)(i) in the first report, an analysis of incidents
or attempted incidents of domestic terrorism that have
occurred in the United States since January 1, 2012,
including any White-supremacist-related incidents or
attempted incidents; and
(ii) in each subsequent report, an analysis of
incidents or attempted incidents of domestic terrorism
that occurred in the United States during the preceding
6 months, including any White-supremacist-related
incidents or attempted incidents; and
(C) a quantitative analysis of domestic terrorism for
the preceding 6 months, including--
(i) the number of--
(I) domestic terrorism related
assessments initiated by the Federal
Bureau of Investigation, including the
number of assessments from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism;
(II) domestic terrorism-related
preliminary investigations initiated by
the Federal Bureau of Investigation,
including the number of preliminary
investigations from each classification
and subcategory, with a specific
classification or subcategory for those
related to White supremacism, and how
many preliminary investigations
resulted from assessments;
(III) domestic terrorism-related full
investigations initiated by the Federal
Bureau of Investigation, including the
number of full investigations from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism,
and how many full investigations
resulted from preliminary
investigations and assessments;
(IV) domestic terrorism-related
incidents, including the number of
incidents from each classification and
subcategory, with a specific
classification or subcategory for those
related to White supremacism, the
number of deaths and injuries resulting
from each incident, and a detailed
explanation of each incident;
(V) Federal domestic terrorism-
related arrests, including the number
of arrests from each classification and
subcategory, with a specific
classification or subcategory for those
related to White supremacism, and a
detailed explanation of each arrest;
(VI) Federal domestic terrorism-
related indictments, including the
number of indictments from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism,
and a detailed explanation of each
indictment;
(VII) Federal domestic terrorism-
related prosecutions, including the
number of incidents from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism,
and a detailed explanation of each
prosecution;
(VIII) Federal domestic terrorism-
related convictions, including the
number of convictions from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism,
and a detailed explanation of each
conviction; and
(IX) Federal domestic terrorism-
related weapons recoveries, including
the number of each type of weapon and
the number of weapons from each
classification and subcategory, with a
specific classification or subcategory
for those related to White supremacism;
and
(ii) an explanation of each individual case
that progressed through more than 1 of the
stages described under clause (i)--
(I) including the specific
classification or subcategory for each
case; and
(II) not including personally
identifiable information not otherwise
releasable to the public.
(3) Hate crimes.--In compiling a joint report under this
subsection, the domestic terrorism offices authorized under
paragraphs (1), (2), and (3) of subsection (a) shall, in
consultation with the Civil Rights Division of the Department
of Justice and the Civil Rights Unit of the Federal Bureau of
Investigation, review each Federal hate crime charge and
conviction during the preceding 6 months to determine whether
the incident also constitutes a domestic terrorism-related
incident.
(4) Classification and public release.--Each report submitted
under paragraph (1) shall be--
(A) unclassified, to the greatest extent possible,
with a classified annex only if necessary; and
(B) in the case of the unclassified portion of the
report, posted on the public websites of the Department
of Homeland Security, the Department of Justice, and
the Federal Bureau of Investigation.
(5) Nonduplication.--If two or more provisions of this
subsection or any other law impose requirements on an agency to
report or analyze information on domestic terrorism that are
substantially similar, the agency may produce one report that
complies with each such requirement as fully as possible.
(c) Domestic Terrorism Executive Committee.--There is authorized a
Domestic Terrorism Executive Committee, which shall meet on a regular
basis, and not less regularly than 4 times each year, to coordinate
with United States Attorneys and other key public safety officials
across the country to promote information sharing and ensure an
effective, responsive, and organized joint effort to combat domestic
terrorism.
(d) Focus on Greatest Threats.--The domestic terrorism offices
authorized under paragraphs (1), (2), and (3) of subsection (a) shall
focus their limited resources on the most significant domestic
terrorism threats, as determined by the number of domestic terrorism-
related incidents from each category and subclassification in the joint
report for the preceding 6 months required under subsection (b).
SEC. 4. TRAINING TO COMBAT DOMESTIC TERRORISM.
(a) Required Training and Resources.--The Secretary, the Attorney
General, and the Director shall review the anti-terrorism training and
resource programs of their respective agencies that are provided to
Federal, State, local, and Tribal law enforcement agencies, including
the State and Local Anti-Terrorism Program that is funded by the Bureau
of Justice Assistance of the Department of Justice, and ensure that
such programs include training and resources to assist State, local,
and Tribal law enforcement agencies in understanding, detecting,
deterring, and investigating acts of domestic terrorism and White
supremacist and neo-Nazi infiltration of law enforcement and
corrections agencies. The Attorney General shall make training
available to Department prosecutors and to Assistant United States
Attorneys on countering and prosecuting domestic terrorism. The
domestic-terrorism training shall focus on the most significant
domestic terrorism threats, as determined by the quantitative analysis
in the joint report required under section 3(b).
(b) Requirement.--Any individual who provides domestic terrorism
training required under this section shall have--
(1) expertise in domestic terrorism; and
(2) relevant academic, law enforcement, or other community-
based experience in matters related to domestic terrorism.
(c) Report.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act and twice each year thereafter, the
Secretary, the Attorney General, and the Director shall each
submit a biannual report to the committees of Congress
described in section 3(b)(1) on the domestic terrorism training
implemented by their respective agencies under this section,
which shall include copies of all training materials used and
the names and qualifications of the individuals who provide the
training.
(2) Classification and public release.--Each report submitted
under paragraph (1) shall--
(A) be unclassified, to the greatest extent possible,
with a classified annex only if necessary;
(B) in the case of the unclassified portion of each
report, be posted on the public website of the
Department of Homeland Security, the Department of
Justice, and the Federal Bureau of Investigation; and
(C) include the number of Federal incidents,
investigations, arrests, indictments, prosecutions, and
convictions with respect to a false report of domestic
terrorism or hate crime incident.
SEC. 5. INTERAGENCY TASK FORCE.
(a) In General.--Not later than 180 days after the date of enactment
of this Act, the Attorney General, the Director, the Secretary, and the
Secretary of Defense shall establish an interagency task force to
analyze and combat White supremacist and neo-Nazi infiltration of the
uniformed services and Federal law enforcement agencies.
(b) Report.--
(1) In general.--Not later than 1 year after the interagency
task force is established under subsection (a), the Attorney
General, the Secretary, and the Secretary of Defense shall
submit a joint report on the findings of the task force and the
response of the Attorney General, the Secretary, and the
Secretary of Defense to such findings, to--
(A) the Committee on the Judiciary of the Senate;
(B) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(C) the Select Committee on Intelligence of the
Senate;
(D) the Committee on Armed Services of the Senate;
(E) the Committee on the Judiciary of the House of
Representatives;
(F) the Committee on Homeland Security of the House
of Representatives;
(G) the Permanent Select Committee on Intelligence of
the House of Representatives; and
(H) the Committee on Armed Services of the House of
Representatives.
(2) Classification and public release.--The report submitted
under paragraph (1) shall be--
(A) submitted in unclassified form, to the greatest
extent possible, with a classified annex only if
necessary; and
(B) in the case of the unclassified portion of the
report, posted on the public website of the Department
of Defense, the Department of Homeland Security, the
Department of Justice, and the Federal Bureau of
Investigation.
SEC. 6. FEDERAL SUPPORT FOR ADDRESSING HATE CRIME INCIDENTS WITH A
NEXUS TO DOMESTIC TERRORISM.
(a) Community Relations Service.--The Community Relations Service of
the Department of Justice, authorized under section 1001(a) of the
Civil Rights Act of 1964 (42 U.S.C. 2000g), may offer the support of
the Service to communities where the Department of Justice has brought
charges in a hate crime incident that has a nexus to domestic
terrorism.
(b) Federal Bureau of Investigation.--Section 249 of title 18, United
States Code, is amended by adding at the end the following:
``(f) Federal Bureau of Investigation.--The Attorney General, acting
through the Director of the Federal Bureau of Investigation, shall
assign a special agent or hate crimes liaison to each field office of
the Federal Bureau of Investigation to investigate hate crimes
incidents with a nexus to domestic terrorism (as such term is defined
in section 2 of the Domestic Terrorism Prevention Act of 2020).''.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Department of Justice,
the Federal Bureau of Investigation, the Department of Homeland
Security, and the Department of Defense such sums as may be necessary
to carry out this Act.
Purpose and Summary
Federal law enforcement agencies have reported that
domestic violent extremists pose a steady and evolving threat
of violence to our communities and especially to minority
institutions. As threats and attacks have moved from one
community to the next, the underlying drivers for domestic
violent extremism--anti-government sentiment, racism, and anti-
Semitism--have remained constant.\1\ H.R. 350, the ``Domestic
Terrorism Prevention Act of 2022'' (DTPA), authorizes the
creation of three offices, one each within the Department of
Homeland Security (DHS), the Department of Justice (DOJ), and
the Federal Bureau of Investigation (FBI), to monitor,
investigate and prosecute cases of domestic terrorism. The
newly created offices would provide joint biannual reports to
Congress assessing the state of domestic terrorism threats,
with a specific focus on white supremacists. In preparing the
reports, the offices would review hate crime incidents to
determine if those incidents also constituted domestic
terrorism. Based on the data collected, DTPA requires the newly
created offices to focus their resources on the most
significant threats, as described in detail to Congress in the
joint biannual report.
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\1\See Confronting the Rise in Anti-Semitic Domestic Terrorism,
Statement Before the House Committee on Homeland Security, Subcommittee
on Intelligence and Counterterrorism, 116th Cong. (2019) (statement of
Jill Sanborn) https://www.fbi.gov/news/testimony/confronting-the-rise-
in-anti-semitic-domestic-terrorism.
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DTPA also codifies the Domestic Terrorism Executive
Committee, which would coordinate with United States Attorneys
and other public safety officials to promote information
sharing and ensure an effective, responsive, and organized
joint effort to combat domestic terrorism. The legislation
requires DOJ, FBI, and DHS to provide training and resources to
assist state, local, and tribal law enforcement agencies in
understanding, detecting, deterring, and investigating acts of
domestic terrorism and white supremacy. Finally, DTPA directs
DHS, DOJ, FBI, and the Department of Defense (DoD) to establish
an interagency task force to combat white supremacist
infiltration of the uniformed services and federal law
enforcement.
