Terrorism is an unremitting foe to elected officials and administrators alike. From the anarchist bombing of the 1910s to the anthrax attacks of the 2000s, acts of terrorism have permeated the American consciousness. Surprisingly, domestic measures combating terrorism are somewhat unpopular, leading to public pushback while weak policy is met with violence by terroristic organizations. As most policy makers abhor the prospect of being held responsible for terrorist attacks during their administration, they are forced into a corner where the perceived alternative is to implement policy without the awareness or explicit mandate of the national constituency. This trend has developed considerably in the two decades following the September 11th al-Qaeda attacks, highlighting the unique intersection of international input and domestic policy. However, what was once perceived to be an existential threat from the exterior has become a pervasive and expected norm from the homeland, emerging in the form of domestic terrorism. As threats evolve by the day, the U.S. federal government is faced with difficult decisions, playing a balancing act with the scales of liberty and security as it attempts to arrive at an acceptable medium. In this endeavor and as result of public pressure, policy makers attempt to act broadly and quietly, pursuing the symbolistic priorities of transnational threats as opposed to gainful preventative measures.

If the average American were asked to conjure up an image of terrorism, the mind would likely materialize something close to a bearded, middle eastern man brandishing an AKM in an east coast city. This scenario is a perception imprinted in the minds of many Americans and as such, leaves an impression on the priorities of policymakers. The best contextual example of this reality is the title page of the 2019 “DHS Strategic Framework for Countering Terrorism and Targeted Violence”, which twenty years later, features the Twin Towers memorial in downtown Manhattan. It is abundantly clear that—in the mind of the policy maker and the American citizen—the imposing presence of September 11th and the lingering threat of international Salafi-jihadist terrorism remains firmly lodged. This is not to say that there should not continued monitoring of transnational groups with similar extremist alignment; certainly for the architects of U.S. foreign policy, this collection of intelligence is crucial as al-Qaeda and the Islamic State continue to maintain presence and possess significant capabilities throughout the Middle East, North Africa and Southeast Asia. However, there are many experts that argue that such organizations pose an ongoing challenge to homeland security. Asfandyar Mir, a Stanford scholar of counterterrorism and international security, contends that al-Qaeda maintains objectives of carrying out terror attacks in the U.S., bolstered by newfound consolidation of territory and alliances in South Asia and Central Africa. Additionally, he cites the recent statements made by al-Qaeda’s leader, Ayman al Zawahiri, that indicate a revitalized interest in prioritizing hits within the U.S. mainland, presenting Zawahiri’s 2018 promise “that [al-Qaeda’s] first enemy is America. Al-Qaeda remains, both in historical perspective and in current geopolitics, a capable adversary of American interests. 

More recent in the collective memory is the seemingly global proliferation of the Islamic State (IS). Though it has been active in the Levant since its creation by Abu Musab al-Zarqawi in 1999, IS emerged from obscurity in the Levant to become a household name after its efficient exploitation of the Syrian Civil War in 2014. Though they approached objectives using starkly different techniques, IS and al-Qaeda share the same fundamental priorities of Salafi-jihadist ideology and ultimately aim to bring about the reformation of global politics in accordance with an austere and typically spurious interpretation of the Quran and Hadiths. When first unearthed by international media, IS existed primarily as an insurgent militia, principally concerned with the acquisition of territory and resources in the war torn Levant. However, as IS adjusted to territorial management and concurrent military pressure by multiple international coalitions, its leadership pivoted to place emphasis on its foreign terror cells across Europe and North Africa. Despite the relatively few successful attacks in the U.S., IS managed to capture the attention of the American public, partially as a result of their prolific social media presence that allowed for the violent execution of U.S. citizens to be broadcast worldwide. Beyond the perceived threat by the general public—with nearly 50% of Americans expressing substantial concern about being the victim of a “Islamic State-inspired terrorist attack”—policy makers identified the legitimate potential for IS sponsored strikes, certainly after the demonstration of individual cell capabilities during the November 2015 Paris attacks.  Even after the fall of the physical “caliphate” in the winter of 2019, the United States has continued to monitor the dispersion of IS personnel and funds across North Africa and Southeast Asia. It’s certain that both the legacy and present action of transnational Salafi-jihadist terrorism has been and is still taken seriously by American citizens and policy makers alike.

