[House Report 116-526]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-526
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
DOMESTIC TERRORISM PREVENTION ACT OF 2020
_______
September 21, 2020.--Ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 5602]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5602) 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.............................................. 7
Background and Need for the Legislation.......................... 8
Hearings......................................................... 14
Committee Consideration.......................................... 14
Committee Votes.................................................. 15
Committee Oversight Findings..................................... 21
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 21
Duplication of Federal Programs.................................. 21
Performance Goals and Objectives................................. 21
Advisory on Earmarks............................................. 21
Section-by-Section Analysis...................................... 22
Changes in Existing Law Made by the Bill, as Reported............ 24
Committee Correspondence......................................... 27
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
2020''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Recent reports have demonstrated that White supremacists
and other far-right-wing extremists are the most significant
domestic terrorism threat facing the United States, including--
(A) a February 22, 2019, New York Times op-ed, by a
Trump Administration United States Department of
Justice official, who wrote that ``white supremacy and
far-right extremism are among the greatest domestic-
security threats facing the United States. Regrettably,
over the past 25 years, law enforcement, at both the
Federal and State levels, has been slow to respond. . .
. Killings committed by individuals and groups
associated with far-right extremist groups have risen
significantly.'';
(B) an April 2017 Government Accountability Office
report on the significant, lethal threat posed by
domestic violent extremists, which--
(i) explained that ``[s]ince September 12,
2001, the number of fatalities caused by
domestic violent extremists has ranged from 1
to 49 in a given year.''; and
(ii) noted that ``[F]atalities resulting from
attacks by far right wing violent extremists
have exceeded those caused by radical Islamist
violent extremists in 10 of the 15 years, and
were the same in 3 of the years since September
12, 2001. Of the 85 violent extremist incidents
that resulted in death since September 12,
2001, far right wing violent extremist groups
were responsible for 62 (73 percent) while
radical Islamist violent extremists were
responsible for 23 (27 percent).''; and
(C) an unclassified May 2017 joint intelligence
bulletin from the Federal Bureau of Investigation and
the Department of Homeland Security, which found that
``white supremacist extremism poses [a] persistent
threat of lethal violence,'' and that White
supremacists ``were responsible for 49 homicides in 26
attacks from 2000 to 2016 . . . more than any other
domestic extremist movement''.
(2) Recent domestic terrorist attacks include--
(A) the August 5, 2012, mass shooting at a Sikh
gurdwara in Oak Creek, Wisconsin, in which a White
supremacist shot and killed 6 members of the gurdwara;
(B) the April 13, 2014, mass shooting at a Jewish
community center and a Jewish assisted living facility
in Overland Park, Kansas, in which a neo-Nazi shot and
killed 3 civilians, including a 14-year-old teenager;
(C) the June 8, 2014, ambush in Las Vegas, Nevada, in
which 2 supporters of the far-right-wing ``patriot''
movement shot and killed 2 police officers and a
civilian;
(D) the June 17, 2015, mass shooting at the Emanuel
AME Church in Charleston, South Carolina, in which a
White supremacist shot and killed 9 members of the
church;
(E) the November 27, 2015, mass shooting at a Planned
Parenthood clinic in Colorado Springs, Colorado, in
which an anti-abortion extremist shot and killed a
police officer and 2 civilians;
(F) the March 20, 2017, murder of an African-American
man in New York City, allegedly committed by a White
supremacist who reportedly traveled to New York ``for
the purpose of killing black men'';
(G) the May 26, 2017, attack in Portland, Oregon, in
which a White supremacist allegedly murdered 2 men and
injured a third after the men defended 2 young women
whom the individual had targeted with anti-Muslim hate
speech;
(H) the August 12, 2017, attacks in Charlottesville,
