While Definition of Terrorism Fuzzy, Spike in These Prosecutions in 2021 Continues into FY 2022
US federal prosecutors have filed more prosecutions that fall under the charge group of “terrorism/national internal security” in FY 2021 than any year since the aftermath of the terrorist attacks on September 11, 2001. 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, 717 such charges were filed between October 2020 and September 2021—the highest since FY 2005. The most recent month of data for November 2021 shows a continued trend of high numbers of these types of prosecutions; 75 such prosecutions were filed in federal court that month.
Figure 1. Number of Internal Security/Terrorism Prosecutions Filed Each Fiscal Year Since 1998
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Many national security/terrorism offenses in recent years have been labeled acts of domestic terrorism. These now outnumber international terrorism prosecutions. More than 8 out of 10 prosecutions during FY 2021 were for domestic terrorism crimes. 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. For instance, the top charge in November 2021 was for “temporary residence and office of President” (18 USC 1752), a common charge used in court against defendants in the Capitol Breach cases. Indeed, all 30 of these prosecutions were filed in Washington, D.C. See Table 1.
However, not all of the prosecutions filed in November 2021 were directly related to the Capitol Breach cases. A total of 26 prosecutions were recorded as being filed in the Eastern District of North Carolina for the rarely-used charge of trafficking in contraband cigarettes (18 USC 2342). According to a press release issued by the Department of Justice, defendants in the case are accused of attempting to “defraud the federal government, the State of North Carolina, the State of New York, the State of New Jersey, and the Commonwealth of Virginia, of millions of dollars in tax revenues from the sale of cigarettes.”
Although cigarette trafficking may not seem at first to fall under the umbrella of terrorism/internal security charges, in the press release the federal prosecutor in the case claimed that funds collected through this type of illegal activity “could be a source of funding for terrorists.” TRAC’s data show that only one other charge for this offense occurred since the start of FY 2021 (in October 2020); that charge was filed in April 2021.
Figure 2 shows the number of charges filed in federal court each month for 18 USC 2342. The infrequent use of this charge combined with distinct incidents of several dozen charges filed at once suggests that this charge tends to be used in association with groups of defendants. And this charge has been rarely classified under the terrorism category by federal prosecutors in the past. Prior to 2021, none of the prior prosecutions during the past five years were classified as terrorism/internal security. Rather these were simply labeled as government regulatory offenses.
Figure 2. Number 18 USC 2342 Prosecutions Filed Each Month Over Past 5 Years
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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.
 Counts do not include prosecutions filed which are still under seal and have not been made public. Charges are usually filed in federal courts under seal until the defendant can be taken into custody.