(This opinion essay was first published in Just Security on July 26, 2021.)

In June, the Biden administration released its long-awaited strategy on domestic terrorism, billed as the first national strategy that squarely addresses that threat. While the strategy recognizes the increasingly transnational dimensions of white supremacist violence, it retains the basic division between domestic and international terrorism that characterizes U.S. law. Here, I explain what “work” the domestic/international terrorism divide does in U.S. law and policy, and focus on how the “international terrorism” side of that divide preserves an exceptional set of rules for Muslims, even U.S. citizens who have never set foot abroad. My focus here is not to consider what should be the proper response to white supremacists, anti-government militias, or those who invaded the Capitol on Jan. 6, which I have partly addressed here and here. Instead, I want to discuss how the categorization of Muslim threats as presumptively “international,” which derives in part from the racialization of American Muslims as foreign, subjects them to unaccountable security practices and deprivations of rights.

In describing the domestic terrorism threat, the Biden National Strategy for Countering Domestic Terrorism begins by citing the definition of domestic terrorism first legislated in the USA Patriot Act of 2001, which refers to dangerous acts that appear intended to intimidate a civilian population or influence government policy or conduct and that “occur primarily within the territorial jurisdiction of the United States.” It’s that last part of the definition that distinguishes domestic from international terrorism, which is defined as similar activities that “occur primarily outside the territorial jurisdiction of the United States or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”

These definitions appear to establish a geographic test: If terrorist activities are “primarily within” the United States, they are domestic, and if they “transcend national boundaries,” they are international. But rather than classify individual activities or suspects according to one or the other category based on their geography, the Biden administration follows the FBI, Department of Homeland Security (DHS), and other security agencies in categorizing threats as a whole based on ideology. Thus, the Biden strategy identifies “racially or ethnically motivated violent extremists” and “anti-government or anti-authority violent extremists” as key components of the domestic terrorism threat, alongside those motivated by issues such as abortion, animal rights, the environment, or “involuntary celibacy.” People motivated by Islamic extremism don’t appear on this domestic list because, as I explain below, they are seen as an international terrorist threat no matter how American they are.

Despite the classification of white supremacist violence as domestic terrorism, the Biden strategy recognizes that almost all activities transcend national boundaries in “today’s interconnected world.” It observes that even “domestic” terrorists connect with others online, recruit across borders, find inspiration in the acts of ideologically aligned foreign individuals, and aim to forge other transnational linkages. In light of these transnational connections, the Biden administration states that it’s considering designating foreign terrorist organizations linked to domestic terrorism, increasing intelligence sharing with foreign countries, countering foreign disinformation campaigns in the United States, and potentially applying foreign intelligence surveillance tools.

The Biden strategy is right to point out the transnational linkages of U.S. white supremacists. Others have reported that more than 30 Americans have gone abroad to fight with neo-Nazi groups in the Ukraine and that there are operational and financial linkages between far-right militants here and abroad. But the recognition of the transnational character of what has been labeled “domestic terrorism” raises the question: If “domestic” terrorism so often transcends national boundaries, why call it domestic terrorism at all? What purpose is served by the label and the corresponding distinction with international terrorism?

At one level, the domestic in “domestic terrorism” seems to be a way of specifying that the subject is not Muslim violence. Because the media, government, and public at large have so thoroughly conflated terrorism with Muslims and Islam, the “domestic terrorism” label signifies that the subject is some other group or ideology. While labeling white supremacist violence as “terrorism” applies to it a stigma long reserved for Muslims, the “domestic” qualifier preserves a limited rhetorical distinction – perhaps suggesting to some audiences that the violence it references is less serious than “real” terrorism.

At the same time, framing the problem as domestic terrorism avoids a more pointed reference to white supremacists or far-right threats. In March, the Intelligence Community identified “racially or ethnically motivated violent extremists” and “militia violent extremists” as “the most lethal” domestic threats. The Biden administration wants to prioritize those threats without appearing to be exclusively targeting the right. It’s more politically palatable to issue a national strategy on domestic terrorism than on far-right extremism. The facially neutral reference may also appeal to those who prefer to stigmatize political violence or activism from the left, including within law enforcement or security agencies, as in a U.S. Attorney’s recent labeling of a woman who damaged an oil pipeline as a domestic terrorist.

While these rhetorical implications are troubling, the categorization of certain threats as “domestic” has a somewhat more defensible function: it provides partial protection from the rights deprivations and unaccountability of U.S. counterterrorism. For 20 years, the U.S. government has waged a global preemptive war on terror abroad and an aggressive preventative campaign at home. Within the United States, that campaign has included the demographic “mapping” of Muslim communities, mass surveillance, the placement of thousands on terrorist watchlists, sting operations against vulnerable individuals, electronic surveillance with little oversight, and expansive charges of material support to terrorism. The domestic/international terrorism legal divide, which I have described at length elsewhere, partially shields those on the “domestic” side from certain problematic laws, such as the ban on material support to terrorist organizations that extends to political speech supporting those organizations’ peaceful activities or the use of Foreign Intelligence Surveillance Act (FISA) warrants, whose legality is nearly impossible to challenge because defendants cannot access the government’s application to the Foreign Intelligence Surveillance Court.