Virginia, in which--
(i) a White supremacist killed one and
injured nineteen after driving his car through
a crowd of individuals protesting a neo-Nazi
rally, and of which former Attorney General
Jeff Sessions said, ``It does meet the
definition of domestic terrorism in our
statute.''; and
(ii) a group of 6 men linked to militia or
White supremacist groups assaulted an African-
American man who had been protesting the neo-
Nazi rally in a downtown parking garage;
(I) the July 2018 murder of an African-American woman
from Kansas City, Missouri, allegedly committed by a
White supremacist who reportedly bragged about being a
member of the Ku Klux Klan;
(J) the October 24, 2018, shooting in Jeffersontown,
Kentucky, in which a White man allegedly murdered 2
African Americans at a grocery store after first
attempting to enter a church with a predominantly
African-American congregation during a service;
(K) the October 27, 2018, mass shooting at the Tree
of Life Synagogue in Pittsburgh, Pennsylvania, in which
a White nationalist allegedly shot and killed 11
members of the congregation;
(L) the April 27, 2019, shooting at the Chabad of
Poway synagogue in California, in which a man yelling
anti-Semitic slurs allegedly killed a member of the
congregation and wounded 3 others;
(M) the August 3, 2019, mass shooting at a Walmart in
El Paso, Texas, in which a White supremacist with anti-
immigrant views killed 22 people and injured 26 others;
(N) the December 10, 2019, shooting at a Kosher
supermarket in Jersey City, New Jersey, in which 2 men
with anti-Semitic views killed 3 people in the store
and a law enforcement officer in an earlier encounter;
and
(O) the December 28, 2019, machete attack at a
Hanukkah celebration in Monsey, New York, in which a
man who had expressed anti-Semitic views stabbed 5
individuals.
(3) In November 2019, the Federal Bureau of Investigation
released its annual hate crime incident report, which found
that in 2018, violent hate crimes reached a 16-year high.
Though the overall number of hate crimes decreased slightly
after three consecutive years of increases, the report found a
4-percent increase in aggravated assaults, a 15-percent
increase in simple assaults, and a 13-percent increase in
intimidation. There was also a nearly 6-percent increase in
hate crimes directed at LGBTQ individuals and a 14-percent
increase in hate crimes directed at Hispanic and Latino
individuals. Nearly 60 percent of the religion-based hate
crimes reported targeted American Jews and Jewish institutions.
The previous year's report found that in 2017, hate crimes
increased by approximately 17 percent, including a 23-percent
increase in religion-based hate crimes, an 18-percent increase
in race-based crimes, and a 5-percent increase in crimes
directed against LGBTQ individuals. The report analyzing 2016
data found that hate crimes increased by almost 5 percent that
year, including a 19-percent rise in hate crimes against
American Muslims. Similarly, the report analyzing 2015 data
found that hate crimes increased by 6 percent that year. Much
of the 2015 increase came from a 66-percent rise in attacks on
American Muslims and a 9-percent rise in attacks on American
Jews. In all 4 reports, race-based crimes were most numerous,
and those crimes most often targeted African Americans.
(4) On March 15, 2019, a White nationalist was arrested and
charged with murder after allegedly killing 50 Muslim
worshippers and injuring more than 40 in a massacre at the Al
Noor Mosque and Linwood Mosque in Christchurch, New Zealand.
The alleged shooter posted a hate-filled, xenophobic manifesto
that detailed his White nationalist ideology before the
massacre. Prime Minister Jacinda Ardern labeled the massacre a
terrorist attack.
(5) In January 2017, a right-wing extremist who had expressed
anti-Muslim views was charged with murder for allegedly killing
6 people and injuring 19 in a shooting rampage at a mosque in
Quebec City, Canada. It was the first-ever mass shooting at a
mosque in North America, and Prime Minister Trudeau labeled it
a terrorist attack.
(6) On February 15, 2019, Federal authorities arrested U.S.
Coast Guard Lieutenant Christopher Paul Hasson, who was
allegedly planning to kill a number of prominent journalists,
professors, judges, and ``leftists in general''. In court
filings, prosecutors described Lieutenant Hasson as a
``domestic terrorist'' who in an email ``identified himself as
a White Nationalist for over 30 years and advocated for
`focused violence' in order to establish a white homeland.''.
