Prosecutions for National Security/Terrorism and Domestic Terrorism Remain High in FY 2022
More than a year after the attack on the U.S. Capitol on January 6, 2021, the number of federal prosecutions that fall under the charge group of "terrorism/national internal security" remains high. According to case-by-case data on federal prosecutions from the Justice Department obtained after successful court litigation by TRAC through the Freedom of Information Act, 233 such charges have been filed in the first four months of FY 2022 (October 2021 to January 2022). See Figure 1 for the total number of these prosecutions filed each month over the past five years.
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If the number of these charges continue at this pace, FY 2022 will reach the same high number of charges that we saw in FY 2021. See Figure 2.
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As TRAC found in January, not all of these charges are connected to what are now called the Capitol Breach Cases, nor are all Capitol Breach Cases charged under this program. However, a large number of terrorism/national internal security prosecutions involve charges that are used in prosecutions connected to the events at the Capitol. For instance, out of the 56 such charges brought in January 2022, the charge for "temporary residence and office of President" (18 USC 1752) was the most common. 18 USC 1752 is a common charge against defendants in the Capitol Breach Cases. Other charges under this grouping for January 2022 include 11 charges for conspiracy to commit offense or to defraud US (18 USC 371), five charges for civil disorders (18 USC 231), and three charges for tampering with a witness, victim, or an informant (18 USC 1512).
| Lead Charge | Count | Rank | |
|---|---|---|---|
| 18 USC 1752 - Temporary residence and office of President, etc. | 17 | 1 | More |
| 18 USC 371 - Conspiracy to commit offense or to defraud US | 11 | 2 | More |
| 18 USC 231 - Civil Disorders | 5 | 3 | More |
| 18 USC 1512 - Tampering with a witness, victim, or an informant | 3 | 4 | More |
| 26 USC 5861 - Tax on Making Firearms - Prohibited acts | 2 | 5 | More |
| 40 USC 5104 - Unlawful Activities | 2 | 5 | More |
| 18 USC 175 - Prohibitions with respect to biological weapons | 1 | 7 | More |
| 18 USC 201 - Bribery of public officials and witnesses | 1 | 7 | More |
| 18 USC 842 - Explosives - Importation, manufacture, etc | 1 | 7 | More |
| 18 USC 871 - Threats against President and successors | 1 | 7 | More |
| 18 USC 879 - Threats against former Presidents and certain othe | 1 | 7 | More |
| 18 USC 951 - Agents of foreign governments | 1 | 7 | More |
| 18 USC 1038 - False Information and Hoaxes | 1 | 7 | More |
| 49 USC 46504 - Interference with flight crew members and attendants | 1 | 7 | More |
Of the 56 new national internal security/terrorism charges brought in January 2022, the largest group of 38 cases were filed in Washington D.C. Judge Amit Mehta received 13 of these, the largest among the judges on the D.C. court. Judges Tanya Chutkan and Timothy Kelly each received 4.
Many national internal security/terrorism offenses in recent years have been labeled acts of domestic terrorism. These now outnumber international terrorism prosecutions. A large number of new prosecutions in this category continue to show ties to the Capitol Breach cases that TRAC reported on in a report from April 2021. By the end of FY 2021, there had been 587 prosecutions for domestic terrorism—by far the largest number in TRAC's data going back to 1996. In FY 2022 so far 165 new prosecutions for domestic terrorism have been filed in federal courts, already putting it second to FY 2021 in terms of total numbers. If domestic terrorism prosecutions continue at this monthly rate, FY 2022 will see 495 new prosecutions of this type filed—not quite as high as FY 2021, but setting aside the rise beginning in FY 2020 far above the next highest year in FY 2002 when 162 such prosecutions were filed. See Figure 3.
TRAC had previously found that FY 2020 set a new high in terms of domestic terrorism charges driven, in part, by the large volume of prosecutions filed in Oregon that year related to civil unrest in Portland, Oregon. FY 2021 and FY 2022 far exceed these previous highs, raising serious questions about if and when we will see a decline in alleged domestic terrorism. By contrast, so far in FY 2022, only six new prosecutions have been filed for international terrorism and in January 2022 no new prosecutions were filed. At this rate, FY 2022 may see the fewest of these types of prosecutions since before 9/11.
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Note that this is likely a significant undercount. When filing charges in federal court, the U.S. Attorney's Office typically files them under seal. Until the indictments are unsealed once the individual is arrested, these are not included in the case-by-case data TRAC receives on new federal prosecution filings.
TRAC emphasizes that the term "terrorism" in association with these charges has never been clearly defined or consistently applied. In 2009, TRAC conducted a careful case-by-case comparison of records from the federal courts and from two agencies in the Department of Justice (DOJ). The first DOJ agency, the National Security Division (NSD), has the mission to "protect the United States from threats to our national security by pursuing justice through the law." The second group are federal prosecutors in U.S. Attorney offices who bring these cases.
Each of these three sources carry out their own classification of which crimes are labeled under the heading of terrorism. The result: there was at most only an 8 percent overlap among the three sources in the prosecutions labeled as terrorism, or even international terrorism. The report concluded that "[e]ight years after 9/11, federal agencies can't seem to agree on who is a terrorist and who is not." Now with the growth in concern over domestic terrorism, a lack of consensus continues.