By Terence Check
In June 2021, the Biden Administration released the United States’ first ever National Strategy for Countering Domestic Terrorism. While nominally directed at all domestic terror threats, which include anarchist attacks and acts of violence against Asian-Americans regardless of the race of the perpetrator, the Strategy makes clear that the greatest domestic violent extremist (DVE) threat comes from White racially motivated violent extremists (RMVEs) who believe in the superiority of the White race. The emphasis on White RMVEs permeates the Strategy, and rightly so. The Intelligence Community’s (IC) 2021 assessment of the threat of domestic violent extremism made clear that—while domestic terrorism runs across the political spectrum and can be found in any demographic group—White militia extremists and RMVEs pose the most serious threat.
White RMVEs in the United States have an attribute that makes this threat different: they share ideological links to other like-minded White RMVEs in other countries. In the words of the IC, “US RMVEs who promote the superiority of the white race are the DVE actors with the most persistent and concerning transnational connections.” After all, many White supremacist and White nationalist ideologies leverage and use iconography from foreign past and present White nationalist groups. The IC assessed that US-based White RMVEs influence (and are in turn influenced by) other foreign extremists motivated by their belief in the superiority of the White race. The IC Assessment made an even more concerning observation: not only do foreign and domestic White extremists collaborate on the internet and social media, but “a small number of US RMVEs have traveled abroad to network with like-minded individuals.”
It is possible that foreign RMVEs may also travel to the US and to other foreign countries for similar purposes. With the growing rise of violent White nationalist movements and the propensity of lone actors affiliated with such ideologies to commit attacks in other Western democracies abroad, the federal government should consider how existing traveler screening tools can address the transnational movements of foreign White RMVE actors as an important part of the new Strategy. This article examines how these existing tools can address this resurgent threat.
The current Strategy rightly focuses on the need to share information and to focus on transnational dimensions of white RMVE terrorism movements. Strategic Goal 1.2 calls for broader and enhanced information-sharing within the federal government and with other “external partners.” The text of this Strategic Goal, however, focuses primarily on other governments within the United States, wisely looking to facilitate information-sharing and the distribution of intelligence products with state, local, tribal, and territorial governments. This Strategic Goal, however, remains silent on the question of international information-sharing with allied foreign governments to address the international movement of foreign RMVE terrorists. Strategic Goal 1.3 does focus on the international dimensions of the domestic terror threat, but limits said focus to countering malign influence and dissemination, designating foreign terrorist organizations, and constraining the financial activities of terrorist groups.
There is no mention of the traveling foreign terrorist fighter phenomenon, as hinted at in the IC Assessment, and thus no description of the importance that curtailing such travel would have to furthering the goals of the Strategy. This is an oversight. Luckily, however, the US can call upon a robust travel and border security screening framework that already exists.
Before 9/11, some of the largest terrorist threats primarily came from Whites, like the Provisional Irish Republican Army (before the Good Friday Agreement) or radical anti-government “lone wolves” like Timothy McVeigh rather than from Radical Islamic terrorist groups like Al-Qaeda which would later rise to prominence after 9/11. While the threat from Radical Islamic terrorists remains, our society can no longer ignore the resurgence of primarily White RMVEs and DVEs in the United States and around the world.
In the wake of 9/11, the US national security community rightly focused on the threat of terrorism originating in the Middle East. As a result, the US Government, led in part by the newly created Department of Homeland Security, developed a comprehensive screening apparatus to prevent the entry of terrorists. This article contends that the US could use this apparatus to help stem the rising tide of RMVE/DVE activity by focusing on a seldom-considered vector: the prospect of foreign RMVE/DVE threat actors traveling to the US to conspire, prepare for, or commit acts of terrorism in the United States.
The internet, of course, still remains the primary means of communication and collaboration among various RMVE/DVE groups located abroad. As long as social media platforms and chat rooms exist, these threat actors will be able to meet and exchange information. But even terrorists must tire of video teleconferences: sooner or later, they must eventually leave the virtual environment to meet in person to train or to carry out their criminal designs.
A body of growing evidence shows that White RMVE activity exists in other Western countries, which would correspond to a growing demand signal for White terrorist travel. The Southern Poverty Law Center reports the existence of Foreign White RMVE groups in Norway, Sweden, and the UK that may share some affinity or linkages with the primarily-US based Atomwaffen Division, a particularly extreme Neo-Nazi group that has become notorious in the United States. In New Zealand, a lone wolf White terrorist brutally carried out a mass shooting at a mosque, forcing a reckoning with growing anti-immigrant and racist sentiments within New Zealand society. In its 2021 Trend Report, EUROPOL described several completed, failed, and foiled terrorist attacks carried out by “right-wing extremists.” While the US definitions eschew political labels, the EUROPOL Report makes clear that these “right-wing extremists” can espouse racist, anti-Semitic, or xenophobic beliefs akin to White RMVEs in the United States.
