Exclusive: Attorney General to detail new guidelines for domestic terrorism investigations and cases
U.S. Attorney General Merrick Garland is expected in his testimony before Congress Wednesday morning to highlight new Department of Justice guidelines for investigations and cases related to domestic terrorism.
The new guidelines, as outlined in a Justice Department memo obtained by Yahoo News, represent significant changes to how cases and investigations into domestic violent extremism are handled by federal prosecutors around the country, and puts in place procedures for tracking those cases.
The new guidelines were sent to federal prosecutors nationwide in a March 8 memorandum from acting Deputy Attorney General John Carlin. The three-page memo is titled “Guidance Regarding Investigations and Cases Related to Domestic Violent Extremism.”
Among other changes outlined in the memo, “prosecutors must submit for review and approval” to the Justice Department Counterterrorism Section in the National Security Division any charges and associated court filing that link a case to domestic violent extremism. The Counterterrorism Section “in its review shall seek to ensure accuracy and consistency in such descriptions in filings nationwide,” the memo says.
The memo also sets out policies for standardizing data collection on domestic terrorism cases. Criminal investigations or cases that involve or are related to domestic violent extremism will be designated as “DVE-related.” Those cases will then be notified “as soon as practicable” to the Justice Department’s National Security Division.
The memo acknowledges the complexity of tracking and coordinating domestic terrorism cases. There is no federal domestic terrorism statute and the memo seeks to cast a broad net in how it applies the term “DVE.”
“What constitutes ‘domestic violent extremism’ and how the Department defines ‘domestic terrorism’ raise important legal and policy considerations. Our response must be consistent, considered, well-coordinated, and informed by the relevant facts and circumstances,” the memo states.
The memo says “the term ‘domestic violent extremism’ should be interpreted broadly and include all violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias and anti-government sentiment.”
Marc Raimondi, a Justice Department spokesperson, confirmed the changes, which he said are “intended to improve the Department’s ability to collect data across the Department on pending federal cases and investigations involving domestic terrorism and domestic violent extremism.”
The memo was drafted following internal Justice Department discussion in response to increasing cases of violent attacks linked to domestic extremists, including the Jan. 6 riot at the Capitol. Garland’s testimony Wednesday will focus in part on these changes as outlined in the memo, and will include a request for funding to support the changes.
“The Administration has submitted a discretionary request for an increase in funding to help counter domestic terrorism and domestic violent extremism,” Raimondi told Yahoo News. “This includes a $40M increase for the U.S. Attorneys Offices, including to help them manage increasing caseloads. At this point, I don’t have more detail I can share on the discretionary request.”
The new guidelines come after repeated requests from Congress for data and statistics on the scope of the domestic terrorism threat in the U.S. prioritization of domestic terrorism across the administration. There was previously no mechanism in place to comprehensively track such domestic terrorism charges nationwide.
The Department of Justice National Security Division tracks international terrorism charges, and federal prosecutors are required to get approval from headquarters to pursue international terrorism charges, but tracking domestic terrorism charges is more complex, in part because there is no federal domestic terrorism statute. Often the cases are brought by state prosecutors, and include charges that might not necessarily on their face appear to be associated with acts of domestic terrorism.
Those charged in connection with the Jan. 6 attack on the U.S. Capitol, for example, have been hit with various federal and state charges ranging from trespassing to disorderly conduct.
Having all U.S. attorneys offices in the country report domestic terrorism related investigations, cases and potential charges back to the National Security Division would create a repository that would, according to the official, provide a more consistent reporting metric for domestic terrorism.
This plan is part of the attorney general’s efforts to prioritize domestic terrorism across Justice Department.
The Justice Department has faced criticism in the past for both not collecting data adequately on domestic terrorism, and also not prioritizing those groups that represent the largest number of attacks, which in recent years have been white supremacists and other right-wing groups.
“Unfortunately, within the domestic terrorism program, the FBI has prioritized investigations of ‘eco-terrorism,’ so-called ‘Black Identity Extremists,’ and ‘antifa’ rather than white supremacist or far-right militant violence, which kills and injures many more Americans each year,” says Mike German, a former FBI agent and now a fellow with the Brennan Center for Justice. “The Justice Department further deprioritizes white supremacist violence by often characterizing it as civil rights violations or violent crimes, which it defers to state and local law enforcement to investigate and prosecute.”
German said better data collection would be a welcome change. “Tracking the number of investigations, indictments and convictions in each program category, and releasing this data publicly, is necessary to allow policymakers and the public to hold the FBI and Justice Department accountable,” he told Yahoo News.
The Justice Department’s change comes ahead of a larger strategy review of domestic terrorism ordered by President Biden. The White House recently announced it expects to release that review in the coming weeks.
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