(7) On November 3rd, 2019 a 24 year old man who authorities
say was among masked Antifa supporters attacking conservatives
at a June Demonstration in Portland, Oregon, was sentenced
Friday to nearly six years in prison in connection with brutal
assault. Gage Halupowski pleaded guilty to second-degree
assault after authorities accused him of using a weapon against
a conservative demonstrator who suffered blows to the head that
the victim claims left him with a concussion and cuts that
required 25 staples to close.
(8) On December 12, 2019, an assailant involved in the
prolonged firefight in Jersey City, NJ, that left six people
dead, including one police officer, was linked on Wednesday to
the Black Hebrew Israelite movement, and had public anti-
Semitic posts online, a law enforcement official said.
(9) On February 8, 2020, A gunman stormed a NYPD precinct
after firing at police van, wounding 2. The police commissioner
called the Bronx rampage an ``assassination attempt,'' on law
enforcement.
SEC. 3. 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. 4. 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; and
(B) which shall be headed by the Domestic Terrorism
Counsel.
(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 adequate number of employees to perform the
required duties;
(B) have not less than 1 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 April 19, 1995,
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), including
the specific classification or subcategory for
each case.
(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 hate crime incident reported 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 shall construe such
provisions as mutually supplemental, so as to provide for the
most extensive reporting or analysis, and shall comply with
each such requirement as fully as possible.
(c) Domestic Terrorism Executive Committee.--There is authorized a
Domestic Terrorism Executive Committee, which shall--
(1) 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; and
(2) be co-chaired by--
(A) the Domestic Terrorism Counsel authorized under
subsection (a)(2)(B);
(B) a United States Attorney or Assistant United
States Attorney;
(C) a member of the National Security Division of the
Department of Justice; and
(D) a member of the Federal Bureau of Investigation.
(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. 5. 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 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 4(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 4(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 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 each
report, posted on the public website of the Department
of Homeland Security, the Department of Justice, and
the Federal Bureau of Investigation.
SEC. 6. 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 Director, 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 Director,
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. 7. DEPARTMENT OF JUSTICE SUPPORT FOR 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:
``(e) 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 3 of the Domestic Terrorism Prevention Act of 2020).''.
SEC. 8. 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
The need to fight domestic terrorism in America is
increasingly urgent. Over the course of the 116th Congress, the
Committee has investigated this issue, including conducting a
hearing entitled ``Hate Crimes and the Rise of White
Nationalism'' on April 9, 2019. In the hearing witnesses
highlighted Congress' critical role in addressing the
disturbing increase in white supremacist violence, provided
examples of how hate groups have proliferated inside the United
States, and detailed how social media platforms have become
dangerous recruiting tools in the white nationalist movement.
Additionally, the Committee heard testimony from communities
that have been systematically targeted by white nationalist
groups. Since that time a number of additional horrific white
supremacist attacks have occurred.\1\ The shooting spree at a
Walmart in El Paso, Texas, last August, which left 22 people
dead and 24 more wounded, marked the deadliest attack in modern
times against the Latino community in the United States.\2\ The
El Paso attack was also the third deadliest act of violence by
a domestic extremist in more than 50 years.\3\ In addition,
since the deadly rampage at Pittsburgh's Tree of Life
synagogue, at least 16 white supremacists have been arrested
for their alleged roles in terrorist plots, attacks or threats
against the Jewish community.\4\ And, over the last decade,
right-wing extremists have been responsible for 75 percent of
all domestic extremist-related murders.\5\ These attacks are a
stark demonstration of the threat white supremacist
organizations pose.
---------------------------------------------------------------------------
\1\Murder and Extremism in the United States in 2019, Anti-
Defamation League (Feb. 2020), https://www.adl.org/murder-and-
extremism-2019#introduction-murder-and-extremism-in-the-united-states-
in-2019.
\2\Id.
\3\Id.