Background and Need for the Legislation
I. HATE CRIME & DOMESTIC TERRORISM STATISTICS
Attacks on minority institutions and individuals continue
to pose an alarming threat to communities across the country.
In 2020 (the most recent year for which data is available), the
FBI Uniform Crime Reporting Program recorded 8,263 hate crime
incidents involving 11,129 offenses.\2\ Of these, 62% were
motivated by racial or ethnic bias, 20% were motivated by bias
against a person's sexual orientation, 13% were motivated by
the victim's religion, 3% were motivated by gender identity, 1%
were motivated by disability, and 1% were motivated by
gender.\3\ Incidents motivated by race, ethnicity, or ancestry
increased by more than 30% compared to 2019, comprising over
1,200 more such incidents in 2020 than 2019.\4\ Similarly, an
analysis by the Center for Strategic and International Studies
showed domestic terrorism in 2020 was at the highest level of
any year the organization has analyzed, dating back to 1994.\5\
According to CSIS, since 2015, right-wing extremists have been
involved in 267 plots or completed attacks and 91
fatalities.\6\ Just under half of these fatalities were in
connection with an attack that involved white supremacy.\7\
Domestic terrorism has touched numerous communities in recent
years, and victims have included people of many ethnicities,
faiths, sexual orientations, gender identities, and immigration
statuses.\8\ Communities across the country have suffered the
fear and loss of these attacks and these harms are likely to
continue if left unaddressed.
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\2\FBI, Dep't of Justice, 2020 Hate Crimes Statistics, https://
www.justice.gov/hatecrimes/hate-crime-statistics.
\3\Id.
\4\Id.
\5\Robert O'Harrow Jr., Andrew Ba Tran and Derek Hawkins, The rise
of domestic extremism in America, Wash. Post (Apr. 12, 2021) https://
www.washingtonpost.com/investigations/interactive/2021/domestic-
terrorism-data/.
\6\Id.
\7\Id.
\8\Id.
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II. HISTORY AND DRIVERS OF DOMESTIC VIOLENT EXTREMISM
From its earliest days, this Nation has struggled with
questions of racial equality. As ratified by the states, the
Constitution contained three provisions--the three-fifths rule,
the fugitive slave provision, and limits on the prohibition of
the slave trade--which directly addressed slavery and supported
the continued bondage of African Americans.\9\ The post-Civil
War Reconstruction Amendments extended civil and legal
protections to formerly enslaved people but fell well short of
providing equality for those recently freed. The legal changes
ushered in after the Civil War did little to change the
cultural and economic limitations that permeated American
culture and led to a backlash by former slave patrol and
Confederate soldiers who aimed to reestablish white ruling
authority.\10\ Founded only months after the end of the Civil
War, the Ku Klux Klan adopted a creed of white supremacy, with
local chapters terrorizing, murdering, and oppressing recently
freed slaves. After Congress ended Reconstruction, southern
state and local governments took back local control from
governments supported by federal occupying troops and soon
enacted ``Jim Crow'' laws that legalized discriminatory
policies, entrenching white supremacy into law. Shortly
thereafter, de jure segregation received the imprimatur of the
Supreme Court with the decision in Plessy v. Ferguson in
1886.\11\
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\9\See U.S. Const. art. I, Sec. 2, cl. 3 repealed by U.S. Const.
amend. XIV, Sec. 2 (providing that slaves counted as 3/5 persons); U.S.
Const. art. I, Sec. 9, cl. 1, repealed by U.S. Const. amend. XIII,
Sec. 1 (providing no power to ban slavery); U.S. Const. art. IV,
Sec. 2, repealed by U.S. Const. amend. XIII (providing that free states
could not protect slaves); U.S. Const. art. V (providing no
Constitutional amendment be permitted to ban slavery until 1808).
\10\Southern Poverty Law Center, Ku Klux Klan: A History of Racism
(Feb. 28, 2011), https://www.splcenter.org/20110228/ku-klux-klan-
history-racism.
\11\See Plessy v. Ferguson, 163 U.S. 537 (1896).
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During this same period, there were efforts to vilify
Chinese immigrants who were an instrumental part of the
workforce in the American west, especially for railroad
construction, but began to be viewed as labor competition for
white workers and blamed for depressed wages in a slowed post-
Civil War economy.\12\ The animosity was not limited to
economic arguments. Anti-Chinese advocates argued that
excluding Chinese immigration was necessary to maintain moral
and cultural standards, and even that they were a threat to
America's racial composition.\13\ This anti-immigrant sentiment
was codified in discriminatory government action in a series of
treaties and the Chinese Exclusion Act of 1882.\14\ The Act was
not repealed until 1943, with the passage of the Magnuson Act,
and served as a precursor to quota systems for immigrants of
other nationalities.\15\
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\12\State Dep't, Office of the Historian, Chinese Immigration and
the Chinese Exclusion Acts, https://history.state.gov/milestones/1866-
1898/chinese-immigration (accessed Feb. 11, 2022).
\13\Id.
\14\Id.
\15\Yuning Wu, Chinese Exclusion Act, Britannica, https://
www.britannica.com/topic/Chinese-Exclusion-Act (accessed Fe. 11, 2022).
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Immigration from southern and eastern Europe further fueled
the second incarnation of the Ku Klux Klan. In the 1920s, the
Ku Klux Klan reemerged with the same anti-Black message that
defined its previous incarnation and added anti-Jewish and
anti-Catholic messages to its hateful rhetoric. Through the
1920s and 1930s, the Ku Klux Klan expanded its political reach,
electing members to high office and pushing for the enactment
of discriminatory laws. All the while, elements of the Klan
continued to harass and murder African Americans in the
southern and border states. According to the Equal Justice
Initiative (EJI), over 4,084 racially motivated lynchings
occurred in twelve Southern states between 1887 (the end of
Reconstruction) and 1950.\16\ EJI has also documented more than
300 racially motivated lynchings in other states during the
same period.\17\
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\16\See Equal Justice Initiative, Lynching in America: Confronting
the Legacy of Racial Terror, https://lynchinginamerica.eji.org/report/
(last visited Feb. 13, 2021).
\17\See id.
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In the shadow of the Civil Rights movement, the Ku Klux
Klan once again gained prominence in the 1960s. Klan members
harassed civil rights marchers and Freedom Riders, murdered
civil rights workers, and bombed Black churches. The most
infamous Klan bombing took place on September 15, 1963, when
four Klan-affiliated men planted dynamite beneath the steps of
the 16th Street Baptist Church, killing four young Black girls.
By 1975, the Ku Klux Klan had bombed almost 70 buildings in
Georgia and Alabama, burned 30 Black churches in Mississippi,
and murdered 10 people in Alabama.\18\
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\18\See Southern Poverty Law Center, Ku Klux Klan: A History of
Racism, supra n.2.
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More recent attacks echo this violent history. In the
1990s, dozens of Black churches throughout the South were
burned down in confirmed and suspected arsons, including four
churches within a six-mile radius in Louisiana that were set on
fire on the anniversary of the 1960 Greensboro, North Carolina
lunch counter sit-in.\19\ In 2008, within hours of the election
of President Barack Obama, a Black church still under
construction was set on fire in Springfield, Massachusetts.\20\
In 2015, a white supremacist killed nine African Americans
praying at Emanuel African Methodist Episcopal Church,
including Reverend and South Carolina State Senator Clementa
Pinckney.\21\ The church has been a center for Black organizing
since 1822, when Black churches were outlawed, and Rev. Dr.
Martin Luther King Jr. spoke at the church in 1962.\22\
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\19\Associated Press, List of Burned Black Churches, Wash. Post
(Jun. 20, 1996), https://www.washingtonpost.com/wp-srv/national/
longterm/churches/list.htm; Violent History: Attacks on Black Churches,
N.Y. Times (Jun. 18, 2015) https://www.nytimes.com/interactive/2015/06/
18/us/19blackchurch.html.
\20\Violent History: Attacks on Black Churches, N.Y. Times (Jun.
18, 2015) https://www.nytimes.com/interactive/2015/06/18/us/
19blackchurch.html.
\21\Nick Corasaniti, Richard Perez-Pena and Lizette Alvarez, Church
Massacre Suspect Held as Charleston Grieves, N.Y. Times (Jun. 18, 2015)
https://www.nytimes.com/2015/06/19/us/charleston-church-shooting.html.
\22\Jonathan Weisman, Killings Add Painful Page to Storied History
of Charleston Church, N.Y. Times (Jun. 18, 2015), https://
www.nytimes.com/2015/06/19/us/charleston-killings-evoke-history-of-
violence-against-black-churches.html.
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Like the Ku Klux Klan, modern white nationalist groups
espouse anti-government, anti-Semitic, and anti-immigrant
views, in addition to views of racial superiority. As a result,
many communities across the nation have faced horrific attacks.
In 2012, a white supremacist and former member of the Army
killed six people at a Sikh temple in Oak Creek, Wisconsin.\23\
(A seventh victim, a Sikh priest, Baba Punjab Singh, died from
complications from his injuries in 2020.)\24\ In 2018, a man
who had posted numerous anti-Semitic statements online entered
the Tree of Life Congregation in Pittsburgh, Pennsylvania and
killed 11 people, including a 97-year-old woman, during a
Saturday morning prayer service.\25\ It was the deadliest
attack on Jewish Americans in U.S. history.\26\ In 2019, a
shooter killed 23 people in El Paso, Texas in the largest
terrorist attack targeting Hispanics in modern U.S.
history.\27\ More than 700 anti-Muslim activities, from
violence to discriminatory legislative efforts, were counted
from 2012 to 2018.\28\ Dozens of incidents of vandalism or
violence have been directed at mosques.\29\ On January 15,
2022, a British national entered the Congregation Beth Israel
synagogue in Colleyville, Texas, and took four people
hostage.\30\
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\23\Erica Goode and Serge F. Kovaleski, Wisconsin Killer Fed and
Was Fueled by Hate-Driven Music, N.Y. Times (Aug. 6, 2012), https://
www.nytimes.com/2012/08/07/us/army-veteran-identified-as-suspect-in-
wisconsin-shooting.html?pagewanted=all.
\24\Sikh priest who was left partially paralyzed after 2012 Sikh
Temple shooting in Oak Creek has died, TMJ4 (Mar. 3 2020) https://
www.tmj4.com/news/local-news/sikh-priest-who-was-left-partially-
paralyzed-after-2012-sikh-temple-shooting-in-oak-creek-has-died.