The “domestic” classification also affords other potential protections from overbroad investigations. Domestic terrorism investigations do not allow the FBI to use National Security Letters, a form of administrative subpoena seeking records from phone companies, consumer reporting agencies, and financial institutions, without court approval. (Grand jury subpoenas, however, are available). In addition, the opening of an FBI investigation into domestic terrorism requires approval by legal counsel, while the opening of an international terrorism investigation does not. Furthermore, the use of long-term and special informants in domestic terrorism investigations requires approval from a special committee of Justice Department and FBI attorneys, an oversight mechanism not required for international terrorism.

The differences in oversight stem from a judgment by security agencies that domestic terrorism investigations deserve greater protection for civil liberties and constitutional rights than international terrorism investigations. The FBI, for instance, noted in a strategic assessment on domestic terrorism provided to Congress in May: “As a matter of FBI policy, law enforcement activities within the scope of DT investigations are particularly subject to heightened internal legal review and supervisory approvals to ensure Constitutional rights, privacy, and civil liberties are protected at each juncture. DT investigations receive more scrutiny through such legal reviews due to the greater likelihood these investigations may need to navigate First Amendment-protected activities.”

These policy differences seem both to reflect and support a cultural or normative understanding that government actions to counter domestic terrorism require greater scrutiny than those undertaken to address international threats.

To be sure, the domestic terrorism classification does not shield people from sting operations, terrorist watchlisting, countering violent extremism programs, or other practices that are not legally limited to international terrorism. Framing threats of political violence as terrorism of any kind exposes people to institutional actors and practices that are too often secretive, rights-infringing, and unaccountable. But the “domestic” designation affords a degree of insulation, at least for now.

That is where the designation of all perceived threats stemming from Muslims as “international” has the exact opposite effect. Muslims in the United States who are deemed a potential threat are classified as international terrorists even if their connections abroad are negligible. While security agencies recognize the similarities between political violence across ideologies, there is no indication they are reconsidering the limited rights accorded to Americans motivated by Islamist beliefs.

Racialized Categories

Security agencies recognize, of course, that some U.S. citizen Muslims within the United States who may be sympathetic to political violence have not had any contact with foreign organizations or countries. Like other Americans, they are inspired online by global ideologies they encounter in front of a screen. Rather than treat them as potential domestic terrorists, however, these agencies have created a separate subcategory of international terrorism for U.S. Muslims inspired by, but not actively collaborating with, a foreign group: “homegrown violent extremists.” The FBI and DHS distinguish them from “domestic violent extremists,” which is what it calls white supremacists, anti-government extremists, and other non-Muslim Americans who may present a threat. These “homegrown” individuals are considered an international threat: last September, FBI Director Christopher Wray testified to Congress that “HVEs” presented the “greatest, most immediate international terrorism threat to the homeland.”

Why consider one group of Americans within the United States – Muslims – a subset of international terrorism when their only link to foreign groups is inspirational? Security agencies recognize how similar the threats can be from “homegrown” (Muslim) and “domestic” (not Muslim) “violent extremists.” Wray told Congress that both groups consist of “lone actors” who “generally self-radicalize and mobilize to violence on their own.” Both groups seek to “attack soft targets with easily accessible weapons.” Both groups “are motivated and inspired by a mix of ideological, sociopolitical, and personal grievances against their targets.”

Given these similarities, it’s hard not to conclude that race and identity influence the designation of American Muslims as international threats. Islamic extremism is deemed inherently foreign, while racial extremism is considered presumptively domestic even when people are inspired by transnational ideologies (think of “neo-Nazis”). Historical patterns of “othering” make it natural to see racial, ethnic, or religious minorities as foreign, whether or not they have true international ties. Muslims are perpetual foreigners, no matter how American, while white supremacists get to remain rights-bearing citizens.

To be clear, the domestic terrorism label is not exclusively reserved for White people. The May  FBI report on domestic terrorism, for instance, includes incidents of Black or Puerto Rican individuals who attacked police officers and who were variously classified as racially motivated violent extremists or anti-government/anti-authority violent extremists. But, to date, American Muslims inspired by transnational ideologies are deemed an international threat.

So, how should these problematic distinctions be reformed? Recognizing the racialized nature of the classifications that U.S. security agencies use is a good place to start. There is no justification for preserving an exceptional set of rules for Muslim violence that strips U.S. Muslims of the oversight granted other Americans. But choosing to address the inequality by categorically “ratcheting up” the legal response to “domestic terrorists” is the wrong response. For instance, using FISA warrants to surveil white supremacists whose only connection to foreign actors is ideological would not be an improvement, because it only subjects more people to national security tools originally designed for a limited set of cases with a significant international nexus. The underlying issue is that U.S. policymakers and the public have yet to reckon with the national security authorities and institutions the government has expanded and empowered over the past two decades. Until the United States reins in its counterterrorism apparatus, expanding it to encompass more groups will further entrench the overbroad tools U.S. security agencies have come to take for granted.