\4\One Year After the Tree of Life Attack, American Jews Face
Significant Threats, Anti-Defamation League (Oct. 18, 2019), https://
lasvegas.adl.org/news/adl-report-right-wing-extremists-killed-38-
people-in-2019-far-surpassing-all-other-murderous-extremists/.
\5\See Murder and Extremism in the United States in 2019.
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With three-fourths of all domestic terrorist attacks coming
from white supremacists, the federal government must allocate
its resources to the most deadly threats. H.R. 5602 authorizes
the collection of data, call for the results of the data
collection to be published, and requires the FBI to focus its
resources on the greatest threats. Additionally, H.R. 5602
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 will provide Congress
joint biannual reports assessing the state of domestic
terrorism threats, with a specific focus on white supremacists.
Background and Need for the Legislation
I. DOJ'S HATE CRIMES & DOMESTIC TERRORISM ENFORCEMENT REGIMEN
The DOJ was created in the post-Civil War era, motivated,
at least in part, by Congress' intent to enforce the
Reconstruction Amendments and to have an entity within the
Executive Branch to serve as a ``champion'' of civil rights.\6\
To this day, DOJ serves as the Nation's chief law enforcement
organization and carries out the United States' efforts to
protect civil rights and it does so 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.\7\ 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.\8\
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\6\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).
\7\18 U.S.C. Sec. 245 (2018).
\8\18 U.S.C. Sec. 249 (2018).
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Following the passage of the Civil Rights Act of 1957, DOJ
created the Civil Rights Division (CRT).\9\ Along with
individual U.S. Attorney's 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.\10\
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\9\Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634
(1957).
\10\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.
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The Department's manner of prosecuting terrorism cases has
changed substantially in the last 20 years. Before the
September 11th attacks, 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.\11\ Following the September 11th
attacks, Congress enacted the USA PATRIOT Act of 2001 (Patriot
Act), which ushered in a dramatic shift in law enforcement
authority.\12\ Title VIII of the Patriot Act changed the
definition of domestic terrorism, added a number of crimes to
the list of those labeled terrorism, and criminalized
cyberterrorism.
---------------------------------------------------------------------------
\11\National Consortium for the Study of Terrorism and Responses to
Terrorism, Patterns of Intervention in Federal Terrorism Cases 7 (Aug.
2011), https://www.dhs.gov/sites/default/files/publications/
OPSR_TP_Countermeasures-Patterns-Intervention-Federal-Terrorism-
Cases_Aug2011-508.pdf.
\12\USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).
---------------------------------------------------------------------------
In 2005, the FBI established the National Security Branch
(NSB) to merge 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
the Foreign Intelligence Surveillance Act (FISA) litigation
sections. The NSB and NSD form the vanguard of the Nation's
efforts to prevent and prosecute terrorism cases.
In the last year, the FBI has changed the way it approaches
domestic terrorism. In his testimony to the Senate Homeland
Security Committee in 2019, FBI Director Christopher Wray,
noted that terrorism, including domestic terrorism, remains the
FBI's primary focus.\13\ Director Wray noted that white
supremacists constitute the largest share of domestic
terrorists and that white supremacists have perpetrated the
``most lethal'' attacks in the last few years.\14\ 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.''\15\ At any given time, the FBI has ``about
900 [open] domestic terrorism investigations,'' a ``huge
chunk'' of which ``involve racially motived violent
extremists.''\16\ Of these, the most lethal ``over the last few
years'' have involved white supremacists.\17\
---------------------------------------------------------------------------
\13\Threats to the Homeland Before the S. Homeland Security & Gov.
Aff. Comm., 116th Cong. (2019) (statement of Christopher Wray, FBI
Director).
\14\Id.
\15\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.
\16\Id.
\17\Id.