\25\Avi Selk, Tim Craig, Shawn Boburg and Andrew Ba Tran, `They
showed his photo, and my stomach just dropped': Neighbors recall
synagogue massacre suspect as a loner, Wash. Post (Oct. 28, 2018)
https://www.washingtonpost.com/nation/2018/10/28/victims-expected-be-
named-after-killed-deadliest-attack-jews-us-history/.
\26\Id.
\27\Cedar Attansio, El Paso Walmart shooting victim dies, death
toll now 23, Seattle Times (Apr. 26, 2020), https://
www.seattletimes.com/business/el-paso-shooting-victim-dies-months-
later-death-toll-now-23/.
\28\New America, Anti-Muslim Activities in the United States 2012-
2018 (2019) https://www.newamerica.org/in-depth/anti-muslim-activity/.
\29\ACLU, Nationwide Anti-Mosque Activity (Jan. 2022), https://
www.aclu.org/issues/national-security/discriminatory-profiling/
nationwide-anti-mosque-activity.
\30\Giulia Heyward, Azi Paybarah & Eileen Sullivan, 11 Hours of
Fear, Negotiation and Finally, Relief, N.Y. Times (Jan 16, 2022),
https://www.nytimes.com/2022/01/16/us/malik-faisal-akram-texas-
synagogue-hostage.html?searchResultPosition=9.
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Recent attacks on historically Black colleges and
universities (HBCUs) have also revived and perpetuated a
history of identity-based intimidation. In February 2022, at
the start of Black History Month, more than a dozen HBCUs
across the country were subjected to bomb threats.\31\ Rahman
Johnson, who teaches at Edward Waters University in
Jacksonville, Florida, said the threats made him feel ``as
though I was back living in the time of my grandmother.''\32\
Indeed, these recent threats echo decades of attacks on HBCUs,
including two bombings at Florida A&M University in 1999;
eruptions of deadly violence in response to student protests at
South Carolina State College, North Carolina A&T, and Jackson
State College from 1968 70; and deadly racial violence in the
community around Clark College, now part of Clark Atlanta
University, in 1906.\33\
---------------------------------------------------------------------------
\31\Mike Jordan, HBCU bomb threats: `I shouldn't have to live in
fear when I'm going to get an education', The Guardian (Feb. 5, 2022),
https://www.theguardian.com/world/2022/feb/05/hbcu-bomb-threats-fear-
education-hate-crimes.
\32\Id.
\33\Clarissa Brooks, 8 HBCUs Received Bomb Threats for the Second
Time in 2022, Teen Vogue (Feb. 7, 2022) https://www.teenvogue.com/
story/hbcu-bomb-threats-feb-2022.
---------------------------------------------------------------------------
Recent attacks have also targeted civil rights protests. In
2017, nonviolent antiracist counter-protesters assembled in
response to the ``Unite the Right'' rally organized in
Charlottesville, Virginia by groups that espouse white
supremacist ideology.\34\ After local law enforcement declared
an unlawful assembly and worked to clear a park, a ``Unite the
Right'' attendee got in his car and drove into the crowd,
killing Heather Heyer and injuring 30 others.\35\ He was
convicted of federal hate crimes in the incident, which the FBI
also characterized as domestic terrorism.\36\
---------------------------------------------------------------------------
\34\Dep't of Justice, Ohio Man Sentenced to Life in Prison for
Federal Hate Crimes Related to August 2017 Car Attack at Rally in
Charlottesville, Virginia, (Jun. 28, 2019) https://www.justice.gov/opa/
pr/ohio-man-sentenced-life-prison-federal-hate-crimes-related-august-
2017-car-attack-rally.
\35\Id.
\36\Id.
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At a 2019 House hearing on ``Confronting the Rise of
Domestic Terrorism in the Homeland,'' an FBI official testified
regarding the increasing threat of domestic terrorism and the
mechanisms that the FBI and other agencies employ to combat
this issue. Michael McGarrity, Assistant Director for the
Counterterrorism Division of the FBI, stated that ``racially-
motivated violent extremists are responsible for the majority
of lethal attacks and fatalities perpetrated by domestic
terrorists since 2000.''\37\ FBI Director Christopher Wray has
repeatedly echoed the same sentiment. In his remarks to the
Senate Homeland Security Committee, Director Wray declared that
``2019 was the deadliest year for domestic extremist violence
since the Oklahoma City Bombing in 1995.''\38\ According to
Director Wray, the FBI arrested 107 individuals during fiscal
year 2019 in connection with domestic terrorism investigations,
which was ``close to the same number on the international
terrorism front.''\39\ However, Assistant Director McGarrity
also noted the disparity in resource allocation, testifying
that ``in the field [agents] that work domestic terrorism,
[comprise] about 20 percent, and we have about 80 percent
working international terrorism.''\40\
---------------------------------------------------------------------------
\37\Confronting the Rise of Domestic Terrorism in the Homeland
before the Comm. on Homeland Sec, 116th Cong. (2019) (statement of
Michael McGarrity, Assistant Director, Counterterrorism Division, FBI).
\38\Threats to the Homeland Before the S. Homeland Security & Gov.
Aff. Comm., 116th Cong. (2019) (statement of Christopher Wray, FBI
Director).
\39\Id.; prior to this testimony, FBI Assistant Director for
Counterterrorism Michael McGarrity testified before the Committee on
Homeland Security that the FBI was investigating 850 domestic terrorism
cases--and of those, about 40 percent involved racially motivated
extremism, mostly white supremacist extremism. Confronting the Rise of
Domestic Terrorism in the Homeland before the Comm. on Homeland Sec,
116th Cong. (2019) (statement of Michael McGarrity, FBI Assistant
Director), https://homeland.house.gov/activities/hearings/confronting-
the-rise-of-domestic-terrorism-in-the-homeland.
\40\Confronting the Rise of Domestic Terrorism in the Homeland
before the Comm. on Homeland Sec, 116th Cong. (May 2019) (response of
Michael McGarrity, Assistant Director, Counterterrorism Division, FBI
to Ms. Clarke).
---------------------------------------------------------------------------
In February 2020, Assistant Director of the
Counterterrorism Division of the FBI, Jill Sanborn, testified
that, ``Domestic violent extremists pose a steady and evolving
threat of violence and economic harm to the United States.
Trends may shift, but the underlying drivers for domestic
violent extremism--which includes socio-political conditions,
racism, and anti-Semitism, just to name a few--remain
constant.''\41\ Just two weeks later, the COVID-19 pandemic
radically changed American life, leading to increased economic
hardship, personal loss, anti-Asian animus, and fear. The
pandemic created new opportunities for the spread of
misinformation and the potential to increase the underlying
factors that contribute to domestic terrorism.
---------------------------------------------------------------------------
\41\Confronting the Rise in Anti-Semitic Domestic Terrorism,
Statement Before the House Committee on Homeland Security, Subcommittee
on Intelligence and Counterterrorism, 116th Cong. (2019) (statement of
Jill Sanborn) https://www.fbi.gov/news/testimony/confronting-the-rise-
in-anti-semitic-domestic-terrorism.
---------------------------------------------------------------------------
III. WHITE SUPREMACY IN THE MILITARY AND LAW ENFORCEMENT
A. White Supremacy in the Military
Servicemember participation in white supremacist
organizations dates back to a time well before 1948, when
President Truman ordered the integration of the military
branches.\42\ The Ku Klux Klan openly recruited members of the
military through the 1980s.\43\ In 1986, the Department of
Defense began efforts to stem servicemembers' participation in
white supremacist organizations when Defense Secretary Caspar
Weinberger ordered military personnel to reject these
organizations.\44\ Commanders inconsistently applied the 1986
directive, thus allowing some white supremacists to continue to
serve.\45\ After the 1995 Oklahoma City bombing, the Department
of Defense explicitly banned servicemembers from participating
in white supremacist organizations.\46\ This policy largely
remains in place.
---------------------------------------------------------------------------
\42\ Exec. Order No. 9981, 3 C.F.R. Sec. 772 (1941-1948).
\43\Dave Philipps, White Supremacism in the U.S. Military,
Explained, N.Y. Times, (Feb. 27, 2019), at A22.
\44\U.S. Dep't of Def., Dir. 1325.6, Guidelines for Handling
Dissident and Protest Activities Among Members of The Armed Forces (12
Sept 1969) (change 2) (Sept. 8, 1986) (on file with DoD).
\45\See e.g., Phil Stewart & Missy Ryan, Wisconsin Shooting Suspect
Discharged from Army in 1998, Reuters (Aug. 6, 2012), https://
www.reuters.com/article/us-usa-wisconsin-shooting-army-
idUSBRE87K04Y20120821.
\46\U.S. Dep't of Def., Dir. 1325.6, Guidelines for Handling
Dissident and Protest Activities Among Members of The Armed Forces
(Oct. 1, 1996), https://biotech.law.lsu.edu/blaw/dodd/corres/pdf/
d13256_100196/d13256p.pdf.
---------------------------------------------------------------------------
Recent attacks by former servicemembers have brought
renewed attention to the military's response to white
supremacists within its ranks. In November 2015, Frazier Miller
was sentenced to death on murder charges after he killed three
people during an April 13, 2014, attack on a Jewish community
center in Overland Park, Kansas.\47\ Miller served 20 years in
the U.S. Army, including 13 years as a Green Beret, and later
went on to found a chapter of the Ku Klux Klan.\48\ Wade
Michael Page, an Army veteran and an avowed white supremacist,
killed six Sikh worshipers in a 2012 attack of the gurdwara
(Sikh temple) in Oak Creek, Wisconsin, and was reportedly
radicalized while enlisted in the Army.\49\
---------------------------------------------------------------------------
\47\Steven Yaccino & Dan Barry, Bullets, Blood and Then Cry of
`Heil Hitler', N.Y. Times (Apr. 14, 2014), at A1.
\48\Id.
\49\Erica Goode & Serge F. Kovaleski, Wisconsin Killer Fed and Was
Fueled by Hate-Driven Music, N.Y. Times (Aug. 6, 2012), https://
www.nytimes.com/2012/08/07/us/army-veteran-identified-as-suspect-in-
wisconsin-shooting.html; Marilyn Elias, Sikh Temple Killer Wade Michael
Page Radicalized in Army, S. Poverty L. Ctr. (Nov. 11, 2012), https://
www.splcenter.org/fighting-hate/intelligence-report/2012/sikh-temple-
killer-wade-michael-page-radicalized-army.