As a result of the worldwide footprint of White RMVE extremism, the USG should employ its existing travel screening mechanisms to counter this renewed threat stream for several compelling strategic and operational reasons. Making travel difficult or impossible for foreign RMVEs can prevent like-minded individuals and groups from networking and forming alliances. An international “conference” of RMVE groups would have serious counter-terrorism implications. Attendees of such “conferences” could coordinate activities or attacks in secret, share “best practices”, form relationships and build rapport, and try to fuse together an oft-fractured ideological community.
Additionally, foreign RMVE actors might seek weapons training and supplies here in the United States, given our greater freedoms to own and use firearms—such opportunities might not exist for an extremist in Australia or the UK. The 2021 Europol Report referenced above, for example, stated that right wing extremists travel internationally to obtain paramilitary training. Strategically, travel screening and border checks may pose one of the few practical solutions to White supremacist foreign terrorist fighters. Just as Muslim extremists traveled by the thousands to ISIS-controlled territory in the mid-2010s, it is not difficult to imagine similar numbers of White extremists journeying to war zones for the same reason. Some of this travel has already happened in Ukraine’s ongoing armed conflict with Russia. Should similar conflicts break out elsewhere, one can easily foresee this trend continuing or getting worse. On a strategic level, preventing the formation of large units or groups of well-armed, combat-trained RMVEs should form a key part of the Administration’s strategy.
It would be difficult for other pillars of the strategy to work if foreign White RMVEs were able to coalesce into groups with Al-Qaeda or ISIS levels of sophistication, either here in the US or in Europe (where fewer security and military resources exist). The prospect of a well-armed, well-trained, and well-coordinated group that could overwhelm government responses raises frightening implications. While lone-wolf, isolated attacks can cause great harm, history instructs us that White supremacist radicals with the powers and resources of a large organization or nation-state can cause apocalyptic damage across continents. The foremost goal of any strategic vision must be to prevent the creation of such groups. Denying the ability of foreign White RMVEs to travel and coalesce should therefore form a key part of this counter-terrorism strategy.
This article examines how countering foreign RMVEs in this way may be possible with current US government technology and programs. The international travel of US White RMVEs falls outside the scope of this article. By focusing on the foreign threat, this article hopes to substantially, if not entirely, sidestep the important and pressing First Amendment considerations relating to US-based White RMVEs.
The federal government could utilize several provisions of existing domestic and international law to achieve these aims. Such laws have enabled the Department of Homeland Security, the Department of State, and other US government agencies to develop a number of traveler screening and border management programs that function to identify threats to national security and public safety while ensuring convenience for legitimate, law-abiding travelers.
These screening and vetting programs form a first line of defense for the United States by compelling almost every person seeking to travel to US territory to present themselves for identification and inspection prior to arriving at the border. Visa application procedures at consulates and embassies abroad serve as a clear example of this defensive line, which draws on, as required by law, the resources of law enforcement and intelligence agencies to help inform traveler screening and vetting decisions. See, e.g., 8 USC. 1365b(e).
Using personal information to identify and access derogatory information, such as known or suspected terrorist (KST) status, consular officers and border officials can quickly ascertain whether a person they have encountered poses a threat of terrorism. This topic area contains significant complexity and involves an alphabet soup of agencies and sub-agencies, but DHS has helpfully published extensive documentation explaining, for example, programs on Watchlist sharing, biometric identification, traveler and cargo screening, and aircraft security and the protections that each program uses to uphold privacy and civil liberties.
The travel and border screening apparatus has other applications as well. These information systems provide robust information with federal, state, and local law enforcement in a rapid fashion. Identity screening in particular has helped to strengthen security in several critical infrastructure sectors. For example, the Privacy Impact Assessments and System of Records Notices for some of these information sharing systems show that the US Government must also vet workers employed in critical facilities like dockyards and airports for criminal and terrorist ties. Vetting critical infrastructure workers may take on new importance given the increasing prevalence of “accelerationism” within White RMVE groups. Extremists who adhere to accelerationist ideology believe that the only way (or the most effective way) to achieve a Whites-only civilization involves ushering in the complete collapse of society, in other words, starting an inferno to rule the ashes.
