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COLUMN: Why We Must Be Able to Charge Offenders with Domestic Terrorism

The American public is becoming more and more aware of the clear and present danger posed by domestic terrorists. FBI Director Chris Wray testified in March that the number of domestic terrorism investigations had grown from 1,000 just two years ago to 2,000 today. Acts of serious violence that meet the federal definition of domestic terrorism (U.S. Code 18-2331) have increased over the past two decades but are just now getting the attention they deserve. Murders and serious assault crimes that meet the definition of domestic terrorism have far outnumbered deaths and assaults attributed to international terrorism over the past two decades. That in no way means we should take our eye off the threat to our citizens by followers of international terrorism ideologies. We need only remember the nearly 3,000 deaths on 9/11 nearly 20 years ago to know the threat remains very real. Thankfully, the infrastructure to counter this threat is robust.

Domestic terrorism, on the other hand, has been a second-tier priority for the United States government since 9/11. Anyone who has worked the counterterrorism mission and is being honest will agree. This does not mean that hard-working FBI agents, Joint Terrorism Task Force (JTTF) Task Force Officers (TFOs) and federal prosecutors did not care – quite the opposite. These agents, TFOs and AUSAs have fought through constant hurdles to open investigations and find charges to prosecute those we call, but cannot charge as, domestic terrorists.

Over the past two decades I have provided terrorism training to over 40,000 law enforcement and civilian students at countless seminars and events. For years, police academies did not want to include domestic terrorism in the curriculum offered. Many times, I was given a few minutes during a course on suicide bombers or another topic to mention domestic terrorism. As incidents increased across the country, academies and civilian groups became more interested in domestic terrorism. For 18 years, I coordinated the annual “Terrorism Trends Training Conference,” which hosted 400-plus local, state and federal law enforcement officers at a domestic and international terrorism three-day course. Attendees learned warning signs of extremist violence, were given an understanding of the history of extremist elements and were schooled on the importance of protecting First Amendment rights while identifying potential lone offender violence. Most importantly, the agents and officers had an opportunity to network and build professional connections related to counterterrorism efforts. One team, one fight in keeping the citizens of the United States safe from extremist violence.

The domestic terrorism course always started off with the definition of domestic terrorism used by the FBI. U.S. federal code defines domestic terrorism as:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States;

The students were then given briefings on case studies involving acts of domestic terrorism and how the JTTFs investigated these acts of serious political violence. The case studies did not end with “subject was charged with domestic terrorism.” Not because FBI agents, TFOs and prosecutors did not want to charge the subjects with domestic terrorism. They were not charged with domestic terrorism because there are no penalties attached to the definition of domestic terrorism. That’s correct – we have a very good definition and essentially no ability to charge for an act that meets the legal definition.

This doesn’t mean the subjects would go uncharged for these crimes. Agents, TFOs and prosecutors are very good at finding crimes that fit the individual actions of a domestic terrorist. Often subjects are charged with firearms violations and/or explosives violations in the federal courts along with serious charges in state courts such as murder and assault. Rest easy, agents, TFOs and prosecutors work diligently to ensure the victims of these crimes see justice for the crimes committed against them. The problem is that the victims, their families and the public deserve to know when someone is a victim of domestic terrorism and have the crime recorded as such. It matters. Domestic terrorism is serious and needs serious penalties.

On Tuesday, Attorney General Merrick Garland testified in front of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies. The attorney general requested a $45 million increase to funding for the FBI to investigate domestic terrorism. An additional $40 million was requested for prosecutors in the United States Attorney’s Offices across the country to prosecute the increase in domestic terrorism cases. This is an encouraging sign that domestic terrorism cases may be elevated from their second-tier status.

AG Garland knows the issue of domestic terrorism very well. He was one of the lead prosecutors on the 1995 Murrah Federal Building bombing in Oklahoma City. AG Garland supervised the prosecution of Timothy McVeigh for the killing of 168 American citizens, 19 of them children in a daycare, and the injury to over 600 citizens all because of his anti-government ideologies.

McVeigh was charged with killing 15 federal officers and state murder charges for the remaining civilian victims, along with other state and federal charges, but not with domestic terrorism. This case led to calls for change to federal laws as they related to domestic terrorism. In the end, no real change came as political leaders on both sides blamed the other party for grandstanding on the back of a tragedy.

In my eyes, the federal government was not able to bring full justice for the 153 civilians killed or the over 600 injured in the blast. McVeigh did recieve the death penalty for his crimes but was never held accountable in federal court for the murders of the 19 children who were killed while attending daycare in the Murrah Federal building on April 19, 1995. Adding penalties to the federal definition of domestic terrorism matters.

Deputy Assistant Attorney General Brad Wiegmann of the National Security Division testified before the House Appropriations subcommittee last week that the Department of Justice is looking into authorities and whether there may be “gaps”. Wiegmann told lawmakers DOJ is checking to see “If there is some type of conduct that we can envision that we can’t cover, or would it be an otherwise benefit in having something else other than what we’re having now.”

Over the years, important laws have been passed to address and recognize the seriousness of hate crimes. Like acts of domestic terrorism, these offenders could be charged with assault and murder for their attacks. Because of the serious nature of the crimes, and the need to recognize the victims of hate crimes, federal laws were written that added penalties and reporting requirements for acts meeting the definition of a hate crime. Like domestic terrorism, it is not enough to just have a definition. Adding penalties to the federal definition of domestic terrorism matters.