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In 2017, a number of then-current and former servicemembers
were linked to the Atomwaffen Division, a violent white
supremacist group.\50\ An analysis of court documents, attorney
statements, and service records showed that over 80 individuals
charged in connection with the January 6, 2021 insurrection
have military ties, including five who were in the military on
the day of the attack.\51\ One Marine Corps veteran and retired
New York Police Department officer was indicted on multiple
counts for actions on January 6, including assaulting a police
officer with a metal flagpole with a U.S. Marine Corps flag
attached to it.\52\ Yet, in 2018, the Department of Defense
(DoD) reported to Congress that only 18 servicemembers have
been discharged for extremist activity in the prior five
years.\53\ A 2019 poll of servicemembers by the Military Times
found that more than one-third of active-duty troops and more
than half of servicemembers of color said that they have
witnessed examples of white nationalism or ideologically-driven
racism within the ranks.\54\
---------------------------------------------------------------------------
\50\A.C. Thompson, et al., Ranks of Notorious Hate Group Include
Active-Duty Military, ProPublica (May 3, 2018), https://
www.propublica.org/article/atomwaffen-division-hate-group-active-duty-
military.
\ 51\Eleanor Watson & Robert Legare, Over 80 of those charged in
the January 6 investigation have ties to the military, CBS News (Dec.
15, 2021), https://www.cbsnews.com/news/capitol-riot-january-6-
military-ties/.
\52\Id.
\53\Philipps, supra note 43.
\54\Leo Shane III, Signs of White Supremacy, Extremism Up Again in
Poll of Active-Duty Troops, Military Times (Feb. 6, 2020), https://
www.militarytimes.com/news/pentagon-congress/2020/02/06/signs-of-white-
supremacy-extremism-up-again-in-poll-of-active-duty-troops/.
---------------------------------------------------------------------------
On February 11, 2020, the House Subcommittee on Military
Personnel held a hearing on white supremacy in the U.S Armed
Forces. Employees of the Department of Defense and various
branches of the Armed Services, as well as researchers
specializing on military extremism testified about the rise in
white supremacist ideology among both active and retired
servicemen and women.\55\ During the hearing, DoD
representatives from the criminal investigations divisions of
the represented military branches acknowledged that their
respective agencies do not seek investigations into military
personnel who are members of or who share the ideologies of
extremist groups. They testified that investigations are opened
only when instances of activity or active participation
(fundraising, attending rallies, having tattoos, etc.) in these
white supremacist or extremist ideologies are identified.\56\
Even in those circumstances, when the DoD confirms active
participation, removal from military service is not
required.\57\ In 2019, Cory Reeves, an airman in the U.S. Air
Force, was identified as an active fundraiser for the white
nationalist group Identity Evropa. Although Reeves was
initially only demoted for his white supremacist activities, an
Air Force administrative discharge board recommended his
discharge from service in February of 2020.\58\ The Marine
Corps has faced issues as well, dishonorably discharging a
number of Marines who have been found espousing white
supremacist beliefs over the past few years, including an
individual who had praised Nazis.\59\
---------------------------------------------------------------------------
\55\Alarming Incidents of White Supremacy in the Military--How to
Stop It? Before H. Armed Serv. Subcomm. on Military Personnel, 116th
Cong. (2020), https://armedservices.house.gov/2020/2/subcommittee-on-
military-personnel-hearing-alarming-incidents-of-white-supremacy-in-
the-military-how-to-stop-it.
\56\ Id.
\57\Id.
\58\Stephen Losey, EOD Marine Separated for Ties to White
Supremacist Groups, Air Force Times (Apr. 19, 2018), https://
www.marinecorpstimes.com/news/your-marine-corps/2018/04/19/eod-marine-
separated-for-ties-to-white-supremacist-groups/.
\59\Stephen Losey, Board Recommends Discharge of Airman with White
Nationalist Ties, Air Force Times (Feb. 24, 2020), https://
www.airforcetimes.com/news/your-air-force/2020/02/24/board-recommends-
discharge-of-airman-with-white-nationalist-ties/. Shawn Snow, Another
Marine is Being Investigated for Neo-Nazi Ties Amid Military Concerns
About White Supremacy, Marine Times (Feb. 26, 2019), https://
www.marinecorpstimes.com/news/your-marine-corps/2019/02/26/another-
marine-is-being-investigated-for-neo-nazi-ties-amid-concerns-about-
white-supremacy-in-the-ranks/.
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B. White Supremacy in Law Enforcement
White supremacists have long sought to infiltrate law
enforcement agencies.\60\ According to a leaked document
drafted by the FBI Counter Terrorism Division, infiltration by
members of white supremacist groups continues to pose a threat
to law enforcement agencies around the country.\61\ Currently,
there is no federal database that tracks attempts by white
supremacists to infiltrate law enforcement agencies. In the
absence of formal tracking, several organizations and media
outlets published investigative findings on law enforcement
officers who have engaged in racist, nationalist, or white
supremacist activity.\62\ These efforts have uncovered hundreds
of white supremacists who are currently employed or are retired
law enforcement and have prompted agencies across the nation to
open internal inquiries into officer conduct, in some instances
leading to termination of employment.\63\ In the wake of the
January 6 insurrection, an Associated Press survey found that
31 off-duty police officers from 12 states were under
investigation for their involvement with the attack.\64\ At
least three have been charged.\65\
---------------------------------------------------------------------------
\60\Vida B. Johnson, The Epidemic of White Supremacist Police, The
Appeal (Aug. 7, 2017), https://theappeal.org/the-epidemic-of-white-
supremacist-police-4992cb7ad97a/.
\61\ Michelle Fox, Texas Officers Fired for Membership in KKK, ABC
News (Jan. 7, 2006), https://abcnews.go.com/US/story?id=93046&page=1;
See Vida B. Johnson, The Epidemic of White Supremacist Police; See Vida
B. Johnson, KKK in The PD; Alice Speri, The FBI Has Queitly
Investigated White Supremacist Infiltration of Law Enforcement, The
Intercept (Jan. 31, 2017), https://theintercept.com/2017/01/31/the-fbi-
has-quietly-investigated-white-supremacist-infiltration-of-law-
enforcement/.
\62\Will Carless & Michael Corey, To Protect and Slur, Reveal News
(June 14, 2019), https://www.revealnews.org/article/inside-hate-groups-
on-facebook-police-officers-trade-racist-memes-conspiracy-theories-and-
islamophobia/; Emily Hoerner & Rick Tulsky, Cops Across The US Have
Been Exposed Posting Racist and Violent Thins On Facebook. Here's the
Proof., BuzzFeed News (June 1, 2019), https://www.buzzfeednews.com/
article/emilyhoerner/police-facebook-racist-violent-posts-comments-
philadelphia.
\63\See Will Carless & Michael Corey, To Protect and Slur;
Hatewatch Staff, City of Anniston Fires Police Officer for Membership
in Hate Group, ACLU (June 19, 2015), https://www.splcenter.org/
hatewatch/2015/06/18/city-anniston-fires-police-officer-membership-
hate-group.
\64\Martha Bellisle & Jake Bleiberg, US police weigh officer
discipline after rally, Capitol riot, AP News (Jan. 24, 2021) https://
apnews.com/article/us-police-capitol-riot-
980545361a10fff982676d42b79b84ab.
\65\Id.
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IV. ROLE OF THE FEDERAL GOVERNMENT
A. Department of Justice
The DOJ was created in the post-Civil War era, motivated,
at least in part, by Congress's intent to enforce the
Reconstruction Amendments and to have an entity within the
Executive Branch to serve as a ``champion'' of civil
rights.\66\ To this day, DOJ serves as the nation's chief law
enforcement organization and carries out the United States'
efforts to protect civil rights through various divisions,
sections, and offices. The FBI's Criminal Investigative
Division (CID) investigates cases involving a variety of
criminal statutes that make it illegal to interfere with any
person who is participating in a federally protected activity,
such as public education, employment, jury service, travel, or
the enjoyment of public accommodations, or helping another
person to do so, based on their race or perceived race.\67\ CID
also investigates crimes allegedly committed because of the
actual or perceived religion, national origin, gender, sexual
orientation, gender identity, or disability of any person,
where the crime occurred within a federal jurisdiction.\68\
Following the passage of the Civil Rights Act of 1957, DOJ
created the Civil Rights Division (CRT).\69\ Along with
individual U.S. Attorneys' Offices, the Criminal Section of CRT
prosecutes hate crimes investigated by CID, and has prosecuted
a number of high profile hate crimes, including prosecutions
following the Tree of Life Synagogue massacre, the mass
shooting in El Paso, and the Victoria Mosque arson.\70\
---------------------------------------------------------------------------
\66\Seth P. Waxman, Twins at Birth: Civil Rights and the Role of
the Solicitor General, 75 Ind. L.J. 1297, 1297, 1300-01 (2000)
(footnote omitted).
\67\See 18 U.S.C. Sec. 245 (2018).
\68\18 U.S.C. Sec. 249 (2018).
\69\Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634
(1957).
\70\U.S. DOJ, Justice News, Additional Charges Filed in Tree of
Life Synagogue Shooting (Jan. 29, 2019), https://www.justice.gov/opa/
pr/additional-charges-filed-tree-life-synagogue-shooting; U.S. Dept. of
Justice, Justice News, Texas Man Charged with Federal Hate Crimes and
Firearm Offenses Related to August 3, 2019, Mass-Shooting in El Paso
(Feb. 6, 2020), https://www.justice.gov/opa/pr/texas-man-charged-
federal-hate-crimes-and-firearm-offenses-related-august-3-2019-mass;
U.S. Dept. of Justice, Justice News, Texas Man Sentenced to Almost 25
Years for Hate Crime in Burning Down Mosque in Victoria, Texas (Oct.
17, 2018), https://www.justice.gov/opa/pr/texas-man-sentenced-almost-
25-years-hate-crime-burning-down-mosque-victoria-texas.