To these threat actors, the transport hubs, dams, farms, power plants, and shopping malls that keep our Nation running may be ideal targets to precipitate the chaos they seek to create. As mentioned above, these programs and initiatives came into being as a response to Radical Islamic threats like Al-Qaeda, so the association between these programs and Radical Islamic threats may cause some to overlook the potential utility for countering the rising prominence of White RMVE movements around the world.
Luckily, several provisions of federal law demonstrate that the federal government could use these counter-terrorism information-sharing programs to counter White RMVEs just as much as Radical Islamic terrorists specifically through measures to prevent terrorist travel. As the 9/11 Commission Report noted in its recommendations to create the systems described below: “Targeting travel is at least as powerful a weapon against terrorists as targeting their money.”
The Immigration and Nationality Act (INA) clearly establishes that terrorist actors, of whatever race or creed, are unwelcome in the United States. Codified at 8 USC. 1182, the INA provides the grounds under which the US Government can deny an application for a visa or a traveler’s entry into the United States. White violent extremists could fall into several categories of inadmissible persons under the statute. For example, terrorist convictions in an extremist’s home country, if considered a crime of moral turpitude, could render a traveler inadmissible under 8 USC. 1182(a)(2)(i)(I). Because crimes of moral turpitude require both reprehensible conduct and a culpable mental state, offenses involving White extremist terrorist activities seem likely to fall into this category.
But the INA does not require a conviction in order to deny entry to foreign terrorists: instead, 8 USC 1182(a)(3) authorizes the United States to bar any alien who is a member of a designated terrorist organization or who has engaged or will engage in terrorist activities. Such activities include–in addition to the usual violence against persons or property–training, fundraising, planning, recruiting, or any other provision of material support to a terrorist group. But even in a circumstance where a White RMVE threat actor’s activities do not directly aid some specific terrorist group and instead support White extremist ideologies more generally, the INA would, under Section 1182(a)(3)(C), authorize barring such an individual on foreign policy grounds.
Section 1182 states: “An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.” This helpfully empowers DHS or the State Department to deny entry to identifiable individuals who may not fall under the more specific terrorism inadmissibility charges, but still espouse White RMVE ideologies.
Section 1182(a)(3)(C)(iii), however, admonishes that barring on foreign policy grounds requires the personal decision of the Secretary of State if the US Government seeks to exclude someone for their viewpoints, if such viewpoints and activities would be legal in the United States. This provision, which appears oriented toward protecting the interests of free speech guaranteed by the First Amendment, greatly limits the potential of using Section 1182 to forestall the entry of White RMVE actors who have not yet engaged in terrorist activities, but who could readily begin to do so based on their espoused beliefs and other conduct. Section 1182 also renders inadmissible any identifiable members of “totalitarian parties”, such as Nazis or other fascist groups who seek to establish a totalitarian dictatorship in the United States. This totalitarian party provision, while focused originally on communist movements and parties, could prove useful in countering—as an example—revivalist Nazi groups. Taken together, the Immigration and Nationality Act provides considerable latitude to deny entry to a wide range of potential RMVE actors.
Federal law provides additional tools relevant to address this new threat stream. In order to strengthen the enforcement of the INA’s admissibility rules, Congress directed the creation of a biometrically enabled database that could integrate information from law enforcement and national security sources across the US Government. Codified at 8 USC. 1365b, this biometric “entry-exit data system” provides in real-time conclusive identification and threat information to consular officers, CBP officers, and other similar officials. The existence and real-time transmission of such information has great import: the 9/11 Commission found that Mohammad Atta (one of the lead hijackers) had gained entry into the country despite overstaying a previous visa because this kind of derogatory information was not readily available to the border official making that decision. Finding that enhanced screening would have prevented his entry and may have significantly weakened the plot, the 9/11 Commission recommended the creation of such a biometric system.
Importantly, the authorizing statute for this system, 8 USC 1365b, commands the Secretary to use the system for counter-terrorism purposes, to include preventing terrorists from entering the United States. 8 USC. 1365b(a),(h). Even though it became law after 9/11, the text of this statute contains no ideological bent, so terrorists of whatever motivation (Radical Islamic or White RMVE) would fall within the scope of this statute. Additionally, federal law makes clear that the biometric system shall contain “all information” that is relevant to determining any immigration-related matter. 8 USC. 1365b(g). Relevance, though undefined in the statute itself, would mean, in this case, “information” that has a tendency to make a fact (terrorist affiliation for INA purposes) more or less likely. Cf. Fed. R. Ev. 401. This enables DHS to gather useful information to help inform these types of admissibility or immigration related decisions and authorizes the continued retention of such information should a RMVE actor pass through such screening and enter the United States.
