A domestic terrorism bill from a powerful Senate chairman could create bureaucratic headaches, jeopardize ongoing investigations, and endanger witnesses, Justice Department officials argued in a memo sent on the last day of the Trump administration and obtained by POLITICO.
At issue is legislation Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) has pushed since 2017. The bill is designed to counter the growing threat from domestic terrorists, which law enforcement officials have called the most lethal terror threat facing the U.S. It would set up offices at the Justice Department, FBI, and Department of Homeland Security to focus specifically on the threat, and it would have those agencies send Congress joint reports on the threat twice a year, among other provisions.
The legislation passed the House of Representatives last year but died in the Senate when Sen. Ron Johnson (R-Wis.) objected to letting it move forward under unanimous consent.
In the wake of the Jan. 6 attack on the Capitol, the bill’s sponsors say its passage is newly pressing. When Durbin re-introduced the bill on Jan. 19, 2021, along with Rep. Brad Schneider of Illinois, he said in a statement that “the continued rise in horrific incidents of domestic terrorism and hate crimes” means Congress must act.
An email from a DOJ official reviewed by POLITICO shows the department sent the memo to the Hill at 9:42 p.m. on January 19 — Trump’s last day in office — in response to a query from committee Republicans.
Committee Democrats saw no coincidence in that timing. One Democratic committee aide said Durbin’s office sought feedback from DOJ on the bill multiple times, without response. The memo — which arrived two weeks after the January 6 attacks and criticized the legislation in blunt terms — touched a nerve.
“It is outrageous,” the aide said. “It really is.”
The memo reflects concerns held by career Justice Department officials, according to multiple sources familiar with the document. And while its timing generated frustration, its contents suggest the legislation will face hurdles.
“It was longtime dedicated career attorneys who took the pen and provided the inputs, and there was really no political calculation in that,” one career DOJ official told POLITICO, conceding that the timing was not great.
The document, titled “Informal, Not-Officially Cleared Comments of the Department of Justice on H.R. 5602, the ‘Domestic Terrorism Prevention Act of 2020,’” is published below in full. It refers to the bill by the title of its 2020 House version.
The document’s most serious concerns focus on a requirement that the FBI share details with Congress about its domestic terror probes. Sharing that information could tip off criminal groups that they’re under investigation, it warns — allowing the groups to destroy evidence and threaten witnesses. It also cautions against a provision of the bill that would have the FBI share details of its domestic terror training to Congress. That would include the names of people providing those trainings — a move that, per DOJ, “could increase the risk that they will be targeted by the very domestic terrorists they are training others to investigate.”
The committee aide said concerns about confidentiality are misplaced, that the FBI has long shared information with Congress, and that sensitive material can be kept confidential. The aide also emphasized that the committee is open to working with the Justice Department to tweak language that may be problematic.
The DOJ document also argued that provisions creating new dedicated domestic terrorism offices could be “counterproductive,” and it zeroed in on part of the legislation that would mandate DHS’s Office of Intelligence and Analysis set up a unit focused on domestic terror. The office had a unit focused on that threat years ago, but it was disbanded during the Trump administration. The DOJ document argued such a unit would overlap with the FBI.
The memo raises further concerns about the bill’s move to set up a domestic terrorism office in the Counterterrorism Section (CTS) of DOJ’s National Security Division. The change would be “unnecessary and potentially harmful,” the document argues. Lawyers in that section specialize in both domestic and international terrorism cases, and the memo argued that dividing them into two groups could hamstring cooperation.
“It would also reduce the absolute number of attorneys available to assist in domestic terrorism cases my [sic] compartmentalizing our efforts,” the document reads.
In response to those concerns, the Democratic committee aide said that the Justice Department regularly pushes back against Congressional efforts to change its structure and priorities. But, the aide continued, the January 6 attacks show federal law enforcement is failing to combat the domestic terror threat and must make changes.
The DOJ document also indicates that career officials there bristle at the prospect of sending more reports to the Hill about domestic terrorism. The requirement, per the DOJ document, would “require substantial additional resources – or a significant shift of existing resources away from investigative activities to fulfill these reporting requirements.” The memo adds that it creates “the risk that the public and the courts would perceive undue political and congressional influence over law enforcement and litigation decisions.”
The committee aide responded to these concerns, noting that requiring more detail from DOJ on the domestic terror threat is well within Congress’s purview — and arguing that DOJ for years has failed to sufficiently combat the growing problem.
DOJ and other federal agencies routinely weigh in as lawmakers draft bills. The Biden administration is conducting a 100-day review on the domestic terror threat, and isn’t expected to articulate any formal positions on potential changes before it’s finished.
A DOJ spokesperson declined to comment. Schneider reiterated his support for the legislation in a statement.
“Violent extremism in America has been increasing in reach and intensity for years, and the attempted insurrection on January 6th demonstrated that federal agencies have failed to fully identify and effectively interdict potential threats of domestic terrorism," he said. "We cannot afford to simply remain complacent. The reporting requirements in DTPA guarantee that federal law enforcement agencies improve their response to this growing threat. The bill provides the training and resources necessary to make a robust investment in tamping down on violent domestic terrorists. As we work on this bill in the House, I will continue to work with Senate Judiciary Chairman Durbin, House Judiciary Chairman Nadler, and relevant agencies to make sure that we pass legislation that will effectively combat domestic terrorism and keep all Americans safe.”
Efforts to move the bill come as Congressional interest in combating domestic terror remains high. The Jan. 6 attack left members and staffers shaken, and literally brought the threat to their doorstep. But it’s been percolating for years, and law enforcement has consistently flagged white supremacist violence as particularly lethal.
During the Trump administration, officials at the Department of Homeland Security tried to get the White House to take aggressive action against the threat. But those efforts bore very limited fruit.
The Biden administration, meanwhile, is treating the threat as a top national security priority. But efforts to combat it will bring challenges, since domestic extremists enjoy Constitutional protections that aren’t afforded to foreign terrorists.
Past efforts to sound alarms about domestic terror have been politically fraught. Early in the Obama administration, a DHS intelligence analyst issued a report raising concerns about far-right extremism. Congressional Republicans objected vociferously, and DHS top brass later apologized for the document. The controversy signaled to counterterrorism professionals that focusing on domestic threats brought career risks.
The Biden administration and members of Congress are now trying to turn the battleship. But the DOJ officials’ concerns about the legislation suggest that process could involve some serious arm-wrestling.
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