What America needs to fight the new homeland threat

Jan. 6 will be regarded as an awakening, much in the way that 9/11 was, for many Americans and for our government. The attack on the Capitol must change the way we fight domestic terrorism. As with 9/11, we face an entirely new threat landscape. And now, as then, we need new ideas, tools and authorities, and a commitment to preserving our civil liberties and emotional sobriety so that we do not do more harm than good. 

Among the new ideas the 9/11 Commission considered, but recommended against, was a domestic intelligence agency. But the events of Jan. 6 have changed that. The FBI needs a domestic intelligence agency. It also needs criminal statutes for domestic terrorism to support intelligence collection, and investigative resources to preemptively identify and disrupt threats.

Today’s threat has evolved well beyond the boxes in which we currently try to fit it. Terrorism is defined as “the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.” It is embraced by groups and individuals that transcend borders, race and ethnicity. Foreign jihadists, white supremacists, ultra-nationalists and the predominantly white, far-right supporters of President Trump — who assaulted police officers, vandalized the Capitol and carried zip ties while seeking out elected officials — all share the sense of divine righteousness to strike violently against a perceived illegitimate government that threatens their way of life, and those who support it.

Today, we reap what was sowed over the course of the past five years, during which Trump and those in the GOP who embraced his voice weaponized the victimization, xenophobia and racism of their political base. As those unwilling to turn the page go underground to continue their fight, we will face the threat of lone wolf attacks, a phenomenon against which law enforcement has struggled. 

The most devastating lone wolf attacks shared similar features. Most of the perpetrators had crossed FBI or local law enforcement radar in some form. Though suspicious, such individuals failed to meet the threshold for continued investigative resources. Even after their attacks, the government was generally quick to brand many of the attackers as mentally unstable, rather than as terrorists.

Notable examples include the recent bombing in Nashville, the 2018 shootings at Marjory Stoneman Douglas High School, the 2017 Las Vegas massacre, 2016 Orlando nightclub shooter Omar Matteen, the 2015 San Bernardino shooter, and the 2013 Boston Marathon bombers. 

The FBI investigated Omar Mateen for 10 months in 2013, and again in 2014, but dropped the efforts in the absence of legal cause. Boston Marathon bomber Tamerlan Tsarnaev twice came to law enforcement’s attention even before the FBI received Russian government warnings, then-FBI Director Robert Mueller acknowledged. “At that point in time,” Mueller said, “I do not know that there was much else that could be done within the statutes, within the Constitution, to further investigate him.” And the lone wolf, white supremacists and ultranationalists responsible for attacks against Black churches, synagogues, mosques and other places of worship almost all had come to the attention of law enforcement or were prolific advocates for racial violence on social media.

As a spy, I cultivated relationships with foreign jihadists — not just with those in detention, but with double agents I recruited to work against their own organizations. Though having betrayed their cause to collaborate for personal, often family-driven agendas, few renounced their original ideologies, merely the violence to support it. Consistent in their radicalization was an unrepentant willingness to inflict the most horrifying brutality against their neighbors. Their radicalization equipped them to dehumanize victims, relieved them of humanity, guilt and remorse. They acted from a perceived disenfranchisement and lack of options in the face of a dystopian and unjust future that drove them to resist by any means — sentiments apparently reflected among some of the Capitol rioters. 

The 9/11 Commission Report barely conceived of today’s domestic terror threat, but concluded that “the most important failure was one of imagination.” Its consideration of a domestic intelligence agency was explored in a subsequent, congressionally-directed Department of Homeland Security feasibility study. The findings deliberately resisted advocating for or against a new agency, instead outlining advantages and disadvantages. It found that while a new agency “might possess greater clarity of mission” and “address some problems with current approaches to domestic intelligence, so might other approaches, such as reallocating resources, changing regulations or laws, or enhancing agency collaboration.”

Mueller fended off calls for a stand-alone domestic intelligence agency throughout 2003, though Congress continued to express concern that the FBI’s law enforcement culture, decision-making process and collection techniques might undermine its effectiveness to counter the homeland threat. Indeed, despite adding the National Security Branch, Intelligence Branch and Counterterrorism Division, the FBI, like other law enforcement agencies, investigates when a law has been broken or there’s evidence that a violent aspirational idea is more than an American’s exercising of the First Amendment right to free speech.

Americans recognize domestic terrorism in the manner of former Supreme Court Justice Potter Stewart’s infamous 1964 characterization of pornography — “I know it when I see it.” But while federal statute provides a definition for domestic terrorism, it is not a chargeable criminal offense carrying penalties. Still, law enforcement agencies argue that domestic terrorism statutes are unnecessary, given other laws against violence and weapons of mass destruction — a defense that fails to address the conditions that forced the FBI to drop its work against Orlando shooter Mateen and Boston bomber Tsarnaev, among others.

And unlike intelligence agencies focused on collecting information for foresight, rather than accumulating evidence for prosecution, law enforcement relies on sources recruited among those who have broken the law and whose cooperation is leveraged.  

Adding new bureaucracies and laws comes with risk. Indiscriminate use of our resources dilutes capabilities, and a cure that compromises our civil liberties is worse than the disease. But any new agency would be subject to scrutinization by the Privacy and Civil Liberties Oversight Board and ongoing congressional oversight. 

Whether or not the U.S. should revisit the idea of establishing a stand-alone domestic intelligence agency, or provide the FBI a subordinate service with new domestic terrorism authorities, is a matter for public debate. But absent a strategy supported by the resources, authorities and political will to succeed, the status quo puts us at risk of more unthinkable events yet to come.

Douglas London retired from the CIA’s Clandestine Service in 2019 after a 34-year career. He is an adjunct associate professor at Georgetown University’s School of Foreign Service’s Center for Security Studies and a nonresident fellow at the Middle East Institute. His book, “The Recruiter: Spying and the Lost Art of American Intelligence,” will be available in September 2021. Follow him on Twitter @douglaslondon5.