Discretion Without Oversight: The Federal Government’s Powers to Investigate and Prosecute Domestic Terrorism

Abstract

Following the January 6, 2021 attack on the U.S. Capitol, elected officials and terrorism experts renewed previous calls for Congress to pass a domestic terrorism statute to empower the federal government to pursue white supremacists and other domestic terrorists. However, the debate over whether the federal government needs additional powers to investigate and prosecute domestic terrorism has been hampered by the absence of a full account of the federal government’s existing authorities in this area.

To that end, this article has two purposes. First, it provides a comprehensive summary of the federal government’s powers over the chronological lifespan of a domestic terrorism case, as well as an account of how the government has used these powers in the past. This summary demonstrates that the Executive branch has significant discretion to define and pursue domestic terrorists with limited oversight from the judiciary or Congress. Second, this article urges a reconsideration of the debate surrounding a domestic terrorism statute. Rather than addressing whether the government’s existing powers are sufficient, this article contends that these authorities give the government too much latitude to pursue domestic terrorists. Given the federal government’s history of surveilling, harassing, and prosecuting dissident groups, the current political moment is ripe for civil liberties infringements, as diffuse protest movements across the political spectrum risk being labeled and prosecuted as domestic terrorists. The federal government’s discretionary use of its authorities against ill-defined political groups creates the potential for it to classify political speech and acts of protest as domestic terrorism.

Keywords: domestic terrorism, extremism, Department of Justice, federal prosecutors, investigations, federal criminal statutes, sentencing enhancements