---------------------------------------------------------------------------
The Department's prosecution of terrorism has changed
substantially in the last 20 years. Before the attacks on
September 11, 2001, the United States generally distinguished
international and domestic terrorism matters by the type of
alleged perpetrator. The FBI labeled foreign-born or foreign-
based terrorists as ``international terrorists,'' while federal
authorities considered acts of domestic terror as a subset of
criminal behavior.\71\ Following this most lethal terrorist
attack in American history, Congress enacted the USA PATRIOT
Act of 2001, which constituted a dramatic shift in law
enforcement authority.\72\ Title VIII of the Act changed the
definition of domestic terrorism, added crimes to the list of
terrorism offenses, and criminalized cyberterrorism. In 2005,
the FBI established the National Security Branch (NSB), which
merged its Counterterrorism Division, Counterintelligence
Division, Directorate of Intelligence, Weapons of Mass
Destruction Directorate, and Terrorist Screening Center. Only a
year later, the DOJ created the National Security Division
(NSD), which similarly brought together prosecution-focused
counterterrorism operations and Foreign Intelligence
Surveillance Act (FISA) litigation sections. The NSB and NSD
form the vanguard of the Nation's efforts to prevent and
prosecute terrorism.
---------------------------------------------------------------------------
\71\National Consortium for the Study of Terrorism and Responses to
Terrorism, Patterns of Intervention in Federal Terrorism Cases 8
(August 2011), https://www.dhs.gov/sites/default/files/publications/
OPSR_TP_Countermeasures-Patterns-Intervention-Federal-Terrorism-
Cases_Aug2011-508.pdf.
\72\USA PATRIOT ACT, Pub. L. No. 107-56, 115 Stat. 272 (2001).
---------------------------------------------------------------------------
In 2005, the FBI stopped releasing an annual report,
Terrorism, which provided insight on both domestic and
international terrorist threats from the mid-1980s through the
2000s.\73\ The cessation of publication of the report left a
dearth of clearly tracked information. In February 2019, House
Homeland Security Committee Chairman, Bennie Thompson (D-MS),
and House Judiciary Committee Chairman, Jerrold Nadler (D-NY),
sent a letter to FBI Director Wray, inquiring about the
discontinuation of this reporting.\74\ In a March 27, 2019
response, Director Wray cited ``resource allocation issues'' as
the reason for its discontinuation.\75\
---------------------------------------------------------------------------
\73\FBI, Terrorism 2002/2005, https://www.fbi.gov/stats-services/
publications/terrorism-2002-2005 (last visited Feb. 26, 2020).
\74\Letter from Chairman Bennie Thompson, H. Comm. on Homeland
Security, & Chairman Jerrold Nadler, H. Comm. on the Judiciary, to FBI
Director Christopher Wray (Feb. 14, 2019) (on file with H. Comm. on the
Judiciary Democratic staff).
\75\Letter from FBI Director Christopher Wray to Chairman Jerrold
Nadler, H. Comm. on the Judiciary (Mar. 27, 2019) (on file with H.
Comm. on the Judiciary Democratic staff).
---------------------------------------------------------------------------
In 2019, FBI Director Christopher Wray, noted that
terrorism, including domestic terrorism, remains the FBI's
primary focus.\76\ Director Wray noted that white supremacists
constitute the largest share of domestic terrorists and that
white supremacists represent ``a serious persistent threat'' to
the country.\77\ According to Director Wray, the FBI arrested
107 individuals during fiscal year 2019 in connection with
domestic terrorism investigations, which was ``close to the
same number on the international terrorism front.''\78\ At any
given time, the FBI has ``about 900 [open] domestic terrorism
investigations,'' a ``huge chunk'' of which ``involve racially
motivated violent extremists.''\79\ Of these, the most lethal
``over the last few years'' have involved white
supremacists.\80\
---------------------------------------------------------------------------
\76\Threats to the Homeland Before the S. Homeland Security & Gov.
Aff. Comm., 116th Cong. (2019) (statement of Christopher Wray, FBI
Director).
\77\Id.
\78\ Id. Prior to this testimony, FBI Assistant Director for
Counterterrorism Michael McGarrity testified before the Committee on
Homeland Security that the FBI was investigating 850 domestic terrorism
cases--and of those, about 40 percent involved racially motivated
extremism, mostly white supremacist extremism. Confronting the Rise of
Domestic Terrorism in the Homeland before the Comm. on Homeland Sec,
116th Cong. (2019) (statement of Michael McGarrity, FBI Assistant
Director). https://homeland.house.gov/activities/hearings/confronting-
the-rise-of-domestic-terrorism-in-the-homeland.
\79\Id.
\80\Id.
---------------------------------------------------------------------------
In April 2019, the FBI notified Congressional staff that it
was modifying how it categorized hate crime incidents. In his
testimony before the House Judiciary Committee in February
2020, Director Wray confirmed that the FBI has collapsed the
previous nine categories it used to identify hate crime
incidents into four categories.\81\ The new categories are: (1)
racially-motivated violent extremism; (2) anti-government/anti-
establishment extremism; (3) animal rights and environmental
extremism; and (4) abortion extremism. Director Wray also
described an additional category, ``other domestic terrorism,''
which would encompass, for instance, attempted mail
bombings.\82\
---------------------------------------------------------------------------
\81\Oversight of the Federal Bureau of Investigation Before the H.
Jud. Comm., 116th Cong. (2020) (statement of Christopher Wray, FBI
Director).
\82\Id.
---------------------------------------------------------------------------
In January 2022, Assistant Attorney General for National
Security Matthew G. Olsen announced that DOJ would establish a
Domestic Terrorism Unit within the National Security Division
to ensure domestic terrorism cases are handled properly and to
coordinate efforts across DOJ and across the country.\83\
Assistant Attorney General Olsen said the new unit will work
closely with other DOJ components, especially the Civil Rights
Division.\84\
---------------------------------------------------------------------------
\83\Assistant Attorney General Matthew G. Olsen Delivers Opening
Remarks Before U.S. Senate Committee on the Judiciary (Jan. 11, 2022),
https://www.justice.gov/opa/speech/assistant-attorney-general-matthew-
g-olsen-delivers-opening-remarks-us-senate-committee.
\84\Id.
---------------------------------------------------------------------------
B. Department of Homeland Security
The September 11th attacks also ushered in a dramatic
reorganization of the federal law enforcement structure and
reshuffled terrorism-related responsibilities. The Homeland
Security Act of 2002 created the Department of Homeland
Security (DHS).\85\ Despite DHS's overarching mission, not all
DHS components have programs or resources focused on domestic
terrorism or hate crimes. Three DHS components, however, play
important roles in collecting data and preventing domestic
terrorism. The Office of Intelligence and Analysis collects and
analyzes law enforcement information from public and private
entities and disseminates domestic terrorism information to
relevant law enforcement actors. The U.S. Coast Guard also
collects and analyzes terrorism-related information along with
counterintelligence operations.
---------------------------------------------------------------------------
\85\The Homeland Security Act (HSA) of 2002, Pub. L. No. 107-296,
116 Stat. 2135.
---------------------------------------------------------------------------
In recent years, there have been several changes in DHS's
efforts to partner with communities to prevent violent
extremism. In 2015, DHS established the Office for Community
Partnerships (OCP) to advise local communities at targeted
briefings, exercises, and workshops on preventing domestic
terrorism from taking root.\86\ OCP engaged faith leaders,
local government officials, and community leaders to address
the root causes of the terror. OCP administered the Countering
Violent Extremism grant program which was replaced with the
Targeted Violence and Terrorism Prevention (TVTP) Grant Program
in 2017.\87\ In 2021, the Office for Targeted Violence and
Terrorism Prevention was replaced with the Center for
Prevention Programs and Partnerships (CP3) which now
administers the TVTP grant program.\88\ TVTP provides funding
for state, local, tribal, and territorial governments,
nonprofits, and institutions of higher education with funds to
establish or enhance capabilities to prevent targeted violence
and terrorism.
---------------------------------------------------------------------------
\86\Statement by Secretary Jeh C. Johnson on DHS's New Office for
Community Partnerships (Sept. 28, 2015) https://www.dhs.gov/news/2015/
09/28/statement-secretary-jeh-c-johnson-dhss-new-office-community-
partnerships.
\87\OCP has since been dissolved, though DHS now has an Office of
Partnership and Engagement as well as the Center for Prevention
Programs and Partnerships.
\88\Dep't of Homeland Security, Center for Prevention Programs and
Partnerships, https://www.dhs.gov/CP3.
---------------------------------------------------------------------------
C. Office of the Director of National Intelligence
The Intelligence Reform and Terrorism Prevention Act
(IRTPA) of 2004 established the National Counterterrorism
Center (NCTC), which is part of the Office of the Director of
National Intelligence (ODNI). NCTC inherited responsibility for
integrating analysis and coordinating information sharing and
developing strategic terrorism planning for the President. As
currently structured, the NCTC assesses domestic and foreign
terrorism information and aims to provide bias-free
recommendations.\89\ As one of its primary missions, the NCTC
coordinates the information it collects and analyzes with
agencies within the intelligence community, as well as law
enforcement and defense agencies. As the central repository for
terrorism-related data, NCTC serves as the focal point for
information on suspected terrorists and their capabilities. In
that capacity, NCTC operates the ``Terrorist Identities
Datamart Environment,'' the central classified repository for
all known or suspected international terrorists and their
networks.\90\
---------------------------------------------------------------------------
\89\Director of Nat'l Intelligence, National Counterterrorism
Center, Today's NCTC (Aug. 2017), https://www.dni.gov/files/NCTC/
documents/features_documents/NCTC-Primer_FINAL.pdf.
\90\Director of Nat'l Intelligence, National Counterterrorism
Center, Terrorist Identities Datamart Environment (2017), https://
www.dni.gov/files/NCTC/documents/features_documents/
TIDEfactsheet10FEB2017.pdf.
---------------------------------------------------------------------------
V. LEGAL AUTHORITIES RELATING TO DOMESTIC TERRORISM
Federal law defines domestic terrorism as involving acts
that are ``dangerous to human life that are a violation of the
criminal laws of the United States or of any State; appear to
be intended to intimidate or coerce a civilian population; to
influence the policy of a government by intimidation or
coercion; or to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and occur primarily
within the territorial jurisdiction of the United States.''\91\
---------------------------------------------------------------------------
\91\18 U.S.C Sec. 2331(5) (2018).
---------------------------------------------------------------------------
While domestic terrorism is defined in federal law, the
definition does not accompany an associated crime or
prohibitive behavior. Rather, absent an explicit crime
prohibiting domestic terrorism, federal authorities charge
terrorism acts, whether domestic or international in nature,
under two laws that prohibit terrorism-related acts. The first
statute, which passed in 1994, criminalizes material support of
one of 57 underlying terrorism-related crimes.\92\
---------------------------------------------------------------------------
\92\18 U.S.C. Sec. 2339A (2018); 18 U.S.C. Sec. 2332b(g) (2018).