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II. HATE CRIMES AND DOMESTIC TERRORISM STATUTORY AUTHORITIES
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.''\18\
---------------------------------------------------------------------------
\18\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.\19\
---------------------------------------------------------------------------
\19\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 domestic terrorism.\20\
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;\21\ hostage taking;\22\ or willful or malicious
destruction of any of the works, property, or material of any
communication line, station, or system.\23\ 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.\24\ 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.\25\
---------------------------------------------------------------------------
\20\Michael German & Sara Robinson, Wrong Priorities on Fighting
Terrorism, Brennan Ctr. 5 (Oct. 31, 2018), https://
www.brennancenter.org/publication/wrong-priorities-fighting-terrorism.
\21\18 U.S.C. Sec. 844(i) (2018).
\22\18 U.S.C. Sec. 1203 (2018).
\23\18 U.S.C. Sec. 1362 (2018).
\24\See German & Robinson, supra note 15, at 8.
\25\See id.
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Section 5602 of the National Defense Authorization Act for
Fiscal Year 2020, which was sponsored by Representative Bennie
Thompson and signed into law by President Trump in January
2020, included a domestic terrorism reporting requirements.\26\
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.\27\ 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.\28\ 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.\29\ Notably, the NDAA amendments make
clear that these documents and reports shall, to the extent
possible, be unclassified and publicly available.\30\
---------------------------------------------------------------------------
\26\National Defense Authorization Act for Fiscal Year 2020,
S.1790, 116th Cong. Sec. 5602 (2019).
\27\See id. at Sec. 5602.a-b.
\28\See id. at Sec. 5602.a-b, e.
\29\See id. at Sec. 5602.d (yearly publication for 5 years).
\30\See id. at Sec. 5602.e.
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III. CONGRESSIONAL REPORTING DEFICIENCIES
From the mid-1980s through the 2000s, the FBI issued an
annual report, Terrorism, which provided insight on both
domestic and international terrorist threats.\31\ Despite its
great value, the publication was discontinued in 2005, leaving
a dearth of clearly tracked information. In February 2019,
House Homeland Security Committee Chairman, Bennie Thompson,
and House Judiciary Committee Chairman, Jerrold Nadler, sent a
letter to FBI Director Wray, inquiring about the
discontinuation of this reporting.\32\ In a March 27, 2019
response, Director Wray cited ``resource allocation issues'' as
the reason for its discontinuation.\33\
---------------------------------------------------------------------------
\31\FBI, Terrorism 2002/2005, https://www.fbi.gov/stats-services/
publications/terrorism-2002-2005 (last visited Feb. 26, 2020).
\32\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).
\33\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).
---------------------------------------------------------------------------
IV. ``BLACK IDENTITY EXTREMIST'' DESIGNATION
During Attorney General Jeff Sessions' tenure, the FBI's
counterterrorism intelligence gathering came under heavy
criticism. In an August 2017 Intelligence Assessment
(Assessment) the FBI's Counterterrorism Division designated
``Black Identity Extremists'' as a modern iteration of groups
such as the Black Liberation Army, which was involved in a
number of violent incidents in the 1970s. Based on a number of
high-profile cases involving police use of force against
African-American individuals, the FBI speculated in the
Assessment--which was leaked to the press--that there may be a
resurgence of attacks by what the FBI gave the new label
``Black Identity Extremists.''\34\ Civil rights and civil
liberties groups roundly criticized the Assessment, both for
the rhetoric it used, and for the FBI's apparent unwarranted
focus on protest groups largely made up of African
Americans.\35\ The Congressional Black Caucus also expressed
concerns, including that the Assessment conflated black
Americans exercising free speech with violent extremism.\36\
There are no specific ``black identity extremist'' groups named
in the report nor did the report describe any shared ideology
or name any leaders. The report further reinforced repeated
concerns voiced by advocates that the FBI was unnecessarily
surveilling leaders in Black Lives Matter protests.
---------------------------------------------------------------------------
\34\FBI, Intelligence Assessment, Black Identity Extremists Likely
Motivated to Target Law Enforcement (Aug. 3, 2017), https://
www.documentcloud.org/documents/4067711-BIE-Redacted.html.