In the past 20 years national attention has been laser focused on this very real adversary that is the “global Islamic terrorism.” As a result, terroristic extremism growing here at home has gone largely unaddressed by public policy makers. When a right-wing extremist executes a mass shooting, we look for mental illness; When a American-born Jihadist plants a bomb we look for the “ISIS connection”. The Center for Strategic and International Studies reports that from January 1994 to May 2020, more than 85% of terror attacks occurring in the U.S. were perpetrated by right-wing, left-wing or ethno-nationalist extremists, leaving only 15% to be classified as religiously motivated attacks. While the prevalence of politically motivated attacks is much greater than that of religious terrorism, these numbers are decieving at first glance, as religiously motivated terrorism is far more deadly per attack. According to data collected by New America, between September, 2001 to June, 2020, 107 people have been killed as a result of Jihadi terrorism, nearly identical to the 110 deaths from right-wing terror. By observing this data, it is abundantly clear that online and in-person radicalization is pervasive across both categories of extremism. While there are a number of domestic organizations that engage in the coordination of terror attacks in the U.S.—the Atomwaffen Division and Hammerskin Nation being some of the most prominent on the far-right—the majority of individuals engaged in acts of domestic terrorism are only connected through disparate networks that exist primarily online. Platforms such as 4chan and 8chan have existed as convenient launching pads for individuals that seek unified identity and individual notoriety motivated by the highly publicized nature of terrorist attacks. Lone actors and loose ideology reign supreme in the age of social terror.

While terrorism, foreign and domestic, has always confronted the U.S. as a policy challenge, the group of relevant government actors has evolved to include new agencies and leave out others. The primary responsibility for ensuring homeland security, from threats both domestic and international, now rests on the shoulders of the executive branch; however, this was not always the case. Ostensibly, the U.S. federal government’s first implementation of consequential counterterrorism policy occurred in the midst of the First World War, enabled by the passage of the Espionage Act of 1917 and the subsequent Sedition and Dillingham-Hardwick Acts of 1918. Intended to address a deadly spat of anarchist bombing across the East coast, coupled by a fear of foreign-influenced extremism, both pieces of legislation gave the federal government unprecedented leeway to prosecute and deport individuals for material or expressed support of anti-American and anarchistic sentiments. More than 10,000 were prosecuted or exiled through this package of legislation and many prominent politicians and civic leaders deemed that the measures abridged many of the most fundamental provisions of the U.S. constitution. Public outcry was instrumental in the mass pardoning that occurred later, and in the repeal or significant modification of all acts listed above. This was the U.S. government’s first brush with the dangers of strident counterterrorism policy in democratic society, an encounter that elected officials would increasingly shy away from throughout the rest of the 20th century. 

Wartime, volatile by nature, often leads to abrogation of norms. The next largest development in counterterrorism policy occurred in the wake of the Second World War as the U.S. and a recovering Europe looked east and saw the looming presence of the Soviet Union. U.S. President Harry Truman, after significant internal dispute, signed the National Security Act of 1947, with a pen stroke that profoundly changed the shape of the U.S. government. Among other things, the 1947 act created a Department of Defense, the National Security Council and the Central Intelligence Agency, three entities which became counterintuitively paramount in the evolution of domestic counterterrorism policy. Most importantly however, the legislation bolstered the executive function of the American presidency, allowing for a centralization of communication and a consolidation of agency. This trend is described by political scientist Arthur Schlesinger in his 1973 work The Imperial Presidency as having originated during the prolific presidency of Franklin D. Roosevelt. Schlesinger argues that the limited role intended for the American presidency was slowly obfuscated as the U.S. grew in international prominence and involvement, requiring greater autonomy on behalf of the President, who is vested with the authority of implementation of domestic response to external events. This observation describes the erosion of Congressional power and the growing prominence of the President’s role in responding to homegrown and transnational terroristic threats throughout the late 20th century. Following from the Kennedy and Johnson’s administration’s domestic surveillance of black liberation and communist movements to Nixon’s FAA security enhancements, the responsibility of counterterrorism policy in the homeland appears to sit primarily with the President and their executive agencies. 

Fundamentally, any long-term battle against terrorism must be conceived of as a collection small, interconnected battles, each one aiming for the acquisition of unique intelligence. Clearly, the President is not the one who collects, cleans or analyzes the plunder of these metaphorical engagements. Instead, it is the vast, subterranean machine made up of the Executive Office of the President, the Cabinet and an assortment of independent agencies that workday and night to ensure the authority of the chief executive extends to all potential areas of policy implementation. The President is both the ultimate decision-maker (which occurs by their setting of priorities by presenting the National Strategy for Counterterrorism and developing an ongoing dialogue with key entities) and the delegator. As a result, an enormous amount of power resides in the nondescript back rooms of Washington, D.C. and northern Virginia. Many of the players in the executive agency are relatively new, most prominent of which is the National Counterterrorism Center (NCTC), created in 2004 after its creation was deemed necessary by the 9/11 Commission’s report. Reporting to the Office of the Director of National Intelligence, the NCTC creates a nexus for intelligence collection and problem solving by connecting representatives from the FBI, the Department of Homeland Security, the Department of Defense and the CIA. While this consolidation has nearly maximized collaborative capabilities to develop coordinated domestic counterterrorism solutions, its efficiency has sharpened the double-edged sword that will become apparent in later development.

