This story was originally published by ProPublica.
In the days leading up to the attack on the United States Capitol, the FBI received information that extremists were planning violence while lawmakers met in Washington to certify electoral victory for President-elect Joe Biden.
FBI officials have managed to dissuade people in various places from their suspicious plans, said a senior FBI official – but there was insufficient evidence to issue arrest warrants.
“Before this event, the FBI obtained information about individuals who planned to travel to the protests, individuals who planned to engage in violence,” said the senior FBI official. “The FBI was able to discourage these individuals from traveling to DC.”
Although the officer did not describe the tactics used, it is not uncommon for the FBI to stop potential threats by alerting suspected extremists, passing the word indirectly through informants or using local police to pursue suspects for lower-level crimes.
The FBI shared intelligence on potential threats with the Capitol Police, which has been on the FBI-led Joint Terrorism Task Force in Washington since 1995. But, for reasons that remain unclear, a security implementation highly criticized by the police was unable to avoid the attack on the Capitol on Wednesday.
In recent years, federal officials have described American extremists as the most urgent terrorist threat to the country and have increased resources against them, carrying out a wave of prosecutions this year to avoid potential violence as the presidential election approaches.
But federal officials have been more successful in combating international terrorists than domestic-focused ones, reflecting the legal limits on investigations by American political groups, the opaque and evasive nature of the threat, and President Donald Trump’s adherence to far-right groups, experts say.
A fundamental problem is that, although federal laws provide a definition of domestic terrorism, there is no specific law that prohibits it.
The reasons date back to 1975, when an investigation by the United States Senate Church Committee documented that the FBI abused its powers by engaging in a pattern of spying on American citizens in groups ranging from the Black Panthers to the Ku Klux Klan .
The government has imposed strict limits on the ability of the FBI and other agencies to infiltrate and track these organizations, with new laws and rules laying down stricter requirements for surveillance of Americans than foreigners. Today, FBI counterterrorism officials make a point of saying that they target individuals rather than groups, and violent acts rather than ideologies.
Although federal law punishes terrorist attacks in certain circumstances, such as the use of explosives, it does not impose penalties on the crime of domestic terrorism. Authorities rarely file domestic terrorism charges against suspected American extremists, resorting instead to prosecutions for hate crimes, illegal possession of weapons and other federal or state violations.
Federal agents are often unable to use the laws applicable to international cases, where charges of material support for terrorism can result in a 15-year prison sentence for the simple act of providing a phone card to a suspect linked to a group. foreign. Civil liberties protections for Americans make it more difficult for investigators to persuade judges to authorize wiretapping and other forms of surveillance.
Unlike Al-Qaeda, ISIS and other officially designated foreign terrorist organizations, American groups like the KKK are legal and extremists cannot be prosecuted simply for belonging to them or for helping them.
The scenes of Congressional representatives cowering on the floor of the House on Wednesday are likely to revive calls for new domestic anti-terrorism legislation. A tougher law, experts say, could have helped authorities prevent the attack on the Capitol – to some extent. While the attack on Congress may fit the definition of domestic terrorism, the perpetrators do not appear to have been the type of well-organized and heavily armed extremists that the FBI has become adept at tracking.
In a separate case suggesting that authorities were watching over well-known groups, Washington city police officers arrested Henry “Enrique” Tarrio, the leader of the right-wing group Proud Boys, shortly after he landed in the capital on January 4. He was charged with destruction for misdemeanor property and possession of high-capacity firearms magazines in connection with the burning of a Black Lives Matter banner at a local church in December.
Authorities did not say that Tarrio was planning any criminal activity this week, however.
As ProPublica reported on Wednesday, Trump supporters spent weeks complaining on social media about their plans to go to Washington and protest violently when Congress met to certify an election they considered stolen. Federal agencies closely monitor discussions on extremist platforms.
But the senior FBI official said he was unaware of any tough intelligence – such as operational details – about plans to invade Capitol.
Veteran counterterrorism officials say the sheer, bombastic volume of conversations on these forums makes it a challenge to differentiate between conspiring and complaining. The FBI, the Department of Homeland Security and other agencies also face strict legal limits on their ability to track political speeches protected by the constitution.
“You are concerned that a splinter group will radicalize and become violent. You are also concerned about overdoing it, ”said a former FBI national security officer. “You are doomed if you do, damned if you don’t. We will always be criticized for collecting intelligence, for doing too much or not enough. “
Another FBI counterterrorism veteran said he had no doubts about what to call the Capitol invasion on Wednesday.
“The definition of terrorism is the use of a threat of force or violence to influence a government’s policy,” said retired agent Thomas O’Connor. “You had people who physically and violently broke down doors and prevented legislative action. This is an act of domestic terrorism, in my opinion. “
For 23 years on the FBI’s Joint Task Force on Terrorism in Washington, O’Connor has led high-profile investigations around the world, from the Al Qaeda bombings at the United States embassies in Africa in 1998 to the massacre of 11 people on the Tree Synagogue of Life in Pittsburgh in 2018.
He developed a special interest and experience in domestic terrorism. He was a rarity in that sense. Many agents find the work frustrating and unpleasant compared to combating foreign networks that are designated as illegal and more clearly defined and dangerous organizations.
However, the past decade has brought an increase in US extremism, especially on the right. The FBI declared in 2019 that there have been “more deaths caused by domestic terrorists than by international terrorists in recent years”.
When O’Connor investigated a leftist activist who carried out a shooting attack on a conservative research organization in 2012, legal complications forced prosecutors to prosecute the sniper under city laws, rather than federal terrorist statutes. This experience and others like it convinced him of the need for a statute that explicitly prohibits domestic terrorism and hardens the government’s ability to prosecute it.
O’Connor cited the case of a white supremacist who killed nine people in an African American church in Charleston, South Carolina, in 2015. If the killer had declared himself a radical Islamist, he would almost certainly have been convicted of terrorism, instead of a hate crime, O’Connor said. “If your family is killed in a church in South Carolina, I think I would like you to know that” Dylann Roof “was a terrorist.”
A crucial challenge in passing a new law would be the politically sensitive topic of designating domestic political movements as terrorist organizations. The proposed legislation has sought to safeguard legitimate political activity, while reducing the legal ambiguities of the offense and other obstacles to enforcement and prosecution.
“Cases that meet the existing legal definition of domestic terrorism are often deprived of crucial resources for federal investigation and prosecution,” wrote Amy Collins, a former Justice Department employee, in a study for the George Washington Extremism Program University last June.
Trump’s repeated description of federal agencies as part of a so-called deep state has also hampered the application of domestic terrorism crimes, O’Connor and other former agents said. Some local law enforcement agencies have refrained from helping the FBI-led counterterrorism task forces, said the former FBI national security officer.
In addition, the president’s mutual affinity for far-right groups has discouraged some federal officials from pursuing the threat as actively or prominently as they should, he said.
“To be frank, if you have a president with no message to be proactive against these groups, in fact, just the opposite, you will lack enthusiasm if the commander in chief does not support this,” said the former FBI officer. . said.
Trump supporters who invaded the Capitol may also have benefited from hiding in plain sight. They were not extremists with a well-developed project, like a bombing or a murder, the kind of threat that FBI agents monitor with interceptions and informants and in chat rooms. Instead, they may have joined behind some leaders with a vague plan that took advantage of weak defenses and mob mentality.
“Sometimes you lose things because they are not there to take,” said O’Connor. “It’s difficult when you have a group doing protected activities under the First Amendment. You have to walk the tightrope. In that case, there may be nothing to collect. Without concrete weft. “