These DHS screening programs receive valuable information from terrorism databases like TSDB, which the interagency Terrorist Screening Center (TSC) operates to support agency screeners and analysts tasked with identifying and taking protective action to counter terrorist threats. The statutes and policy authorities that empower agencies like the TSC or the National Counter-Terrorism Center (NCTC) also contain no limitation as to the nature of the terrorist threat. For example, 50 USC. 3056 sets forth the mission of the NCTC as “the primary organization in the United States Government for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism.” 50 USC. 3056(d)(1).
While NCTC does not lead the national effort on domestic terrorism, it nevertheless has the ability to receive domestic intelligence information and can assist agencies in conducting any counter-terrorism mission consistent with applicable legal authorities. 50 USC. 3056(e). Nothing in 50 USC. 3056 suggests that the NCTC’s activities, especially regarding foreign or international terrorism, would not extend to countering the travel and movements of foreign White RMVE threat actors. Similarly, Homeland Security Presidential Directive 6, which led to the creation of the TSC, contains no limitation on the type of terrorist threats in its scope.
Federal and international law provide further justifications for using existing screening and vetting programs to counter foreign White RMVE actors. In 2017, the United Nations Security Council (UNSC) grew so concerned with the prospect of the international movement of foreign terrorist fighters that it passed Resolution 2396. At the time, the Islamic State had been losing its territory based on the concerted efforts of the US and its partners, the foreign fighters that flocked to the Islamic State in Syria and Iraq had to flee elsewhere. For many fighters, this meant returning to their home nations or to third states to potentially continue their terrorist activities. To forestall the mass movement of foreign terrorist fighters, UNSC Resolution 2396 directed all UN member states to implement effective national border controls and to adopt document security measures to preventing counterfeiting, forgery, or fraudulent use of identity documents.
Of relevance to the US screening and vetting programs described above, UNSC Resolution 2396 also stated that Member States “shall implement systems to collect biometric data and to develop and share information related to watchlists or databases of known and suspected terrorists, including FTFs.” Notably, while the context clearly pertains to Radical Islamic terrorism and Radical Islamic foreign terrorist fighters, the Security Council did state that the UN should “continue to collect and develop best practices on the systematic categorization, collection and sharing among Member States of biometric data, with a view to improving biometric standards and improving the collection and use of biometric data to effectively identify terrorists, including foreign terrorist fighters, including through the facilitation of capacity building, as appropriate.” This forward-looking directive demonstrates that the threat of terrorist travel, of whatever kind, remains a serious threat to international security and stability.
Resolution 2396 shows that the US Government has continuing responsibilities to build and use this screening and vetting architecture to address traveling terrorists, and thereby improve the security of the international community by reducing the ability of such threat actors to plan, prepare and carry out terrorist attacks. As argued above, the screening and vetting mechanisms developed in response to one type of terrorist threat (Radical Islamic terrorism) can and should be easily applied to counter another type of terrorist threat (foreign White RMVEs).
To accomplish these objectives, the US Government could leverage a large network of information-sharing agreements with law enforcement agencies in more than 35 countries. DHS also has additional partnerships with foreign border and immigration authorities as well, which exchange information using a US biometric database called the Automated Biometric Identification System (as mentioned above). Federal law also directs the sharing of information with close foreign allies to boost security and public safety at home and abroad. For example, countries cannot remain part of the Visa Waiver Program (which allows citizens of trusted nations to travel to US without a visa) unless they cooperate on national security, law enforcement, and counter-terrorism matters.8 USC. 1187(c)(2)(C).
Importantly, a country cannot qualify for or maintain its Visa Waiver Program status unless it can share information on its citizens traveling to the United States that pose a threat to US national security or public welfare.Id. at (c)(2)(F). And if these countries need technical assistance in order to meet these information sharing requirements, the law further empowers the United States to provide assistance to meet those goals. Id. at (c)(10). Importantly, these security partnerships established by the Visa Waiver Program give the US and its allies the ability to review and address new security and terrorism challenges, including, for example, the prospect of foreign White RMVE actors freely moving around the world. Id. at (c)(12)(A). These efforts show that the US can use these diplomatic and technical capacities to counter the foreign White RMVE threat through robust information-sharing. Should these agreements implicate the personal data of US White RMVEs, however, they may raise some thorny issues, as described below.