Making domestic terrorism a federal crime would increase transparency and accountability and enable the government to track domestic terrorism incidents. Currently, the government, media and others can only anecdotally document domestic terrorism crimes, leading to a lack of resources to address the problem. If you were to search for the number of international terrorism incidents in the United States over the past decade you would easily get an accurate number. Do the same for domestic terrorism and you would not even be close. You would have to review every murder or assault to see why the crime was committed. You would not find the shooting of nine black parishioners in a South Carolina church by Dylann Roof listed as domestic terrorism. You would not find the murder of Heather Heyer in Charlottesville, Va., listed as an act of domestic terrorism, nor would you find the shooting of members of Congress on a baseball field in Alexandria, Va., listed as an act of domestic terrorism. Clearly these cases fit the federal definition of domestic terrorism:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States;

I am not calling for the designation of domestic groups or ideologies, as is done with international terrorism groups such as ISIS or al-Qaeda. I do not see a need for increased investigative or surveillance authority for law enforcement. By creating penalties for domestic terrorism, the government would make clear that political violence, regardless of the ideology or the background of the actor, is a serious offense. In fact, adding penalties to the definition of domestic terrorism would strengthen our First Amendment rights to free speech and peaceful assembly by making serious acts of violence, committed to intimidate or coerce a civilian population or influence a policy of a government, a crime in and of itself. It is time to do more than just call people domestic terrorists. It is time to charge them for what they are: domestic terrorists.

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Tom O'Connor
Special Agent (SA) Thomas O’Connor entered on duty with the FBI in 1997. SA O’Connor was assigned to work in the Washington Field Office on the Joint Terrorism Task Force. During this time SA O’Connor worked both International and Domestic Terrorism cases. Prior to entering on duty with the FBI, SA O’Connor was a Police Officer in the Commonwealth of Massachusetts. SA O’Connor worked for 15 years as a Municipal Officer leaving for the FBI at the rank of Detective Sergeant. As a Police Officer, SA O’Connor specialized in narcotics and violent gang investigations. During a 23-year career with the FBI, SA O’Connor coordinated investigations related to violent criminal actions by Domestic Extremist. SA O’Connor specialized in white supremacist threats and violence. SA O’Connor was the case Agent for numerous incidents including the shootings at the US Pentagon security entrance and the Family Research Council in Washington DC. SA O’Connor became a subject matter expert related to Domestic Extremist threats and traveled extensively training law enforcement and civic groups on these emerging threats. SA O’Connor served as a Team Leader on the Washington Field Office, Evidence Response Team (WFO ERT). In this capacity, SA O’Connor led forensic teams to multiple terrorist attacks around the globe. These deployments include the 1998 Nairobi Embassy bombing, 2 deployments to Kosovo in 1999 for war crimes investigations, 2000 USS Cole attack in Aden Yemen, SA O’Connor was a coordinator for evidence collection at the 9-11 attack on the US Pentagon, the 2002 N17 bombing in Athens Greece, 2006 attack on the US Consulate in Karachi Pakistan, 6 deployments to Iraq and 3 deployments to Afghanistan. SA O’Connor led the crime scene and evidence recovery for the “Blackwater shooting” in Baghdad Iraq. SA O’Connor worked at the crime scenes of both the 2018 Tree of life Synagogue shooting and the 2019 Virginia Beach government building shootings. During his career on the WFO ERT SA O’Connor specialized in Post Blast Investigation and shooting reconstruction evidence recovery. In 2005 SA O’Connor was assigned to a forward operating based in Iraq to investigate hostage takings. During this deployment SA O’Connor was involved in the rescue of US Citizen Roy Hallums who had been held by extremists for 311 days. SA O’Connor has provided instruction on both Domestic and International Terrorism issues across the United States and overseas. In 2004, SA O’Connor was awarded the Department of Justice “Instructor of the Year” award and was named as an FBI “Master Police Instructor” in 2010. SA O’Connor was certified as an Adjunct Faculty member for the FBI Academy. SA O’Connor is a 2011 graduate of the George C. Marshall, European Center for Security Studies, Program on Terrorism and Security Studies in Garmisch-Partenkirchen, Germany where he continues to instruct as an adjunct professor. SA O’Connor was elected by his peers to the serve on the FBI Agents Associations (FBIAA) National Executive Board for three years, as the Vice President for seven years and President for 3 years, retiring from the FBI on September 11, 2019. This date was chosen to honor the FBI Agents who had passed due to the 9-11 attack and the illnesses related to that terrorist attack. SA O’Connor is currently the Principal Consultant at FedSquared Consulting, providing instruction and consultation on a variety of Counterterrorism topics to both Government and private sector clients. SA O’Connor’s Law Enforcement career has been chronicled in numerous books including Tracy Kidders 1997 “Home Town”, Patrick Creed and Richard Newman’s “Firefight, the battle to save the Pentagon on 9-11”, Kirk Lippold’s “Front Burner” the story of the attack on the USS Cole, Roy Hallums’s “Buried Alive” the story of a hostage rescue after 311 days of captivity, and David Rohde’s “In Deep: The FBI, the CIA and the Truth about America’s Deep State”.

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