Terrorism is inherently agonizing for its victims. Often, those attempting to inflict harm on civilians will hit the most emotionally significant locations, prioritizing shock value, symbolism, and the maximization of human suffering. Even in the absence of individual experience of a terrorist attack, societies experience the resultant suffering as a collective, typically pursuing solutions as a unified front in the face of a nationally identified existential threat. However, this reaction is primarily emotional—as the vast majority of Americans do not engage in rigorous analysis of data on terrorism attacks—and therefore perception of government response is malleable in the context of perceived proximity to past or future terroristic events.  Looking back to a 2002 Gallup poll that asked the participants to select either “the government should take all steps necessary to prevent additional acts of terrorism in the U.S. even if it means your basic civil liberties would be violated, (or) the government should take steps to prevent additional acts of terrorism but not if those steps would violate your basic civil liberties,” 47% of respondents chose “Take all steps, even if liberties are violated”. By August of 2011, the percentage of participants selecting the same answer had dropped by 22%. As government response escalated to meet the anticipated threat of further action from al-Qaeda, public concern with security waned and the American public began to reconsider their interest in previous liberties. This shift can be largely attributed to information revealed leaked in the late 2000s, exposing the President’s Surveillance Program, within it operating the National Security Agency’s (NSA) highly controversial Terrorist Surveillance Program.

Emerging after the passage of the 2001 USA PATRIOT Act, the highly confidential intelligence collection activity demonstrates the most basic domestic inclinations of political leaders and policy makers in the face of terrorism. This is related to quintessential policy formation problem that Deborah Stone describes in her book, Policy Paradox. How do policy makers design and implement effective measures that ensure security (of bodily safety) while continuing to respect the expected liberties that permeate American democratic norms? In regard to domestic counterterrorism, no clear answer materializes. A database that identifies and tracks members of a specific religious group perceived to be “high-risk” would likely be perceived as a significant invalidation of fundamental constitutional provision regarding freedom of worship. Similarly, failing to react in a broad-sweeping manner to the destruction of American symbols (i.e. The Twin Towers, the Pentagon) and murder of almost 3,000 individuals would be perceived as weak leadership. Both reactions would likely lead to public outcry and subsequent ousting of the responsible administration and legislators. While perceived responsibility for shortcomings in security is quite unpopular, the most nationally popular presidents enjoy the benefits of the “rally ’round the flag” effect when they have engaged in a bold manner when responding to international crises. This concept does not apply in a domestic context however, as such actions which are typically perceived as decisive in the international arena are qualified as invasive in the context of American Law.

Therefore, the natural inclination of governments is to consolidate intelligence by obfuscated means, a phenomenon described by Tiberiu Dragu in his article on “Executive Bias, Privacy Protections, and Terrorism Prevention.” Dragu asserts, by way of a game-theory model, that it is in the institutional interest of the executive branch to maintain covert methods of domestic surveillance that naturally maintain their own existence, regardless of actual efficacy in combatting threats of terrorism. In short, this inclination is a result of policy makers beholden to their own organizations seeking to maintain favor with any given administration. It is a question of interagency politics and competition, a question of who get funding and how, which is a prominent theory in the decision-making canon developed by Bendor and Moe. The NSA and top Bush administration advisors certainly exhibited these tendencies in the months after September 11th, responding both to bureaucratic and public pressure. A lack of oversight infrastructure complimented by a sympathetic and noninvasive Congress led President Bush to authorize the inception of the most comprehensive and far-reaching domestic surveillance program in U.S. history.

The bold and symbolic actions of the Terrorist Surveillance Program (TSP) allowed for internal cover for the Bush White House while real focus was directed internationally. Responding to the readily apparent threat of al-Qaeda coordination with individuals living within the U.S., the TSP directed the NSA to begin the construction of an expansive metadata “net” known as MAINWAY for any international communication between the U.S. and foreign numbers. The primary objective of the initiative was to ensure the monitoring and documentation of any interaction between a U.S. based caller and suspected al-Qaeda affiliates, information that could prove useful in subsequent legal investigation or military action. Subsequent implementation required some of the U.S.’s phone companies, including Verizon, AT&T and Sprint to turn over metadata to the NSA while the administration authorized the tapping of undersea fiber optic cables to increase the amount of raw information collected by the established database. Despite criticism from many DOJ officials and public pundits, these practices continued throughout the two terms of the Bush White House and more surprisingly, endured in modified forms during the course of Barack Obama’s presidency. The Obama administration also relied on the previously established PRISM program of 2007, which provides the capability to identify and monitor individuals based on online data through partnerships with a number of internet providers. A key component of early TSP implementation is that it avoided visibility and concerted effort was made to prevent the dissemination of any substantial details concerning the multitude of surveillance programs under the umbrella of the TSP.