\35\See e.g., Andrew Cohen, The FBI's New Fantasy: `Black Identity
Extremists', Brennan Center (Oct. 11, 2017), https://
www.brennancenter.org/blog/fbi-new-fantasy-black-identity-extremists.
\36\See Letter from the Congressional Black Caucus to Christopher
Wray (Oct. 13, 2017), https://cbc.house.gov/uploadedfiles/
cbc_rm_thompson_cummings_conyers_letter_to_fbi_re_intel_assessment.pdf.
---------------------------------------------------------------------------
In April 2019, the FBI notified Congressional staff that it
was modifying how it categorized hate crimes 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.\37\ 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.\38\
---------------------------------------------------------------------------
\37\Oversight of the Federal Bureau of Investigation Before the H.
Jud. Comm., 116th Cong. (2020) (statement of Christopher Wray, FBI
Director).
\38\Id.
---------------------------------------------------------------------------
V. 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.\39\ The Ku Klux Klan openly recruited members of the
military through the 1980s.\40\ In 1986, the Defense Department
began efforts to stem servicemembers' participation in white
supremacist organizations when Defense Secretary Caspar
Weinberger ordered military personnel to reject these
organizations.\41\ Commanders inconsistently applied the 1986
directive, thus allowing some white supremacists to continue to
serve.\42\ After the 1995 Oklahoma City bombing, the Department
of Defense explicitly banned servicemembers from participating
in white supremacist organizations.\43\ This policy largely
remains in place.
---------------------------------------------------------------------------
\39\Exec. Order No. 9981, 3 C.F.R. Sec. 772 (1941-1948).
\40\Dave Philipps, White Supremacism in the U.S. Military,
Explained, N.Y. Times, (Feb. 27, 2019), at A22.
\41\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).
\42\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
\43\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 facilities in Overland Park, Kansas.\44\ 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.\45\
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 in uniform.\46\ More recently, a
number of then-current and former servicemembers were linked in
2017 to the Atomwaffen Division, a violent white supremacist
group.\47\ Yet, the Department of Defense (DoD) reported to
Congress that only 18 servicemembers have been discharged for
extremist activity over the past five years.\48\ A recent 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.\49\
---------------------------------------------------------------------------
\44\Steven Yaccino & Dan Barry, Bullets, Blood and Then Cry of
`Heil Hitler', N.Y. Times (Apr. 14, 2014), at A1.
\45\Id.
\46\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.
\47\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.
\48\Philipps, supra note 30.
\49\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, entitled ``Alarming Incidents of
White Supremacy in the Military--How to Stop It?,'' 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 in military extremism testified
about the rise in white supremacist ideology among both active
and retired servicemen and women.\50\ During the hearing, DoD
representatives from the criminal investigations divisions of
the represented military branches acknowledged that their
respective agencies do not generally pursue 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.\51\ Even in those circumstances,
where the DoD confirms active participation, removal from
military service is not required.\52\
---------------------------------------------------------------------------
\50\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.
\51\Id.
\52\Id.
---------------------------------------------------------------------------
In 2019, however, 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.\53\ 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, online, had praised Nazis and discussed running
over demonstrators.\54\
---------------------------------------------------------------------------
\53\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/.
\54\Shawn Snow, 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/.
---------------------------------------------------------------------------
VI. WHITE SUPREMACY IN LAW ENFORCEMENT
White supremacists have long sought to infiltrate law
enforcement agencies.\55\ 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.\56\ 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
supremacists activity.\57\ These efforts have uncovered
hundreds of white supremacists who are currently employed or
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.\58\
---------------------------------------------------------------------------
\55\Vida B. Johnson, The Epidemic of White Supremacist Police, The
Appeal (Aug. 7, 2017), https://theappeal.org/the-epidemic-of-white-
supremacist-police-4992cb7ad97a/.
\56\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/.
\57\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.
\58\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.