---------------------------------------------------------------------------
Of 57 predicate terrorism offenses referenced in Section
2339A of Title 18 of the United States Code, federal
prosecutors may use 51 of the offenses to charge an incident of
domestic terrorism.\93\ The underlying predicate terrorism
crimes include: maliciously damaging, destroying by means of
fire or explosive any building or personal property used in
interstate or foreign commerce;\94\ hostage taking;\95\ or
willful or malicious destruction of any of the works, property,
or material of any communication line, station, or system.\96\
While the vast majority of those charged under Sec. 2339A have
been internationally based, DOJ has charged at least four
individuals for domestic crimes under these statutes.\97\ The
FBI also uses a second statute, 18 U.S.C. Sec. 2339B, to
investigate international terrorism. Despite the international
focus of section 2339B, DOJ has also charged domestically based
United States citizens under this statute.\98\
---------------------------------------------------------------------------
\93\Michael German & Sara Robinson, Wrong Priorities on Fighting
Terrorism, Brennan Ctr. 5 (Oct. 31, 2018), https://
www.brennancenter.org/publication/wrong-priorities-fighting-terrorism.
\94\18 U.S.C. Sec. 844(i) (2018).
\95\18 U.S.C. Sec. 1203 (2018).
\96\18 U.S.C. Sec. 1362 (2018).
\97\See German & Robinson, supra note 15, at 8.
\98\See id.
---------------------------------------------------------------------------
Section 5602 of the National Defense Authorization Act for
Fiscal Year 2020, signed into law by President Trump in January
2020, included domestic terrorism reporting requirements
authored by Representative Bennie Thompson.\99\ The 2020 NDAA
provisions require the FBI and DHS, along with the Director of
National Intelligence, to jointly track, manage and report on
instances of domestic terrorism in the United States.\100\ The
three agencies must produce an initial report within 180 days
of the bill's enactment that includes a full analysis of any
completed or attempted instances of domestic terrorism.\101\
Subsequent reports required pursuant to the NDAA must be
submitted annually and must include information on training
that these agencies provide to state and federal law
enforcement agencies.\102\ Notably, the NDAA amendments make
clear that these documents and reports shall, to the extent
possible, be unclassified and publicly available.\103\
---------------------------------------------------------------------------
\99\National Defense Authorization Act for Fiscal Year 2020,
S.1790, 116th Cong. Sec. 5602 (2019).
\100\See id. at Sec. 5602.a-b.
\101\See id. at Sec. 5602.a-b, e.
\102\See id. at Sec. 5602.d (yearly publication for 5 years).
\103\See id. at Sec. 5602.e.
---------------------------------------------------------------------------
Hearings
For the purposes of clause 3(c)(6)(A) of House Rule XIII,
the following hearings were used to consider H.R. 350:
On February 24, 2021, the Subcommittee on Crime, Terrorism,
and Homeland Security held a hearing on ``The Rise of Domestic
Terrorism in America.'' The Subcommittee heard testimony from:
Wade Henderson, Interim President and CEO,
The Leadership Conference on Civil and Human Rights
Michael German, Brennan Center for Justice
Malcolm Nance, Founder and Executive
Director, Terror Asymmetrics Project
Andy Ngo, Editor-at-Large, The Post
Millennial
The hearing explored the rise in domestic terrorism and federal
law enforcement's failure to adequately address related acts of
violence.
On February 17, 2022, the Subcommittee on Crime, Terrorism,
and Homeland Security held a hearing on ``The Rise in Violence
Against Minority Institutions.'' The Subcommittee heard
testimony from:
Dr. Seth G. Jones, Senior Vice President,
Harold Brown Chair, and Director of the International
Security Program and Transnational Threats Project,
Center for Strategic and International Studies
Dr. David K. Wilson, President, Morgan State
University
Rabbi Charlie Cytron-Walker, Colleyville,
Texas
Pardeep Singh Kaleka, Executive Director,
Interfaith Conference of Greater Milwaukee
Margaret Huang, President and CEO, Southern
Poverty Law Center
Dr. Demetrick Pennie, Retired Police
Sergeant, Dallas Police Department
Brandon Tatum, Former Tucson Police Officer,
Founder and CEO, The Officer Tatum
This hearing continued the Subcommittee's inquiry into domestic
terrorism and investigated the rise in violence directed
against minority institutions across the nation, particularly
attacks on historically Black colleges and universities,
synagogues, and other minority institutions.
Committee Consideration
On April 6, 2022, the Committee met in open session and
ordered the bill, H.R. 350, favorably reported with an
amendment in the nature of a substitute and one additional
amendment, by a rollcall vote of 21 to 17, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of House Rule XIII, the
following rollcall votes occurred during the Committee's
consideration of H.R. 350:
1. An amendment by Mr. Biggs to prohibit any funds
authorized to be appropriated by the Act to be used by the FBI
to create or utilize a threat tag of ``EDUOFFICIALS'' or any
similar threat tag with respect to parents voicing an opinion
about the upbringing and education of their children was
defeated by a rollcall vote of 18 to 24. The vote was as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Bishop to require reporting of the
number of parents tagged with the ``EDUOFFICIALS'' threat tag
or any similar threat tag applied to parents voicing an opinion
about the upbringing and education of their children was
defeated by a rollcall vote of 17 to 23. The vote was as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Steube to add Antifa, Black Lives
Matter, and radicalized social justice organizations to
provisions of the bill that require a threat assessment and
report on the threat posed by white supremacists and neo-Nazis,
that require training to combat domestic terrorism, and that
establish an interagency task force to analyze and combat white
supremacist and neo-Nazi infiltration of the uniformed services
and federal law enforcement agencies was defeated by a rollcall
vote of 15 to 23. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
4. An amendment by Mr. Biggs to prohibit any funds
authorized to be appropriated by the Act to be used to monitor,
analyze, investigate, or prosecute any individual who has
declined the administration of a vaccine to COVID-19 or
expressed opposition to such administration was defeated by a
rollcall vote of 17 to 21. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. An amendment by Mr. Biggs to prohibit any funds
authorized to be appropriated by the Act to be used to monitor,
analyze, investigate, or prosecute any individual solely
because that individual declined the administration of a
vaccine to COVID-19 or expressed opposition to such
administration was defeated by a rollcall vote of 16 to 19. The
vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
6. A motion to report H.R. 350, as amended, was agreed to
by a rollcall vote of 21 to 17. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House Rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House Rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House Rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House Rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause (3)(c)(3) of House Rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received from the Director of Congressional Budget
Office a budgetary analysis and a cost estimate of this bill.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House Rule XIII, no provision
of H.R. 350 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House Rule XIII, H.R. 350 would improve the federal
government's ability to monitor, investigate, and prosecute
incidents of domestic terrorism. Additionally, the bill
requires the Department of Defense and the Attorney General to
assess and report to Congress on the prevalence of white
supremacist ideology in the military and federal law
enforcement.
Advisory on Earmarks
In accordance with clause 9 of House Rule XXI, H.R. 350
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d),
9(e), or 9(f) of House Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 of the bill contains the
short title, the ``Domestic Terrorism Prevention Act of 2022.''
Sec. 2. Definitions. Section 2 of the bill defines several
terms, including ``domestic terrorism,'' which has the meaning
given in section 2331 of Title 18: ``activities that'' (1)
``involve acts dangerous to human life that are a violation of
the criminal laws of the United States or of any State;'' (2)
``appear to be intended . . . to intimidate or coerce a
civilian population . . . to influence the policy of a
government by intimidation or coercion . . . or to affect the
conduct of a government by mass destruction, assassination, or
kidnapping;'' and (3) ``occur primarily within the territorial
jurisdiction of the United States.'' The bill excludes those
acts perpetrated by individuals associated with or inspired by
foreign terrorist organizations.
Sec. 3. Offices to Combat Domestic Terrorism. Section 3 of
the bill authorizes, for ten years, domestic terrorism offices
within the Office of Intelligence and Analysis of DHS, the
Counterterrorism Section of the National Security Division of
DOJ, and the Counterterrorism Division of the FBI.
Collectively, the offices are responsible for monitoring,
analyzing, investigating, and prosecuting domestic terrorism.
The Secretary of Homeland Security, the Attorney General, and
the FBI Director must each ensure that the authorized offices
are adequately staffed to perform their required duties,
including at least one staffer dedicated to ensuring compliance
with civil rights and civil liberties laws and regulations. All
staff must undergo annual anti-bias training. The Domestic
Terrorism Office in the National Security Division of DOJ must
coordinate with the Civil Rights Division on domestic terrorism
matters that may also be hate crimes.
This section also requires these offices to issue biannual
reports to the House and Senate Judiciary, Homeland Security,
and Intelligence Committees that assess the domestic terrorism
threat posed by white supremacists and neo-Nazis (including
white supremacist and neo-Nazi infiltration of Federal, State,
and local law enforcement agencies and the uniformed services);
analyze domestic terrorism incidents that occurred in the
previous six months; and provide transparency through a
quantitative analysis of domestic terrorism-related
assessments, investigations, incidents, arrests, indictments,
prosecutions, convictions, and weapons recoveries, as well as
an explanation of each individual case that progressed through
more than one of those stages. The report shall not include
personally identifiable information not otherwise releasable to
the public.
This section provides that the first of these joint reports
goes back more than six months to examine past incidents.
This section clarifies that federal hate crime incidents
that resulted in a charge and conviction must be reviewed to
determine whether they also constitute a domestic terrorism-
related incident.
The joint reports must be unclassified to the greatest
extent possible, with a classified annex only if necessary. The
unclassified portion of the joint report must be made available
to the public online.
The reports shall include the number of federal incidents,
investigations, arrests, indictments, prosecutions, and
convictions with respect to a false report of domestic
terrorism or hate crime incident.
If any reporting requirement is duplicative of another
reporting provision already in law, the agencies may produce
one report that complies with each such requirement as fully as
possible.
Additionally, this section codifies the Domestic Terrorism
Executive Committee, which must meet at least four times per
year to coordinate with United States Attorneys and other
public safety officials to promote information sharing and
ensure an effective, responsive, and organized joint effort to
combat domestic terrorism.
Finally, this section requires the DHS, DOJ, and FBI
domestic terrorism offices to focus their limited resources on
the most significant domestic terrorism threats, as determined
by the number of domestic-terrorism-related incidents included
in the joint report.