Some impediments exist to broader use of identity information for widespread, international information sharing. The First Amendment, for example, may constrain the sharing of threat information to the extent that it may constitute viewpoint discrimination, particularly for sharing information on US persons here in the United States. Additionally, FBI regulations may create obstacles to rapidly sharing information on terrorists convicted in the United States, especially with foreign partners for non-criminal justice purposes.See, e.g., 28 C.F.R. 20.33 (permitting disclosure of criminal history record information only to foreign law enforcement agencies). And under a decades-old statute called Compact Act (34 USC 40311-40316), which created an effective framework for the use of criminal history record information in a manner consistent with US privacy values, background checks and immigration screening require special and costly procedures in order to share criminal history record information with an allied foreign government. These limitations initially sought to preserve personal privacy as well as a degree of federalism in the exchange of records between states and the federal government.
The “Compact” from which the law derives its name involves an agreement between the federal government and the states providing that information contributed to federal databases would not be used for purposes that the contributing state did not approve. This information sharing model, however, arose prior to 9/11 and the advent of the internet. A reporter or a curious person can find almost all public information about a criminal conviction online, especially a federal conviction. But the most updated, effective information (including investigative files) remains closely guarded under the current legal framework. These gaps led to the inability of the Office of Personnel Management or the Department of Defense to screen out the Navy Yard Shooter, even though state and local law enforcement had compiled incident reports showing the shooters’ violent tendencies.
Congress could examine how updates to these critically important laws could streamline information sharing, including in the case of foreign White RMVE travel. In any event, Congress may need to consider what level of information-sharing, especially in the international context, sufficiently safeguards the US from RMVE actors while upholding essential privacy, civil rights, and civil liberties interests, including Constitutional rights of US persons. Undoubtedly, other impediments exist to broader international information-sharing, but the tremendous potential upside to such information-sharing should lead the US Government to collaboratively study the issues in more depth.
There’s a good reason to invest in this international information-sharing framework now, because the public safety impact of the COVID-19 pandemic may be just beginning. Years or decades from now, there is a chance of increased violent extremism and crime from young people whose lives have been upended by the pandemic. Disruptions in education, for example, can have devastating social impacts even in relatively isolated circumstances, such as in the aftermath of Hurricane Katrina. Within the educational environment, one study found that students evacuated from Hurricane Katrina on average were 7.3% more likely to have disciplinary infractions. And while scholars have spilled much ink debating whether a lack of education causes terrorism, the worldwide disruptive impacts on children as a result of COVID-19 should set national security practitioners on edge.
Terrorism may get worse quite soon, including in previously “stable” places like Europe, which has already struggled with White RMVE activity. With educational disruptions on one hand and growing social media presence of hate speech and White supremacists on social media platforms popular with young people, the US Government should continue to strategize extensively to address these growing challenges.
Information sharing and traveler screening at the border form only one part of the US Government’s counter-terrorism strategy. These mechanisms have helped prevent another major Radical Islamic terrorist attack. The growing specter of an internationally mobile body of foreign White RMVE actors should lead the Biden Administration to think about how existing tools, such as these information-sharing programs, can help meet the overarching objectives of the Biden Administration’s domestic terrorism strategy. There is a significant opportunity to take decades of experience and hard work by the US government to develop counter-terrorism screening and information-sharing networks and apply it to a new threat stream to save lives here in the United States and around the world.
In closing, the issuance of the Biden Administration’s strategy marks the start of a new chapter in US counter-terrorism policy. Despite the forward progress, the conclusions of the 9/11 Commission Report still resonate and show the need for robust information-sharing with our allies to ward off terrorist threats, no matter their ideologies. The whole of government should study this more deeply to find easy victories and areas to improve, because, as the 9/11 Commission Report stated:
“The US government cannot meet its own obligations to the American people to prevent the entry of terrorists without a major effort to collaborate with other governments. We should do more to exchange terrorist information with trusted allies and raise US and global border security standards for travel and border crossing over the medium and long term through extensive international cooperation.”
- Terence Check is Senior Counsel at the US Department of Homeland Security, Cybersecurity, and Infrastructure Security Agency. LL.M in Law & Government, specializing in National Security Law & Policy, American University Washington College of Law (2015); J.D., magna cum laude, Cleveland State University, Cleveland-Marshall College of Law (2014); Editor-in-Chief, Cleveland State Law Review (2013-2014). The views expressed are those of the author and do not reflect the official policy or position of the Department of Homeland Security (DHS) or the US Government. DHS cannot attest to the substantive or technical accuracy of the information.