---------------------------------------------------------------------------
More recently, following the death of George Floyd on May
25, 2020, law enforcement agencies have faced additional
scrutiny, with particular focus on the presence of racism and
white supremacy among some law enforcement officers. A number
of published reports have discovered examples of law
enforcement officers who espouse white supremacist beliefs. One
such example that has received nationwide attention involves
three law enforcement officers in Wilmington, North Carolina,
who made racist remarks on tape and urged civil strife.\59\
---------------------------------------------------------------------------
\59\Jason Slotkin, North Carolina Police Chief Fires Three Officers
Over Racist Comments Caught On Tape, NPR (Jun. 25, 2020), https://
www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/
25/883358818/wilmington-n-c-police-fires-three-officers-over-racist-
comments-caught-on-tape.
---------------------------------------------------------------------------
Hearings
In compliance with section 103(i) of House Resolution 6, On
April 9, 2019, the Judiciary Committee held a hearing titled,
``Hate Crimes and the Rise of White Nationalism,'' to
investigate the recent spread of white identity ideology, the
effect white nationalist groups have had on impacted
communities, and the increase in domestic terrorist acts
motivated by hate.
Committee Consideration
On March 11, 2020, the Committee met in open session and
ordered the bill, H.R. 5602, favorably reported, an amendment
in the nature of a substitute with one additional amendment, by
a recorded vote of 24 to 2, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following votes occurred during the Committee's consideration
of H.R. 5602.
1. An amendment by Mr. Buck to supplement the finding
section of the bill by adding a number of additional examples
of extremist violence and in requiring the FBI to consider
Antifa, anarchists, fascist, socialists, ant-Semites, and black
supremacists in making the threat assessments required by the
H.R. 5602, was defeated by a rollcall vote of 19 to 9.
2. An amendment by Mr. Reschenthaler that would have added
to a number of the bill's sections that require federal
agencies to specifically review neo-Nazis, Antifa, and other
violent hate organizations when assessing threats, was defeated
by a rollcall vote of 16 to 10.
3. Motion to report H.R. 5602, as amended, favorably was
agreed to by a rollcall vote of 24 to 2.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report. These include conclusions
by the Committee following the February 5, 2020, oversight
hearing on the Federal Bureau of Investigation. The sole
witness during February 5, 2020, hearing was the Honorable
Christopher A. Wray, Director of the FBI.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office (CBO). The Committee
has requested but not received from the Director of the CBO a
statement as to whether this bill contains any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures.
Duplication of Federal Programs
No provision of H.R. 5602 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance. As detailed in the descriptive
portions of this report, the Amendment in the Nature of a
Substitute that the Committee favorably reported clarified the
Committee's intent that the reporting requirements in H.R. 5602
supplement those mandated in current law by Section 5602 of the
National Defense Authorization Act for Fiscal Year 2020.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5602 would facility 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 rule XXI of the Rules of the
House of Representatives, H.R. 5602 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 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 2020''.
Sec. 2. Findings. Section 2 of the bill makes a number of
findings related to the significant domestic terrorism threat
facing the United States, including that white supremacists and
other far-right-wing extremists are the most significant
domestic terrorism threat facing the country.
Sec. 3. Definitions. Section 3 of the bill defines several
terms, including ``domestic terrorism,'' which means
``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''; and
excludes acts perpetrated by individuals associated with or
inspired by foreign terrorist organizations.
Sec. 4. Offices to Combat Domestic Terrorism. Section 4 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.
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.
This section clarifies that all hate crime incidents must
be reviewed to determine whether an incident also constitutes a
domestic terrorism-related incident. The joint report 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. If any
provision is duplicative of another reporting provision already
in law, the agencies shall provide for the most extensive
reporting analysis.
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. 5. Training to Combat Domestic Terrorism. Section 5 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 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. 6. Interagency Task Force. Section 6 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. 7. Department for Justice Support for Hate Crime
Incidents with a Nexus to Domestic Terrorism. Section 7 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. 8. Authorization of Appropriations. Section 8 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.
(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) 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 3 of
the Domestic Terrorism Prevention Act of 2020).
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