Sec. 4. Training to Combat Domestic Terrorism. Section 4 of
the bill requires the Secretary of Homeland Security, the
Attorney General, and the FBI Director to review the anti-
terrorism training and resource programs that are provided by
their respective agencies to Federal, State, local, and tribal
law enforcement agencies (including the State and Local Anti-
Terrorism Program, funded by DOJ's Bureau of Justice
Assistance) and ensure that such programs include training and
resources to assist law enforcement agencies in understanding,
detecting, deterring, and investigating acts of domestic
terrorism and white supremacist and neo-Nazi infiltration of
law enforcement and corrections agencies. The Attorney General
shall make training available to Department prosecutors and to
Assistant United States Attorneys on countering and prosecuting
domestic terrorism.
The training must focus on the most significant domestic
terrorism threats, as determined by the joint report, and
individuals providing the training must have expertise in
domestic terrorism and relevant academic, law enforcement, or
other community-based experience. Additionally, the Secretary
of Homeland Security, the Attorney General, and the FBI
Director must each submit a biannual report to the House and
Senate Judiciary, Homeland Security, and Intelligence
Committees on the training implemented by their respective
agencies, including copies of all training materials used and
the names and qualifications of the individuals who provide the
training. The reports must be unclassified to the greatest
extent possible, with a classified annex only if necessary. The
unclassified portion of the reports must be made available to
the public online.
Sec. 5. Interagency Task Force. Section 5 of the bill
directs, within 180 days, the Secretary of Homeland Security,
the Attorney General, and the FBI Director, along with the
Secretary of Defense, to establish an interagency task force to
combat white supremacist and neo-Nazi infiltration of the
uniformed services and federal law enforcement. The task force
must report on its findings and response to the House and
Senate Judiciary, Homeland Security, Intelligence, and Armed
Services Committees within a year of its establishment. The
report must be unclassified to the greatest extent possible,
with a classified annex only if necessary. The unclassified
portion of the report must be made available to the public
online.
Sec. 6. Federal Support for Addressing Hate Crime Incidents
with a Nexus to Domestic Terrorism. Section 6 of the bill
provides the DOJ's Community Relations Service the ability to
offer support to communities where DOJ has brought charges in a
hate crime incident that has a nexus to domestic terrorism and
directs the FBI to assign a special agent or hate crimes
liaison to each FBI field office to investigate hate crime
incidents with a nexus to domestic terrorism.
Sec. 7. Authorization of Appropriations. Section 7 of the
bill authorizes such sums as necessary to be appropriated to
DHS, DOJ, the FBI, and DoD to carry out these requirements.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 13--CIVIL RIGHTS
* * * * * * *
Sec. 249. Hate crime acts
(a) In General.--
(1) Offenses involving actual or perceived race,
color, religion, or national origin.--Whoever, whether
or not acting under color of law, willfully causes
bodily injury to any person or, through the use of
fire, a firearm, a dangerous weapon, or an explosive or
incendiary device, attempts to cause bodily injury to
any person, because of the actual or perceived race,
color, religion, or national origin of any person--
(A) shall be imprisoned not more than 10
years, fined in accordance with this title, or
both; and
(B) shall be imprisoned for any term of years
or for life, fined in accordance with this
title, or both, if--
(i) death results from the offense;
or
(ii) the offense includes kidnapping
or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt
to kill.
(2) Offenses involving actual or perceived religion,
national origin, gender, sexual orientation, gender
identity, or disability.--
(A) In general.--Whoever, whether or not
acting under color of law, in any circumstance
described in subparagraph (B) or paragraph (3),
willfully causes bodily injury to any person
or, through the use of fire, a firearm, a
dangerous weapon, or an explosive or incendiary
device, attempts to cause bodily injury to any
person, because of the actual or perceived
religion, national origin, gender, sexual
orientation, gender identity, or disability of
any person--
(i) shall be imprisoned not more than
10 years, fined in accordance with this
title, or both; and
(ii) shall be imprisoned for any term
of years or for life, fined in
accordance with this title, or both,
if--
(I) death results from the
offense; or
(II) the offense includes
kidnapping or an attempt to
kidnap, aggravated sexual abuse
or an attempt to commit
aggravated sexual abuse, or an
attempt to kill.
(B) Circumstances described.--For purposes of
subparagraph (A), the circumstances described
in this subparagraph are that--
(i) the conduct described in
subparagraph (A) occurs during the
course of, or as the result of, the
travel of the defendant or the victim--
(I) across a State line or
national border; or
(II) using a channel,
facility, or instrumentality of
interstate or foreign commerce;
(ii) the defendant uses a channel,
facility, or instrumentality of
interstate or foreign commerce in
connection with the conduct described
in subparagraph (A);
(iii) in connection with the conduct
described in subparagraph (A), the
defendant employs a firearm, dangerous
weapon, explosive or incendiary device,
or other weapon that has traveled in
interstate or foreign commerce; or
(iv) the conduct described in
subparagraph (A)--
(I) interferes with
commercial or other economic
activity in which the victim is
engaged at the time of the
conduct; or
(II) otherwise affects
interstate or foreign commerce.
(3) Offenses occurring in the special maritime or
territorial jurisdiction of the united states.--
Whoever, within the special maritime or territorial
jurisdiction of the United States, engages in conduct
described in paragraph (1) or in paragraph (2)(A)
(without regard to whether that conduct occurred in a
circumstance described in paragraph (2)(B)) shall be
subject to the same penalties as prescribed in those
paragraphs.
(4) Guidelines.--All prosecutions conducted by the
United States under this section shall be undertaken
pursuant to guidelines issued by the Attorney General,
or the designee of the Attorney General, to be included
in the United States Attorneys' Manual that shall
establish neutral and objective criteria for
determining whether a crime was committed because of
the actual or perceived status of any person.
(5) Lynching.--Whoever conspires to commit any
offense under paragraph (1), (2), or (3) shall, if
death or serious bodily injury (as defined in section
2246 of this title) results from the offense, be
imprisoned for not more than 30 years, fined in
accordance with this title, or both.
(6) Other conspiracies.--Whoever conspires to commit
any offense under paragraph (1), (2), or (3) shall, if
death or serious bodily injury (as defined in section
2246 of this title) results from the offense, or if the
offense includes kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt to kill, be
imprisoned for not more than 30 years, fined in
accordance with this title, or both.
(b) Certification Requirement.--
(1) In general.--No prosecution of any offense
described in this subsection may be undertaken by the
United States, except under the certification in
writing of the Attorney General, or a designee, that--
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal
Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant
to State charges left demonstratively
unvindicated the Federal interest in
eradicating bias-motivated violence; or
(D) a prosecution by the United States is in
the public interest and necessary to secure
substantial justice.
(2) Rule of construction.--Nothing in this subsection
shall be construed to limit the authority of Federal
officers, or a Federal grand jury, to investigate
possible violations of this section.
(c) Definitions.--In this section--
(1) the term ``bodily injury'' has the meaning given
such term in section 1365(h)(4) of this title, but does
not include solely emotional or psychological harm to
the victim;
(2) the term ``explosive or incendiary device'' has
the meaning given such term in section 232 of this
title;
(3) the term ``firearm'' has the meaning given such
term in section 921(a) of this title;
(4) the term ``gender identity'' means actual or
perceived gender-related characteristics; and
(5) the term ``State'' includes the District of
Columbia, Puerto Rico, and any other territory or
possession of the United States.
(d) Statute of Limitations.--
(1) Offenses not resulting in death.--Except as
provided in paragraph (2), no person shall be
prosecuted, tried, or punished for any offense under
this section unless the indictment for such offense is
found, or the information for such offense is
instituted, not later than 7 years after the date on
which the offense was committed.
(2) Death resulting offenses.--An indictment or
information alleging that an offense under this section
resulted in death may be found or instituted at any
time without limitation.
(e) Supervised Release.--If a court includes, as a part of a
sentence of imprisonment imposed for a violation of subsection
(a), a requirement that the defendant be placed on a term of
supervised release after imprisonment under section 3583, the
court may order, as an explicit condition of supervised
release, that the defendant undertake educational classes or
community service directly related to the community harmed by
the defendant's offense.
(f) Federal Bureau of Investigation.--The Attorney General,
acting through the Director of the Federal Bureau of
Investigation, shall assign a special agent or hate crimes
liaison to each field office of the Federal Bureau of
Investigation to investigate hate crimes incidents with a nexus
to domestic terrorism (as such term is defined in section 2 of
the Domestic Terrorism Prevention Act of 2020).
* * * * * * *
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Minority Views
H.R. 350, the ``Domestic Terrorism Prevention Act of
2021,'' is unnecessary legislation that would expand government
and create new federal resources for addressing domestic
terrorism and hate crimes. The authorities in this bill will
become dangerous in the hands of the Biden Administration,
which has repeatedly demonstrated a willingness to target
Americans for their political beliefs and misuse existing
domestic terrorism resources.
The federal government already includes several agencies
that investigate, prosecute, and interrupt domestic terrorism.
This bill creates new components in various agencies, mandates
a reporting requirement every six months, and directs federal
law enforcement to focus domestic terrorism resources based on
the views of particular groups, rather than on the risk to
public safety. Using domestic terrorism resources in a specific
way may not be as troubling if not for the current
Administration's record of abusing existing authorities by, for
example, labeling parents concerned for the education of their
children as domestic terrorists. H.R. 350 would, at a very
minimum, chill the First Amendment rights of many Americans.
H.R. 350 DUPLICATES EXISTING RESOURCES AND RESPONSIBILITIES IN THE
FEDERAL GOVERNMENT
H.R. 350 creates new offices within the Department of
Homeland Security (DHS), the Department of Justice (DOJ), and
the Federal Bureau of Investigation (FBI) to combat domestic
terrorism. However, each of these agencies already have offices
dedicated to combating domestic terrorism.
The FBI and DOJ play the main role in investigating and
prosecuting domestic terrorism. FBI's Joint Terrorism Task
Forces (JTTFs) serve as the FBI's ``front line of defense'' to
combat terrorist threats.\1\ JTTFs investigate leads, gather
evidence, make arrests, and provide security for special events
in order to prevent and respond to terrorist threats.\2\ The
DOJ also relies on its National Security Division (NSD),
created in 2006, ``to integrate, coordinate, and advance the
Department's counterterrorism and other national security work
worldwide.''\3\ NSD's Counterterrorism Section handles domestic
terrorism and other matters.\4\ Additionally, the FBI's
Domestic Terrorism-Hate Crimes Fusion Cell utilizes the
resources of the FBI's Counterterrorism and Criminal
Investigative Divisions to address the threats of domestic
terrorism and hate crimes.\5\
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\1\Federal Bureau of Investigation, Joint Terrorism Task Forces,
https://www.fbi.gov/investigate/terrorism/jointterrorism-task-forces.