These attempts to subvert the attention of oversight likely originated from an anticipatory hesitance regarding the legal justifications for domestic surveillance measures. Numerous opinions were drafted by Johnny Yoo, a key component of the Bush White House Office of Legal Counsel (OLC) who argued in favor of the Unitary Executive theory. This interpretation took the “Executive Power” references from Article Two of the U.S. Constitution and argued that such broad definition allows for “inherent authority to conduct warrantless searches to obtain foreign intelligence.” Additionally, the administration cited previously established norms of the Carter and Clinton presidencies, in which both presidents vested power in their Attorneys General to engage in subjective discretion outside of traditional authorization of Foreign Intelligence Surveillance Court (FISC). Dissent appeared from within the administration in early 2004, as personnel shake-up led to the ascension of James Comey to Deputy Attorney General and the inclusion of FBI Director Robert Mueller and NSA Director Micheal Hayden in discussions about concerns of the program’s legality. Subsequent disclosure of classified information in 2005 led to public acknowledgement of TSP programs and systematic, warrantless collection of U.S. citizen’s personal and meta data.31

As more information became available about the Bush administrations, approval ratings steadily declined. While there is no evidence of a causal relationship between the two events, there is context to garner from public discussion of the domestic counterterrorism surveillance policies. Many legal counter arguments were raised, initially by Democratic legislators, who argued that there was negligence in regards to information sharing between the White House and Congress, outside of the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence.31 Additionally, many members claimed that actions directly broke the law in regards to rules delineated by the Foreign Intelligence Surveillance Act (FISA), which requires review of any desired covert warrants by the federal government in the closed FISC court. The 2013 disclosures of Edward Snowden stole NSA records and provided public access to more than 1.7 million classified documents, leading to a sizable response from both lawmakers and the general population. Sizeable increases in the scope of collection, including access to individual browsers and surveillance of European allies and their relation to U.S. citizens, were revealed. Many claimed that the Fourth Amendment’s guarantee to reasonable expectations of privacy had been abridged. This time around, Republicans and Democrats alike condemned the overreach of the NSA and partner organizations, with many members introducing bipartisan legislation such as the unsuccessful “Amash–Conyers Amendment.” A number of acts such as this amendment failed, and later analysis found that legislators who opposed the legislation on the floor received on average 122% more in donations from the defense industry than those who voted in its favor. This moment represented an enormous divide between ideology and pragmatism in the U.S. Congress, emphasizing the role of corporate spending in the support of initiatives generally understood to be bipartisan in nature. 

Despite the public outcry, underscored by thousands that marched in the “Restore the Fourth” demonstrations and the politicians that wrote legislation, forms of domestic surveillance continued into the Trump administration and FISC courts continue to operate with little to no oversight. However, a new threat has emerged, one that is not as easily approachable as transnational Salafi-jihadis terrorism. While policymakers were preoccupied with a surveillance dilemma of their own making, domestic terrorism grew into increasingly deadly threat. Options for confronting this homegrown reality are even more limited. Warrantless collection of domestic metadata may be acceptable for some in the pursuit of preventing an organized al-Qaeda from destroying symbols of America, but it cannot be a solution to the loosely grouped collections of American born, self-radicalized neo-Nazis and jihadists. As domestically oriented counterterrorism policy already stretches the limits of Constitutionally protected liberties, usage of such methods to convict U.S. citizens on domestic terrorism charges would prove only to rip already weak seams. Policy makers understand this, yet principles that govern the balancing act between electoral viability and unpopular but effective action lead the majority to remain stagnant. 

This is a fundamentally democratic issue. In the prevention of terrorism, consensus is a burden but in the preservation of civil liberties, it is a virtue. It is encouraging to see disagreement and debate between varying political identities in identifying a path forward from threats of extremism. What are not productive to effective counterterrorism policy are the trends of the past two decades, in which elected policy makers engage in subverted activities that rely on the prioritization of symbolism instead of making difficult, public decisions regarding the undesirable tradeoffs between liberty and security. Since 9/11, there has been only one successful act of foreign Jihadist terrorism committed in the U.S., that being the 2019 Pensacola Shooting. In that same time period, the U.S. has seen more than 80 domestic terrorist attacks, enduring nearly 240 deaths. For 20 years, U.S. domestic counterterrorism policy has been firmly oriented towards transnationalist threats at the expense of security in the homeland. To be wholly effective in public counterterrorism policy, the U.S. needs to compromise on domestic and foreign priorities by having the difficult conversation about give and take, publicly, requiring newfound selflessness by both elected officials and policy makers alike.