\2\Id.
\3\Confronting the Rise of Domestic Terrorism in the Homeland:
Hearing before the H. Comm. on Homeland Sec., 116th Cong. (2019)
(statement of Brad Wiegmann, Deputy Assistant Att'y. Gen., U.S. Dep't
of Justice).
\4\Id.
\5\Confronting White Supremacy (Part II): Adequacy of the Federal
Response; Hearing Before the H. Comm. on Oversight and Reform. 116th
Cong. (2019).
---------------------------------------------------------------------------
DHS utilizes various resources and entities to protect the
homeland from terrorist threats. Under the Trump
Administration, DHS established the Office for Targeted
Violence and Terrorism Prevention to focus on preventing
international and domestic acts of terrorism, including
incidents of racially motivated violence.\6\
---------------------------------------------------------------------------
\6\Press Release, U.S. Dep't of Homeland Sec., Acting Secretary
McAleenan Announces Establishment of DHS Office for Targeted Violence
and Terrorism Prevention (Apr. 19, 2019).
---------------------------------------------------------------------------
THE BIDEN ADMINISTRATION HAS MISUSED EXISTING DOMESTIC TERRORISM
RESOURCES
The Biden Administration is already misusing
counterterrorism resources. H.R. 350 would give additional
authorities to federal efforts to target law-abiding Americans
who exercise their First Amendment rights to question
government policy--such as parents concerned about their
children's education--rather than violent extremist groups like
Antifa.
In January 2022, Matt Olsen, Assistant Attorney General for
the National Security Division testified at a Senate Judiciary
Committee hearing titled, ``The Domestic Terrorism Threat One
Year After Jan. 6.''\7\ At the hearing, Olsen announced a new
domestic terrorism unit within the National Security Division
to respond to what the Biden Administration characterizes as an
increase in violent domestic terrorism.\8\ Olsen testified that
the unit would focus on those ``motivated by racial or ethnic
animus'' and those who ``hold anti-government or anti-authority
views.''\9\
---------------------------------------------------------------------------
\7\The Domestic Terrorism Threat One Year After Jan. 6: Before the
S. Comm. on the Judiciary, 117th Cong. (2022) (statement of Matt Olsen,
Assistant Atty Gen. for the National Security Division).
\8\Id.
\9\Id.
---------------------------------------------------------------------------
The same week as the Senate testimony announcing this new
unit, President Biden accused those who disagree with the
federal takeover of state elections of being racists, and he
told the tech companies to sensor more ``misinformation.''\10\
Taking these two actions into account, it is not too much of a
stretch to believe that the Biden Administration could use
allies in the tech industry and federal law enforcement to
silence or punish political opponents.
---------------------------------------------------------------------------
\10\Id.
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In fact, it has happened before with existing federal
counterterrorism resources. In a memorandum dated October 4,
2021, Attorney General Garland directed the FBI and all U.S.
Attorneys' Offices to address the ``disturbing spike in
harassment, intimidation, and threats of violence'' at school
board meetings.\11\ Although the Attorney General's memorandum
did not specifically mention ``domestic terrorism,'' the
memorandum mentioned ``threats'' against public officials.\12\
The DOJ's press release accompanying the memorandum noted the
involvement of the National Security Division, and a
whistleblower has alerted the Committee that the FBI's
Counterterrorism Division has been responsible for implementing
the Attorney General's directive. The National School Board
Association (NSBA) letter that triggered the Attorney General's
memorandum equated parents with domestic terrorists and urged
the Biden Administration to use federal authorities, including
the Patriot Act, to target parents.\13\ If threats are conveyed
by a parent or anyone else toward a public official at a school
board meeting, those situations are best handled by state and
local authorities.\14\ Parents exercising their fundamental
right to direct their children's education are not something
that the FBI or any other federal agency needs to monitor with
a greater urgency than actual terrorism.
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\11\Memorandum from Atty Gen. Merrick Garland, U.S. Dep't of
Justice, Partnership Among Federal, State, Local, Tribal, And
Territorial Law Enforcement to Address Threats Against School
Administrators, Board Members, Teachers, and Staff (Oct. 4, 2021).
\12\Letter from Ms. Viola M. Garcia, President, Nat'l School Board
Assoc. & Mr. Chip Slaven, Chief Exec. Officer, Nat'l School Board
Assoc., to President Joseph R. Biden, White House (Sept. 29, 2021).
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In addition, on February 7, 2022, DHS issued a National
Terrorism Advisory Bulletin warning that the United States
remains in a heightened threat and citing so-called ``mis- dis-
and mal-information'' as a source of the increased threat
environment.\15\ According to DHS, the purpose of allegedly
misleading narratives and conspiracy theories is to increase
societal friction and undermine public trust in governmental
institutions.\16\ DHS cited as two examples ``online
proliferation of false or misleading narratives regarding
unsubstantiated widespread election fraud and COVID-19.''\17\
Although DHS admitted that ``conditions underlying the
heightened threat landscape have not significantly changed over
the last year,'' it cited ``the proliferation of false or
misleading narratives, which sow discord or undermine public
trust in U.S. government institutions'' as one factor for why
threat environment remains elevated.\18\ This bulletin is
further evidence of how the Biden Administration has used
existing counterterrorism resources as a tool to target and
silence citizens who disagree with government actions.
H.R. 350 FAILS TO ADDRESS REAL THREATS
H.R. 350 largely ignores domestic terrorism threats from
the left despite the significant violence that left-wing
extremists committed over the last several years. In summer
2020, violent left-wing anarchist extremists used George
Floyd's death as justification to cause violence and
destruction across the country. Dubbed anti-fascists, or
``Antifa,'' these radical extremists openly espoused violence
against American citizens and government officials and
vandalized federal buildings and property. Anarchist groups
like Antifa vandalize property, riot, set fires, and perpetuate
small-scale bombings and usually target symbols of Western
civilization that they perceive to be the root causes of
societal ills.\19\ Former Attorney General William Barr ``made
clear'' that Antifa and other extremist groups were ``involved
in instigating and participating in violent activity.''\20\ FBI
Director Christopher Wray added that Antifa is ``exploiting the
situation to pursue violent extremist agendas . . . .''\21\
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\13\Letter from Ms. Viola M. Garcia, President, Nat'l School Board
Assoc. & Mr. Chip Slaven, Chief Exec. Officer, Nat'l School Board
Assoc., to President Joseph R. Biden, White House (Sept. 29, 2021 ).
\14\Merrick Garland's Federal Offense, Wall St. J. (Oct. 6, 2021 ).
\15\Dept. of Homeland Security, National Terrorism Advisory System,
(Feb 7, 2022, 2:00 pm ET),
\16\Id.
\17\Id.
\18\Id.
\19\Id.
\20\See generally Philip Bump, The Justice Department's rhetoric
focuses on antifa. Its Indictments don't., The Wash. Post (June 4,
2020).
\21\Id.
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H.R. 350 attempts to create a problem where none exists by
requiring investigations into law enforcement and the armed
services for rampant white supremacists or white nationalist
sympathies. Committee Democrats suggest that there are
instances in which members of the armed services have shown
sympathies toward white supremacists or white nationalist
groups.\22\ However, according to the majority's own
information, the various branches of the military have
addressed the Democrat-offered examples of extremism.\23\ As
articulated by the Democrats, every member of the military who
showed an interest or actual participation in a white
supremacist or white nationalist group has faced
discipline.\24\ The relevant branch either demoted the
individual, discharged them, or otherwise disciplined the
sympathizer.\25\ Further, the Democrats concede that the armed
services have taken steps to address these concerns going back
to the 1980s.\26\
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\22\Memorandum from the Hon. Jerrod Nadler, Chairman, Committee on
the Judiciary to Members of the House Judiciary Committee. 8 (March 15,
2022)
\23\Id. at 7-9.
\24\Id.
\25\Id.
\26\Id. at 7.
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REPUBLICAN AMENDMENTS REJECTED BY THE DEMOCRAT MAJORITY WOULD HAVE
IMPROVED THE LEGISLATION
During the Committee's business meeting to consider H.R.
350, Republicans offered several amendments that would have
improved the legislation. Chairman Nadler and the Democrat
majority accepted a minor additional reporting requirement but
refused to include any other substantive proposal from
Republicans.
Representative Biggs and Bishop offered an amendment that
would have prohibited taxpayer dollars from being used by the
FBI to use or create threat tags against parents voicing an
opinion about the upbringing and education of their children.
Committee Democrats rejected the amendment.
Representative Steube offered an amendment that would have
included Antifa, Black Lives Matter and radicalized social
justice organizations, along with white supremacists and neo-
Nazi groups, in the domestic terrorism reporting requirement,
training requirement and the interagency taskforce
investigating internal domestic terrorism threats to law
enforcement and the uniform services. Committee Democrats
rejected the amendment.
Representative Biggs offered an amendment that would have
prohibited taxpayer dollars from being used to monitor,
analyze, investigate, or prosecute any individual who have
declined the administration of the vaccine to COVID-19 or
expressed opposition to such administration. After a dispute
over the wording of the amendment, Committee Democrats rejected
the amendment. Representative Biggs then offered an amendment
that would address the concerns raised by Democrats about the
wording-using a phrase specifically suggested by Representative
Ross. In this iteration of the amendment no appropriated funds
would be authorized to monitor, analyze, investigate, or
prosecute any individual solely because that individual
declined the administration of a vaccine to COVID-19 or
expressed opposition to such administration. Committee
Democrats again rejected this amendment.
CONCLUSION
H.R. 350 continues the pattern of House Democrats feigning
selective outrage at political violence--highlighting and
obsessing about certain violence while ignoring and minimizing
left-wing violence. Republicans, on the other hand, have been
consistent in denouncing all forms of political violence. The
fact is that all domestic terrorism should be investigated,
prosecuted, and interrupted. Law enforcement should be given
the flexibility to decide which threats receive priority based
upon the totality of the circumstances--not which motivating
philosophies are the most disfavored by the Biden
Administration.
Jim Jordan,
Ranking Member.
[all]